In their last days, people can often have cause to consider additional wishes they want to record somewhere as they consider what means most to them. Unfortunately, sometimes recording these wishes can become problematic for the executors and family left behind. Here’s a good example:
I recently read the case of Re Mangan  VSC 480 which discussed the situation where the executors of an estate had located a will and another document that appeared to be an informal codicil which purported to give effect to an additional gift.
The Court had earlier determined that only the will should be admitted to probate (and not the informal codicil). In summary, the Court was not satisfied that the testator had intended for the informal document to form part of his will and the executors had not satisfied the evidentiary requirements the Court sought.
This case considered the costs of the executors resulting from the earlier application to the Court to determine whether the informal codicil should be admitted to probate.
In order to determine whether the executors were entitled to have their costs paid out of the estate, the Court considered the extent of an executor’s duty when it came to locating more than one prima facie testamentary document. In their application, the executor sought to propound both documents to form the last Will of the deceased.
The executors submitted that their application to propound both was appropriate because, among other reasons, they believed that they had a duty to put forward the informal codicil as they believed it properly reflected the deceased’s testamentary intentions [at para 7].
In probate matters such as these, the costs will usually be paid from the estate where the litigation is caused or contributed to by the way the testator left their affairs.
In considering the executors’ claim in this regard, the Court said:
While it would be reasonable for executors to make inquiries into and investigate the nature of an informal testamentary document, there is no duty to bring an application for an informal document to be admitted as a testamentary document.
(Per McMillan J at paragraph 16, see also Rowe v Storer (No 2)  VSC 635)
The problem for the Court was that the executors had continued with their application without investigating the informal codicil to establish that there was a reasonable basis of seeking that it be propounded as a testamentary document. The question became whether it was reasonable to bring the application in light of evidence. The Court said that “In substance, they acted on their subjective belief, rather than on the objective evidence, which is not a proper or reasonable basis to seek to propound a testamentary document” (para 17).
The Court considered the questions of evidence. In relation to testamentary capacity, the Court confirmed that “the usual presumption as to testamentary capacity is not applicable and the plaintiffs bear the onus of proving testamentary capacity” (at para 19, see also Robinson v Jones  VSC 222). The codicil, being dated 8 days before the testator died at age 93 years, was submitted without any evidence of capacity to satisfy the onus.
The Court determined that in light of the Will being drafted and executed with the assistance of solicitors and then having an informal document created without such assistance, it seemed unlikely that the testator had intended to alter his will in such a significant way.
The Court found that the executors were entitled to their costs from the estate in making inquiries and investigations in relation to the informal codicil, but not the costs of the application. Accordingly, the executors were to bear these costs personally.
This case cautions against applying a “give them everything” approach to submitting potential testamentary documents to the Court to be propounded. Whilst they should still be brought to the attention of the Court, appropriate investigations should still be made and objective analysis should be undertaken in relation to the informal document before seeking that all documents be propounded as the last Will of the testator.
You can read the case here.