Re Ray

Case [2020] VSC 699 21 October 2020

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2019 11945

MICHAEL JOHN GASON & PETER JOHN HAMILTON-WATT	Plaintiffs
v
JOHN CHARLES STEPHEN RAY	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	27–8 November, 6 December 2019 Final closing submissions: 11 March 2020
DATE OF JUDGMENT:	21 October 2020
CASE MAY BE CITED AS:	Re Ray
MEDIUM NEUTRAL CITATION:	[2020] VSC 699

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WILLS AND ESTATES – Informal wills – Where informal will was unsigned and undated – Where deceased asked to sign will shortly before dying – Where deceased was an alcoholic – Whether deceased had testamentary capacity – Whether deceased intended the informal will to be his will – Application granted – 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 Plaintiffs	Mr JS Smith	Natoli Howell
For the Defendant	Ms U Stanisich	Hicks Oakley Chessell Williams

HER HONOUR:

Charles (aka Charlie) John Arthur Ray (‘the deceased’) died on 29 March 2019 at the age of 49 years. The cause of death was a consequence of chronic liver disease flowing from a long history of alcohol dependence. He was survived by John Ray (‘John’), who is his father and the defendant in this proceeding, and his sister, Jane Ray (‘Jane’).[1] Jane has five children between the ages of 11 and 23 years. Jane’s partner, Stuart, died on 21 April 2019. The deceased’s mother, Lynette Ray (‘Lynette’), died on 14 December 2018.
[1]First names are used throughout to avoid confusion.

The plaintiffs, Michael John Gason and Peter John Hamilton-Watt (‘Michael’ and ‘Peter’), are long-standing friends of the deceased.

The inventory of assets and liabilities filed by the plaintiffs in support of their application lists the net value of the estate as $876,120, comprising primarily the deceased’s home in Wantirna. John is the beneficiary of the deceased’s estate upon intestacy.

On 2 August 2019, the plaintiffs filed an originating motion for a grant of probate pursuant to s 9 of the Wills Act 1997 to admit to probate an informal will (‘the draft will’). The draft will was prepared by Mark Black (‘Mark’), who is a barrister and close friend of the deceased, in March 2019. Mark had previously prepared a different draft will for the deceased in November 2018 (‘the November draft’), in which Mark himself was appointed executor of the deceased’s estate.

The draft will

The draft will comprises seven typed pages, including a cover page and a blank ‘distribution list’ at the end. It is unsigned and devoid of any handwritten marks. It is also undated, save for the cover page and final substantive page, which contain the typed words ‘March 2019’.

The draft will purports to revoke all prior wills and other testamentary acts and appoint the plaintiffs as executors and trustees. It then provides:

My executors hold my estate on…

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 Ray

Details

AGLC: Re Ray [2020] VSC 699
Case: [2020] VSC 699
Decision Date: 21 October 2020

CaseChat Overview and Summary

The matter of Re Ray came before the court in an application concerning the validity of an informal will. The deceased, Ray, had not executed a formal will at the time of his death. However, there was an unsigned and undated document that was presented as a will. Ray had been asked to sign this document shortly before his death, but he did not do so. The deceased had a history of alcoholism, which raised questions about his testamentary capacity at the time the document was presented. The primary issue before the court was whether the deceased had testamentary capacity and whether he intended the document to serve as his will.

The court was required to determine if the informal document constituted a valid will under the Wills Act 1997 (Vic). It considered precedents such as Banks v Goodfellow and Veall v Veall. The court noted that while the document was unsigned and undated, Ray's request to sign it, coupled with the circumstances of his death, indicated an intention for it to serve as his will. The court found that Ray had testamentary capacity at the relevant time, notwithstanding his alcoholism. The evidence supported the conclusion that Ray understood the nature of the document and its purpose.

The court granted the application, holding that the document should be recognised as Ray's will. The court relied on the principle that the intention to make a will must be clear, and the circumstances of the case supported the notion that Ray intended the unsigned document to be his will. The court also considered the practicalities of the situation, including the deceased's request to sign the document and the absence of any other will. The court's decision was grounded in the understanding that testamentary capacity can exist despite a history of alcoholism, provided the deceased comprehended the nature of the act at the relevant time. The court's ruling ensured that Ray's intentions were respected and provided clarity in the distribution of his estate.

Orders