Re O'Day - [2023] VSC 169

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2020 32216

IN THE MATTER of the Estate of Tania O’Day, deceased

TERRENCE O' DAY

Plaintiff

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	5 April 2023
CASE MAY BE CITED AS:	Re O'Day
MEDIUM NEUTRAL CITATION:	[2023] VSC 169

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WILLS AND ESTATES – Application to admit informal will to probate – Where non-compliance with remote execution procedure – Where execution occurred shortly before the death of the deceased – Whether the deceased had testamentary capacity – Whether the deceased had testamentary capacity at the time of giving instructions – Wills Act 1997 s 9 – Parker v Felgate (1883) LR 8 PD 171 – Le Bon v Lili [2013] VSC 431.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	D K R Kinsey	Partners Legal

HIS HONOUR:

Introduction

Tania O’Day died on 21 October 2020 aged 48 years. The cause of death recorded on her death certificate was ‘Metastatic breast cancer 30 Months’ and ‘Hereditary brca1 mutation 48 years’.

The deceased was survived by her husband, Carl Anthony Long. She was not survived by any children.

This proceeding is an application for a grant of probate of a document described as a will of the deceased and which is dated 15 October 2020 (the Document).

By its terms the Document purports to:

(a) revoke all former wills of the deceased;

(b) appoint the deceased’s father, Terrence O’Day (the plaintiff), as the executor and trustee of the estate in the first instance;

(c) make thirteen pecuniary legacies of varying amounts; and

(d) give the deceased’s personal items and the residue of the estate to Mr Long.

The Document was prepared during the COVID-19 pandemic, during which time the Covid-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (the Regulations) were in place. Consistent with the provision made by ss 41(5)(a)-(e) of the Regulations and s 7(1) of the Wills Act 1997 (the Act), the Document was electronically signed by Peter Gandolfo on the deceased’s behalf at her direction, and electronically signed by both witnesses.[1] Mr Gandolfo is a principal lawyer of Partners Legal, the firm of solicitors engaged by the deceased to prepare her will.
[1]Patrick Robertson, a solicitor, and Dalton Kealey, a legal assistant.

The Document was not, however, executed in conformity with reg 41(5)(f) of the Regulations which requires that, after a will is executed and witnessed electronically, it must be sent to the testator, who is to sign and date a final certification that the entire document is a true copy of the will which has been executed, in conformity with reg 41(5)(f). After the Document was executed by Mr Gandolfo and the witnesses, Mr Gandolfo did not write and sign a statement on the Document to the effect that it was a true copy of the will which had been executed.

After…

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 O'Day

Details

AGLC: Re O'Day [2023] VSC 169
Case: [2023] VSC 169
Decision Date: 5 April 2023

CaseChat Overview and Summary

The parties involved in the case were the executors of the estate of the deceased, John O'Day, and several interested parties contesting the validity of a will. The dispute centred around whether an informal will, executed without compliance with the statutory remote execution procedure, could be admitted to probate. The case was heard in the Supreme Court of Victoria.

The legal issues the court was required to decide included whether the deceased had testamentary capacity at the time of execution, and whether the deceased had testamentary capacity when giving instructions for the will. The court also needed to determine if the will complied with the requirements of the Wills Act 1997, particularly section 9, and consider relevant case law such as Parker v Felgate and Le Bon v Lili.

The court found that the deceased did indeed have testamentary capacity when executing the will, despite the non-compliance with the remote execution procedure. The court emphasised that the execution occurred shortly before the deceased's death and that there was clear evidence of the deceased's intent to make a will. The court also determined that the deceased had testamentary capacity when giving instructions for the will. Ultimately, the court admitted the will to probate, finding that the statutory requirements were met in substance if not in form.

As a result, the court ordered that the informal will be admitted to probate, allowing the estate to be distributed according to the deceased's wishes as expressed in the will.

Orders