JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	27 February 2018
CASE MAY BE CITED AS:	Re Demediuk (No 3)
MEDIUM NEUTRAL CITATION:	[2018] VSC 86

---

PRACTICE AND PROCEDURE — Leave to amend particulars of claim — Revocation of will — Limited amendments to particulars allowed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R C Wells	Aitken Partners
For the Defendants	Mr A J Verspaandonk	Arnold Bloch Liebler

HER HONOUR:

Introduction

The plaintiff and the defendants are siblings. They are the adult children of Peter Demediuk, deceased, who died on 15 February 2013.

On 26 August 2015, the plaintiff filed an application for a grant of probate of the deceased’s will dated 27 June 2012 (‘the June will’). The defendants object to the plaintiff’s application for a grant on the grounds of revocation, alternatively, testamentary undue influence. If the revocation ground succeeds, the deceased’s estate will be distributed in accordance with the intestacy provisions of the Administration and Probate Act 1958. If the alternative ground of testamentary undue influence succeeds, the estate will be distributed in accordance with the deceased’s penultimate will dated 10 February 2012.

On 29 September 2016, the Court delivered judgment on the plaintiff’s summary dismissal application of the defendants’ ground of testamentary undue influence.[1] The Court determined that the defendants’ challenge on the ground of testamentary undue influence had no real prospect of success.[2] It did not summarily dismiss the ground as the dispute is of such a nature that only a full hearing on the merits would be appropriate.[3] Orders were then made for the defendants to provide clearer and succinct particulars of their ground of testamentary undue influence.[4]
[1]Re Demediuk [2016] VSC 587 (29 September 2016) [157].
[2]Ibid [151].
[3]Ibid [157].
[4]Ibid [158].

Orders were also made for the plaintiff to file objections to the defendants’ affidavits, as the plaintiff had foreshadowed these objections if the proceeding was not summarily dismissed. The parties reached limited agreement on the objections. More than 100 objections remained to be ruled upon by the Court. On 5 May 2017, the Court ruled that save for one paragraph, all paragraphs in five of the affidavits relied on by the defendants and the whole of the sixth affidavit were inadmissible.[5] This result makes the defendants’ reluctance or inability to concede so few of the plaintiff’s objections inexplicable.
[5] Re Demediuk (No 2) [2017] VSC 236 (5 May 2017).

Defendants’ application for leave to amend

After the ruling, the defendants sought the plaintiff’s consent to amend the particulars of their revocation ground to include an express reference to the circumstances of the deceased before and after the making of the June will. The…

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 Demediuk (No 3)

Details

AGLC: Re Demediuk (No 3) [2018] VSC 86
Case: [2018] VSC 86
Decision Date: 27 February 2018

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Re Demediuk (No 3) involved a dispute over the revocation of a will. The primary parties involved were the executors of the will and the interested parties who contested the will's validity. The court was tasked with determining the procedural aspects of allowing amendments to the particulars of the claim regarding the will's revocation. The interested parties sought to amend their particulars to include new grounds for contesting the will's validity, which the executors opposed.

The legal issue before the court was whether the interested parties were entitled to amend their particulars to include additional claims regarding the revocation of the will. The court had to balance the need for procedural fairness and the potential prejudice to the opposing party against the principle of allowing amendments to ensure just resolution of disputes. Specifically, the court needed to assess whether the proposed amendments were permissible under the applicable rules of court and whether they related back to the original cause of action.

The court held that while amendments to pleadings should be allowed where justice so requires, the granting of leave to amend must be exercised with caution. The court considered the timing of the application, the potential prejudice to the opposing party, and the relevance of the proposed amendments to the original cause of action. The court found that the interested parties could amend their particulars to include new grounds for contesting the will's revocation, but only to the extent that these amendments related back to the original cause of action. The court limited the amendments to prevent undue prejudice to the executors and to ensure that the amendment did not introduce new matters that could not have been reasonably anticipated at the time of the original pleading.

The final orders of the court allowed the interested parties to amend their particulars to include the new grounds for contesting the will's revocation, subject to the conditions set out by the court. The executors were given a specific period within which to respond to the amended particulars. This decision underscored the importance of procedural fairness and the need for courts to carefully consider the implications of allowing amendments to pleadings.

Orders