Matejka v Hodge
[2009] VSC 580
•11 December 2009
| 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 parties with an interest. Even if such persons emerge they could seek to vary any order I may make and liberty to apply would be provided for that purpose.
In relation to the second point there appear, at present, to be two possibilities. Either the plaintiffs will propound the 2002 Will referred to earlier or it will be contended that the deceased died intestate. In relation to the first scenario each of the plaintiffs have a sufficient interest in the proceedings and in relation to the second the deceased’s two children, Raelene and Matthew, would have a sufficient interest but Karin Matejka would not. But on any view of it at least two of the plaintiffs would have standing to bring the proceedings.
Given the interlocutory nature of these proceedings that is, in my view, sufficient. I need not finally determine the standing of the deceased’s sister and it is not appropriate to do so in circumstances where it is not yet known what position will be put in the event that the current probate order is cancelled.
I now return to the injunction application.
For an interlocutory injunction to be granted it must be demonstrated that,:
· there is a serious issue to be tried; and
· that the balance of convenience favours the grant of the injunction.
To establish that the there is a ‘serious question to be tried’ the plaintiff must establish a sufficient prospect of success to warrant the preservation of the status quo in all the circumstances (including the nature of the underlying cause of action). It is not necessary for the plaintiffs to establish that it is more likely than not that they will succeed at trial.
As challengers to the grant of probate the plaintiffs will be required to explain their failure to caveat and to demonstrate that there is a question about the validity of the Will, that is, that there is ‘something to go on’ in opposition to the issue of probate and their opposition is ‘not merely frivolous and vexatious, not merely dilatory, but that there is a case for investigation’.[1] The plaintiffs must then persuade the court to exercise its discretion[2] in favour of revoking the grant of probate.
[1]Re Egan [1963] VR 318 at 320; Julie Ann Nicholson & Ors v Timothy Peter Knaggs & Ors [2009] VSC 64.
[2]Revocation being a discretionary remedy, Nicholson ibid at [79].
Once the Court is satisfied that an order for revocation is warranted the propounder of the Will bears the same onus as she would otherwise have had in propounding the Will and seeking a grant of probate.[3]
[3]Kantor v Vosahlo [2004] VSCA 235 at [3] per Ormiston JA.
In this matter the defendant effectively did not contend that there was not a serious issue to be tried.
The plaintiff’s application for the cancellation of probate is based on the deceased’s prior statements of intention that the property remain in the Matejka family (eg see affidavit of Raelene Matejka at paras 10 and 40-45) and the contention that the deceased lacked testamentary capacity at the time he executed the Will dated 3 June 2009.
At the time the deceased made the Will in question he was seriously ill in hospital. The deceased’s medical records disclose that on 2 and 3 June his mood was low and depressed, he was tearful and expressed a wish to die. A social worker had a discussion with the deceased on the afternoon of 3 June and recommended a psychiatric review. This was around the time that the Will was said to be have been executed.
The deceased’s medical records also show that he was given a range of medications during his period in hospital (including morphine). The timing of this medication and its impact on his capacity is not disclosed by the material presently before the court.
I also note that the deceased had previously spent some time in psychiatric care and had been diagnosed with paranoid psychosis and schizophrenia in the 1990s.
On the material before me I am satisfied that there is a serious issue to be tried as to whether the deceased lacked testamentary capacity at the time of the making of his last Will on 3 June 2009. I now turn to consider the balance of convenience.
The approach to be taken to the balance of convenience was recently considered by the Court of Appeal in Bradto Pty Ltd v Victoria[4] in which Maxwell P and Charles JA said that:
“…the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party who fails to establish his right at trial, or in failing to grant an injunction to a party who succeeds at trial.”
[4](2006) 15 VR 65 at 73 per Maxwell P and Charles JA.
In her affidavit Raelene Matejka says that the property was the family home and has ‘very special significance’ to her family. It is said that the loss of this house ‘would be irreparable’.[5]
[5]Paras 8-11 Raelene Matejka’s affidavit.
Matthew Matejka agrees with and adopts the matters to which his sister deposes in her affidavit (see paragraph 4 affidavit of Matthew Matejka).
The property was purchased by the deceased and his wife in 1974. Raelene and her brother lived at the property with their father and grandmother for about 18 months around 1978. At that time Raelene was 5 or 6 years old and Matthew was 7 or 8 years old. Raelene says that she often visited her father at the home (at para 8 of her affidavit).
The defendant submits that the balance of convenience tells against the grant of the relief sought. Two main points are put in this regard.
First, it is said that the evidence does not establish that the plaintiffs have a lasting attachment to the property. Counsel points to the relatively short period during which Raelene and Matthew lived in the house, their ages at the relevant time and that they did not enjoy a close relationship with the deceased. Reference is also made to the fact that Matthew Matejka has lived overseas since 2001 and there is no suggestion that he intends to return to Australia. The defendant also submitted that at para 13 in his affidavit Matthew says that the deceased spoke of his intention of selling the house and moving to the country.
In relation to the last point I am not persuaded that the relevant part of Matthew’s affidavit supports the submission made. The relevant parts of paragraph 13 of Matthew’s affidavit deals with a telephone conversation he had with the deceased in January 2007. It states (relevantly):
“If I can get the house back, then you and Raelene can fix it up or something after I die, maybe Raelene or even Karin could live in it. I did want to move to the country or something, but I can’t do it unless I can get the house back. If I do move, you and Raelene and Karin can have that when I die.”
I am not persuaded that this passage supports a contention that the deceased intended to sell the property.
I accept that the plaintiffs did not have a close relationship with the deceased and that Raelene and Matthew only resided in the home for a relatively short period. But it is important to note that the period during which they resided in the deceased’s house occurred at a significant point in their lives. In 1974 the deceased had placed Raelene and Matthew into the care of the Mission of St James and St John as he was unable to care for them following the breakdown of his marriage. They remained in the care of the Mission until April 1978 at which time they returned to live with the deceased at the family home. In August 1979 Raelene and Matthew were both admitted to the care of the Victorian Social Welfare Department by court order on the basis of unfit guardianship.
Contrary to the submissions put on behalf of the defendant I am persuaded that two of the plaintiffs have an attachment to the property. Viewed in context it can readily be seen how the 18 month period of residence in the family home may well have been of great significance to Raelene and Matthew. It was the only significant period of time during which they were under the care of the deceased and lived with him. The balance of their childhood was, for all practical purposes, spend as wards of the State.
As Matthew says in his affidavit (at para 9),:
“The Brunswick house is special and unique to me, and Raelene as well, because it was the physical and emotional focus of our many years in wardship. No matter what happened in our family, our lives revolved around that house. It has been our emotional anchor to our family and the centre of our troubled childhood universe.”
The second balance of convenience point advanced on behalf of the defendant is the proposition that the property is a wasting asset. It is in a derelict condition and is unable to be insured. The defendant is concerned that given its dilapidated condition there is a real risk that vagrants or squatters would take occupation if the house were not sold soon, and this may give rise to a public liability risk.
I accept that these matters are relevant to the balance of convenience in this case and I have taken them into account. They are to be balanced against the significance of the property to the plaintiffs.
In my view granting the injunction carries a lower risk of injustice in the event that the plaintiffs ultimately fail to establish their case at trial. If no injunction were granted and the plaintiffs succeed at trial an award of damages would not be an adequate remedy given the significance of the family home to them.
Conversely if the substantive application fails then any loss suffered by the defendant could be compensated by an award of damages. In this context I note that the plaintiffs have proffered the usual undertaking as to damages and on the information provided would appear to have sufficient resources to fulfil such an undertaking.
For the foregoing reasons I will make an order in the form sought.
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