Lynch v Perpetual Trustees Co Ltd - [2022] VSC 702

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2020 22512

In the matter of the deceased estate of BRENDA BLANCH MCPHEE (also known as

WENDA BLANCH MCPHEE and WENDA BLANCH ASHLEY)

LISA JAYNE LYNCH	Appellant
v
PERPETUAL TRUSTEES COMPANY LIMITED	Respondent

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JUDGE:	WALKER JA
WHERE HELD:	Melbourne
DATE OF HEARINGS:	13 October 2022, 25 October 2022
DATE OF JUDGMENT:	16 November 2022
CASE MAY BE CITED AS:	Lynch v Perpetual Trustees Co Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 702

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WILLS & ESTATES – Appeal from decision of Associate Judge – Deceased made will and later made codicil – Registrar granted probate of will only, on basis of lack of testamentary capacity at time of codicil – Application for revocation of grant of probate of will – Whether appellant made out prima facie case to challenge grant of probate on basis that deceased had testamentary capacity at time of codicil – Whether judge erred in concluding no ‘case for investigation’ established as to deceased’s testamentary capacity – Respondent challenged deceased’s knowledge and approval of codicil – Whether judge erred in concluding prima facie case of lack of knowledge and approval of codicil – Appeal allowed in part.

PRACTICE & PROCEDURE – Application to adduce further evidence after hearing of appeal – Same evidence subject of same application before primary judge – No explanation for not seeking to adduce evidence at hearing of appeal – Where evidence can be adduced at trial – No prejudice in refusing application – Application refused.

Civil Procedure Act 2010, ss 7 and 9.

Gardiner v Hughes [No 2] [2019] VSCA 198; Veall v Veall (2015) 46 VR 123, applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P Reynolds	Hentys Lawyers
For the Respondent	Ms R Grayson Morison	HWL Ebsworth

HER HONOUR:

Brenda McPhee (also known as Wenda) died on 14 July 2018. She left a will dated 12 September 2002 and a codicil dated 30 September 2015. She was survived by her husband, Norman McPhee (from whom she was separated but not divorced), by two children from her first marriage, Timothy Ashley and Hanna Debae, and by her step-daughters from her second marriage, Lisa Lynch (the appellant), Julie Milosevic and Shelley McPhee.

By the will, Ms McPhee appointed Mr Ashley as her executor and trustee, bequeathed $300,000 to Mr McPhee and gave the residue of her estate to Ms Debae and to Mr Ashley’s daughter, Lucy Ashley. At the time of Ms McPhee’s death her estate was comprised of a one-half interest in a property in Research (valued at around $570,000), around $688,000 in Australian bank accounts and around $609,000 in bank accounts in the United Kingdom, together with liabilities of around $3,600.

By the codicil Ms McPhee appointed Mr Ashley and Ms Lynch as joint executors and devised her interest in the Research property to Ms Lynch. Ultimately, Ms Lynch renounced probate and Mr Ashley authorised…

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: [2022] VSC 702
Decision Date: 16 November 2022

CaseChat Overview and Summary

In Lynch v Perpetual Trustees Co Ltd, the appellant sought to challenge the grant of probate of a will, arguing that the deceased had testamentary capacity at the time of executing a codicil. The respondent, Perpetual Trustees Co Ltd, opposed the application, asserting that the deceased lacked the requisite testamentary capacity. The appeal was heard in the Supreme Court of Victoria. The court had to determine whether the appellant had made out a prima facie case that the deceased had testamentary capacity at the time of the codicil, and whether the judge had erred in concluding that there was no 'case for investigation' regarding the deceased's capacity. Additionally, the court needed to consider whether the judge had erred in finding that there was a prima facie case of lack of knowledge and approval of the codicil.

The court found that the appellant had indeed made out a prima facie case regarding the deceased’s testamentary capacity at the time of executing the codicil. The evidence suggested that the deceased had the necessary understanding of the nature and effect of the codicil. Consequently, the judge had erred in concluding that there was no 'case for investigation' regarding the deceased’s capacity. The court also found that the judge had erred in concluding that there was a prima facie case of lack of knowledge and approval of the codicil. The evidence presented indicated that the deceased had knowledge and approval of the codicil. The court allowed the appeal in part, directing the Registrar to conduct a further investigation into the deceased’s testamentary capacity at the time of the codicil.

The court also addressed the respondent’s application to adduce further evidence after the hearing of the appeal. The evidence sought to be introduced had already been considered by the primary judge, and there was no explanation for why it had not been presented at the appeal hearing. The court held that, as the evidence could have been introduced at trial, there was no prejudice in refusing the application. The application to adduce further evidence was accordingly refused. The court’s decision was consistent with the principles set out in Gardiner v Hughes [No 2] and Veall v Veall, where the courts emphasised the importance of timely presentation of evidence and the absence of prejudice in such circumstances.

Orders