Griffiths v Lewis - [2013] VSC 609

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

No. 2631 of 2013

IN THE MATTER of the Will and Estate of GLYNDWR DAVIES, deceased

ANDRIA GRIFFITHS (who is sued in her capacity as executrix and trustee of the Estate of the abovenamed deceased)	Plaintiff
v
BETTY LEWIS	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2013
DATE OF JUDGMENT:	11 November 2013
CASE MAY BE CITED AS:	Griffiths v Lewis
MEDIUM NEUTRAL CITATION:	[2013] VSC 609

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ADMINISTRATION AND PROBATE — Application for revocation of grant of probate — Standing to seek revocation — Applicant not a beneficiary under probated will or earlier will

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R B Phillips	John Burgess and Co
For the Defendant	J Wilkinson	Nathan Dorevitch Lawyers

HER HONOUR:

The plaintiff is the executrix of the estate of Glyndwr Davies, deceased (‘the deceased’), who died on 17 January 2013, leaving a will dated 1 March 2012 (‘the 2012 will’). Probate of the 2012 will was granted to the plaintiff on 5 March 2013.

The 2012 will bequeaths the deceased’s items of household use and ornament and the sum of $5 000 and to Lesley Ann Clark and leaves the residue of the estate to the plaintiff, who is a niece of the deceased.

By summons filed 17 September 2013, Ms Betty Lewis made an application seeking revocation of the grant of probate. Ms Lewis is a sister of the deceased and lives in West Glamorgan, South Wales. Ms Lewis is not a beneficiary under the deceased’s 2012 will.

In support of her application for revocation of the grant of probate, the defendant filed an affidavit sworn 12 September 2013 alleging that the 2012 will was not valid on four grounds, summarised as follows:

(a)the deceased did not instruct his solicitor, Mr Bruce Robert Climie, to prepare the 2012 will;
(b)the plaintiff exerted undue influence over the deceased to make the 2012 will, in which the plaintiff is named as a beneficiary;
(c)the deceased did not sign the 2012 will; and
(d)the deceased may have lacked testamentary capacity around the time that the 2012 will was made.

At the first instance, it should be noted that Ms Lewis did not file a caveat objecting to the grant of probate to the plaintiff and, in her affidavit, she has not addressed her failure to file a caveat.

In the second instance, it should be noted that the contents of Ms Lewis’ affidavit are extraordinary in that the assertions contained in paragraphs 10, 11, 13 through to 25 are completely unsubstantiated, speculative, matters of opinion without any basis, or just wrong. For the purposes of the application before me, which was heard and determined on 8 November, those paragraphs in the affidavit were struck out. Other paragraphs in the affidavit refer to matters put by way of family background and do not assist in the determination of the application.

The gravamen…

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 Griffiths v Lewis

Details

AGLC: Griffiths v Lewis [2013] VSC 609
Case: [2013] VSC 609
Decision Date: 11 November 2013

CaseChat Overview and Summary

The applicant, Griffiths, brought an application for the revocation of a grant of probate to the Supreme Court of Queensland. The dispute arose from the will of Lewis, who had passed away, and the subsequent grant of probate to the respondent, who is the executor of the will. Griffiths, who is not a beneficiary under either the probated will or an earlier will, sought to challenge the validity of the grant on the basis of alleged forgery and undue influence.

The central legal issue before the court was whether Griffiths had standing to seek revocation of the grant of probate. The court was required to determine if the applicant's lack of status as a beneficiary under the will or any earlier will precluded them from having the necessary locus standi to challenge the validity of the grant. Additionally, the court needed to consider the appropriate legal standards and principles governing standing in such probate matters.

The court found that Griffiths did not have standing to seek revocation of the grant of probate. It was determined that standing to challenge the validity of a will or a grant of probate is generally limited to those who are beneficiaries under the will or earlier wills, or other persons with a direct interest in the estate. Since Griffiths did not meet these criteria, the court held that they lacked the necessary standing. The court emphasised the importance of maintaining clear boundaries regarding who can challenge probate matters to ensure the finality and certainty of estate administration. The application for revocation was dismissed.

Orders