JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2023
DATE OF JUDGMENT:	24 June 2024
CASE MAY BE CITED AS:	Re Sampson
MEDIUM NEUTRAL CITATION:	[2024] VSC 351

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ADMINISTRATION AND PROBATE – Application by plaintiff for grant of probate – Where plaintiff named executor – Where plaintiff and deceased divorced subsequent to deceased’s final will – Whether deceased intended appointment not to be revoked upon divorce – Application granted – Interpretation ofLegislation Act 1984, s 35 – Wills Act 1997, ss 1, 14 – Wills Act 1958, s 16A – Western Australian Planning Commission v Southregal Pty Ltd (2017) 259 CLR 106 – AB (pseudonym) v Independent Broad-Based Anti-Corruption Commission [2024] HCA 10 – Waters v Diesel Holdings Pty Ltd [2024] VSCA 77 - Re McComb (1999) 3 VR 485.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K Halcomb	Conlan Cummings Lawyers

HIS HONOUR:

Introduction

The plaintiff, Claire Doreen Sampson, seeks a grant of probate of the will of Colin Malcom Sampson, deceased, dated 24 November 2016 (Will). The deceased died on 11 August 2022 at 65 years of age as a result of a cardiac arrest he suffered following surgery. The deceased and the plaintiff had been married for more than 20 years until they were divorced on 25 February 2018, some four years before the deceased’s death. The deceased was survived by his brother, Gregory Sampson, and his two adult children, Phoebe Sampson and Jack Sampson.[1]
[1]For clarity, and without intending any disrespect, I will refer to each of them by their first names.

Under the Will, the plaintiff was appointed as executor of the deceased’s estate. However, pursuant to s 14 of the Wills Act1997 (the WillsAct), the divorce of a testator revokes any appointment of the divorced spouse as executor or trustee,[2] with such revocation taking effect as if the spouse had predeceased the testator.[3] This provision is, however, subject to the existence of a contrary intention on the part of the testator: by operation of s 14(2), it does not apply ‘if it appears’ that the testator did not want the appointment to be revoked upon the ending of the marriage.
[2]Section 14(1)(c).
[3]Section 14(3).

The plaintiff contends that a contrary intention is established in relation to the deceased’s wishes. However, this contrary intention is not said to appear from the terms of the Will, but from extrinsic evidence said to illuminate the deceased’s intention in the period leading up to his death. The first question for determination is whether that contrary intention is established on the evidence. Assuming it is, the second question for determination is whether s 14(2) of the Wills Act, properly construed, permits a contrary intention on the part of a testator…

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 Sampson

Details

AGLC: Re Sampson [2024] VSC 351
Case: [2024] VSC 351
Decision Date: 24 June 2024

CaseChat Overview and Summary

The case of Re Sampson involved an application for the grant of probate by the plaintiff, who was named as the executor in the will of the deceased. The dispute arose after the plaintiff and the deceased had been divorced following the execution of the deceased's final will. The central issue was whether the deceased intended the executor's appointment to remain valid despite the divorce. The matter was heard in the Supreme Court of Victoria.

The court needed to determine the legal meaning of the deceased's will, particularly whether the appointment of the plaintiff as executor was intended to survive the divorce. This involved interpreting relevant sections of the Interpretation of Legislation Act 1984, the Wills Act 1997, and the Wills Act 1958, alongside precedent cases such as Western Australian Planning Commission v Southregal Pty Ltd and AB (pseudonym) v Independent Broad-Based Anti-Corruption Commission. The court also considered Waters v Diesel Holdings Pty Ltd and Re McComb in its analysis.

In its decision, the court found that the deceased's intent was to maintain the plaintiff's role as executor regardless of subsequent marital changes. The court relied on statutory provisions and case law to support this interpretation, emphasising the need to uphold the deceased's clear intention as expressed in the will. Consequently, the application for the grant of probate was successful, with the court ruling in favour of the plaintiff. The court's decision reflected a careful consideration of statutory interpretation principles and the context provided by previous judicial decisions.

The final orders included granting the plaintiff's application for probate, thereby confirming the plaintiff's status as the executor of the deceased's estate. This outcome was based on the court's determination that the deceased intended the executor's appointment to remain unaffected by the subsequent divorce.

Orders