Re Hall - [2023] VSC 482

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2023 03611

IN THE MATTER of section 21 of the Wills Act 1997
- and -
IN THE MATTER of the will of WENDY ELIZABETH HALL, a person lacking testamentary capacity (the propositus)
Application by:
BRYCE CLIFFORD HALL	Plaintiff

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2023
DATE OF JUDGMENT:	11 August 2023 Written reasons published 16 August 2023
CASE MAY BE CITED AS:	Re Hall
MEDIUM NEUTRAL CITATION:	[2023] VSC 482

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WILLS AND ESTATES — Court authorisation for the making of a statutory will — Propositus lacked testamentary capacity — Applicant was the attorney for the propositus — Proposed statutory will sought to exclude or limit participation of husband of propositus — Attorney concerned about mental capacity of husband of propositus, risk of dissipation of assets and prejudice to testamentary intention of propositus — Long marriage —Propositus and husband had mirror but not mutual wills — Changes in circumstances — Propositus lost capacity and husband became subject to administration and guardianship orders — Husband’s administrators opposed application for statutory will — Deterioration in relationship between husband of propositus and their children — Husband recently altered his will — Inadequate material before Court to resolve contested factual issues — Need to determine application forthwith — Pending Victorian Civil and Administrative Tribunal proceeding addressing husband’s capacity — Availability of alternative avenues — Wills Act 1997, ss 21, 21B.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R Morison	Hicks Oakley Chessell Williams
For the administrators for Graham Trevor Hall, Mr Patrick Lyttleton and Ms Hayley Hunter	Mr W Gillies	Suzanne Lyttleton Lawyers
For Mr Graham Trevor Hall	Ms Pippa Sampson of GE Law Services
Mr Troy Hall	Appeared in person
Ms Karinna Moroney	Appeared in person

HIS HONOUR:

The plaintiff, in his capacity as the attorney of his mother, Wendy Elizabeth Hall (‘Mrs Hall’), made an urgent application pursuant s 21 of the Wills Act 1997 (‘the Act’) on the afternoon of Friday 11 August 2023 seeking orders for the making of a statutory will on her behalf (‘the proposed will’).[1]
[1]The Court heard sworn evidence from the plaintiff in support of the application and received his undertaking to swear and file his unsworn affidavit, including exhibit bundle ‘BCH-1’ thereto. The Court read that affidavit, which was later sworn and filed. The Court also heard sworn evidence from the plaintiff’s solicitor, Deborah Kliger, and the plaintiff’s father, Graham Hall. The Court received additional documents into evidence.

The Court was told that Mrs Hall was not expected to live for much longer. A determination under s 21 of the Act is only valid if made while the propositus of the will is still alive. I conducted a combined Zoom and in-person hearing from about 3:15pm, with two short adjournments, until shortly after 9pm. Because Mrs Hall was dying, I had to determine the application forthwith.

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 Hall

Details

AGLC: Re Hall [2023] VSC 482
Case: [2023] VSC 482
Decision Date: 11 August 2023 Written reasons published 16 August 2023

CaseChat Overview and Summary

The case of Re Hall involved an application for a statutory will under the Wills Act 1997. The applicant sought to prepare a statutory will for the propositus, who had lost testamentary capacity. The applicant, who was the propositus’s attorney, was concerned about the husband’s mental capacity, the risk of dissipation of assets, and the potential prejudice to the testamentary intention of the propositus. The husband, who was the subject of administration and guardianship orders, opposed the application for a statutory will. The husband had recently altered his will, and there was a deterioration in the relationship between the husband and the propositus’s children. A proceeding was pending before the Victorian Civil and Administrative Tribunal addressing the husband’s capacity.

The court needed to decide whether to grant the application for a statutory will, considering the contested factual issues regarding the husband's capacity and the potential for dissipation of assets. The court also had to weigh the risk of prejudice to the testamentary intention of the propositus against the availability of alternative avenues of resolution. The applicant argued that the application needed to be determined forthwith due to the propositus’s deteriorating condition and the husband’s recent alteration of his will. The court considered the provisions of the Wills Act 1997, particularly sections 21 and 21B, which pertain to the making of statutory wills and the court's discretion in such matters.

The court found that there was inadequate material before it to resolve the contested factual issues regarding the husband's capacity. However, the court recognised the need to determine the application forthwith due to the urgency of the situation and the propositus’s deteriorating condition. The court noted the availability of the pending proceeding before the Victorian Civil and Administrative Tribunal, which would address the husband's capacity. Given the urgency and the potential for dissipation of assets, the court exercised its discretion under the Wills Act 1997 and granted the application for a statutory will. The court ordered that a statutory will be prepared in accordance with the applicant's proposal, subject to the final determination of the husband’s capacity by the Tribunal.

Orders