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Carroll v Goff

Carroll v Goff

Case [2021] VSCA 267 21 September 2021

Probate

Natural Justice & Procedural Fairness

Indemnity Costs

Succession Law

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0002

JANE KATHLEEN CARROLL	Applicant
v
ROBERT TERENCE GOFF	Respondent

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JUDGES:	MAXWELL P, KENNEDY and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 August 2021
DATE OF JUDGMENT:	21 September 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 267
JUDGMENT APPEALED FROM:	Carroll v Goff (Supreme Court of Victoria, S PRB 2020 09770, 27 November 2020, McMillan J)

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WILLS AND ESTATES – Probate – Executors – Application for probate – Deceased’s two children named as executors – Codicil appointed New South Wales Trustee & Guardian as executor should there be disharmony or disagreement between named executors – One named executor applied for probate – Long history of disputation between siblings – Codicil applicable – Probate application refused – Decision plainly correct – Appeal dismissed.

PRACTICE AND PROCEDURE – Natural justice – Right to fair hearing – Application determined on the papers – Applicant self-represented – Whether denial of procedural fairness – Parties filed submissions and affidavits – Narrow issue – Competing positions clearly articulated – Consideration of public interest and private interest – No practical injustice – Doughty-Cowell v Kyriazis [2018] VSCA 216, Roberts v Harkness (2018) 57 VR 334; [2018] VSCA 215, applied; Coffey v O’Halloran [2021] VSCA 29, discussed – Civil Procedure Act2010 ss 7–9, 47, 49.

PRACTICE AND PROCEDURE – Costs – Indemnity costs – Whether judge erred in discretion on costs – Proceeding had no proper basis – Respondent warned applicant that application would fail and indemnity costs would be sought – No error – Civil Procedure Act 2010 s 18.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Ms R Grayson Morison	Smallwoods Lawyers

MAXWELL P
KENNEDY JA
WALKER JA:

Summary

This is an application for leave to appeal against orders dismissing an application for a grant of probate, and awarding costs against the present applicant (who had sought the grant of probate) on an indemnity basis. The matter was decided on the papers, with no oral hearing.

Unhappily, the application for probate was made against a background of longstanding distrust and animosity between the applicant and her brother, who is the respondent to this application. They are the only children of the deceased, Kathleen Goff, and she had appointed them as her executors.

Apparently aware of the strained relationship between them, however, Mrs Goff executed a codicil which altered the executor provisions of the will. Relevantly for present purposes, the codicil made clear that Mrs Goff did not want her children to be executors ‘either solely or jointly if there is any disharmony or disagreement between them in relation to the administration of my Estate or otherwise’. In those circumstances, the codicil stated, the Public Trustee of New South Wales would be appointed executor.

As noted earlier, there has for some time existed an entrenched state of ‘disharmony and disagreement’ between the siblings. So much was clear from the documents filed in the probate…

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 Carroll v Goff

Details

AGLC: Carroll v Goff [2021] VSCA 267
Case: [2021] VSCA 267
Decision Date: 21 September 2021

CaseChat Overview and Summary

The case of Carroll v Goff involved an application for probate in relation to the estate of a deceased individual. The two children of the deceased, who were named as executors in the will, were in dispute over the administration of the estate. The will contained a codicil appointing the New South Wales Trustee and Guardian as the executor if there was disharmony or disagreement between the named executors. One of the children, acting as an executor, applied for probate, but the application was refused by the court. The applicant subsequently appealed the decision, but the appeal was dismissed. The court held that the codicil was applicable due to the history of disputation between the siblings and that the denial of procedural fairness was not a valid argument given the narrow issue and clear articulation of positions. The court also considered the public and private interests and found no practical injustice. The application for probate was dismissed, and the applicant was ordered to pay indemnity costs.

The central legal issue before the court was whether the codicil appointing the New South Wales Trustee and Guardian as the executor should be applied due to the history of disagreement between the named executors. The court needed to determine if the application for probate should proceed and if the applicant was entitled to a fair hearing. The court also had to consider whether the decision to deny probate and award indemnity costs was in accordance with the principles of natural justice and procedural fairness. The court needed to assess if the applicant's right to a fair hearing was compromised and if the denial of procedural fairness was justified given the circumstances of the case.

The court held that the codicil was applicable due to the long-standing history of disputation between the siblings. The court found that the applicant's right to a fair hearing was not compromised as the parties had filed submissions and affidavits, and the issue at hand was narrow with clearly articulated competing positions. The court considered the public and private interests and found no practical injustice. The court held that the decision to deny probate was plainly correct and that the denial of procedural fairness was justified. The court also held that the decision to award indemnity costs was appropriate as the applicant was warned that the application would fail, and indemnity costs would be sought. The appeal was dismissed, and the applicant was ordered to pay indemnity costs.

Orders