Re Norris; Lindsay v Howie - [2025] VSC 85

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2024 19293
S PRB 2024 22067
S PRB 2024 23208

IN THE MATTER of the estate of HEATHER NESBITT NORRIS, deceased

BETWEEN:

CASSANDRA LEA LINDSAY

-and-

JOHN DAVID HOWIE

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JUDGE:	GRAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2024
DATE OF JUDGMENT:	11 March 2025; revised 20 May 2025
CASE MAY BE CITED AS:	Re Norris; Lindsay v Howie
MEDIUM NEUTRAL CITATION:	[2025] VSC 85

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WILLS AND ESTATES — Informal will — Will prepared in accordance with deceased’s instructions not seen by deceased, but read in full to deceased — Whether will was intended by deceased to be her final will — Assertion that deceased died by suicide — Testamentary capacity —Fast v Rockman [2013] VSC 18, Sultanova v Bolganow [2019] VSCA 245 — Wills Act 1997, ss 7, 9.

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APPEARANCES:	Counsel	Solicitors
For Ms Lindsay	Mr W F Gillies	Coulter Legal
For Mr Howie	Ms E Konstantinou	Wyndham Partners

TABLE OF CONTENTS

Summary.............................................................................................................................................. 1

Contextual facts.................................................................................................................................. 2

Procedural context.............................................................................................................................. 8

Questions for determination............................................................................................................ 9

Applicable principles...................................................................................................................... 10

Consideration.................................................................................................................................... 13

Evidence and findings on intention......................................................................................... 13
Evidence and finding on testamentary capacity.................................................................... 21

Conclusion......................................................................................................................................... 23

HIS HONOUR:

Should I grant Cassandra Lea Lindsay (Ms Lindsay) probate of an informal will document prepared for Heather Nesbitt Norris (Ms Norris or Heather) in the weeks before her death?

Summary

This is a dispute between Ms Lindsay, who is one of Ms Norris’ nieces, and John David Howie (Mr Howie), who was Ms Norris’ husband for nearly 20 years.

Mr Howie contends that Ms Norris died without leaving a will and that he should be granted letters of administration of her estate on intestacy. Ms Lindsay has filed a caveat and grounds of objection to any such grant.

Ms Lindsay contends that Ms Norris left a document that Ms Norris intended to be her will (informal will document). It names Ms Lindsay as executor and provides for Ms Norris’ estate to be equally divided into four parts between Ms Lindsay and three other nieces. It excludes Mr Howie. Ms Lindsay seeks an order under s 9 of the Wills Act 1997 (Wills Act) admitting the informal will document to probate. Mr Howie has in turn filed a caveat and opposes any such grant.[1]
[1]Under the truncated timetable I directed for the determination of these proceedings, Mr Howie did not file grounds of objection and instead relied on his submissions, including his written submissions filed 18 November 2024.

I am satisfied in accordance with the applicable principles that Ms Norris intended the terms of the informal will document to be her will.

The principal evidence supporting this conclusion was given by Michelle Calvert-McCredie (Ms Calvert-McCredie), a solicitor who prepared the informal will document, read it out to Ms Norris over the telephone on 10…

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: [2025] VSC 85
Decision Date: 11 March 2025; revised 20 May 2025

CaseChat Overview and Summary

In the matter of Re Norris; Lindsay v Howie, the Victorian Supreme Court was called upon to determine the validity of a will prepared for the deceased, Norris. Lindsay, the personal representative of the estate, challenged the validity of the will on the grounds that it was not intended to be the deceased’s final testament. The dispute arose from the circumstances under which the will was prepared and executed, particularly as the deceased had not seen the will but had it read to her in full. Additionally, there were allegations that the deceased had died by suicide, which had implications for the testamentary capacity assessment.

The primary legal issue before the court was whether the will constituted the deceased’s final testamentary disposition. This involved examining the circumstances under which the will was prepared, whether it complied with the statutory requirements under the Wills Act 1997, and whether the deceased possessed testamentary capacity at the time of executing the will. The court had to consider precedents such as Fast v Rockman and Sultanova v Bolganow to determine the requisite elements for a valid will and testamentary capacity, particularly in light of the allegation of suicide.

The court deliberated on the evidence presented regarding the preparation and execution of the will. It was established that the will was prepared in accordance with the deceased’s instructions and was read to her in full. The court noted that the deceased had explicitly indicated her intention for the document to be her final will. Furthermore, the court found no evidence to suggest that the deceased lacked testamentary capacity, despite the suicide allegation. Based on these findings, the court concluded that the will was valid and represented the deceased’s final testamentary disposition.

The final orders of the court confirmed the validity of the will, thereby affirming Lindsay’s role as the personal representative of the estate. The court’s decision underscored the importance of clear testamentary intent and the adherence to statutory requirements in validating a will.

Orders