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Gardiner v Hughes

Gardiner v Hughes

Case [2017] VSCA 167 29 June 2017

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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…

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 Gardiner v Hughes

Details

AGLC: Gardiner v Hughes [2017] VSCA 167
Case: [2017] VSCA 167
Decision Date: 29 June 2017

CaseChat Overview and Summary

The applicants in Gardiner v Hughes sought revocation of a grant of probate. The applicants argued they had standing to challenge the validity of the will of the deceased. The applicants contended that they would not benefit from the probated will or any preceding wills, and sought to invalidate all wills. They argued that they were entitled to benefit in the event of intestacy and that this benefit was sufficient to establish standing to seek revocation. The applicants also argued that an applicant for revocation was not required to show a prima facie case in order to establish standing. The legal issues in the case included whether the applicants had standing to seek revocation of the grant of probate, and whether the applicants were required to show a prima facie case in order to establish standing.

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