Equity Trustees Limited v Levin [2004] VSC 203

2. This is an application by the plaintiff as executor of the estate of Lorna Winifred Grover, deceased, for the grant of probate of a will dated 23 April 1992, alternatively, for a grant of probate of that will as varied by a photocopy of the will.

5. The first defendant, Mrs Levin, was at one point represented by solicitors but appeared before me in person. She is the daughter of the deceased's first cousin. She is the subject of one of the handwritten amendments on the photocopy will referred to in the application. The second and third defendants are the children of one William Grover, who is named as a beneficiary in the will of 23 April 1992 and whose name is crossed out in the photocopy of the will. Mr Cook of counsel appeared for the second and third defendants.

8. Mrs Levin seeks to have the photocopy will admitted to probate and she relies on s 9 of the Wills Act 1997 (Vic). The second and third defendants seek to have the will of 23 April 1992 admitted to probate. The executor's counsel, Mr Waddell, submitted that the requirements of s 9 of the Wills Act 1997 (Vic) were not satisfied in this case, and accordingly also submitted that the will dated 23 April 1992 should be granted probate.

11. In this application the executor relied upon an affidavit of Peter John Williams sworn 21 May 2003 and an affidavit of David John Williams sworn 29 September 2003. Mr David Williams gave oral evidence correcting a date and some matters were put to him in cross-examination by Mrs Levin. Mrs Levin relied upon an affidavit by her of 28 October 2003 and gave some additional oral evidence. The second and third defendants did not lead any evidence.

14. The matter was conducted by all parties in a non-adversarial manner. The most Mrs Levin might gain from any version of the deceased's will is $2,000, and she in fact disavowed any entitlement even to that sum as a testamentary disposition. Mrs Levin seemed to me to be motivated solely by her concern to ensure that her elderly relative's wishes should be given effect to, if that can be done in accordance with the law.

17. The material relied upon deposes to many matters; the pertinent facts appear to me to be the following.

20. The deceased was born on 24 July 1912. By duly executed will made 23 April 1992, which I will call the "formal will", the deceased provided for the disposition of her estate. Amongst other things, she divided her residuary estate between 25 named persons and charities.

23. During 2001 and 2002, Mrs Levin and her husband, Howard Levin, assisted the deceased in managing her affairs, and in particular, assisted the deceased in her attempts to arrange her affairs so that she could stay in her own home. In the course of discussions with Mrs Levin, the deceased spoke of her desire to alter her will to adjust the dispositions she had made. She also told her of a desire she had to give approximately $20,000 to various persons as gifts in her lifetime.

26. Despite the Levins' best efforts, the deceased was eventually forced to leave her home and go into a special accommodation home. In order to assist her in meeting expenses, the Levins arranged for her to borrow a sum of money from Intech Credit Union. The deceased's solicitor, Mr David Williams, saw her about her financial affairs on 21 October 2001 and about this proposed loan on 30 May 2002. He did not discuss her will with her on either of those occasions.

29. By 30 May 2002, the deceased was living at the Airlie Special Accommodation Home. In June 2002, while preparing to take some personal items to the deceased, Mrs Levin found on a sideboard a number of documents, including three versions of the formal will with alterations. The first version which Mrs Levin found is exhibit 1, a copy of which is "ML2" to the affidavit of Mrs Levin of 28 October 2003. This is a photocopy of the formal will with a number of residuary beneficiaries crossed out, with ticks next to all the beneficiaries not crossed out, except two, and with the figures "20,000" on the bottom of one of the pages.

32. The next document is exhibit 2, a copy of which is "ML1" to the affidavit of Mrs Levin of 28 October 2003. This is an unexecuted copy of the formal will with pencil marks over the reference to William Grover.

35. The final document is exhibit "C" to the affidavit of Peter John Williams sworn 21 May 2003. This is a photocopy of the formal will with a number of annotations in ballpoint pen in the deceased's handwriting. The annotations are ticks and crosses next to residuary beneficiaries, lines through certain residuary beneficiaries, the words "Felicity Grover, daughter of the above" at the foot of the front page, various alterations and additions to addresses, the addition of figures next to certain residuary beneficiaries, the addition of "2,000, Margaret Levin, 28 Lawrence Street, Brighton, Victoria", and a number of other notations. This is the alternative document which is referred to in the originating motion. Mrs Levin gave oral evidence about this document, and in particular, about the figures against certain of the residuary beneficiaries and about the addition of her own name and the figure "2,000." I will return to this evidence in a moment.

38. In June 2002 Mrs Levin sent exhibit C to Mr David Williams. Mr Williams was overseas during July. Mr Williams spoke to the testatrix on 21 August 2002 and was told by her that she wished to change her will. He arranged to see her on 26 August 2002. On 26 August 2002, Mr David Williams saw the deceased and discussed a possible provision for the Levins in her will. Mr David Williams offered to draft a codicil on the spot but the testatrix felt too unwell to sign anything. On 1 September 2002 the testatrix died.

41. Section 9 of the Wills Act 1997 (Vic) relevantly provides:

"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 exercised by this Act -

if the Court is satisfied that that person intended the document to be his or her will."

49. I was referred by counsel to a number of authorities, and in particular, to Re Application of Brown,[1] In the Estate of Masters[2] and Re Trethewey.[3] These authorities elaborate upon what is provided for in the Act itself: there must be a document, the court must be satisfied that the person intended that document to be his or her will, and, accordingly, the document must be one which expresses testamentary intentions. The document must be intended to be the legally operative act which disposes of the deceased's property upon their death. It cannot be a document recording gifts or intended gifts during the deceased's lifetime, it cannot be a document intended as a personal memorandum or a note of intended instructions, it cannot be a draft or a "trial run".

52. It seems to me that none of the variously altered forms of the formal will can meet these criteria. The evidence does not establish that the deceased intended that any of the altered documents should be her will. In this respect, the following factors are significant:

(a) The deceased clearly envisaged a further document, which would be her will, would be prepared. That is why she arranged to see Mr David Williams in August 2002. As Mrs Levin deposed in her affidavit, she wished to see her solicitor about possible changes to her will.

(b) Exhibit C, on Mrs Levin's account of her conversations with the deceased, which I accept, is not intended to be a will. It is, in large part, a record or a personal note setting out inter vivos gifts the deceased intended to make in her lifetime. In this respect, I refer to Mrs Levin's evidence at transcript p 29 in which she said:

"The figures that she wrote on were in relation to her plan to immediately gift $20,000 and if you add those sums you will find it comes to $19,000 and she would have looked at $1,000 being used in the activity of giving that money to those people.

How do you know what you've just told the court?---In our discussions with her prior to her moving to the special accommodation she - - -

When was that, when you had the discussions?---On Tuesday 9 January 2002."

(c) Exhibit C does not, in any event, accurately reflect all of the discussions as to her testamentary intentions which the deceased had with Mrs Levin from time to time and to which Mrs Levin has deposed.

(d) The various altered versions of the formal will are not consistent with each other and there is no evidence which would enable the Court to conclude in what sequence they were prepared.

(e) Even if one ignored Mrs Levin's evidence as to the deceased's intentions in listing the figures in exhibit C, the end result is a document of such uncertain meaning as to render it most unlikely that the deceased intended it to be her will.

In my view, it was a note or memorandum recording both gifts she proposed to make in her lifetime and alterations to her will which she intended to instruct Mr David Williams to make, no doubt subject to hearing his advice on those matters. Mr David Williams in his affidavit indicated that at least one important alteration which the deceased had in mind is not in exhibit C, and that is a substantial provision in favour of the Levins.

58. In her submissions, Mrs Levin submitted the following:

(a) the variations were made on 17 May 2002;

(b) the loan originally intended to be $35,000 was reduced by $20,000 to $15,000;

(c) the deceased expected that there would be little residue for the residuary beneficiaries;

(d) the list on the document which is exhibit C was a list of gifts, $10,000 of which the deceased intended to make before 30 June and $10,000 of which the deceased intended to make after 30 June because of certain concerns about her pension entitlements;

(e) the varied will is the document which is exhibit C, which was intended by the deceased to be her last will, although the figures were immediate gifts and were not intended to be part of the will.

64. Assuming Mrs Levin is correct about the date when exhibit C was prepared, and that exhibit C was indeed the last in time, that still does not overcome the fundamental obstacle, that whilst the testatrix wished to alter her will, and planned to do so, exhibit C does not constitute that alteration. The document which would have done so is the document which Mr David Williams would have drawn up had Mrs Grover not been too ill to properly address the matter in August. One thing Mrs Levin's frank and honest evidence made clear was that the deceased did not intend her list of handwritten figures to be testamentary dispositions.

67. In all the circumstances, I propose to make orders granting probate of the formal will. The parties were agreed that the costs of this application of all parties should come out of the estate.

[1] (1991) 23 NSWLR 535.

[2] (1994) 33 NSWLR 446.

[3] [2002] VSC 83; (2002) 4 VR 406.