Saunders v Pedemont - [2012] VSC 574

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

S CI 2012 04212

GARRY NORMAN SAUNDERS	Plaintiff
v
NICOLE MARIE PEDEMONT	Defendant

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	17-18 SEPTEMBER 2012
DATE OF JUDGMENT:	19 SEPTEMBER 2012
DATE OF PUBLICATION OF REASONS:	28 NOVEMBER 2012
CASE MAY BE CITED AS:	SAUNDERS v PEDEMONT
MEDIUM NEUTRAL CITATION:	[2012] VSC 574

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Wills – Statutory will – Application for leave to apply for order – Testator lacking testamentary capacity – Testator’s last will leaving whole estate to wife and then son but both predeceased him – Granddaughter would therefore take under provisions of wills legislation – Relationship between grandparents and granddaughter limited as they did not meet until 1995 and lived in different cities – Plaintiff the nephew-in-law of testator – First proposed will would leave whole estate to plaintiff and his brother and their wives – Close and caring relationship between families of two nephews and testator and his wife – Different wills proposed by plaintiff – Final proposed will would leave one third to granddaughter – Whether final proposed will satisfied test for making a statutory will – Wills Act 1958, s 31, Wills Act 1997, ss 21, 22, 26, 27, 28, 29, 52(2).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms CH Sparke	Professor Phillip Hamilton
For the Defendant	Ms U Stanisich	Moores Legal

HIS HONOUR:

Introduction

After a contested hearing on 17 and 18 September 2012, I announced on 19 September 2012 that I was refusing the plaintiff’s application under s 21 of the Wills Act 1997 that the Court make a “statutory will” for Ronald Ernest Macquire, and that I would subsequently publish my written reasons for reaching that decision. I followed that course because Mr Macquarie was elderly and frail and I wanted to avoid a situation where he might die before I ruled on the application. What follows are my reasons for refusing the application.

The Legislation

Division 2 of Part 3 of the Wills Act 1997 deals with the topic of “Court authorised wills for persons who do not have testamentary capacity”. The sections relevant to this application are as follows:

21Wills for persons who do not have testamentary capacity authorised by the Court
(1)The Court may make an order authorising a will to be made in specific terms approved by the Court or revoked on behalf of a person who does not have testamentary capacity.
(2)Any person may make an application for an order under this section if the person has first obtained leave of the Court to make the application.
(3)The Court … must not make an order under this section on behalf of a person who is deceased at the time the order is made.

22 Hearing an application for an order
(1) In considering an application for an order under section 21—
(a)the Court may have regard to any information given to the Court in support of…

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 Saunders v Pedemont

Details

AGLC: Saunders v Pedemont [2012] VSC 574
Case: [2012] VSC 574
Decision Date: 19 SEPTEMBER 2012

CaseChat Overview and Summary

In the matter of Saunders v Pedemont, the court was asked to consider an application for leave to apply for an order concerning the will of a deceased individual. The central issue revolved around whether the deceased, who lacked testamentary capacity, intended to create a valid statutory will that would leave his estate to his granddaughter. The deceased’s last will left his entire estate to his wife, who predeceased him, and then to his son, who also predeceased him. Given that the granddaughter would ordinarily take under the provisions of the wills legislation, the plaintiff, who is the nephew-in-law of the deceased, sought to present a new will on behalf of the deceased. The plaintiff proposed a series of wills, with the final version intending to leave one-third of the estate to the granddaughter. The court had to determine whether this final will satisfied the statutory requirements for a valid will.

The primary legal questions before the court involved the interpretation and application of the Wills Act 1958 and the Wills Act 1997. Specifically, the court needed to decide whether the final proposed will met the statutory criteria for a valid will, considering the deceased's lack of testamentary capacity. The court examined whether the final proposed will adequately reflected the deceased's intentions, given the limited relationship between the deceased and his granddaughter. It also considered the relationship dynamics between the deceased and the plaintiff's family, who had a close and caring relationship with the deceased and his wife.

The court concluded that the final proposed will did not satisfy the statutory requirements for a valid will. The court found that the proposed will did not accurately reflect the deceased's intentions due to the limited relationship between the deceased and his granddaughter. Additionally, the court held that the plaintiff's motivations in proposing the will were not aligned with the statutory provisions. Consequently, the court refused the application for leave to apply for an order, affirming that the statutory provisions for creating a will in cases of incapacity were not met by the final proposed will.

The court's decision was definitive, and it did not grant the plaintiff leave to apply for the order. The court held that the statutory requirements for making a will in cases of incapacity were not satisfied, and therefore, the application was dismissed. The court emphasised the importance of accurately reflecting the deceased's intentions and the need for a close and meaningful relationship between the testator and the beneficiaries in such cases.

Orders