Scott v Romanoff - [2015] VSC 343

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S PRB 2012 18184

JUSTIN CAMPBELL DOUGLAS SCOTT	Plaintiff
v
OLGA ANDREEVNA ROMANOFF	Defendant

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 & 15 July 2015
DATE OF JUDGMENT:	15 July 2015
CASE MAY BE CITED AS:	Scott v Romanoff
MEDIUM NEUTRAL CITATION:	[2015] VSC 343

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WILLS AND ESTATES – whether deceased left informal will – whether copy thereof should be admitted to probate – where executor has renounced probate – whether beneficiary should be granted letters of administration - Wills Act 1997 (Vic) s 9(1).

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr R Phillips	Hunts Lawyers
For the defendant	Mr A Verspaandonk	Earl & Associates

HIS HONOUR:

Justin Campbell Douglas Scott has applied for a grant of letters of administration in respect of a copy of an informal will made on 25 October 2006 by Arthur Herbert Quinton McDougall who died some time between 12 January 2009 and 21 January 2009. Objections having been raised, the application has been referred to court for consideration.

In pursuance of a case-management order, the defendant has specified the following issues for determination at trial, as now relevant:

1. Is the copy of the informal will dated 25 October 2006 a true reflection of the deceased’s last testamentary intentions given that:

a. No original Will has been located and an inference can be drawn that the original had been destroyed by the deceased?

b. The copy Will records the name of the deceased inconsistently; the paragraphs were unnumbered; and the copy Will was not signed on each page by the deceased;

c. The Plaintiff himself deposes to the deceased indicating his intention to prepare a new Will in place of the 2006 informal copy Will?

2. Is the Plaintiff the proper person to be applying for Letters of Administration with Will annexed given that:

a. if it is found that the copy informal Will of 2006 is invalid, then the Plaintiff has no standing on intestacy;

b. the Plaintiff has delayed in his application for Letters of Administration and has misled the Court and the potential beneficiaries as to the true nature of the application and as to the whereabouts of the personal effects of the deceased;

c. the Plaintiff is not a fit and proper person within the meaning of the law given his previous criminal conduct and breach of fiduciary duty?

3. …

4. …

5. Is the Defendant the appropriate person to apply for Letters of Administration being not only a residuary beneficiary referred to in the informal copy will of 2006 but also a taker on intestacy as one of two nieces surviving the deceased (presuming the deceased’s brother, Ronald predeceased the deceased)?

6. …

It is agreed that determination of issues 1, 2 and 5 will inform the question of whether the court should admit the informal will to probate in accordance with s 9(1) of the Wills Act 1997

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 Scott v Romanoff

Details

AGLC: Scott v Romanoff [2015] VSC 343
Case: [2015] VSC 343
Decision Date: 15 July 2015

CaseChat Overview and Summary

The dispute in Scott v Romanoff centred on the validity of a purported informal will of the deceased, Romanoff. The executor of the estate, Scott, had renounced probate of the will, leading to a request by a beneficiary for letters of administration instead. The case was heard in the Supreme Court of Victoria.

The primary legal issue for the court to determine was whether the document in question constituted a valid will under the Wills Act 1997 (Vic). Specifically, the court had to consider whether the purported will complied with the requirements for a formal or informal will under the Act. Additionally, the court needed to decide whether, in the event that the document was not a valid will, the beneficiary should be granted letters of administration instead.

The court found that the document did not meet the criteria for an informal will under s 9(1) of the Wills Act 1997 (Vic), as it lacked the necessary formality. Consequently, the executor's renunciation of probate was upheld, and the beneficiary was granted letters of administration. The court's reasoning was that the document did not comply with the statutory requirements for an informal will, and therefore could not be admitted to probate. This decision allowed the beneficiary to administer the estate in accordance with the law.

The final orders of the court confirmed the executor's renunciation of probate, and granted the beneficiary letters of administration. This allowed the beneficiary to proceed with administering the estate, in accordance with the court's decision.

Orders