In a judgment handed down last Friday, McMillan J refused probate of an informal document pursuant to s9 of the Wills Act 1997 (Vic) (the equivalent to s18 of the Succession Act 1981 (Qld)).

The alleged “will” was in the form of a statutory declaration, witnessed by only one person (who could not be identified).

The case is an interesting read and in particular, deals with:

  • that on s18 applications, the court must deal with the evidence on the Briginshaw standard of proof;
  • whether the declaration recorded the testamentary intentions of the deceased, in particular given that the word “wish” was used a number of times throughout (held that it did);
  • whether the deceased intended the document to be her will (her Honour was not so satisfied);
  • the time at which the court must judge when the deceased must hold that intention (either at the time the document was brought into existence, or at some later time);
  • criticises State Trustees, as the deceased’s administrator prior to her death, and being aware of the potential problems with the “will”, for not doing more to either ensure a new, proper will was executed, or ensuring that the statutory declaration was destroyed.  “It was incumbent on State Trustees at that point to take a positive step in order to make sure that the deceased’s affairs were in order.”  The consequence was a significant delay and cost in an already modest estate.  The question of costs has been reserved.  Stay tuned.

This last point is very important and has potential negligence/breach of duty ramifications for professional trustees who act as administrators of the affairs of persons without capacity.

Read Re Rosaro [2013] VSC 531 here.