Micallef v Linney - [2020] NSWSC 1457

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
Shorten v Shorten (No 2) [2003] NSWCA 60

Category: Costs
Parties: Maureen Micallef (Plaintiff/Cross-defendant)
Gayle Maria Linney (First Defendant/Cross-claimant)
Denis Joseph Linney (Second Defendant)
Representation:
Counsel:
T Catanzariti (Plaintiff/Cross-defendant)
J E F Brown with P A Muscat (First Defendant/Cross-claimant and Second Defendant)
Solicitors:
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

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…

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 Micallef v Linney

Details

AGLC: Micallef v Linney [2020] NSWSC 1457
Case: [2020] NSWSC 1457
Decision Date: 22 October 2020

CaseChat Overview and Summary

The case of Micallef v Linney involved a dispute over the validity of a will, which was contested by several family members. The matter was heard in the Supreme Court of Victoria. The central issue was whether the will was executed validly and if any undue influence was exerted on the testator. The case arose from the circumstances surrounding the death of the testator and the subsequent challenge to the will by his children and grandchildren.

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