Matejka v Hodge - [2009] VSC 580

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 9865 of 2009

IN THE MATTER OF THE WILL OF ROBERT OTTO MATEJKA (deceased) RAELENE VERONICA MATEJKA MATTHEW RAYMOND MATEJKA and KARIN DOROTHY MATEJKA (also known as KARIN DOROTHY MAGIKA)	Plaintiffs
v
SHIRLEY ANN HODGE	Defendant

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JUDGE:	ROSS J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2009
DATE OF JUDGMENT:	11 December 2009
CASE MAY BE CITED AS:	Matejka v Hodge
MEDIUM NEUTRAL CITATION:	[2009] VSC 580

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Administration and Probate Act – application to have grant of probate cancelled – Interlocutory injunction to restrain Executrix from selling the property of the estate – Balance of convenience – Injunction Granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms U Stanisich	Williams Hunt
For the Defendant	Mr R Miller

HIS HONOUR:

This application seeks to restrain the Executrix (Shirley Ann Hodge) of the Will of the deceased from selling the property located 17 South Audley Street Brunswick Victoria and more particularly described in Certificate of Title Volume 11027 Folio 656 (“the property”), whether by public auction or private sale. The injunction is sought pending the hearing and determination of an application pursuant to Order 11.02 of the Administration and Probate Rules 2004 that the grant of probate of the Will of the deceased be cancelled, or until further order.

The deceased, Robert Otto Matejka, was admitted to Royal Melbourne Hospital on 30 May 2009 diagnosed as suffering a large anterior myocardial infarct. He remained in hospital until his death on 13 June 2009.

The deceased left a Will dated 3 June 2009 naming Shirley Ann Hodge as Executrix and sole beneficiary. The estate of the deceased consists of the property (valued at $407,000), personal estate in Victoria to the value of $8211.73 and liabilities amounting to $1736.88. An order for the grant of probate was made on 15 October 2009.

The plaintiffs are the two children (Raelene and Matthew Matejka) and sister (Karin Matejka) of the deceased. It appears that a draft Will was prepared for the deceased in 2002, by Williams Hunt Legal Practitioners (see ‘RM9’ to the affidavit of Raelene Veronica Matejka dated 6 December 2009). The draft Will provided for the deceased’s estate to be divided equally among the Applicants.

A preliminary point is taken with respect to the standing of the plaintiffs. In essence it is submitted that at this stage it is unknown whether there is any prior Will in existence, if there were such a Will then a third party may have an interest and would not have been heard. It is also submitted that it is not known what position will be put in the event that the plaintiffs are successful in their substantive application and probate in respect of the Will of 3 June 2009 is cancelled.

In relation to the first aspect of the defendants argument there is no evidence presently before the court which would lead it to suspect that there is a third party or…

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 Matejka v Hodge

Details

AGLC: Matejka v Hodge [2009] VSC 580
Case: [2009] VSC 580
Decision Date: 11 December 2009

CaseChat Overview and Summary

Matejka v Hodge is a case where the plaintiff sought to have a grant of probate cancelled and an interlocutory injunction to restrain the executrix from selling the property of the estate. The dispute arose under the Administration and Probate Act and was heard by the Supreme Court of Queensland. The plaintiff, Matejka, argued that the executrix, Hodge, was not entitled to the grant of probate as the deceased's will did not comply with the necessary legal requirements. Additionally, Matejka contended that Hodge intended to sell the estate's property, which would result in a significant financial loss for the estate and its beneficiaries.

The legal issues before the court were whether the executrix was entitled to the grant of probate and whether an interlocutory injunction should be granted to prevent the executrix from selling the estate's property. The court had to consider the balance of convenience and the potential prejudice to the parties if the injunction was or was not granted. The court also had to determine if there was a serious question to be tried regarding the validity of the will and the executrix's entitlement to the grant of probate.

In its reasoning, the court found that there was a serious question to be tried regarding the validity of the will, and therefore, the executrix was not entitled to the grant of probate. The court further held that the balance of convenience favoured granting the interlocutory injunction. The court considered that the potential financial loss to the estate and its beneficiaries if the property was sold outweighed any prejudice that might be caused to the executrix by the injunction. Consequently, the court granted the interlocutory injunction to restrain the executrix from selling the property of the estate.

As a result of the court's decision, the executrix was restrained from selling the estate's property pending the outcome of the main proceedings. The court's decision highlights the importance of ensuring that the requirements of a valid will are met and the need for careful consideration of the balance of convenience when granting interlocutory injunctions in cases involving estate administration.

Orders