Nicholson v Kollias

[2005] VSC 473

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION
IN ITS PROBATE JURISDICTION

No. Prob. 15 of 2005

IN THE MATTER of the Will and Estate of ELSBETH JEAN DYKE (Deceased)

Application by:

COLIN RODERICK NICHOLSON AND JULIE ANNE NICHOLSON	Plaintiffs
v
BRIAN CHARLES KOLLIAS AND ORS	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 NOVEMBER 2005
DATE OF RULING:	30 NOVEMBER 2005
CASE MAY BE CITED AS:	NICHOLSON & ANOR V KOLLIAS & ORS
MEDIUM NEUTRAL CITATION:	[2005] VSC 473

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WILLS AND CODICILS – Application for revocation of grant of probate – Alleged lack of testamentary capacity – Whether plaintiffs have standing – Second plaintiff a beneficiary under an earlier Will but not seeking probate of that Will – In the Will of Adcock (1904) 26 ALT 127 followed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R. Kendall QC with Mr A. Panna	Hicks & Oakley
For the Defendants	Mr W. Martin QC with Mr N. Jones	Hunt, McCullough, Kollias & Co.

HIS HONOUR:

1. Elsbeth Jean Dyke died on 25 May 2004.  She was aged 84.  She was unmarried and had no children.  She was the first cousin of the mother of the two present plaintiffs, Colin Roderick Nicholson and Julie Anne Nicholson.  She left a will dated 12 January 2001.  That will has since been admitted to probate.  The plaintiffs seek to have probate revoked and another will admitted to probate.

1. By summons issued on 29 August 2005 the plaintiffs seek, first, an order that the grant of probate made to the defendants on 11 October 2004 be revoked and that the said grant be delivered to the Registrar for cancellation.  The plaintiffs further, by the same summons, seek that probate be granted (either to National Trustees Executors & Agency Company of Australia Limited or to a trustee company authorised under the Trustee Companies Act 1984) of a will dated 10 May 1985.

1. The latter will is the first known will - at least so far as the evidence before me discloses - made by the deceased.  The evidence also discloses that on 20 September 1999 the deceased made a second will, the third being the will of 12 January 2001.  Between the second and third wills the deceased made two codicils dated respectively 28 March 2000 and 18 December 2000.

1. A challenge is now made by the defendants to the standing of the plaintiffs.  The relationship between the plaintiffs and the deceased is not in dispute.  Their position in relation to her estate is very much an issue.  The defendants point out that the first plaintiff, Colin Nicholson, although a relative, is not a beneficiary under the will which has been admitted to probate and, indeed, is not a beneficiary under either of the two earlier wills.

1. In those circumstances, it seems to me that Colin does not have standing as a plaintiff in this proceeding.  No authority has been put before me to suggest that someone with no interest other than the blood relationship which existed between the deceased and the first plaintiff has standing to pursue a claim of the kind presently before me.

1. The real dispute centres upon the position of the second plaintiff, Julie Nicholson.  She was not a beneficiary under the will of 10 May 1985 nor was she a beneficiary under the will admitted to probate, that is, the will of 12 January 2001.  She was named as a beneficiary under the will of 20 September 1999.  Pursuant to that will she, had the will been admitted to probate, would have received - and if the will is admitted to probate will receive - a sum of $10,000.

1. In those circumstances, it was submitted on behalf of the defendants that the second plaintiff did not have an interest in this proceeding sufficient to sustain her position as plaintiff.  I was taken to a number of authorities dealing with the question of standing in situations comparable to those that presently obtain; and I heard helpful submissions from senior counsel for both the plaintiffs and the defendants on this point.  In the end, it seems to me that the authority most directly relevant is that upon which the plaintiffs principally relied.

1. The case to which I refer is In the Will of Adcock[1].  In that case the caveatrix was a niece of the husband of the testatrix.  She was bequeathed a legacy of £50 by the testatrix in the will in respect of which the caveat was lodged.  The question before the court was whether she had an interest sufficient to sustain the caveat.  It was held that she did.  That finding is of relevance here because had the will not been admitted to probate the bequest of £50 would not have been received by the caveatrix:  she would have then received nothing.  It is not surprising that in those circumstances a challenge was made to her position.  The judgment of Hodges J in her favour nevertheless remains good law.  His Honour said at p.127 of the report:

"I think any individual has a right under the relevant section of the Administration of Probate Act 1890 (s.18) to come to the court and say 'Although this will purports to give me certain benefits, I cannot honestly take those benefits.  I know that at the time that the testator proposed to give me these advantages he could not, according to the law of the country, legally dispose of his own property'."

[1](1904) 26 ALT 127

1. It is evident even from that short passage that the challenge to the will in that case went, as it does in this, to the testatrix's testamentary capacity.  The plaintiffs wish to put evidence before the court to establish, as they would have it, that when the will of 12 January 2001 was made the deceased lacked testamentary capacity.

1. If that is where the matter rested there would be no doubt that the second plaintiff would have an interest sufficient to sustain her position as such.  If the present position continues to obtain she will receive nothing from the estate of the deceased.  If, however, probate is revoked then it will be necessary to examine the status of the earlier will of 20 September 1999.  If that is admitted to probate the second plaintiff will receive $10,000.00.

1. It is here that an unusual circumstance arises.  The second plaintiff will, as I apprehend her position, urge the court, if it comes to this, that the will of 20 September 1999 is also affected by the lack of testamentary capacity of the maker of the will; that is, of course, the deceased.  So much is apparent not only from the affidavit material presently before me but, more particularly, from the terms of the summons of 29 August to which I have already referred.  As I noted, the plaintiffs by that summons seek an order that the will of 10 May 1985 be admitted to probate with a trustee company as the trustee and executor.  The defendants submit that the effect of the position of the second plaintiff is, in effect, to negate any interest she has in the outcome of any proceeding to revoke the presently extant probate.

1. Since the second plaintiff will receive nothing if the will of 10 May 1985 is admitted to probate and since she receives nothing under the will of 12 January 2001, her interest (the defendants submit, in effect) is purely that of an intermeddler.  The courts have set their face consistently against intermeddlers.  It does no one any advantage if those without interest in the outcome of litigation are permitted to indulge in it as parties to it or, indeed, as the law against champerty and maintenance once provided, if they supported litigation by such things as the contribution of money.

1. That being so, it nevertheless remains to me to determine whether, in the circumstances which presently obtain, the second plaintiff is properly characterised as an intermeddler or whether, pursuant to the reasoning which attracted Hodges J in In the Will of Adcock she should be treated as a person who has an appropriate interest in the litigation.

1. In my opinion, the second plaintiff does have an interest sufficient to sustain her position as a plaintiff.  Had there been no will made in May 1985 there can be of course no question but that as a beneficiary under the will of 20 September 1999 but not a beneficiary under the will of 12 January 2001 the second plaintiff would have had standing to challenge the grant of probate in relation to the latest will.  Equally, given the authority of the case of Adcock, she would have had standing to challenge probate being granted to the will dated 20 September 1999 just as the caveatrix had standing to challenge the will in Adcock's case.

1. In my opinion, the fact that there is evidence of a will of May 1985 should not alter the position which would have obtained had there been no such will and had the question been whether the September 1999 will or the January 2001 will should be admitted to probate.  And, likewise, she should not be adversely affected by the circumstance that there is in existence the will of 12 January 2001 which has already been admitted to probate.  The more relevant circumstance, it seems to me, is that the second plaintiff was a beneficiary under one of the relevant wills and she therefore has an interest in the proper devolution of the deceased's testamentary estate.

1. I appreciate that in certain circumstances the ruling that I have just outlined would perhaps allow a pure intermeddler to become and remain a party to litigation of this kind.  That is a risk.  There is also a risk, however, that if the decision were to the contrary, an estate which a testator intended to be administered in a certain way when of sound mind would be administered in quite a contrary way pursuant to a will made when the testator was not of testamentary capacity merely because there were no persons qualified to challenge the later will.  That would be a regrettable circumstance.

1. It seems to me that if there were any possibility of that result in this case then the fact that the second plaintiff is prepared to make an appropriate challenge to the present position is one in respect of which the Court should not stand in the way.  For those reasons I rule that the first plaintiff does not have standing to pursue this litigation but the second plaintiff does have such standing.

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