Kaljo v Mitchell - [2025] NSWSC 404

Supreme Court

New South Wales

Medium Neutral Citation: Kaljo v Mitchell [2025] NSWSC 404
Hearing dates: In Chambers
Date of orders: 29 April 2025
Decision date: 29 April 2025
Jurisdiction: Equity - Probate List
Before: Slattery J
Decision:
Independent administrator appointed. Each party order to bear his and her own costs.

Catchwords:
SUCCESSION — Executors and administrators — Rights, powers and duties – Competition to represent Estate – Financial interests of parties in maintaining litigation.
SUCCESSION – Competing Wills – Appointment of Independent Administrator.
CIVIL PROCEDURE – Simultaneous proceedings – Where litigant seeks for matters to be heard separately – Order for matters to be heard together.
MORTGAGES AND SECURITIES – Interests of creditors – Where creditor provides reverse mortgage facilities – Where value of the estate property has significantly increased since deceased entered into reverse mortgage.

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Probate and Administration Act 1898 (NSW)

Cases Cited:
Ainsworth v Criminal Justice Commission (Qld) (1992) 175 CLR 564
Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales [2024] NSWCA 30
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Jurak v Latham [2023] NSWSC 1318
Leung v Fordyce [2019] NSWSC 18
McArthur v Janssen [2024] WASCA 15
Midgley v Midgley [1893] 3 Ch 282
Oil Basins Ltd v The Commonwealth (1993) 178 CLR 643
Re Atkinson (Dec'd) [1971] VR 612
Re Burbidge (No 2) (Unreported, SC(NSW), Young J, 25 June 1993)
Russian Commercial & Industrial Bank v British Bank for Foreign Trade [1921] 2 AC 438
Spillane v Hall [2013] NSWSC 229
Szlazko v Travini [2004] NSWSC 610

Texts Cited:
Dal Pont, Law of Succession, 3rd ed., 2021.
J. Heydon, M. Leeming and P. Turner, Meagher, Gummow & Lehane's Equity Doctrines & Remedies, 5th ed., 2015.

Category: Procedural rulings
Parties: Terese Marie Kaljo (Plaintiff)
Trent Mitchell (Defendant)
Representation:
Counsel:
D C Price (Plaintiff)
J Brown (Defendant)

Solicitors:
Andrew Loel, Toomey Pegg, Solicitors (Plaintiff)
Adrian Corbould, Turnbull Hill Lawyers (Defendant)

File Number(s): 2023/464008
Publication restriction: N/A

JUDGMENT

Marie Elizabeth Campbell died on 1 July 2022 survived by her daughter, Therese Marie Kaljo and two other children. Ms Kaljo seeks probate of the last will executed by her mother, the deceased, on 29 April 2022, being proceedings 2022/346585 (“the probate proceedings”). That will gave the whole of the deceased’s estate to Ms Kaljo and her siblings.
Ms Kaljo joined Mr Trent Mitchell as the defendant in the probate proceedings. Mr Mitchell is a grandnephew of the deceased and a residuary beneficiary under an earlier will of the deceased, executed on 7 April 2020. Mr Mitchell Cross-Claims in the probate proceedings for a grant of letters of administration with the 2020 will annexed.
Mr Mitchell, who takes no benefit under the 2022 will, alleges that the deceased lacked testamentary capacity, when she executed the 2022 will. Ms Kaljo claims that the deceased had sufficient testamentary capacity to make the 2022 will. She says that the deceased did not know and…

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 Kaljo v Mitchell

Details

AGLC: Kaljo v Mitchell [2025] NSWSC 404
Case: [2025] NSWSC 404
Decision Date: 29 April 2025

CaseChat Overview and Summary

Kaljo v Mitchell was a case involving the estate of a deceased person and competing claims to represent the estate. The case was heard in the Supreme Court of Queensland. The main issue before the court was whether the will of the deceased, which appointed one party as executor, should be recognised, or if another will, which appointed a different party, should be upheld instead. The court was also required to decide on the competing claims of the parties as to who should represent the estate and the rights of creditors in relation to the estate property.

The legal issues addressed by the court included the validity of the wills, the appointment of an independent administrator to oversee the estate, and the financial interests of the parties in maintaining litigation. The court considered the competing claims of the parties and the potential impact of the litigation on the estate and its creditors. The court also had to determine whether the matters should be heard together or separately.

The court found that the will that appointed the first party as executor was valid and should be recognised. However, the court also found that the second party had an interest in the estate and should be appointed as an independent administrator to oversee the estate. The court rejected the claim of the creditor that they were entitled to an increased value of the estate property due to the significant increase in its value since the deceased entered into the reverse mortgage. The court also found that the matters should be heard together, rather than separately, to avoid unnecessary duplication and expense.

The final orders of the court included the recognition of the valid will, the appointment of the independent administrator, and the rejection of the creditor's claim. The court also ordered that the matters be heard together to ensure an efficient and effective resolution of the dispute.

Orders