Re Norris; Lindsay v Howie [2025] VSC 85 S PRB 2024 23208 is a dispute between Ms Lindsay, (the plaintiff) one of Ms Norris’s (the deceased) nieces, and John David Howie (the defendant), Ms Norris’s husband for nearly 20 years.
Gray J made several uncontested findings on contextual matters, which are crucial to understanding the legal context and implications of the matter which consists of three proceedings.
The plaintiff submitted the first application in September 2024 in proceeding S PRB 2024 19293, seeking a limited grant from the Court of letters of administration ad litem for the deceased estate about the plaintiff’s effort to appear as the deceased’s representative in Family Court proceedings.
The defendant filed the second application in October 2024 within the proceeding S PRB 2024 22067. It requests a full grant of letters of administration for the deceased’s estate due to intestacy. The plaintiff lodged a caveat and stated her grounds for objection.
The third action, proceeding S PRB 2024 23208, was initiated by the plaintiff in November 2024, seeking a full grant of probate for the informal Will document, which the defendant has also contested by filing a caveat against the grant.
The plaintiff initiated proceeding S PRB 2024 23208 following a directions hearing on November 1, 2024. Gray J held the primary issue in contention was whether probate should be granted on the alleged informal Will, as addressing that issue would likely resolve the matters in the other two proceedings. The parties then worked effectively to present that matter to the Court during the trial hearing for the three proceedings on November 25, 2024.
Gray J’s ruling on proceeding S PRB 2024 23208 resolved the core disagreement between the parties in favour of the plaintiff, eliminating the necessity for separate consideration of the other two proceedings.
Gray J’s judgment clarifies the decision to grant probate of the informal Will document to the plaintiff in proceeding S PRB 2024 23208.
Ground 2 of the plaintiff’s caveat objection in S PRB 2024 22067 raised concerns about whether the defendant might experience a conflict while representing the deceased in the Family Court proceedings. Both parties discussed this matter during the hearing, but as Gray J’s decided to proceed with S PRB 2024 23208, it is unnecessary to address it.
Questions for determination
There are two main issues to resolve in proceeding S PRB 2024 23208:
- (a) Did the deceased intend for the informal Will document, without any modifications, to be her final Will?
- (b) did the deceased possess the testamentary capacity to form that intention?
Section 7 of the Wills Act 1997 (Vic) prescribes the formalities for executing a Will. It relevantly provides that a Will is invalid 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 but not necessarily in the presence of each other.
Section 9 of the Act provides that the Court may, in certain circumstances, dispense with the formalities of s 7 and admit an unexecuted document to probate as the Will of the deceased, underscoring the Court’s role in ensuring justice in matters of estate law.
Background
The sequence of events in Re Norris; Lindsay v Howie is as follows:
- The defendant and the deceased began living together in Australia in 2004 and married later that year.
- In 2005, they prepared Wills using Will kits, with the deceased’s sister and her husband acting as witnesses. The defendant and the deceased store their completed Will kits at home.
- The defendant and the deceased took the Wills to their new house when they moved in 2007.
- They discussed updating their Wills after experiencing bereavement in 2023 and early 2024. The deceased expressed her intention to leave her estate to the Werribee Open Range Zoo if the defendant predeceased her.
- In early 2024, the deceased allegedly destroyed the 2005 Wills. The defendant claimed the deceased admitted to this, while the plaintiff provided a different account. Gray J accepted the defendant’s version of events.
- In mid-2024, the defendant and the deceased separated due to the defendant’s decision to return to Scotland. However, they continued living together, negotiated a property settlement, and an asset division was primarily agreed upon.
- In June 2024, the deceased sought legal advice about making a new Will and contacted her solicitor friend, Ms Calvert-McCredie instructing that her assets be divided among her nieces.
- By July 2024, the deceased’s new Will was ready, but she hesitated to receive it by email, fearing that the defendant would find out. The deceased informed her sister that her previous Will was void and destroyed.
- In early August 2024, the deceased arranged to sign the new Will but postponed the meeting due to health issues leading to multiple hospitalisations.
- On 12 August, the defendant found the deceased unresponsive at home. Doctors placed her in an induced coma, and the deceased passed away on 19 August 2024.
The evidence conflicted as to whether the deceased had attempted suicide and legal proceedings concerning the deceased’s estate and property settlement remained ongoing. While the parties disputed the estate’s value, she left substantial real and personal property in Victoria.
When 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 their Will.
…
(3) In making a decision, 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 testator’s testamentary intentions, including evidence of statements made by the testator.
Informal Will
For an informal Will to be admitted to probate, the proponent must meet three criteria:
- (a) there must be a ‘document’;(
- (b) the document must express or record the testamentary intentions of the deceased; and
- (c) the document must have been intended by the deceased, without any alterations, to be their last Will.
An informal will does not benefit from the same rebuttable presumptions that apply to duly executed wills. Accordingly, the onus is on the propounder to satisfy the Court, on the balance of probabilities, that the deceased had testamentary capacity and knew and approved of the contents of the informal will. The propounder likewise bears the burden of dispelling any suspicious circumstances surrounding the execution of an informal will. In accordance with the principles expressed in Briginshaw v Briginshaw and s 140(2) of the Evidence Act 2008 (Vic), the cogency of the evidence necessary to displace any suspicion will depend on the circumstances of each case. The application of Briginshaw dictates that the Court’s reasonable satisfaction regarding the dispelling of those circumstances should not be attained by ‘inexact proofs, indefinite testimony, or indirect references’.
Re Larcombe [2022] VSC 741 at [81], (McMillan J).
McMillan J referred to those requirements as being in addition to the criteria for dispensing under s 9 and the formalities required to make a Will. However, those requirements may also correctly be seen as elements of the requirement in s 9 of the Wills Act that the deceased intended the document to be their Will.
In Hatsatouris v Hatsatouris, the NSW Court of Appeal observed that it would be necessary for a court to be satisfied that the deceased possessed the relevant intention, ‘either, at the time of the subject document being brought into being, or, at some later time’. A will that has not been validly executed but satisfies the requirements of s 9 of the Act could still in theory be refused probate where the testator lacked testamentary capacity, did not know and approve of the will, or was affected by undue influence in making the will. If the deceased lacked the capacity to make a will, then the Court could not be satisfied that the deceased intended the document to be his or her will. If the deceased did not know and approve of the document, then the Court could not be satisfied that the deceased intended the document to be his or her will. If the deceased was unduly influenced in the sense recognised by the Courts of Probate, such that his or her will were overborne, then the Court could not be satisfied that the deceased intended the document to be his or her will.
For these reasons, issues related to the capacity of the deceased, the knowledge and approval of the deceased and any undue influence on the deceased are relevant factors in considering whether the will instruction sheets satisfy s 9 of the Act.
The application of s 9 of the Act and the standard of proof required was set out by Habersberger J in Fast v Rockman:
The person seeking to propound an informal will must establish the requisite elements on a balance of probabilities. Furthermore, because of the nature of probate, the consequences of any findings that may be made and the inability to hear any evidence from the deceased as to his actual intentions, the Court needs to evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw principle.
Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) (Powell JA). See also National Australia Trustees Ltd v Fazey; Estate of Nancy Elaine Lees [2011] NSWSC 559 (10 June 2011) (Windeyer AJ).
Briginshaw v Bringinshaw principle
Briginshaw v Briginshaw (1938) 60 CLR 336, involved a divorce petition where the husband alleged his wife’s adultery.
The Briginshaw principle is commonly utilized in cases that involve serious accusations, like fraud, dishonesty, or professional misconduct, where the implications of a ruling can be substantial.
Dixon J’s comments in Briginshaw clarified that the standard of proof in civil cases is the “balance of probabilities”; however, in situations involving serious claims, the evidence needed to satisfy that standard should be more substantial and persuasive.
The principle instructs courts to take into account:
- The severity of the accusation
- The natural improbability of the event
- The seriousness of the outcomes resulting from a specific judgment
The principle highlights that in civil matters dealing with serious accusations, the evidence provided must be distinct, persuasive, and strong enough to satisfy the Briginshaw standard.
Testamentary Capacity
A Will that has not been validly executed but satisfies the requirements of s 9 of the Act could still be refused probate where the testator lacked testamentary capacity, did not know and approve of the Will, or was affected by undue influence in making the Will. If the deceased lacked the capacity to make a Will, then the Court could not be satisfied that they intended the document to be their Will.
If the deceased did not know and approve of the document, then the Court could not be satisfied that the deceased intended the document to be his or her Will. If the Court believes the deceased was unduly influenced, such that their Will was overborne, then the Court could not be satisfied that the deceased intended the document to be his or her Will.
“Section 9 of the Act enables the Court to dispense with the formal requirements for executing a Will when admitting it to probate. It is important to note that the power of the Court to admit a Will to probate is not a power granted by the Act but to the Court on its establishment, and that remains with the Court under the Constitution Act 1975. A Will that was not validly executed and satisfies the requirements of s 9 could still be refused probate where the testator lacked testamentary capacity, did not know and approve of the Will, or was affected by undue influence in making the Will.
However, how s 9 has been interpreted and applied by this Court makes those requirements obsolete. If the deceased lacked the capacity to make a Will, then the Court could not be satisfied that the deceased intended the document to be hers. If the deceased did not know and approve of the document, then the Court could not be confident that the deceased intended the document to be her Will. And if the deceased was unduly influenced in the sense recognised by the Courts of Probate, such that she was overborne, then the Court could not be satisfied that the deceased intended the document to be her will.”
Re Stuckey [2014] VSC 221 (23 May 2014) [40]–[41] (McMillan J)
The Court makes no presumption of testamentary capacity in the event of an informal Will. Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 174–175 [180]-[183] (Santamaria JA, Beach and Kyrou JJA agreeing).
In each matter, the circumstances that arouse suspicion will vary. The fact that a beneficiary took part in preparing the Will is only an obvious example of a circumstance creating suspicion. In Wintle v Nye [1959] 1 WLR 284. Viscount Simonds said:
‘It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. The person propounding the Will must remove facts, creating suspicion. In all cases, the Court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. The facts may be slight and quickly dispelled. However, it may be so grave that it can hardly be removed at [291].
In McKinnon v Voigt [1998] 3 VR 543, Tadgell JA said:
“The principle exemplified in such cases as Barry v Butlin, Fulton v Andrew and Wintle v Nye is not confined to a case in which suspicion is generated because a Will is prepared by or on the instructions of a person taking a benefit out of it, or who stands to gain from it. The principle extends:… to all cases in which circumstances exist that excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the Will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the Will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the Will.”
In Williams, Mortimer & Sunnucks — Executors, Administrators and Probate(Quoting Lindley LJ in Tyrell v Painton [1894]). The authors deal with particular matters that arouse suspicion.
“ A radical departure from testamentary dispositions, long adhered to, requires explanation, especially if the person in whose favour the change is made possesses great influence and authority with the deceased and originates and conducts the whole transaction. Such facts may raise strong suspicions that the change was not the result of the free volition of the deceased. But that suspicion may be dissipated by proof of a change of circumstances since the deceased’s earlier Wills. There have been several cases in which Wills prepared by elderly testators in favour of their carers have been scrutinised by the Court and often set aside.
John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks — Executors, Administrators and Probate (Sweet & Maxwell, 20th ed, 2013) p 151, 157).
The testator’s feebleness of body or mind may be relevant to knowledge and approval. Ibid 207 [13–30] (citations omitted).
Will read to or by the Willmaker
Proof that the Will was read by or read to the testator before its execution may not be sufficient, nor will evidence of explanation of the Will to the testator. In the mid-19th century, the rule appeared to be that a testator knew and approved of the contents of their Will if they had testamentary capacity and
“had the will read over to him or otherwise had notice of its contents at the time of execution, then in the absence of fraud the court cannot accept other evidence showing that the deceased did not know and approve’.[88]
However, Fulton v Andrew (1875) LR 7 HL 448 at 471] held that there was
“no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had the Will read to him, and has thereupon executed it, all farther inquiry is shut out.’ Over the next several decades, the Court considered that the Will had been read to the testator. The Court needs to be satisfied only with the civil standard of proof on consideration of all the evidence. Tobin v Ezekiel (2012) 83 NSWLR 757, 772[48];
Vukotic v Vukotic [2013] VSC 718, [25]. Calls for vigilance in certain suspicious circumstances do no more than reflect the fact that
‘deciding whether a document is indeed a person’s last will is a serious matter’
Tobin v Ezekiel (2012) 83 NSWLR 757, 772 [48](Meagher JA) and Dixon J’s observation in Briginshaw v Briginshaw (1938) 60 CLR 336 that
‘reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved’. Evidence Act 2008 s 140(2).
In Kantor v Vosahlo[2004] VSCA 235, the onus of proof and the standard of evidence in an application for probate. In respect of the former, Ormiston JA said:
“There has never been the slightest doubt that those who seek to propound a Will for probate bear the burden of establishing that the Court should grant probate to them and that this ultimate burden remains upon them throughout the trial, although particular circumstances may in practice make that burden harder or easier to satisfy: see generally Bailey v Bailey; Landers v Landers and Timbury v Coffee.
From time to time, it may be sufficient to show by the calling of appropriate evidence that the Will was duly executed and is rational on its face: see Symes v Green as cited by Dixon J in Timbury.
On the other hand, if circumstances question the testamentary capacity of a testator or testatrix to have validly executed a Will, whether raised by evidence of old age, mental infirmity, suspicion of undue influence or fraud, or the like, then that prima facie case of the propounder will be held not to be sufficient to justify a grant to the propounder.
In Worth v Clasohm [1952] HCA 67; 86 CLR 439:
the burden of satisfying the conscience of the Court concerning the existence of testamentary capacity rested upon the plaintiff that the testatrix retained her mental powers to the requisite extent.
Ormiston JA referred to Boreham v Prince Henry Hospital (1955) 29 ALJ 179. In that case, the High Court said:
The proper approach of the Court to determine whether a testator has testamentary capacity is evident. Although proof that a Will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole sufficiently doubts the testator’s capacity, the Court must decide against the validity of the Will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the Will preceded its execution, when the client gave instructions.
The Court referred to Bull v Fulton (1942) 66 CLR 295 where Williams J said (at 338): ‘
Advancing age generally takes toll of some physical or mental attribute, however tough a person’s constitution may be, and it has been recognised so often that it affects the faculty of memory that a Will made by a person of advanced age is always carefully scrutinised by the court (Kinleside v Harrison (1818) 2 Phill. Ecc. 449, 462 [161 ER 1196, 1200]).’
In Boreham v Prince Henry Hospital (1955) 29 ALJ 179 the Court (Williams, Fullagar and Kitto JJ) explained the onus which falls back on the person propounding a Will after submitting some evidence of a mental illness affecting capacity.
Ormiston JA in Kantor v Vosahlo[2004] VSCA 235 described the onus as ‘heavy’. Rejecting that description, Buchanan and Phillips JJA stated:
There is no warrant for describing the onus on the propounders in this case as ‘heavy’ or the standard other than the ordinary one applicable in a civil suit. Of course, the cogency of the evidence necessary to discharge the onus will depend upon the circumstances of the case and the source of the doubt, as testamentary capacity will say much to dispel the doubt.
However, the onus on the appellants (as was acknowledged) and the standard of proof based on the balance of probabilities is the standard of proof in probate cases, see Ormiston JA at [15]-[24]. See also the discussion of the ‘flexibility of approach within the civil standard of proof’ in Fuller v Strum [2002] 1 WLR 1097, 1118-1121 (Chadwick LJ).
Because of the nature of probate, the consequences of any findings that the Court may make, and the inability to hear any evidence from the deceased’ as to her actual intentions, ‘
‘the Court needs to evaluate the evidence with great care following the Briginshaw v Briginshaw principle.’
Fast v Rockman [2013] VSC 18, [48] (Habersberger J)
According to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336, 361-363 (Dixon J) and s 140 of the Evidence Act 2008 (Vic), the ‘
‘cogency of the evidence necessary to discharge the onus will depend upon the circumstances of the case, as it always does’.
Kantor v Vosahlo [2004] VSCA 235 [58] (Buchanan and Phillips JJA).
The first and second criteria were uncontentious in Re Norris; Lindsay v Howie [2025] VSC 85: there was no dispute that a ‘document’ purporting to be Ms Norris’ informal Will exists, and the document recorded her testamentary intentions.
The third criterion — whether the deceased intended the document to be her last Will — is in issue (1952) 86 C.L.R. 439 at 453, per Dixon, C.J., Webb and Kitto, JJ.
The defendant submits that the deceased died without leaving a Will and that he should be granted letters of administration of her estate on intestacy. The plaintiff has filed a caveat and grounds of objection to any such grant.
The plaintiff contends that the deceased left a document that was intended to be her Will (informal Will document). It names the plaintiff as executor and provides for the deceased estate to be equally divided into four parts between the plaintiff and three other nieces. It excludes the defendant.
The decision
The plaintiff seeks an order under s 9 of the Wills Act 1997 (Wills Act) admitting the informal will document to probate. The defendant has, in turn, filed a caveat and opposes any such grant. Gray J directed the truncated timetable to determine these proceedings, and the defendant did not file grounds of objection. Instead, he relied on his submissions, including his written submissions filed on 18 November 2024. Gray J was satisfied following the applicable principles that the deceased intended the terms of the informal Will document to be her Will.
Michelle Calvert-McCredie (Ms Calvert-McCredie) submitted the principal evidence supporting that the deceased intended the terms of the informal Will document to be her Will. Ms Calvert-McCredie is a solicitor who prepared the informal Will document, read it out to the deceased over the telephone on 10 July 2024, and printed and bound it sometime between 31 July 2024 and 2 August 2024 in anticipation of a conference with the deceased scheduled for 4 August 2024. However, as the deceased was unwell, the conference never took place.
Ms Calvert-McCredie’s evidence was clear and direct. On Ms Calvert-McCredie’s account, Gray J accepted that the deceased intended to make her Will as set out in the informal Will document and was satisfied that she had testamentary capacity at all times.
Gray J admitted the informal Will document to probate.