Re Pearson (dec'd)

[2008] VSC 582

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

Probate No. 108 of 2008

IN THE MATTER of the Will of DAVID ALLEN PEARSON deceased

BERNADETTE MARY PEARSON Applicant

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 DECEMBER 2008
DATE OF JUDGMENT:	16 DECEMBER 2008
CASE MAY BE CITED AS:	WILL OF PEARSON; APPLICATION BY B PEARSON
MEDIUM NEUTRAL CITATION:	[2008] VSC 582

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WILL – Whether children should be separately represented – Whether unsigned will should be admitted to probate – Evidence of conduct of the deceased to adopt the will – Rapid deterioration of the deceased’s condition before will could be executed – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P. Bravender-Coyle	Campbell & Shaw

HIS HONOUR:

1. In my opinion this is not a matter in which it is appropriate to require separate representation by or on behalf of the children of the deceased, David Allen Pearson, and his wife, the plaintiff, Bernadette Mary Pearson. 

1. The affidavit in support of the application to have the deceased's unsigned will admitted to probate is sworn by Bernadette Pearson, the plaintiff, on 3 September 2008. 

1. In that affidavit, she swears to the fact that she and her late husband attended at the office of the solicitors presently acting for her on Tuesday 16 October 2007.  During the course of the attendance at that office, her husband provided instructions to the solicitors for preparation of his will. 

1. On the following Friday 19 October, the deceased received in the mail a draft of the will prepared in accordance with the instructions given on the previous Tuesday. 

1. The affidavit of Mrs Pearson goes on to state that the day after receipt of the draft will, that is Saturday 20 October 2007, the deceased read with her the draft will and, according to her, read it carefully.  On completion of his reading, he said that everything seemed to be in order and an agreement was made with his wife to return to the solicitor's office the following Monday 22 October, for the purpose of signing the will. 

1. The further attendance did not take place.  As deposed to in her affidavit, Mrs Pearson explains that fact by reference to a deterioration in her husband's health.  The deterioration was such that rather than attend the solicitor's office on Monday 22 October, she and her husband went to the Alfred hospital where they sought the assistance of her husband's radio‑oncologist.  The result was the deceased was admitted to hospital where his condition deteriorated rapidly and he died on Wednesday 24 October 2007, without having signed the will. 

1. There is no reason for me to doubt the facts sworn to by the plaintiff in the affidavit to which I have referred. 

1. In a further affidavit, the plaintiff swears to the fact that she and her husband had three children, all of whom remain alive and whose ages are respectively now 15, 13 and 11.  Each of the children continue to live with their mother who has the custody of them and in whose full‑time care they are. 

1. Another relevant fact sworn to in the second affidavit of Mrs Pearson, which was sworn on 15 December this year, is that the estate of her husband consists of real property valued at $420,000 and personal property valued in total in the sum of some $2,700.  Against that the deceased had liabilities amounting to some $327,000. 

1. If those figures are correct, and I have no reason to doubt that they are, the estate is a small estate and one not readily able to bear legal costs.  It is therefore of importance that the costs of any proceedings be kept in proportion, so far as possible, with the value of the estate. 

1. In my opinion, given that there is no reason to doubt the facts to which I have referred, it would not be in the interests of the estate or the children were they to be separately represented.  I will accordingly order that subject to further order, the children of the deceased, David Allen Pearson, not be separately represented in this proceeding. 

(Submissions re admission of draft will)

1. In my opinion this is a proper instance for the admission of a draft will to probate despite the fact that it has not been duly attested, indeed, despite the fact that it has not been signed by the testator, nor, of course, witnessed in accordance with the provisions of the Wills Act. 

1. I have already recounted the relevant facts, having done so when giving my reasons for ruling that there was no need, in this case, for separate representation of the children of the deceased and his wife the plaintiff, Bernadette Pearson.

1. Those facts, in my opinion, clearly point to the appropriateness of an order that the unexecuted document be admitted to probate as the last will and testament of the deceased, David Allen Pearson.  I will so order.

1. I direct that the Registrar of Probates admit to probate as the last will and testament of the deceased David Allen Pearson the document marked "B" and referred to in the affidavit of Bernadette Mary Pearson sworn 3 September 2008.

(Submissions re costs)

1. I will order that the costs of this application be paid out of the estate of the deceased. 

1. I formally direct that the document marked "B" referred to in the affidavit of Bernadette Mary Pearson sworn 3 September 2008 be placed on the court file.

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