In the recent case of Re Rosaro [2013] VSC 531, the Supreme Court of Victoria had to determine whether or not to grant probate for an informal Will of the deceased. As at the date of her death:

  • the deceased’s estate comprised cash deposits totalling $181,906; and
  • the deceased’s next of kin was a brother in Italy.

A statutory declaration, dated 16 April 1986, purportedly made by the deceased stated that the deceased wished for the remainder of her estate be given to Hospital USL Units Sanitarie Locale Catinara, Trieste, Italy.

The Court decided that the statutory declaration did record the testamentary intentions of the deceased having regard to:

  • the clear manner in which the expression ‘wish’ was used in the declaration and dealt with important aspects of the disposition of the deceased’s estate; and
  • the nominated executrix’s evidence of a conversation with the deceased where the deceased told her she wanted her to be the executrix of her Will.

However, the Court ultimately refused the application for grant of probate of the statutory declaration as an informal Will following the determination that the deceased did not intend that the statutory declaration be her Will:

  • when it was signed, because the deceased failed to take the further steps necessary to formalise the declaration as a Will in circumstances where she had made an effort to consult someone about the declaration;  and
  • at a later date, because despite being made aware several times by State Trustees that there would be problems with the declaration being proved as her Will, the file notes recorded that the deceased was not bothered and did not care what happened to her estate upon her death, and the deceased stated that she did not want to make another Will.

To find out how Armstrong Lawyers may assist you in relation to Estate Planning or Will Disputes, feel free to browse our Wills and Estates page.