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Re Martin

Re Martin

Case [2019] VSC 424 25 June 2019

Wills Act 1997 (Vic) ss 9, 12–15

Informal Will

Intentional Will

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2017 05001

IN THE MATTER of the estate of VALERIE PATRICIA MARTIN, deceased

APPLICATION BY:

JOHN PETER MOLLICA

Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2018
DATE OF JUDGMENT:	25 June 2019
CASE MAY BE CITED AS:	Re Martin
MEDIUM NEUTRAL CITATION:	[2019] VSC 424

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WILLS AND ESTATES — Informal will — Whether deceased intended informal document to be her will — Where informal document is undated, unsigned and unwitnessed — Where deceased later referred to informal document as her will — Where deceased spoke of changing some of her testamentary intentions but did not revoke the informal document — Wills Act 1997 (Vic) ss 9, 12–15.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W F Gillies	Hill Legal
For the Contradictor	Ms A S Bartfeld	Suzanne Lyttleton Lawyers

HER HONOUR:

Introduction

Valerie Patricia Martin died on 25 January 2017 aged 78 years. She was survived by two of her three children.

The plaintiff claims to be the long-term domestic partner of the deceased.

By originating motion filed 31 March 2017, the plaintiff sought a grant of letters of administration of the deceased’s intestate estate.

The inventory of assets and liabilities filed with the plaintiff’s application listed the deceased’s net estate as $249,807.19, comprising assets of $310,036.17 and a reverse mortgage liability of $60,228.98. On 16 August 2018, the deceased’s home was sold pursuant to a grant of letters of administration pendente lite to enable the reverse mortgage to be discharged.

Following the deceased’s death but before the plaintiff’s application for a grant on intestacy, the plaintiff and the deceased’s neighbour and friend, Louise Gourley, attended at the deceased’s home where Ms Gourley located an informal document in a black concertina folder in a spare room of the deceased’s home.

The deceased also executed a will dated 4 October 2007 (‘the 2007 will’). The deceased’s friend at the time, Ann Theresa McGrath, was named as executor. Subject to the prior satisfaction of certain expenses, the 2007 will provided that the whole of the deceased’s estate was to be paid to Ms McGrath and also directed that the deceased’s dogs would go to Ms McGrath.

Following requisitions from the Registrar of Probates in 2017, it became clear that letters of administration on intestacy could not be granted as the validity of the 2007 will and the status of the informal document needed to be determined.

On 22 March 2018, the Court recorded that counsel for Ms McGrath informed the Court that no application would be made to prove the 2007 will, as Ms McGrath believed the will to be revoked.

This meant the first issue to be determined was the validity of the informal document and whether it should be admitted to probate as an informal will pursuant to s 9 of the Wills Act 1997 (Vic). The informal document did not name…

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 Martin

Details

AGLC: Re Martin [2019] VSC 424
Case: [2019] VSC 424
Decision Date: 25 June 2019

CaseChat Overview and Summary

In the matter of Re Martin, the question before the court was whether an informal document, which was undated, unsigned, and unwitnessed, constituted the deceased's will. The dispute arose following the death of the deceased, who had referred to the document as her will during her lifetime. Although the deceased had expressed intentions to modify some of her testamentary wishes, she did not revoke the informal document.

The legal issues the court needed to resolve included determining whether the informal document could be recognised as a valid will under the Wills Act 1997 (Vic) and whether the deceased's subsequent conduct and statements could be interpreted as an intention to treat the document as her will. The court considered the provisions of sections 9, 12, 13, and 15 of the Wills Act 1997 (Vic) in its analysis.

The court concluded that the informal document did not satisfy the statutory requirements for a valid will, as it was not dated, signed, or witnessed. However, the court found that the deceased's actions and statements indicated a clear intention to treat the document as her will. The court held that despite the document's shortcomings, it was the deceased's testamentary intention that it should represent her final wishes. The court thus upheld the informal document as the deceased's will.

The final orders of the court recognised the informal document as the valid will of the deceased. The court's decision was based on the clear evidence of the deceased's intention to treat the document as her will, despite its failure to meet the statutory requirements for a valid will.

Orders