Re Hall [2023] VSC 482 (11 August 2023)

For the administrators for Graham Trevor Hall, Mr Patrick Lyttleton and Ms Hayley Hunter

1 The plaintiff, in his capacity as the attorney of his mother, Wendy Elizabeth Hall ('Mrs Hall'), made an urgent application pursuant s 21 of the Wills Act 1997 ('the Act') on the afternoon of Friday 11 August 2023 seeking orders for the making of a statutory will on her behalf ('the proposed will').[1]

2 The Court was told that Mrs Hall was not expected to live for much longer. A determination under s 21 of the Act is only valid if made while the propositus of the will is still alive. I conducted a combined Zoom and in-person hearing from about 3:15pm, with two short adjournments, until shortly after 9pm. Because Mrs Hall was dying, I had to determine the application forthwith.

3 The application had been prepared in very urgent circumstances. The supporting material was not comprehensive. During the hearing, in a somewhat sporadic way, the material before the Court was supplemented by and on behalf of the plaintiff, and by various people who had a genuine interest in the matter, notably including the husband of the propositus, Graham Trevor Hall ('Mr Hall').

4 I was told that the Victorian Civil and Administrative Tribunal ('VCAT') has appointed administrators and a guardian over Mr Hall and his affairs. The administrators appeared through Mr Gillies of counsel and opposed the application. Late in the hearing, a solicitor acting for Mr Hall in his personal capacity announced her appearance, and Mr Hall was subsequently called and gave evidence. He was examined by Mr Gillies and cross-examined by Ms Morison, counsel for the plaintiff. All the witnesses and legal practitioners were doing their best in difficult circumstances and were of great assistance to me.

5 Before a judge of this court can make an order authorising a statutory will for a person, s 21B(b) of the Act requires the Court to be satisfied that the will reflects what the person's intentions 'would be likely to be', or what they 'might reasonably be expected to be', if the person had 'testamentary capacity'.

6 The proper application of that test must depend on the facts on which the likely intention, or reasonably expected intention, is to be imputed to the person. The plaintiff relied in that respect on claims that Mr Hall was incapacitated by dementia, that he was at risk of dissipating his own and Mrs Hall's assets, that he was vulnerable to exploitation by third parties, and that he had changed his will to exclude his children, inconsistently with the testamentary wishes of Mrs Hall as to the ultimate disposition of the matrimonial assets.

7 There were hotly contested claims about certain of these matters between the plaintiff and Mr Hall. The state of the evidence at the end of the hearing left me unsatisfied that I should approve the proposed will, or an amended proposed will submitted to me during the hearing. I was also not satisfied of the requirement in s 21B(c) that it would be reasonable in all the circumstances to authorise the making of the will. I therefore dismissed the application, with costs.

8 Due to the lateness of the hour, it was not possible to give properly informative reasons for my decision at the time. I do so now.

9 My dismissal of the application should not be regarded as being in any way a criticism of the plaintiff. It is to be expected that the issues of concern he raised will be addressed on a more fully informed basis by the appropriate decision-making bodies in due course.

10 The Court has been informed that Mrs Hall died on 12 August 2023.

11 Section 21C of the Act provides that certain people with defined roles are entitled to appear and be heard in any proceedings for the hearing of an application under s 21, and 'any other person who has, in the opinion of the Court, a genuine interest in the matter'.

12 I heard sworn evidence from the plaintiff's solicitor, Ms Deborah Kliger, about notifications she gave to various people earlier on 11 August 2023. There was no attempt to notify one of Mrs Hall's stepchildren, but all other children of both Mr and Mrs Hall were notified and appeared. Notifications were sent to Mr Hall's guardian, his administrators, and also a solicitor said to be representing Mr Hall personally, Ms Sampson.

13 I was satisfied that Ms Kliger had attempted to notify all persons who had a genuine interest in the outcome. It was unclear whether notification to Mr Hall's guardian had been effective, because I was informed that it was her day off. On the other hand, it was clear that notification to Mr Hall's administrators was effective because they had been able to instruct Mr Gillies in time for him to be able to appear. I asked about whether any contact had been made with Ms Sampson. Early in the hearing, I was given to understand that because Mr Gillies was appearing with instructions to oppose the application, Ms Sampson was not appearing.

14 Mrs Hall was born on 4 September 1942. She married her first husband in or about 1965 and they divorced in or about 1973. They had a child, Karinna Moroney ('Ms Moroney'). In or about 1977, Mrs Hall married Mr Hall. Mr Hall was born on 19 March 1945. He had two children from a previous marriage, Troy Hall ('Mr Troy Hall') and Kelly Louise Healey ('Ms Healey'). The family have not been in touch with Ms Healey for many years and she was not notified of the application and hearing on 11 August 2023. Mrs Hall and Mr Hall had one child, the plaintiff.

15 Mr and Mrs Hall lived in a house in Langwarrin ('the Langwarrin property'), which they jointly owned. Mr Hall worked as a salesman, buying and selling stock at markets, pharmacies and other outlets, using the Langwarrin property for storage. Mr and Mrs Hall also owned two units in Bentleigh ('the Bentleigh properties'), a property in Cheltenham ('the Cheltenham property'), and a property in Inverloch ('the Inverloch property').

16 On 23 July 2012, when Mrs Hall was 69 and Mr Hall was 67, they each made a will in similar terms, prepared by the same solicitors. Two persons can enter into an enforceable agreement to make wills in identical or near identical terms, each person promising not to revoke or alter their will without the other person's consent. Such wills are known as 'mutual wills'.[2] However, there is no reference in the wills made by Mr and Mrs Hall to any such agreement, and counsel for the plaintiff told the Court that the plaintiff was not claiming that the wills were mutual wills. The plaintiff instead described them as 'mirror wills'.

(a) for Mr Hall to be her executor, with the plaintiff as alternative executor;

(b) for the entire estate of Mrs Hall, net of debts and expenses, to pass to Mr Hall if he survived her;

(c) if Mr Hall did not survive Mrs Hall, for the net estate to be disposed of as follows:

(i) for the plaintiff and Ms Moroney to receive the Bentleigh properties, the Cheltenham property, and the Inverloch property in equal shares;

(ii) for the plaintiff and Ms Moroney to receive shares in a company, Lendor Pty Ltd, in equal shares;

(iii) for each of Mrs Hall's grandchildren (including the children of her stepchildren) to receive the sum of $10,000 if they survive her or are born within 10 months of her death and attain the age of 18 years;

(iv) for each of the persons named in a separate list marked 'Specific Gifts' signed by Mrs Hall and kept with her will to receive the items stated therein;

(v) for the residuary estate to pass to such of Mr Troy Hall, Ms Moroney and the plaintiff as are living at the date of distribution in equal shares with a gift over to grandchildren (or step grandchildren) upon attaining the age of 21 years.

18 Mr Hall described himself and his wife as self-funded retirees. The Cheltenham property was sold on 9 December 2017 for $890,000, and one of the Bentleigh properties on 7 September 2019 for $823,000. The evidence does not disclose if those properties were encumbered at the time of sale.

19 The plaintiff was appointed as Mrs Hall's attorney under an enduring power of attorney (personal and financial) dated 9 October 2020.

20 By April 2021, Mrs Hall was severely affected by dementia. Her general practitioner signed a letter dated 23 April 2021 reporting that she had vascular dementia and did not have capacity to manage her financial, lifestyle, and medical affairs. This was confirmed by a geriatrician's assessment on 16 September 2022 which described her diagnosis in March 2021 as mixed vascular and Alzheimer's dementia and reported advanced dementia on 16 September 2022. I am satisfied that Mrs Hall had no testamentary capacity from about March 2021.

21 By late April 2021, Mr and Mrs Hall did not have sufficient funds to pay for Mrs Hall to receive care.

22 On 20 May 2021, the second Bentleigh property was sold for $1,100,000, with the plaintiff signing on behalf of Mrs Hall as her attorney. The evidence does not disclose if it was unencumbered, but it is clear there were substantial net proceeds of the sale. Half of the net proceeds were paid into an account Mr Hall could access, and the other half into an account from which $350,000 was paid toward a residential aged care accommodation bond and other expenses for Mrs Hall were met.

23 After reviewing relevant bank account statements in the period 27 July 2020 to 10 November 2022, the plaintiff estimated that Mr Hall made total 'cash withdrawals' of $217,403.03, of which $71,213.45 were from accounts 'with joint monies'. He deposed that some withdrawals by Mr Hall had been for between $6,000 and $8,000 at a time. During his evidence, Mr Hall gave partial explanations for his withdrawals and expenditure, including payment of a significant capital gains tax assessment. However, to a significant extent, these withdrawals and expenditures were not adequately explained in the evidence before me. Mr Hall appears to have preferred transacting in cash. This could expose him, and any liquid assets to which he has access, to risks of losses.

24 Mrs Hall moved into residential aged care in May 2021. Prior to this, Mr Hall had shown a tendency toward hoarding behaviour. From this time onward, Mr Hall's hoarding behaviour at the Langwarrin property worsened.

25 By about September 2022, Mr Hall's hoarding behaviour necessitated a clean-up of the matrimonial home. On the plaintiff's application made on 9 September 2022, administrators and a guardian were appointed over Mr Hall and his affairs by orders of VCAT dated 14 November 2022, and shortly afterwards he was moved to respite care. None of the VCAT materials were in evidence before me. The Langwarrin property was then cleaned up and made safe. Pursuant to a decision of his guardian on or around 19 May 2023, Mr Hall returned to the Langwarrin property on 26 July 2023, and currently lives there in receipt of a level 3 home care (aged care) package. In recent months, the relationship between Mr Hall and his children has deteriorated significantly. In particular, he has limited his contact with the plaintiff and Karinna.

26 The Court was told that, by letter dated 23 May 2023, Mr Hall's solicitors applied to VCAT for reassessment pursuant to s 159(1)(a) of the Guardianship and Administration Act of the guardianship and administration orders made on 14 November 2022. This application and a related application concerning Mr Hall's medical treatment decision‑making are currently listed for a full day hearing on Friday 18 August 2023.

27 The plaintiff deposed to holding concerns about Mr Hall's living arrangements, his safety, and risks to the property and other assets. He deposed to concerns about Mr Hall's vulnerability to third parties who visit Mr Hall. I accept that the plaintiff's concerns are sincerely held and merit proper inquiry.

28 The plaintiff's affidavit exhibited a letter dated 1 March 2022 from Mr Hall's general practitioner, which stated:

Mr Graham Hall has been a patient of this clinic since 07/09/2012, who is diagnosed with Alzheimer's Dementia.

Mr Graham Hall is unable to make any decision by himself. Therefore, his Son, Mr Bryce Hall, is his Enduring Power of Attorney.

This includes but is not limited to lifestyle, medical and financial decisions.

29 Early in the hearing, I indicated that - in the absence of evidence from Mr Hall or submissions from Ms Sampson - I would have to determine the application as best I could on the evidence placed before me. Late in the hearing, I read out the above letter dated 1 March 2022. At this point, Mr Hall's solicitor, Ms Sampson, announced her appearance and made submissions. Ms Sampson submitted that the assessment in the letter was contested and is to be the subject of a hearing in VCAT in the near future at which other assessments prepared for the VCAT proceeding will be adduced. I was told that the parties were not permitted to adduce the assessments prepared for the VCAT proceeding in this proceeding.

30 After a short adjournment, Mr Hall was called and gave audio evidence via Zoom. He disputed the assessment that he lacks capacity. He agreed that it is likely that this issue will be one of the topics that will arise before VCAT at the hearing scheduled for Friday 18 August 2023.

31 Mr Hall also gave evidence that he only has access to $150 per week for living expenses via a debit card permitted by his administrators and has no access to any bank account or other assets. This evidence was not challenged by counsel for the plaintiff, and I accept it.

32 The company known as Lendor Pty Ltd appears to be the corporate trustee of a family trust known as the Wendy Hall Family Trust. No trust deed was before the Court. The plaintiff gave evidence that the trust had a large class of individuals as discretionary beneficiaries, its principal asset was the Inverloch property, valued at about $1.2 million, and its cash and share portfolio assets had a combined value of about $67,000. Mr Hall gave evidence that the trust derived an income stream from renting out the Inverloch property, and that he and Mrs Hall depended on that income. I do not know what, if any, criteria there may be for the making of distributions.

33 The other assets of Mrs and Mr Hall were identified in the plaintiff's affidavit, as follows. Mrs Hall's estate has a bank balance of $203,511 and an accommodation bond valued at $350,000, and no liabilities. Mr and Mrs Hall's joint assets appear to have a value of about $1.5 million, with the major asset being the Langwarrin property. The plaintiff deposed that Mr Hall's solely owned assets have an estimated value of about $310,000.

34 On 10 August 2023, the plaintiff as attorney for the propositus commenced a proceeding in the Federal Circuit and Family Court of Australia ('the family law property settlement proceeding'). The originating process was tendered in evidence. It described the plaintiff as the propositus' litigation guardian and is stamped as proceeding no MLC 9105/2023. The final relief sought in the originating process is:

1. That the Court make an adjustment of the parties' property interests including superannuation pursuant to Section 79 of the Family Law Act.

2. That the parties forthwith do all such acts and sign all such documents required for the sale of [the Langwarrin property], with the net proceeds of sale to be divided between the parties in a manner and in such proportions as to be determined.

3. That the Applicant be excused from further particularising the orders sought until the parties have completed an exchange of financial disclosure documents.

4. Any such further or other orders as determined by the Honourable Court.

35 The next day, 11 August 2023, plaintiff made this application for approval of a statutory will under s 21 of the Act.

(a) the plaintiff to be appointed Mrs Hall's executor;

(b) specific gifts of $10,000 to each grandchild;

(c) for a specific gift to such of the plaintiff and Ms Moroney as survive Mrs Hall of the shares in Lendor Pty Ltd, 'which is the trustee of the Wendy Hall Family Trust' in equal shares; and

(d) for the residuary estate to pass to such of Mr Troy Hall, Ms Moroney and the plaintiff as are living at the date of distribution in equal shares with a gift over to grandchildren (or step grandchildren) upon attaining the age of 21 years.

37 Later in the hearing, the plaintiff submitted an amended proposed will in substantially similar terms, but providing for half of the residuary estate to pass to Mr Hall.

Legislative scheme - requirements for a statutory will

38 Pursuant to s 21B of the Act, the Court must be satisfied of the following three matters prior to making an order for a statutory will under s 21:

(a) the person on whose behalf the will is to be made ... does not have testamentary capacity; and

(b) the proposed will ... reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if the person had testamentary capacity; and

(c) it is reasonable in all the circumstances for the Court, by order, to authorise the making of the will for the person.[3]

39 The established test for testamentary capacity requires the proposed testator to comprehend the nature and effect of a will, understand the extent of the property of which the will disposes and to be able to comprehend and appreciate the claims to which they ought to give effect.[4]

40 I was satisfied that Mrs Hall did not have testamentary capacity at the time of the hearing and determination of this application, and for a considerable period before that.

41 As described under the next heading, the more significant questions in the hearing related to whether and to what extent Mr Hall's decision-making capacity might be impaired, and whether this should lead to findings that Mrs Hall's likely or reasonably expected testamentary intentions would be to exclude Mr Hall from her will, or otherwise limit his participation.

42 There are two potentially independent limbs to the consideration of s 21B(b): first, that the proposed will reflects what the intention of the person would be likely to be, if they had testamentary capacity; or, second, what the intentions of the person might reasonably be expected to be, if they had testamentary capacity.

43 In cases like the present where the propositus had previously made a will, there is a yardstick for what her testamentary intentions were at a time when she had capacity.[5] That yardstick was her 2012 will. The plaintiff and Ms Moroney also relied on various statements by Mrs Hall of testamentary intention that her children should receive the properties, dating back well before 2012 ('the parol statements of intention').

44 The 2012 will showed that Mrs Hall's testamentary intention in 2012 was to grant all her estate to Mr Hall if he survived her. That intention might have been influenced by an expectation that his will would remain in a form similar to hers, but there was no agreement to that effect. Were there changes in circumstances from which a likely or reasonably expected change in Mrs Hall's intention could be imputed? If so, did either of the two forms of the proposed will reflect Mrs Hall's likely, or reasonably expected, altered intentions?

45 The plaintiff submitted that there had been material changes in circumstances from which that conclusion could and should be drawn, as follows.

(a) The plaintiff relied on the involuntary separation between Mr and Mrs Hall.[6] As outlined above, this came about in April and May 2021 because of circumstances including, principally, Mrs Hall's advanced dementia.

(b) The plaintiff relied on Mrs Hall's advanced dementia, hospitalisation and serious adverse health condition.[7]

(c) The plaintiff relied on Mr Hall's 'conduct in relation to the Langwarrin property and joint bank accounts', which was 'contrary to [Mrs Hall's] interests'.[8] In this regard:

(i) The plaintiff impugned Mr Hall's decision-making capacity. The plaintiff relied upon a report of Mr Hall's general practitioner dated 1 March 2022 that stated that Mr Hall had Alzheimer's dementia and no decision-making capacity at that time, as well as the plaintiff's own observations of Mr Hall's behaviour.

(ii) The plaintiff claimed that Mr Hall had probably dissipated some assets in the past, and there was a risk that Mr Hall would dissipate matrimonial assets in the future, due to his habits of making large cash withdrawals and purchasing goods that he would hoard at home.

(iii) The plaintiff further suggested that Mr Hall is vulnerable to third parties who might exploit him.

(d) The plaintiff relied upon evidence that Mr Hall was intent on 'changing his will to depart from the mutual intentions as expressed in [the] 2012 mirror wills'.[9] The plaintiff deposed that Mr Hall had expressed the intention of making a new will excluding his children, inconsistent with the 'mirror will' he made at the same time as Mrs Hall's on 23 July 2012. In this regard, the plaintiff's concerns were probably well founded. Mr Hall confirmed in his evidence to the Court that he recently made a new will, some time after going into respite care in November 2022.

(e) The plaintiff relied on the commencement of the family law property settlement proceeding.[10] The plaintiff submitted that approval of the proposed will (or amended proposed will) would be consistent with Re Gillam.[11] In that case, McMillan J granted an order authorising a statutory will on the application of the attorney of the propositus, excluding the husband of the propositus from the will, after there had been a division of property between the propositus and her husband in a family law property settlement proceeding between them following their involuntary separation in old age.

(f) The plaintiff relied on what he called 'the necessity for a statutory will to prevent any assets received or retained by [Mrs Hall] passing to Mr Hall should she pass away first'.[12]

(g) In his oral evidence, the plaintiff said that Mr and Mrs Hall had had a pact that neither would permit the other to be forced into residential aged care, and that this pact had been broken by Mr Hall.

(h) The plaintiff's evidence also demonstrated a deterioration in the relationship between Mr Hall and the children, particularly the plaintiff and Ms Moroney. This was corroborated by Mr Hall's evidence.

46 The gist of the case in favour of the application was that these changes in circumstances should lead to the Court being satisfied that the proposed will reflected the likely intentions - or at least the reasonably expected intentions - of Mrs Hall.

47 The test in s 21B(b) of the Act is not a particularly stringent one. It was amended to its current form in 2007 to make it easier for statutory wills to be made. Prior to those amendments, the Act required the Court to be satisfied that a proposed will would accurately reflect the likely intentions of the propositus if she had testamentary capacity.[13] A broad-brush approach is required, for otherwise the beneficial purpose of the function might be defeated.[14]

48 In Re Gillam, McMillan J said that the second limb of the test under s 21B(b) will be met if the Court is satisfied on the balance of probabilities that the proposed will reflects what the propositus':

... intentions would be likely to be, or what [their] intentions might reasonably be expected to be, or that there was a fairly good chance that it reflected what [their] intentions might be, or that some reasonable people think that it reflected what might be [their] intentions, or that some reasonable people could think that there was a fairly good chance that it reflected what might be [their] intentions, if [they] had testamentary capacity.[15]

49 Although the Court may not rewrite a proposed will, it is open to the Court to make remarks about the proposed will and for the plaintiff, if he chooses, to submit an amended proposed will.[16]

50 After hearing evidence from the plaintiff, but before Ms Sampson announced her appearance and before hearing evidence from Mr Hall, I made various remarks to the effect that I was not satisfied that there was a sufficient basis for concluding that the proposed will reflected Mrs Hall's likely intentions, or reasonably expected intentions. Unlike in Re Gillam, the family law property settlement proceeding had not concluded. I said I was not satisfied that the matters relied upon would lead to it being reasonable to expect that Mrs Hall would have had an intention to remove her husband completely from her will.

51 Following an adjournment, the plaintiff submitted the amended proposed will to the Court by email, and the hearing resumed. Initially, the version of the amended proposed will before the Court omitted a clause that the plaintiff's legal team had intended to add. In its corrected form, the amended proposed will provided for:

(a) the plaintiff to be appointed Mrs Hall's executor;

(b) specific gifts of $10,000 to each grandchild;

(c) specific gifts to persons identified in a list signed by Mrs Hall of the items mentioned therein;

(d) a specific gift to such of the plaintiff and Ms Moroney as survive Mrs Hall of the shares in Lendor Pty Ltd, 'which is the trustee of the Wendy Hall Family Trust' in equal shares; and

(e) half of the residuary estate to pass to such of Mr Troy Hall, Ms Moroney and the plaintiff as are living at the date of distribution in equal shares with a gift over to grandchildren (or step-grandchildren) upon attaining the age of 21 years;

(f) the other half of the residuary estate to pass to Mr Hall, or if he did not survive Mrs Hall, to the beneficiaries identified in the clause governing the first half of the residuary estate.

52 From amongst all the matters relied upon by the plaintiff, it seemed to me that the application turned: first, on the claim of Mr Hall's impaired capacity; second, on the risk of dissipation of matrimonial assets; and third, on Mr Hall's making of a new will departing from Mrs Hall's expectations.

53 The making of an order approving a statutory will for Mrs Hall would have been in effect an irrevocable step, given the imminence of Mrs Hall's expected death. Excluding her husband, or limiting his participation, would have required a firmer factual foundation for these claims than was available to the Court when the decision had to be made. I now address each of them in turn.

54 The fact that orders under the Guardianship and Administration Act 2019 were in place regarding Mr Hall provided a prima facie reason to doubt his capacity. However, those orders were the subject of Mr Hall's pending application before VCAT. I was told that various assessments have been prepared for VCAT, but the parties were not permitted to place them before me. This was a significant limitation on my ability to make any finding on the issue of Mr Hall's capacity, or the issue of his mental state more generally.

55 I was not satisfied that I could accept the report of the general practitioner relied upon by the plaintiff dated 1 March 2022 that Mr Hall had no decision-making capacity by reason of dementia in the form of Alzheimer's disease, or that I could rely on the plaintiff's lay opinion that Mr Graham Hall was incapacitated. The oral testimony of Mr Hall was significant to my conclusion in this respect. He firmly denied that he was incapacitated. He gave his evidence in a lucid manner, casting doubt on the March 2022 medical report. Mr Hall's account of certain matters while giving his evidence raised questions about his mental health and about his potential vulnerability to the influence of third parties. However, it was not possible for me to resolve these questions.

56 Overall, I regarded the evidence on the key issue of Mr Hall's decision-making capacity and mental health to be of a limited and conflicting nature.

57 The evidence was not conclusive on the question of the extent to which Mr Hall had previously dissipated assets, although at the very least it was clear that a significant sum of cash had gone missing after being stored at the Langwarrin property. Mr Hall was in the habit of making large cash withdrawals when he had control of bank accounts in the period leading up to the appointment of his administrators, and not all of that cash was accounted for, suggesting that it might have been dissipated or spent on supporting his hoarding behaviour and that if he had access to his bank accounts this would happen again. There was also concerning evidence from the plaintiff that Mr Hall might be vulnerable to exploitation by others.

58 In deciding what testamentary intention might be imputed to Mrs Hall as being 'likely' or 'reasonably expected', I placed most weight on the current circumstances at the time of the hearing. I was satisfied that Mr Hall was in no position to dissipate matrimonial assets, in light of the fact that he was currently subject to the authority of administrators and a guardian. Of course, whether or not that remains the case into the future will depend on the outcome of the pending proceeding in VCAT. But I was not prepared to make an assumption that Mr Hall would be released from controls over his access to funds for the purpose of deciding whether to approve a statutory will.

59 I did not place much weight on the parol statements of intention by Mrs Hall. They might be regarded as wishes rather than intentions. They might be regarded as subject to the implied qualification that if Mrs Hall predeceased her husband, he would receive the properties, and then it would be up to him. They were made from a time dating before the making of the 2012 will, so it is difficult to conclude that they add materially to the evidence of testamentary intention already before the Court in the form of her 2012 will.

60 Mrs Hall might have been hopeful that Mr Hall would adhere to the provisions of the mirror wills they each made in 2012. However, there is no evidence of an agreement that they would adhere to those wills as 'mutual wills'. It would have been open to Mr and Mrs Hall, properly advised by their solicitors, to adopt mutual wills, but they did not. I did not consider that Mr Hall's freedom to depart from his 2012 will, or the fact that he has now done so, to be a material change in circumstances sufficient to justify imputing to Mrs Hall a likely or reasonably expected intention consistent with the proposed will or amended proposed will.

61 Even when placed alongside the clear evidence of a deterioration in the relationship between Mr Hall and the children, and the possibility that he has excluded them (or some of them) from his own will, I was not satisfied that I should impute a likely or reasonably expected intention to Mrs Hall that she would limit Mr Hall's participation in her estate. I took the view that, for the purposes of this step in the analysis, Mrs Hall would wish for her children to share in so much of the matrimonial assets as Mr Hall does not need to consume with legitimate expenses in his own lifetime, but she should be taken to know that:

(a) Mr Hall is currently subject to administration and guardianship orders - thereby protecting the matrimonial assets from unnecessary dissipation; and

(b) if the children are excluded from Mr Hall's will, this may lead them to seek and obtain further provision from Mrs Hall's estate, or from Mr Hall's estate in due course (under Part IV of the Administration and Probate Act).

62 I regarded the other matters relied upon by the plaintiff as second order matters.

63 The onset of Mrs Hall's dementia, leading to the involuntary separation of Mr and Mrs Hall when Mrs Hall was placed into care, did not contribute materially to my decision whether or not to be satisfied that the proposed will or amended proposed will were reflective of Mrs Hall's imputed intentions. These were events that were out of Mr Hall's control, so it seemed doubtful that they could justify the imputation of a likely or reasonably expected intention to Mrs Hall to change her will. The evidence of a 'pact' between Mr and Mrs Hall to ensure they each remained out of aged care was thin, and there was no basis for concluding that even if the pact existed and was broken, Mrs Hall would have concluded that she would exclude Mr Hall from her will or limit Mr Hall's participation in her estate.

64 As to the plaintiff's reliance on the commencement of the family law property settlement proceeding, this also was an unsafe basis on which to impute any such intention. Unlike in Re Gillam, the family law property settlement proceeding had only just commenced and no property division had yet occurred. The plaintiff relied on High Court authority in support of a submission that, under s 79 of the Family Law Act 1975 (Cth), the proceeding could continue after Mrs Hall's death and be seen through to a conclusion by her personal representative, most likely her executor.[17] I was satisfied that this was a possible outcome, but a course that was subject to significant complexity and doubt. One such complication would be Mrs Hall's imputed choice of executor.

65 In the absence of a concluded property settlement outcome, such as existed in Re Gillam, I was not prepared to give the family law property settlement proceeding significant weight in making a decision under s 21B(b) of the Act. Mr and Mrs Hall had a long married life together. They built up their assets together. At least some of the value of those assets appeared to be needed by Mr Hall to meet the expenses of old age. In the absence of an existing property division, it seemed unreasonable to make any assumptions about the family law property settlement proceeding leading to a future property division as an element in approving a statutory will. There had been no assessment of the kinds of things that might be expected in such a proceeding, including what proportion of the matrimonial assets Mr Hall might be entitled to, and need.

66 In short, even if all the arguments made by the plaintiff were to be accepted, the case fell well short of one in which Mrs Hall could be imputed with a likely intention or reasonably expected intention to exclude Mr Hall altogether, even on the required broad-brush approach. On reflection, after hearing Mr Hall's evidence, I decided that even the amended proposed will would not be likely to, or would not be reasonably expected to, reflect Mrs Hall's intentions either.

67 In light of my conclusions on s 21B(b) of the Act, I was not satisfied that it would be reasonable in all the circumstances to make an order authorising the proposed will or amended proposed will.

68 Further, I considered that a more methodical inquiry on better evidence should be conducted on the factual controversies raised by the application concerning Mr Hall's capacity and the risks to matrimonial property. I considered that the pending application in VCAT provides a more appropriate avenue for these inquiries to occur, and to be based on a more complete evidentiary foundation.

69 I was concerned that the application before me resembled a pre-emptive application for further and better provision from assets of an estate, of a kind that might be more appropriately adjudicated under Part IV of the Administration and Probate Act. The plaintiff's affidavit alluded to bringing such an application if the application for statutory will were to be unsuccessful.

70 In the course of considering whether it would be reasonable in all the circumstances to make either form of statutory will proposed by the plaintiff, I attempted to give some consideration to whether there would be adequate provision for Mr Hall and a proper balance of the interests of all. The parties did not address me in any detail on this topic, but it seemed to me there would be significant uncertainties involved.

71 The effective value of the assets available in a disposition of Mrs Hall's estate would partially depend on the treatment of the underlying assets of the Wendy Hall Family Trust, which were estimated to be worth about $1.27 million.

72 It was not clear to me whether or not the shares in Lendor Pty Ltd should be imputed with this value, or whether the assets of the trust could be realised. I had very little knowledge of the trust. If the value of the assets of the trust were excluded from the value of Mrs Hall's estate, then the remaining value of the estate would be a little over $500,000, putting to one side the proper treatment of the Langwarrin property.

73 Assuming the Langwarrin property was held by Mr and Mrs Hall as a joint tenancy in fee simple, ordinarily it would pass to Mr Hall on the death of Mrs Hall, but this might be affected by the outcome of the family law property settlement proceeding in due course. Another matter to consider would be the need for Mr Hall to live in the Langwarrin property as his home.

74 I considered that a potential Part IV application would provide a more appropriate means of ensuring a just outcome than a hasty approval of a statutory will based on inadequate information and questionable conclusions about hotly contested facts.

75 It was also significant that the independent administrators appointed over Mr Hall's affairs opposed this application.

76 For these additional reasons, I did not consider that the criterion in s 21B(c) of the Act was met.

77 As I was not satisfied of the matters referred to in s 21B(b) or (c) of the Act in respect of either the proposed will or the amended proposed will, I was unable to grant the application.

78 The administrators of Mr Hall were entitled to appear as persons who had, in the opinion of the Court, a genuine interest in the matter for the purposes of s 21C(e) of the Act_._ I was satisfied that they were entitled to an order for their costs of and incidental to their appearance to oppose the application incurred on 11 August 2023, to be paid by the plaintiff on the standard basis.

79 The plaintiff brought this application in his capacity as attorney for Mrs Hall, and it is my intention that the costs order be understood as applying to him in this capacity also.

[1] The Court heard sworn evidence from the plaintiff in support of the application and received his undertaking to swear and file his unsworn affidavit, including exhibit bundle 'BCH-1' thereto. The Court read that affidavit, which was later sworn and filed. The Court also heard sworn evidence from the plaintiff's solicitor, Deborah Kliger, and the plaintiff's father, Graham Hall. The Court received additional documents into evidence.

[2] Dufour v Pereira (1769) 1 Dick 419; [1769] EngR 63; 21 ER 332; G E Dal Pont, Law of Succession (Lexis Nexis, 3rd ed, 2021) 31 [1.40]; Birmingham v Renfrew [1937] HCA 52; (1937) 57 CLR 666, 675.

[3] Wills Act 1997 s 21B.

[4] Banks v Goodfellow (1870) LR 5QB 549.

[5] Compare Re Ballan [2019] VSC 144, [22].

[11] [2016] VSC 5 ('Re Gillam').

[13] State Trustees v Do [2011] VSC 45, [11]; Re Ballam [2019] VSC 144, [20].

[15] Re Gillam [2016] VSC 5, [31].

[16] State Trustees v Do [2011] VSC 45, [17].

[17] Stanford v Stanford [2012] HCA 52.