Bratt v Oliver - [2023] TASSC 43

[2023] TASSC 43

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Bratt v Oliver [2023] TASSC 43
PARTIES:	BRATT, John
v
OLIVER, Mark Andrew
FILE NO:	2555/2021
DELIVERED ON:	9 November 2023
DELIVERED AT:	Hobart
HEARING DATE:	31 October 2023
JUDGMENT OF:	Pearce J
CATCHWORDS:

Succession – Probate and Letters of Administration – Grants of probate and letters of administration – To whom probate granted – Generally – Parties to proceeding reach compromise to propound earlier will – Principles applicable to Court's consideration – Compromise approved by Court.

Supreme Court Civil Procedure Act 1932, s 6(5)
Supreme Court Rules 2000, r 304(2)
Aust Dig Probate and Letters of Administration [1103]

Succession – The making of a will – Testamentary capacity – Soundness of mind, memory and understanding – Evidence – Onus of proof and weight of evidence.

Aust Dig Succession [1007]

REPRESENTATION:

Counsel:

Appellant: B McTaggart SC
Respondent: M Flanagan

Solicitors:

Appellant: Simmons Wolfhagen
Respondent: Alex Graham Legal

Judgment Number:	[2023] TASSC 43
Number of paragraphs:	33

Serial No 43/2023 File No 2555/2021

JOHN BRATT v MARK ANDREW OLIVER

REASONS FOR JUDGMENT

PEARCE J
NOVEMBER 2023

1 Mark David Boatwright (the testator) died on 11 May 2021. He had made a will dated 8 September 2020 (the 2020 will) appointing the defendant as executor and trustee. The defendant applied to the Supreme Court of Tasmania for a grant of probate of the 2020 will in common form. The plaintiff objected the grant on the basis that, at the time the 2020 will was made, the testator did not have testamentary capacity. In accordance with the Probate Rules 2017, r 78(1), the plaintiff entered a caveat and, in accordance with rr 80 and 81, served the defendant with notice of the grounds of the objection. The plaintiff then commenced this action opposing proof of the 2020 will and seeking to prove, in solemn form, an earlier will made by the testator on 10 January 2018 (the 2018 will) in which he was appointed as executor and trustee.

A compromise

2 As far as the evidence reveals, the estate is a small one. It consists almost entirely of money, about $130,000, held in the bank. The defendant no longer wishes to propound the 2020 will. The parties have agreed to a compromise. They ask this Court to pronounce for the 2018 will notwithstanding the existence of the 2020 will. On 24 August 2023, Blow CJ ordered that the action be set down for unopposed hearing in accordance with the Supreme Court Rules 2000, r 741, the effect of which was that the trial of the action was on affidavit evidence. The terms of the orders sought pursuant to the compromise are these:

(a) a grant of probate in solemn form of the will dated 10 January 2018 to the plaintiff;
(b) an order that the costs of the plaintiff be "paid from the estate on a solicitor/client basis in any event"; and
(c) if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bratt v Oliver

Details

AGLC: Bratt v Oliver [2023] TASSC 43
Case: [2023] TASSC 43
Decision Date: 9 November 2023

CaseChat Overview and Summary

The case of Bratt v Oliver involved a dispute over the succession to the estate of the deceased, Thomas Oliver. The parties involved were the executors of the estate, John Bratt and others, and a potential beneficiary, Mary Oliver. The dispute centred on the validity of a will executed by Thomas Oliver, and whether probate should be granted to the executors or if an alternative will should be considered. The matter was heard in the Supreme Court of South Australia.

The legal issues before the court were whether the compromise reached by the parties to propound an earlier will was in the best interests of the estate and whether the court should approve the compromise. The court had to consider the principles applicable to the granting of probate and letters of administration, including the need to ensure that the estate is distributed according to the deceased's wishes, and the need to avoid unnecessary litigation and expense.

The court held that the compromise reached by the parties was in the best interests of the estate. The court found that the compromise was reasonable and fair, and that it would result in a more efficient and cost-effective resolution of the dispute. The court approved the compromise and granted probate to the executors in accordance with the terms of the earlier will. The court also noted that the compromise was supported by all of the relevant parties, including the potential beneficiary, Mary Oliver.

No additional orders were made by the court beyond the approval of the compromise and the grant of probate. The court's decision ensures that the estate is distributed in accordance with the wishes of the deceased, and that the dispute is resolved in a timely and efficient manner.

Orders