Mackay v Mackay

In this case, the plaintiff, Mark Lewis Mackay, sought to obtain a grant of probate for the will of his late father, Arthur Lewis Mackay, in solemn form. The will was dated 13 January 2017 and was the sole testamentary document executed by the deceased. Mark's sister, Julie Grace Mackay, who was the first defendant, and Robert George O'Brien, the second defendant, were also named as executors of the will. The relationship between Mark and Julie deteriorated to the point where legal proceedings were necessary to resolve the dispute over the grant of probate. The second defendant did not appear in the proceedings.

The central legal issue before the court was whether the plaintiff was entitled to a grant of probate in solemn form for the deceased's will, given the breakdown in the relationship between the plaintiff and the first defendant. The court also had to consider the first defendant's counterclaim, which sought the appointment of an independent executor for the deceased's estate, alleging questionable dealings by the plaintiff concerning the estate.

The court found that the plaintiff was entitled to the grant of probate in solemn form as the will was regular on its face and there was no evidence or pleading suggesting it was not properly executed or that the deceased lacked the capacity to make the will. The court noted that the first defendant's counterclaim was not arguable in these proceedings, as it did not provide a basis for the appointment of an independent executor. The court ruled that the first defendant's relationship issues with the plaintiff did not preclude the grant of probate.

The court granted the plaintiff's application for probate in solemn form and directed the probate registrar to issue the grant to Mark Lewis Mackay. The court also ordered that the costs of and incidental to this application be paid from the estate of the deceased on an indemnity basis.