Seeing is believing?: Will not seen by, or read to, deceased, upheld (VIC)

This week has found me reading lots of different and interesting cases and I can barely keep up! However, I was really interested to read this case and, whilst I appreciate my amazing subscribers are being bombarded with emails, I just had to post about it.

Last week, the Victorian Court of Appeal was called upon to determine a matter where a unsigned Will was upheld as the deceased’s last Will, notwithstanding that the deceased never saw or read the Will.

The case of Sultanova v Bolgarow & Anor [2019] VSCA 245 involved a woman, named Nina, who passed away at age 91 years. Nina’s last executed Will was made in April 2010 (‘the 2010 Will’) and before she passed, she gave instructions to her solicitor to draw another Will (‘the New Will’) and a Will was prepared on 23 June 2016. Importantly, there was also a March 2016 draft Will (also prepared by Nina’s solicitor) that existed and formed the ‘precedent’ or basis for the New Will.

The only changes to the 2010 Will was a gift of $180k to each of five overseas relatives and the residue of her estate was to go to her close friend, primary carer and co-executor, Valentina. The Executors (Valentina, included) applied to the Court to uphold the New Will as an informal Will and was successful.

The appellant was one of the overseas relatives, Tatyana. The 3 grounds for Tatyana’s appeal were:

  1. the judge misdirected himself by accepting that there was sufficient evidence (based on the Briginshaw principles) that the New WIll should be admitted to probate
  2. the judge erred in failing to take into account all relevant facts; and
  3. the judge erred in failing to take into account public policy considerations.

By way of background, the solicitor took instructions from Nina on a number of occasions, both in person and by telephone. The solicitor was responsible for drafting the 2010 Will and attended Nina’s home to discuss changes to her Will for Nina on 12 March 2019.

Subsequently, the solicitor had one of his students prepare the draft March 2016 Will with the requisite changes (in draft) following that earlier discussion with Nina, with the remainder of the draft mirroring the 2010 Will. On 11 June 2016, Nina then contacted and spoke to the solicitor again and he attended on her that evening in her nursing home and took instructions to prepare the New Will.

Nina had also given instructions to the solicitor not to tell anyone about the New Will, as she didn’t want anyone suggesting that Valentina was influencing her.

On 23 June 2016, Nina contacted the solicitor and spoke about the New Will. The solicitor had specifically raised changes with regard to some previous charitable gifts Nina had made and he also raised the main changes of the $180k gifts and the residue being made to in the New Will. During that call, Nina referred to the 2010 Will and had said to the solicitor that she didn’t want to change the 2010 Will in any other way other than to provide the gifts of $180k to each of the overseas relatives and the residue to Valentina, as instructed.

A few days later, the solicitor had received a call from Nina and he told her that the New Will was ready and he summarised it’s contents to Nina. The solicitor gave evidence that Nina had said that the New WIll was “exactly what she wanted” and that whilst he did not read every clause, he gave evidence that he went through and discussed each of the new changes and also confirmed those parts that weren’t being changed.

Nina then told the solicitor she wanted him to come to the nursing home so she could sign the New Will as soon as possible. The solicitor told Nina that he was busy and would not be able to do so himself, but offered for another solicitor to attend instead. Nina said she did not want this to happen ‘as she felt comfortable with and trusted [the solicitor] and she did not want to be cheated‘ (referred to in para 25) and then said to the solicitor that she was ‘comfortable that the will “was settled”‘.

Nina then passed away before she could sign the New Will.

The Court found the solicitor to be a credible and honest witness and was able to demonstrate to the Court that all of the contact with Nina showed that Nina had given careful consideration to her estate and the distribution she desired. The Court was satisfied that Nina was aware of the 2010 Will and that she only wanted to make minor changes to that 2010 Will.

The Court was satisfied that:

Nina was given an opportunity to execute, but declined to do so until her trusted solicitor was available to be present.

He did not accept a submission that he should infer that Nina might want to change the terms of the will; rather the proper inference was that she wanted Mr Reichman there to ensure that the New Will was not changed i.e. to avoid being cheated by someone she did not know and trust. His Honour therefore found that the fact that Nina was given an opportunity to execute the New Will but declined to do so, did not mean that Nina did not intend the New Will to be her will.

His Honour ultimately concluded at paragraph 116:

“In making these findings, I am conscious of the statements in the authorities to the effect that it is quite common for testator to change their minds after giving instructions or seeing a draft Will. However, I am satisfied on the balance of probabilities and applying the Briginshaw principles that, in all the circumstances of this case, Nina clearly intended the terms of her new will, without any alteration or reservation, to be the manner in which her property was to be disposed of upon her death.”

At para 36-38 of the appeal judgement.

Further referring to the evidence, the Court said:

By contrast, he found that there was “much evidence that Nina was aware of and understood the extent and value of her estate, the calls upon it and the nature of the gifts made under the New Will.” In so saying he referred to medical and other evidence to support its conclusion. This included evidence of Mr Reichman who said she was aware that she still owned her house and recalled the effect of her 2010 will.

At para 41.

The appellant submitted that as a result of the New Will containing some minor errors in respect of descriptions of some of the beneficiaries (i.e. some were noted as niece and they, in fact, weren’t a niece) it was enough to suggest that the New Will should not be upheld as it wasn’t ‘final’ enough.

As regards the requisite intention of Nina that the New Will is to be her Will, and in light of the these minor errors, the Court said:

It is of no consequence whether the March 2016 will was used as a precedent, or whether Nina wanted the contents kept confidential. Rather, the real issue was whether Nina adopted the New Will is her final will – the matter expressly considered and answered by the trial judge.

Further, even presuming that the trial judge was asked to take the inconsequential errors in the new will into account (which was not demonstrated), we consider that Nina, as a layperson, would be indifferent to the matters highlighted. Put another way, we are not satisfied that she would want to revisit her position that her will was “settled” or “completed” because, for example, her husband’s niece was described as a ‘niece’. The applicant has not thereby demonstrated any failure to take a relevant consideration into account.

The suggestion that the new will was not “subjectively final” also ignores the unchallenged finding that the only reason Nina did not execute it was because she did not want to be cheated; not because she might want to change the will.

It is undisputed in this case that Nina had not seen the New Will, nor was every word read to her at the time her “instructions” were taken in late June. However, senior counsel accepted that this did not mean that section 9 could not be satisfied since cases are dealt with on a fact by fact basis. This concession is consistent with the approach of Habersberger J in Fast v Rockman as follows:

“what I take from these authorities is that there is no absolute rule that a document must have been seen or read to a person before a court can be satisfied that the person intended the document to be his or her will. That is, the bare fact that a person has not seen a document does not present an insurmountable difficulty to the invocation of the powers conferred on the court to admit probate a document which has not been executed in accordance with the prescribed legislative formality. Much will depend on the state of evidence.”

At paras 66-69.

In respect of the evidence, the court noted that all of the evidence needed to be considered and noted that the evidence of attendances on Nina went beyond “mere taking of instructions” and included, as quoted in para 71:

  • That Nina was aware of, and recalled the effect of, the 2010 Will;
  • that over the course of a number of conversations Nina indicated she only wanted to make “limited changes” to that will;
  • that she understood the nature of the New Will and the changes it made to the 2010 will;
  • that Nina adopted the new will and regarded it as “exactly what she wanted” and “settled”;
  • that Nina wanted Mr Reichman to come over as soon as possible so she could sign the New Will;
  • that the reason for non-execution was not because Nina wanted to make a change to the New Will.

The Court considered “the fact that Nina was aware of the 2010 Will venue its effect means it is immaterial that the actual document was not “in front of her”. (para 72)

In respect of the other grounds of the appeal as to the application of the Briginshaw principles and public policy considerations, the Court further said:

The evidence about the late June 2016 meeting must then be considered in light of the above findings. That evidence was that Mr Reichman went through and discussed each of the terms of the New Will, and, more particularly, that he advised Nina of the crucial changes (being hundred and $180,000 to each relative and the balance to Valentina). Given that neither recall the effect of the 2010 Will it is unnecessary for “every paragraph” to be read to her.

The trial judge has therefore not misdirected himself and accepting that there was sufficient evidence in this case. More specifically, there was ample evidence before the judge to justify this finding that the new will was intended by Nina to be her final will. In making his finding the trial judge also expressly cited and apply the Briginshaw principles.

We are also not satisfied that the trial judge misdirected himself about that has to be applied. It is true that some of the matters considered may also go to whether the new will express the testamentary intentions of Nina (element two). However, at paragraph 18 the trial judge correctly characterise the issue being whether all the circumstances lead to the conclusion that the deceased intended the “subject document” constitute his or her will. Only examine the reasons as a whole, we are also not satisfied as a child would otherwise misdirected himself. Paragraph highlighted by the applicant was paragraph 116. However, in that paragraph the judge expressly records that he was conscious of statements and the authorities to the effect that it is quite common for testers to change their mind “after giving instructions…” He was therefore well aware of the need the evidence to go beyond the giving of instructions. He also went on to address directly the question of finality and finding that Nina intended the terms of the will “without any alteration reservation” to be the manner in which a property was disposed of.

No error has been demonstrated in this approach.

In terms the alleged failure to take into account public policy considerations, the trial judge expressly stated that the real issue turned on whether Nina intended the new will to be her will “notwithstanding she did not see it or read it and, being aware of the need to execute the new will, had an opportunity to execute it but did not do so”. He therefore explicitly had regard to the fact that the deceased had not seen or read the new will. The facts in this case also went beyond “a simple telephone discussion” as already outlined. It was otherwise not demonstrated that some relevant consideration was ignored in dealing with what was a question of facts on its merits.

Paras 73-77

You can read the appeal decision here and the trial decision here.

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