JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2022
DATE OF JUDGMENT:	1 December 2022
CASE MAY BE CITED AS:	Re Larcombe
MEDIUM NEUTRAL CITATION:	[2022] VSC 741

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WILLS AND ESTATES – Informal will – Application to admit informal will to probate – Where informal will executed prior to deceased’s hospital admission – Where deceased died in hospital – No evidence of cognitive impairment – Testamentary capacity – Knowledge and approval – Suspicious circumstances – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N J McOmish	Harwood Andrews
For the Contradictors	Ms U Stanisich	Hicks Oakley Chessell Williams

HER HONOUR:

Introduction

Geoffrey William Larcombe (‘the deceased’) died on 17 January 2017, aged 58 years. The cause of his death was disseminated Wegener’s granulomatosis, sepsis and multi-organ failure. The deceased was survived by his four siblings: Lyle John Larcombe (‘the plaintiff’), Trevor Percy Larcombe (‘Trevor’), Carolyn Merle Martin (‘Carolyn’) and Glenda Margaret McLoughlin (‘Glenda’).

By originating motion filed 7 June 2017, the plaintiff sought a grant of probate of a testamentary document dated 3 December 2016 (‘the informal will’). The informal will was prepared by the plaintiff on 3 December 2016 and signed by the deceased the same day. The informal will names the plaintiff as executor and bequeaths some of the deceased’s assets to the plaintiff and Trevor, although not equally. The informal will does not contain an attestation clause or a revocation clause and fails to dispose of the residue of the estate of the deceased. Although the informal will was signed by the deceased, his signature was witnessed in the presence of only one witness. Accordingly, the informal will does not comply with the requirements of s 7(1) of the Wills Act 1997 (Vic) (‘the Wills Act’).

Other than the informal will, searches have not uncovered any prior testamentary documents of the deceased.

Pursuant to s 9 of the Wills Act, the Court is empowered to dispense with the requirements of s 7(1) of the Wills Act and determine whether the informal will constitutes a valid will, notwithstanding that it has not been executed in conformity with the statutory formalities.

In the event that the informal will is not admitted to probate, the estate of the deceased stands to be distributed in accordance with intestacy provisions, pursuant to s 70A of the Administration and Probate Act 1958 (Vic) (‘the Administration and Probate Act’). The deceased’s intestacy beneficiaries are his four siblings.

Pursuant to r 2.09 of the Supreme Court (Administration and Probate) Rules 2014 (Vic), the Registrar of Probates may exercise the powers of the Court under s 9 of the Wills Act if all persons affected by a decision under s 9 consent to those powers being exercised by…

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 Larcombe

Details

AGLC: Re Larcombe [2022] VSC 741
Case: [2022] VSC 741
Decision Date: 1 December 2022

CaseChat Overview and Summary

The case of Re Larcombe involved an application to admit an informal will to probate by the executor of the deceased's estate. The dispute arose from the validity of the will executed by the deceased prior to their admission to hospital, where they subsequently died. The court was tasked with determining whether the will met the necessary criteria for probate, considering the circumstances surrounding its execution.

The primary legal issues centred on the testamentary capacity of the deceased at the time of executing the will and whether the will was properly executed with knowledge and approval. The court had to consider the lack of evidence indicating cognitive impairment at the time of the will's execution, alongside the suspicious circumstances surrounding its creation. Additionally, the court examined whether the will complied with the statutory requirements for informal wills under relevant legislation.

The court found that the will was not validly executed due to the suspicious circumstances and the absence of clear evidence of the deceased's testamentary capacity at the time of signing. The executor's application to admit the will to probate was dismissed on these grounds. The court emphasised that, despite the lack of evidence of cognitive impairment, the overall context suggested that the will did not meet the legal standards for validity. Consequently, the will was not admitted to probate.

Orders