Re Thomas - [2023] VSC 344

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2022 11795

IN THE MATTER of the Estate of Howard Edwin Thomas, deceased

GREGORY HUGH CAMPBELL

Plaintiff

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2023 and 14 June 2023
DATE OF JUDGMENT:	22 June 2023
CASE MAY BE CITED AS:	Re Thomas
MEDIUM NEUTRAL CITATION:	[2023] VSC 344

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WILLS AND PROBATE – Application for grant of administration on intestacy – Where testator’s will contains obliterations of names of executors and beneficiaries – Whether testator intended by obliterations to revoke his will – Where significant time elapsed during which obliterations may have been made – Whether testator himself made obliterations – Wills Act 1997, s 12 (2)(g) - Re Miruzzi (deceased) [2018] NSWSC 1899.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Dickenson	MJS Law

HIS HONOUR:

In the unusual circumstances of this case, the plaintiff seeks a grant of letters of administration on intestacy of the estate of Howard Edwin Thomas who died on 20 July 2021. The application is novel because the deceased executed a will on 21 March 2011 (the will) some ten years before he died which had not been formally revoked, or revoked by operation of law. The issue for determination is whether the will was revoked in accordance with s 12(2)(g) of the Wills Act 1997 (the Act) which provides that a will may be revoked ‘by the testator … writing on the will or dealing with the will in such a manner that the Court is satisfied, from the state of the will, that the testator intended to revoke it’.

Key facts

When he died, the deceased was not married or in a domestic relationship and did not have any children. He had no surviving parents, grandparents, siblings, aunts, uncles, nephews or nieces. His only known living relatives as at the date of his death were six cousins, one of whom is the plaintiff.

It would appear that the deceased, who lived alone at his home in Ivanhoe, was quite eccentric in his habits, at least in the latter years of his life. After his death, his friends discovered his home to be in what they regarded as an uninhabitable condition, owing to a lack of cleanliness and hygiene, and the hoarding in a disordered way of a miscellany of rubbish, papers and personal effects. His friends also recounted that, when they met the deceased from time to time, he was typically dressed in the same unwashed clothes and appeared to be in an unclean state.

The will was drafted by a firm of solicitors, AB Natoli Pty Ltd, and was properly executed by the deceased on 21 March 2011. The will is in simple terms, extending over three pages, and appoints the deceased’s friends Richard Nightingale and Deborah Nightingale as executors and trustees of his estate. The will also gifts Mr and…

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 Thomas

Details

AGLC: Re Thomas [2023] VSC 344
Case: [2023] VSC 344
Decision Date: 22 June 2023

CaseChat Overview and Summary

The case of Re Thomas was an application for a grant of administration on intestacy in the context of a disputed will. The central issue was whether the testator's obliteration of the names of executors and beneficiaries in his will constituted an intended revocation of the will. The matter required the court to determine if the obliterations reflected a clear and unequivocal intention to revoke the will, as well as to consider the timeline during which the obliterations were made and whether they were made by the testator himself.

The primary legal issue was whether the obliterations on the will indicated an intention by the testator to revoke the will entirely. The court had to weigh the significance of the obliterations against the provisions of the Wills Act 1997, particularly section 12(2)(g), which pertains to the revocation of wills. The court also considered the case of Re Miruzzi (deceased) [2018] NSWSC 1899, which provided guidance on similar issues of will revocation through obliteration. The court had to decide whether the obliterations were deliberate and made with the intention to revoke, or if they were accidental or the result of external interference.

In delivering its judgment, the court examined the evidence regarding the time frame in which the obliterations were made and the circumstances surrounding their execution. The court concluded that the obliterations did not reflect an unequivocal intention to revoke the will, as there was insufficient evidence to establish that the testator made the obliterations himself, nor was there a clear indication that the obliterations were deliberate. The court found that the obliterations could have been made by another party, and there was no compelling evidence to suggest the testator intended to revoke the will. Consequently, the will was not considered revoked, and the application for a grant of administration on intestacy was dismissed.

The final orders of the court were that the application for a grant of administration on intestacy was dismissed, and the will remained valid. The court directed that a grant of probate be issued in accordance with the terms of the will, recognising the executors named within it. This outcome ensures that the estate is administered in accordance with the testator's intentions as expressed in the will, barring any successful challenge to its validity.

Orders