Re Finlay - [2022] VSC 215

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2019 05599

In the matter of the two Wills and the Estate of AUDREY VERA FINLAY (the deceased)

RICHARD LODGE HORSEMAN
(as Syndic of MÉDECINS SANS FRONTIÈRES AUSTRALIA LTD)

Plaintiff

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2022
DATE OF JUDGMENT:	3 May 2022
CASE MAY BE CITED AS:	Re Finlay
MEDIUM NEUTRAL CITATION:	[2022] VSC 215

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PROBATE – Application to admit informal documents to probate – Two copies of hand written document – Signed by testator – Not witnessed in accordance with legislative requirement – Wills Act 1997 (Vic), ss7, 9 – Whether deceased intended the documents to be her will – Testamentary capacity demonstrated at the time of death – Informal documents intended to operate as wills – Informal documents are to be admitted to probate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M McKenzie	Prior Law

HER HONOUR:

Audrey Vera Finlay (the deceased) was found unconscious in her home on 30 January 2018. She was located there by an ambulance crew because she had failed to respond to a MePACS alarm at her home. The deceased was taken to Box Hill Hospital having suffered a major stroke and died on 3 February 2018. The attending paramedic found a handwritten document described as a Will and dated 18 December 2017 near where she lay at her home (Will B). A similar but not identical handwritten document also described as a Will and also dated 18 December 2017 (Will C) was posted to Mr Horseman(the plaintiff), the solicitor she had retained to prepare her will. It was received by him on 17 January 2018.

The plaintiff makes this application for letters of administration with Will B and/or Will C attached. Both Will B and Will C (collectively, the informal wills) are signed by the deceased but not witnessed. They are therefore not in accordance with section 7 of the Wills Act (Vic) 1997 (Wills Act) as neither document has been executed in the presence of two or more witnesses. Section 9 of the Wills Act permits this Court to dispense with the requirements for execution and admit a document to probate as the will of the deceased where the requirements of that section are met. To rely on section 9, the Court must be satisfied of three things: that there is a document; that the document expresses the testamentary intent of the deceased; and that the deceased intended that document, which expresses testamentary intent, to be her will.

The deceased was unmarried and had no children. She had three siblings, two of whom are alive. Her elder sister who predeceased Miss Finlay has five children. In the event of the deceased dying intestate, these family members would inherit.

The informal wills do not appoint an executor. They direct that her home in Croydon…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Finlay

Details

AGLC: Re Finlay [2022] VSC 215
Case: [2022] VSC 215
Decision Date: 3 May 2022

CaseChat Overview and Summary

The case of Re Finlay involved an application to admit informal documents to probate. The deceased, Finlay, had executed two copies of a handwritten document intended to serve as her will. However, these documents were not witnessed in accordance with the legislative requirements set out in the Wills Act 1997 (Vic). The court was tasked with determining whether the deceased intended these documents to be her will and whether her testamentary capacity was demonstrated at the time of her death. The central issue was whether the informal documents could be admitted to probate despite not meeting the statutory requirements for witnessing.

The court examined the circumstances surrounding the execution of the documents and the deceased’s testamentary capacity. It was clear from the evidence that Finlay had the requisite mental capacity to make a will and had indeed intended the handwritten documents to serve as her last will. The court found that the deceased had taken steps to ensure the documents would be treated as her will, despite not adhering to the formal witnessing requirements. Given the demonstrated intention and capacity, the court held that the informal documents should be admitted to probate as they effectively represented Finlay’s testamentary wishes.

In conclusion, the court admitted the informal documents to probate, recognising that Finlay intended them to be her will and that she possessed the necessary testamentary capacity at the time of execution. The court found that the statutory witnessing requirements were not strictly adhered to, but the intention to create a will and the demonstration of capacity outweighed the formalities. The final orders of the court reflected this decision, allowing the handwritten documents to be probated as the last will of the deceased.

Orders