Vallianos v Coroners Court of Victoria
[2023] VSC 48
•14 February 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 05128
| PANAGIOTA VALLIANOS | Appellant |
| v | |
| CORONERS COURT OF VICTORIA & ORS (according to the attached Schedule of Parties) | Respondents |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 February 2023 |
DATE OF JUDGMENT: | 14 February 2023 |
CASE MAY BE CITED AS: | Vallianos v Coroners Court of Victoria & Ors |
MEDIUM NEUTRAL CITATION: | [2023] VSC 48 |
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ADMINISTRATIVE LAW – Judicial review and appeals – Appeal of decision of the Coroner – Deceased left no will – Informal documents left by deceased – Test to be applied by Coroner to decide whether claim for release of body is made by person as executor of an informal will – Whether Coroner has discretion in determining who has better claim in accordance with s 48 – Whether construction of s 48 and the definition of ‘senior next of kin’ is inconsistent with human rights protected under the Charter of Human Rights and Responsibilities Act 2006 (Vic) – Deceased body released to parents as senior next of kin – Coroners Act 2008 (Vic), ss 3(3), 48 – Wills Act 1997 (Vic) ss 7, 9 – Smith v Coroners Court of Victoria [2018] VSC 307 – No error by Coroner.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | I W D Upjohn KC CSC M Bennett | Grimshaw Legal |
| For the First Respondent | Rishi Nathwani | Courts Victoria In House Legal |
| For the Second Respondent | W Gillies | Wilckens Roche Lawyers |
| For the Intervener | L Brown | Victorian Government Solicitor Office |
HER HONOUR:
Iona Stavrou, who chose to be known as Jo or Jo Jo (the deceased), died on 7 November 2022, aged 50. The deceased died by suicide. As a reportable death,[1] the Coroner was obliged to investigate. At the conclusion of that investigation there were two applications under s 47 of the Coroners Act 2008 (Vic) (Coroners Act) asking the Coroner to release her body. One application was made by her parents, as senior next of kin. They are the second and third respondents to this appeal (the Stavrou application). The other application was by her close friend Panagiota Vallianos, known as Penni, and whom the deceased called her ‘chosen next of kin’ (the Vallianos application). Vallianos applied in the capacity of executor pursuant to a letter addressed to her and instructions left by the deceased. She submitted that this letter and the accompanying instructions amounted to a will.
[1]Coroners Act 2008 (Vic) s 4 (‘Coroners Act’).
As there were two applications, the Coroner had to determine which applicant had the ‘better claim’ in accordance with s 48(3) of the Coroners Act. Coroner Lorenz determined that the letter sent to the appellant and instructions did not comprise a will, and so there was no executor. As the deceased did not have a spouse, domestic partner or adult child, the Coroner concluded that the parents, as ‘senior next of kin’ in accordance with s 3, had the better claim pursuant to s 48(3)(b) of the Coroners Act. The Coroner ordered the remains be released to the parents.
The appellant has appealed the decision to this Court pursuant to s 85 of the Coroners Act. The appeal is brought within time and is an appeal as of right, confined to questions of law. In substance, the Vallianos application was on the basis that the letter and sent to Vallianos and instructions, though not described as a will nor meeting the formalities required for a will under s 7 of the Wills Act 1997 (Vic) (Wills Act), nevertheless comprised a will that appointed her as executor. In that capacity, Vallianos submits that in accordance with s 48(3)(a) of the Coroners Act she has the better claim and accordingly, the body should have been released to her. The Stavrou application disputed that the documents were clearly testamentary in nature and submitted that the question of whether they should be admitted as a will was a question for probate and not for the Coroner. The deceased’s parents submitted that s 48(3)(a) did not apply and, as senior next of kin, they were entitled to have the body released to them in accordance with s 48(3)(b).
The Coroners Court of Victoria (the Coroners Court) takes a position as the decision-maker consistent with the principles in R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors.[2] It has provided submissions confined to the relevant legal principles and questions of the decision-maker’s powers. It will submit to the Court’s orders.
[2](1980) 144 CLR 13.
The appellant has given notice under s 35 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter). The relevant questions of law address whether the hierarchy of s 48(3) of the Coroners Act and the definition of ‘senior next of kin’ in s 3 of that Act that is to be applied are inconsistent with human rights protected by the Charter. The Attorney-General of Victoria has intervened in accordance with s 34 of the Charter.
For the reasons that follow, I have decided that the Coroner’s decision that there was no will is not attended by error. Further, I have found that the construction of s 48(3) of the Coroners Act does not give the Coroner a discretion to determine who has the ‘better claim’ to receive the body. I have also found that, if any human rights are limited by virtue of s 48 of the Coroners Act denying a person the right to choose the person to dispose of their body after death, these rights are reasonably limited, and so there is no incompatibility with the Charter. The appeal to this Court should be dismissed.
The evidence
The Vallianos application relied on two affidavits of the appellant, sworn 23 and 30 November 2022. It also relied on an affidavit of Karen Field who is the CEO of Drummond St Services, an organisation that provides a range of therapeutic and community-based supports to individuals and families, including supports specifically within the LGBTI community. The deceased was a client with whom Karen Field had been working prior to her death. Field’s affidavit was sworn 30 November 2022. The deceased was a client whom Field, a social worker, was assisting with an outstanding family violence intervention relating to her brother. Fitzroy Legal Service also provided assistance. Two affidavits of Carol Grimshaw, solicitor, affirmed 14 and 23 December 2022 in support of the appeal, provide a chronological history, exhibit relevant documents that were before the Coroner, and provide the transcript of the Coroners Court hearing held on 2 December 2022.
An affidavit affirmed on 20 January 2023 by the Senior Coroner’s solicitor also sets out the procedural history and relevant documents.
The Stavrou application sets out the family’s personal reactions to the death of their daughter, sister and aunt and the distress they experienced because of her death and the events that have followed.
Mr Stavrou passed away on 9 January 2023. Vasiliki Stavrou continues as a respondent to the appeal. I will make an order removing Mr Stavou as a party and will refer to Vasiliki Stavrou as the second respondent. The Stavrou application for release of their daughter’s body was made by their eldest daughter Heleni Bagiartakis as their representative. Ms Bagiartakis prepared a letter detailing circumstances her family wished the Coroner to consider. A letter of support from a cousin was also presented to the Coroner.
The documents the deceased left at her home at the time of her death included the following:
(a) A letter addressed to ‘Dear Penni’ accompanied by six further pages of instructions of steps to be taken following the deceased’s death, including the disposal and distribution of various belongings, instructions for her funeral and cremation and the dispersal of her ashes, together with bank account details (the letter and instructions).
(b) A Bereavement Assistance – Enquiry Summary form. This is a pending enquiry for assistance with a non-attended cremation. The client is described as ‘Iona (Friend of Jo and Penny)’. The query is from a person identified as Jo. The document on its face appears to be an enquiry as to the circumstances of a third party. The document is a quote for a ‘Non-attended cremation’. The enquiry was made on 3 November 2022. In a letter addressed to Emma that was found amongst the letters left upon her death, the deceased confirmed and apologised for the deceit in acting as if for a friend.
(c) A Potter’s Field personal details form, with the details of death left blank. In the form, the deceased identified her parents and noted that they were not to be involved; confirmed that she had no partner or children; and listed Panagiota Vallianos as the informant, describing her relationship to the deceased as ‘next of kin’. The form has a handwritten annotation: ‘you have consent to deal with Penni Vallianos and Jo Ahladas. I’ve signed a statutory declaration giving her authority to act on all matters on my behalf.’ Jo Ahladas is the sister of Penni Vallianos.
(d) A statutory declaration of the deceased made on 6 November 2022, stating:
I authorise Penni Vallianos of [address and phone number] to act on my behalf in all matters in my absence.
(e) A partially completed Centrelink form dated 7 November 2022, authorising Penni Vallianos to enquire or act on behalf of the deceased with Centrelink. The form requires a signature by the authorised person, although there is no signature in the relevant signature block.
(f) A note found with the deceased on her death with instructions to contact Vallianos and provide her with the instructions that had been written out.
Before the Coroner, Vallianos relied only on the first documents – the letter and instructions – submitting that they constituted a document capable of being admitted to probate pursuant to s 9 of the Wills Act. Therefore she submitted that her application met the requirements of s 48(3)(a) of the Coroners Act. Vallianos said that the remaining documents did not form part of the will but informed the surrounding circumstances and corroborated the intent in the pages on which she relied. Vallianos wished to ‘fulfil the deceased’s last wishes… and to provide the last act of insulation from her biological family that the deceased prepared for and craved.’[3]
[3]Executor, ‘Executor’s Submissions in response to Applicant’s form 25’, Submissions in Vallianos v Stavrou and Stavrou, No 2022 6464, 23 November 2022, [11].
Before the Coroner, the deceased’s parents took the position that their daughter had died intestate. They submitted that the letter and instructions did not comply with s 9 of the Wills Act. The accompanying document spoke of the deceased’s difficult relationships with her biological family due to her expression of her sexuality. Reference was made to declining mental health and the difficulty with the deceased increasingly withdrawing from family members and many friends in the years prior to her death. It expressed the grief of family members.
Although all parties accepted that the deceased had distanced herself from her family in recent years and chosen to be close to and supported by friends, there was a factual contest about the nature of the relationship between the deceased and her family and the degree of estrangement.
Both the applicant and respondent advised the Coroner and confirmed before me on appeal that they would respect the wishes of the deceased as to her desire that her remains be cremated and her ashes scattered.
The legislative provisions
(i) Coroners Act
Section 47 of the Coroners Act provides for applications to release the body once the coroner is satisfied it is no longer necessary to have control of the body or when it is determined that the death is not a reportable or reviewable death. An order releasing a body must comply with s 48(2), which provides:
48 Application to coroner for release of body
(1) A person (the applicant) may apply to a coroner for a body to be released to the applicant.
(2) If 2 or more applicants apply for release of the body, the coroner must determine the person to whom the body is to be released on the basis of who has the better claim.
Section 48(3) provides the mechanism by which the coroner is to determine the better claim:
(3) In determining who has the better claim, the coroner must have regard to the following principles-
(a)if the person named in the will as an executor is an applicant, the body of the deceased should be released to the executor;
(b)if a person specific under paragraph (a) is not an applicant, the body should be released to the senior next of kin;
(c)if there appear to be 2 or more applicants who are the senior next of kin of the deceased, the coroner should determine to whom the body is to be released by having regard to any principles of common law relating to the release and disposal of a body of a deceased person;
(d)if no person referred to in paragraph (a) or (b) is an applicant, the coroner should determine to whom the body is to be released having regard to the principles of common law relating to the release and disposal of a body of a deceased person.
Further, s 3 defines senior next of kin. It provides:
senior next of kin in relation to a deceased person, means-
(a)if the person, immediately before death had a spouse or domestic partner – the spouse or domestic partner; or
(b)if the person immediately before death did not have a spouse or domestic partner or if the spouse or domestic partner is not available- a son or daughter of or over the age of 18 years; or
(c)if a spouse, domestic partner, son or daughter is not available- a parent; or
(d)if a spouse, domestic partner, son, daughter or parent is not available- a sibling who is of or over the age of 18 years; or
(e)if a spouse, domestic partner, son, daughter, parent or sibling is not available- a person named in the will as an executor; or
(f)if a spouse, domestic partner, son, daughter, parent, sibling or executor is not available- a person who, immediately before the death, was a personal representative of the deceased;
(g)if a spouse, domestic partner, son, daughter, parent, sibling or executor, or personal representative is not available- a person determined to be the senior next of kin under subsection (3);
Section 3(3) provides a wider definition for the coroner. It provides:
(3) For the purposes of paragraph (g) of the definition of senior next of kin, a person is the senior next of kin if the coroner determines that the person should be taken to be the senior next of kin because of the closeness of the person’s relationship with the deceased person immediately before his or her death.
(ii) Wills Act
It is also relevant to consider some provisions in the Wills Act. The Wills Act does not define a will, nor identify those characteristics that makes a document operate as a will. Section 3(2) provides:
This Act applies to a codicil or other testamentary writing in the same manner as it applies to a will.
Part 2 deals with the power to make wills. Division 2, which falls within this Part, deals with executing a will. Section 7 provides:
7 How should a will be executed?
(1)A will is not valid unless-
(a)it is in writing and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and
(b)the signature is made with the testator’s intention of executing a will, whether or not the signature appears at the foot of the will; and
(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)at least two of the witnesses attest and sign the will in the presence of the testator by not necessarily in the presence of each other.
Division 3 provides for the circumstances where the Supreme Court may dispense with the requirements for execution or revocation. Those circumstances are set out in s 9, which provides:
9When may the Court dispense with requirements for execution or revocation?
(1)The Supreme Court may admit to probate as the will of a deceased person-
(a)a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b)a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act-
If the Court is satisfied that that person intended the document to be his or her will.
(2)The Supreme Court may refuse to admit a will to probate which the testator has purported to revoke by some writing, where the writing has not yet been executed in the manner in which a will is required to be executed by this Act, if the Court is satisfied that the testator intended to revoke the will by that writing.
(3)In making a decision under subsection (1) or (2) the Court may have regard to-
(a)any evidence relating to the manner in which the document was executed; and
(b)any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
…
(6)In this section document has the same meaning as in the Interpretation of Legislation Act 1984.
(iii) Charter of Human Rights and Responsibilities
The rights relied on are those contained in ss 8 and 16 of the Charter. Section 8 provides:
8 Recognition and equality before the law
(1)Every person has the right to recognition as a person before the law.
(2)Every person has the right to enjoy their human rights without discrimination.
(3)Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
(4)Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
Section 16 relevantly deals with the right to freedom of association. It provides:
16 Peaceful assembly and freedom of association
…
(2)Every person has the right to freedom of association with others, including the right to form and join trade unions.
The Attorney-General submitted that s 13 – the protection afforded to the right to privacy and reputation – may also be impacted by the construction of s 48. That right is expressed in s 13(a) as:
13 Privacy and reputation
A person has the right-
(a)not to have that person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
(b)not to have that person’s reputation unlawfully attacked.
Section 32 provides:
32 Interpretation
(1)So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
Section 36 provides relevantly:
36 Declaration of inconsistent interpretation
(1)This section applies if-
(a)in a Supreme Court proceeding a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or
(b)the Supreme Court has had a question referred to it under section 33; or
(c)an appeal before the Court of Appeal relates to a question of a kind referred to in paragraph (a).
(2)Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.
The Coroner’s reasons
The Coroner recognised her task was to determine the better claim by applying s 48(3) of the Coroners Act.[4]
[4]Determination of Coroner Katherine Lorenz, 12 December 2022 [50] (‘Coroner’s Reasons’).
The parties agreed that there was no document executed as required by s 7(1) of the Wills Act that appointed an executor in accordance with s 7(3). The Coroner said that nevertheless she was required to make a factual determination about whether there is a will and if so whether it appoints an executor.
As the Coroner noted in her reasons, determining the validity of a will in order to admit it to probate rests solely in the Supreme Court’s jurisdiction. The Coroner observed that a factual determination of whether or not there is a will, for the purpose of determining the ‘better claim’ under s 48(3) of the Coroners Act, has no bearing on what document might ultimately be admitted to probate as a will.[5] As the Coroner noted, her task must be done expeditiously in order for a funeral, burial or cremation to occur so as to accord respect to a person’s remains, and is therefore often undertaken prior to any probate proceeding. The process is not concerned with the validity of any document that meets the description of a will.
[5]Ibid [48].
The Coroner therefore addressed the task of whether or not, though informal, the letter and instructions met the description of a will that appointed Vallianos as executor. She concluded that they did not. Her reasons were:
54.Firstly, there is a lack of certainty about which of the documents left by the deceased comprised the will. Exhibit PV-1 includes the statutory declaration witnessed by a police officer, the status of which I enquired about at the hearing. Ms Sparke conceded at the hearing that the statutory declaration was not considered to be part of the will but was corroborative of the other documents within Exhibit PV-1, which in her submissions comprised the will.
55.Secondly, the documents are not in the usual form for a will and lack many of the defining features of a will. There is no reference within the documents to a ‘will’, and none of the documents are termed or labelled as a will.
56.Other irregularities are apparent on the face of the documents, including the absence of witnesses. Further, the letter addressed to Ms Vallianos signed off as “Love you, Jo” and the letter addressed to Joanna Ahlades signed off as “All my love slapper, Jo”, do not appear to be executory.
57.The documents can be construed in a variety of ways and appear to have multiple intentions, including personal instructions to dispose of property in addition reflective comments regarding a relationship breakdown and family issues. The letters contain personal reflections and expressions of emotion in the nature of correspondence to friends rather than an intended will. I am not persuaded they were intended as a will.
The questions of law and grounds of appeal
The appeal raises seven questions of law and associated grounds. The first five grounds are directed at error in the finding that the letter and instructions relied on by the appellant was not a will. Those questions of law were identified as:
1.Whether the Coroner erred by finding that the informal will propounded by the applicant, viz the letter from the deceased to her and enclosed written instructions, was not a will for the purposes of s 48(3)(a) of the Act?
2.Whether the Coroner erred by failing to apply the correct test, viz whether the deceased intended the propounded document to be her will?
3.Whether the Coroner erred by failing to take into account relevant considerations?
4.Whether the Coroner erred by taking into account irrelevant considerations?
5.Whether the Coroner erred by finding that the propounded document did not appoint the appellant as executor?
The remaining two grounds deal with whether error arises in the applicable and binding law that the Coroner applied:
6.Whether the Coroner erred in finding that the hierarchy in the definition of ‘senior next of kin’ in s 3 of the Coroners Act 2008 (Vic) contains no discretionary means for deviation from the cascading hierarchy?
7.Whether the Coroner erred in determining that the applicant, as the deceased’s chosen family, was not able to displace in the hierarchy in section 48(3) of the Act the second and third respondents, whom the deceased had expressly rejected for the purposes of dealing with her body and affairs after death?
Those grounds raised the Charter questions.
The issues for determination
The first five grounds address whether or not the Coroner correctly approached the determination of whether the letter and instructions were a will. The first issue for consideration therefore concerns the proper legal framework for interpretation of the documents before the Coroner and the application of s 48(3)(a) of the Coroners Act.
A second issue arises. Does the determination of senior next of kin for the purpose of the ‘better claim’ in accordance with ss 48(3)(b)-(g) permit a coroner any discretion to release the body to a person other than, in this situation, the parents? Before the Coroner the parties proceeded on the basis that s 48(3)(b) permits no discretion in accordance with Richard J’s decision in Smith v Coroners Court of Victoria (Smith).[6] The appellant accepts that to depart from Smith I must be persuaded that it is plainly wrong.
[6][2018] VSC 307 (‘Smith’).
The third issue is whether on their proper construction s 3 and consequently s 48 of the Coroners are inconsistent with the rights protected by the Charter. In particular the appellant relied on inconsistency with ss 8 and 16 of the Charter, respectively the right to recognition and equality before the law and the right to freedom of association. The Attorney-General intervening observes that the right to privacy (s 13) might also be engaged. The parties have relevantly addressed whether there is infringement in respect of all three Charter rights.
Grounds 1 to 5 - the test to be applied by s 48(3)(a)
In broad terms, the appellant submitted that the Coroner erroneously failed to undertake the fundamental inquiry necessary: what was the deceased’s intention in respect of the document? The appellant submitted that the Coroner’s finding was instead focused upon her factual findings as to the form of the document and the absence of the formalities for execution. The appellant submitted that in order to determine who had the ‘better claim’, the Coroner should consider whether the document satisfies the requirements of s 9 of the Wills Act and is capable of being admitted to probate. Although the task in substance may be similar to that of a judge exercising the probate jurisdiction, the appellant submitted that it has no greater effect than determining the better claim to release of the body of the deceased and is necessary in order to apply s 48(3)(a) of the Coroners Act.
The appellant submitted that testamentary intent was demonstrated by:
(a) the language describing disposition of assets and liabilities, which appeared to deal with all remaining possessions;
(b) instructions for disposition of her remains, indicating that the instructions were to take effect upon death;
(c) the solemn occasion and surrounding circumstances in which the document was created, informed by other contemporaneous documents that were created; and
(d) ensuring the document would come to others’ attention.
The appellant submitted further it was not necessary for the deceased to use the word ‘executor’, and that appointment in this capacity may be implied from the document as a whole.
The second respondent submitted that the letter and instruction were not testamentary in character, and that is sufficient to dispose of s 48(3)(a) of the Coroners Act. As the second respondent stated, the Coroner was not satisfied that the documents, on their face, contained the hallmarks of a will. The appellant submitted that accordingly, the documents could not be a will until such time as the Supreme Court determines that the intent expressed in the documents is testamentary and their purpose is to take effect as a will. The second respondent submitted that the Coroner need go no further in analysis of the document, and no error is established.
The Coroners Court submissions identified that ‘will’ is not a defined term in the Coroners Act. It pointed to cases where senior next of kin has been described as a cascading hierarchy of defined persons.[7] The submission noted the Coroner’s finding that the application of s 9 of the Wills Act was a matter for determination by the Supreme Court, but that the Coroner nevertheless made her own assessment of whether the documents relied on were in fact a will for the purpose of s 48(3).
[7]Smith (n 6).
The intervener made no submissions on whether the Coroner erred in determining the better claim. She confined her submissions to the last two grounds.
There are a number of decisions describing the principles for resolving competing applications by persons who say they have the better claim under s 48 of the Coroners Act. However, unlike in this case, these are disputes between two parties who both claim to be the senior next of kin – generally a spouse or partner on the one hand and a parent, adult child or sibling on the other hand. Many of those decisions relate to resolution by application of common law principles. Smith, Lawrence[8] and Trinh[9] all concern the application of s 48(3) to disputes as to seniority amongst next of kin. The parties in this case could not point to any situation where the better claim requires a decision between an applicant who claims as executor based upon an informal document and another who claims as senior next of kin.
[8]Lawrence v Coroners Court of Victoria [2013] VSC 77.
[9]Trinh v Coroners Court of Victoria [2019] VSC 133.
In these circumstances, accepting that an informal document might in substance demonstrate necessary testamentary intent and be capable of admission to probate as a will in accordance with s 9 of the Wills Act, how should a coroner apply s 48(3) of the Coroners Act where an applicant claims priority as executor?
A will is not defined in the Coroners Act and is used in only two places (ss 48(3) and 3(e)). A plain reading does not confine the term to consideration of a document executed in conformity with s 7 of the Wills Act. Nor is ‘will’ a defined term in the Wills Act. Whether a will is formal or informal is merely a shorthand description for whether it is validly executed in accordance with s 7 or a document that meets substantive requirements to be a will but requires dispensation from the statutory formalities in accordance with s 9.
There are however, some clearly identified substantive characteristics beyond statutory signatory and execution requirements that give a document the characteristics of a will. It is a declaration of intent by a person as to the distribution of their property after death.[10] It does not take effect until after death.[11] It is generally revocable prior to death.[12] A will can take effect even if it does not identify the beneficiaries who are to receive the property,[13] although generally at least some beneficiaries are identified. A will that does not appoint an executor is not an invalid will.[14] A person’s will may be constituted by more than one document.[15]
[10]Law of Succession (3rd ed, 2021) [1.1] (G E Dal Pont); Cock v Cooke (1866) LR 1 P&D 241.
[11]Re Walker [1905] 1 Ch 160.
[12]Law of Succession (3rd ed, 2021) [1.2] (G E Dal Pont).
[13]Takes effect as an intestacy.
[14]Law of Succession (3rd ed, 2021) [P.2] and [10.21] (G E Dal Pont).
[15]Douglas-Menzies v Umphelby [1908] 2 AC 224.
Where a document by its terms is described as a will or a codicil, there is a presumption of testamentary intention.[16] The formalities for execution assist with proof of the author’s testamentary intent.[17] The power of the Court to admit a document under s 9 of the Wills Act so that it operates as a will is discretionary. In making such an order a Court may have regard to matters not limited to those in s 9(3). Those matters are first, the document itself and second, matters beyond the document, including the circumstances in which it was created. These are matters capable of assisting to discern the testator’s testamentary intent.
[16]Law of Succession (3rd ed, 2021) [1.3] (G E Dal Pont); Gamer v Whip [2012] QSC 209 (Atkinson J).
[17]Rondel v Robinson Estate [2012] WTLR 1067; [2011] ONCA 493.
A will may, and often does, contain other expressions of intent and the wishes of the author. It may detail wishes or instructions as to the method and place of disposal of a person’s remains and the solemnity or service to accompany the occasion of any funeral or cremation. It may contain explanations for decisions, regret for actions, expressions of love and affection or of estrangement and discord. While none of these are expressions of testamentary intent or relevant to characterising a document as a will, they are likely to be important statements for friends and family.
Clearly, the Court may go beyond the document itself and consider other evidence as to the surrounding circumstances. It may frequently need to do so in order to determine the author’s intent. In this way, the form of the document itself may say very little about whether in law it amounts to a document with the characteristics of a will.[18] Conversely a document in formal form and describing itself as a will might, from the surrounding circumstances, not be a document with testamentary intent at all.[19] In either case, it is not the document itself but the Court’s satisfaction as to the surrounding circumstances that determines whether the document is to be treated as if it were a will.[20] This is a discretionary exercise is one which is remedial in nature to avoid the failure of testamentary purpose where the formalities are not observed. It is however, an exercise undertaken, in the words of Hollingworth J, with care ‘to ensure that the statutory formalities enshrined in the [Wills] Act are not unduly relegated in importance’.[21]
[18]For example Estate of Masters: Hill v Plummer (1994) 33 NSWLR 446.
[19]Fast v Rockman [2013] VSC 18.
[20]Wills Act 1997 (Vic), s 9.
[21]Estate of Peter Brock [2007] VSC 415, [20].
I do not accept the appellant’s submission that the test to be applied by the Coroner is whether a document or documents meet the requirements of s 9 of the Wills Act. In my view, the application of s 48(3)(a) of the Coroners Act requires a narrower task. The second respondents submission that the document cannot be considered a will until admitted to probate is however too narrow. Section 48(3)(a) requires the identification of a document and asks: is the Coroner satisfied that the document from its own terms and content has the characteristics of a will and names the applicant as an executor? That is the factual determination required for the task of releasing the body in accordance with a statutory formula.
As disputes about possession and disposal of a body are not primarily concerned with testamentary intent, the Coroner is not required to embark upon an inquiry to ascertain intent from the surrounding circumstances in a manner that might resemble an inquiry for the purpose of probate.
For this reason, while the probate cases relied on by the applicant are a useful guide as to the characteristics that identify the testamentary nature of content in a document, they are less relevant for ways in which the surrounding circumstances bear upon the intended operation of the document.
A document that in its terms describes itself as a will or codicil carries a rebuttable presumption that it’s content is testamentary in character. It remains however to consider the document as a whole.[22] Whether or not the document is signed or properly witnessed, such a description would likely be sufficient to determine that, as a matter of fact, the document met the description of a will. A document lacking such a description may nevertheless, from the formality of its content and language, permit a finding that it is testamentary in character.[23] Greater informality and wide ranging subject matter in a document make the task of identifying it as a will more difficult without recourse to constructional aides such as surrounding circumstances and other statements of intent.
[22]Law of Succession (3rd ed, 2021) [1.3] (G E Dal Pont); see Gamer v Whip [2012] QSC 209 (Atkinson J) for an example of where the presumption is rebutted by the terms of the document as a whole.
[23]Law of Succession (3rd ed, 2021) [1.7] (G E Dal Pont); Smith v O’Neill [2014] NSWSC 1119 (Hallen J).
Ultimately the task of deciding whether any document should be admitted to probate as a valid will necessitates the resolution of all available evidence, requiring the consideration and weighing of various, and sometimes conflicting, evidence about intent and, where put in issue, capacity. The common law permits some consideration of the deceased’s express wishes in granting possession of a body where deciding between claimants that otherwise have equal entitlement.[24] Even at common law, decisions regarding the right to dispose of the body resist the need to resolve conflicting wishes and claims amongst the living, resolving matters by an objective test of the ‘better claim’ in law. It has long been recognised that determining the better claim should not be conducted by adjudicating the merit of competing wishes, values, culture and belief among the living.[25] The statutory formula does not import the common law test but similarly it does provide a mechanism that allows for a relatively straightforward resolution of multiple claims without recourse to the impossible task of attempting to resolve the deeply held values, beliefs and emotions.
[24]See for example, Keller v Keller (2007) 15 VR 667; [2007] VSC 118 (an application made by the executor for resolution of the disputed claims).
[25]Smith v Tamworth City Council (1997) 41 NSWLR 680; Law of Succession (3rd ed, 2021) [12.9] (G E Dal Pont).
In my view the Coroner embarked upon the task of assessing the documents themselves. She did not fall into error by failing to ask herself what the deceased’s intentions were with respect to the informal will. Rather, as set out in paragraphs 50 and 51 of her reasons, she asked herself whether the documents relied on could be characterised as a will. The uncertainty about complementary documents, some of which were conceded as lacking testamentary intent, was one consideration.[26]
[26]Coroner’s Reasons (n 4) [54].
The Coroner found that the documents expressed various, potentially conflicting intentions on the part of the deceased, such that she could not be satisfied of testamentary intent.[27] One reason why she was not satisfied that the letter and instructions comprised a will was another letter the deceased sent to Vallianos’s sister Jo Ahlades, which said ‘Can you make sure my wishes are carried out?’[28] The fact that more than one person might be appointed as executor would not be fatal to Vallianos’s appointment, but the Coroner formed the view that, in light of the words above, this question was attended by some doubt.
[27]Ibid [57].
[28]Ibid [58].
The lack of defining features of a will are clearly relevant though by themselves not determinative.[29] It is possible that the Supreme Court, if assessing the evidence surrounding the creation of the documents in a probate proceeding, might have reached a different conclusion, but that is not the task for the Coroner.
[29]Ibid [55], [56].
All of those matters were relevant to the construction of the documents. No error of law is identified.
Grounds 1-5 focused on the considerations of the Coroner. Each of those grounds are premised on the submission that the correct test was whether the documents were capable of admission pursuant to s 9 of the Wills Act as an ‘informal will’. The appellant submits that the factors in s 7 of the Wills Act attracted too much consideration and s 9 too little. I have endeavoured to explain in the reasons above why that premise is incorrect.
Even if the correct test is to adopt the criteria in s 9 of the Wills Act, both the s 7 and s 9 considerations are relevant to assist in determining whether the requisite intentions are made out. In considering those matters, the weight to be attributed to each is balanced to arrive at a decision of the author’s intent. It is clear on the face of the reasons that the Coroner considered each factor. The complaints are as to weight accorded by the Coroner and do not disclose error of law.
The various matters identified as relevant considerations and irrelevant considerations that are said to infect the reasons with error are all matters that do bear upon the construction of the letter and instructions that were relied on as the will. The fact that the letter itself contained matters about the disposition of property was one relevant factor, as was the fact that it contained other content that was clearly not testamentary, even though it dealt with the deceased’s wishes upon her death. Similarly the other documents, probably prepared or created contemporaneously in the days prior to death, which were submitted to inform testamentary intent, were themselves not relied on as expressing such an intent. On their face, such documents were instructions giving the appellant power to act even before death. Equally, none of the matters relied on were irrelevant to the question of whether the document is characterised as a will. The Coroner clearly gave attention to each of the considerations in grounds 3 and 4 in paragraphs 54 to 58 of her reasons. It is clear that the Coroner confined her consideration to matters that bore on the letter and instructions themselves. I see no error in this approach.
Question of law 5 is also based upon a wrong premise. An executor is an office as the personal representative of a deceased. It is a position chosen by and appointed by the testator of a will. If the Coroner was not satisfied that the document was a will, she did not need to determine whether the document appointed a personal representative before moving to s 48(3)(b) of the Coroners Act. Section 48(3)(a) does not provide for either an administrator or a personal representative to have primary place in the hierarchy of persons with a better claim to possession of the body. Where a deceased appoints a personal representative before her death, as the deceased arguably did in this case by the statutory declaration made on 6 November 2022, it becomes a relevant matter for consideration only when the identification of the senior next of kin requires the application of s 3(f) of the Coroners Act, or where s 3(3) is applicable, but not before.
It is not necessary that a will use the word executor. What is necessary is that the document identify a person or persons to carry out the functions normally associated with that of an executor.[30] However, before consideration can be given to whether or not an executor is named, it is necessary to be satisfied that the document is a will. The Coroner was not so satisfied.
Question of law 6 - the construction of s 48(3)
[30]Tsagouris v Bellairs [2010] SASC 147; 5 ASTLR 403.
As the appellant does not succeed on the first limb of her appeal – the correct test for the construction of the document – it is necessary to turn to appeal ground 6. The appellant submits that the Coroner erred in finding she had no discretion in the application of s 48(3)(b) of the Coroners Act to determine the senior next of kin. Although not specifically referred to by name, the Coroner was clearly aware of Smith, which was binding on her, and applied it in making her determination. The appellant submits that I should be persuaded that Smith was plainly wrong.
In Smith, Richards J dealt with two applications for release of the body of Mr Lilley. Both applicants sought priority as senior next of kin; Mrs Lilley as the wife, from whom the deceased was separated at the time of death, and the other from his mother and stepfather. As there was no will, the relevant question was to determine the hierarchy or ranking of the senior next of kin. The nature of the relationship between the deceased and his wife was in contest. All applicants accepted however that as his spouse, despite separation, Ms Lilley was the senior next of kin. The Coroner treated this as determinative under s 48(3)(b).
The parents argued that the Coroner erroneously acted without discretion. The principles in s 48(3) were said to be mandatory considerations that provide guidance but not determinative of the question who has the ‘better claim’. It was submitted in Smith that the use of ‘should’ was indicative of a discretion. Implicit in the argument was that discretion permitted consideration of the quality of the relationship so that the ‘better claim’ was informed by the closeness or separation that characterised the relationship between applicant and deceased.
Her Honour observed that as a matter of statutory construction, the existence of any discretion ought be apparent from the text of the section read in the context of the legislative purpose of the Coroners Act and any extrinsic material.[31] She noted the use of the word ‘must’ in ss 48(2) and (3).[32] Her Honour reasoned that ‘should’, as the past tense of ‘shall’, ought be given a corresponding meaning unless a contrary intention appears.[33] Where legislation uses the word ‘shall’, s 45(2) of the Interpretation of Legislation Act 1984 (Vic) provides that the word is to be construed as ‘meaning the power so conferred must be exercised’. The purpose of the legislation is to avoid protracted investigations that may exacerbate the distress of family friends and others affected by the death.[34] Her Honour noted that the explanatory memorandum in relation to cl 48 also did not indicate discretionary considerations and that the Law Reform Committee report into the predecessor Coroners Act 1985 (Vic) considered and rejected giving a coroner discretion to depart from the senior next of kin in certain circumstances.[35]
[31]Smith (n 6) [23].
[32]Ibid [24].
[33]Ibid [24], [25].
[34]Coroners Act (n 1) s 8(b).
[35]Smith (n 6) [33].
The appellant in Smith submitted that s 48 is to be interpreted consistently with s 8, which sets out factors to be considered when exercising a function under the Coroners Act. Section 8 commences:
When exercising a function under this Act, a person should have regard, as far as possible in the circumstances, to the following-
The factors to which regard is to be had include: that the death is distressing and people affected might need professional or other support, that lengthy investigations may exacerbate distress, and that different beliefs and practices surrounding death should be respected. Having regard to such matters was, it was submitted, indicative of discretionary matters. Smith concluded that neither the text itself, the purpose of the decision to be made by the Coroner nor the extrinsic materials were indicative of a discretionary decision.
It was submitted before me that the word ‘should’ is not only the past tense of shall but is also used as a conditional verb, meaning ‘ought to’, allowing room for a discretion. Even if ‘should’ may be construed in the way the appellant submits, it would still result in a coroner being obliged to act in a particular way. The coroner is required to find as a matter of fact the nature of the relationship between the applicant and the deceased. A coroner is not required or entitled to consider as a matter of discretion the quality of those relationships for the purpose of determining the ‘better claim’.
I am not persuaded that Smith is plainly wrong. Section 48(3), construed in the context of a purpose that avoids lengthy, protracted and distressing investigations, sets a relatively confined inquiry into a hierarchy or ranking of persons who might take on the obligations associated with disposal of a body. Like the common law approach to such disputes, the statutory provision seeks to avoid resolving the dispute by an investigation into factual contests and competing values, beliefs and the wishes of the living. It sets out an order of priority that can be determined largely by objective factual matters – the existence of a will appointing an executor and then a ranking of family relationships.
Absent an error of law there is no requirement for me to exercise the discretion that I have in making an order for release of the body under s 88 of the Coroners Act.[36]
[36]Carter v Coroners Court of Victoria [2012] VSC 561.
Question of law 7 – the Charter
The appellant’s Charter notice identifies four questions:
(a) Is the hierarchy of senior next of kin in s 3(3) of the Coroners Act inconsistent with the human rights of the deceased to equality before the law and protection from discrimination and freedom of association and the right to privacy (ss 8, 13 and 16 of the Charter)?
(b) In making a determination under s 48 of the Coroners Act, is the Coroner required to give effect to the human rights protected by s 8, 16 and 13 of the Charter to avoid incompatibility with those rights as required by s 38 of the Charter?
(c) Should the Coroners Court have regard to such human rights by reason of s 32 of the Charter?
(d) Can s 48 of the Coroners Act be interpreted consistently with these human rights in the Charter?
The second respondent adopted the Attorney-General’s submissions on these questions.
The Attorney-General raised a threshold question: whether a person after death has rights that can be unreasonably limited by legislation, given that Parliament has provided that ‘only persons have human rights.’[37] However, for the purpose of this case, the Attorney-General accepts that a living person with the attributes of the deceased has the rights that are raised by the appellant and that those rights are relevant to the definition of ‘senior next of kin’ and the statutory determination prescribed by s 48 of the Coroners Act. I will proceed on this basis.
[37]Charter of Human Rights and Responsibilities Act 2006 (Vic), s 6(1).
The appellant submits that the deceased disowned her biological family and considered herself part of a chosen family. She submits that the Charter protects her choice to do so. The appellant relies on the right to recognition and equality before the law and to be protected from discrimination (s 8), the right to privacy, including by reference to family, that is not unlawfully or arbitrarily interfered with (s 13), and the right to freedom of association (s 16).
Pursuant to her argument above that Smith is plainly wrong, the appellant submits that the terminology of s 48(3) of the Coroners Act presents a constructional choice – essentially, that the wording ‘should be released’ is to be construed as conferring a discretion. Accordingly, the appellant submits that, pursuant to s 32(1) of the Charter, the Coroner must give effect to the interpretation of s 48(3) most compatible with the human rights on which the appellant relies. That interpretation requires the Coroner not simply to apply the mandatory hierarchy in the definition of ‘senior next of kin’ when determining to whom to release the body.
As I have stated above, I do not accept that Smith is plainly wrong, and so I do not accept this submission.
The appellant’s submission in the alternative was that, if there is no constructional choice and the Coroner is required to follow the cascading hierarchy in s 48(3) of the Coroners Act, the provision is incompatible with the rights protected by ss 8,13 and 16 of the Charter. The appellant submits that the deceased had the right to disown her biological family and consider herself part of a chosen family. The appellant submits that choice was given effect to by the making of a statutory declaration nominating the appellant to act on the deceased’s behalf in all matters. The appellant submits that the deceased’s right to choose who constitutes her family cannot be reconciled with being required to follow the mandatory hierarchy imposed by s 48(3) of the Coroners Act.
The appellant submits further that the right to freedom of association and privacy are limited because of the failure to recognise the deceased’s choice to distance herself from her birth family and associate with her chosen family. She submits that freedom of association allows a choice to associate and a freedom not to associate as exercised by the deceased prior to her death.
If on its proper construction, s 48 of the Coroners Act is incompatible with the rights in the Charter, the appellant seeks a declaration to that effect.
The Attorney-General assisted the Court by refining the appellant’s submissions and clarifying the law with respect to the Charter.
The Attorney-General noted that the definition of senior next of kin prioritises a spouse or domestic partner over other familial relationships and may impinge on the right to equality in this way. She noted that it might be also be said to prioritise one familial relationship over others; adult children over parents, both of these over siblings. In this way, she submits that the rights may be limited.
The Attorney-General submitted that discrimination is to be assessed based upon attributes identified in the Equal Opportunity Act2010 (Vic). While the appellant identifies that the language of the definition of senior next of kin in the Coroners Act may give rise to discrimination by use of the language of traditional family structures, the submission makes a departure from any language of familial bond.
In respect of the right to privacy, the Attorney-General submits that s 13 of the Charter only prevents an interference with privacy that is unlawful or arbitrary, and s 48 of the Coroners Act is plainly a lawful exercise of Parliament’s legislative authority.
Arbitrary has been found to mean capricious or resulting from conduct that is unpredictable, unjust or unreasonable.[38] In my view, nominating a hierarchy of interests based upon the nature of familial relationships with the deceased is not an arbitrary infringement upon the right to privacy. It provides a rational and objective means for resolving disputes. While acknowledging it does not allow consideration of the qualitative nature of those relationships, in my view it is not unreasonable when the law provides that the only right a person has to control the disposal of their body is by appointment of an executor. I accept the submission that there is no unlawful or arbitrary limitation of the right to privacy.
[38]Thompson v Minogue [2021] VSCA 358, [221].
The Attorney-General concedes that a construction that mandates the release of a body to a non-discretionary hierarchy of persons may limit the Charter rights. She submits however, that the Charter rights are not absolute and may be justifiably limited. Section 7(2) of the Charter prescribes the extent to which a limitation of rights may occur but still remain compatible with their protection as provided by the Charter. The Attorney-General submits that in this case, if the rights are indeed limited, they are limited reasonably – because a person can avoid this very issue by making a will – and the limitation can be justified within s 7 of the Charter by the function and purpose in the Coroners Act in making decisions regarding the release of a body. Accordingly, the Attorney-General submits that s 48 of the Coroners Act is not incompatible with the Charter.
The mandatory hierarchy imposed by s 48(3) of the Coroners Act may not assist those who are estranged from some or all of their family and who develop other close relationships in its place. I accept that the hierarchy may well be based upon assumptions that are less likely to hold true for groups including those who identify as LGBTQI. I accept that the statutory formula is limited as a means for resolving disputes in the absence of a testamentary document by deceased, and that the senior next of kin provisions do not attempt to address the various difficulties that attend familial relationships either over time or at the time of death.
However, there is an identified need to have a dispute resolution process that is clear in operation and can be implemented without lengthy or protracted proceedings directed at determining the wishes of the deceased. A protracted exercise would not be consistent with the operation of the Coroners Act.
It is also clear that the definitions of parent, child and sibling in the Coroners Act are not restricted to biological relationships. They encompass adoptive relationships, family units through successive partnering and families with LGBTQI members. Nor is the definition of domestic partner confined to those in registered relationships. They are definitions that provide for a broad definition of family.
Further, the definition of senior next of kin in s 3 of the Coroners Act does embrace friendship as a characteristic of kinship when considering s 3(g) of and the operation of s 3(3). The definition of senior next of kin does therefore permit the identification of a person based upon the closeness of their relationship. This definition will be relevant where a coroner is to apply s 48(3)(c) or (d) of the Coroners Act.
The Charter questions are directed at the way in which the mandatory hierarchy in s 48(3)(b) of the Coroners Act, and the definition of senior next of kin, are applied. The argument does not challenge the primacy of an executor applicant under s 48(3)(a). The Attorney-General’s submission that the provision is not incompatible with Charter rights because a person has the ability to avoid any limitation on their human rights that might arise in the determination of a senior next of kin by simply making a will is not by itself a satisfactory answer. However, s 48(3), unlike the hierarchy in s 3 generally, does give primacy to the appointment of an executor. This distinction must be deliberate. Had the deceased prepared a document that was found to be a will that appointed the appellant as executor, the recognition of her decision would have been unimpeachable. Where her wishes were not so recorded, it was submitted that the limitations were no more than was necessary to identify an appropriate person for release of the body. While the appellant submits that the deceased’s wishes are clearly expressed in her letters, the Stavrou application details the complexity of the deceased’s disengagement with her family of birth. The decision is undoubtedly a complex one.
There are good reasons, even at common law, why a decision should be arrived at without a detailed consideration of claims ’subsumed by deep emotion emanating from and affecting not only [the claimants] but other members of the deceased’s extended family.’[39] I accept, consistent with the approach at common law that seeks to avoid decisions on the relative merit of competing claims for possession of a body, that any limitation on human rights protected by the Charter arising because of the hierarchy or ranking to be applied are no more that reasonable limits as contemplated by s 7(2) of the Charter.
[39]Calma v Sesar (1992) 2 NTLR 37; (1992) 106 FLR 446 (Martin J).
The appeal must be dismissed.
SCHEDULE OF PARTIES
S ECI 2022 05128
PANGIOTA VALLIANOS Appellant -v- CORONERS COURT OF VICTORIA First Respondent -and- KONSTANTINOS STAVROU Second Respondent -and- VASILIKI STAVROU Third Respondent -and- ATTORNEY-GENERAL The Intervener
0
15
0