Fry v Georges - [2009] VSC 220

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6395 of 2008

IN THE MATTER of the will and estate of LEONARD ROY FRY deceased

BLAIR CHRISTOPHER FRY	Plaintiff
V
GEORGE GEORGES and JOHN LINDHOLM	First and Second Defendants
- and -
SHONDRA HILL	Third Defendant

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	2-3 April 2009
DATE OF JUDGMENT:	10 June 2009
CASE MAY BE CITED AS:	In the will of L.R. Fry deceased; Fry v Georges
MEDIUM NEUTRAL CITATION:	[2009] VSC 220

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WILLS – application to revoke probate and for a re-grant of probate with certain words deleted from the will – whether the testator knew and approved of the words sought to be deleted – whether there was any case within the limited jurisdiction of the court of probate for deletion of the words from the will.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Colbran QC With Ms A Bartfeld	Aitken Partners
For the First and Second Defendants	Mr D J Williams	Deacons
For the Third Defendant	Mr G T Bigmore QC With Mr M N C Harvey	Maddocks

HIS HONOUR:

Introduction

Leonard Roy Fry (“the testator”) died on 1 January 1986 leaving a will dated 29 September 1982 (“1982 will”). Probate was granted to his son, the present plaintiff, Blair Christopher Fry,[1] and to his solicitor, Lawrence William Quinn (“Mr Quinn”), the executors named therein, on 22 April 1986. The present trustees of the estate are the first and second defendants in this proceeding.[2] The third defendant, Shondra Hill,[3] is the testator’s daughter.
[1]I will refer to the plaintiff as such or as “Blair”.
[2]The first and second defendants were appointed, and the original executors removed, as trustees of the estate, by order of this Court on 7 February 2008.
[3]I will refer to the third defendant as such or as “Shondra”.

By his 1982 will, the testator left the matrimonial home on trust for his wife to reside therein rent free during her lifetime and after her death for his daughter Shondra and, by cl.4B(d) of the 1982 will, gave the rest of his real and personal property upon trust, as to the income therefrom, for his wife for life, and, upon the death of his wife:

“(i) UPON TRUST as to all those my shares in the capital of L.R.F. INVESTMENTS PTY. LTD. and all those my units in the unit trust which owns the property known as “The Resort”, Surfers Paradise for my said son absolutely;
(ii) UPON TRUST as to the balance of my Residuary Estate for my said daughter absolutely…”

The testator’s wife survived him and did not die until the year 2007.

At the date of his death, the testator’s estate included 5000 ordinary $2 shares in LRF Investments Pty Ltd (“LRF Investments”), 800 shares in Featherock Proprietary Limited (“Featherock”) and one ordinary $1 share each in five companies that were involved in a business which may be…

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 Fry v Georges

Details

AGLC: Fry v Georges [2009] VSC 220
Case: [2009] VSC 220
Decision Date: 10 June 2009

CaseChat Overview and Summary

Fry v Georges is a case that involves the interpretation and modification of a will. The dispute arose when the plaintiff, Fry, applied to the court to revoke the probate of the will of the deceased, Georges, and for a re-grant of probate with certain words deleted from the will. The primary legal issues before the court were whether the testator, Georges, knew and approved of the deletion of specific words from his will, and whether there was any jurisdiction within the limited scope of the court of probate to permit the deletion of these words from the will.

The court considered the nature of the jurisdiction in the Court of Probate, which is limited to matters directly related to the validity of the will and the appointment of executors. The court noted that while it had the power to revoke probate and to grant a re-grant of probate, it did not have the authority to alter the content of the will unless there was clear evidence that the testator intended such changes. In this instance, the court had to determine whether there was sufficient evidence to show that the testator knew and approved of the changes proposed by the plaintiff. The court examined the evidence presented regarding the testator’s knowledge and approval of the deletions, and found that there was no clear and convincing evidence to support the claim that the testator intended for the words to be removed from the will.

Consequently, the court ruled that the application to revoke probate and to re-grant it with the deletion of certain words from the will was not within the court's jurisdiction. The court found that there was no basis to alter the will as per the plaintiff's request. The court’s decision underscored the importance of clear evidence when seeking to make substantive changes to a will in the context of probate proceedings. The final orders of the court were that the application to revoke the probate and for a re-grant with the specified deletions was dismissed.

Orders