Steel v Ifrah - [2013] VSC 199

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S PRB 2012 04350

BENJAMIN JOSEPH STEEL	Plaintiff
v
ROBERT IFRAH	Defendant

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 APRIL 2013
DATE OF JUDGMENT:	24 APRIL 2013
CASE MAY BE CITED AS:	STEEL v IFRAH
MEDIUM NEUTRAL CITATION:	[2013] VSC 199	1^st Revision: 30 April 2013

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Wills, Probate and Administration – revocation of will – whether will revoked by subsequent marriage – whether will made in contemplation of a marriage - application for probate – s 13, Wills Act 1997 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Boaden	Richmond & Bennison
For the Defendant	Ms L Englefield	Pana Dokos

HIS HONOUR:

Introduction

The plaintiff, Benjamin Steel, applies for probate of the will of his mother Heather Diane Ifrah, deceased. The application was referred to the court by the Registrar under s 12 of the Administration and Probate Act, 1958. The will was made on 25 March 2010. On 10 October 2010, the deceased married the defendant. The issue in this proceeding is whether the testatrix’s marriage revoked that will and consequently she died intestate.

Legal principles applying
Wills Act 1997

Section 13 of the Wills Act 1997 provides as follows:

13       What is the effect of marriage on a will?
(1)       A will is revoked by the marriage of the testator.
(2)       Despite subsection (1)—
(a)a disposition to the person to whom the testator is married at the time of his or her death; or

…
is not revoked by the marriage of the testator.

(3) Despite subsection (1)—
(a)a will made in contemplation of a marriage (whether or not that contemplation is expressed in the will) is not revoked by the solemnisation of the marriage contemplated; and
(b)a will which is expressed to be made in contemplation of marriage generally is not revoked by the marriage of the testator.

The Wills Act 1997 revoked the Wills Act 1958, altering the provisions that governed revocation of a will by a marriage. Section 16(2)(b) of the Wills Act 1958 had provided that a will shall not be revoked by a marriage if it appears from the terms of the will, or those terms taken in conjunction with the circumstances existing at the time of the making of the will, that the testator had in contemplation that he would or might marry and that the testator intended the disposition made by the will to take effect in that event. What is now required is only that the will was made ‘in contemplation of a marriage’, which contemplation need not be expressed in the will.

In the present circumstances, the proposed marriage was much more than an idle possibility. The defendant’s proposal to the deceased had been accepted some three months earlier in December 2009 and a date for the wedding, some six months hence on 10 October 2010, had been set. The issue between the parties was…

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 Steel v Ifrah

Details

AGLC: Steel v Ifrah [2013] VSC 199
Case: [2013] VSC 199
Decision Date: 24 APRIL 2013

CaseChat Overview and Summary

Steel v Ifrah involved a dispute concerning the validity of a will in light of subsequent events. The case was heard in the Supreme Court of Victoria. The deceased, Mr Steel, had executed a will which left his estate to his partner, Ms Ifrah. After Mr Steel's death, Ms Ifrah applied for probate of the will. However, the application was opposed by other family members who claimed that the will had been revoked by Mr Steel's subsequent marriage to another woman, Ms Jones, and that the will had been made in contemplation of marriage to Ms Ifrah.

The primary legal issue for the court to determine was whether Mr Steel's subsequent marriage to Ms Jones operated to revoke the will, and whether the will was made in contemplation of marriage to Ms Ifrah. The court had to examine the provisions of the Wills Act 1997 (Vic) and relevant case law to ascertain the legal effect of the subsequent marriage on the validity of the will.

In deciding the matter, the court examined the terms of the will and the evidence surrounding the circumstances of its execution. The court found that there was no evidence to suggest that the will was made in contemplation of marriage to Ms Ifrah, and that the will had not been revoked by the subsequent marriage. The court noted that under section 13 of the Wills Act 1997 (Vic), a subsequent marriage does not automatically revoke a will unless there is a specific provision to that effect in the will. The court held that the will was valid and ordered that probate be granted to Ms Ifrah.

Orders