JUDGE:	McMILLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2013
DATE OF JUDGMENT:	2 August 2013
CASE MAY BE CITED AS:	Rowe v Storer
MEDIUM NEUTRAL CITATION:	[2013] VSC 385

---

WILLS AND ESTATES – Application by the plaintiff to have an unsigned draft will admitted to probate – Whether the testator intended the unsigned draft will to be her final will – Wills Act 1997 s 9 – Fast v Rockman [2013] VSC 18 (7 February 2013) – Insufficient evidence to satisfy the burden of proof – Briginshaw v Briginshaw (1938) 60 CLR 336.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R B Phillips	McNab McNab & Starke
For the Defendant	Ms U Stanisich	Burdon-Smith & Associates

HER HONOUR:

Introduction

The plaintiff, Patricia Margaret Poole, has applied for a grant of probate of an informal will of Olive Francis Poole (‘the deceased’), who died on 16 November 2011.

The will was prepared by Waters Lawyers, a firm of solicitors in Cranbourne, but was never signed by the deceased. The informal will named the plaintiff as executrix and, aside from $52 000 in other legacies, left the residuary of the estate to the plaintiff. The estate of the deceased is valued at about $700 000.

The question that the Court must decide is whether the draft will prepared by Waters Lawyers should be admitted to probate under s 9 of the Wills Act 1997 (’the Act’) as an informal will.

Factual Background – The Making of the Draft Will

The deceased was born in Tooradin, Victoria. She had three brothers and two sisters. After her mother’s death, her father remarried.[1] The stepmother could not look after all the children so the three sisters were fostered out to families in the Tooradin area.[2] During this time she retained some contact with her siblings, while in the later years of her life her contact with most of her siblings fell away and they did not see her regularly.[3] The one exception to this was her sister, Gloria Storer, who deposed that she spoke to the deceased about once a week.[4]
[1]Affidavit of Patricia Margaret Rowe sworn 1 October 2012, [6].
[2]Affidavit of Janet Mary Angel sworn 27 September 2012, [5]; Affidavit of Gloria Isobel Storer sworn 19 June 2013, [2].
[3]Affidavit of Patricia Margaret Rowe sworn 1 October 2012, [7]; Affidavit of Janet Mary Angel sworn 27 September 2012, [18]; Affidavit of Edith Flynn sworn 18 June 2013; Affidavit of Audrey Joyce Poole sworn 18 June 2013.
[4]Affidavit of Gloria Isobel Storer sworn 19 June 2013, [4].

The deceased had a close circle of friends whom she relied upon for support. The deceased could not drive, and relied on friends, public transport and taxis to travel.[5]…

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 Rowe v Storer

Details

AGLC: Rowe v Storer [2013] VSC 385
Case: [2013] VSC 385
Decision Date: 2 August 2013

CaseChat Overview and Summary

The parties involved in the Rowe v Storer case were the plaintiff, Rowe, and the defendant, Storer, the executor of the estate of the deceased. The dispute centred on an unsigned draft will that the plaintiff sought to have admitted to probate. The matter was heard in the Supreme Court of Victoria. The legal issues that the court had to determine were whether the unsigned draft will represented the deceased's final testamentary intention and if so, whether it was sufficient to satisfy the requirements of the Wills Act 1997.

The court considered whether the draft will met the criteria for being the deceased's final expression of testamentary intention, as outlined in section 9 of the Wills Act 1997. This involved assessing whether there was sufficient evidence to establish that the deceased intended the draft to be her final will. The court referenced the decision in Fast v Rockman, where it was determined that an unsigned draft will could be admitted to probate if it was the final expression of the deceased's testamentary intention. The court also applied the Briginshaw v Briginshaw standard of proof, requiring the plaintiff to demonstrate on the balance of probabilities that the unsigned draft will was indeed the deceased's final will. After evaluating the evidence, the court found that there was insufficient proof to meet this standard.

The court concluded that the plaintiff had not discharged the burden of proof required to admit the unsigned draft will to probate. Consequently, the plaintiff's application was dismissed. The court found that there was not enough evidence to establish that the unsigned draft was the deceased's final expression of testamentary intention. The case highlights the stringent requirements for proving the validity of an unsigned draft will under the Wills Act 1997.

Orders