Re: The Estate of Edward George Blackburne, deceased

[2004] VSC 316

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

IN THE MATTER OF

THE ESTATE OF EDWARD GEORGE BLACKBURNE, DECEASED

AND

AN APPLICATION PURSUANT TO SECTION 9 OF THE WILLS ACT 1997 BY CHERRYANNE LEA OLIVER AND DEBRA ROSLYN GIFFARD-BURGESS

Plaintiffs

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JUDGE:	HABERSBERGER, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 AUGUST 2004
DATE OF JUDGMENT:	5 AUGUST 2004
CASE MAY BE CITED AS:	RE:  THE ESTATE OF EDWARD GEORGE BLACKBURNE, DECEASED
MEDIUM NEUTRAL CITATION:	[2004] VSC 316

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Wills – Revocation of will – Requirements for revoking a will not complied with – Deceased intended to revoke last will – Orders made dispensing with the formal requirements for revoking a will and refusing to admit to probate the last will of the deceased – Sections 7, 9 and 12 of the Wills Act 1997.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A.J. Verspaandonk	McIntyre & Statton

HIS HONOUR:

1. This is an application by the plaintiffs for an order that the court dispense with the formal requirements for the revocation of a will and an order refusing to admit the last will of the deceased, which was made on 2 October 1991, to probate, on the basis that the deceased, by writing, intended to revoke the will during his lifetime.

1. Under his will dated 2 October 1991 the deceased, Edward George Blackburne, gave legacies of $10,000 to each of the plaintiffs, who are his daughters.  The residue of the estate was left to a third daughter absolutely.  That will was prepared by Mr Peter James Statton, solicitor, of the firm of McIntyre & Statton in Geelong. 

1. By a letter dated 23 January 2000, Mr Blackburne wrote to Mr Statton as follows:

"Dear Peter,

As of the above date, I would like to revoke my present 'Will and Testament' until further notice."

1. Mr Statton has deposed that upon receiving this letter on 25 January 2002, he telephoned the deceased and discussed with him both the revocation of his will and the making of a new will.  He produced a file note of this conversation.  Mr Statton says that he is in no doubt that it was the intention of the deceased, and the belief of the deceased, that the will had been revoked.  He further says that he telephoned the deceased on at least two other occasions and discussed with him the preparation of a new will.  Mr Blackburne assured Mr Statton that he would make an appointment to see him in order to provide instructions for a new will.  However, this was not done.

1. It is also deposed that following the death of the deceased his sister brought to Mr Statton's office personal papers from the former home of the deceased and included in these papers was the envelope in which Mr Statton had sent Mr Blackburne a copy of his will.  Mr Statton, who says he is familiar with Mr Blackburne's writing, says, and the envelope has been produced, that the deceased had written on the envelope:  "Will receipt.  Unsigned copy only (and revoked on 23/1/2000 with P. Statton, solicitor)."

1. Section 12(2)(e) of the Wills Act 1997 ("the Wills Act") provides that a will may be revoked:

"by some writing, declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act …"

The letter of revocation to Mr Statton did not comply with the requirements for execution of a will set out in s.7(1) of the Wills Act because the deceased did not sign the letter "in the presence of two or more witnesses present at the same time" (s.7(1)(c)) and those witnesses did not attest or sign the letter (s.7(1)(d)).

1. Nevertheless, I am quite satisfied that the deceased intended to revoke his will, and, notwithstanding that it has not been revoked in accordance with the requirements of the Wills Act, I am prepared to make an order, if necessary, under s.12(2)(d) dispensing with the formal requirements for revoking a will, and an order under s.9(2) refusing to admit to probate the will made on 2 October 1991.

1. The only other question was whether or not the plaintiffs should be required to procure a guarantee under s.57 of the Administration and Probate Act.  In my opinion, for the reasons advanced by Mr Verspaandonk, the only other beneficiary, another daughter, being adult and sui juris, there is no concern, and it is an unnecessary requirement.  A letter from the solicitor for the other daughter neither consenting to nor opposing the application has been placed on the file.  I will make an order along those lines as well.

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