Re Anderson - [2017] VSC 338

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2016 09752

IN THE MATTER of the will and estate of LORNA LOUISE ANDERSON, deceased

BETWEEN:

ANTONY CHRISTOPHER HILL	Plaintiff
v
ANNETTE LEE ROWAN and SUSAN HARTIGAN	Applicants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2017
DATE OF JUDGMENT:	16 June 2017
CASE MAY BE CITED AS:	Re Anderson
MEDIUM NEUTRAL CITATION:	[2017] VSC 338 First Revision 16 June 2017

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PROBATE — Application for revocation of grant of probate — Where applicants required to file particulars of grounds of objection — Where applicants delayed in making application — Whether amended grounds of objection establish a prima facie case — Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 — Ridges v Watson (Unreported, Supreme Court of New South Wales, Powell J, 1 May 1992).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A J Verspaandonk	McCluskys
For the Applicants	Mr J Rizzi	Batten Sacks
For the non-party, Janette Williams	Mr N J McOmish	Armstrong Legal

HER HONOUR:

Background

Lorna Louise Anderson (‘the deceased’) died on 23 April 2016 aged 97 years. The deceased had no children.

By her will dated 28 May 2015 (‘the will’), the deceased appointed the plaintiff as her executor and trustee. She devised her property in Albert Park to four of her nieces and left the residue of her estate to the applicants, who are also her nieces. The solicitors for the plaintiff prepared the will and witnessed the execution of the will by the deceased.

Probate of the deceased’s will was granted to the plaintiff on 8 July 2016. The principal asset of her estate is her Albert Park property.

The deceased’s penultimate will dated 9 September 2010 and a codicil dated 7 June 2012 left her estate to the applicants and her four nieces equally.

Procedural history of application

The applicants seek revocation of the grant of probate of the deceased’s will on three grounds:

(a) the deceased lacked testamentary capacity shortly before and at the time of the execution of her will dated 28 May 2015;

(b) the deceased executed her will due to the undue influence, intimidation and coercion on the deceased by two of her nieces, Janette Maree Williams (‘Janette’) and Michelle Norma Luca (‘Michelle’); and

(c) the will is void ab initio because it was obtained by fraud on the part of Janette and Michelle.

The applicants’ summons dated 16 January 2017 alleged the first two grounds of objection. On 21 March 2017, the applicants filed particulars of their first two grounds of objection.

The Court was satisfied that the applicants had established a prima facie case for the first ground of objection, but not for the second ground. Orders were made on 31 March 2017 for the applicants to file proper particulars of the ground of undue influence. The applicant filed those particulars on 5 April 2017. The adequacy of those particulars was adjourned…

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 Re Anderson

Details

AGLC: Re Anderson [2017] VSC 338
Case: [2017] VSC 338
Decision Date: 16 June 2017

CaseChat Overview and Summary

The case of Re Anderson involved an application for the revocation of a grant of probate. The applicants sought to revoke the grant of probate due to concerns about the validity of the will. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court centred on whether the applicants had established a prima facie case for the revocation of the grant of probate. The applicants had delayed in making their application, and were required to file particulars of the grounds of objection. The court needed to consider whether the amended grounds of objection were sufficient to establish a prima facie case, and whether the delay in making the application was a bar to the revocation of the grant of probate.

The court found that the amended grounds of objection did not establish a prima facie case for the revocation of the grant of probate. The applicants had failed to provide sufficient evidence to support their claims, and had not shown that there was a reasonable possibility that the will was invalid. The court also noted that the delay in making the application was a relevant factor to consider in determining whether the applicants were entitled to the relief they sought. Ultimately, the court held that the application for the revocation of the grant of probate should be dismissed.

The court ordered that the application for the revocation of the grant of probate be dismissed, with costs to be paid by the applicants. The court also noted that the delay in making the application was a relevant factor in its decision, and that the applicants had not established a prima facie case for the revocation of the grant of probate.

Orders