Re Hawkes - [2005] VSC 93

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
IN ITS PROBATE JURISDICTION

No. 1244766

IN THE MATTER OF THE ESTATE OF
WILLIAM ALBERT HAWKES, DECEASED

APPLICATION BY
BARBARA JOAN ELIZABETH LIDDELL

Plaintiff

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 MARCH 2005
DATE OF JUDGMENT:	3 MARCH 2005
CASE MAY BE CITED AS:	RE HAWKES
MEDIUM NEUTRAL CITATION:	[2005] VSC 93

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Administration and Probate – Rectification of Will – Will prepared by elderly lay friend of the deceased – No beneficiary of the estate named in the Will – Evidence that at the time he signed the Will the deceased intended to leave his estate to his sister – Section 31 of the Wills Act 1997.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Verspaandonk	Victor Ismailovic

HIS HONOUR:

By summons dated 25 February 2005 the plaintiff, Barbara Joan Elizabeth Liddell, applied for rectification of the last Will of William Albert Hawkes, deceased, to name Mrs Liddell as sole beneficiary of the deceased's residuary estate. Mr Hawkes died on 7 September 2004 aged 82 years. His last Will was dated 29 April 1998 ("the Will"). Probate of the Will was granted to Mrs Liddell on 13 December 2004.

The problem with Mr Hawkes' Will is that whilst it appointed Mrs Liddell as executor and trustee of the Will, it did not go on to make any disposition of his estate. Having appointed Mrs Liddell to be executor and trustee in paragraph 2 of the Will, the deceased said in paragraph 3:

"I give, devise and bequeath the whole of my real and my personal estate whatsoever and wheresoever situate unto my trustee to pay all my just debts, testamentary and funeral expenses and all probate and estate duties and taxes payable in respect of my estate or part thereof, and subject to such payments".

Then the Will stops, and on the next line it says:
"And witness whereof I hereunto set my hand this 29th day of April 1998."

In her affidavit in support of the application Mrs Liddell explained that she was the sister of the deceased and that she had lived with him since about 1978 when both her husband and Mr Hawkes' wife died. She did all of the cooking and cleaning and ran the house for him. Although Mr Hawkes paid most of the bills she paid her share of the grocery bill and the telephone bill. Until around 2000, Mrs Liddell stayed with Mr Hawkes for at least nine months in each year. The rest of the time was spent in Queensland keeping in touch with her children. However, during the last four years of the deceased's life, she lived with him full time.

Mrs Liddell said that she only recalled one conversation with her brother about what he wanted to do with his property after his death. He observed that she had never had a home of her own and said that if he died before her…

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 Hawkes

Details

AGLC: Re Hawkes [2005] VSC 93
Case: [2005] VSC 93
Decision Date: 3 March 2005

CaseChat Overview and Summary

The case of Re Hawkes involved an application for the rectification of a Will, made by the deceased's sister, who sought to have the Will amended to reflect what she claimed was the deceased's intention to leave his estate to her. The deceased had executed a Will in the presence of a lay friend, but the Will contained no beneficiaries. The sister argued that the deceased had intended to leave his estate to her, and that the Will should be rectified accordingly. The case was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the Will could be rectified under section 31 of the Wills Act 1997 to include the sister as a beneficiary, based on the deceased's alleged intention. The court had to consider whether the deceased had expressed a clear intention to leave his estate to the sister, and whether the Will as executed accurately reflected that intention. The court also had to assess the credibility of the evidence provided by the sister and the lay friend.

The court found that the deceased had indeed intended to leave his estate to his sister, based on the evidence presented. The sister's testimony, along with that of the lay friend, established that the deceased had expressed his intention to leave his estate to her at the time he signed the Will. The court was satisfied that the Will did not accurately reflect the deceased's intention, and that it should be rectified to include the sister as a beneficiary. The court emphasised the importance of ensuring that a Will accurately reflects the deceased's true intentions, particularly when the Will is prepared by a layperson.

The court ordered that the Will be rectified to include the sister as a beneficiary, in accordance with the deceased's intention. The court noted that the sister's claim was timely, and that there was no evidence of any change in the deceased's intentions prior to his death. The court also emphasised the importance of ensuring that Wills are properly executed, and that the deceased's intentions are accurately reflected in the document.

Orders