“Ruinous” Family Provision Claims

In a recent case, the Supreme Court of New South Wales court of appeal observed the ruinous nature of family provision claims by adult siblings. This included the financial burden of the litigation, embittered family relationships, adverse health consequences and the breakdown of relationships due to the pressure of the proceedings. Highlighting the importance of legal practitioners emphasising that their clients fully appreciate the benefits of early mediation at the outset of family provision litigation.

The background

Elaine Jill Bassett (Jill) died on 21 March 2007, William Bassett (Bill) who died on 22 January 2014, aged 85, married in 1953 and had four children – Merilyn, Sue, Geoff and Bruce. Bill and Jill, were farmers who conducted their farming business through a series of rural partnerships.

Geoff was the only child to take up a career as a farmer working alongside his parents over the years. 

In 1998, Bill and Jill gifted Geoff a rural property known as “Pindaroi”- referred to by family members as his “early inheritance”. Pindaroi was sold by Geoff in 2009 for approximately $4.2 million.

At the time of his death, Bill and Geoff had a 50% share in a rural property, known as “The Springs”. In his will Bill left Geoff his share in any farming plant and equipment machinery, implements and livestock however Bill expressly excluded any real estate which he may have owned with Geoff. Merilyn, Sue and Bruce were residuary beneficiaries under both their parents Wills.

The Proceedings

 In 2015, Geoff made a claim under proprietary estoppel to Bill’s 50% interest in The Springs; alternatively, Geoff made a family provision claim from Bill’s Estate. 

 Merilyn and Bruce, as representatives of Jill’s Estate brought a cross-claim to recover money said to have been the subject of maladministration of Jill’s estate against Bill’s Estate and Geoff as executors of Jill’s Estate. Jill’s Estate had been fully administered well before the commencement of these proceedings and was seen to be

“an attempt to trawl through accounting documents (many years after Jill’s death) in order to see what could be recovered for their ultimate benefit.”

Additionally, Merilyn and Bruce sought indemnity from Bill’s Estate.

Geoff was unsuccessful in the proprietary estoppel claim. However, at first instance, the Court awarded Geoff a family provision of $600,000.  Additionally, as  Merilyn and Bruce had rejected Geoff’s Offer of Compromise on 31 May 2019 they were ordered to pay the costs of Geoff’s estoppel and family provision claims from 1 July 2019 on an indemnity basis. Importantly the Costs decision the court remarked it was outrageous, extraordinary and..to be deplored that the deceased’s estate was worth between $3.5 m and $4,274,518 yet total costs of the parties were in the order of $2.5 to $3 million.

The appeal

Merilyn and Bruce appealed against the award of family provision to Geoff, the rejection of their cross-claim and the costs orders. Sue also sought to appeal from the primary judge’s decision on costs.

In dismissing Geoff’s family provision claim the Court of Appeal held that there was no basis in concluding that adequate provision had not been made for Geoff’s proper maintenance and advancement in life when the court had failed to take into account the “early inheritance”.

The court ordered that Geoff pay the Estate’s costs of the family provision and his estoppel claim until 28 June 2019, and that  Merilyn and Bruce pay Geoff’s costs of the First Cross-Claim on the ordinary basis and not out of the Estate.

In discussing it’s discretion factors the court may consider when deciding the impact of legal costs in assessing the needs and financial circumstances of applicants for family provision orders under the Succession Act.

The court observed that it is doubtful that a “wise and just testator” in whose shoes the Court notionally stands in considering questions of adequate provision for proper maintenance of an eligible applicant, would look favourably upon an adult child whose financial position has been diminished as a result of unsuccessful legal proceedings commenced against their siblings concerning the estate

Revocation, Rectification & International Wills

Section 33(1) of the Succession Act 1981(QLD) enables the court to rectify a will if it is satisfied that it does not carry out the testator’s intentions because-

(a)     a clerical error was made; or

(b) the will does not give effect to the testator’s instructions.”

Having ascertained the testator’s instructions, if there is a discrepancy between the will as it is construed by the court and its effect, an order may be made that the will be remedied so that it reflects the testator’s ‘intentions’.

The background

Michael John Perry instructed an Australian solicitor to draft a Will (“the Australian will”) that was executed on 10 October 2019, which left the residue of his estate after administration to his partner Pathichaya Yotchutuukan and daughter Chayanud.

Clause 1 of  the Australian will provided:

“I hereby revoke all former wills and testamentary dispositions previously made by me and declare this to be my last will and testament.”

However, Michael had made a will that dealt specifically with his property in Thailand on the 13th of September 2018 leaving a condominium to Chayanud with the residue of his estate to Pathichaya – who owned a home that Michael had bought for her.

Additionally, on the 21st of September 2018, Michael made a will that dealt specifically with his UK property providing a life interest in the Perry family home and money in a bank account held on trust for Micheal’s handicapped brother, Barry, with the remainder to go to Michael’s siblings that survive Barry.

In his instructions to his Australian solicitor, Micheal listed only his Australian assets and, made no mention of his UK and Thai assets. However now that Michael is deceased, it would appear that he did not intend to revoke the wills relating to the assets he held in the United Kingdom and Thailand.


The unintended effect of the Australian will is the revocation of the UK and Thai wills, resulting in a material change to the intended disposition of the deceased’s international assets; more concerning is that it would deprive Barry of his life estate and financial support. Additionally, it would deprive his siblings in due course of their interest in their family’s home.

There is no evidence Micheal instructed that his UK and Thai wills should be revoked. Micheal’s solicitor did not correct his lay impression that his Australian will would only revoke his earlier Australian will because she was unaware of the assets subject to the UK and Thai wills.

It is clear that in making the Australian will, the deceased intended that the UK and Thai wills would remain in place to regulate the distribution of his property in the United Kingdom and Thailand.

Court order

Michael’s actual intention that his Australian will would not affect his UK and Thai wills construed in light of his lay misconception and unbeknown to the lawyer drafting the revocation clause did not give effect to those instructions. Therefore the court was satisfied the will did not carry out the testator’s intentions because it did not give effect to his instructions.

The Court ordered the will of Michael John Perry of 10 October 2019 be rectified by adding the words “except for my wills of 13 September 2018 and 21 September 2018” to cl 1 following the words “previously made by me”.

Squatters Rights & Vacant land

In New South Wales s27 of the Limitation Act 1969 (NSW) provides for a claim of adverse possession – colloquially known as ‘squatters’ rights’ – allowing someone to legally take ownership of land they have occupied exclusively for at least 12 years

The claim must be sufficient to extinguish the legal owner’s title — and must be

“open, not secret; peaceful, not by force; and adverse, not by consent of the true owner”.

Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475 per Bowen CJ.

The Plaintiffs

Australian Retirement Holdings Pty Ltd (”the plaintiff”) is the latest proprietor of a retirement village on land at Gilead having occupied land situated at 72 Glendower Street, since 4 November 2013 although construction commenced on the land in 2006.

The plaintiff sought to establish that it and its predecessors in title exercised exclusive possession over the land for a continuous period of 12 years and that the acts that constituted possession of the land were done to enjoy that possession.

The plaintiff’s submitted that since 2013, it had cleared vegetation and weeds, obtained approval from the local council to construct roads for construction access, and located skip bins for the household waste of residents of the retirement village on the land. Additionally, an entrance gate was constructed which the plaintiffs kept locked unless construction was taking place. In 2019, the plaintiff’s hired a security company to patrol the road and property.

In 2019, Tracey Higgins (the first defendant) became aware that the land remained in the name of Arthur and Monica Pritchard; She sent a letter requesting the plaintiffs cease and desist using the land. After receiving no response, she affixed a sign on the property stating “Private. Keep Out.” with details of her lawyer. The plaintiff responded by commencing legal action claiming adverse possession.

The defendants

The first defendant is the administrator of the estate of her grandmother, Monica Pritchard. Monica and her husband, Arthur, who predeceased her, are recorded as the registered owners of the land which shares a border with the land owned by the plaintiff.

Arthur died in February 1990, and Monica died in April 1993. At the date of her death, Monica was the legal owner of the land which was bequeathed to her son, James, and the first defendant.

James was named executor, but died without fully administering Monica’s estate; including the transmission of title to him as legal personal representative of the estate to distribute it under Monica’s will.

Where a sole executor dies before completing administration, the executor’s executor will become the executor of the original estate and the second estate. This common law position is called the “chain of representation” and goes back over several centuries. Following James death, his wife inherited his estate which included his interest in the land.

The first defendant obtained a grant of letters of administration of the deceased’s estate in April 2020. Subject to the validity of the plaintiffs claim the first defendant is entitled to the transmission of the land as registered proprietor as the administrator of the estate of her grandmother.

The plaintiff’s evidence of exclusive possession was disputed by several members of the local community. The land had been in frequent use for recreational purposes with the residents unable to recall a gate being in place, or if it was, it had remained open; aside from the gate, the boundary fences were in poor repair or, non-existent. Additionally, there was evidence of established trails on the land.

The decision

The Court held that due to the sporadic nature of the development’s construction and proof of a different road being used for access in earlier years the plaintiff’s had failed to demonstrate that it and its predecessors had exercised adverse possession for the required 12-year period ordering the plaintiff to pay the defendants legal costs.

Importantly the court stipulated that the plaintiff was not required to relinquish possession until it applies for an order granting easements over the land enabling it to complete construction, and for any other potential purposes related to the safety of the retirement villages residents.

Banks v Goodfellow – the Fourth Limb

At common law there are at least three different types of capacity best illustrated in the context of making a will:

legal capacity – being 18 years or older (although there are exceptions).

physical capacity- the testator must sign the will in the presence of two competent witnesses (although, there are exceptions.)and

mental capacity – known as ‘testamentary capacity’.

Mental Capacity

The Marquess of Winchester’s Case in 1572 held that a valid will can only be made by a person of sound mind; however, the test for mental capacity for a will was settled in Banks v Goodfellow in 1870 where a testator must

understand the nature of making a Will and its effects;

understand the extent of the property of which he is disposing;

be able to comprehend and appreciate the claims to which they ought to give effect; and

that no disorder of mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusions shall influence his will in disposing his property and bring about a disposal of it which, if the mind had been sound, would not have been made

The fourth limb

Clitheroe v Bond [2021] EWHC 1102 (Ch) is a case about testamentary capacity that turns on the fourth limb of the test.

Following the death of one of her daughters the testatrix developed a severe grief disorder giving rise to several beliefs about her surviving daughter that turned the testatrix against her.

The testatrix believed the surviving daughter:

  • was a shopaholic and that she would fritter away any inheritance she received – there was little evidence to support this assertion; and
  • had lied about the sexual abuse she had suffered at the hands of her own father when she was young, even though there was overwhelming evidence that the abuse had taken place.

As a result of these beliefs, the testatrix in her penultimate will largely excluded her surviving daughter and completely cut her out of her final will, leaving the bulk of her estate to her son.

The decision

At first instance, the court held that the final two wills were invalid as the testatrix’s grief disorder had resulted in delusions against her surviving daughter.

The appeal

 On appeal the son argued that testamentary capacity should be determined by reference to the Mental Capacity Act 2005 (“The Act”) rather than the test in Banks v Goodfellow.

The High Court held that the trial had proceeded on the basis that both parties agreed that Banks v Goodfellow was the correct test of testamentary capacity. Further, there wasn’t a sufficiently good reason to depart from well-established case law; as the estate was worth £400000 it would be cost disproportionate and against the interests of justice to permit this ground of appeal.


The son argued the test for delusions was ‘misapplied’ at trial; additionally, the testamentary capacity test was either misapplied, and that findings on delusions were made that were not open to the court to make, or both.

Unlike the test for testamentary capacity, there are varying definitions for delusions in case law. The Court held that a false belief needs to be irrational and fixed in nature. To assess if someone was suffering from a ‘fixed’ delusion the Court was required to,

“take account of the nature of the belief, the circumstances in which it arose and whether there was an evidential basis for it, whether it was formed in the face of evidence to the contrary, the period of time for which it was held and whether it was the subject of any challenge.”

The High Court affirmed that there was clear evidence that the testatrix held a fixed belief, formed without evidential basis of the and maintained in the face of contrary evidence.

It was held that the parties should attempt to reach an agreement, via mediation or otherwise, to avoid a further hearing.

Aboriginal Objects, Defect of Title & the Court of Appeal

The appellants, (the vendors), and the first to fourth respondents, (the purchasers), entered into a contract for the sale of land in Byron Bay in July 2015. The fifth respondent, guaranteed the performance of the purchasers under the contract.

Although the land has total size of 30 acres, zoning constraints limit its commercial development potential to a lot of around 7 acres situated on which was a memorial stone and plaque placed by the NSW Government as part of the Australian Bicentenary celebrations in 1988 referring to a nearby burial site of two Aboriginal elders. Whether any Aboriginal remains were buried on the land, and the precise location of any such remains, was not known.

The special conditions of the contract provided that completion of the sale was subject to preconditions; and if completion did not occur “by the completion date, without default by the vendor” the purchasers were liable to pay default interest.

Between July and September 2015, the purchasers raised a number of objections and requisitions on the basis that Aboriginal remains located on the land being “Aboriginal objects” within the meaning of the National Parks and Wildlife Act 1974 (NSW), constituted a defect in the vendors’ title.

The vendors sought further information from the purchasers about their claim that there were any Aboriginal objects on or in the land nominating 5 August 2015 as the date for completion.

Settlement did not take place on that date. The vendors then issued two notices to complete and demanded payment of default interest calculated from 5 August 2015.

In response, the purchasers gave a notice to perform challenging the validity of the vendors’ notices and requiring the vendors to submit corrected settlement figures and making time of the essence. The vendors did not comply with the purchasers’ notice to perform.

On 25 September 2015, the purchasersw gave notice purporting to terminate the contract for repudiation. On 6 October 2015, the vendors purported to terminate the contract on the basis that the purchasers’ notice of termination amounted to repudiation of the contract

At first instance the court held the purchasers were entitled to terminate the contract on the following grounds: the vendors had repudiated the contract by failing to adequately address the purchasers’ requisition; by erroneously insisting on payment of default interest. Additionally the presence of Aboriginal objects on the land entitled the purchasers to terminate the contract

The Court of Appeal in allowing the vendors’ appeal held that the purchasers had repudiated the contract. The vendors had not displayed an intention to no longer be bound by the contract through their response to the purchasers’ requisitions. As the requisitions, were invalid and based on the “plausible contention” that there were Aboriginal objects on the land, they were sufficient to address the requisition.

There were no Aboriginal objects on the land, and in light of the development constraints already affecting the land, even if the memorial stone and plaque were an “Aboriginal object” their presence was not a material or substantial matter giving the purchasers the right to terminate.

Additionally the vendors had a reasonable basis for maintaining their claim for default interest and did not erroneously insist on completion in the face of a clear explanation of the true position
Having found that the purchasers were not entitled to terminate the contract, the Court held that the purchasers had repudiated the contract and gave judgment for the vendors.

The Court determined that the purchasers were not entitled to a return of their deposit under s 55 of the Conveyancing Act 1919 (NSW) as they had not demonstrated any injustice. The fifth respondent, as guarantor of the purchasers’ performance under the contract, was also liable to the vendors.

Great Grand Children & the Armchair Principle

Charlotte Brown (the plaintiff) is the executor of Betty Hunt’s (the deceased) estate. The deceased died on 22 June 2018 leaving a Will (“the Will”) dated 6 October 2014 naming her grandson Mathew Hunt (the defendant) as executor.

Before making the Will, the defendant had one child Nathaniel and told the deceased that he did not intend to have any more children.  However, following the deceased’s death the defendant re-partnered and has since fathered a daughter, Matilda, with his new partner.

Clause 9 of the Will stated:

I give the sum of one million dollars ($1,000,000) to such biological child or children of my said grandson Matthew Alec Hunt (being my great-grandchild or great-grandchildren) as survive me and if more than one in equal shares upon attaining the age of thirty (30) years.

The defendant is:

(a) the residuary beneficiary in the deceased’s Will;

(b) the deceased’s only biological grandchild;

(c) the plaintiff’s son;

(d)       Nathanial Hunt’s father. Nathanial Hunt was born on 12 November 2012 and is the eldest of the deceased’s great-grandchildren.

(e)        Matilda Charlotte Hunt’s father. Matilda Hunt was born on 15 November 2020, and is the deceased’s second and only other living great-grandchild; and

(f) the only person who can produce the deceased’s biological great-grandchildren.

The Proceedings

The defendant renounced his appointment as executor. Probate of the Will was granted to the plaintiff as substitute executor on 27 August 2018.

Following the distribution of bequests, transfer of real property and payment of expenses, the balance of the estate funds held in trust by the plaintiff’s solicitor as at 17 September 2021 was $1,086,736.15.

The plaintiff was granted leave to file an amended originating motion seeking the Court’s answers in relation to the construction of clause 9 of the Will.

In interpreting clause 9 the Court must take into account the words of the clause, the Will as a whole, and the surrounding circumstances of its execution. Importantly the rigid application of a uniform meaning throughout the Will may risk distorting the testator’s intention in respect of some relationships.

Construction of the Will

 The Court held that on its proper construction the class of beneficiary that cl 9 applies to includes all great-grandchildren of the deceased born before the first great-grandchild reaches the age of 30 years. That class of beneficiaries closes when the eldest great-grandchild reaches the age of 30 years. As a corollary the trust monies will be distributed to all great-grandchildren then alive at that time regardless of their age.

Amending the Trust

The plaintiff sought a variation to the trust established by by clause 9 of the Will to reduce

‘the age of the beneficiaries who are born at the time of this application’. 

It was submitted that the deceased was concerned that the beneficiaries of her estate had gained a level of maturity before any distribution was made. The court held that by reducing the age to 25 balanced the deceased’s testamentary intentions and the beneficiaries. Critically, it will reduce the extent to which the funds are depleted through trust management fees.

The Court was obliged to consider all persons who cannot consent to the variation which includes Nathanial and Matilda and any unborn children of the defendant who may be born prior the eldest great-grandchild turning 30.

In considering the impact on any unborn great-grandchildren, the court considered the low likelihood of their coming into existence together with uncertainty of the defendant’s present intention about fathering further children.

Under s 63A(1)(a) of the Trustee Act 1958 (Vic) the Court approved a variation to the trust established by clause 9 of the Will substituting the age of 25 years for the age of 30 years.

Appointing a Professional Trustee

Under the current terms of the Will, the plaintiff (now 70 years’ old) is required to manage the estate for the benefit of the deceased’s great-grandchildren until the oldest turns 30. The Court accepted in the interests of the beneficiaries, the security, investment and management of the trust monies, and the efficient, sound and faithful exercise of trustees powers, it is appropriate that the plaintiff be discharged from her role as trustee, and replaced by a professional trustee under s 48 of the Trustee Act 1958 (Vic).


The Court accepted that due to the inadequate framing of the questions in the summons and general preparation of the case by the plaintiff unnecessary costs have been incurred by the defendant. Therefore the defendant should have his costs paid from the estate on an indemnity basis. The court accepted that as the plaintiff’s application was necessary and appropriate that her costs be paid from the estate on a standard basis.

Lost Will, Administration & the Public Trustee

The Public Trustee of Queensland applied for an order to administer the estate of Kevin Middleton, who died in Brisbane on 22 December 2016, under s 29(1)(a) of the Public Trustee Act 1978 (Qld) (“PTA”) the Public Trustee administered Kevin’s estate under s 36(1) of the PTA.

If you die intestate in Queensland, your assets are distributed according to the rules of intestacy under the Succession Act 1981 (the Act). An intestate estate will be distributed initially to a spouse and issue (children, grandchildren). Where there is no spouse or issue, it goes to parents, brothers and sisters, nephews, and nieces, then grandparents, then uncles, aunts, and cousins – there is no provision under the Act to distribute an intestate estate to relatives more remote than first cousins.

Kevin never married and had no children. He was predeceased by his parents and de facto partner Shirley who had four children including the respondent, Paul. Additionally, there was some suggestion Paul has an acquired brain injury that may affect his cognitive functioning. The Court was asked to find whether Kevin left a will and whether Paul is entitled to a grant of administration of the Will.

In Queensland proof of the due execution of a will is subject to the operation of s 18 of the Succession Act 1981 (Qld); 18(2)provides

(2)  The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s will.

On 5 June 2018, Paul’s brother Gary lodged a caveat against a grant of probate or administration in relation to Kevin’s estate. A probate caveat may be lodged to prevent an administrator or executor from being appointed. Gary lodged a notice of withdrawal of the caveat on 27 February 2020.

On 15 October 2018, Paul applied for letters of administration of the Kevin’s estate. However, as Paul is not a person entitled to take an interest in Kevin’s estate on intestacy, nor to a grant of administration on intestacy the application for letters of administration did not proceed.

When the application for a grant of administration on intestacy came before the Court on 24 September 2021 Paul – who was representing himself – submitted evidence that he had lost a copy of a previous Will Kevin had executed. The Court adjourned the proceedings to a later date directing that if there is or has been a Will Paul must prove its existence, execution, and contents by affidavit.

On 1 October 2021, Paul submitted affidavit evidence suggesting that there was or may have been a Will providing Paul would be sole beneficiary of the estate if Shirley predeceased Kevin; the original Will was kept securely until it was removed by Gary.  Paul’s copy of the original document was destroyed by a fire at his home – along with most of his belongings.

 That the Court accepted that:

  •  Kevin intended the document to be his will or part of his will under s 18(2);
  • Paul was to be sole beneficiary of Kevin’s estate if Shirley predeceased Kevin
  • Kevin did not destroy the Will with the intention to revoke it.

However felt it was appropriate that the Public Trustee continue to be the administrator of Kevin’s estate as Paul lacks the skills necessary to do so and the Public Trustee  has been administering Kevin’s estate since 2016

Bona Vacantia & Incorporated Associations

Paula Anne Bates had a close association the Genesian Theatre Company Inc (‘the Theatre’) for over 30 years. In late 2007 and early 2008, Paula instructed her solicitor to draft her final Will (“unexecuted Will”) including a provision that her executors hold the net balance of the Estate on trust for the sole benefit of the Theatre, to be utilised for the ongoing benefit of the Theatre and not be used for general running expenses.

Paula, a resident of an aged care facility, had discussed her wishes with her friends and was happy with the unexecuted Will asking her solicitor to arrange for a member of the aged-care home’s staff to put it in their safe. On 14 February 2008, Paula died. No executed Will has ever been found or identified.

In 2010, the named executors of the unexecuted Will, applied for a grant probate. The application was refused by the Registry. The applicants did not make an application for judicial proceedings and the proceeds of the Estate were entrusted to the NSW Trustee and Guardian (“the Trustee”). In October 2013, Letters of Administration were granted to the Trustee in accordance with Division 2A of the Wills, Probate and Administration Act 1898 (NSW) (“the Act”) as it was in effect at the time of Paula’s death.

In April 2016, the Trustee determined that there were no relatives of the Deceased who were entitled to receive the benefit of the Estate and notified the Office of the Crown Solicitor that the Estate would pass to the Crown as bona vacantia under s 61B(7) of the Act.

Following a number of attempts the Crown has refused an application to pay the balance of the Estate to the Theatre because it says that upon the proper construction of the Act, it is not permitted to pay monies held bona vacantia to a body corporate. The Crown advised the Theatre in August 2018, to make an application to the NSW Supreme Court to obtain a declaration that the Theatre is a “person” within s 61B(8) of the Act.

The Court held that s 61B(8) represents a “catch-all” provision permitting the Crown to pay out the property of an intestate to any person, including a not-for-profit or charitable organisation, that could establish that the intestate “… might reasonably have been expected to make provision” with no reason to construe these words as only referring to individuals. It follows that the reference to “person” in s 61B(8) of the Act should be taken to include a body corporate such as the Genesian Theatre.

Original and Copied Pages of a Will admitted to Probate

Mary Elizabeth Patchett (the deceased) executed a Will (the Will) on 2 October 2014 in the presence of two witnesses, appointing her son Neil Patchett,(the applicant) as her executor and trustee. The applicant prepared the Will at the deceased’s home and left it for her to sign in front of her witnesses.

After the Will was signed and witnessed, the deceased bound it with a metal paperclip in the top right-hand corner and gave it to the applicant who placed it in a plastic sleeve and then filed it in his office. 

Application for a grant of probate

On 2 July 2021, the applicant advertised a notice of intention to apply for a grant of probate in the Queensland Law Reporter. A copy of that notice was served by email on the Public Trustee on 24 June 2021.

On 4 August 2021, an application for probate was filed on behalf of the applicant.  Following examination of the Will, the deputy registrar identified: 

a) impression and rust-coloured markings on the Will.

b) that pages 4 and 6 of the Will are copies and not original pages

The applicant had not removed the paperclip or made a copy of the document. The Will had remained filed in the plastic sleeve in the applicants office until he removed it in order to commence administration of the estate. 

Affidavit of Plight

On 25 August 2021, the applicant filed an Affidavit of Plight, Condition, and Finding submitting the rectangular impression with rounded edges is of the dimension of a paper clip and the rust-coloured marks on the first page of the Will align with that impression. Additionally, a search was made in all likely and unlikely places to locate the original pages 4 and 6 of the Will without success.

The applicant concluded, and the Court accepted it was likely the deceased had made a photocopy of the executed and witnessed Will and, mistakenly included the copies of pages 4 and 6 in the Will and the original of those pages with the photocopy.  

Originating Motion

On 13 October 2021, the applicant sought an order that the document comprising four original pages and two copied pages of the Will be admitted to probate. 

Five matters must be established to succeed in admitting a copy of a Will to probate:

(a)          that there was a Will.

(b)          that the Will revoked all previous Wills.

(c)          that the applicant overcomes the presumption that a Will,   which cannot be produced to the Court, was destroyed by the testator to revoke it;

   (d)          that there is evidence of the terms of the Will; and

   (e)          that the Will was duly executed.

The Decison

The Court accepted that the original pages 1,2,3, and 5 together with the copies of page 4 and 6 produced by the applicant is evidence that there was a duly executed Will with clearly expressed terms. Similarly the original pages are evidence that the deceased revoked all previous Wills. As four original pages of the Will were handed by the deceased to the applicant the Court believed that it is doubtful a presumption of destruction arises.

Additionally, the Court accepted the deceased provided the original and copied pages to the applicant and retention of them in the same form is sufficient to overcome any presumption that the deceased destroyed part of the Will to revoke it.

The Court ordered that a combination of the original pages 1, 2, 3, and 5 and the copies of pages 4 and 6 of the Will be admitted to probate until the original Will or more authenticated evidence be brought into and left in the Registry.

Unwitnessed Document Admitted to Probate

John Flanagan died on 18 February 2020. In a draw of John’s desk, a sealed envelope was found addressed in his handwriting with the word ‘WILL’ .  The envelope contained a signed handwritten document dated ’16 Feb 2019’ entitled ‘Last Will and Testament’ (‘the document’).

The document dated ‘16th Feburary [sic] 2020’ on the final page and was not witnessed. The document appointed Edwena Mitchell (the plaintiff) as sole executor of the deceased’s estate.   

Informal Will

Notwithstanding the form and title of the document, and that it was enclosed in a sealed addressed envelope, it does not comply with s 7(1) of the Wills Act 1997 (Vic) (‘the Act’). The plaintiff sought a grant of probate of the document under s 9 of the Act  

Admission to probate of an Informal Will

Section 9 of the Act provides that a Court may admit to probate a will that has not been executed in conformity with s 7 of the Act if:

(a)        there is a document; that

(b)       records the testamentary intentions of the deceased; and

(c)        the deceased must have intended the document to be his or her will. 

Additionally, the Court must be satisfied that the testator demonstrated an intention without reservation, by some word or act that, the document would be legally operative to dispose of their property upon their death.

However, if the deceased lacked testamentary capacity, did not know, and approve of the document, or was unduly influenced, such that his or her will was overborne, then the Court could not be satisfied that the deceased intended the document to be his or her will. 

The proceedings

The Court accepted that John is not known to have had a previous will. The document was in John’s handwriting, was not marked ‘draft’ and was sealed in an envelope addressed with the word ‘WILL’. No influence was exerted on the deceased in connection with the making of the document. 

Importantly the document is expressed in language intended to be testamentary and John did not suffer from any medical condition that affected his testamentary capacity.

John’s doctor submitted that at his last examination the deceased’s testamentary capacity was not affected and, would not have been impaired by – ischaemic heart disease- the medical condition which caused his death.

Additionally, following the plaintiff notification none of the beneficiaries who would take on an intestacy sought to be added as a defendant to the proceeding. Similarly, the beneficiaries if the document be effective provided their consent to the plaintiff’s application.

The Decision

The Court was satisfied that the deceased intended that the document be his will and ordered that it be admitted to probate.