Re Hobbs

Case [2017] VSC 424 27 July 2017

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2016 05959

IN THE MATTER of the Will of CHRISTA RENATE HOBBS, deceased (in the Will called Christal Renate Hobbs)

KURT RUDIGER FRAHM	Plaintiff
v
JANICE MARY DAVIS	Defendant

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JUDGE:	Garde J
WHERE HELD:	Melbourne
DATE OF HEARING:	30–31 May 2017
DATE OF JUDGMENT:	27 July 2017
CASE MAY BE CITED AS:	Re Hobbs
MEDIUM NEUTRAL CITATION:	[2017] VSC 424

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WILLS AND ESTATES – Application for grant of probate of will – Two later informal documents said to be wills – Suspicious circumstances – High level of vulnerability and advanced age of testator – Lack of evidence of execution of informal documents – Direct evidence of testamentary intentions – Lack of rationality of informal documents – Inconsistency of informal documents – Opportunity for influence over testator – Secret storage of the informal documents – Past reliance by testator on legal practitioners – Loss of the original of the second informal document – Burden of proof – Briginshaw v Briginshaw (1938) 60 CLR 336; Timbury v Coffee (1941) 66 CLR 277; Wills Act 1997 (Vic) s 9.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr P T Vout of Counsel	Tisher Liner FC Law
For the Defendant	Mr R B Phillips of Counsel	Hicks Oakley Chessell Williams

HIS HONOUR:

Introduction

The plaintiff, Rudi Frahm, is the brother and next of kin of the late Christa Renate Hobbs who died on 4 October 2015. He is the executor of, and seeks to propound, a Will made by Ms Hobbs on 1 May 2008 (‘2008 Will’). Under the 2008 Will, the whole of Ms Hobbs’ estate passes to Mr Frahm.

The defendant, Janice Davis, is Ms Hobbs’ step-daughter and has lodged a caveat in relation to the application for probate of the 2008 Will. She contends that Ms Hobbs made two informal wills respectively dated 21 December 2008 (‘first document’) and 15 February 2009 (‘second document’). Ms Davis contends that probate should be granted in respect of the second document, or if the Court is not minded to do this, in respect of the first document.

The 2008 Will and the first and second documents contain very different provisions.

The first document is in the form of a copy of an office copy of a will made by Ms Hobbs on 25 November 1980 (‘the 1980 Will’). On the final page of the first document, there is a handwritten annotation, purportedly by Ms Hobbs, confirming the 1980 Will and cancelling all other wills. The annotation is dated 21 December 2008. There are no attesting witnesses.

Under the 1980 Will, Ms Hobbs’ husband, Alan Hobbs, is appointed executor. Should he predecease her, Ms Davis is appointed executor. A legacy of $20,000 is given to Helmuth Frahm, the brother of Ms Hobbs and Mr Frahm. Any residence and the contents of that residence pass to Mr Hobbs, and should he predecease…

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 Hobbs

Details

AGLC: Re Hobbs [2017] VSC 424
Case: [2017] VSC 424
Decision Date: 27 July 2017

CaseChat Overview and Summary

In the matter of the estate of the late Edward Hobbs, the application for the grant of probate of a will was contested by several interested parties. The dispute centred on the validity of two later informal documents presented as wills. The deceased had a high level of vulnerability and was of advanced age at the time the documents were executed. The application was heard in the Supreme Court of Victoria.

The court was required to determine whether the informal documents could be accepted as valid wills, considering the suspicious circumstances surrounding their creation. The legal issues included the lack of evidence of the execution of the informal documents, the direct evidence of the deceased’s testamentary intentions, the lack of rationality and inconsistency of the informal documents, the opportunity for undue influence over the testator, the secret storage of the documents, the deceased’s past reliance on legal practitioners, and the loss of the original of the second informal document. The court also needed to consider the burden of proof, as per Briginshaw v Briginshaw, Timbury v Coffee, and the provisions of the Wills Act 1997 (Vic) section 9.

The court found that the informal documents did not meet the necessary criteria to be accepted as valid wills. The lack of evidence regarding the execution of the documents, coupled with the suspicious circumstances and the advanced age and vulnerability of the deceased, led to the conclusion that the applicants had not discharged the burden of proof. The informal documents were inconsistent and lacked rationality, and there was a significant opportunity for undue influence over the testator. Additionally, the secret storage of the documents and the loss of the original of the second informal document further undermined their validity. The court ultimately rejected the application for the grant of probate of the informal documents as wills.

The court ordered that the application for the grant of probate be dismissed, and that no probate be granted in respect of the informal documents presented. The court further directed that the estate be distributed according to the intestacy rules, as no valid will had been proven.

Orders