Re Phillipson

[2020] VSC 857

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2019 15684

LAUREN JANE PHILLIPSON	Plaintiff
v
DARREN WAYNE PHILLIPSON	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	16 December 2020
CASE MAY BE CITED AS:	Re Phillipson
MEDIUM NEUTRAL CITATION:	[2020] VSC 857

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WILLS AND ESTATES – Informal will – Where informal will was unsigned and undated – Whether deceased intended the informal will to be his will – Informal codicil – Whether deceased intended informal document to be a codicil to his will – Whether deceased had testamentary capacity– Application denied – Wills Act 1997 (Vic) s 9 – Banks v Goodfellow (1870) LR 5 QB 549; Veall v Veall (2015) 46 VR 123.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr SGR Wilmoth	Bruce Caldwell & Associates
For the Defendant	Ms K Halcomb	TBA Law

HER HONOUR:

Introduction

1. Wayne Thomas Phillipson (‘the deceased’) died on 18 July 2019 survived by his five children, namely: Lauren Jane Phillipson (‘the plaintiff’), Darren Wayne Phillipson (‘the defendant’), Joanne Susan Pavich (‘Joanne’), Glenn Andrew Phillipson (‘Glenn’) and Leeanne Gaye Phillipson (‘Leeanne’).

1. The deceased left a will executed in compliance with s 7 of the Wills Act 1997 (‘the Act’) dated 11 January 2007 (‘the 2007 will’), an unsigned document purporting to be the last will of the deceased, headed on the last page by the year 2018 (‘the unsigned document’), and a handwritten note containing further testamentary dispositions dated 25 March 2018 (‘the handwritten note’).

1. The 2007 will appoints the defendant and Kenneth Smith (‘Mr Smith’), a solicitor, as the executors of the estate.  As the deceased’s wife had predeceased him on 28 May 2017, according to the terms of the 2007 will, the residue of the deceased’s estate was to be divided equally between the plaintiff, the defendant, Joanne and Glenn, subject to a gift of $1,000 to Leeanne.

1. The unsigned document is typed, printed and unsigned.  It is stapled to an invoice and covering letter dated 17 April 2018 from Ken Smith & Associates (‘the deceased’s solicitors’), which contains, among other things, a direction to ‘peruse the Will carefully and if same is in order, kindly contact this office to make an appointment to execute the original Will’.  The unsigned document appoints the plaintiff as the executor of the estate and does not make any changes to the dispositions of the estate from the 2007 will.

1. According to the plaintiff, the handwritten note was written by the deceased at a family meeting on 25 March 2018.  It expresses on its face the deceased’s purported intention to add to his will to make provision for the plaintiff to remain in his home until such time that she chooses to leave or purchases her own home, as well as to make her executor of his will.

The proceeding

1. The plaintiff advertised her intention to make an application for a…