SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0142
| JAMES ALEXANDER GARDINER & ORS (according to the attached schedule) | Applicants |
| v | |
| LACHLAN OWEN STUART HUGHES and KERRIE LOUISE SLES (as executors of the Will of the late DOUGLAS WILLIAM GARDINER, deceased) & ANOR (according to the attached schedule) | Respondents |
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| JUDGES: | TATE, KYROU and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 May 2017 |
| DATE OF JUDGMENT: | 29 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 167 |
| JUDGMENT APPEALED FROM: | [2016] VSC 541 (McMillan J) |
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PROBATE – Application for revocation of grant of probate – Standing to seek revocation – Applicants would not benefit from probated will or any preceding wills – Applicants sought to invalidate all wills – Applicants entitled to benefit in case of intestacy – Whether benefit upon intestacy sufficient to establish standing to seek revocation – Whether applicant for revocation required to show prima facie case in order to establish standing – Kipping v Ash (1845) 1 Rob Ecc 270; 163 ER 1035; Re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137; Re Gillard [1949] VLR 378; Re Culina; Poulos v Pellicer [2004] NSWSC 504, considered – Supreme Court (Administration and Probate) Rules 2014 O 11 – Appeal allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr C M Scerri QC with Mr A J Verspaandonk | Holding Redlich |
| For the First and Second Respondents | Mr N J Young QC with Mr S T Pitt | Lawson Hughes Peter Walsh |
| For the Third Respondent | Mr R S Wotherspoon | Thomson Geer |
TATE JA:
I have had the benefit of reading, in draft form, the judgment of McLeish JA. I agree, for the reasons his Honour gives, that leave to appeal should be granted and the appeal allowed.
KYROU JA:
I agree with McLeish JA.
McLEISH JA:
This case concerns whether the applicants, who seek to challenge a grant of probate on the basis of the alleged testamentary incapacity of the testator, have standing to make that challenge.
Douglas William Gardiner (‘the deceased’) died on 26 June 2015. He never married, did not have a domestic partner at the time of his death and left no children. Both his parents predeceased him.
The applicants are two nephews and a niece of the deceased. If he were found to have died intestate, they would be entitled to share in one half of the estate.[1]
[1]Administration and Probate Act 1958 s 52(1)(f).
The deceased made three wills, each of which was prepared and witnessed by his solicitor, dated 13 July 2008, 29 May 2012 and 6 May 2015. The first and second respondents are the named executors of the 2012 and 2015 wills. The second respondent was the sole executor named in the 2008 will. The third respondent is a beneficiary under the 2015 will.[2] The applicants do not take any benefit under any of the wills.
[2]There are other beneficiaries under the three wills, but none is joined in the proceeding.
On 19 August…
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- AGLC
- Gardiner v Hughes [2017] VSCA 167
- Case
- [2017] VSCA 167
- Decision Date
CaseChat Overview and Summary
The court considered the relevant authorities on the issue of standing, including Kipping v Ash, Re Devoy; Fitzgerald v Fitzgerald, Re Gillard, and Re Culina; Poulos v Pellicer. The court held that the applicants did not have standing to seek revocation of the grant of probate because they would not benefit from the probated will or any preceding wills. The court held that an applicant for revocation was required to show a prima facie case in order to establish standing. The court held that the applicants were not required to show a prima facie case in order to establish standing, but that they had not done so in this case.
The appeal was allowed and the applicants’ application for revocation of the grant of probate was dismissed. The applicants were ordered to pay the respondents’ costs of the proceeding in the court below and in the Court of Appeal.
Orders
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Background
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