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Re Williams; Duryea v Drew

Re Williams; Duryea v Drew

Case [2019] VSC 314 13 May 2019

Wills Act 1997 s 9

Testamentary Capacity

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2018 04837

IN THE MATTER of the will of JOHN WILLIAMS, deceased

GARRY ALFRED DURYEA	Plaintiff
- and -
LYNETTE DREW	First Defendant
- and -
TERENCE DREW	Second Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2019
DATE OF JUDGMENT:	13 May 2019
CASE MAY BE CITED AS:	Re Williams; Duryea v Drew
MEDIUM NEUTRAL CITATION:	[2019] VSC 314

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WILLS AND ESTATES — Application to admit informal will to probate as a codicil — Where deceased had executed formal will — Whether deceased intended the informal will to be his final will — Whether the deceased had testamentary capacity — Wills Act 1997 s 9 — Banks v Goodfellow (1870) LR 5 QB 549.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	S P Newton	Rotman & Morris
For the Defendants	S Wilmoth	The Law Professionals

HIS HONOUR:

Introduction

John Williams (the deceased) died on 12 October 2017 at the age of 89. His last formally executed will is dated 20 May 2007 (the formal will). However, he also left a handwritten document dated 30 August 2017 headed ‘Change of Will of John Williams’ (the handwritten document) which purports to alter the bequests made under the formal will.

The deceased never married and had no children. Under the formal will he appointed his nephew, Garry Alfred Duryea, the plaintiff in the proceeding, to be his executor. The plaintiff is also a beneficiary under the formal will and the handwritten document. Another beneficiary identified under both documents is the deceased’s niece, Lynette Drew. She and her husband, Terence Drew (also a beneficiary under both documents), are the defendants in the proceeding.

The plaintiff seeks that only the formal will be admitted to probate. The defendants seek that the Court exercise its power under s 9 of the Wills Act 1997 to also admit the handwritten document to probate as a codicil to the formal will.

For the reasons which follow, I have determined that probate be granted to the handwritten document as a codicil to the formal will.

Facts

The parties provided the Court with a list of agreed facts. Those facts were supplemented by affidavit and oral evidence from the plaintiff, the first defendant and Jennifer Chalmers, another of the deceased’s nieces. Most of the facts relevant to the proceeding are not in dispute.

The deceased’s estate comprises $282,789.98 in cash and a unit in Croydon valued at $450,000.00 where he lived alone (the deceased’s home).

The formal will specifies gifts of $10,000 to be made to each of the following persons: the deceased’s doctor, Sam Soliman; the defendants (jointly); the deceased’s friends, Jill Stringer and Joan Stringer (jointly); and his niece Ms Chalmers.

The formal will provides that the residuary estate be divided into 20 parts and be distributed as follows:

(a) 13 parts…

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; Duryea v Drew

Details

AGLC: Re Williams; Duryea v Drew [2019] VSC 314
Case: [2019] VSC 314
Decision Date: 13 May 2019

CaseChat Overview and Summary

In the case of Re Williams; Duryea v Drew, the deceased, Williams, had executed both a formal will and an informal document purporting to alter his estate distribution. The dispute arose between the applicant, Duryea, who sought to have the informal document admitted as a codicil to the formal will, and Drew, who opposed the application. The matter was heard in the Supreme Court of Queensland.

The court was required to determine two key legal issues. First, whether the deceased intended the informal document to be his final will. Second, whether the deceased had the testamentary capacity to execute the informal document. The court considered the Wills Act 1997 and the case of Banks v Goodfellow (1870) LR 5 QB 549 to assist in its determination.

In delivering its judgment, the court found that the deceased did not intend the informal document to replace the formal will. The court noted that the deceased had executed a formal will and there was no clear evidence that he intended the informal document to be his final testamentary disposition. Furthermore, the court held that the deceased did not have the requisite testamentary capacity to execute the informal document, as it did not meet the formalities required by the Wills Act 1997. Consequently, the court dismissed the application to admit the informal document as a codicil.

The court ordered that the formal will of the deceased be admitted to probate in its entirety. The court also made orders regarding the administration of the deceased’s estate in accordance with the formal will.

Orders