Re Gray
[2023] VSC 668
•20 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2023 03407
In the matter of the Wills of JEAN MARGARET GRAY (deceased)
Application by:
| NEIL ROBERT JOHN GRAY and ROSEMARY LYNETTE MARGARET BLAKE | Plaintiffs |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF RULING: | 20 November 2023 |
CASE MAY BE CITED AS: | Re Gray |
MEDIUM NEUTRAL CITATION: | [2023] VSC 668 |
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WILLS AND ESTATES – Application to admit informal will to probate – Whether deceased had testamentary capacity – Whether deceased intended informal will to be her will – Whether deceased intended to revoke prior will – Application granted – Wills Act 1997, ss 7 and 9.
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HIS HONOUR:
The deceased, Ms Jean Gray, died on 13 August 2022. The deceased left behind a valid will dated 5 June 1995 (‘1995 Will’). This ruling concerns the validity of a purported will signed by the deceased on 6 May 2019 (‘2019 Document’). The 2019 Document does not comply with the formal requirements for the execution of a will because it was not made or acknowledged by the deceased in the presence of two or more witnesses as required by s 7(1)(c) of the Wills Act 1997 (‘Act’).
The present application for probate was brought by the plaintiffs, Mr Neil Gray and Ms Rosemary Blake, the children of the deceased. Mr Gray and Ms Blake were appointed as substituted executors of the 1995 Will. The deceased’s husband, who passed away in 2008, was the instituted executor of the 1995 Will. Mr Gray and Ms Blake are appointed as executors of the 2019 Document. The assets comprising the deceased’s estate primarily include three properties: Unit 1, 16 Childers Street, Cranbourne; 625 Tyabb-Tooradin Road, Pearcedale; 4 Stawell Street, Cranbourne. All beneficiaries named in the 1995 Will and in the 2019 Document have provided their consent to this application being determined on the papers.
Two issues are to be determined. First, should the 2019 Document be admitted to probate despite not meeting the formal requirements of a will under s 7 of the Act? Second, by writing the 2019 Document, did the deceased intend to revoke the 1995 Will?
Should the 2019 Document be admitted to probate?
Section 9 of the Act provides for the circumstances in which a will that does not conform with the requirements of s 7 may be admitted to probate:
When may the Court dispense with requirements for execution or revocation?
(1) The Supreme Court may admit to probate as the will of a deceased person—
(a) a document which has not been executed in the manner in which a will is required to be executed by this Act;
…
if the Court is satisfied that that person intended the document to be his or her will.
Accordingly, there are three preconditions for an informal will to be admitted to probate under s 9 of the Act where:
(i) there is a ‘document’;
(ii) the document expresses or records the testamentary intentions of the deceased; and,
(iii) the document was intended by the deceased to be their will.[1]
[1]Sultanova v Bolgarow [2019] VSCA 245, [28] (Beach and Niall JJA and Kennedy AJA).
The 2019 Document was found in the deceased’s home.[2] Mr Gray and Ms Blake have deposed to their belief that the will is in their mother’s handwriting.[3] The 2019 Document contains dispositive clauses regarding the deceased’s estate. It therefore clearly satisfies the first two requirements.
[2]Affidavit of Executors dated 21 February 2023, [24].
[3]Ibid [26].
In determining whether the 2019 Document was intended by the deceased to be her will, the applicable principles were summarised by McMillan J in Re White; Montgomery v Taylor:[4]
[4][2018] VSC 16.
The third requirement is that the deceased intended ’that particular document to be his or her final will and did not want to make changes to it’. As stated by Whelan J (as his Honour then was) in Equity Trustees Ltd v Levin, ’it cannot be a document intended as a personal memorandum or a note of intended instructions, it cannot be a draft or a ”trial run”’. The relevant intention must be possessed ’either, at the time of the subject document being brought into being, or, at some later time’.
Satisfying the third requirement depends upon the facts and circumstances of each case. The Court may consider evidence regarding the making of the will, as well as direct evidence of testamentary intent. Ultimately, the inquiry remains:
whether the document itself, the circumstances regarding its contents … and other relevant circumstances … lead to the conclusion that the relevant deceased intended the subject document to constitute his will;
that, while each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will.
A relevant consideration under the third requirement is the deceased’s testamentary capacity. Where a deceased lacked the capacity to make a will, then the Court cannot be satisfied that he or she intended the document to be his or her will. In the context of an informal will, the usual presumptions as to testamentary capacity do not apply. While the Court considers the evidence as a whole, the onus of proving testamentary capacity rests upon the party seeking to propound the informal will.[5]
[5]Ibid [53]-[55].
Testamentary capacity
The Court must be satisfied that the deceased had testamentary capacity at the time she wrote the will. On the basis of the evidence before the Court, I am satisfied that the deceased had testamentary capacity when she executed the 2019 Document.
The principles in relation to testamentary capacity, as stated in Banks v Goodfellow are as follows:[6]
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.[7]
[6](1870) LR 5 QB 549.
[7]Ibid 565.
There is evidence from the deceased’s medical practitioner, Dr Aung, attesting to the deceased’s mental capacity. Dr Aung notes that, while she did not personally treat the deceased prior to 2020, she has reviewed the deceased’s medical records from that period and has confirmed that those records do not note any concerns of cognitive decline. Further, Dr Aung, deposed that:
On 20 April 2021, I conducted a general health assessment of the Deceased and noted the Deceased had nil concern with her memory. I noted that she was oriented to person, time and place.
The Deceased’s cause of death was due to heart-related conditions. I believe the Deceased had full mental capacity up until she died.[8]
[8]Affidavit of Dr Hnin Aung dated 19 May 2023.
Further, determining whether the deceased had the requisite testamentary capacity also requires consideration of the complexity of both the document’s content and the estate being disposed of, as well as the exclusion or non-exclusion of persons who would naturally have a claim upon an estate.[9]
[9]Re Martin (2019) 59 VR 584, [61].
The 2019 Document is rational on its face.[10] In the document the deceased has divided her property between those who would naturally have a claim on her estate, being her two children and her three grandchildren. Further, the 2019 Document disposes of the deceased’s estate in a rational manner. For example, the 2019 Document states that the Childers Street property is to be held on trust by Ms Blake for the benefit of her three children. Appropriate provision is made for the sale of the property.
[10]Timbury v Coffee (1941) 66 CLR 277, 283.
I am satisfied that the deceased had testamentary capacity at the time she drafted the 2019 Document.
Whether the deceased intended the 2019 Document to be her will
I am satisfied that the 2019 Document was intended to be the deceased’s will. There are a number of matters in the 2019 Document itself that indicate that the document was intended to operate as the deceased’s will:
(i) The document is titled ‘LAST WILL of Jean Margaret Gray’;
(ii) The document contains the deceased’s address, is signed by the deceased, and is dated at both the beginning and end of the document;
(iii) The document appoints the deceased’s son and daughter as executors of the will;
(iv) The document uses formal legal language such as ‘executor’, ‘executrix’, ‘to be held in trust’;
(v) The document appears to deal with all of the deceased’s assets.
Further, Ms Blake gave the following evidence by way of affidavit:
On a Sunday afternoon in 2018, I was visiting the deceased at her home. The deceased spoke to me about her health issues, previously with her heart, kidneys, diabetes and now with cancer. She told me that her will was at Macpherson Kelley at Dandenong. I found this unusual as she was the kind of person to keep her cards close to her chest.
The deceased told me that she wanted to leave something to her grandchildren and that she thought the property at Unit 1, 16 Childers Street, Cranbourne, Victoria would be best for her grandchildren and the easiest one for them to manage. She said that she would like Neil Robert John Gray to receive 625 Tyabb-Tooradin Road, Pearcedale, Victoria and for me to receive 4 Stawell Street, Cranbourne
Ms Blake’s conversation with her mother is consistent with the disposition of assets recorded in the 2019 Document. In the 2019 Document, the deceased has recorded an intention to dispose of the Tyabb-Tooradin Road property to Mr Gray, the Stawell Street property to Ms Blake, and for the Childers Street property to be held on trust for the benefit of her grandchildren.
Further, the circumstances in which the 2019 Document was discovered support a finding that it was intended to be the deceased’s will. Mr Gray gave evidence that he found two envelopes addressed to both Ms Blake and himself while in the kitchen at the deceased’s home. The envelopes each contained a copy of the 2019 Document. Mr Gray later found the original of the 2019 Document in a drawer in the deceased’s home.[11]
[11]Affidavit of Executors dated 21 February 2023, [22], [24].
The deceased’s conduct, in placing copies of the 2019 Document in envelopes addressed to both executors in a discoverable location, is consistent with a finding that the 2019 Document was intended to be the deceased’s will. This conduct is inconsistent with a finding that the 2019 Document was ‘intended as a personal memorandum or a note of intended instructions’ or that the 2019 Document was a ‘draft or a trial run’.[12]
[12]Equity Trustees Ltd v Levin [2004] VSC 203, [15].
There are some factors that detract from the conclusion that the 2019 Document was intended to be the deceased’s will. Foremost, the fact that the deceased had an existing will may support the inference that the deceased was aware of the formalities for a valid will. However, the 1995 Will had been prepared and executed by a solicitor over 24 years prior to the 2019 Document coming into existence. In those circumstances, I do not consider the existence of the 1995 Will supports an inference that the deceased had personal knowledge of the requirements for a valid will.
Further, there are two features of the 2019 Document that might support the finding that it was a draft document. First, the document was handwritten. Second, there is a blank page stapled to the back of the document. While these matters might support the inference that the 2019 Document was a draft, they must be weighed against the fact that the document is signed, dated and designated as the ‘LAST WILL’ of the deceased.
On balance, I am satisfied that the 2019 Document was intended by the deceased to be her will. The 2019 Document should be admitted to probate pursuant to s 9(1) of the Act.
Should the 1995 Will be revoked?
Section 9(2) of the Act states that:
(2) The Supreme Court may refuse to admit a will to probate which the testator has purported to revoke by some writing, where the writing has not been executed in the manner in which a will is required to be executed by this Act, if the Court is satisfied that the testator intended to revoke the will by that writing.
Section 9(2) provides a source of power for the Court to refuse to admit a will to probate where the testator has informally revoked the will.[13] I have concluded that the deceased intended for the 2019 Document to be her will. The disposition of assets under the 2019 Document is inconsistent with the terms of the 1995 Will. This supports a finding that the 2019 Document was intended to revoke the 1995 Will. I am satisfied that, in drafting the 2019 Document, the deceased intended to revoke the 1995 Will.
[13]Re Thomas [2023] VSC 344, [9].
Conclusion and orders
The 2019 Document should be admitted to probate as the will of the deceased. I will make the following orders:
1. Pursuant to s 9(1)(a) of the Wills Act 1997, a grant of probate of the deceased’s will dated 6 May 2019 which is exhibit ‘C’ to the affidavit of Neil Robert John Gray and Rosemary Lynette Margaret Blake affirmed 21 February 2023, be made to the plaintiffs, subject to any further requirements of the Registrar of Probates.
2. Within 7 days of the date of this ruling, the plaintiffs file an amended originating motion removing reference to seeking probate of the will dated 5 June 1995.
3. The costs of this application, including reserved costs, be paid or retained out of the estate of the deceased.
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