In the estate of Ian Robert McPherson

[2025] ACTSC 33

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the estate of Ian Robert McPherson

Citation: 

[2025] ACTSC 33

Hearing Date: 

28 January 2025

Decision Date: 

13 February 2025

Before:

McCallum CJ

Decision: 

1. Pursuant to r 504 of the Court Procedures Rules 2006 (ACT), leave is granted to the plaintiff to amend the originating application-probate dated 19 May 2024 to seek probate of the deceased’s Will made on 26 June 2023 and Codicil made on 4 September 2023.

2.    Upon the filing of the amended originating application, pursuant to rule 3071 of the Rules, leave is granted to file withdrawals of caveats:

           CAV 6 of 2024;

           CAV 7 of 2024; and

           CAV 13 of 2024.

3.    The application in proceeding dated 10 July 2024 is dismissed with no order as to costs with the intent that each party bear their own legal costs without recourse to the estate.

4.    Proceeding PRO 441 of 2024 are remitted to the registry to issue a Grant of Probate in common form of the deceased’s Will made on 26 June 2023 and Codicil made on 4 September 2023.

5.    Pursuant to r 6 of the Rules, I dispense with the requirement to file a notice of intention to apply for probate under r 3006.

Catchwords: 

WILLS, PROBATE AND ADMINISTRATION – application for probate – where parties seek leave by consent to amend probate application to seek probate of an earlier Will – where evidence establishes that the deceased could not have had the opportunity to approve the contents of the Will of which probate was initially sought – whether appropriate to make consent orders permitting the executor to pass over that Will

Cases cited:

Cassarino v Cassarino [2020] NSWSC 454

Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786

Parties: 

Elizabeth Ann Mulcahy ( Plaintiff)

Donald Ambrose McPherson ( Interested Person)

Brett Robert McPherson (Interested Party)

Jacqueline Ann Corkhill (Interested Party)

Representation: 

Counsel

B Buckland ( Plaintiff)

K Binstock ( Interested Party)

K Bradley (Interested Party)

P Davey (Interested Party)

Solicitors

Badgery & Rafferty ( Plaintiff)

Thomson Geer ( Interested Party)

Bradley Allen Love Lawyers (Interested Party)

Dobinson Davey Clifford Simpson Lawyers (Interested Party)

File Number:

PRO 441 of 2024

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED)

1․These are proceedings for a grant of probate of a Will.  The originating application sought the grant of probate of a Will dated 14 February 2024.  However, on 19 December 2024, the parties filed proposed orders sought by consent seeking leave for the plaintiff to amend the originating application for probate so as instead to seek probate of an earlier Will, being the deceased’s penultimate Will made on 26 June 2023, together with a Codicil made on 4 September 2023.

2․The proposed orders were brought to my attention by the Registrar because she was concerned as to whether the Court could appropriately make such orders by consent.  With respect, it was proper for the Registrar to raise that concern: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [271] (Lindsay J). The Court will not give effect to a compromise by which it is agreed to pass over a testamentary document unless there is evidence to establish a genuine doubt as to its validity: Cassarino v Cassarino [2020] NSWSC 454 at [16] (Hallen J).

3․I accordingly listed the proceedings before me and directed the parties to file evidence setting out the basis on which the plaintiff and the three interested parties were satisfied that it was appropriate to pass over the 2024 Will.

4․In response to those directions, I now have the following evidence before me (in addition to the evidence filed in support of the originating application).  First, there is a supplementary affidavit of the executor in which she explains that, following a two-day mediation between her and the interested parties, she became concerned that there was a risk that the deceased, her father, did not have knowledge of and did not approve of the contents of the February 2024 Will.  Secondly, I have a letter from each of the interested parties, either signed personally or by a solicitor acting on their behalf, confirming that, having read the executor’s supplementary affidavit, they support the passing over of the 2024 Will and a grant of probate in respect of the penultimate Will and Codicil.  Finally, there is a further letter from Ms Jacqueline Corkhill (one of the interested parties) in response to the supplementary affidavit of the executor setting out more detail of the circumstances in which the interested parties conveyed to the executor, and ultimately persuaded her of their view, that there was a basis for holding a real concern as to whether the deceased had adequate knowledge of the February 2024 Will to enable him to give his approval to that Will.

5․Without descending into the detail of that evidence, it establishes that, at the time the 2024 Will was signed, the deceased had been in hospital for a number of days and had had very little sleep.  Furthermore, there is evidence that the timing of and manner in which the Will was put before him would not have given him an adequate opportunity in the circumstances, and having regard to the length of the Will (which runs to some 26 pages), to understand what he was agreeing to.

6․I note for completeness that the executor maintains that she does not accept the separate basis on which probate of the 2024 Will was challenged by the interested parties, namely, that the deceased did not have testamentary capacity at that time. 

7․In any event, following a lengthy and apparently careful albeit perhaps fraught mediation, it is clear that all parties agree that there is a proper basis beyond mere commercial expedience for passing over the 2024 Will and that all agree that the application of the executor should be amended so as to seek probate of the 2023 Will.  Furthermore, it is clear that their position is supported by the evidence.  For those reasons, I am satisfied that it is appropriate to make the orders sought.

Orders

8․I make the following orders by consent:

(1)Pursuant to r 504 of the Court Procedures Rules 2006 (ACT), I grant leave to the plaintiff to amend the originating application - probate dated 19 May 2024 to seek probate of the deceased’s Will made on 26 June 2023 and Codicil made on 4 September 2023.

(2)Upon the filing of the amended originating application, pursuant to rule 3071 of the Rules, leave is granted to file withdrawals of caveats:

(a)CAV 6 of 2024;

(b)CAV 7 of 2024; and

(c)CAV 13 of 2024.

(3)The application in proceeding dated 10 July 2024 is dismissed with no order as to costs with the intent that each party bear their own legal costs without recourse to the estate.

(4)Proceeding PRO 441 of 2024 is remitted to the registry to issue a Grant of Probate in common form of the deceased’s Will made on 26 June 2023 and Codicil made on 4 September 2023.

(5)Pursuant to r 6 of the Rules, I dispense with the requirement to file a notice of intention to apply for probate under r 3006.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: