JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2016 and written submissions by the plaintiffs
DATE OF JUDGMENT:	18 November 2016
CASE MAY BE CITED AS:	Re Sanders
MEDIUM NEUTRAL CITATION:	[2016] VSC 694

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WILLS AND ESTATES —Application to admit informal will to probate — Whether deceased intended the informal will to be her will — Where origin of informal document uncertain — Standard of proof — Fast v Rockman [2013] VSC 18 — Briginshaw v Briginshaw (1938) 60 CLR 336 — Wills Act 1997, s 9 — Evidence Act 2008, s 140

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Rizzi	Tolhurst, Druce & Emmerson

HER HONOUR:

Introduction

Ann Sanders (also known as Annie Sanders) died on 7 March 2015, aged 86 years (‘the deceased’). She was survived by her two adult sons, Nickolas Cecic, aged 69 years and Tony Cecic, aged 67 years. The deceased married twice but was widowed at the date of her death.

The deceased’s estate was valued at $1,134,887 comprising her property in Male Street, Brighton (‘the Brighton property’), valued at an estimated $1,050,000 with the balance comprising money in the bank, some jewellery and household effects.

The deceased left an informal document dated 23 March 2009 purporting to be her final will and testament (‘the informal document’). She was aged 80 years when she made the informal document. The informal document appoints the plaintiffs as her executors and trustees of her estate. The deceased’s informal document included a statement that the Brighton property was purchased by her late husband, Eric Lloyd Sanders, in August 1962 prior to the deceased’s divorce from her first husband. Her Brighton property is devised to the first plaintiff on trust:

(a) for the second plaintiff to use and occupy it rent free for his life as a ‘life time tenant’ provided he pay all rates, taxes, insurance and other outgoings and maintaining the property in good repair and condition;

(b) upon his death, the Brighton property is to become the principal residence of the first plaintiff and, if it ceases to be her principal residence, the property is to be transferred to her children, Aristomenis and James, to use and occupy it as their principal residence for their lifetime or the survivor of them, provided they pay all rates taxes insurance and other outgoings and maintaining the property in good repair and condition;

(c) upon trust to transfer the Brighton property to the last surviving beneficiary named in (b) who has remained in occupation and used it as their principal place of residence for his or her own use and benefit absolutely provided that such transfer does not take place prior to the 30^th anniversary of 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 Sanders

Details

AGLC: Re Sanders [2016] VSC 694
Case: [2016] VSC 694
Decision Date: 18 November 2016

CaseChat Overview and Summary

The case of Re Sanders involved an application to admit an informal document to probate as the will of the deceased, Mrs Sanders. The dispute arose due to uncertainty over whether the deceased intended the informal document to be her will. The matter was heard in the Supreme Court of Victoria. The primary legal issue was whether the deceased intended the informal document to be her will. The court had to determine whether the standard of proof for such matters was met and if the document could be admitted to probate despite its informality.

The court examined the evidence to ascertain the deceased's intention to create a will in the form of the informal document. It considered the uncertainty of the origin of the document and the standard of proof required, as outlined in cases such as Fast v Rockman and Briginshaw v Briginshaw. The court balanced the principles of certainty in testamentary intentions against the practicalities of admitting informal wills. The relevant legislation, including the Wills Act 1997 and the Evidence Act 2008, was also considered to determine the appropriate standard of proof and the admissibility of the document.

After evaluating the evidence and applying the relevant legal principles, the court concluded that the deceased did intend the informal document to serve as her will. It found that the balance of probabilities favoured the admission of the document to probate, satisfying the required standard of proof. The court acknowledged the informal nature of the document but emphasised the importance of giving effect to the deceased's true intentions. The orders of the court included admitting the informal document to probate as the will of Mrs Sanders, ensuring that her wishes were legally recognised and implemented.

Orders