Re Lynch

Case [2016] VSC 758 9 December 2016

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2016 01395

ROBERT ARTHUR CREWDSON (in the will called Robert Crewdson)	Plaintiff
v
ANDREW WILLIAM LYNCH	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2016, written submissions filed 28 October 2016
DATE OF JUDGMENT:	9 December 2016
CASE MAY BE CITED AS:	Re Lynch
MEDIUM NEUTRAL CITATION:	[2016] VSC 758

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WILLS AND ESTATES — Application by plaintiff to admit two page document to probate — Whether testator intended the document to be his final will — Where deceased prepared document during hospital admission — Where deceased failed to prepare a formal will for eight years after creation of two page document — Standard of proof — Briginshaw v Briginshaw (1938) 60 CLR 336 — Fast v Rockman [2013] VSC 18 — Wills Act 1997, ss 7 and 9

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S P Newton	Wills & Probate Victoria
For the Defendant	Mr R C Wells	Bernie O’Sullivan Lawyers

HER HONOUR:

Introduction

Edward (‘Ted’) James Lynch ('the deceased' or ‘the testator’) died on 14 July 2015, following a car accident aged 78. His estate comprises approximately $2.5 million, his home is valued at approximately half that amount with the balance of his estate being shares, money, personal chattels and a motor vehicle. The deceased was divorced at the date of his death and did not have any children.

The deceased’s parents predeceased him, as did his only sibling, Norman William Lynch (‘Norman’). The deceased’s next of kin are Norman’s three adult children, Andrew William Lynch (‘the defendant’), Virginia Margaret Lynch and Caroline Mary Lynch.

During his lifetime, the deceased had a number of long standing friendships. Three of those friends gave evidence: Robert Crewdson (‘the plaintiff’), Roderick Armstrong (‘Mr Armstrong’) and Peter Edwards (‘Mr Edwards’).

Some eight years before his death, the deceased prepared three documents when he was admitted to the emergency department of the Alfred Hospital:

(a) The first document is a handwritten unbound page written in blue ink dated 19 January 2007. This document was signed by the deceased and witnessed by Mr Armstrong (‘the executed page’). The executed page purports to appoint the plaintiff and Mr Tony Ryan (‘Mr Ryan’) as his executors. Mr Ryan predeceased the deceased, having died on 20 August 2010.

(b) The second document is also a handwritten unbound page written in both blue and black ink and is undated. It has a long list of names with dollar amounts next to them (‘the list of beneficiaries page’). It also contains the names of two organisations with dollar amounts next to those names and dollar amounts next to the words ‘funeral expenses + wake’ and ‘renovation of 81 Marriage Road for sale’.

(c) The third document is another handwritten unbound page written in blue ink listing assets with a value next to the assets (‘the list of assets page’). The third…

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 Lynch

Details

AGLC: Re Lynch [2016] VSC 758
Case: [2016] VSC 758
Decision Date: 9 December 2016

CaseChat Overview and Summary

The case of Re Lynch involved an application by the plaintiff to admit a two-page document to probate as the last will of the deceased. The dispute centred on whether the document constituted the final will of the deceased, given that he had not prepared a formal will for eight years after the document was created. The matter was heard in the Supreme Court of Victoria.

The court had to determine whether the deceased intended the document to be his final will. This required consideration of the circumstances surrounding the creation of the document, the deceased's intention at the time, and whether the document satisfied the statutory requirements under the Wills Act 1997. Specifically, the court needed to establish whether the document was made with the necessary testamentary intention and whether it complied with the formality requirements set out in sections 7 and 9 of the Act.

The court considered the Briginshaw standard of proof and the case of Fast v Rockman, which provided guidance on the interpretation of wills. It was determined that the document did not meet the standard of proof required to be admitted as the deceased's will, as there was insufficient evidence to establish that the deceased intended the document to be his final will. The court noted that the document was prepared during a hospital admission, but the deceased had not taken steps to formalise the document as a will for eight years thereafter. This was a significant factor in the court's decision, as it suggested that the document was not intended to be the final expression of the deceased's testamentary wishes.

The court refused the plaintiff's application to admit the two-page document to probate. The court found that the document did not satisfy the statutory requirements for a valid will and that there was insufficient evidence to establish the deceased's testamentary intention. Consequently, the application was dismissed, and the two-page document was not admitted as the deceased's will.

Orders