JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 21 March, 4 April, 16 May 2014
DATE OF JUDGMENT:	23 May 2014
CASE MAY BE CITED AS:	Re Stuckey
MEDIUM NEUTRAL CITATION:	[2014] VSC 221

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WILLS AND ESTATES — Application by the plaintiff to have an unsigned informal codicil admitted to probate — Where video evidence that the testator read the codicil over — Whether the testator intended the unsigned informal codicil to be her final will — Wills Act 1997, s 9 — Fast v Rockman [2013] VSC 18 (7 February 2013) — Rowe v Storer [2013] VSC 385 (2 August 2013) –Briginshaw v Briginshaw (1938) 60 CLR 336.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C D Johnson	JP Legal

HER HONOUR:

Introduction

The plaintiff, John Giancarlo Pastro (‘Mr Pastro’), has applied for a grant of probate of the will of the deceased dated 23 February 2012 (‘the will’) and of an informal codicil dated 10 January 2013 (‘the informal codicil’) of Marietje Elizabeth Stuckey (‘the deceased’), who died on 16 January 2013.

The will was prepared by Mr Pastro of the firm John Pastro & Co in Heidelberg. It appoints the deceased’s sister, Jeannette Carmel Wade (also known as Jeannette Carmel Scholte) (hereafter called ‘Jeannette Scholte’), as the executrix and trustee of her estate. The will provides as follows:

(a)The property known as Unit 2, 2 Darebin Street, Heidelberg (‘Unit 2’) is to be held on trust for Jeannette Scholte to occupy it together with the deceased’s grandson, Keah Mitchall, as their principal residence until Keah Mitchall attains the age of 21 years;
(b)Jeannette Scholte is to have the option of purchasing the property known as Unit 1, 2 Darebin Street, Heidelberg (‘Unit 1’) at a fair market price established by valuation. The option is to be exercised in writing within a period of 30 days of the date of grant of probate and the purchase is to be completed within 90 days of the grant of probate provided that the property at 2 Darebin Street, Heidelberg has been subdivided into two lots to establish separate titles to the existing units as at the date of the death of the deceased. If the property has not been divided at the date of death, then the deceased’s executor is to subdivide the property at the expense of the estate and completion of the purchase of Unit 1 shall occur within 90 days of registration of the plan of subdivision;
(c)The executrix of the estate may, in her unfettered discretion, grant an option to purchase Unit 2 to any of the deceased’s beneficiaries upon the same terms as the option granted to Jeannette Scholte regarding Unit 1; and
(d)The residue 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 Stuckey

Details

AGLC: Re Stuckey [2014] VSC 221
Case: [2014] VSC 221
Decision Date: 23 May 2014

CaseChat Overview and Summary

The plaintiff applied to the court for an order admitting an unsigned informal codicil to probate. The testator, who had died, left no formal will but had a codicil that was not signed or witnessed. The defendant, the executrix of the testator’s estate, opposed the application. The dispute was whether the unsigned informal codicil constituted the testator’s final will under the Wills Act 1997.

The court needed to determine if the unsigned informal codicil met the requirements of section 9 of the Wills Act, which states that a will must be in writing, signed by the testator, and witnessed by two people. The court considered whether the evidence, including video evidence of the testator reading the codicil, was sufficient to establish the testator’s intention for the document to be her final will. The court referenced the cases of Fast v Rockman and Rowe v Storer to guide its decision and applied the principles established in Briginshaw v Briginshaw.

The court found that the video evidence was compelling and demonstrated the testator’s clear intention for the document to be her final will. The court held that the evidence satisfied the Briginshaw standard of proof on the balance of probabilities. The court accepted that the unsigned informal codicil was the testator’s final will and granted the plaintiff’s application. The court ordered that the unsigned informal codicil be admitted to probate.

Orders