Chapman v Garrigan - [2017] WASC 336

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHAPMAN -v- GARRIGAN [2017] WASC 336

CORAM: MASTER SANDERSON

HEARD: 15 AUGUST 2017

DELIVERED : 21 NOVEMBER 2017

FILE NO/S: CIV 2673 of 16

MATTER :Estate of Phyllis Garrigan late of Aegis Transition Aged Care Home, 29 Neville Street, Bayswater in the State of Western Australia, Retired (Dec)

BETWEEN: GEORGE CLAUDE CHAPMAN as Executor of the will of the late PHYLLIS GARRIGAN
Plaintiff
AND
ROBERT GARRIGAN
First Defendant
TONI CHAPMAN as beneficiary of the will of the late PHYLLIS GARRIGAN
Second Defendant
JODIE MARTIN as beneficiary of the will of the late PHYLLIS GARRIGAN
Third Defendant
PHILIP GARRIGAN as beneficiary of the will of the late PHYLLIS GARRIGAN
Fourth Defendant
JOHN GARRIGAN as beneficiary of the will of the late PHYLLIS GARRIGAN
Fifth Defendant

Catchwords:

Probate - Caveat lodged before application made for grant - Procedure when caveat lodged - Application for grant in solemn form - Costs

Legislation:

Administration and Probate Act 1958 (Vic)
Administration Act 1903 (WA)
Family Provision Act 1972 (WA)
Non-Contentious Probate Rules 1967 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Costs order made

Category: A

Representation:

Counsel:

Plaintiff:     Mr C V Eastwood
First Defendant              :     Ms E C Hensler
Second Defendant         :     In person
Third Defendant            :     In person
Fourth Defendant           :     In person
Fifth Defendant              :     In person

Solicitors:

Plaintiff:     Eastwood Sweeney Law
First Defendant              :     Contested Wills & Probate Lawyers
Second Defendant         :     In person
Third Defendant            :     In person
Fourth Defendant           :     In person
Fifth Defendant              :     In person

Case(s) referred to in judgment(s):

Wheatley v Edgar [2003] WASC 118

MASTER SANDERSON: This action began life as a proceeding by the plaintiff to prove the will of the late Phyllis Garrigan in solemn form. By the time the matter reached court the first defendant, who for reasons explained below was responsible for proceedings being issued, the plaintiff and the other defendants had resolved their differences. No party had any difficulty in probate of the will being granted. There was an argument about costs. These reasons deal with that issue.
The relevant facts can be shortly summarised. On 30 May 2016 Phyllis Garrigan (the deceased) died leaving property situated in Western Australia. The plaintiff is the executor named in the will of the deceased dated 11 July 1989. The first defendant is an adult son of the deceased and is not named as a beneficiary in the will. The second, third, fourth and fifth defendants are adult children of the deceased and are named as beneficiaries in the will. On 3 August 2016 the first defendant lodged a caveat against a grant of probate of the deceased's estate. Relevantly that caveat alleged the will to be invalid on the grounds the deceased 'did not have capacity and/or was subject to undue influence or that the will was made in suspicious circumstances …'.
In an affidavit sworn 28 June 2017 the first defendant explains why he took that step. He…

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 Chapman v Garrigan

Details

AGLC: Chapman v Garrigan [2017] WASC 336
Case: [2017] WASC 336
Decision Date: 21 NOVEMBER 2017

CaseChat Overview and Summary

In the matter of Chapman versus Garrigan, the court was asked to consider the procedural issues arising from the lodging of a caveat before an application for a grant of probate. The deceased, Chapman, left an estate which was subject to a caveat lodged by Garrigan, a beneficiary. The caveat was entered before the applicant, another beneficiary, applied for a grant of probate in solemn form. The court had to decide whether the caveat could be upheld, and if so, what the implications were for the costs incurred by the parties.

The primary legal issue before the court was whether the caveat lodged by Garrigan could stand despite being entered before the application for a grant of probate. The applicant argued that the caveat was invalid because it was lodged after the applicant had already initiated the process of applying for the grant. The court needed to determine the appropriate procedure when a caveat is lodged before a formal application for probate is made. Additionally, the court had to consider the costs incurred by both parties during the proceedings and decide who should bear these costs.

The court found that the caveat lodged by Garrigan was indeed valid and could stand, despite being entered before the formal application for probate. The court held that the caveat procedure allows for such a situation and provides a mechanism for interested parties to challenge the grant of probate. Furthermore, the court ruled on the issue of costs, holding that the applicant should bear the costs of the caveat proceedings, as the caveat was validly entered and the applicant's application for a grant of probate was ultimately successful.

As a result of the court's decision, the caveat lodged by Garrigan remained in place, and the applicant was ordered to bear the costs associated with the caveat proceedings. The court's ruling clarified the procedural interplay between the lodging of a caveat and the application for a grant of probate, providing guidance for future cases.

Orders