MARIAN GRACE BURFORD IN THE MATTER OF THE WILL OF MARK EDWIN TRETHEWEY
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JUDGE:
BEACH, J. J
WHERE HELD:
MELBOURNE
DATE OF HEARING:
14 MARCH 2002
DATE OF JUDGMENT:
14 MARCH 2002
CASE MAY BE CITED AS:
IN THE WILL OF MARK EDWIN TRETHEWEY
MEDIUM NEUTRAL CITATION:
[2002] VSC 83
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CATCHWORDS: Probate – Requirements of a valid will – Will on a computer – Unsigned – Intention of testator – Executor according to tenor of will – Validity of will – Wills Act 1997, s.9.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
R. Boaden
Holding Redlich
HIS HONOUR:
1 This is an application by Marian Grace Burford, who was the de facto wife of the late Mark Edwin Trethewey, pursuant to s.9 of the Wills Act 1997 for probate of a document which is said to be the last will of the deceased and which was made on 27 May 1998.
2 The application is a somewhat unusual one. The deceased died on 25 October 1998, aged 39. He had been previously married. There was one child of that marriage named Jess. However, his wife also had a further child named Molly who lived with the deceased, Jess and his former wife from the time she was six months old and who the deceased regarded as his own child.
3 In 1989 the deceased's wife died.
4 In December 1993 the deceased commenced a de facto relationship with the applicant which continued until his death.
5 For some time prior to his death the deceased was a lecturer in the Department of Applied Economics at Victoria University. On a number of occasions whilst he and the applicant were living together the deceased told the applicant that he had left a will on his computer.
6 In July 1998 the deceased was visited in Melbourne by his sister, Mary Alcorn. Mrs Alcorn has sworn an affidavit in support of the applicant's present application, the relevant paragraphs of which read:
"3.During the four days that I spent with the deceased in July 1998, we discussed, among many other things, what the deceased wanted to happen in the event of his death and whether he wanted me to look after his children, because the natural mother of the deceased's children had also passed away.
4.During our discussions, the deceased clearly stated to me that he did not want me to look after his children, he wanted his de facto partner, Ms Marian Burford, to become their legal guardian. The deceased also stated to me that he was, at that time, in the process of making a will. He told me that in his will he intended to leave one-third of his assets to Ms Burford and the remaining two-thirds, equally, to his two children, Molly Rose and Jess."
7 The deceased had also made similar statements to a long time friend, Martin O'Byrne. In his affidavit in…
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.
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AGLC
Re Trethewey [2002] VSC 83
Case
[2002] VSC 83
Decision Date
CaseChat Overview and Summary
In the matter of the estate of deceased, the parties involved in the dispute were various beneficiaries and an executor, who was appointed according to the tenor of a will. The central issue was whether a document found on the deceased's computer, which appeared to be a will but was unsigned, could be admitted as a valid testamentary document under the Wills Act 1997. The court had to determine if the document met the statutory requirements for a valid will and if the intention of the testator was sufficiently demonstrated in the document.
The court examined whether the document satisfied the criteria for a valid will under section 9 of the Wills Act 1997, which states that a will must be in writing, signed by the testator, and made in the presence of two witnesses. The primary issue was whether the absence of a signature could be overlooked if there was clear evidence of the testator's intention to create a will and the document was intended to be the testator's final testament. The court needed to balance the statutory requirements with the evidential circumstances surrounding the document's creation and the testator's intentions.
The court found that although the document was not signed, the overall circumstances strongly suggested that it was intended to be the testator's final will. The content of the document, along with other evidence presented, demonstrated a clear intention to dispose of the testator's estate in accordance with the document. The court held that the absence of a signature could be overlooked if there was sufficient evidence of the testator's intention to create a will and the document's finality. Consequently, the court admitted the document as a valid will.
The court ordered that the estate be distributed in accordance with the contents of the document, recognising it as the valid will of the deceased. This decision hinged on the clear demonstration of the testator's intention and the substantial evidence presented, outweighing the strict statutory requirement of a signature.