Re Holloway - [2022] VSC 181

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2019 19425

In the matter of the estate of the deceased, Russell Ernest Holloway

LOIS JOY KARPUSKA	Plaintiff
v
BRETT DARREN REID	First Defendant
-and-
GEELONG ANIMAL WELFARE SOCIETY (ACN 005 093 756)	Second Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATES OF HEARING:	30 November 2021 - 2 December 2021
DATE OF JUDGMENT:	12 April 2022
DATE OF REVISION:	5 May 2022 (as to paragraph 141 and 142 (c) only)
CASE MAY BE CITED AS:	Re Holloway
MEDIUM NEUTRAL CITATION:	[2022] VSC 181

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PROBATE – Application to admit informal document to probate – Two page hand written document prepared on the morning of death – Signed by testator – Not witnessed in accordance with legislative requirement – Wills Act 1997 (Vic), ss 7, 9 – Whether deceased intended the document to be his will – Codicils – Informal document admitted to probate as codicil to 2007 will– Briginshaw v Briginshaw (1938) 60 CLR 336 – Re Masters; Hill v Plummer (1994) 33 NSWLR 446 – Fast v Rockman [2013] VSC 18.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Verspaandonk	Whyte, Just & Moore
For the First Defendant	Mr S. Pitt	Eric Faulkner
For the Second Defendant	Mr A. Dickenson	Harwood Andrews

HER HONOUR:

Russell Ernest Holloway (the deceased) died on the evening of 1 September 2015 at his home known as ‘Wattle Grove’ at 280 Wensleydale Station Rd in Winchelsea South, near Geelong. The deceased was survived by his three siblings: his brother Campbell Holloway and his two sisters, Edith Ann Smith and Lois Karpuska (the plaintiff).

The deceased left a will dated 11 January 2007 (the 2007 will). The 2007 will appoints the deceased’s three siblings as his executors and trustees. The original 2007 will was held by the deceased’s solicitors. After his death a copy of the 2007 will was found by his brother Campbell at Wattle Grove with handwritten amendments made in the deceased’s hand. The handwritten amendments were signed by the deceased and dated 15 January 2007. The signature was not witnessed.

The deceased also left a two-page handwritten document dated the morning of his death. This document was found on the evening of his death on a stool in his lounge room. The document was signed by the deceased but his signature was not witnessed (the 2015 informal document).

In the event of there being an intestacy, the deceased’s three siblings are entitled to the deceased’s estate.

By originating motion filed on 22 November 2019, Campbell Holloway and the plaintiff seek a grant of administration of the estate of the deceased with the informal will dated 1 September 2015 annexed.

Campbell Holloway died on 20 May 2020. By orders made on 22 September 2020, Campbell Holloway was removed as a plaintiff in the proceeding.

Applicable statutory provisions

Section 7 of the Wills Act 1997 (the Act)…

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 Holloway

Details

AGLC: Re Holloway [2022] VSC 181
Case: [2022] VSC 181
Decision Date: 12 April 2022

CaseChat Overview and Summary

The case of Re Holloway involved an application to admit an informal document to probate. The deceased had prepared a two-page handwritten document on the morning of his death. Although the document was signed by the deceased, it was not witnessed in accordance with the legislative requirements. The legal dispute centred on whether the deceased intended the document to serve as his will. The relevant statutes in question were sections 7 and 9 of the Wills Act 1997 (Vic). The court had to determine whether the document could be admitted as a codicil to the deceased’s 2007 will, given its informal nature.

The primary legal issue was whether the informal document was intended by the deceased to be his will or a codicil. The court had to balance the intention of the deceased with the statutory requirements for the execution of wills. The court referenced Briginshaw v Briginshaw, where the standard of proof on the balance of probabilities was established, and other relevant cases such as Re Masters; Hill v Plummer and Fast v Rockman, which provided guidance on the interpretation of informal documents in a testamentary context. The court had to examine the content and context of the document, as well as the circumstances surrounding its creation, to ascertain the deceased’s intention.

The court found that the deceased had intended the informal document to serve as a codicil to his 2007 will. The document, despite its informality, contained clear expressions of the deceased’s wishes regarding the distribution of his estate. The court considered the principles established in Briginshaw v Briginshaw and applied them to the facts of the case, determining that the deceased’s intention was sufficiently demonstrated. The document was admitted to probate as a codicil to the 2007 will, thereby resolving the dispute over the deceased’s estate.

The court ordered that the informal document be admitted to probate as a codicil to the 2007 will of the deceased. This decision allowed the document to be considered in the administration of the deceased’s estate, ensuring that his intentions were honoured despite the procedural deficiencies. The court’s decision provided clarity and resolution to the beneficiaries and executors involved in the estate.

Orders