Re Logan - [2021] VSC 131

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

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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

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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.

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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…

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 Logan

Details

AGLC: Re Logan [2021] VSC 131
Case: [2021] VSC 131
Decision Date: 19 March 2021

CaseChat Overview and Summary

In the matter of Re Logan, the deceased, Mr. Logan, passed away leaving behind an informal will which had been amended shortly before his death. The amendments, which were signed by Mr. Logan but not witnessed, altered the beneficiaries to reflect changes in his circumstances and intended beneficiaries. The dispute arose from the validity of the unsigned amendments and the necessity of appointing a contradictor for infant beneficiaries. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the unsigned amendments to the will were valid. Another issue was whether it was necessary to appoint a contradictor to represent the interests of the infant beneficiaries. The court had to interpret the provisions of the Wills Act 1997 (Vic) and decide if the amendments could be accepted as part of the deceased's testamentary intentions despite the lack of witnessing.

The court found that the amendments to the will, although not witnessed, were a clear reflection of the deceased’s wishes and were necessary due to changes in his personal circumstances. The court held that the strict requirement for witnessing was not an absolute barrier to the enforceability of the will where it was evident that the amendments were intended to be part of the deceased’s final wishes. Furthermore, the court concluded that appointing a contradictor was unnecessary in this case, as the amendments did not disadvantage the infant beneficiaries and their interests were adequately protected by the court's oversight.

The court granted the application to admit the informal will with the unsigned amendments as valid, allowing the estate to be distributed according to the deceased's intentions as reflected in the amended document. No contradictor was appointed for the infant beneficiaries.

Orders