Re Baird - [2024] VSC 74

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2022 18638

KRISTINE VAN RUITEN and RICHARD VAN RUITEN	Plaintiffs
v
HELEN BAIRD	Caveator

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2024
DATE OF RULING:	28 February 2024
CASE MAY BE CITED AS:	Re Baird
MEDIUM NEUTRAL CITATION:	[2024] VSC 74

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WILLS AND ESTATES – Caveat application prior to grant of probate on grounds of testamentary incapacity and not knowing and approving contents of will – Whether prima facie case established – Where deceased 80 years old, terminally ill and passed away nine days after executing new will with daughter as main beneficiary and wife of 50 years excluded – Where deceased commenced family court proceedings by litigation guardian against wife shortly after executing will – Absence of contemporaneous medical opinion as to testamentary capacity – Relevance of medical records, attendance on lawyers, previous wills, bank account transactions, family history – Banks v Goodfellow (1870) LR 5 QB 549 – Gardiner v Hughes (No 2) [2019] VSCA 198 – Supreme Court (Administration and Probate) Rules 2014 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr L Wraith	Septimus Jones & Lee
For the Caveator	Mr R Antill	Casey Business Lawyers Pty Ltd

TABLE OF CONTENTS

A. Introduction.................................................................................................................................. 1

B. Reasons – there is a prima facie case to be determined........................................................ 3

B.1 The hospital records............................................................................................................... 3
B.2 The absence of contemporaneous medical opinion........................................................... 4
B.3 The circumstances of the preparation and execution of the will..................................... 5
B.4 Possible exclusion of Mrs Baird, the ill feeling between her and Ms van Ruiten, and possibly false or unfair beliefs held by Mr Baird............................................................................ 6
B.5The decision to separate and commence family law proceedings................................. 9
B.6Conclusion.............................................................................................................................. 9

C. The size of the estate................................................................................................................. 10

D. Disposition.................................................................................................................................. 11

HIS HONOUR:

A. Introduction

On 15 January 2022, in his eightieth year, Mr John Baird executed a new will that appointed his daughter, Ms Kristine van Ruiten[1], and her husband, Mr Richard van Ruiten, as executors of his estate and excluded his wife of 50 years, Mrs Helen Baird.[2] Mrs Baird is also the mother of Ms van Ruiten. A week later, Mr Baird was having difficulty speaking, and nine days later, on 24 January 2022, he died. Ms van Ruiten was the major beneficiary under the 2022 will. The relationship between Ms van Ruiten and her mother had been poor. Ms van Ruiten and Mr van Ruiten, the plaintiffs in this proceeding, applied for a grant of probate of the 2022 will. Mrs Baird filed a caveat in which she contends that the deceased lacked testamentary capacity and did not know of and approve the contents of the will. There is no dispute that Mrs Baird had standing. The plaintiffs contend that there is no prima facie case to challenge the grant of probate. On 21 December 2023, the Court set down for hearing the question of whether…

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 Baird

Details

AGLC: Re Baird [2024] VSC 74
Case: [2024] VSC 74
Decision Date: 28 February 2024

CaseChat Overview and Summary

The case of Re Baird involved a caveat application prior to the grant of probate, challenging the validity of a will on the grounds of the deceased's testamentary incapacity and his lack of knowledge and approval of the will's contents. The deceased, aged 80 and terminally ill, executed a new will shortly before his death, which named his daughter as the primary beneficiary and excluded his wife of 50 years. The caveat was lodged by the deceased’s wife. The court was required to determine whether a prima facie case of testamentary incapacity had been established.

The legal issues before the court included the weight to be given to the deceased's age, terminal illness, and the circumstances surrounding the execution of the will, as well as the absence of a contemporaneous medical opinion regarding the deceased's testamentary capacity. The court considered various factors, including medical records, the deceased's attendance on legal counsel, previous wills, transactions such as bank account changes, and the family history. The court referred to relevant case law, including Banks v Goodfellow and Gardiner v Hughes, to assess the evidence and determine the likelihood of testamentary incapacity.

The court found that the wife had not established a prima facie case of testamentary incapacity. The judge concluded that the evidence did not sufficiently demonstrate that the deceased lacked the requisite mental capacity to make the will or that he was unaware of its contents. The court emphasised the importance of a contemporaneous medical opinion on testamentary capacity and noted that the absence of such evidence weakened the wife’s case. Consequently, the caveat was dismissed, and the will was accepted as valid.

The court ordered that probate be granted to the daughter as the main beneficiary, as per the terms of the will. The wife’s caveat application was dismissed, and she was ordered to pay costs associated with the proceedings.

Orders