Statutory Wills – Practitioner appointed to ascertain likely intentions of the testator

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Bailey v Richardson [2015] VSC 255 (5 June 2015)

This is the first case decided under the new legislation governing statutory wills, which came into effect on 1 January 2015.

The previous legislation had required that an applicant seek leave from the Supreme Court before making an application for an order to make a statutory will. The amendment removed the requirement to obtain leave before making an application. Whereas the majority of evidence was introduced in the first stage of the application under the old law, evidence is now introduced during the substantive application itself. Additionally, the amendments enable the Court to order that the proposed testator have separate legal representation. These amendments were intended to encourage the use of statutory wills, which had been under-utilised.


This matter concerned an application by Ms Bailey and Ms Curtain to make a statutory will for Ms Evans. Ms Evans is an elderly woman with only four living relatives: her niece, Mrs Richardson, and Mrs Richardson’s three children. She had not seen Mrs Richardson and her children for a number of years and professed a disliking of them. Ms Evans had never married nor had children.

Bailey and Curtain were the administrators for Ms Evans and her friends of nine years. They had arranged for the sale of her house, cleaned it to ready it for sale, organised a 90th birthday for Ms Evans with 40 attendees, arranged for her to move into an aged care facility and had her stay with them and their respective families once a week to help with the transition into the facility.


The Court ordered that Mr David Hughes act on behalf of Ms Evans to assist by informing the Court of her likely intentions. Mr Hughes then interviewed Ms Evans on four occasions and deposed that Ms Evans had consistently told her legal representative, Mr Hughes, that she would leave her estate to Bailey and would not leave it to Mrs Richardson and her family. On one occasion, she told Mr Hughes that she would leave money to Ms Curtain.

Any concerns that Ms Bailey and Ms Curtain were acting in a self-interested manner were extinguished by the fact that they had been appointed as Administrators by VCAT and had diligently filed their Account by Administrator, which showed that they had been managing her finances well. Further, they had made enquiries with Ms Evans’ previous lawyers and found that she had never made a Will before making the application.

After determining that Ms Evans would have left her estate to both Mrs Bailey and Ms Curtain equally if she had capacity, the Court found that this was reasonable as Mrs Richardson and her three children would no longer be eligible to make a claim for provision under Part IV of the Administration and Probate Act 1958.

This case is a reminder of the utility of statutory wills, particularly in light of the amendments to the eligibility criteria under the Administration and Probate Act 1958.

Mutual Wills – Enforceability

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Flocas v Carlson [2015] VSC 221 (4 June 2015)

Marjorie and Robert were brother and sister, the children of Charles and Birdie. Lillian died in 1949 and the two children were made tenants in common in the family property in Prahran with Charlie. The three also owned a property in Brighton and Marjorie and Robert owned additional properties in Brighton East and in Brighton together.

Both Marjorie and Robert lived with their respective families in the Prahran property.

Charles passed away in 1990. After Robert fell ill, Marjorie and Robert both executed Wills in February 1996. Robert’s Will gave Marjorie his share of the Prahran property but, if she failed to survive him then gave a life interest to Marjorie’s husband, Keith. In the event that Keith failed to live in the property, keep in insured, pay all outgoings or keep it in good repair then the property would go to Robert’s daughter, Robyn.

Marjorie’s Will gave the residue of her estate to her husband and, if Robert predeceased her, gave Robyn her share in the Prahran property. If Robert survived her, he would receive a life interest in the property in the same terms as Keith’s life interest in Robert’s Will. The remainder would go to Keith.

Robert died 4 days after the Wills were executed.

Marjorie executed a new Will 2 months later that also gave Robyn her share in the Prahran property. She then obtained a grant of probate for both Robert and her father and was eventually registered as sole proprietor on the title of the Prahran property. The other properties were sold.

Marjorie executed a final Will in 2001 and Keith died in 2003. Marjorie died in 2012 and probate was granted two months later to her three children. Her Will gave her entire estate to Keith and then to their children if he predeceased her.


Robyn sought a declaration of constructive trust over the Prahran property on the basis that Robert and Marjorie agreed to dispose of their interests in the Prahran property and that the relevant consideration by each of them was the execution of their own Will. Robyn sought the transfer of a one half share of the property on the basis of an estoppel in Robert’s favour and another estoppel in her own favour. The defendants argued that Robyn’s claim of an agreement was contrary to the requirement that dispositions of land be in writing.

The solicitor who made the Will gave evidence that, during the meeting to make the Wills at the Prahran property, Marjorie interrupted Robert and said that she wanted him to leave his interest in the property to her on the basis that she would make a similar gift to Robyn. Marjorie subsequently promised to leave a one-half interest to Robyn. The solicitor had suggested that Marjorie be given a life interest instead but Marjorie had disagreed with this.

After Robert’s death, the solicitor advised Marjorie that she could not change the gift to Robyn in subsequent Wills. The solicitor admitted that he should have added a non-revocation clause to the February 1996 Wills.

The Court held that there was an agreement between Robert and Marjorie that was sufficiently certain to create a mutual will, with the effect that the half-share in the Prahran property was held on a constructive trust for Robyn. The Court was persuaded by the evidence from the solicitor as well as the fact that Robert’s Will would not make sense but for his intention to be bound by the agreement with Marjorie as he was effectively not providing for his owned daughter. Whilst the Defendants tried to argue that the Statute of Frauds prohibited a dealing in land when not in writing, it was held that the Statute of Frauds in this case would be used to conceal a fraud against Robyn.

This case demonstrates that importance in giving clear instructions to solicitors and ensuring that the terms of a Will accurately reflect your intentions. If in doubt, seek further advice from another solicitor.

Testamentary Capacity and Validity

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Veall v Veall [2015] VSCA 60 (16 April 2015)

This case concerned a claim by Kim Veall, the daughter of the Deceased, Keith Veall, that the Deceased did not know and approve of the contents of his Will and lacked testamentary capacity.

The Deceased died leaving two children from his first marriage, Denise and Rowland, his wife, Beryl, their daughter, Kim and Beryl’s daughter Lorraine. Keith had built up a considerable fortune and made a number of distributions to his children during his lifetime.

Keith died on 13 October 2011 and Beryl died in March 2012.

The Deceased had executed Wills in 2007, 2008, 2009, 2010 and then 2011. His 2007 Will:

  • Appointed his accountant and his friend as executors;
  • Gave a life interest in a Kilsyth South house to Rowland and then to Rowland’s daughter;
  • Gave a life interest in an apartment under construction to Denise and then to Kim’s sons;
  • Divided his Estate to his children; and 
  • Left nothing to his wife as she had her own assets and was a beneficiary of a trust. 

In September 2008, Keith had signed a letter stating that Denise and Rowland were making demands for money from him but in October 2008, Rowland and Keith met with solicitors and had a Will drafted which:

  • Appointed Denise and Rowland as executors;
  • Gave the Kilsyth South house to Rowland;
  • Gave his shotguns to Kim’s sons;
  • Divided the residue between his children; and 
  • Left nothing to Beryl as he stated that she owned their apartment in Toorak. 

He later signed a Codicil giving a painting to Rowland.

In 2009, Rowland telephoned Keith’s solicitor and had him draft a Will incorporating the Codicil with the 2008 Will. At the time, Rowland told the solicitor that people were putting pieces of paper under Keith’s nose and he would sign anything. Rowland also acknowledged that his father was “declining by the day”.

A new lawyer was engaged to draft a Will in September 2010 that:

  • Appointed Denise and Rowland as executors;
  • Made no reference to the Kilsyth South house;
  • Made no mention of the painting;
  • Left his shotguns to Kim’s sons; and
  • Divided the residue between his children.

Keith later met with the same solicitor in December 2010 which:

  • Appointed Denise and Rowland as executors;
  • Gave the painting and his shotguns to Rowland;
  • Gave a shooting trophy to Denise;
  • Dividing his collection of medals, trophies and pocket watches equally between Denise and Rowland;
  • Gave the residue of his state to Denise and Rowland equally.

At the time of the execution of this final Will, Keith demonstrated inconsistent behaviour as follows: 

  • He signed an affidavit supporting Family Court proceedings Beryl, despite they continued to live together, they showed affection towards one another, dined together each night, she continued to shower him and he told her to ignore the proceedings when she was served.
  • He had signed a letter to the directors of his company but later denied signing or sending the letter.
  • Keith sought to recover the house from Beryl despite acknowledging in his earlier Wills that he house was held in her name.
  • His final will sought to dispose of some shares whereas, on the very same day, he swore an affidavit which deposed that the very same shares had been held by a trust and had been sold years earlier.
  • He had consistently given his shotguns to Kim’s sons in his earlier Wills and he had been very open about how he shared his love for shooting with them.

Additionally, Keith would not pay his fees for the solicitors acting on his behalf in the Family Court proceedings and insisted that they were not his solicitors. His solicitors in the Family Court proceeding had obtained medical evidence and, despite arranging for the solicitors to make his penultimate and final Wills, did not provide that evidence to the lawyer. The solicitors gave inconsistent evidence about how often he had met with Keith and it was unclear whether it was Rowland or Keith who had retained the lawyer. Rowland professed innocence about the contents of this Will, which was described as “scarcely credible”.


The Court held that Keith did not know and affirm of the contents of his Will and nor did he have testamentary capacity to make a Will. Consideration was given to what Keith was doing and saying when not in the presence of Rowland or the solicitors and the Court paid particular attention to the suspicious inconsistencies in Keith’s behaviour, such as fact that Keith had signed inconsistent documents on the same day and the dealings with his shotguns.

Testator Family Maintenance – Claims by an Adult Son

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Warriner v Warriner [2015] VSC 314 (1 July 2015)

This case involved an application by a 68 year old adult son, George, for provision from his mother’s Estate. He had been left nothing and his sister, Jean, was left the entire estate, which consisted of a house in Maribyrnong worth approximately $700,000.

Jean had lived in the house since 1999 when their mother moved into aged care. George lived in the Philippines in a home owned by his former de facto partner. Both received an Australian pension, although George was able to make better use of his pension while living in the Philippines because of the lower cost of living.

George had limited contact with his mother from when he left Australia in 1993. There was no evidence of any wrong-doing on his part and the limited contact was caused by the distance between them.

Jean, however, not only contributed to their mother’s welfare but also suffered from mental health issues including depression and Asperger’s syndrome. Her doctor deposed that there would be a harmful effect on Jean’s health if she was forced to move from the home.

The Court dismissed George’s claim on the basis of the small size of the estate, Jean’s health issues and George’s relationship with the deceased.

This case highlights the Court’s conservative approach to claims for provision by adult children, in small estate circumstances.