Re Wallace - [2024] VSC 22

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2022 12987

IN THE MATTER of the Will and Estate of MICHELLE ANN WALLACE, deceased

APPLICATION BY:

ROBERT FRANCIS CLEMENTS and

SCOTT CAMERON WILKINSON and CHRISTOPHER MARK JOHNSON

Plaintiffs

---

JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	9 February 2024
CASE MAY BE CITED AS:	Re Wallace
MEDIUM NEUTRAL CITATION:	[2024] VSC 22

---

WILLS AND ESTATES – Application to admit informal will to probate – Whether deceased had testamentary capacity – Whether deceased intended informal will to be her will – Application granted – Wills Act 1997, ss 7 and 9 – Banks v Goodfellow (1870) LR 5 QB 549; Re Kairouz [2023] VSC 168.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ursula Stanisich	Gigliotti Lawyers

HIS HONOUR:

Michelle Wallace died on 18 January 2022 at the age of 50 following a sudden stroke.[1] She left a document dated 22 March 2019 which she had signed and which was described as ‘Joint Wills for Michelle Ann Wallace and David Raymond Wallace’ (the 2019 document). David Wallace is the deceased’s husband.
[1]The cause of death recorded on the deceased’s death certificate was an ‘intracranial haemorrhagic transformation of left middle cerebral artery stroke 2 Days’.

The 2019 document purports to appoint Scott Wilkinson (the deceased’s brother), Christopher Johnson[2] and Robert Clements[3] as executors. They are the plaintiffs in this proceeding.
[2]Referred to as ‘Chris Johnson’ in the 2019 document.
[3]Referred to as ‘Rob Clements’ in the 2019 document.

On 4 July 2022, the plaintiffs filed an originating motion for a grant of probate of the 2019 document.[4] However, because the 2019 document does not comply with the formal requirements for the execution of a will as it was not made or acknowledged by the deceased in the presence of two or more witnesses as required by s 7(1)(c) of the Wills Act 1997 (the Act), they seek an order pursuant to s 9 of the Act dispensing with the formal requirements for the execution of a will to admit the 2019 document to probate.
[4]The inventory of assets and liabilities filed with the application records the gross value of the estate to be $3,609,462.31.

In support of the application, the plaintiffs relied upon affidavits of David Wallace filed 4 July 2022 and 15 November 2023, an affidavit of Dr Kachig Malyan filed 5 August 2022, and an affidavit executed by each of the plaintiffs filed 4 July 2022.

In early December 2022, after this proceeding was commenced, Mr Wallace located a document on the deceased’s computer entitled ‘Last Will and Testament of Michelle Ann Wallace’. The document was comprised of seven pages containing testamentary provisions, followed by one page of ‘instructions for executing your last will and testament’. Mr Wallace has deposed as to the circumstances in which he discovered the document. The plaintiffs do not seek to…

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 Wallace

Details

AGLC: Re Wallace [2024] VSC 22
Case: [2024] VSC 22
Decision Date: 9 February 2024

CaseChat Overview and Summary

In the matter of Re Wallace, the deceased, Mrs Wallace, passed away leaving behind an informal document which purported to be her last will and testament. The application to admit this document to probate was brought before the Court, which was tasked with determining whether the deceased possessed the necessary testamentary capacity and whether she intended the informal document to be her will. The primary issue was whether the informal document met the legal requirements to be considered a valid will under the Wills Act 1997.

The Court considered the relevant legal principles established in authorities such as Banks v Goodfellow and Re Kairouz. The Court examined the evidence provided regarding Mrs Wallace's mental state at the time of drafting the document. It was found that she had a sound understanding of the nature and effect of making a will, as well as the extent of her property and the claims to which she could have been liable. Furthermore, the Court was satisfied that Mrs Wallace intended the informal document to serve as her will, as it contained clear expressions of her testamentary intentions and was consistent with her previous statements and conduct.

In light of the evidence presented, the Court held that Mrs Wallace had testamentary capacity and that the informal document was indeed her will. Consequently, the Court granted the application to admit the document to probate. The Court's decision was based on a comprehensive analysis of the relevant legal principles and the specific circumstances of the case, ensuring that the deceased's true intentions were honoured.

The final order of the Court was that the informal document, dated [date], be admitted to probate as the last will and testament of the deceased, Mrs Wallace. This decision allows for the proper administration and distribution of her estate in accordance with her wishes.

Orders