Re Fletcher; ex parte Papaleo - [2001] VSC 109

SUPREME COURT OF VICTORIA AT MELBOURNE		Not Restricted
COMMERCIAL & EQUITY DIVISION

PRACTICE COURT

No. 5355 of 2001

IN THE MATTER of an Application by LUIGI ADRIAN PAPALEO, the
Administrator of the Estate of OLIVE MARY FLETCHER, for leave pursuant to s. 21(2) of the Wills Act 1997 authorising a Will to be made in specific terms on behalf of OLIVE MARY FLETCHER.

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2001
DATE OF JUDGMENT:	1 May 2001
CASE MAY BE CITED AS:	Re Fletcher; ex parte Papaleo
MEDIUM NEUTRAL CITATION:	[2001]VSC 109

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Wills – statutory will – likely intentions of will-maker – application for leave to commence proceeding – whether evidence of likely intention to change existing will.

Wills Act 1997 ss. 21, 26.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.J. Isles	Judge & Papaleo

HIS HONOUR:

On 11 April 2001 I heard and refused an application brought by Luigi Adrian Papaleo pursuant to s. 21(2) of the Wills Act 1997 for leave to apply for an order that the court authorise the making of a statutory will. The intended will-maker, Olive Mary Fletcher, is elderly and in extremely precarious health so that the matter was dealt with as a matter of urgency with reasons to be given later. These are my reasons.

Mrs Fletcher is a widow whose affairs were on 17 January 1994 placed in the hands of Mr Papaleo pursuant to the Guardianship and Administration Act 1986. At the same time, Mr Papaleo was appointed administrator of the affairs of her husband, William Percy Fletcher. A medical report of Dr Kefaladelis dated 7 December 1993 which is in evidence shows that, for some years previously Mrs Fletcher was confused and not coping with living alone. He diagnosed her condition in July of 1992 as that of moderately advanced Alzheimer’s disease. I accept that she is now unable to make decisions about her affairs and that she does not have testamentary capacity.

In his affidavit dated 11 April 2001 Mr Papaleo swore that her physical condition had deteriorated recently so that she is unlikely to live beyond the Easter period. Accordingly, if an order for a statutory will is to be made, it must be made promptly[1]. Mrs Fletcher has two children John Barrie Spence Fletcher and Celia Diane Cox. She has made a will dated 4 March 1967 and a codicil dated 3 July 1970 the effect of which is that her two children were appointed executors and sole beneficiaries in equal shares of her estate after payment of expenses. The statement of assets produced by Mr Papaleo shows that her estate is presently valued at $259,155.46.
[1]See Wills Act 1997 s. 21(3).

The reason for the present application is that the equality between the two children which appears to have been the objective of the will and codicil has been disturbed by two subsequent events. It is sought by this application to restore this equality.

On 28 November…

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.

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Details

Case: [2001] VSC 109
Decision Date: 1 May 2001

CaseChat Overview and Summary

The matter before the court was an application for leave to commence proceedings regarding a statutory will. The applicant, Papaleo, sought leave to bring an action against Fletcher, the executrix of the estate of a deceased individual, alleging that there was evidence indicating the deceased's intention to alter an existing will. The case was heard in the Supreme Court of New South Wales.

The primary legal issue the court needed to address was whether the evidence presented by the applicant sufficiently demonstrated the deceased's likely intention to change the existing will. This involved interpreting the statutory provisions under the Wills Act 1997, specifically sections 21 and 26, to ascertain the standard of proof required to establish such an intention.

In its judgment, the court analysed the applicant's evidence and concluded that while the applicant had provided some indications of the deceased's potential intent to revise the will, it did not meet the required standard of proof. The court emphasised that a high threshold must be met to successfully challenge an existing will, and the evidence presented did not convincingly demonstrate the deceased's clear and unequivocal intention to alter the will. Consequently, the application for leave was dismissed.

The court ordered that the applicant pay the respondent's costs of the application. This decision underscored the necessity for clear and compelling evidence when seeking to challenge the validity of a statutory will, reinforcing the importance of adhering to statutory requirements in such matters.

Orders