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Court authorises Statutory Will to exclude husband where not legally separated

Rachael Hocking

Ian Morrison White (as attorney for Murna Phoebe Gillam) v Noel Wilbur Gillam [2016] VSC 5


The Plaintiff in this case was the attorney for his mother (Mrs Gillam), who lacked testamentary capacity. Sadly, at the time of the hearing, Mrs Gillam was not expected to live much longer.

The Defendant was Mrs Gillam husband.

The proposed Will appointed Mrs Gillam’s two sons from her previous marriage (one of which was the Plaintiff), provided a legacy of $30,000 to her step-daughter (the Defendant’s daughter), legacies of $20,000 to each of her six grandchildren and six step-grandchildren (the Defendant’s grandchildren), personal chattels and effects of a domestic nature to the Defendant and the residuary estate equally between her two sons. Mrs Gillam and the Defendant had no children together.

The Defendant opposed the application.

Mrs Gillam’s last Will, made in 2011, provided a life interest to the Defendant in the matrimonial home, registered solely in her name, and one third of her residuary estate. Apart from these specific bequests, the proposed Will was in the same terms as the 2011 Will.

Since 2011, the matrimonial home was transferred to the Defendant as a result of a matrimonial property settlement pursuant to Part VIII of the Family Law Act 1975 (Cth), which proceeding was commenced by the Defendant. The Defendant also received $550,000, Mrs Gillam retained her other property, each of Mrs Gillam and the Defendant retained their respective share portfolios and loans owing by their own family members were retained by them. The result of the property settlement was that the Defendant and Mrs Gillam were financially separated.

Her Honour acknowledged that before making an order authorising the making of a proposed Will, the Court mustbe satisfied of three things: (1) Mrs Gillam did not have testamentary capacity; (2) the proposed Will reflected what the intentions of Mrs Gillam would be likely to be or might reasonably be expected to be, if she had testamentary capacity; and (3) it was reasonable in all the circumstances for the Court to authorise the Will.

Testamentary Capacity – s 21B(a)

Her Honour defined testamentary capacity as having sufficient mental capacity to comprehend the nature and effects of a Will, the ability to realise the extent and character of one’s estate and the ability to weight claims that may be made against such estate.

In this case, Mrs Gillam had advanced dementia and it was accepted by all that she did not have testamentary capacity.

Testamentary Intentions – s. 21B(b)

Her Honour noted that the test in relation to this question is not whether the proposed Will would be the preferable result to an intestacy or an existing Will.

The Court was assisted by evidence of Mrs Gillam’s three previous Wills, all of which were made when Mrs Gillam had testamentary capacity.

First Limb – what Will would Mrs Gillam be likely to make

The three previous Wills satisfied Her Honour that, if Mrs Gillam had testamentary capacity, her intentions would be to continue to leave legacies to her step-daughter, grandchildren and step-grandchildren and the residue to her sons equally as she had never left the Defendant a substantial part of her estate, indeed she had never left the Defendant anything close to the equivalent sum he received from the property settlement.

Second Limb – does the proposed Will reflect what Mrs Gillam might reasonably be expected to make

Her Honour stated that the second limb would be met if the Court is satisfied that the proposed Will reflects what the intentions would be likely to be, or might reasonably be expected to be, or that there is a fairly good chance that it reflects what the intentions might be, or that some reasonable people could think it reflects that the intentions might be, or that some reasonable people think there is a fairly good chance it reflects what the intentions might be – if Mrs Gillam had testamentary capacity.

The standard of proof is on the balance of probabilities.

In this case, the property settlement satisfied Her Honour that the proposed Will reflected Mrs Gillam’s likely intentions.

Reasonable in all the circumstances – s. 21B(c)

Her Honour stated that section 21A of the Wills Act 1997 (Vic) provides a checklist of information that is not exhaustive or rigid. It provides matters that must be before the Court, only if required by the Court, as section 21 is a discretionary assessment. It therefore appears from Her Honour’s comments that an applicant may not need to adduce evidence of all matters listed in section 21A.

The Court, having been satisfied of all three elements in section 21B, authorised the making of the proposed Will.

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