Richard Douglas McNaught Kelsall (‘the deceased’) died on 25 January 2015. He left a will dated 2 September 2010 (‘the will’) which was unrevoked at the time of his death. The plaintiffs, John Christopher Kelsall and Merran Horne Kelsall, are the deceased’s brother and sister and named as the executors of the will and trustees of his estate.
According to the inventory of assets and liabilities filed on 18 June 2015, the deceased’s estate was valued at $6,643,628.68, most of which comprised the deceased’s share portfolio valued in excess of $5.5 million.
By his will, the deceased left small legacies to the plaintiffs, certain friends and a number of organisations and groups with which he had an association. He left two properties and $1.5 million and the balance of his superannuation fund to his wife, Margaret Anne Kelsall (‘the defendant’)[1] and the residue of his estate, which included his share portfolio, to his five siblings as tenants in common in equal shares.
[1]By order of the Victorian Civil and Administrative Tribunal made 4 October 2012 and renewed 14 December 2015, Robert John Evans was appointed administrator of the estate of Margaret Anne Kelsall under the Guardianship and Administration Act 1986. Mr Evans, acting in his capacity as Mrs Kelsall’s administrator, was added as a defendant to this proceeding by orders made 26 May 2016. Whilst Mr Evans is the named defendant, I describe Mrs Kelsall as ‘the defendant’ in these reasons for ease of reference.
The deceased also left a handwritten document dated 24 February 2014 and described as an ‘insert to the current will’ (‘the informal codicil’). By the informal codicil, the deceased purports to alter the will by making three additional bequests: two relatively minor monetary bequests to friends, and the more substantial bequest of ‘my portfolio of personal shares’ to the defendant.
The informal codicil is an informal document in that it was not executed in the manner in which a will is required to be executed pursuant to s 7(1) of the Wills 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.
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Re Kelsall [2016] VSC 724
Case
[2016] VSC 724
Decision Date
CaseChat Overview and Summary
In the case of Re Kelsall, the deceased's estate was the subject of a dispute between the applicants and the respondents. The applicants sought the grant of probate for a will dated 1999, while the respondents contested the validity of a subsequent informal codicil that purportedly altered the distribution of the estate. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether the deceased had the necessary testamentary capacity to execute the codicil in question. This determination was pivotal, as the validity of the codicil directly impacted the distribution of the estate.
The court examined the burden of proof required to establish testamentary capacity, considering the applicable legal principles and precedents. It referenced the established common law principle that the onus of proving testamentary capacity lies with the party asserting it, as articulated in Banks v Goodfellow. The court also noted the need to apply the Briginshaw standard of proof, which requires the degree of probability to be established based on the nature and importance of the case. Furthermore, the court took into account the statutory requirements under the Wills Act 1997, specifically section 9, which outlines the formalities necessary for a valid will. The respondents argued that the codicil did not meet the statutory requirements and that the deceased lacked the requisite mental capacity at the time of execution.
The court concluded that the applicants had not discharged the onus of proving that the deceased had testamentary capacity at the time of executing the codicil. The evidence presented was insufficient to meet the Briginshaw standard of proof on the balance of probabilities. The court found that the formalities set out in the Wills Act 1997 were not complied with, and therefore the codicil was invalid. As a result, the court granted probate of the original will dated 1999, without the codicil. The court's decision was grounded in a careful analysis of the evidence, the applicable legal principles, and the statutory requirements for the validity of a codicil.