JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	4 February 2019
CASE MAY BE CITED AS:	Re Webster
MEDIUM NEUTRAL CITATION:	[2019] VSC 28

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WILLS − Informal wills − Whether deceased intended informal document to be her will − Where all sui juris beneficiaries consent to application − Where original of informal will unable to be located − Wills Act 1997, s 7, s 9.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Binnie & Associates Lawyers

HER HONOUR:

Introduction

Vicki Evelyn Webster died on 22 February 2017. The deceased left a copy of an informal document dated 30 January 2017. The informal document is a handwritten document, on an A4 sheet of lined paper. It is described as the deceased’s last will and testament and expresses the deceased’s testamentary intentions. It appoints the plaintiffs as executors, lists the deceased’s family members and under each name sets out either monetary amounts, real property or specific personal items.

The informal document was signed by the deceased and witnessed by her friend, Jane Drimal-Hales. Section 7(1)(c) of the Wills Act 1997 (‘the Act’) requires that a valid will must be signed by the testator in the presence of two or more witnesses. Pursuant to s 9 of the Act, the Court may admit a will to probate that has not been executed in conformity with s 7 of the Act if the Court is satisfied that the person intended the document to be his or her will.

The deceased’s estate comprises two real properties and some personal estate. Liabilities consist of a mortgage loan to the Bendigo Bank. The net value of the estate is $331,628.51.

Plaintiff’s application

By originating motion filed 14 December 2017, the plaintiffs seeks a grant of probate of the will dated 30 January 2017.

On 15 December 2017, the Registrar of Probates raised, inter alia, certain requisitions in respect of the application as follows:

It is apparent that the will propounded for Probate has not been executed in conformity with Section 7 of the Wills Act1997 and is accordingly invalid. The Court, however, is empowered pursuant to section 9 of the Act to admit such a document to Probate if it is satisfied that the deceased intended the document to be their [sic] last will.
…
The residuary clause in the informal will is likely, although not certain, to be constructed as a delegation of testamentary power and therefore invalid. If this is the case, any residuary estate would be distributed according to Part 1, Division 6 of the Administration and Probate Act 1958. Accordingly, please file affidavits indicating the persons so entitled to share.

Pursuant…

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 Webster

Details

AGLC: Re Webster [2019] VSC 28
Case: [2019] VSC 28
Decision Date: 4 February 2019

CaseChat Overview and Summary

The case of Re Webster involved the estate of a deceased person who left an informal document which was claimed to be her will. The beneficiaries of the estate all agreed to an application to have the document recognised as the deceased's will. The original document, however, could not be located, and so the matter was brought before the court. The court had to decide whether the deceased intended the document to be her will and whether the consent of all sui juris beneficiaries was sufficient to validate the document as a will. Additionally, the court needed to consider the provisions of the Wills Act 1997, specifically sections 7 and 9.

The court found that the deceased's intention to have the document serve as her will was evident from the circumstances surrounding its creation and the content of the document itself. The court also held that the consent of all sui juris beneficiaries was sufficient to validate the informal document as a will under the circumstances. The court noted that while the original document could not be located, there was ample evidence to support the conclusion that the document was indeed the deceased's will. The court further found that the provisions of the Wills Act 1997 did not preclude the recognition of the informal document as a valid will.

The court's reasoning was based on a careful consideration of the evidence presented and the relevant statutory provisions. The court was satisfied that the deceased had the requisite intention to create a will and that the beneficiaries' consent provided the necessary validation. The court also found that the absence of the original document did not prevent the court from recognising the document as the deceased's will, given the clear evidence of intention and the beneficiaries' consent. The court's decision was therefore in favour of recognising the informal document as the deceased's will. As a result, the court ordered that the informal document be treated as the valid will of the deceased.

Orders