Re Williams - [2018] VSC 543

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2017 21314

IN THE MATTER of the Will and Estate of LLOYD GEORGE WILLIAMS, deceased

LLOYD GEORGE WILLIAMS

Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2018, 25 May 2018, written submissions dated 26 March 2018 and 21 June 2018
DATE OF JUDGMENT:	21 September 2018
CASE MAY BE CITED AS:	Re Williams
MEDIUM NEUTRAL CITATION:	[2018] VSC 543

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WILLS — Application for grant of administration on intestacy — Whether testator’s will as altered by handwritten alterations revokes will — Whether testator intended handwritten alterations to revoke his will — Where handwritten alterations to deceased’s will clear in meaning and form contain no language of revocation — Wills Act 1997, s 12

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A P Dickenson	Nevett Wilkinson Frawley

HER HONOUR:

Introduction

Lloyd George Williams (‘the deceased’) died on 20 May 2016, aged 62 years. The deceased left a formal will dated 17 May 1990 that was subsequently altered by handwritten alterations made by him.

The deceased was survived by three of his four children, namely, Joanna Williams, Liana Williams and the plaintiff. His fourth child predeceased him, having died on 23 November 2013. She was survived by her child, Shania Robson, born on 29 April 2008. The child lives with the deceased’s former wife, Elizabeth Charleson, who is her legal guardian.

The deceased and Ms Charleson divorced in July 1999, the decree nisi being made absolute on 8 July 1999.

Ms Kaye Moore claims to have been in a domestic relationship with the deceased prior to his death. On 4 August 2016, she foreshadowed an application for family provision from the estate of the deceased, pursuant to Part IV of the Administration and Probate Act 1958.

The deceased’s estate is valued at $824,706.77 with assets of $1,598,290.35 and liabilities of $773,583.58.

The deceased’s will

Clause 2 of the deceased’s formal will appoints his then wife, Ms Charleson, as the executor and trustee of his estate and leaves his estate to her. Clause 3 of the will provides that in the event that Ms Charleson does not survive the deceased by 30 days, the deceased’s cousin, William Dunn, is appointed as the executor of the estate and the residue of the estate is to be divided between his surviving children, the plaintiff, Joanna Williams and Liana Williams, in equal shares.

After his divorce, the deceased made a number of handwritten alterations to his will on an unknown date as follows:

(a) in clause 2:

(i) the words ‘SHOULD my Wife ELIZABETH LOUISE WILLIAMS survive me by thirty clear’ were crossed out and next to those words was written ‘“Divorced” Remove her’ and the signature of the deceased;

(ii) the words ‘her Executrix’ were crossed out and above these words was written ‘my son Lloyd George Williams III as Executrix’;

(iii) the words ‘said Wife for…

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 Williams

Details

AGLC: Re Williams [2018] VSC 543
Case: [2018] VSC 543
Decision Date: 21 September 2018

CaseChat Overview and Summary

In the matter of the deceased, Re Williams, the court was called upon to determine whether the testator's will, as altered by handwritten changes, revoked the will. The applicant, the executor of the will, sought a grant of administration on intestacy on the basis that the handwritten alterations by the testator amounted to a revocation of the will. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the testator's handwritten alterations to his will constituted a revocation of the will. The court was required to consider the meaning and effect of the handwritten alterations and whether they were clear and unambiguous. The court also had to consider the relevant statutory provisions, in particular section 12 of the Wills Act 1997, which sets out the requirements for revoking a will.

The court held that the handwritten alterations did not amount to a revocation of the will. The court found that the alterations were clear and unambiguous and did not contain any language of revocation. The court held that the testator's intention was to modify the will, not to revoke it entirely. The court noted that the alterations were made in a methodical and organised manner and that there was no evidence to suggest that the testator intended to revoke the will. The court held that the applicant was not entitled to a grant of administration on intestacy and that the will should be admitted to probate with the handwritten alterations incorporated.

The court ordered that the will be admitted to probate with the handwritten alterations incorporated and that the applicant, as executor of the will, be granted a grant of probate. The court further ordered that the applicant take all necessary steps to distribute the estate in accordance with the terms of the will, as altered by the handwritten changes.

Orders