State Trustees Limited v Do and Nguyen - [2011] VSC 45

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

S CI 2010 01021

STATE TRUSTEES LIMITED	Plaintiff
v
HAO HON DO	First defendant
and
HONG NGUYEN	Second defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2011
DATE OF JUDGMENT:	23 February 2011
CASE MAY BE CITED AS:	State Trustees Limited v Do and Nguyen
MEDIUM NEUTRAL CITATION:	[2011] VSC 45

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WILLS AND CODICILS – statutory will – aged person with dementia – lacking testamentary capacity – application for authorisation for making of will – person’s likely or reasonably expected intentions – previous wills – relationship evidence – intentions revealed to benefit family, godson and two neighbours – amending applications in response to court’s remarks – ‘what the intentions … would be likely to be’ – ‘what the intentions … might reasonably be expected to be’ – Wills Act 1997, ss 21 and 26.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr Jeremy Smith	Ms Jasmine Berger, Senior Corporate Lawyer for State Trustees Limited
For the defendants	Mr Simon Pitt	ADN Lawyers

HIS HONOUR:

State Trustees Limited is the administrator of the estate of Lydia Aukland under the Guardianship and Administration Act 1986. It seeks leave to make an application under s 21(2) of the Wills Act 1997 for the court to authorise the making of a will on her behalf under s 21(1) and in terms specified in a draft which has been produced to the court. It also seeks the court’s authorisation for that will to be made.

By the provisions of Division 2 of Part 3 of the Wills Act, the court may make an order authorising a will to be made in specific terms approved by the court on behalf of a person who does not have testamentary capacity.[1] Leave to make the application must first be obtained.[2] An order may not be made if the person is deceased.[3] In considering the application for leave and authorisation, the court may have regard to information which is given to it in support of the application for leave, may inform itself in any manner it sees fit and is not bound by the rules of evidence.[4] The application for leave and authorisation may be heard together.[5] Those entitled to appear at the application include the person’s administrator and any person with a genuine interest in the matter.[6]
[1]Section 21(1).
[2]Section 21(2).
[3]Section 21(3).
[4]Sections 22 and 27(1).
[5]Section 27(2).
[6]Section 29.

Before granting leave to apply, the court must be satisfied that the person on whose behalf the will is to be made ‘does not have testamentary capacity’, the proposed will ‘reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be’ and it is reasonable in all the circumstances for the court to authorise the making of the will.[7] As those conditions must be satisfied before the court can grant leave…

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.

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Details

Case: [2011] VSC 45
Decision Date: 23 February 2011

CaseChat Overview and Summary

State Trustees Limited, the executor of a deceased estate, sought to have a statutory will made on behalf of an elderly woman with dementia declared valid. The deceased had previously executed two wills, the second of which was invalidated due to concerns about her testamentary capacity. The applicants argued that the deceased's likely or reasonably expected intentions could be discerned from her previous wills, her relationships with family members, her godson, and two neighbours, and the evidence presented. The court was tasked with determining whether the statutory will complied with the requirements of the Wills Act 1997, specifically sections 21 and 26, which pertain to the making of wills on behalf of individuals lacking testamentary capacity.

The court examined the statutory framework governing wills made on behalf of individuals lacking testamentary capacity, focusing on the language of the Wills Act 1997. It considered the deceased's previous wills, the evidence of her relationships and intentions, and the court's earlier remarks on the matter. The applicants argued that the statutory will reflected the deceased's likely or reasonably expected intentions, as evidenced by her previous wills and the relationships she had with her family, godson, and neighbours. The court needed to decide whether the statutory will met the statutory criteria and accurately reflected the deceased's intentions.

After reviewing the evidence and the statutory framework, the court found that the statutory will complied with the requirements of the Wills Act 1997. The court determined that the statutory will accurately reflected the deceased's likely or reasonably expected intentions, as evidenced by her previous wills, her relationships with family, her godson, and neighbours, and the evidence presented. The court was satisfied that the statutory will was a valid expression of the deceased's testamentary intentions and authorised its execution.

The court granted the applicants' requests to amend the statutory will in response to its remarks, ensuring that it accurately reflected the deceased's likely or reasonably expected intentions. The court emphasised the importance of considering the deceased's previous wills, relationships, and evidence in determining her intentions. The court concluded that the statutory will met the statutory criteria and accurately reflected the deceased's intentions, authorising its execution. The court also granted the applicants' requests to amend the statutory will, ensuring that it accurately reflected the deceased's likely or reasonably expected intentions.

Orders