Woolworths (Vic) Pty Ltd v Jeffreys & Ors - [2007] 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:	[2007] 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 of 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…

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: [2007] VSC 45
Decision Date: 2 March 2007

CaseChat Overview and Summary

Woolworths (Vic) Pty Ltd sought to challenge the validity of a statutory will made by an elderly woman, Mrs Jeffreys, who suffered from dementia. The dispute centred around the woman's testamentary capacity at the time of executing the will, which left her estate to her godson and two neighbours. The matter was heard in the Supreme Court of Victoria. The central legal issues were whether Mrs Jeffreys had testamentary capacity under the Wills Act 1997, and whether the statutory will accurately reflected her likely or reasonably expected intentions. The court examined evidence of her previous wills, her relationship with the beneficiaries, and the circumstances surrounding the creation of the will in question.

The court held that a statutory will can be valid if it reflects the likely or reasonably expected intentions of a person who lacks testamentary capacity, provided the will is made in accordance with the statutory requirements. The court found that the statutory will did reflect Mrs Jeffreys' likely or reasonably expected intentions, as it aligned with her previous wills and the evidence of her relationship with the beneficiaries. The court also noted the importance of considering the context and circumstances in which the will was made, including the woman's age, health, and the support she received from the beneficiaries. The court rejected the argument that the statutory will was invalid because it did not adequately reflect the woman's likely or reasonably expected intentions.

In conclusion, the court determined that the statutory will was valid and accurately reflected Mrs Jeffreys' likely or reasonably expected intentions. The court emphasised the need to consider the individual circumstances of each case when determining testamentary capacity and the validity of a statutory will. The court made no orders as the challenge to the will was unsuccessful.

Orders