Re Merry; State Trustees Limited v King - [2021] VSC 564

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…

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.

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Details

Case: [2021] VSC 564
Decision Date: 7 September 2021

CaseChat Overview and Summary

The case involved an application by State Trustees Limited, the executors of a deceased's estate, to admit an informal will to probate. The will was executed by the deceased in the presence of one witness, with the other witness signing the document at a later time. The beneficiary under the informal will, King, contested the application, alleging undue influence. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the deceased intended the document to be his will, considering it was executed in an unconventional manner. Additionally, the court had to determine if there was undue influence exerted by the beneficiary, potentially invalidating the will. The court examined the circumstances surrounding the will's execution and the relationship between the deceased and the beneficiary.

The court found that the deceased intended the document to be his will, noting the circumstances of its execution and the content of the document. The court rejected the allegation of undue influence, concluding that the evidence did not support this claim. The court applied section 9 of the Wills Act 1997 (Vic), which allows for the admission of informal wills to probate if the court is satisfied that the deceased intended the document to be his or her will.

The court granted the application by State Trustees Limited to admit the informal will to probate, thereby allowing the estate to be distributed according to the deceased's intentions as expressed in the will.

Orders