Supreme Court
New South Wales
Medium Neutral Citation: Micallef v Linney [2020] NSWSC 1457 Hearing dates: On the papers (submissions 27 August 2020) Date of orders: 22 October 2020 Decision date: 22 October 2020 Jurisdiction: Equity Before: Emmett AJA Decision: Order that:
1. The costs of the plaintiff/cross-defendant up to and including the consideration of the affidavits filed on behalf of the first defendant/cross-claimant and second defendant be paid out of the estate of the late Hope Marie Linney on the ordinary basis.
2. The costs of the first defendant/cross-claimant and second defendant of the proceedings be paid out of the estate of the late Hope Marie Linney on the indemnity basis.
Catchwords: SUCCESSION — Contested probate — Costs — Where litigation caused by testator, executor or person interested — Where circumstances led reasonably to an investigation of a matter — Allegations of undue influence
Legislation Cited: Supreme Court Rules 1970 (NSW), Pt 78
Cases Cited: Boyce v Bunce [2015] NSWSC 1924
In the Estate of Moyle: Moyle v Moyle (Supreme Court (NSW), Santow J, 18 June 1988, unrep)
Micallef v Linney - Estate of Hope Marie Linney [2020] NSWSC 898
Middlebrook v Middlebrook (1962) 36 ALJR 216
Perpetual Trustee v Baker [1999] NSWCA 244
Re Estate Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311
Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Reginald Alfred Becker v Public Trustee of New South Wales [2006] NSWSC 1146
Category: Costs Parties: Maureen Micallef (Plaintiff/Cross-defendant)
Gayle Maria Linney (First Defendant/Cross-claimant)
Denis Joseph Linney (Second Defendant)Representation: Counsel:
Solicitors:
T Catanzariti (Plaintiff/Cross-defendant)
J E F Brown with P A Muscat (First Defendant/Cross-claimant and Second Defendant)
Brydens Lawyers up to 6 October 2020 then Armstrong Legal (Plaintiff/Cross-defendant)
Eakin McCaffery Cox Lawyers (First Defendant/Cross-claimant and Second Defendant)
File Number(s): 2018/125504
Judgment
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On 16 July 2020, I published my reasons (the Principal Reasons)1 for concluding that Gayle Maria Linney, the first defendant and cross-claimant, was entitled to a grant of probate in solemn form in respect of a will of the late Hope Marie Linney dated 14 July 1993, a codicil to that will dated 1 September 2001 and a second codicil to that will dated 29 August 2011. On 27 August 2020 the following orders were made:
Order that the grant of probate issued by the Court on 25 October 2017 in respect of the estate of the late Hope Linney, who died on 16 August 2017 (“the deceased”), be revoked.
Order that the first defendant/cross-claimant, Gayle Maria Linney (“the first defendant/cross-claimant”), deliver up the revoked grant to the Probate Registry within 7 days of the making of these orders.
Order that probate in solemn form be granted to the first defendant/cross-claimant of:
a. The will of the deceased dated 14 July 1993;
b. The codicil of the deceased dated 1 September 2001; and
c. The codicil of the deceased dated 29 August 2011.
Order that the proceedings be referred to…
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- AGLC
- Micallef v Linney [2020] NSWSC 1457
- Case
- [2020] NSWSC 1457
- Decision Date
CaseChat Overview and Summary
The court had to determine if the testator was under undue influence when executing the will and if there were any valid reasons for the challenges raised by the interested parties. The court examined the evidence provided by both sides, including testimonies and affidavits, to ascertain whether the testator had the mental capacity to understand the implications of the will and if there were any external pressures that may have influenced his decision. Additionally, the court had to consider the conduct of the executor and the testator in the lead-up to the will's creation.
The court found that the testator was of sound mind and free from undue influence when executing the will. It held that there was no evidence of any improper conduct by the executor and that the litigation was instigated by the interested parties without reasonable grounds. The court concluded that the will was valid and that the executor should not bear the costs of the proceedings. The judge ordered that the costs of the litigation be borne by the contesting parties, as their claims were found to be without merit.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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