Re Logan
[2021] VSC 131
•19 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2020 28323
IN THE MATTER of the deceased estate of GORDON THOMAS LOGAN
APPLICATION BY:
| ANNE THERESE LOGAN and GREGORY ANTHONEY LOGAN | Plaintiffs |
---
JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 19 March 2021 |
CASE MAY BE CITED AS: | Re Logan |
MEDIUM NEUTRAL CITATION: | [2021] VSC 131 |
---
WILLS AND ESTATES – Informal will – Where informal will was amended and signed by the deceased but not witnessed – Where amendments reflected changes in the deceased’s circumstances and beneficiaries – Where unnecessary to appoint a contradictor to represent infant beneficiaries – Application granted – Wills Act 1997 (Vic) s 9.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms U Stanisich | Wightons Lawyers |
HER HONOUR:
Introduction
Gordon Thomas Logan (‘the deceased’) died on 5 August 2020, leaving a will dated 26 July 2011 (‘the will’) and a copy of the will, which had been amended and signed by the deceased by his hand and dated 17 April 2020 (‘the informal will’).
The deceased’s estate comprises term deposits and a pensioner security bank account totalling $1,791,037.10.
By originating motion filed 14 October 2020, the plaintiffs seek probate of the informal will, pursuant to s 9 of the Wills Act 1997 (‘the Act’).
Deceased’s testamentary documents
The will
The will was prepared by the deceased’s solicitor and executed in compliance with s 7 of the Act on 26 July 2011.
The will:
(a) appoints the deceased’s brother, Bernard Joseph Logan, as executor and the plaintiffs as substitute executors;
(b) makes the following cash bequests:
(i) $20,000 to the deceased’s sister, Annie McCarthy;
(ii) $400,000 to Bernard Joseph Logan (noting his middle name was incorrectly noted as ‘Francis’ at clause 4 instead of ‘Joseph’);
(iii) $10,000 to his friend, Desmond Bonney;
(iv) $5,000 to his friend, Michael Gannon;
(v) $120,000 to the first plaintiff;
(vi) $120,000 to his nephew, John Logan;
(vii) $120,000 to the second plaintiff;
(c) devises the proceeds of sale of his property in Church Street, North Geelong (‘the property’) to the plaintiffs and John Logan as tenants in common in equal shares; and
(d) divides the residue of the estate to the following beneficiaries as tenants in common in equal shares: Terrance Logan, John Cunningham, Raymond Cunningham, Denise Pike, Judith Thompson, Alan Logan, Sandra Tonkins, Jessica Logan, Sophie Logan, Tasman Logan and Bernard Logan.
Since the date of the will, the property has been sold, Bernard Logan, Annie McCarthy and Desmond Bonney have died and a great niece, Imelda Logan, has been born.
The informal will
The informal will is a copy of the deceased’s unexecuted will with handwritten amendments made on it. The practice of the plaintiffs’ solicitors with regards to the storage of wills prepared by them was to provide the client with a copy of the unexecuted will and retain the executed original will. It appears that the deceased amended the unexecuted copy of the will using a pen and subsequently signed the document in the absence of any witnesses after making the amendments.
The amendments to the copy first remove the original title of the will by crossing out the title and writing the words ‘my updated will as from 17 April 2020’. The deceased’s signature appears at the end of each page and at the execution clause, but his signature was not witnessed. There are also handwritten amendments to the body of the will as follows:
(a) the deceased’s address, which was identified as the property, was deleted;
(b) references to all of the deceased beneficiaries were deleted with the notation ‘Dec’ written next to their names;
(c) the legacies were altered such that they totalled $790,000 instead of $795,000 and were redistributed to the surviving beneficiaries as follows:
(i) Michael Gannon’s share increased from $5,000 to $10,000;
(ii) the first plaintiff’s share increased from $120,000 to $260,000;
(iii) John Logan’s share increased from $120,000 to $260,000;
(iv) the second plaintiff’s share increased from $120,000 to $260,000;
(d) the devise of the property, or the sale price if the property were sold before death, was deleted;
(e) Bernard Logan was deleted as a residuary beneficiary and above his name the deceased included the word ‘Amelda’;
(f) clause 12, which provided for a gift over to the children of the plaintiffs and John Logan, was deleted; and
(g) clauses 13(a) and (b), which provided for the executors to sell and call in the estate and to postpone such sale, were deleted.
Notification and consents
Notice of the application was given to all adult beneficiaries under the will and the informal will, namely, the plaintiffs, Michael Gannon, John Logan, Terrence Logan, John Cunningham, Raymond Cunningham, Denise Pike, Judith Thompson, Alan Logan, Sandra Tonkin, Jessica Hotez (who was referred to in the will and the informal will as ‘Jessica Logan’). Each of the adult beneficiaries consent to the informal will being admitted to probate.
Three minor beneficiaries are affected by the application, namely, Sophie Logan aged 17 years and Tasman Logan aged 13 years, who are beneficiaries under both the will and the informal will, and Imelda Logan aged 9 years who is a potential beneficiary under the informal will, as per the handwritten note of the deceased on the informal will, which appeared to intend to include her as a residuary beneficiary.
As a beneficiary under the informal will, Imelda Logan benefits from the informal document being admitted to probate. Sophie Logan and Tasman Logan would be adversely affected by admission of the informal will with their entitlements as residuary beneficiaries being reduced by approximately $13,000.
In certain circumstances, the Court may appoint a contradictor to represent the interests of the interested minors. The plaintiffs’ solicitors calculated that if the will were admitted to probate, the costs of a contradictor would mean that the affected beneficiaries at best would receive an increase of around $10,000. If the informal will is admitted to probate, their entitlement would reduce on account of the contradictor’s costs. Having regard to the difference between the benefit for Sophie Logan and Tasman Logan under the will and the strength of the application of the informal will as set out below, the further costs of a contradictor are not justified.
Applicable principles
Section 9 of the Act allows the Court to admit to probate a document that was not executed in accordance with the formal requirements. The section is a remedial provision. The intention of the legislation is to allow the Court to give effect to a testator’s true intention despite the fact that a will has not been validly executed. It should be construed to achieve the objects and purposes of the Act, although the importance of the formalities should not be unduly relegated.[1]
[1]Re Serar [2019] VSC 139, [29] (McMillan J), citing Re Estate of Brock (2007) 1 ASTLR 127, 131 [20] (Hollingworth J).
Three criteria must be satisfied before a document will be admitted into probate in accordance with s 9 of the Act:
(a) there must be a document;
(b) the document must record the deceased’s testamentary intentions; and
(c) the deceased must have intended the document to be his or her will.[2]
[2]Fast v Rockman [2013] VSC 18, [46] (Habersberger J); Rowe v Storer [2013] VSC 385, [32] (McMillan J).
For the purposes of the relevant criteria, it is clear that there is a document and that it records the testamentary intentions of the deceased.
With respect to the third criteria, the Court must be satisfied that a testator, by some word or act, demonstrated an intention that, without any alteration or reservation, the informal document should have effect as his or her will. A testator must have intended the informal document be a legally operative act that disposes of his or her property upon their death rather than a provisional, preliminary or tentative proposal.[3]
[3]Fast v Rockman (n 2) [59], [73], [75], [86], [92], [96], [105]–[110], [114] (Habersberger J) citing, inter alia, Mitchell v Mitchell [2010] WASC 174, [41]–[43] (EM Heenan J).
The propounder of an informal will must also satisfy the Court that the testator had the requisite testamentary capacity, knew and approved the contents of the informal will and was not pressured or coerced into make the informal will.[4] Due to the nature of probate, the consequences of any findings that may be made and the inability to hear any evidence from a testator, the propounder must establish the requisite elements on the balance of probabilities, in accordance with the principles set out in Briginshaw v Briginshaw.[5]
[4]Re Stuckey [2014] VSC 221, [40]–[41] (McMillan J); Jageurs v Downing [2015] VSC 432, [19] (McMillan J).
[5](1938) 60 CLR 336; Fast v Rockman (n 2) [48] (Habersberger J).
Consideration
The will was prepared by the deceased’s solicitor in Geelong. It was signed by the deceased and witnessed on 26 July 2011.
With the sale of his property, the deaths of some of the beneficiaries and the birth of a great niece since his will was made, the deceased wished to update his will and his powers of attorney. In February 2020, the deceased told the first plaintiff that he needed to update his will and powers of attorney. By that time the deceased was aged 93 years and living in an aged care facility. He requested her to provide him with her updated address information, which she provided to him via post. The COVID-19 pandemic commenced shortly after this conversation.
The first COVID-19 shutdown in Victoria commenced in March 2020. As a result of these restrictions, the deceased was not able to see his solicitors, nor was it possible for the deceased to arrange for his solicitors to amend his will and post it to him. Even if the solicitors had posted an amended will to him, it would have been extremely difficult to comply with the usual requirements for witnesses and assess the deceased’s testamentary capacity due to the social distancing requirements at the time. Further, in February 2020, the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 were not yet enacted, which acted to modify the requirements under the Act and may have provided an option for the deceased.
Shortly after the deceased’s death, the second plaintiff received plastic containers from the deceased’s nursing home that contained the deceased’s belongings. The informal will was located with other important documents kept separately within one of the containers and was in a folder with his solicitors’ firm name on it.
The informal will commences with the words ‘My updated will as from 17 April 2020’. The changes are handwritten and the writing has been identified by the plaintiffs as being the handwriting of the deceased. The changes in the informal will have been signed and although a signature is not present at every change, there is a signature at the end of each page which assumes acceptance of each change. The informal will has also been signed clearly at the end of the document on the signature line.
The informal will appoints executors (which in doing so removes a predeceased executor) and deals with the whole of the deceased’s estate. The changes are complete, rational and logical, with an explanation on the relevant page such as ‘dec’ next to a predeceased beneficiary and ‘SOLD’ next to the deceased’s property which had been sold by him.
The informal will is a document and it clearly contains the deceased’s testamentary dispositions. It disposes of all of the deceased’s assets and has been signed by him at the end of each page and at the signature clause. The terms of the document show a clear intention that the document should take effect as his final will. The signing of the document indicates an intention to adopt the document without further change and the deceased’s handwriting is clear and firm. The deceased’s careful filing of the informal will with his other important documents located in a folder with other financial and personal documents, separately from his other possessions and in a folder labelled with the name of his solicitors’ firm, demonstrates that the deceased regarded the informal will as an important document.
With no witnesses to the signing of the informal will, there are no persons who can give evidence as to the deceased’s state of mind at the time he made the informal will. However, the deceased’s death certificate does not refer to any issues suggesting a lack of capacity, with the cause of death recorded as ‘cardiac arrest 20 minutes’. A report from the deceased’s general practitioner for three years before his death, Dr Caroline Murtagh, dated 20 September 2020 states:
Mr Logan was noted to be cognitively intact during all my interactions with him. He showed no signs of confusion, delirium or evolving dementia. His capacity to make medical and financial decisions, was at all times, in my opinion intact, aprticularly(sic) around the date of 17 April 2020.
In addition to Dr Murtagh’s conclusions as to the deceased’s capacity, the handwritten amendments made by the deceased reflect his changed circumstances and are rational. Notably, the informal will shows that the deceased was aware of:
(a) his current assets as he removed the provisions regarding his real property with the notation of ‘sold’ next to that deleted clause;
(b) the nature of his assets comprising by then cash only when he deleted
sub-cls 13(a) and (b) giving the power to the executors to convert the estate to money; and
(c) his family members as he included his great niece ‘Amelda’ (Imelda Logan) who was yet to be born at the date of his will, but in the informal will she was included alongside his other great nieces as a residuary beneficiary.
Accordingly, the Court is satisfied that the deceased had testamentary capacity when he made the informal will and that he intended it to stand as his final will.
The Court orders as follows:
(a) Subject to any further requirements of the Registrar of Probates, pursuant to s 9(1) of the Wills Act 1997, the informal will of Gordon Thomas Logan deceased signed on 17 April 2020 and being the document exhibited as ‘Exhibit B’ to the affidavit of the plaintiffs sworn 13 October 2020 be admitted to probate.
(b) The plaintiff’s costs of this application be paid out of the estate of the deceased on an indemnity basis.
---
5
0