JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	16 May 2018
CASE MAY BE CITED AS:	Re Rattle
MEDIUM NEUTRAL CITATION:	[2018] VSC 249

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WILLS AND ESTATES — Application for grant of probate of informal will — Whether testator intended informal document to be will — Standard of proof — Fast v Rockman[2013] VSC 18 — Briginshaw v Briginshaw (1938) 60 CLR 336 — Wills Act 1997, ss 7 and 9.

WILLS AND ESTATES — Principal beneficiary of estate convicted of murder of deceased — Whether forfeiture rule applies — Troja v Troja (1994) 33 NSWLR 269 — Gonzales v Claridades (2003) 58 NSWLR 211 — Edwards v State Trustees Ltd [2016] VSCA 28.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S F McNab	Aitken Partners
Court Appointed Contradictor	Ms U Stanisich	Ms Ines Kallweit

HER HONOUR:

Introduction

Stuart Charles Rattle died on 9 December 2013 (‘the deceased’). At the date of death, the deceased’s assets were valued at $1,246,058 and the liabilities amounted to $192,998.

The deceased’s domestic partner, Michael Anthony O’Neill (‘Mr O’Neill’), was subsequently convicted of the deceased’s murder and of arson, as Mr O’Neill had also set fire to their South Yarra property. He is currently serving a term of 18 years’ imprisonment for these crimes.[1]
[1]DPP v O’Neill [2015] VSC 25 (11 February 2015).

On 23 January 2014, a grant of letters of administration ad colligendum bona was made to the deceased’s sister, Katrina Maree Lewin, for the purpose of enabling the sale of the deceased’s property jointly-owned with Mr O’Neill in Musk, Victoria. Pursuant to further orders made on 4 April 2014, Ms Lewin sold the property and the proceeds of sale were held on trust by her solicitors.

On 4 February 2016, the deceased’s mother and the deceased’s two sisters issued a proceeding seeking an order that Mr O’Neill pay compensation, pursuant to s 85B of the Sentencing Act 1991.[2] The proceeding settled and, on 9 August 2016, orders were made that the application be withdrawn, with no order as to costs.
[2]Proceeding S CR 2014 0137.

Plaintiff’s application

By originating motion filed 9 October 2015, the plaintiff seeks a grant of probate of the deceased’s informal will dated 25 August 2006 (‘the 2006 informal will’), or, alternatively, probate of the deceased’s penultimate will dated 26 August 1996 (‘the 1996 will’).

The 2006 informal will was signed by the deceased in the presence of Mr O’Neill and Ms Katrina Holley, then an employee of the Rattle Group Pty Ltd (‘the Rattle Group’). However, only Ms Holley attested and signed the will as…

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 Rattle

Details

AGLC: Re Rattle [2018] VSC 249
Case: [2018] VSC 249
Decision Date: 16 May 2018

CaseChat Overview and Summary

The case of Re Rattle involved an application for the grant of probate of an informal will. The dispute centred on whether the testator intended the informal document to serve as their will, and whether the principal beneficiary, who had been convicted of the deceased's murder, was entitled to benefit from the estate given the forfeiture rule. The matter was heard in the Supreme Court of Victoria.

The court was required to determine if the informal document constituted a valid will under the Wills Act 1997. Specifically, it needed to be established whether the document met the statutory requirements and if the testator intended it to operate as their will. Additionally, the court had to decide whether the forfeiture rule applied, barring the principal beneficiary from inheriting due to their conviction for the deceased's murder.

In addressing these issues, the court examined the relevant provisions of the Wills Act and considered the established jurisprudence on the intent behind informal documents. It applied the Briginshaw standard of proof, requiring the applicant to demonstrate on the balance of probabilities that the document was intended as a will. The court also referenced cases such as Fast v Rockman and Troja v Troja to understand the application of the forfeiture rule. Ultimately, the court found that the informal document did not meet the criteria to be recognised as a will, and the principal beneficiary was not entitled to inherit due to the application of the forfeiture rule.

The court declined the application for probate and ordered that the estate be distributed according to the intestacy rules.

Orders