Re Merry; State Trustees Limited v King
[2021] VSC 564
•7 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2019 09846
IN THE MATTER of the will of JOHN EDWARD MERRY, deceased
- and –
IN THE MATTER of an application by STATE TRUSTEES LIMITED (ACN 064 593 148) (as the executor of the estate of JOHN EDWARD MERRY, deceased) pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for directions in relation to the administration of the estate
BETWEEN:-
| STATE TRUSTEES LIMITED (ACN 064 593 148) (as the executor of the estate of JOHN EDWARD MERRY, deceased) | Plaintiff |
| v | |
| LEANNE MARGARET KING | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGEMENT: | 7 September 2021 |
CASE MAY BE CITED AS: | Re Merry; State Trustees Limited v King |
MEDIUM NEUTRAL CITATION: | [2021] VSC 564 |
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WILLS AND ESTATES – Application to admit informal will to probate – Where purported will executed in the presence of one witness with other witness signing later – Whether deceased intended document to be his will – Alleged undue influence by beneficiary under informal will – Application granted – Wills Act 1997 (Vic) s 9.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Mah | State Trustees Limited |
| Defendant in person |
HER HONOUR:
John Edward Merry (‘the deceased’) died on 9 November 2018. He was survived by his partner, Shirley Moira Finch (‘Shirley’), and his two children, Darren John Merry (‘Darren’) and Leanne Margaret King (‘the defendant’).
The deceased left a testamentary document dated 21 April 2014 (‘the 2014 document’). The 2014 document does not comply with the formal requirements of s 7 of the Wills Act 1997 (‘the Act’) as the deceased did not sign it in the presence of two witnesses.
The 2014 document appointed the defendant’s husband, Stephen Patrick King (‘Mr King’) as the executor. On 4 December 2018 Mr King authorised State Trustees Limited (‘the plaintiff’) to apply for a grant. On 2 July 2019, the plaintiff applied for a grant of letters of administration with the 2014 document annexed.
Save for the defendant, all beneficiaries consented to the Registrar of Probates exercising the Court’s power pursuant to s 9 of the Act to admit the 2014 document to probate. The only challenge by the defendant to a grant of probate of the 2014 document is allegations of coercion of the deceased on the part of Darren.
The deceased’s testamentary documents
The 2014 document is a typed document containing 11 paragraphs and entitled ‘WILL of John Edward Merry’. It consists of three pages, the second and third page containing the date of execution and signature of the deceased and the signatures of the two witnesses. The deceased and witnesses did not initial or sign the foot of the pages of the 2014 document.
The 2014 document purports to:
(a) revoke all prior wills and any other testamentary dispositions;
(b) appoint Mr King as executor and trustee;
(c) devise the property at 14 Watson Court, Altona (‘the Altona property’), or any such other place as may be the deceased’s principal place of residence at his death to Darren;
(d) bequeath the Challenger Investment Annuity Bond account to Darren and Shirley in equal shares;
(e) bequeath all share investments and superannuation investments to the defendant;
(f) bequeath all trinkets, jewellery and cutlery, including the crockery sets and jewellery of the deceased’s mother, to the defendant; and
(g) leave all remaining assets including motor vehicles and the contents of the deceased’s garage to Darren.
The deceased’s assets at the date of death comprised the Altona property valued at $993,000 for probate purposes, cash of approximately $63,000 and various shares valued at approximately $250,000. The practical effect of the 2014 document is that the defendant receives the deceased’s shares and Darren receives the Altona property and the residuary estate.
The deceased’s penultimate will is dated 4 April 1989 (‘the 1989 will’). It complies with s 7 of the Act and provides for the following distribution:
(a) the Altona property and any cars or caravans to Darren;
(b) 10 per cent of the residue of the estate to Shirley;
(c) 45 per cent of the residue of the estate and an amount equal to the value of the Altona property and any cars or caravans gifted to Darren to the defendant; and
(d) the remainder of the residue of the estate on trust for the benefit of Darren.
Applicable principles
In order for a grant of probate to be made, the 2014 document must satisfy the requirements of s 9 of the Act governing the admission to probate of documents not executed in accordance with s 7 of the Act.
Section 9 of the Act allows the Court to admit to probate a will that has not been executed in conformity with s 7 of the Act. Three criteria must be satisfied before a document will be admitted into probate under s 9 of the Act:
(a) there must be a document;
(b) the document must record the testamentary intentions of the deceased; and
(c) the deceased must have intended the document to be his or her will.[1]
[1]Re Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Equity Trustees Ltd v Levin [2004] VSC 203, [15] (Whelan J); Fast v Rockman [2013] VSC 18, [46]-[47], [52] (Habersberger J); Re Ray [2020] VSC 699, [103] (McMillan J).
Section 9 of the Act is a remedial provision that allows the Court to dispense with the formal requirements for the execution of a will under the Act. Ordinary principles of statutory interpretation dictate that it should be given a broad construction, however, despite its remedial nature, the legislature should not be taken to have unduly relegated the importance of the formalities of execution.[2]
[2]Estate of Peter Brock (2007) 1 ASTLR 127; [2007] VSC 415, [19]–[20] (Hollingworth J).
In regard to the third criterion, the Court must be satisfied that the testator, by some word or act, demonstrated an intention that, without any alteration or reservation, the alleged informal will should have effect as his or her will. The testator must have intended the alleged informal will to be a legally operative act that disposes of their 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, [42] (EM Heenan J).
A will that has not been executed in conformity with s 7 of the Act, but satisfies the requirements of s 9 of the Act could still be refused probate if the testator lacked testamentary capacity, did not know and approve of the will, or was affected by undue influence in making the will. If the deceased lacked testamentary capacity, did not know and approve of the document, or was unduly influenced, such that his or her will was overborne, then the Court could not be satisfied that the deceased intended the document to be his or her will.[4]
[4]Re Stuckey (2014) 11 ASTLR 43; [2014] VSC 221, [40]–[41] (McMillan J).
Due to the nature of probate, the consequences of any findings that may be made, and the inability hear any evidence from the testator, the Court needs to evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw principle.[5]
[5]Fast v Rockman (n 2) [48] (Habersberger J).
The evidence
In or about 2014, the deceased gave instructions to Mr King to prepare a will. On 21 April 2014, the deceased signed the 2014 document in front of one witness, Elizabeth Falzon (‘Ms Falzon’). In her affidavit sworn 5 June 2019, Ms Falzon sets out the circumstances in which the 2014 document was executed by the deceased. On 21 April 2014, Ms Falzon witnessed the deceased execute the 2014 document. Ms Falzon did not sign the footer on each page of the 2014 document as she was unaware of this requirement, nor could she recall if the 2014 document consisted of three pages of A4 sheets. The deceased informed Ms Falzon that he would be attending the house of his neighbour, Joy Marie Mann (‘Ms Mann’), to request her to sign the 2014 document that Ms Falzon had just signed as a witness. Ms Falzon was not present when Ms Mann signed the 2014 document.
In her affidavit sworn 15 July 2020, Jasmine Berger exhibited file notes of telephone calls between Ms Mann and Paul Pradolin (‘Mr Pradolin’), an estate consultant for the plaintiff. A file note dated 4.16 pm on 11 February 2020 records a conversation on 8 March 2019 in which Ms Mann informed the plaintiff that she would sign an affidavit of due execution. A file note dated 4.23 pm on the same day records a further conversation on 12 March 2019 between the same people where Ms Mann advised that she did not wish to be involved in the matter, would not provide an affidavit as to the circumstances of her witnessing the 2014 document and noted security concerns.
In his affidavit sworn 13 October 2020, Mr Pradolin deposed to an email conversation with Mr King on or about 16 to 19 January 2020 in which Mr King informed him that the deceased had posted the 2014 document to him and he kept the original document in his filing cupboard. Further, following the deceased’s death, Mr King saw that the deceased had kept a copy of the 2014 document in an expanding manila file. In her affidavit, Ms Berger deposed to Mr King authorising the plaintiff to apply for a grant of probate of the 2014 document.
The defendant opposes the plaintiff’s application on the ground that Darren coerced and bullied the deceased into making the 2014 document. In an affidavit sworn 17 September 2020, the defendant alleged that the 2014 document was not made of the deceased’s own free will and the deceased was coerced into making the 2014 document by Darren. Her belief as to this is based on the fact that the 1989 will left approximately 45 per cent of the estate to Darren which remained unchanged over 25 years; that the deceased informed the defendant shortly before his death that he had made the 2014 document to stop Darren harassing him and threatening to never see him again if he did not give Darren the Altona property. The defendant deposed to a history of bullying and threatening behaviour by Darren towards various people, including herself and Mr King. The defendant also relied on the deceased advising her prior to his death that she should live in Perth to ensure her safety from Darren and that Ms Mann refused to sign an affidavit as to the circumstances of her witnessing of the 2014 document.
Mr King deposed to his belief that Darren coerced the deceased into making the 2014 document based on a conversation with the deceased at an unspecified time where the deceased informed Mr King that he hoped the defendant forgives him for leaving the Altona property to Darren and the defendant receiving less but he (the deceased) had to do so as Darren threatened to never see the deceased again if he did not change the will so he got the Altona property. Mr King also deposed to Darren’s history of threatening behaviour and that Darren had originally believed the 2014 document to be a false will, prior to realising he would inherit a greater share of the deceased’s estate.
Consideration
Section 9 of the Act enables the Court to dispense with the formal requirements for the execution of a will when admitting a will to probate. The first two requirements are satisfied, there being a document that records the testamentary intentions of the deceased. Of the third requirement, the plaintiff must establish on the balance of probabilities that the deceased intended the 2014 document to be his last will, that is, that the deceased had decided this particular document would govern how his estate was to be distributed after his death.
The deceased was an active participant in the making of the 2014 document. Mr King prepared the 2014 document on the instruction of the deceased. The defendant and Mr King do not suggest that the 2014 document diverged from the deceased’s instructions.
Mr King did not state when he prepared the 2014 document or when he provided it to the deceased, although this would have been on or before 21 April 2014, on which date the deceased executed the 2014 document before Ms Falzon. There is no evidence that Darren was involved at the time of the deceased providing his instructions to Mr King. In addition, aside from Ms Falzon, no other person was present when the 2014 document was executed by the deceased.
Ms Falzon recalled the deceased informing her that he would be attending the house of his neighbour, now known as Ms Mann, in order for her to sign the document she had just witnessed. Ms Falzon was not present when Ms Mann signed. The plaintiff was unable to obtain an affidavit from Ms Mann as she did not want any involvement in the proceeding.
The deceased intended for the 2014 document to dispose of his estate in favour of his children and make some provision for Shirley, although by the date of death the asset for Shirley no longer existed.
The 2014 document appeared to be important to the deceased as he sent the original 2014 document to Mr King, his named executor, and kept a copy in a manila folder at his home.
Although the testamentary capacity of the deceased is not in issue, the plaintiff filed an affidavit sworn on 17 December 2019 by Dr Vimal Arora, a medical practitioner at The Clinic in Altona where the deceased was a patient. He deposed that the deceased attended at The Clinic on 31 March and 14 April 2014 and the consultation notes do not indicate that the deceased did not have testamentary capacity. He also deposed that all of the deceased’s consultations in 2014 and afterwards were for medical conditions unrelated to any illness or conditions ‘that would see him unfit for testamentary capacity’. Dr Arora’s opinion was that at the time the deceased gave instructions and executed the 2014 document, the deceased had full testamentary capacity. The plaintiff also exhibited the deceased’s death certificate which records the cause of death of the deceased as a presumed stroke.
While the deceased’s knowledge and approval of the 2014 document was not in issue, for completeness, it is noted that the 2014 document prepared by Mr King accords with the instructions provided by the deceased.
The defendant raises concerns of influence or coercion by Darren in the creation of the 2014 document and the changes to the disposition of the residue of the estate. Darren was not present during the discussions between the deceased and Mr King when instructions were given for the 2014 document. The deceased took an active role in the creation of the 2014 document. The 2014 document was not kept secret and Mr King was aware of its contents, having taken the instructions and keeping the original document. The defendant presumably became aware of the 2014 document through either Mr King or the deceased. The deceased did not change his testamentary wishes in the period after signing the 2014 document until his death.
While text messages exhibited to the affidavits of the defendant and Mr King suggest that Darren is a volatile person, with Darren generally accusing the defendant and Mr King of forging the 2014 document, there is no direct evidence of any threats or coercion by Darren against the deceased. Mr King’s belief that the deceased was coerced by Darren into making the 2014 document rests on Mr King’s conversation with the deceased referred to at para [19] above at an unspecified time, although presumably after the date of the 2014 document. Notwithstanding Mr King’s belief as to coercion, he did authorise the plaintiff to seek a grant of the 2014 document. This conversation does not support a finding of coercion on the part of Darren in respect of the 2014 document.
The defendant stated that the deceased agreed with his former wife to leave his estate equally to Darren and the defendant as reflected in the 1989 will. In the 1989 will the Altona property was devised to Darren and the will then attempted to equalise the distributions between the defendant and Darren by giving the defendant a greater share of the residue of the estate. While there are differences in the 1989 will and the 2014 document, this does not establish coercion or undue influence on the part of Darren.
The defendant also relied on Ms Mann not wanting to file an affidavit in the proceeding as a basis for establishing coercion on the part of Darren. A review of the file notes of conversations between Ms Mann and Mr Pradolin do not evidence any coercion of the deceased on the part of Darren in respect of the 2014 document.
Conclusion
The Court is satisfied that the deceased provided instructions to Mr King for the 2014 document and that he signed the document in the presence of one witness and subsequently had it signed by another witness. The evidence supports that at the time of giving instructions and signing the 2014 document the deceased had testamentary capacity and that he knew and approved of the content of the 2014 document and that he intended it to operate as his will. The Court is not satisfied on the evidence that Darren coerced or unduly influenced the deceased into making the 2014 document.
Orders
The Court orders:
(a) subject to any requirements of the Registrar of Probates, probate of the will of John Edward Merry dated 21 April 2014, exhibited to the affidavit of Rupali Chandra filed 26 June 2019, be granted to State Trustees Limited, it having been authorised by Stephen Patrick King, the executor appointed in the will;
(b) the plaintiff’s costs of the proceeding be retained and paid out of the estate of the deceased.
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