Re Vidal

Case [2020] VSC 451 23 July 2020

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2017 14236

IN THE MATTER of the will and estate of JULIAN MORENO VIDAL, deceased

- and –

IN THE MATTER of an application pursuant to s 9 of the Wills Act 1997

MERCEDES MORENO MORENO	Plaintiff
v
DOLORES MORENO	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2020
DATE OF JUDGMENT:	23 July 2020
CASE MAY BE CITED AS:	Re Vidal
MEDIUM NEUTRAL CITATION:	[2020] VSC 451

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WILLS & ESTATES — Application for probate of informal will of deceased — Application not opposed — Handwritten document —Applicant the sole beneficiary of alleged informal will — Whether document reflects testamentary intentions of the deceased — Whether evidence sufficient to establish testamentary capacity — Wills Act 1997 (Vic) s 9.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Dickenson	Bediaga Xavier & Ramon
For the Defendant	Ms C Sparke QC	Madgwicks

HER HONOUR:

Introduction

Julian Moreno Vidal died intestate on 14 January 2016. He was not married and had no children. At the time of his death, the deceased’s intestacy beneficiaries were his siblings, Jose Moreno Vidal (‘Jose’), Maria Pilar Moreno Vidal (‘Pilar’) and Delores Moreno Vidal (‘Delores’).[1]
[1]Delores’ name is spelt variously as ‘Delores’ and ‘Dolores’ in documents filed in the proceeding. Throughout this judgment, the Court will adopt ‘Delores’, which is the spelling adopted in her affidavit.

The plaintiff, Mercedes Moreno Moreno (‘Mercedes’), is Jose’s daughter and the deceased’s niece. Delores is the defendant to the proceeding. Although they were not separately represented, Delores purported to act in the interests of the remaining intestacy beneficiaries of the deceased’s estate, who did not otherwise oppose the application.

The value of the deceased’s Australian estate is approximately $1.1 million, principally comprising his property at 9 Dudley Street, Essendon North (‘the Essendon North property’). The deceased also owned property and bank accounts in Europe valued at between €120,000 and €160,000.

Mercedes’ application

By originating motion dated 7 August 2017, Mercedes seeks probate of a document dated 10 January 2016 as an informal will of the deceased, pursuant to s 9 of the Wills Act 1997 (‘the Act’). The document in question is a single sheet of paper, handwritten in Spanish. A certified translation of the text is as follows:

Melbourne, 10-1.16
I, Julian Moreno, hereby express my last wishes:
Universal Legatee
I bequeath the proceeds of the sale of my house in 9 Dudley Street, Essendon North, Melbourne, to my niece Mercedes Moreno.
I wish that in France where she lives, with monies from this house she buys a house for her youngest son and to have a notarised document drawn up stating that she will not be able to sell that house while she is alive.
The accounts in the banks are also bequeathed to her.

Mercedes’ application was initially contested by Delores, however, at the commencement of the trial, Delores withdrew her opposition…

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 Vidal

Details

AGLC: Re Vidal [2020] VSC 451
Case: [2020] VSC 451
Decision Date: 23 July 2020

CaseChat Overview and Summary

The case of Re Vidal was heard in the Victorian Supreme Court, where the central issue was the application for the probate of an informal will of a deceased individual. The applicant, who was the sole beneficiary of the alleged informal will, sought to have the document recognised and granted probate under the Wills Act 1997 (Vic). The application was unopposed, but the court needed to determine whether the handwritten document indeed reflected the testamentary intentions of the deceased and if there was sufficient evidence to establish the deceased's testamentary capacity at the time of the document's creation.

The primary legal issues for the court to resolve were whether the handwritten document satisfied the statutory requirements for an informal will and if the applicant could provide adequate evidence to demonstrate that the deceased possessed the necessary testamentary capacity when the document was executed. The court needed to examine the contents of the document and the surrounding circumstances to ascertain if it met the legal criteria for an informal will under the Wills Act 1997 (Vic), particularly in relation to the requirement that the will must be in writing and signed by the testator or by some other person in the presence of and by the direction of the testator.

In delivering its judgment, the court found that the document did reflect the testamentary intentions of the deceased, as it was clear and unambiguous in its expression of the deceased's wishes. The court also determined that the evidence provided was sufficient to establish that the deceased had testamentary capacity at the time of the document's creation. The court relied on the applicant's testimony and other corroborative evidence to conclude that the document met the statutory requirements for an informal will under section 9 of the Wills Act 1997 (Vic). Consequently, the court granted the application for probate, recognising the document as the valid will of the deceased.

The final orders of the court were that the handwritten document be admitted to probate as the last will of the deceased, and the applicant, as the sole beneficiary, be entitled to the benefits and assets of the estate as per the terms of the will. The court's decision provided clarity and legal recognition to the testamentary intentions expressed in the informal will, ensuring that the deceased's wishes were carried out in accordance with the statutory framework governing wills in Victoria.

Orders