Re Estate Capelin, deceased

Case [2022] NSWSC 236


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Re Estate Capelin, deceased [2022] NSWSC 236
Hearing dates: 14 February 2022
Decision date: 08 March 2022
Jurisdiction:Equity
Before: Lindsay J
Decision:

ORDERS providing for dismissal of a motion for an order that a caveat cease to be in force, and for case management of a contested probate suit

Catchwords:

SUCCESSION — Contested probate — Practice and procedure — Caveats — Caveat against grant —Notice of motion for an order that caveat cease to be in force — Whether there is a doubt as to whether the will should be admitted to probate sufficient to warrant investigation in a contested probate suit — Caveator’s case not frivolous but bona fide and reasonable

Legislation Cited:

Civil Procedure Act 2005 NSW

Evidence Act 1995 NSW

Probate Act 1890 NSW

Probate and Administration Act 1898 NSW

Succession Act 2006 NSW

Supreme Court Rules 1970 NSW

Supreme Court Act 1970 NSW

Uniform Civil Procedure Rules 2005 NSW

Cases Cited:

Azzopardi v Smart (the estate of Alice Ann Smart) (1992) 27 NSWLR 232

Bailey v Bailey (1924) 34 CLR 558

Banks v Goodfellow (1870) LR 5 QB 549

Bates v Messner and (1967) 67 SR (NSW) 187

Beatson v Perry (1906) 6 SR (NSW) 167; 23 WN (NSW) 51

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148

Dickman v Holly [2013] NSWSC 18

Estate of Robyn Alice May Linworth [2021] NSWSC 334

Estate of Theresa Katalinic [2020] NSWSC 805

Estate Rofe [2021] NSWSC 257

Gardiner v Hughes (2017) 54 VR 394

Gertsch v Roberts (1993) 35 NSWLR 631

Hall v Hall (1868) LR 1 P&D 481

Hay v Simpson (1890) 11 LR (NSW) Eq 109)

In Estate of Katalinic [2020] NSWSC 805

In Estate of Linworth [2021] NSWSC 334

In the Goods of William Loveday [1900] P 154

In the Will of Dixon (1909) 9 SR (NSW) 674; 26 WN 130

In the Will of Farrell (1891) 8 WN (NSW) 32

In the Will of Goo Tin (1910) 27 WN (NSW) 184

In the Will of O’Driscoll (1929) 29 SR (NSW) 559; 46 WN (NSW) 176

In the Will of R C Maddocks (1891) 8 WN (NSW) 32

Lewis v Lewis [2021] NSWCA 168

Mekhail v Hana [2019] NSWCA 197

Nobarani v Mariconte (2018) 265 CLR 236

Nock v Austin (1918) 25 CLR 519;

Petrovski v Nasev [2011] NSWSC 1275

Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284

Re Estates Brooker-Pain and Soulos [2019] NSWSC 871

Timbury v Coffee (1941) 66 CLR 277

Tobin v Ezekiel (2012) 83 NSWLR 757

Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136

Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492

Weinstock v Beck; In the Estate of Weinstock [2007] NSWSC 193; (2007) 1 ASTLR 156

Wilson v Wilson [2017] NSWSC 1669

Wingrove v Wingrove (1885) 11 PD 81

Winter v Crichton (1991) 23 NSWLR 116

Worth v Clasohm (1952) 86 CLR 439

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Details
AGLC
Re Estate Capelin, deceased [2022] NSWSC 236
Case
[2022] NSWSC 236
Decision Date

CaseChat Overview and Summary

In the matter of the estate of Capelin, deceased, the Supreme Court of Victoria was tasked with deciding a contest over the validity of a will. The dispute arose between the deceased's family members who sought to contest the will and the executor who sought to have the will admitted to probate. The caveator, one of the contesting parties, sought an order that the caveat against the grant of probate cease to be in force.

The court was required to determine whether the caveator's doubts as to the validity of the will were sufficient to warrant an investigation in a contested probate suit. The caveator argued that their case was not frivolous, but rather bona fide and reasonable. The executor, on the other hand, contended that the caveator's doubts were not sufficient to warrant an investigation and that the caveat should be dismissed.

The court found that the caveator's doubts as to the validity of the will were indeed bona fide and reasonable. The court was satisfied that there was a sufficient doubt as to the validity of the will to warrant an investigation in a contested probate suit. The court held that the caveator's case was not frivolous and that their doubts were not unreasonable. Accordingly, the court dismissed the executor's application for an order that the caveat cease to be in force. The court found that the caveator's doubts were sufficient to warrant an investigation into the validity of the will.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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