Silva v Scott - [2022] VSC 397

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2020 03987

KENNETH JOHN SILVA and DAVID JAMES SILVA (as executors of the will and estate of Arthur John Silva)	Plaintiffs
v
PETER KENNETH SCOTT	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	21–22 June 2022
DATE OF JUDGMENT:	18 July 2022
CASE MAY BE CITED AS:	Re Silva; Scott v Silva
MEDIUM NEUTRAL CITATION:	[2022] VSC 397

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WILLS, PROBATE AND ADMINISTRATION – Rectification of a will – Determining testator’s intention – Whether will carries out testator’s intentions – Will does not carry out testator’s intentions because it does not give effect to testator’s instructions – Order for rectification – Wills Act 1997 (Vic), s 31(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Pascoe	Hutchinson Legal
For the Defendant	Mr T Messer	HDME Lawyers

HER HONOUR:

Arthur John Silva (Jack) died on 28 December 2019, aged 91, leaving a will dated 30 March 2014 and an estate valued for probate at $3.34 million. During his lifetime, Jack had six children: Kenneth John Silva, David James Silva, Janet Ruth Dasilva D’Alessandro, Helen Samuel, Lynette Dawn Budden and Heather Raymond. Jack was survived by five of his children: Kenneth, David, Ruth, Helen and Lynette.[1]
[1]For clarity and convenience, I refer in this judgment to Jack Silva and members of his family by their given names. No disrespect is intended.

Heather died before her father, on 10 July 2013. She was survived by her four children, Margaret Ann Ritter, Katherine Brown, Maurice James Scott and Peter Kenneth Scott.

By the will, Jack appointed Kenneth, David and Ruth as executors and trustees, and disposed of his entire estate by clause 5, in the following terms:

My executors hold my estate UPON TRUST to divide it equally between such of my children KENNETH JOHN SILVA DAVID JAMES SILVA JANET RUTH DA SILVA HELEN SAMUELS and LYNETTE DAWN BUDDEN who survive me but if a child of mine has already died or dies before attaining a vested interest leaving children who attain Twenty-five (25) years then those children shall take equally the share which their parent would have otherwise taken.

Probate of the will was granted to Kenneth and David (the Executors) on 19 March 2020, with leave reserved for Ruth to come in and prove the will.

The Executors consider that, properly construed, the will requires them to divide Jack’s estate equally between his five surviving children, and does not provide for any payment to Heather’s children. Heather’s son Peter accepts that to be the correct construction of the will, but contends that the will does not give effect to Jack’s instructions. Peter maintains that Jack’s intention was to provide that Heather’s children should take equal shares in the share of the estate that would have gone to Heather if she had still been alive. By summons filed 17 September 2020, Peter seeks an order under…

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 Silva v Scott

Details

AGLC: Re Silva; Scott v Silva [2022] VSC 397
Case: [2022] VSC 397
Decision Date: 18 July 2022

CaseChat Overview and Summary

In Silva v Scott, the deceased, Silva, left a will that was contested by her daughter, Scott. The dispute centred on the interpretation and rectification of the will, questioning whether it accurately reflected Silva's intentions. The matter was brought before the Supreme Court of Victoria to determine the validity and interpretation of the will.

The primary legal issues the court had to address were whether the will was correctly executed and if it accurately reflected Silva's intentions. The court also needed to determine whether the will should be rectified to better align with Silva's expressed wishes. The central question was whether the will, as executed, failed to give effect to Silva's instructions, thus warranting rectification under section 31(1) of the Wills Act 1997 (Vic).

The court examined the evidence and found that the will did not accurately reflect Silva's intentions. It concluded that the executed will did not give effect to her instructions, thereby not carrying out her wishes. The court held that the will should be rectified to better align with Silva's intentions as evidenced by her statements and instructions. Accordingly, the court ordered the rectification of the will to ensure it carried out Silva's intentions as closely as possible.

Orders