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Re Langley

Re Langley

Case [2018] VSC 623 19 October 2018

Testamentary Capacity

Admissibility of Evidence

Burden of Proof

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2017 11347

IN THE MATTER of the Estate of MARIE LANGLEY, deceased

RAYMOND CULLEN	Plaintiff
v
CANCER COUNCIL OF VICTORIA	First Defendant
and
CBM AUSTRALIA	Second Defendant
and
FRED HOLLOWS FOUNDATION	Third Defendant
and
WORLD VISION OF AUSTRALIA	Fourth Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2018
DATE OF JUDGMENT:	19 October 2018
CASE MAY BE CITED AS:	Re Langley
MEDIUM NEUTRAL CITATION:	[2018] VSC 623

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WILLS AND ESTATES —Application to admit informal will to probate — Where deceased had executed formal will —Whether deceased intended the informal will to be her final will — Whether the deceased had testamentary capacity — Incomplete will — Application refused — Briginshaw v Briginshaw (1938) 60 CLR 336 — Burden of Proof — Wills Act 1997, ss 7 and 9.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S F McNab	White Cleland Lawyers & Consultants
For the Defendants	Ms U Stanisich	Moores Lawyers

HIS HONOUR:

Introduction

Mrs Marie Langley (‘the deceased’), died on 2 January 2016 at the age of 70. She was a widow and had no children. Her husband, Mr Arthur Langley, died on 10 June 2010. She is survived by her brother, Mr Raymond Cullen, who is the plaintiff in this proceeding.

On 28 November 1994, the deceased signed a will (‘the formal will’) executed in accordance with the Wills Act 1958. Shortly after her death some sixteen years later, Mr Cullen and his wife, Mrs Margaret Cullen, found a single page handwritten note dated 5 August 2014 bearing the deceased’s signature which, in its first line, was styled as ‘the last will and testament of Marie Langley’ (‘the 2014 document’). The 2014 document was found in the kitchen of the deceased’s home.

Mr Cullen has made application to administer the deceased’s estate and seeks that both the formal will and the 2014 document be admitted to probate. There is no controversy that the formal will should be admitted to probate. The question in the proceeding is whether the 2014 document should be regarded as an informal will and also admitted to probate to be read together with the formal will.

At the time of her death, the assets of the deceased’s estate comprised a house and land in Eltham in the State of Victoria, an annuity pension account, a motor vehicle and funds in various bank accounts. The most recent estimate of the value of the estate is $980,493.57, principally constituted by the property in Eltham (valued at approximately $700,000) and the pension annuity account (valued at $233,831.79).

In the event that only the formal will is admitted to probate, no portion of the deceased’s estate will pass to Mr Cullen and nearly all of the estate will be divided between four named charities who are the defendants in the proceeding. If, however, the 2014 document is also admitted…

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 Langley

Details

AGLC: Re Langley [2018] VSC 623
Case: [2018] VSC 623
Decision Date: 19 October 2018

CaseChat Overview and Summary

The case of Re Langley involved an application to admit an informal will to probate. The deceased, who had previously executed a formal will, left behind an informal document which was claimed to represent her final testamentary wishes. The primary issue before the court was whether the deceased intended the informal will to supersede the formal one. Additionally, the court needed to determine if the deceased had the requisite testamentary capacity at the time of drafting the informal will, and whether the informal will, despite being incomplete, could be admitted to probate under the relevant legislation.

The court carefully examined the evidence and testimony provided to assess the deceased's intentions and capacity. It held that the burden of proof rested with the applicant to establish, on the balance of probabilities, that the deceased intended the informal will to be her final expression of testamentary wishes. The court referred to the Briginshaw v Briginshaw principle, which requires the court to be satisfied of the applicant's case to the requisite standard of proof. After considering the evidence, the court concluded that the applicant had not met the necessary burden of proof. The court found that there was insufficient evidence to demonstrate that the deceased intended the informal will to replace the formal one, nor was there clear evidence that the deceased had testamentary capacity at the time of drafting the informal will. Consequently, the application to admit the informal will to probate was refused.

The court's decision was grounded in the statutory requirements under the Wills Act 1997, particularly sections 7 and 9, which outline the conditions for the validity of a will. The court found that the informal will did not meet the necessary criteria for probate, and the formal will remained the valid testament of the deceased. The court's final orders reflected this conclusion, denying the application to admit the informal will to probate and affirming the formal will as the legally binding testament of the deceased.

Orders