Re Vidal
[2020] VSC 451
•23 July 2020
| 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 to the application following settlement discussions between the parties. It nonetheless remained necessary for Mercedes to satisfy the Court that the informal will ought be admitted to probate.
Evidence
Mercedes relied upon two affidavits in the proceeding and gave oral evidence at trial. The deceased’s general practitioner, Dr Getha Venkatram, also gave oral evidence. Dr Venkatram’s affidavit was not tendered in evidence at trial.
In light of the withdrawal of the defendant’s opposition to the application, none of the evidence was contested.
Mercedes’ relationship with the deceased
The deceased was a Spanish national who left Europe in or about 1970 and immigrated to Australia. Mercedes, born in 1960, was close to the deceased as a child and maintained contact with him by telephone and mail following his relocation to Australia. They lost contact sometime thereafter, when the deceased changed address.
In October 2015, Mercedes sought to make contact again with the deceased. On 6 October 2015, she sent an email to the Spanish consulate in Melbourne requesting his contact details. The consulate informed Mercedes that they could not provide contact details but had passed on Mercedes’ details to the deceased. He made contact with her by telephone. Thereafter, the deceased and Mercedes spoke by telephone several times. During those conversations, the deceased raised the prospect of relocating to France in order to live close to Mercedes and her children.
The deceased asked Mercedes to travel to Australia to assist him to clean up the Essendon North property and put it up for sale in anticipation of his move to France. She says that the deceased asked her to come to Australia to spend the new year with him, and that he offered to pay for her trip.
On 31 December 2015, Mercedes arrived in Melbourne. The deceased picked her up from the airport in a taxi, and she stayed with him in his home. Mercedes says that the deceased appeared much sicker than he had described on the telephone. She was later told by the deceased’s nurses that he had pancreatic cancer.
Creation of the alleged informal will
Mercedes says that over the following weeks she assisted the deceased to pack his belongings in boxes to take to France. She says that she was told by the deceased that he wished to leave to her everything he had. He specifically told her that the house he wished to buy in France would be left to her youngest son. The deceased said that he wished to assist Mercedes’ son because he had to complete lengthy studies to become a notary. Mercedes also says that the deceased told her he did not wish for his assets to pass to his siblings, who were not kind to him.
She says that the informal will was made on 10 January 2016, in the deceased’s Essendon North property. On that day the deceased had expressed discomfort and liquid had leaked from a pump in his stomach. Mercedes says that she suggested that they go to a hospital, but the deceased did not wish to go on a Sunday, instead suggesting that they would go the following day. Although she was worried that he had been losing fluid, Mercedes’ evidence was that the deceased was otherwise fine and able to communicate with her ‘just like on any other day’.
The deceased made the will sitting in an armchair in the lounge room of his home, with Mercedes in an armchair beside him or standing next to him. She says that the deceased asked her to bring him a pen and paper as he wanted to write his will before going to the hospital. He said that he would write what he had told her in the preceding days, that his belongings would pass to her and with the money from the sale of the Essendon North property she should buy a home for her youngest son. After the document was written he placed it in an envelope and gave it to Mercedes, telling her to hold on to it ‘just in case’. She then left the envelope on a piece of furniture in the deceased’s dining room.
On the morning of 11 January 2016, Mercedes says that an ambulance was called and scheduled to arrive at 11:00am. She says that the deceased asked her to take him in his wheelchair to a local lawyer, Prompt Legal Services. When they arrived at Prompt Legal Services a sign on the door indicated that the office was closed for the holidays, and would re-open on 14 January. Mercedes says that the deceased indicated that they would visit the lawyers after he returned from hospital.
The deceased entered hospital on 11 January 2016. He passed away on 14 January 2016.
The deceased’s estate
At the date of his death, the deceased’s estate comprised:
(a) the Essendon North property, valued at $952,000;
(b) Australian bank accounts with a total balance of approximately $140,000;
(c) travellers’ cheques valued at approximately $4,500;
(d) a motor vehicle valued at $6,000;
(e) an apartment in Spain valued at between €30,000 and €70,000;
(f) Spanish bank accounts with an unknown balance; and
(g) two Netherlands Bank accounts with a total balance of approximately €90,000.
The estate has no liabilities.
On 9 February 2016, Mercedes filed an application for letters of administration ad colligendum bona for the purposes of securing the Essendon North property, which was unoccupied. Mercedes’ application was granted on 12 February 2016.
Plaintiff’s submissions
Mercedes submits that the document dated 10 January 2016 is an informal will that should be admitted to probate notwithstanding non-adherence to the usual formalities, pursuant to s 9 of the Act. She says that the deceased’s statements to her in the days before creating the alleged informal will evidence his testamentary intentions, which are reflected in the handwritten document.
Mercedes submits that the deceased knew that he was unwell, and intended the document to be his will. She says that the deceased did everything he could have reasonably done at the time by preparing the document, which is itself presented as a testamentary instrument through the use of the terms (translated) ‘express my last wishes’, ‘universal legatee’ and ‘bequeath’. She says that it is consistent with this intention that the deceased wished to visit a local solicitor the following day in order to formalise the will. She submits that this is not a case in which the deceased wished to think further about his will with the benefit of legal advice, he simply wished to formalise the wishes expressed in the handwritten document. His use of the words ‘just in case’ when handing her the document is indicative, she says, of an intention that the document was to act as his will in the event that he was unable to formalise the will.
Mercedes says that the only formality not adhered to was the requirement that a will be signed in the presence of two witnesses and to have those witnesses attest to the signing of the document.[2] She submits that this lack of formality is ameliorated by the fact that she witnessed the deceased signing the will. She says that the purpose of s 9 of the Act is remedial, and it is exactly this type of failure that it is intended to remedy.[3]
[2]Wills Act 1997 (Vic) s 7(1).
[3]Citing Fast v Rockman [2013] VSC 18, [116] (Habersberger J).
Finally, Mercedes submits by reference to her own observations and the evidence of Dr Venkatram that the deceased had testamentary capacity at the time of making the alleged informal will. Mercedes also refers to notes from Austin Health following the deceased’s admission on 11 January 2016, which she says confirm the deceased’s capacity. She says that the deceased was generally aware of his assets, and of how he wished to dispose of them.
Applicable principles
Section 9 of the Act provides that the Court may admit a document as the will of a deceased person ‘if the Court is satisfied that that person intended the document to be his or her will.’ In doing so, the Court will dispense with the formal requirements for the creation of a will prescribed by s 7 of the Act.
In order to admit an informal will, the Court must be satisfied of three conditions:
(a) that there is a ‘document’;
(b) that the document expresses or records the testamentary intentions of the deceased; and
(c) that the document was intended by the deceased to be his or her will.[4]
[4]See, eg, Re Besanko [2020] VSC 170, [30] (McMillan J); Equity Trustees v Levin [2004] VSC 203, [15] (Whelan J); In the Estate of Masters (dec’d); Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA); Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535,537–9 (Powell J); In the Estate of Graham (dec’d) (1978) 20 SASR 198 (Jacobs J).
In Re Springfield, Powell J summarised the Court’s task as follows:
[T]he ultimate inquiry remains, whether the document itself, the circumstances regarding its contents ... and other relevant circumstances ... lead to the conclusion that the relevant deceased intended the subject document to constitute his will ... while each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will.[5]
[5]Re Application of Brown; Estate of Springfield (n 4) 539–40.
The requisite elements must be satisfied on the balance of probabilities, evaluating the evidence in accordance with the principles established in Briginshaw v Briginshaw, that is, reasonable satisfaction of the Court should not be attained by inexact proofs, indefinite testimony or indirect inferences.[6]
[6]Fast v Rockman (n 3), [48] (Habersberger J).
In order to be admitted to probate under s 9 of the Act, a document must deal with the disposition of the deceased person’s property in contemplation of their death. It is not sufficient that the deceased recorded their intention to make an inter vivos transfer or gift,[7] or mere precatory statements in anticipation of a future formal will.[8] Whether the evidence is sufficient to satisfy the Court of the testator’s intention will vary from case to case.[9] It is not necessary that the testator intended the document to be a will in the formal sense, but merely that it be a testamentary document as distinct from a mere statement of intention.
[7]Romano v Romano [2004] NSWCA 37, [42]–[43] (Hodgson JA, Sheller and Ipp JJA agreeing).
[8]Re Estate of Brock; Chambers v Dowker [2007] VSC 415, [30] (Hollingworth J).
[9]Ibid [44] (Hollingworth J).
In determining whether a document was intended by a deceased person to be their will, the Court may consider ‘any evidence relating to the manner in which the document was executed’ and ‘any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.’[10]
[10]Wills Act 1997 (Vic) s 9(3).
An applicant seeking a grant of representation of an informal will must also prove, on the balance of probabilities, that the deceased had testamentary capacity at the time of making the informal will and was free from undue influence.[11] If the deceased did not have capacity or was influenced by another person, the Court cannot be satisfied as to the requirement of intention.[12] It is therefore necessary for the proponent to establish that the deceased understood the nature and effect of making a will, was aware of the general nature and value of their estate, was aware of those who would have a natural claim on the estate, and was able to evaluate or discriminate between such claims.[13] It is not necessary for the testator to have precise knowledge of his or her assets, provided that their capacity to understand those assets and the act of dividing them is sound.[14]
[11]Re Serar [2019] VSC 139, [34] (McMillan J).
[12]Re Stuckey [2014] VSC 221, [40]–[41] (McMillan J); Jageurs v Downing [2015] VSC 432, [19] (McMillan J).
[13]Banks v Goodfellow (1870) LR 5 QB 549, 565 (Cockburn CJ); Bailey v Bailey (1924) 34 CLR 558, 566–7 (Knox CJ and Starke J).
[14]See Sultanova v Bolgarow & Anor [2019] VSCA 245, [86] (Beach and Niall JJA, Kennedy AJA); Brown v Guss [2014] VSC 251, [345] (McMillan J).
Consideration
It is not contentious that the alleged informal will dated 10 January 2016 is a ‘document’ for the purposes of s 9 of the Act. Prima facie, that document records the testamentary intentions of the deceased. It is clear by reference to the language of the document that the deceased created the document in contemplation of the distribution of his estate following his death. The terms ‘last wishes’ and ‘bequeath’ are both strong indications of that intention. Although not a term recognised in Australia, counsel explained to the Court the reference to ‘universal legatee’ appears to refer to a Spanish civil law concept whereby the person named in the will, in this case Mercedes, takes the benefit of the entirety of the deceased’s estate.
That the deceased intended the document to act as his will is also evidenced by reference to the conversations said to have taken place between the deceased and Mercedes in the days preceding its creation, as well as the deceased’s wish to visit a solicitor the following morning. Although the latter evidence may indicate that the document is merely a precatory statement of intention, the deceased’s words ‘just in case’ as he handed the document to Mercedes, in the knowledge that he was to be admitted into hospital, indicate that he intended that the document would act as his will unless and until a formal will was drafted and duly executed.
The deceased was aged 83 at the time of the creation of the document. The only direct evidence of the deceased’s cognitive function and testamentary capacity at the time of making the informal will is that of Mercedes. She says that his ability to communicate with her was ‘just like any other day’. It must be borne in mind that Mercedes is the sole beneficiary of the deceased’s estate pursuant to the alleged informal will. The evidence of Dr Venkatram and the Austin Health medical notes are of no assistance as direct evidence of the deceased’s capacity at the time of making the informal will. The only utility of that evidence is as circumstantial evidence of the deceased’s cognitive function at specific times before and soon after its creation.
Dr Venkatram knew the deceased in her capacity as a general practitioner. She began treating the deceased in 2013. She said that her appointments with the deceased were approximately 10 to 15 minutes in length, where she typically checked his blood pressure and prescribed him medication for nausea associated with his chemotherapy. She said that the deceased presented to her as ‘very articulate, very knew what he wanted and he was very clear what he wanted’. That view did not change over the two years that she knew him. The last time Dr Venkatram saw the deceased was on 23 December 2015, some two weeks before the alleged informal will was created and three weeks before his death.
Mercedes also refers to subpoenaed medical notes from Austin Health, created following the deceased’s admission into hospital on 11 January 2016. The admission form for the deceased dated 11 January 2016 records that, at the time of admission, he appeared ‘Calm / Quiet’ and his speech was ‘Clear and Continuous’. A second form bearing the same date records that the deceased was not seriously ill at his admission. A nursing admission form dated 12 January 2016 records the deceased’s level of consciousness as ‘alert’ and that he had no difficulties understanding people or communicating. Handwritten observational notes for the days thereafter record that the deceased remained alert and orientated.
In determining whether the deceased had testamentary capacity the Court must view the evidence as a whole and assess capacity on the balance of probabilities. Other than his age and diagnosis of pancreatic cancer, there is nothing in the evidence to suggest that there was any lack of testamentary capacity on the part of the deceased. The circumstantial evidence corroborates the observations of Mercedes that the deceased’s capacity on 10 January 2016 was not impaired. The Court must treat the observations of Mercedes, the sole beneficiary of the informal will, with some hesitation. It is noted that as the deceased had no spouse or children, prima facie, there was no person that would have a natural claim on his estate. In terms of the balance of the test for testamentary capacity, with some hesitation the Court is satisfied, on the balance of probabilities, that the deceased understood that the nature and effect of making a will and was generally aware of the nature of his estate.
The Court is satisfied that the handwritten document dated 10 January 2016 ought be admitted to probate as an informal will of the deceased pursuant to s 9 of the Act.
Orders
The Court will make the following orders:
(a) Pursuant to s 9 of the Wills Act 1997, the formal requirements for execution be dispensed with and the handwritten document dated 10 January 2016 be admitted to probate as an informal will of the deceased.
(b) The parties file short submissions as to the costs of and incidental to the application by 4pm Friday 14 August 2020.
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