Re Kalenyouk
[2024] VSC 390
•5 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
IN ITS PROBATE JURISDICTION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2022 12707
IN THE MATTER of the Estate of GEORGE KALENYOUK, deceased
AND
IN THE MATTER of an application pursuant to s 9 of the Wills Act 1997
APPLICATION BY:
| MARTIN JOHN HASTWELL (in the Will called MARTIN HASTWELL) | Plaintiff |
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JUDGE: | GRAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 June 2024 |
DATE OF JUDGMENT: | 5 July 2024 |
CASE MAY BE CITED AS: | Re Kalenyouk |
MEDIUM NEUTRAL CITATION: | [2024] VSC 390 |
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WILLS AND ESTATES — Application to admit informal will to probate — Wills Act 1997 s 9 — Affected persons entered into deed with executor altering dispositions — Affected persons resident overseas and communicating in another language through an intermediary — Undertaking by executor not to diverge from terms of informal will without seeking judicial advice — Supreme Court (General Civil Procedure) Rules 2015 O 54.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Smith | iWills Legal |
HIS HONOUR:
Should I admit to probate a handwritten document entitled ‘Will’ that appears to have been prepared by the deceased four days before his death?
Facts
George Kalenyouk, the deceased, made a will on 20 March 2018 that by all appearances met the requirements of s 7 of the Wills Act 1997 (Wills Act). For reasons that will become clear, I will call this the penultimate will.
By the penultimate will, the deceased appointed Margaret Sarah Dixon and Doru Caleniuc to be his executors. The deceased had been in a long-term relationship with Ms Dixon, since 1994. Doru Caleniuc (Doru) was the deceased’s nephew, resident in Romania.
Under the terms of the penultimate will, the deceased gifted the money in his bank accounts to Ms Dixon and to his four Romanian nephews and nieces (Doru, Loredana Sveduneac (Loredana), Mirela Huzdup (Mirela), and Maria Sveduneac (Maria)) equally. He divided his residuary estate into three parts and gifted one part to each of:
(a) Doru and his son Darius Caleniuc (Darius) equally;
(b) Loredana and her daughter Natalia Sveduneac (Natalia, referred to as Nataly) equally; and
(c) Mirela and her son Andrei Huzdup (Andrei) equally.
Martin Hastwell, the plaintiff, is the son-in-law of Ms Dixon.
He has given evidence of the following facts, which I accept.
The deceased expressed to Mr Hastwell a number of times in the period leading up to the deceased’s death that he wished to update his will. Mr Hastwell made initial enquiries with iWills Legal, with a view to having this arranged. However, the deceased died prior to being able to formally instruct iWills Legal.
By April 2021, the deceased was gravely ill with cancer and being cared for at The Alfred hospital.
Mr Hastwell obtained advice from iWills Legal as to the requirements for submitting an informal will.
On 14 April 2021, Mr Hastwell attended at The Alfred hospital with Ms Dixon. The deceased asked for a pen and a piece of paper as he wanted to write his will. Mr Hastwell located a pen and a piece of paper for him, and Ms Dixon and Mr Hastwell left the room. Mr Hastwell re-entered the deceased’s hospital room some time later. Ms Dixon had re-entered the room prior to Mr Hastwell. The deceased personally handed to Mr Hastwell a document in handwriting entitled ‘Will’ and instructed Mr Hastwell that it was to revoke the deceased’s previous will and reflected his testamentary wishes.
The handwritten document entitled ‘Will’ reads as follows:
14 April Will.
2021To whom it may be concerned
I am George Kalenyouk of 12 May St. Aberfeldie 3040 Victoria.
All previous wills are nul and void.
I revoke all prior testamentary dispositions.
I appoint Margaret Sarah Dixon and he sun-in-law Martin Hastwell as my trustees to my estate.
j I give my $300,000 life saving at the Commonwealth Bank – Moonee Ponds to be divided at the end of this month this way:
150 000$ to Sarah Dixon!!!
The difference will be divided in four equal parts to Doru Caleniuc, Sveduneac Maria, Loredana Svedunec, Mirela Hozdup.
k Regarding my house at 12 May Street Aberfeldie I have decided:
A. the house will be sold by Sarah Dixon and her Son in-law Martin Hastwell only.
B. the price of the house will be divided in 3 equal part to Caleniuc Dory, Loredana Sveduneac and Mirela Huzdup.
George Kalenyouk .. George - Kalenyouk
Sarah Dixon . . S. Dixon
Martin Hastwell . . . .
I infer from the facts mentioned in paragraphs 7 and 10, and the appearance of the document, that the document is in the deceased’s handwriting, save for ‘S. Dixon’ in the penultimate line. I am satisfied that ‘S. Dixon’ in the penultimate line is in the handwriting of Ms Dixon, and I am satisfied that this qualifies as her signature. I infer that Ms Dixon affixed her signature at about the time the deceased wrote his own name on the document in the line immediately above, and I am satisfied that when the deceased wrote his name in that place, this qualified as the deceased signing the document. In short, I infer that the deceased and Ms Dixon signed the document in each other’s presence.
The deceased died four days later, on 18 April 2021.
Ms Dixon has since had a stroke and was not able to give evidence in this proceeding.
At some point in about April 2021, after Mr Hastwell obtained advice from iWills Legal as to the requirements for submitting an informal will, Mr Hastwell discussed the matter with medical staff at The Alfred hospital who were caring for the deceased.
Dr Andrew Haydon, Medical Oncology, The Alfred, wrote a letter on 13 May 2021 to the effect that the deceased had capacity to make decisions around finances and end‑of-life care from and including 16 April 2021 until the morning of his death on 18 April 2021. The letter stated that throughout the deceased’s admission he discussed with social workers about his estate and what he wanted to happen to it after his death, that he seemed to understand the significance of making a will at this time, and that his wish remained constant throughout the admission. The letter stated that the deceased provided dollar values as to what he wanted to leave to different people in Australia and overseas, and that he seemed to have a good understanding of the value of his estate. The letter was also signed by two social workers. Dr Haydon also provided an affidavit verifying these matters.
Application and summary of conclusions
Mr Hastwell applies to have the document prepared by the deceased on 14 April 2021 admitted to probate pursuant to s 9 of the Wills Act.
The Court has been informed that all the adult beneficiaries of the penultimate will, namely Doru, Loredana, Mirela, Maria, and Darius, consent, and also that they have entered into a deed of arrangement.
For the reasons explained below, I am satisfied that the document meets the requirements allowing me to admit it to probate as the will of the deceased, and I will refer to it in the remainder of these reasons as the informal will. The application for a grant of probate of the informal will to Mr Hastwell will be referred to the Registrar of Probates for determination.
However, in admitting the informal will to probate, I have accepted an undertaking from Mr Hastwell that he will not diverge from the terms of the informal will without seeking judicial advice pursuant to Order 54 of the Supreme Court (General Civil Procedure Rules) 2015. I explain how this undertaking came about at the end of these reasons.
Applicable provisions and principles
Section 7 of the Wills Act relevantly provides that a will is not valid unless the testator’s signature is made by the testator in the presence of two or more witnesses present at the same time, and at least two of those witnesses attest and sign the will in the presence of the testator.
That did not occur here on 14 April 2021. I have found that the informal will was signed by the testator in the presence of one witness, who signed it in the testator’s presence, namely Ms Dixon. It is not clear, although perhaps it might be implied, that she signed as a witness who ‘attested’ the deceased’s act of signing the informal will. But even if it can be said that she did so, one such witness is insufficient.
Section 9 of the Wills Act relevantly provides:
(1)The Supreme Court may admit to probate as the will of the 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; or …
…
if the Court is satisfied that the person intended the document to be his or her will.
…
(3)In making a decision under subsection (1) … the Court may have regard to–
(a)any evidence relating to the manner in which the document was executed; and
(b)any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
Although it is not directly applicable to this case, I also note s 9(5) of the Wills Act, which confers power on the Registrar to exercise the powers under s 9 where the Court has authorised this and where ‘all persons who would be affected by a decision under this section so consent’ or ‘if consent is not given, the value of the estate does not exceed the limit set for the purposes of this section by the Court’. The limit set for the purposes of s 9 by the Court at the time of commencement of this proceeding was $1 million.[1] That limit has since been raised to $3 million.[2]
[1]Supreme Court (Administration and Probate) Rules 2014 r 2.09(b), as amended by Supreme Court (Chapters II and III Miscellaneous Amendments) Rules 2019 r 6.
[2]Supreme Court (Administration and Probate) Rules 2023 r 2.09(b). This rule does not apply to an application commenced before 1 March 2024: r 1.03(4).
Although s 9 is a remedial provision, and ought to be given a broad construction, this must be tempered by an acknowledgement that Parliament is not taken to have unduly relegated the formalities required for execution of a will.[3]
[3]Re Lynch [2016] VSC 758, [12]; Estate of Peter Brock [2007] VSC 415, [19]–[20], [23].
In order to admit an informal will to probate under s 9, the Court needs to be satisfied that the following criteria have been established on the balance of probabilities:
(a) there must be a document;
(b) the document must express or record the testamentary intentions of the deceased; and
(c) the document must have been intended by the deceased to be his or her will.[4]
[4]Jageurs v Downing [2015] VSC 432, [14] (McMillan J) (Jageurs) and the cases there cited.
Where a plaintiff is seeking probate of an informal will, the usual presumptions as to testamentary capacity do not apply.[5] However, if the document and circumstances of its creation are rational, then save for any other fact, the inference is that the deceased had testamentary capacity and knew and approved of the informal will.[6]
[5]Jageurs, [19] and the authorities there cited. See also Re White; Montgomery & Anor v Taylor [2018] VSC 16, [53], [55].
[6]Jageurs, [111].
Testamentary capacity requires the deceased to have understood ‘the nature and effect of making his will’, an awareness of the general nature and value of the estate, an awareness of those who have a natural claim on the estate, and an ability to evaluate and discriminate between such claims. The focus is on capacity to understand rather than actual understanding. Capacity is not a memory test, and a general knowledge is sufficient.[7]
[7]Re Prien [2019] VSC 47, [47]; Banks v Goodfellow (1870) LR 5 QB 549, 567.
Consideration
Clearly, the first criterion is met: the informal will is a document.
Secondly, I am satisfied that informal will prepared by the deceased expressed and recorded his testamentary intentions.
Thirdly, I am satisfied that the informal will must have been intended by the deceased to be his will.
The last two conclusions follow from my acceptance of Mr Hastwell’s evidence that the informal will was handed to him by the deceased in the circumstances Mr Hastwell described, and from its contents.
I am satisfied that the document was prepared by the deceased, save for Ms Dixon’s signature, as mentioned above. This came about on an occasion on 14 April 2021, when Mr Hastwell was visiting the deceased at The Alfred hospital in the company of Ms Dixon, and the deceased asked Mr Hastwell to obtain paper and a pen so he could write his will. Some time later, when Mr Hastwell re-entered the hospital room, Ms Dixon was already in the room, having re-entered it prior to Mr Hastwell. The deceased then personally handed the informal will to Mr Hastwell. These circumstances, and content of the document itself, establish that the informal will was a document prepared by the deceased that expressed and recorded his testamentary intentions and was intended by him to be his will. Its title ‘Will’, its provisions that previous wills are null and void and prior testamentary dispositions are revoked, and its appointment of trustees to the deceased’s estate, all make it very clear that the deceased intended this document to be his will and that it expresses and records his testamentary intentions.
I am also satisfied, given the evidence of Dr Haydon and of Mr Hastwell, that the deceased had testamentary capacity at the time he prepared the informal will.
The informal will departs from the formal requirements for execution of a will set out in s 7 of the Wills Act in certain respects. Even though I infer that it was signed by Mr Kalenyouk in the presence of Ms Dixon, this alone does not satisfy the requirements of s 7 of the Wills Act. That provision requires a will to be signed by the testator in the presence of two or more witnesses, and signed by at least two such witnesses. This did not occur. Nevertheless, I am satisfied on the basis of the evidence previously mentioned that the informal will meets the requirements for admission to probate pursuant to s 9 of the Wills Act.
In reaching this decision, as well as weighing the evidence surrounding the circumstances in which the informal will was made, I am also relying on the substance of the dispositions in the will and the ways in which it differs from the deceased’s penultimate will made in March 2018. About three years had passed since then. Mr Hastwell’s evidence, which I accept, was that the deceased wished to prepare a new will, and had said this to Mr Hastwell on a number of occasions in the lead-up to the deceased’s death. The variations in details or spellings of some of the beneficiaries’ names are immaterial. The changes between the two documents appear to me to be rational ones that are consistent with the factual context. They are significant enough to explain why the deceased wished to change the penultimate will, but do not amount to a radical departure from the structure of the penultimate will.
The key changes are an increase in provision for Ms Dixon of $90,000, funded by a decrease of $22,500 in provision made in the penultimate will for each of the following:
(a) Doru and his son Darius (combined);
(b) Maria;
(c) Loredana and her daughter Natalia (combined); and
(d) Mirela and her son Andrei (combined),
together with the removal altogether of the deceased’s grand-nephews Darius and Andrei and grand-niece Natalia, and the consolidation of their interests with their respective parents Doru, Mirela, and Loredana.
The assets comprising the estate are estimated to have a value of $300,000 in cash and approximately $1.25 million in real property, being the property in Aberfeldie.
Based on these values, the plaintiff estimated that the differences in provision made in the formal will and the informal will for each of the beneficiaries named in the formal will were as follows:
Beneficiary
Penultimate Will
Informal Will
Sarah Dixon
$60,000
$150,000
Doru Caleniuc
$268,000
$453,500
Darius Caleniuc
$208,000
Nil
Maria Sveduneac
$60,000
$37,500
Loredana Sveduneac
$268,000
$453,500
Natalia Sveduneac
$208,000
Nil
Mirela Huzdup
$268,000
$453,500
Andrei Huzdup
$208,000
Nil
As can be seen, each of Darius, Natalia and Andrei receive no provision under the informal will and are disadvantaged by comparison to the provision that would have been made for them had the penultimate will been admitted to probate. However, a parent of each of them has received a substantially greater provision in the informal will than they would have received under the penultimate will.
I am satisfied that the deceased was rationally motivated to increase the provision for Ms Dixon, and in doing so to reduce the provision for the beneficiaries in Romania in the manner summarised in paragraph 37, above.
Mr Hastwell has been in communication with the beneficiaries resident in Romania through Doru. Initially the Romanian beneficiaries did not consent to the present application. However, by his affidavit affirmed 7 September 2023, Mr Hastwell exhibited consent forms from each of the adult beneficiaries in Romania. That includes Darius.
Natalia and Andrei are infants and so have not provided consent. The absence of consent on their behalf is a matter that I have taken into account in reaching my decision to admit the informal will to probate. Although it might technically be said that both these two infant beneficiaries of the penultimate will be disadvantaged by admission of the informal will (when compared with the penultimate will), I am not satisfied that there is any real disadvantage to them. The case for the informal will is so clear that the comparison is highly speculative and hypothetical. To put this another way, the evidence in favour of admitting the informal will to probate in this case is so strong that the consent of the beneficiaries is of somewhat marginal significance.
In this regard, it is also relevant to consider the size of the estate. It is estimated at $1.55 million. Given the size of the estate and the strength of the case for the informal will, the costs that would be involved in a further inquiry, or a contested hearing involving an appointed contradictor, would be disproportionate and unjustifiable. I refer to paragraph 24 above. The estate was only slightly in excess of the value at which it would have been open to the Registrar to admit the informal will to probate even in the absence of consent from affected persons, and if the application were to have been made after 1 March 2024, it would have been open to the Registrar to do so. Some comfort is also to be taken from the fact that each of the infant beneficiaries who were to receive a distribution under the penultimate will, but will not now do so, have a parent beneficiary whose entitlement has been materially increased by the informal will.
The plaintiff drew to the Court’s attention the existence of a deed of arrangement made on or about 28 August 2023 between Mr Hastwell and all of the beneficiaries of the penultimate and informal wills, by which the beneficiaries and Mr Hastwell have agreed to an adjustment of the distributions to be made to the beneficiaries upon a grant of probate to Mr Hastwell of the informal will.
The plaintiff’s legal representatives informed the Court that the deed was made in anticipation of the informal will being proved and Ms Dixon bringing an application under the Administration and Probate Act 1958 pt 4 for further provision from the estate.[8]
[8]Submissions of the Plaintiff dated 9 February 2024, [34].
The process that led to the making of the deed of arrangement involved all communications to the beneficiaries residing in Romania going through Doru. Even so, the process took some time and there were difficulties. I can appreciate that communicating through Doru was the most appropriate way to progress the matter and make no criticism of the process or of Doru.
Under the deed, Ms Dixon (quite materially) and Doru (to a small extent) stand to benefit by comparison with the provisions of the informal will, at the expense of Loredana and Mirela. It appears that the provision for Ms Dixon is more than doubled.
No doubt this is a compromise reached between all the affected persons taking into account a range of issues, including a claim Ms Dixon might otherwise have brought under the Administration and Probate Act 1958, pt 4. It is not clear on the face of the deed that Ms Dixon has released the estate from any such contemplated claim in return for the increased provision in the deed, but presumably separate attention has been or could in the near future (if it is thought appropriate) be given to this issue.
All the sui juris beneficiaries, including Loredana and Mirela, have signed the deed, including a certified translation of the deed into Romanian, and the deed summarises the effect of the penultimate will and the informal will, and annexes copies of them. This may well be a basis for satisfaction that Loredana and Mirela, as well as the other adult beneficiaries, fully understand how the deed alters the dispositions of the informal will.
Even so, as counsel for the plaintiff made plain at the hearing, Mr Hastwell acting cautiously and prudently ought to seek judicial advice before implementing the deed. This will enable consideration of whether there is any other practical way of confirming that Loredana and Mirela entered into the deed with a proper understanding that its terms will disadvantage them by comparison with the provisions of the informal will, and that the burden of compromising Ms Dixon’s anticipated claim for further provision falls on them and not on Doru.
As mentioned earlier in these reasons, at the hearing, the plaintiff through his counsel undertook not to diverge from the terms of the informal will without first seeking judicial advice pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules 2015.
Upon the giving of that undertaking, I am prepared to admit the informal will to probate, and to otherwise refer the plaintiff’s application for a grant of probate of the informal will to the Registrar of Probates. The costs of this application are to be paid from the estate on an indemnity basis.
I will make orders accordingly.
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