Bones v Armstrong

[2024] TASSC 52

[2024] TASSC 52

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Bones (as Executor of estate of late Milford Lewis Bones), Bones v Armstrong [2024] TASSC 52
PARTIES:	BONES, William Jacob (as Executor of estate of
late Milford Lewis Bones)
BONES, Emily May
v
ARMSTRONG, Benjamin Hugh
FILE NO:	1257/2024
DELIVERED ON:	15 October 2024
DELIVERED AT:	Hobart
HEARING DATE:	15 October 2024
JUDGMENT OF:	Marshall AJ
CATCHWORDS:

Succession – Probate and letters of administration – Alteration and revocation of grants – Circumstances – Discovery of will and invalidity of will – Later will discovered in bank lock box – Bulk of estate left to two children – Third child failed to engage in proceedings – Later will propounded.

Aust Dig Succession [1126]

REPRESENTATION:

Counsel:

Plaintiffs:	M Flanagan
Defendant:	Self Represented

Solicitors:

Plaintiffs:  Murdoch Clarke

Judgment Number:	[2024] TASSC 52
Number of paragraphs:	8

Serial No 52/2024 File No 1257/2024

WILLIAM JACOB BONES (As Executor of estate of Late Milford Lewis Bones),

EMILY MAY BONES v BENJAMIN HUGH ARMSTRONG

REASONS FOR JUDGMENT MARSHALL AJ 15 October 2024

1             Mr William Jacob Bones and Ms Emily May Bones have applied for an order, revoking the grant of probate made on 11 July 2023 in respect of a will made by Mr Milford Lewis Bones (deceased) on 8 June 2012.

2             Mr Milford Lewis Bones died on or about 10 October 2022. After his death, his son, William, tried to locate his father's latest will. The will located at the time was presumed to be Mr Milford Lewis Bones' last will and testament. In fact, he had made a later will on 9 September 2021 which was not discovered until after the grant of probate in respect to the 2012 will on 11 July 2023. The new will was discovered some two months after 11 July 2023 when a bank officer at the Rosny branch of the Westpac Banking Corporation informed Mr William Bones about the existence of a security box held on Mr Milford Lewis Bones' behalf at the branch. The box contained the 9 September 2021 will.

3             The contents of that will were consistent with conversations had between Mr Milford Lewis Bones, Mr William Bones and Ms Emily Bones, in or about September 2021. At that time, Mr Milford Lewis Bones did not have any impediments to his mental health which prevented him from making informed decisions about his will. The 2021 will is valid and has not been revoked. The Court has before it evidence of witnesses to the will confirming that they did, in fact, witness the 2021 will being signed by Mr Milford Lewis Bones, and as to his demeanour at the time, which appeared to be not irregular.

4             The 2012 will left the bulk of Mr Milford Lewis Bones' estate to his three children, Mr William Bones, Ms Emily Bones and Mr Benjamin Bones (now known as Benjamin Armstrong). The 2021 will left the bulk of the estate to Ms Emily Bones and Mr William Bones.

5             Mr William Bones and Ms Emily Bones are joint executors under the 2021 will. Mr William Bones is a plaintiff in this action and asks for the relief requested in it. Ms Emily Bones is also a plaintiff. Mr Benjamin Armstrong is the defendant to the proceedings.

6             Associate Justice Daly ordered on 4 September 2024 that the trial be by affidavit. Included in the affidavits on file is an affidavit from Mr Benjamin Armstrong, the defendant. In that affidavit, Mr Benjamin Armstrong says that he was served with the writ and statement of claim in this proceeding on 17 May 2024. Mr Benjamin Armstrong did not file a notice of appearance or an affidavit regarding the merits of the matter. As a matter of courtesy, Mr Benjamin Armstrong was sent a Notice of Hearing for a r 414(e) directions hearing, but did not attend. It is presumed, therefore, that he does not wish to add to the factual material that is before the Court, pursuant to the order of Associate Justice Daly.

7   Having regard to the foregoing, it is appropriate to make the orders sought by the plaintiffs.

8   The Court orders as follows:

(i)          The grant of probate dated 11 July 2023 following the death of Mr Milford Lewis Bones, is revoked.

2   No 52/2024

(ii)         The grant of probate in solemn form in the will of Mr Milford Lewis Bones, dated 9 September 2021, is made to the plaintiffs.

(iii) Upon receipt of a sealed or certified copy of this order, the Registrar is to order the issue of a grant under r 6 of the Probate Rules 2017 (Tas), and any other compliance ordinarily required of the plaintiffs under the Probate Rules 2017 (Tas) be dispensed with.

(iv)        The plaintiffs' costs are to be paid out of the estate of Mr Milford Lewis Bones on a solicitor and own client basis.