Chang v Chang - [2012] VSC 346

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

S PRB 2011 7519

IN THE MATTER of the Will of LU MEI TZE CHANG (also known as MAY LU CHANG, deceased)

LISA CHANG (also known as LISA HSIU CHUAN CHANG, and who is sued as the executrix of the Will of LU MEI TZE CHANG, deceased)	Plaintiff
v
PHILLIP CHANG (also known as MING CHIEN CHANG)	Defendant

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JUDGE:	McMILLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2012
DATE OF JUDGMENT:	7 November 2012
CASE MAY BE CITED AS:	Chang v Chang
MEDIUM NEUTRAL CITATION:	[2012] VSC 346

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ADMINISTRATION AND PROBATE — Application for the revocation of probate of the will of the deceased — Alteration of the will of the deceased by the executrix — Rebuttable presumption that the will was altered after execution — In the Goods of Adamson (1875) 3 PD 253; In re the Will of Mary Lucy Rider (1901) 27 VLR 238; Cinnamon v The Public Trustee for Tasmania (1934) 51 CLR 403 — Onus of Proof — Briginshaw v Briginshaw and Another (1938) 60 CLR 336.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Boaden	Rigby Cooke
For the Defendant	Mr J. Stavris	Fong & Co

HER HONOUR:

Introduction

In this proceeding, Phillip Chang (‘the defendant’) seeks revocation of the grant of probate of the will of his late mother, Lu Mei Tze Chang, who died on 14 October 2009 (‘the deceased’).

Background

The deceased is survived by her husband and her three adult children – the defendant, Ming I Chang and Lisa Chang (‘the plaintiff’).

The deceased left a will, which was prepared by the plaintiff using a ‘Prepare Your Own Legal Will Pack’ (‘will kit’). The deceased signed the will on 16 April 2009. The attesting witnesses signed the will later in August 2009 in the presence of the deceased.

In her will, the deceased appointed the plaintiff as her executrix. Probate of the will was granted in common form to the plaintiff on 28 June 2011.

On 18 April 2012, the defendant filed a statement detailing eight grounds for the revocation of the grant of probate. On 20 April 2012, Justice Habersberger determined that only Ground 1 was relevant to the defendant’s application to revoke the grant of probate and so directed that this ground be fixed for trial.

Ground 1 provides as follows:

1.The executrix has altered the will of the deceased, Lu Mei Tze Chang deleting/crossing out the name of the defendant as a beneficiary.

Ground 1 relates to the residuary disposition appearing in cl 5 of the will. This clause is partly printed and partly handwritten in black ink, with the handwritten parts appearing in italics, as follows:

5. Residuary/Residue of my Estate.
I direct my Executor(s) to pay all my debts and then I give the residue of my estate to my sons Ming Chien Chang and Ming I Chang and my daughter Lisa…

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 Chang v Chang

Details

AGLC: Chang v Chang [2012] VSC 346
Case: [2012] VSC 346
Decision Date: 7 November 2012

CaseChat Overview and Summary

The case of Chang v Chang involved a dispute over the validity of a will. The executrix of the deceased's estate, Chang, applied to the court for the revocation of the probate of the will, alleging that the will had been altered after the deceased's death. The deceased's relatives opposed the application, asserting that the will was valid. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the will had indeed been altered after the deceased's death, and if so, whether this alteration was significant enough to warrant the revocation of the probate. The court considered the relevant legal principles, including the rebuttable presumption that a will is not altered after execution, as established in Goods of Adamson, and the onus of proof as discussed in Briginshaw v Briginshaw and Another.

The court found that there was evidence suggesting the will had been altered after execution, and that this alteration was material enough to affect the validity of the will. The executrix had not discharged the onus of proving that the will was not altered. Consequently, the court revoked the probate of the will and ordered that the estate be distributed according to the intestacy rules.

The court ordered that the probate of the will be revoked, and the estate be distributed according to the intestacy rules. The executrix was also ordered to pay the costs of the proceeding.

Orders