Re Prien

Case [2019] VSC 47 13 February 2019

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

TRUSTS, EQUITY & PROBATE LIST

S PRB 2017 11547

IN THE MATTER of the will and informal codicil of SUZANNE ROSALYN PRIEN, deceased

SASHA KIRZANNE PRIEN

Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2018
DATE OF JUDGMENT:	13 February 2019
CASE MAY BE CITED AS:	Re Prien
MEDIUM NEUTRAL CITATION:	[2019] VSC 47

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WILLS — Informal codicil — Where deceased signed attendant notes taken by solicitor — Where deceased terminally ill — Whether deceased had testamentary capacity — Whether deceased had knowledge and approved of the contents of the informal codicil — Whether deceased intended informal codicil to govern how her estate was to be distributed — Wills Act 1997, s 7, s 9.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C McOmish	David Davis & Associates
For the Contradictors	Ms U Stanisich	Ms S Lyttleton

HER HONOUR:

Introduction

Suzanne Prien (‘the deceased’) died on 24 February 2016 aged 64 years. She was survived by her daughter, Sasha Prien (‘the plaintiff’), her son, Simon Prien (‘Simon’), and her former spouse, Percival Kirk Prien (‘Kirk’).

The deceased’s estate is valued at $927,285, primarily consisting of a house in Marysville (‘the Marysville property’), compensation from the Murrindindi–Marysville Black Saturday Bushfire Class Action (‘the Class Action’), investment funds and chattels.

Application

The plaintiff seeks a grant of probate of the deceased’s will dated 29 July 2009 and an informal codicil dated 15 February 2016. The informal codicil is said to consist of two pages of attendance notes (‘the notes’) written by the deceased’s solicitor in the days before the deceased’s death.

It is not in dispute that the will was duly executed in accordance with s 7 of the Wills Act 1997 (‘the Act’). The only issue for resolution is whether the notes should be admitted to probate as an informal codicil to the will, pursuant to s 9 of the Act.

Background

In 1996, the deceased was diagnosed with breast cancer. After a period of treatment and remission, metastatic bone cancer was diagnosed in 2008. Late in the same year, the deceased and Kirk divorced, albeit they remained very good friends.

While in remission in 2008, the deceased instructed her solicitor, Mr David Davis, to draft her will, which was executed on 17 December 2008 (‘the penultimate will’).

In February 2009, the deceased’s home in Marysville was destroyed in the Black Saturday bushfires, during which the deceased suffered smoke inhalation and heat exposure. The deceased lost all of her belongings in the fire, including the penultimate will. The Marysville property was subsequently rebuilt.

In 2009, the deceased and Simon became estranged and had no contact from that time onwards.

The will

In 2009, the deceased instructed Mr Davis in relation to ‘reinstating’ her will. Mr Davis drafted a new will in the same terms as the penultimate will, save that the date differed. On 29 July 2009, the deceased executed the…

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 Prien

Details

AGLC: Re Prien [2019] VSC 47
Case: [2019] VSC 47
Decision Date: 13 February 2019

CaseChat Overview and Summary

In the case of Re Prien, the dispute arose from the estate of a deceased individual. The central issue was whether an informal codicil, purportedly executed by the deceased, was valid and enforceable under the Wills Act 1997. The deceased, who was terminally ill, had signed some notes taken by a solicitor. The primary legal questions for the court to determine were whether the deceased had testamentary capacity at the time of signing, if she was aware of and approved the content of the informal codicil, and whether she intended this document to dictate the distribution of her estate.

The court examined the circumstances under which the deceased signed the notes, considering her medical condition and mental state. It assessed whether the deceased's actions and the circumstances surrounding the signing of the notes satisfied the legal requirements for a valid informal codicil under the Wills Act 1997. The court found that the deceased lacked the necessary testamentary capacity and did not have knowledge or approval of the contents of the informal codicil. Consequently, the court ruled that the informal codicil was not valid.

As a result of this determination, the court declared that the informal codicil was not binding and did not alter the distribution of the deceased's estate as per her formal will. The court's decision underscored the importance of testamentary capacity and the clear expression of intent in the creation of a valid will or codicil. The final orders confirmed that the estate would be distributed according to the formal will executed by the deceased.

Orders