Re Will of Skehan

[2007] VSC 534

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
IN ITS PROBATE JURISDICTION
PRACTICE COURT

No. Prob 82 of 2007

IN THE MATTER of the Will of MICHAEL JOHN SKEHAN, deceased

Application by:

ALEXIS JOAN HAYS and TIMOTHY EDWARD GOLDSWORTH

Plaintiffs

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JUDGE:	HARPER  J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 DECEMBER 2007
DATE OF JUDGMENT:	6 DECEMBER 2007
CASE MAY BE CITED AS:	IN THE WILL OF SKEHAN
MEDIUM NEUTRAL CITATION:	[2007] VSC 534

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WILLS – Application to admit a handwritten document to probate as a codicil to the will – Whether testamentary in nature – Wills Act 1997, s.9.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S. Newton	Stewart & Noble
For the beneficiary, Philip Wayne Gale	Mr  R. Young	Campagna Gray & Mallinder

HIS HONOUR:

1. Michael John Skehan died on 25 November 2006 leaving a will dated 14 February 2006.  There was found in the caravan in which he was living at the time of his death a handwritten document headed “Legally Binding Codicil”.  That document contains six separate paragraphs each of them, as I understand it, signed by the deceased but only one of which could be said to be testamentary in character.  That is the first of those paragraphs.

1. The document itself is undated; and although it seems that not all the paragraphs were written at the same time there is no date to any individual paragraph.  The paragraph put forward as amounting to a codicil to the deceased's will reads as follows:  "If  I don't get around to changing my will I wish for Lexie to share her share equally with Phil Gale.  Please no fighting about this."  And then there appears the signature of the deceased.

1. The reference to "Lexie" is I conclude a reference to Alexis Joan Hayes who is one of the executors and trustees named by the deceased in his will.  There is no dispute but that that will dated, as I say, on 14 February 2006 is the last will of the deceased subject only the question whether the document to which I have referred should be admitted to probate as a codicil of that will.

1. In my opinion the document should be so admitted.  It is, as the parties to this proceeding accepted, signed by the deceased.  It is, in my opinion, testamentary in nature in that it gives a direction about the disposition of a portion of the estate of the deceased.

1. The application is made under s.9 of the Wills Act 1997. That section provides that the court may admit to probate, as the will of a deceased person, a document which has not been executed in the manner in which a will is required to be executed by the Act.

1. The Supreme Court may make an order of this kind if it is satisfied that the person by whom the document was made intended that document to be his or her will or, I interpolate, his or her codicil.

1. In making its decision under the section the court may have regard to any evidence relating to the manner in which the document was executed and any evidence of the  testamentary intentions of the testator including statements made by him. 

1. In that context, I have before me an affidavit by Philip Wayne Gale sworn on

   
   5 December 2007

   and filed today, 6 December 2007.  In that affidavit Mr Gale deposes to having known the deceased for approximately 18 years before his death on 25 November last year.  The two became friends and, according to Mr Gale, they gave each other mutual assistance particularly in their several farming endeavours; with Mr Gale, who qualified at the Royal Melbourne Institute of Technology as a marine engineer and who has skills in fitting and turning, welding and hydraulics, assisting the deceased to repair farm machinery and the like as well as with general handyman work.

1. Mr Gale further deposes to the fact that the deceased acknowledged both the friendship and his indebtedness to Mr Gale for the assistance which Mr Gale had given him, although he did not say anything to Mr Gale about the matter of becoming a beneficiary under the deceased's will. 

1. I am satisfied on the basis of my examination of the document containing the testamentary  paragraph, and the affidavit of Mr Gale to which I have referred, that the paragraph in question should be admitted to probate as a codicil of the deceased's will of 14 February 2006.  I will order accordingly. 

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