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Gardiner v Hughes (No 2)

Gardiner v Hughes (No 2)

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Case Copied 13 September 2019 56 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0100

JAMES ALEXANDER GARDINER (and others according to the schedule)	Applicants
v
LACHLAN OWEN STUART HUGHES and KERRIE LOUISE SLES (as executors of the will of DOUGLAS WILLIAM GARDINER, deceased) (and another according to the schedule) [No 2]	Respondents

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JUDGES:	KYROU, McLEISH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 August 2019
DATE OF JUDGMENT:	13 September 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 198
JUDGMENT APPEALED FROM:	[2018] VSC 414 (McMillan J)

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WILLS AND ESTATES – Application for revocation of grant of probate on grounds of testamentary incapacity – Whether particulars established prima facie case – Test to be applied – Deceased socially isolated and lived with mother, not gainfully employed almost his whole life – Deceased’s mother made special testamentary provision for him via protective trust – Deceased failed to care for mother late in her life and impeded care –Deceased formerly underwent psychiatric assessment, had significant heart condition and repeatedly acted against medical advice – History of unwise or unusual financial decisions – Estate left to financial manager to whom deceased had become close – Undue influence not alleged – Whether matter for investigation – Banks v Goodfellow (1870) LR 5 QB 549, Re Egan [1963] VR 318, Wrigley v Buxton (1893) 19 VLR 37, Nicholson v Knaggs [2009] VSC 64, considered.

APPEAL – Standard of appellate review – Whether decision as to existence of prima facie case a matter of discretion – Whether House v The King (1936) 55 CLR 499 or correctness standard in Warren v Coombes (1979) 142 CLR 531 applies – Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713, applied.

WORDS AND PHRASES – ‘prima facie case’.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr J Ruskin QC with Mr A J Verspaandonk	Holding Redlich
For the First and Second Respondents	Mr C M Caleo QC with Mr S T Pitt	Lawson Hughes Peter Walsh Lawyers
For the Third Respondent	Mr S Wotherspoon	Thomson Geer

KYROU JA

McLEISH JA
T FORREST JA:

Douglas Gardiner died on 26 June 2015 leaving a very substantial estate. He never married and had no children. The applicants are his nephews and niece, the children of his late brother Robert. They seek leave to appeal from a decision of a judge in the Trial Division which dismissed an application for the revocation of probate of Mr Gardiner’s final will on the basis that they had not established a prima facie case for that relief.

Mr Gardiner made three wills. Under the first will, dated 13 July 2008, the sole executor was Kerrie Sles, who was left 80 per cent of the residuary estate, the remainder going to Mr Gardiner’s niece Alice (the daughter of his other brother James) and her husband. Under the second will, made on 29 May 2012, the executors were Ms Sles and Lachlan Hughes. Under that will Ms Sles was left the…

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.

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Details

Case: [2019] VSCA 198
Decision Date: 13 September 2019

CaseChat Overview and Summary

The case of Gardiner v Hughes (No 2) involved an application by a party seeking the revocation of a grant of probate on the grounds of testamentary incapacity. The deceased left an estate to a financial manager with whom he had become close, and the applicant argued that the deceased was unable to understand the nature and effect of making a will due to his mental and physical health conditions. The case was heard in the Supreme Court of Victoria.

The central legal issues revolved around whether the particulars presented in the application established a prima facie case for the revocation of the grant of probate. The court had to determine the appropriate standard of proof required in such cases and whether the matter warranted further investigation. The court also considered whether the decision to establish a prima facie case was subject to discretionary review or if the correctness standard applied.

In its reasoning, the court examined the deceased's social isolation, his history of unwise financial decisions, his failure to care for his mother late in her life, and his disregard for medical advice. While the deceased's mother had made special testamentary provision for him through a protective trust, the court found that these factors did not establish a prima facie case for revocation. The court held that the decision to establish a prima facie case was a matter of discretion and applied the correctness standard of review, as in Warren v Coombes. The appeal was dismissed, and the grant of probate was upheld.

The court made no further orders beyond dismissing the appeal and upholding the grant of probate. The deceased's estate remained with the financial manager as per the terms of the will.

Orders