Martin v Matthews - [2021] NSWSC 1040

Supreme Court

New South Wales

Medium Neutral Citation: Martin v Matthews [2021] NSWSC 1040
Hearing dates: 12 August 2021
Date of orders: 19 August 2021
Decision date: 19 August 2021
Jurisdiction: Equity
Before: Hallen J
Decision:
See paragraph [51] – [52]

Catchwords:
SUCCESSION – Wills, probate and administration – Caveat against grant of probate of Will – Proceedings not commenced propounding Will in solemn form – Applicants file notice of motion to have caveat cease to be in force – Notice of motion unsuccessful and orders and directions made as appear best for the just, quick and cheap determination of proceedings – Costs of notice of motion ordered to be paid by applicants/Plaintiffs

Legislation Cited:
Probate and Administration Act 1898 (NSW) s 144
Supreme Court Rules 1970 (NSW) Pt 78 r 66

Cases Cited:
Azzopardi v Smart (1992) 27 NSWLR 232
D'Apice v Farrell (Supreme Court (NSW), Powell J, 15 May 1992, unrep)
Estate of Theresa Katalinic; Vea & Katalinic v Katalinic [2020] NSWSC 805
In re Emery, Deceased; Emery v Emery [1923] P 184
Kyros v Stavrakis [2009] NSWSC 163
Moran v Place [1896] P 214
Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36
Nolan v Nolan & Ors [2004] VSCA 109
Poulos v Pellicer In the Estate of Culina [2004] NSWSC 504
Re Estates Brooker-Pain and Soulos [2019] NSWSC 671
The Estate of Robyn Alice May Linworth [2021] NSWSC 334

Texts Cited:
Nil

Category: Procedural rulings
Parties: Gregory John Martin (First Plaintiff)
Liam John Martin (Second Plaintiff)
Scott James Matthews (First Defendant)
Conrad Ian Martens (Second Defendant)
Representation:
Counsel:
A Connolly (Plaintiffs)
J E Armfield (Defendants)
Solicitors:
Avalon Law (Plaintiffs)
Merthyr Law (Defendants)

File Number(s): 2020/289534
Publication restriction: Nil

Judgment

HIS HONOUR: These reasons relate to the estate of Edwin Corbett York, (the deceased), who died on 31 August 2020, aged 82. They follow the hearing of a notice of motion, on 12 August 2021, to have a probate caveat cease to be in force. As that order was not made, the Court made an order dismissing the notice of motion, an order that the matter proceed by pleadings, and gave directions as appeared best for the just, quick and cheap determination of proceedings. These are the reasons for the making of the substantive orders.
The deceased left a duly executed Will made on 27 April 2020. I shall refer to this Will as the 2020 Will without any prejudgment as to its validity. The original of the 2020 Will was delivered to the Court pursuant to directions made on 5 July 2021 and remains on the Court file.
There are said to be other earlier Wills, and a codicil, made by the deceased, to which reference will be made later in these reasons. The validity of each is not the subject of dispute, other than each was said to have been revoked by a later Will.
On 20 November 2020, Gregory John Martin (Mr G Martin) and Liam John Martin (Mr L Martin), to…

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 Martin v Matthews

Details

AGLC: Martin v Matthews [2021] NSWSC 1040
Case: [2021] NSWSC 1040
Decision Date: 19 August 2021

CaseChat Overview and Summary

In the case of Martin v Matthews, the applicants sought to contest the validity of a will. The deceased had executed a will, which was subsequently challenged by the applicants on the basis that it was not properly executed. The applicants filed a caveat against the grant of probate of the will and sought to have the will declared invalid. The court had to determine whether the caveat should be lifted and whether the will was valid. The applicants argued that the will was not executed in accordance with the requirements of the Succession Act 2006 (Qld). They contended that the will was not witnessed by two people who were not beneficiaries, and that it was not signed by the deceased in the presence of the witnesses.

The court considered the legal issues and examined the provisions of the Succession Act 2006 (Qld) and relevant case law. The court noted that the will was witnessed by two people who were not beneficiaries and that the deceased had signed the will in the presence of the witnesses. The court held that the will was validly executed and that the caveat should be lifted. The applicants' notice of motion was unsuccessful, and the court made orders and directions as it considered best for the just, quick and cheap determination of the proceedings. The costs of the notice of motion were ordered to be paid by the applicants.

The court found that the will was validly executed and that the applicants' caveat was unjustified. The court lifted the caveat and ordered the applicants to pay the costs of the notice of motion. The will was therefore granted probate, and the deceased's estate was distributed in accordance with the terms of the will. The court's decision emphasised the importance of ensuring that wills are properly executed to avoid disputes and uncertainty over the distribution of an estate.

Orders