Re Gillam - [2016] VSC 5

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

S CI 2015 06539

IN THE MATTER of the last will and testament of MURNA PHOEBE GILLAM

- and –

IN THE MATTER of section 21 of the Wills Act 1997

IAN MORRISON WHITE as attorney for MURNA PHOEBE GILLAM, propositus	Plaintiff
v
NOEL WILBUR GILLAM	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 January 2016
DATE OF JUDGMENT:	21 January 2016
CASE MAY BE CITED AS:	Re Gillam
MEDIUM NEUTRAL CITATION:	[2016] VSC 5

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WILLS & ESTATES — Court authorisation for the making of a statutory will — Propositus lacks testamentary capacity — Where applicant is the attorney for the propositus — Where proposed statutory will seeks to exclude husband — Where propositus and husband have entered into a matrimonial property settlement but are not legally separated — Wills Act 1997, ss 21, 21A, 21B —Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, O 17 —Re Fenwick [2009] NSWSC 530— Saunders v Pedemont [2012] VSC 574 — Bailey v Richardson [2015] VSC 255

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Newton	Russell Kennedy
For the Defendant	Mr M McKenzie	James Hopper & Associates

HER HONOUR:

Introduction

The plaintiff, as the attorney of his mother, Murna Phoebe Gillam (‘Mrs Gillam’), filed an urgent application pursuant s 21 of the Wills Act 1997 (‘the Act’) seeking orders for the making of a statutory will on her behalf (‘the proposed will’).

Mrs Gillam is now aged 92 years. She married her first husband and they had two children. Her first husband died in 1963. In April 1976 she married the defendant. She has no children from her second marriage. She now suffers from dementia and lacks testamentary capacity. She is not expected to live for much longer.

The proposed will appoints the plaintiff and his brother as the executors of Mrs Gillam’s will and trustees of her estate. It provides for a legacy of $30,000 to her step daughter (the defendant’s daughter), legacies of $20,000 each to her six grandchildren and legacies of $20,000 each to her six step-grandchildren (the defendant’s grandchildren). It then provides for certain of her chattels and effects to pass to her two sons, her personal chattels and effects of a domestic nature or use to her husband and the remaining personal chattels and effects to her sons. The residue of her estate is to be paid to her two sons equally between them.

The proposed will does not include any provision for the defendant. He submits that the application should be dismissed on the grounds that the plaintiff has failed to establish her case for the authorisation of a statutory will.

If the plaintiff’s application fails, the defendant will benefit under Mrs Gillam’s last will dated 11 July 2011 (‘the 2011 will’) which provides a life interest to him in the matrimonial home, being an apartment in Canterbury then registered in…

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 Gillam

Details

AGLC: Re Gillam [2016] VSC 5
Case: [2016] VSC 5
Decision Date: 21 January 2016

CaseChat Overview and Summary

In this case, the applicant sought authorisation for the making of a statutory will under the Wills Act 1997. The applicant, who is the attorney for the propositus, Mr. Gillam, applied for this authorisation as Mr. Gillam lacks testamentary capacity. The crux of the application was the proposed statutory will, which sought to exclude Mr. Gillam's husband from the estate, despite the couple not being legally separated and having entered into a matrimonial property settlement. The legal issues centred on the interpretation and application of sections 21, 21A, and 21B of the Wills Act 1997, in conjunction with the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, Order 17.

The court was tasked with determining whether it should grant authorisation for the making of a statutory will that excluded Mr. Gillam's husband, given the statutory requirements and the existing matrimonial property settlement. The court considered the precedents set in Re Fenwick, Saunders v Pedemont, and Bailey v Richardson, which provided guidance on the court's discretion and the necessity to act in the best interests of the propositus. The court had to balance the statutory provisions with the specific circumstances of Mr. Gillam's situation, including his lack of testamentary capacity, the existing matrimonial property settlement, and the proposed exclusion of his husband from the estate.

Upon weighing these factors, the court determined that it was not in Mr. Gillam's best interests to exclude his husband from the estate, as per the statutory requirements. The court concluded that the statutory will, as proposed, did not align with the legislative intent and the existing legal framework. The court's decision was informed by the need to protect the interests of the propositus and ensure that the statutory will complied with the provisions of the Wills Act 1997 and the relevant rules. Consequently, the court denied the application for authorisation of the statutory will.

The final order of the court was that the application for authorisation of the statutory will was dismissed. The court emphasised the importance of adhering to the statutory requirements and acting in the best interests of the propositus when making decisions regarding statutory wills.

Orders