Will the court admit all informal notes as part of the will?

In Re Prien [2019] VSC 47 the Supreme Court was required to consider whether an informal codicil to the will consisting of 2 pages of attendance notes taken by the solicitor at the home of the client who later died would qualify.  The solicitor took the client through his handwritten notes and referred to relevant clauses in a will that had already been signed by the client at an earlier time frame.

The client was unwell and on medication but alert and able to provide instructions.

What the notes demonstrated:

  • The client had signed the 2 pages as notes
  • The solicitor had initialled the pages
  • At the foot the notes stated : “these notes form confirmation of my testamentary intentions Suzanne Roslyn Prien 15/02/2016”

Question: Did the client intend these notes to comprise her testamentary intentions?

The legislation in Victoria is not identical with NSW legislation, however, the case demonstrates that each case turns on its own facts and circumstances.

Issues:

  • The notes/document cannot be a personal memorandum or notes of intended instructions, a draft or a “trial run”
  • It is not enough to show that these notes reflect testamentary intentions or that it is consistent with other statements made by the deceased
  • The court must be satisfied that in fact the deceased wanted that particular document to be the final intentions and did not want any changes
  • The court must be assured by some word or act from the deceased of this intention without any reservations

Court decision:

  • The judge was required to take into account many factors and balance the evidence
  • Overall the decision was such that, although the deceased had the necessary capacity to provide the instructions and she had signed off on the document, she did not intend the notes to form the final intention and furthermore she did not know or approve the contents of the document
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