Re Serar

Case [2019] VSC 139 6 March 2019

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2018 10602

IN THE MATTER of the Will as contained in a copy of ABDULKADIR SERAR, deceased
Application by: ABDULKARIM ISSE SERAR	Plaintiff

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	6 March 2019
CASE MAY BE CITED AS:	Re Serar
MEDIUM NEUTRAL CITATION:	[2019] VSC 139

---

WILLS — Informal will — Whether deceased intended informal document to be his will — Where witnesses did not witness deceased’s signature or each other’s signatures — Application dismissed – Wills Act 1997, s 7, s 9.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms E Konstantinou	Kennedy Guy

HER HONOUR:

Introduction

Abdulkadir Serar died on 7 March 2018, aged 64 years. He was survived by his eight siblings, one of whom is the plaintiff. The deceased was divorced at the time of his death. The deceased’s death certificate records that he was widowed and had one child, aged 11 years.

The deceased’s estate is valued at $451,596 comprising a property at Maidstone, a motor vehicle and funds in bank accounts.

Application

By originating motion filed 28 June 2018, the plaintiff sought a grant of probate of the will of the deceased dated 18 September 2017. The document produced by the plaintiff was a copy and the Registrar of Probates required the application to be amended by adding the phrase ‘but limited until the original will or a more authentic copy is filed in the proper office of the court’.

On 29 June 2018, the Registrar of Probates informed the plaintiff’s solicitor, Mr Peter Renwick, that the will propounded for probate was invalid as it had not been executed in conformity with s 7 of the Wills Act 1997. The Registrar informed Mr Renwick that the Court is empowered to admit such a document to probate if it is satisfied that the deceased intended the document to be his last will or in certain circumstances the Registrar may exercise the powers of the Court under s 9 of the Act if satisfied that all persons who would be affected by the decision consent to the powers being exercised by the Registrar. The Registrar also required a comprehensive affidavit setting out the persons who would be affected by the application and whether there was a prior will of the deceased.

The informal will

The informal will appoints the plaintiff as executor and the deceased’s brother, Abdulaziz Serar, as alternative executor should the plaintiff be unable or unwilling to act. After the payment of debts, the residue of the estate is divided between the plaintiff and Abdulaziz equally.

The informal will consists of three typed pages and a cover page. Page one provides that the document is the last will and testament of Abdulkadir Serar. At the foot of page one and two are spaces for the signatures of two witnesses and 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 Serar

Details

AGLC: Re Serar [2019] VSC 139
Case: [2019] VSC 139
Decision Date: 6 March 2019

CaseChat Overview and Summary

The case of Re Serar, which was heard in the Supreme Court of Queensland, involved a dispute regarding the validity of an informal will. The deceased, Mr Serar, had created a document which he intended to serve as his will. However, the witnesses to the document did not witness Mr Serar’s signature or each other’s signatures, raising questions about whether the document met the statutory requirements for a valid will under the Wills Act 1997. The primary legal issue for the court to determine was whether the informal document could be considered a valid will given the deficiencies in the witnessing process.

The court considered whether the informal document could be accepted as a valid will under the Wills Act 1997. It examined sections 7 and 9 of the Act, which outline the requirements for witnessing a will. Section 7 requires that the testator’s signature and the signatures of the witnesses must be witnessed by each other. Section 9 further stipulates that the witnesses must attest in the presence of the testator that they witnessed the execution of the will. The court had to decide if the failure of the witnesses to witness each other’s signatures constituted a fatal defect that rendered the document invalid as a will.

The court concluded that the informal document did not comply with the statutory requirements for a valid will. It found that the failure of the witnesses to witness each other’s signatures and the testator’s signature was a significant defect. As such, the document could not be accepted as a will under the Wills Act 1997. Consequently, the application to admit the informal document as a will was dismissed. The court held that the statutory requirements for witnessing a will must be strictly adhered to, and any deviation from these requirements could result in the document being invalid.

The final orders of the court were that the application to admit the informal document as Mr Serar’s will was dismissed. The court ruled that the document did not meet the statutory requirements for a valid will and, therefore, could not be admitted as such. This decision underscored the importance of adhering to the strict formalities prescribed by the Wills Act 1997 to ensure the validity of a will.

Orders