Re Norris; Lindsay v Howie
[2025] VSC 85
•11 March 2025; revised 20 May 2025
| 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 July 2024, and printed and bound it at some time between 31 July 2024 and 2 August 2024 in anticipation of a conference with Ms Norris scheduled for 4 August 2024. Ms Norris was taken ill and the conference never took place.
Ms Calvert-McCredie’s evidence was clear and direct. On Ms Calvert-McCredie’s account, I am positively persuaded that Ms Norris intended to make her will as set out in the informal will document. I am also satisfied that she had testamentary capacity at all material times.
I will admit the informal will document to probate.
Contextual facts
The evidence before me leads me to make the following findings on contextual matters. These matters were not controversial, although for some of them the parties differ as to the significance to be attached to them.
In October 2004, after living together for a time in Scotland, Ms Norris and Mr Howie began living together in Australia. They were married on 11 December 2004 in Victoria.
In 2005 Ms Norris and Mr Howie were living together in Werribee. They received a letter from the Australian Government requiring them to prepare wills as part of a citizenship application by Mr Howie. Ms Norris and Mr Howie both prepared wills based on will kits (the 2005 wills). The 2005 wills were witnessed by Ms Norris’ sister Janet Magee (Ms Magee) and her husband Bernie Magee. Ms Norris and Mr Howie stored the 2005 wills in a box in their home.
In around December 2007, Ms Norris and Mr Howie moved to a house in Wyndham Vale. They took the box with them and stored it in that house.
In January 2023 Mr Howie’s sister died in the United Kingdom. This began an extended period of grief for both Mr Howie and Ms Norris. A few months later they had a conversation about updating their 2005 wills. Ms Norris referred to a wish to leave her estate to the Werribee Open Range Zoo in the event that Mr Howie pre-deceased her.
In December 2023 Mr Howie’s step-sister died in Scotland. Mr Howie went to Scotland in January 2024. Ms Norris remained in Australia.
Mr Howie returned from Scotland at the end of February 2024. At this time he and Ms Norris had further conversations about updating their wills.
Mr Howie gave evidence that, one day at about this time when he returned home from work, Ms Norris told Mr Howie that she had found and destroyed the 2005 wills, and this would force them to make updated wills. I note that a different account of the destruction of the 2005 wills is attributed to Ms Norris, summarised at paragraph 25(b) below. Mr Howie was not cross-examined on his account and I accept it.
As to the possibility that Ms Norris may have made an earlier will, before 2005, the best evidence before me is that any and all previous wills of Ms Norris have been destroyed. I accept this.
Ms Norris and Mr Howie again had discussions about updating their wills. In the course of these discussions, Ms Norris said again that she wanted to leave the bulk of her estate to the Werribee Open Range Zoo in the event that Mr Howie pre-deceased her. Ms Norris explained to Mr Howie the effects of intestacy in the event that one of them died before making a new will.
From about February or March 2024 Mr Howie became depressed. He saw a psychologist, but to no avail. He returned to Scotland in early April 2024 and while in Scotland felt more at ease, and his depression left him. Upon returning to Australia in late April 2024 his depression became worse. Attendances with the psychologist did not assist his mental health. In May 2024 it became clear to Mr Howie that he wanted to return back to Scotland permanently. He told Ms Norris this on multiple occasions. She wanted to remain in Australia.
In June 2024 they both decided to separate. Mr Howie claims this separation resulted from his desire to permanently relocate to Scotland to be near his family of origin, while Ms Norris wished to remain in Australia. I accept that this is his perspective of the cause of the separation, however I make no finding about Ms Norris’ perspective of the cause of the separation. Although separated, they remained living under one roof at the Wyndham Vale property, albeit in separate bedrooms.
Mr Howie’s perspective of this period was that he and Ms Norris had some dark times but remained on amicable terms. I accept that this was his sincerely held perspective but make no finding about Ms Norris’ perspective.
Mr Howie and Ms Norris discussed a family law settlement agreement. By some time in the period from late June to early August 2024, they had largely agreed on a separation of their assets.
Mr Howie gave evidence that they agreed to sell their jointly owned home in Wyndham Vale, and to use $100,000 from the proceeds of the sale to top up Ms Norris’ superannuation. They agreed that otherwise they would each retain their own superannuation, and there would be an even division of the remaining proceeds of sale. There remained an issue between them about whether or how to share Mr Howie’s long service entitlements. Mr Howie anticipated that Ms Norris’ family lawyers would prepare a document for their consideration and they would attempt to reach agreement on its contents. I accept Mr Howie’s evidence on these matters.
On 11 June 2024, Ms Norris made contact with Ms Calvert-McCredie, who was a long-term friend of around 30 years, as well as being a solicitor. In a subsequent message, on 29 June 2024, Ms Norris asked Ms Calvert-McCredie what she described as a ‘Random question’, namely: ‘Is a will kit from the post office adequate?’. Ms Calvert-McCredie’s response was that it depended on many factors. Later that day Ms Norris phoned Ms Calvert-McCredie and they spoke for about 1 hour 10 minutes.
In that conversation, Ms Norris told Ms Calvert-McCredie that:
(a) Ms Norris’ question about the post office will kit related to preparing her own will; and
(b) Mr Howie had permanently destroyed their 2005 wills, but that she was not upset by this as she wanted to make a new will since, given the breakdown of her marriage with Mr Howie, her previous will no longer reflected her needs and requirements.[2]
[2]Ms Calvert-McCredie was not cross-examined on this evidence. I accept that Ms Norris told her this, but do not find that Mr Howie destroyed the wills. See paragraph 16 of these reasons, above.
They then discussed the preparation of a new will. Ms Calvert-McCredie offered to prepare a will for Ms Norris to sign, which Ms Norris accepted. Ms Norris gave Ms Calvert-McCredie instructions which are set out in more detail later in these reasons for judgment.[3]
[3]See paragraph 63 below.
The next day, on 30 June 2024 Ms Norris sent an email to Ms Calvert-McCredie, as follows:
Hi Michelle
Thanks for doing this , I know how busy you are.
Heather Nesbitt Norris
12-11-6522 Butler Grove , Wyndham Vale, 3024
John David Howie 8-12-64
All assets divided evenly between 4 nieces
Nicole Leanne Weatherley 15-8-85
Cassandra Lea Lindsay 15-10-87
Danielle Kate Mather 2-4-88Samantha Jayde Norris 10-12-89
Thanks again
Heather
On 25 June 2024 Ms Norris engaged Coulter Legal in respect of property and financial matters following the breakdown of her marriage.
On 10 July 2024 Ms Calvert-McCredie phoned Ms Norris after receiving a message from Ms Norris that she had a new job, and they spoke for nearly 48 minutes. After a brief discussion for a few minutes about Ms Norris’ new job, they turned to discussing the will. Ms Calvert-McCredie informed Ms Norris that her will was ready for her to review and sign if in order. Ms Norris expressed concern about Mr Howie finding out about her new will if it was to be sent to her via email, so Ms Calvert-McCredie read the document to her word-for-word over the phone. Ms Calvert-McCredie was cross-examined about this conversation. I address the evidence about this conversation and make detailed findings about it later in these reasons .[4]
[4]See paragraphs 74 to 77 below.
On 20 July 2024 Ms Norris had a telephone conversation with her sister, Ms Magee, lasting 47 minutes. Ms Magee gave evidence that during the conversation Ms Norris referred to living with Mr Howie under the same roof but separated, mentioning that it was difficult and that she had changed the passwords to her accounts. Ms Magee also gave evidence that Ms Norris said she had made a new will and that she needed to organise getting it signed because her previous will was null and void and had been ripped up. Under cross-examination, she could not recall the exact words used to convey the information that the will was null and void and had been ripped up. I accept Ms Magee’s evidence that her sister, Ms Norris, said words to her on 20 July 2024 to the effect related by Ms Magee.
On Wednesday 31 July 2024 Ms Norris contacted Ms Calvert-McCredie by text asking if they could catch up for lunch on a Sunday, Ms Calvert-McCredie responded ‘Yes’ and suggested Ms Norris could sign the will, and they made an arrangement for lunch at Ms Calvert-McCredie’s home on Sunday 4 August 2024. I refer to these texts in more detail later in these reasons.
On 1 August 2024, Ms Norris had an anaphylactic reaction to antibiotics and was taken to hospital in an ambulance at about 9:45 pm that night.
Some time on Friday 2 August 2024 Ms Norris was brought home from hospital by her brother, Angus Norris. On that day, Ms Norris sent a text message to Ms Calvert-McCredie advising her that she had only just got out of hospital after suffering anaphylaxis and that she would ‘not… be able to make Sunday’ as she was going to ‘have to do absolutely nothing on the weekend’. Ms Calvert-McCredie noted on her file that the meeting for 4 August 2024 was cancelled and to follow up in two weeks.
Ms Magee and Ms Norris were in regular contact by text about Ms Norris’ health and job over this time, exchanging texts on 1, 2, 4, 5, and 7 August 2024. Ms Magee’s telephone records do not record any call with Ms Norris after 20 July 2024 until a ten minute call on 4 August 2024, which was followed by an 11 minute call on 6 August 2024. In her affidavit Ms Magee referred to Ms Norris telling her on 2 August and 3 August 2024 that Ms Norris needed to get her will signed. Although Ms Magee was imprecise and confused as to the dates on which the conversations occurred, I am satisfied that she was giving truthful evidence about the substance of the conversations. In other words, I am satisfied that Ms Norris told her that Ms Norris needed to get her will signed, but not on those precise dates. I find that one of two such conversations happened on one or both of 4 and 6 August 2024.
On 10 August 2024, Ms Norris sent a text message to Ms Magee reporting that she had had a massive asthma attack and could not control it. She was taken to hospital in an ambulance and diagnosed with Influenza A. I infer from a text to Ms Magee the next day that Ms Norris returned home from hospital on 11 August 2024. On that day, she sent a message to Ms Magee in response to an inquiry about how she was feeling, saying:
Pretty rough. Just doing everything I can. Fluids, rest,. Didn’t get much sleep. Going to have a long bath and see if that helps at all.
Ms Magee attempted to contact Ms Norris the following day, 12 August 2024, to no avail.
On 12 August 2024 Ms Norris began the day at home. Mr Howie gave evidence of finding Ms Norris unresponsive when he returned home from work on 12 August 2024 and resuscitating her. Ms Norris was taken in an ambulance to hospital. Ms Norris was placed in an induced coma at hospital.
Based on his evidence of the circumstances in which he found her at home on 12 August 2024, Mr Howie submits that Ms Norris attempted suicide. In one of her affidavits, in September 2024, Ms Lindsay deposed to a belief that Ms Norris attempted suicide, and there is also evidence from Ms Calvert-McCredie that Ms Lindsay told her that Ms Norris had attempted suicide. However, Ms Lindsay’s counsel said at the hearing that it is not conceded that Ms Norris died by her own hand, that the coroner has not yet made a finding on that issue, and that any conclusion on that issue would be speculation.
On 13 August 2024 an application (number MLC9980/2024) was filed in the name of Ms Norris in the Federal Circuit and Family Court of Australia (Family Court). The application sought to appoint Ms Lindsay as the deceased’s litigation guardian and sought property orders regarding the assets jointly held by Ms Norris and Mr Howie.
Ms Norris died on 19 August 2024.
An amended initiating application was filed in the Family Court proceeding on 15 September 2024, whereby Ms Lindsay would become the applicant, as legal personal representative of Ms Norris. The proceeding in the Family Court remains on foot.
At the time of her death, Ms Norris had been living for some time with multiple sclerosis. There was no formal evidence before me of a diagnosis. Neither party suggested that this had any particular relevance to the case.
Ms Norris’ death certificate records her as ‘married’. Her parents predeceased her. She is survived by five siblings. Ms Lindsay’s evidence is that Ms Norris left real estate in Victoria to the value of $310,000.00 and personal assets in Victoria to the value of $233,407.00. Mr Howie’s evidence is that Ms Norris left real estate in Victoria to the value of $620,000.00.
Procedural context
This matter before me consists of three proceedings.
The first is an application brought by Ms Lindsay in September 2024 in proceeding S PRB 2024 19293 for a limited grant by the Court of letters of administration ad litem of Ms Norris’ estate, relating to Ms Lindsay’s attempt to represent Ms Norris in the Family Court proceeding.
The second is an application brought by Mr Howie in October 2024 in proceeding S PRB 2024 22067 for the full grant of letters of administration of Ms Norris’ estate upon intestacy, in which Ms Lindsay has filed and caveat and grounds of objection.
The third proceeding, S PRB 2024 23208, was begun by Ms Lindsay in November 2024 and is an application for a full grant of probate of the informal will document, in which Mr Howie has in turn filed a caveat and opposes the grant. Ms Lindsay started this proceeding following a directions hearing held on 1 November 2024. At the directions hearing I noted that the real issue in dispute was whether there should be probate of the alleged informal will, and that the issues in the other two proceedings were likely to be subsumed by the determination of that issue. The parties then admirably cooperated in bringing that issue before the Court at the hearing of the trial in the three proceedings on 25 November 2024.
My determination of proceeding S PRB 2024 23208 resolves the substantive issue in dispute between the parties in favour of Ms Lindsay and dispenses with the need for separate consideration of the other two proceedings.[5] The balance of these reasons explain my conclusion that probate should be granted to Ms Lindsay of the informal will document in proceeding S PRB 2024 23208.
[5]Ground 2 of Ms Lindsay’s caveator’s grounds of objection in S PRB 2024 22067 raised a question about whether Mr Howie would face a conflict in conducting the Family Court proceeding as Ms Norris’ personal representative. This issue was addressed by both parties during the hearing. However, because of my determination of proceeding S PRB 2024 23208, it is unnecessary to resolve it.
Questions for determination
There are two key issues for determination of proceeding S PRB 2024 23208:
(a) Did Ms Norris intend the informal will document, without any alterations, to be her last will?
(b) If so, did Ms Norris have testamentary capacity in forming that intention?
Applicable principles
Section 7 of the Wills Act prescribes the formalities for execution of a will. It relevantly provides:
7 How should a will be executed?
(1) A will is not valid unless—
(a) it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and
(b) the signature is made with the testator's intention of executing a will, whether or not the signature appears at the foot of the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other.
…
Where a will has not been executed in accordance with s 7, under s 9 the Court may dispense with the requirements of s 7 and admit an unexecuted document to probate as the will of a deceased person. It relevantly provides:
9 When may the Court dispense with requirements for execution or revocation?
(1) The Supreme Court may admit to probate as the will of a deceased person—
(a) a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b) a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act—
if the Court is satisfied that that person intended the document to be his or her will.
…
(3) In making a decision under subsection (1) or (2) the Court may have regard to—
(a) any evidence relating to the manner in which the document was executed; and
(b) any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
For an informal will to be admitted to probate, three criteria must be met:[6]
(a) there must be a ‘document’;
(b) the document must express or record the testamentary intentions of the deceased; and
(c) the document must have been intended by the deceased, without any alterations, to be his or her last will.
[6]Re Trethewey (2002) 4 VR 406, 408 [11] (Beach J); Equity Trustees Ltd v Levin [2004] VSC 203, [15] (Whelan J); Prucha v Standing [2011] VSC 90, [6] (Beach J); In the Will and Estate of Brian Bateman [2011] VSC 277, [42] (J Forrest J); Fast v Rockman [2013] VSC 18, [46] (Habersberger J); Re Besanko [2020] VSC 170, [30] (McMillan J); Re Larcombe [2022] VSC 741, [77] (McMillan J); Re Estate of Hirschfeld [2023] VSC 562, [19] (Daly AsJ).
The party seeking to rely on the informal will must prove the three criteria are met on the balance of probabilities. There is also authority that that party must establish to the Court’s satisfaction that the deceased had testamentary capacity, knew and approved of the contents of the document, and was free of any undue influence.[7] No presumption of testamentary capacity is made in the case of an informal will.[8] Because of ‘the nature of probate, the consequences of any findings that may be made and the inability to hear any evidence from the deceased’ as to her actual intentions, ‘the Court needs to evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw principle.’[9] According to the principles in Briginshaw v Briginshaw[10] and s 140 of the Evidence Act 2008 (Vic), the ‘cogency of the evidence necessary to discharge the onus will depend upon the circumstances of the case, as it always does’.[11]
[7]Re Larcombe [2022] VSC 741, [80] (McMillan J). McMillan J referred to those requirements as being additional to the criteria for dispensing under s 9 with the formalities required to make a will. However, those requirements may also properly be seen as elements of the requirement in s 9 of the Wills Act that the deceased intended the document to be their will. See Re Hancock; Rennie v The Whippet Association of Victoria Inc [2016] VSC 496, [18]-[19] (McMillan J).
[8]Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 174–175 [180]-[183] (Santamaria JA, Beach and Kyrou JJA agreeing).
[9]Fast v Rockman [2013] VSC 18, [48] (Habersberger J).
[10](1938) 60 CLR 336, 361-363 (Dixon J).
[11]Kantor v Vosahlo [2004] VSCA 235 [58] (Buchanan and Phillips JJA).
The first and second criteria were uncontentious in this case: there was no dispute that a ‘document’ purporting to be Ms Norris’ informal will exists, and the document recorded testamentary intentions.
It is the third criterion — whether Ms Norris intended the document to be her last will — that is in issue.[12]
[12]Mr Howie’s written submissions filed 18 November 2024, [14], [18].
In Equity Trustees v Levin Whelan J noted that the Court will not be satisfied if a document is intended to be a personal memorandum, a note of intended instructions, a draft will or a ‘trial run’.[13]
[13][2004] VSC 203, [15].
In Re Application of Brown; Estate of Springfield Powell J observed in that in considering the facts of the case the greater the departure from the requirements of s 7 the more difficult it is for the Court to be satisfied that the deceased intended a document to be their will.[14]
[14](1991) 23 NSWLR 535, 539–540.
In Estate of Peter Brock Hollingworth J said that in some circumstances the deceased’s awareness regarding formalities may influence how the Court views their intention regarding a document:[15]
In appropriate circumstances, an inference may be drawn that the deceased was aware of the formalities required for a will. This may have an effect on whether the court is prepared to accept that the deceased intended the informal document to be his or her will.
[15][2007] VSC 415, [34].
However, the Court has been satisfied that a document is intended by a deceased person to be their final will in circumstances that substantially depart from the requirements of s 7. In Sultanova v Bolganow,[16] Beach and Niall JJA and Kennedy AJA noted that the deceased had not seen the new will and neither was it read to her word-for-word when she gave her instructions. However, this did not preclude s 9 being satisfied as issues of intention are to be decided on the specific facts and context of each case. Their Honours referred in this regard to Fast v Rockman,[17] in which Habersberger J said that there was no absolute rule requiring that a person is to have seen a document or had it read to them in order for a Court to be satisfied that the person intended that document to be their will.
[16][2019] VSCA 245, [69]–[70].
[17][2013] VSC 18, [66].
Consideration
Evidence and findings on intention
Did Ms Norris intend the informal will document, without any alterations, to be her last will?
Ms Norris had two telephone conversations with Ms Calvert-McCredie which are central to resolving this question. As noted in my contextual findings of fact, above, the first was on 29 June 2024, and the second was on 10 July 2024.
I turn first to the conversation between Ms Calvert-McCredie and Ms Norris on 29 June 2024.
Ms Calvert-McCredie gave evidence that she received detailed instructions from Ms Norris about her intended will during that conversation, as follows:
a. Everything Heather owned was to be left to her four (4) nieces equally and she provided their names. I requested each of the girl's names to be provided to me in writing by way of text, email or Facebook Messenger. At 5.55pm on Saturday, 29 June 2024, I forwarded Heather my work email by text message.
b. John was not to receive any of Heather's assets or personal belongings and Heather provided me with John's full name for inclusion in the Will. We discussed that her not providing for John in her Will should be set out and explained in the Will for clarity purposes. Heather confirmed that she did not want John to receive anything that had not been agreed from a family law perspective. Heather provided me with the name of the firm that she had been instructing in relation to her marriage breakdown and the family law issues. I believe that Heather provided the family lawyers details during the 29 June 2024 telephone call between us, however I did not make any notes that confirm the date this information was provided to me;
c. The Will was to provide for the portion of Heather's estate that was unable to be taken by one of Heather's four (4) nieces to go to the niece's children, in equal shares if more than one, and to be held in trust until the child attained the age of 21 years. We discussed more complex trusts for the children that may not have attained the age of 21 years, but as Heather believed that she did not have a Will, she verbally instructed me to prepare the Will with simple trust provisions so that the Will could be finalised and signed as soon as it was available;
d. The Executor and Trustee was to be Cassandra as Heather believed that she was equipped with the skills and was best suited to perform the role. Heather and I discussed adding an additional person to act as Executor and Trustee with Cassandra or in substitution and Heather clearly stated that Cassandra was extremely reliable, family focused and was the most competent person for her to choose. Heather did not provide further written instructions setting out her verbal instructions regarding the Executor and Trustee to be appointed in her Will. During our discussion Heather commented that I would have Cassandra's full name from the names of nieces being provided. I did not press Heather to confirm further the name of the Executor in writing as by this time I could hear in her voice that she was becoming quite tired; and
e. To include the usual powers for Executors and Trustees, together with any other usual provisions I thought should be included.
I accept Ms Calvert-McCredie’s evidence of her conversation with Ms Norris on 29 June 2024. In particular, I find that, during their telephone conversation on 29 June 2024, Ms Norris gave Ms Calvert-McCredie the following key instructions and Ms Calvert-McCredie responded as follows:
(a) All Ms Norris’ assets and belongings were to be left to her four nieces.
(b) Ms Calvert-McCredie requested that each of the nieces’ names be provided to her in writing.
(c) Mr Howie was not to receive any of Ms Norris’ assets or personal belongings.
(d) Ms Calvert-McCredie suggested that this should be set out and explained in the will for clarity.
(e) Any portion of Ms Norris’ estate that was unable to be taken by one of her nieces was to be passed on to the niece’s children, in equal shares if there was more than one.
(f) Ms Lindsay was to be executor and trustee under the will.
(g) The usual power for executors and trustees and any other usual provisions were also to be included.
Ms Calvert-McCredie took notes of her discussion with Ms Norris on 29 June 2024. They include the following lines regarding Ms Norris’ consultations with her family lawyers, referred to as ‘Fll’:
ppty [property] settlement relevant - H to further discuss with FLL - home owned No mtge
…
property settlement agreed – John said he would still get everything if H died – H told him No. – told H to -? Discuss with Fll – appears odd – make sure documented properly. fll need to assist/advise.
During cross-examination of Ms Calvert-McCredie the following exchange occurred in relation to the above notes:
… so in your affidavit it was Heather’s instructions to you, wasn’t it, because you deposed to this, that Heather didn’t want John to get anything that wasn’t already agreed on in a family property settlement?
---Correct.
Right. So your notes are consistent with Heather seeking family law advice about what John was to get, and I put it to you that that family law advice would then determine what Heather would do with her will?
---Possibly.
And the property settlement you say relevant. If I could just go back to the other page. Property settlement - just go a bit further up. There we are. About one, two, three, four, five points down from that page, “Property settlement relevant, H to further discuss with FLL, home owned no mortgage”. So that’s consistent, isn’t it, with Heather telling you that she didn’t want John to get anything under her will that was not already dealt with in the family law proceedings?
---That was not being dealt with under the family law. Whatever was going on in the family law.
Ms Calvert-McCredie also said she had not consulted with Ms Norris’ family lawyers.
In closing submissions, counsel for Mr Howie said that the above evidence about the advice from the family lawyers weighed against any finding that Ms Norris had a settled intention that the informal will document would be her will, because the contents of her will were conditional on the advice she was to receive from the family lawyers.
It is true that Ms Calvert-McCredie was asked whether she agreed with the suggestion that the family lawyers’ advice would determine what Ms Norris would do with her will, and Ms Calvert-McCredie answered ‘possibly’. That was a matter of opinion on her part; it was not her evidence that Ms Norris said that. That opinion is also in tension with Ms Calvert-McCredie’s evidence: Ms Norris did not want Mr Howie to get anything under her will that was not already dealt with in the family law proceedings.
My interpretation of the evidence as a whole is that Ms Norris intended the family law process to be the sole means by which to separate her property from Mr Howie’s, and anything remaining to her as a result of that process would then be subject to her will.
Logically speaking, it follows that Ms Norris did not regard the informal will document as conditional on the outcome of the family law process or any advice from her family lawyers.
This conclusion is reinforced by the events after that discussion on 29 June 2024. On 30 June 2024 Ms Norris sent an email to Ms Calvert-McCredie confirming her instructions that her property should all go to her four nieces,[18] and on 10 July 2024 she confirmed that she was happy with the informal will document as read to her and had nothing to add to it. On 31 July Ms Norris and Ms Calvert-McCredie exchanged texts about signing the will. On none of these occasions did Ms Norris mention a need to obtain family law advice before finalising her will.
[18]Ms Calvert-McCredie agreed with a proposition put to her in cross-examination that Ms Norris’ email did not confirm her instructions, but I am not satisfied that Ms Calvert-McCredie’s answer was given with the full body of the email in mind: the email clearly did confirm a key part of those instructions.
Ms Calvert-McCredie prepared the informal will document consistently with the instructions she received on 29 June 2024, and the instructions in Ms Norris’ email on 30 June 2024.
As also noted in my contextual findings, above, she and Ms Norris had a further telephone call on 10 July 2024. I am satisfied that, during that conversation, Ms Calvert-McCredie read the informal will document out to Ms Norris paragraph by paragraph and word-for-word. At one point, Ms Norris ‘asked for clarification of what happened if one of her nieces had passed leaving children, and how that trust worked’. Ms Calvert-McCredie responded and went on reading.
Under cross-examination, Ms Calvert-McCredie gave evidence that, after she had finished reading the informal will document out to Ms Norris, she asked Ms Norris ‘if she was happy, did she want any further changes?’. She also gave evidence that Ms Norris said, ‘I’m happy with that will’, and that Ms Norris ‘confirmed that she could not think of anything else that she wanted to include in her Will’. With regard to this evidence, I am satisfied that:
(a) Ms Calvert-McCredie asked Ms Norris either or both of two questions about the will, to the following effect: ‘Are you happy?’ and ‘Do you want any further changes?’
(b) Ms Norris responded with words to the effect that she was happy with the will and could not think of anything else she wanted to include.
I am satisfied that this was a clear statement by Ms Norris that she intended the informal will document, as read out to her on 10 July 2024, to be her will.
On 10 July 2024, I infer that the informal will document existed only as a digital document, and was read out by Ms Calvert-McCredie from a screen. However, this does not matter to my conclusion that Ms Norris intended the informal will document to be her final will. Mr Howie’s counsel did not suggest that there could have been any material change made to the text of the document between when Ms Calvert-McCredie read it out to Ms Norris, and the time when Ms Calvert-McCredie printed it out in paper form and bound it. Ms Calvert-McCredie did this at some time between 31 July and 2 August 2024. One of the exhibits to Ms McCredie’s affidavit is verified by her a true copy of the informal will document as printed and bound at that time. On this basis, I am satisfied that the informal will document, as it appears in the evidence before me, was intended by Ms Norris to be her final will.
Ms Calvert-McCredie’s evidence is consistent with the factual context, which was that Ms Norris’ separated from Mr Howie at this time and was consulting with family lawyers about an appropriate arrangement for separating her property from his. It is also to some extent corroborated by indirect evidence from Ms Norris’ sister, Ms Magee, and by records of contemporaneous messages.
As mentioned in my contextual findings above, Ms Magee gave evidence of conversations in which Ms Norris spoke of her will and of having to sign it. I am satisfied that Ms Norris expressed such intentions on 20 July 2024, and on one or both of 4 August 2024 and 6 August 2024.
The evidence before me also included records of texts between Ms Calvert-McCredie and Ms Norris on 31 July 2024 that tend to corroborate the other available evidence of Ms Norris having an intention to sign the informal will document. On that date, Ms Calvert-McCredie’s text inviting Ms Norris to lunch at her home on a Sunday suggested ‘& we can sign your Will?’, to which Ms Norris responded, ‘Sounds good’ and ‘You let me know when you are free’. Soon after, Ms Calvert-McCredie responded, ‘This weekend?’, and Ms Norris responded affirmatively, with a ‘Yes’ and a ‘thumbs up’ emoji, followed by another ‘thumbs up’ emoji.
I would be cautious about ascribing weight to this exchange of texts on 31 July 2024 if that was all the evidence of intention available to me, but of course it is only a small part of the overall evidence on intention. Seen as part of the series of communications with Ms Calvert-McCredie to which I have referred, this exchange of texts on 31 July 2024 supports the conclusion that Ms Norris intended the informal will document to be her last will.
Mr Howie gave evidence that he was ‘unaware that Heather had engaged any firm to draft a will, and I was not aware of her intentions to leave the whole of her estate to her nieces or appoint any of her nieces as executors of her estate given the conversations had during our relationship where she wanted to leave everything to the Werribee Open Range Zoo and small bequests to her nieces’.
I accept that this was Mr Howie’s subjective state of knowledge. However, that does not affect my conclusion that Ms Norris intended the informal will document to be her will. I am satisfied that Ms Norris did not confide in Mr Howie about the informal will document, because she formed her intention to make a new will in that form in circumstances where her marriage to Mr Howie had broken down.
There is no evidence of Ms Norris’ intentions in the last few weeks of her life that I regard as being in any way inconsistent with the terms of the informal will document and her intention to make a will in that form.
Mr Howie argued that Ms Norris took her own life, and that I should therefore conclude that she did not intend that the informal will document would be her will, or at least changed her mind on that topic. Mr Howie asserted that ‘Heather was fully aware that she was committing suicide in the knowledge that she did not have a final valid Will in place’.[19] He pointed to her knowledge of the preparation of wills and of intestacy. He submitted that I should conclude that she knew that this would mean her estate would go to Mr Howie.[20] On behalf of Mr Howie it was submitted that I could not be satisfied that the deceased had the intention that the informal will document be adopted as her will. It was submitted that if she had so intended, she would not have taken her life before formally executing the will.
[19]Additional affidavit of John David Howie in support of letters of administration on intestacy dated 24 October 2024, [71(h)].
[20]Additional affidavit of John David Howie in support of letters of administration on intestacy dated 24 October 2024, [85] (disallowed as evidence and treated as a submission).
I am not persuaded by any of these arguments. Section 9 and the authorities do not require the Court to be satisfied of the deceased’s state of mind at all times up to and including her death; they relevantly only require that I be satisfied that she intended to adopt the informal will document as her last will. In my view, this will be so if at some time she formed that intention, provided that she did not materially change her mind before her death. The evidence of Ms Calvert-McCredie satisfies me that the deceased intended to make a will in the form of the informal will document. The evidence of Ms Magee is consistent with that. The evidence of Mr Howie does not provide any reason for doubting that conclusion: he was simply not privy to Ms Norris’ intention to make her new will. Ms Norris’ intention to make her will in the form of the informal will document dated from 10 July 2024. There is no evidence that Ms Norris changed her mind with regard to her will at any time before her death.
I simply cannot speculate about Ms Norris’ state of mind on 12 August 2024, and I will not do so.
Ms Lindsay did not concede that Ms Norris took her own life and informed me that there is no formal finding to that effect.
I do not have sufficient facts before me to make a finding on whether Ms Norris died by suicide.
Even if I were to assume that she did, that would not affect my finding that she intended the informal will document to be her will. I would remain positively satisfied that Ms Norris had that intention on 10 July 2024, and that she also had that intention on at least two occasions afterwards (on 31 July 2024 when exchanging text messages with Ms Calvert-McCredie, and on 4 and 6 August 2024 in one or both conversations with Ms Magee).
I was taken to no evidence of Ms Norris saying anything about a change of mind, and I would not infer a change of mind purely on the basis of Ms Norris’ alleged suicide. If Ms Norris did take her own life, that might have been for any number of reasons, and I cannot speculate about what they might have been. There is no evidence before me that, following her conversation with Ms Magee on about 4 August 2024, Ms Norris ever turned her mind to the informal will document again.
In short, there is no basis for a finding that Ms Norris changed her mind about her will at any time after her conversation with Ms Calvert-McCredie on 10 July 2024.
For these reasons, I am positively satisfied that — on 10 July 2024, and again on 31 July 2024 — Ms Norris intended the informal will document to be her will. This suffices to meet the test in s 9 of the Wills Act, and there is no evidence that she changed her mind afterwards.
Evidence and finding on testamentary capacity
As already noted, Ms Lindsay must also establish that Ms Norris had testamentary capacity, knew and approved of the contents of the informal will document, and was free of any undue influence.[21] In my view, these requirements may properly be regarded as matters that affect whether Ms Norris can be said to have intended the informal will document to be her will, for the purposes of s 9 of the Wills Act. Nevertheless, I address them now, under a separate heading.
[21]Re Larcombe [2022] VSC 741, [80]. These requirements may properly be seen as elements of establishing that the deceased intended the document to be their will.
On the evidence before me, no suggestion of any undue influence arises. Ms Calvert-McCredie is a solicitor and had no interest in the dispositions made in the informal will document. Mr Howie has made no suggestion of any undue influence against anyone.
As to whether Ms Norris knew of and approved the contents of the informal will document: the evidence I have addressed under the preceding heading demonstrates that she did.
Only one issue remains: did Ms Norris have testamentary capacity when she formed her intention that the informal will document would be her final will?
Ms Norris was assessed by her medical practitioner, Dr Vidhula Mereddy (Dr Mereddy), who had been treating her from mid-2021 until she died in 2024, as having full testamentary capacity at the date of making the informal will. Dr Mereddy was not cross-examined.
Mr Howie submitted that there is no contemporaneous medical evidence of Ms Norris’ capacity leading up to her providing instructions for her will to Ms Calvert-McCredie or soon thereafter,[22] and that the evidence of Dr Mereddy is insufficient to establish Ms Norris’ testamentary capacity, noting that the Briginshaw principle applies.[23]
[22]Mr Howie’s written submissions filed 18 November 2024, [32].
[23]Ibid [33].
It is true that Dr Mereddy’s affidavit is not contemporaneous, in the sense that it was made after Ms Norris’ death. There is also no evidence of whether Dr Mereddy had a consultation with Ms Norris in July or August 2024, and I will therefore assume she did not. On the other hand, Dr Mereddy was Ms Norris’s treating doctor, putting her in a special position to be able to opine on Ms Norris’ testamentary capacity. Dr Mereddy deposed that Ms Norris ‘was a patient of mine from 16 April 2021 until her death on 19 August 2024’. Dr Mereddy reviewed Ms Norris’ medical records. Dr Mereddy accurately stated the test for testamentary capacity, including the requirement that Ms Norris was ‘not suffering from a mental illness or disorder that would have impacted on her capacity to make a will’. Dr Mereddy’s review led her to form the opinion that Ms Norris ‘would have had full testamentary capacity at the date of making her will’.
I give this evidence considerable weight.
I also give considerable weight to the available evidence as to events in the period 29 June to 31 July 2024, already addressed in the course of these reasons. The evidence of Ms Norris’ stated intentions, including the detailed nature of her instructions to Ms Calvert-McCredie, lead me to conclude she had testamentary capacity.
I have considered whether Ms Norris’ testamentary capacity could be doubted if I were to accept that she took her own life.
This issue may be swiftly determined. First, I am not prepared to find that she took her own life, so the issue does not arise. Secondly, even if I were to accept that Ms Norris took her own life, this fact alone would not, without more, lead me to doubt her testamentary capacity. Attempts at suicide are not to be treated as synonymous with mental illness, still less with a lack of testamentary capacity.
On the basis of Dr Mereddy’s evidence and the evidence of Ms Norris’ preparation of her will in the period 29 June to 31 July 2024, I find that Ms Norris had full testamentary capacity at the time the informal will was read to her on 10 July 2024 and when it was printed out and bound, which occurred at some time between 31 July 2024 and 2 August 2024.
Conclusion
For these reasons, the test in s 9 of the Wills Act is made out on the evidence before me. I will admit the informal will document to probate. I will hear the parties on the appropriate orders.
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