Re Estate GR, deceased - [2015] NSWSC 1584

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re Estate GR, deceased [2015] NSWSC 1584
Hearing dates: 26 October 2015
Date of orders: 26 October 2015
Decision date: 26 October 2015
Jurisdiction: Equity - Probate List
Before: Lindsay J
Decision:
Orders for a penultimate will to be admitted to probate, reserving to an absent party a limited entitlement to move the Court for an order that the grant be revoked and an order that the last (controversial) will be admitted to probate instead.

Catchwords: SUCCESSION – Probate and letters of administration – Grants of probate and letters of administration – Jurisdiction and discretion of court – Controversy attaching to validity of final will – Passing over final will - Grant of probate in common form of penultimate will – Reservation of liberty to apply for revocation of grant – Time to make such application limited
Legislation Cited: New South Wales Trustee and Guardian Act 2009 NSW
Cases Cited: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
IR v AR [2015] NSWSC 1187
Texts Cited: -
Category: Principal judgment
Parties: IR: A son of the Deceased
AR: A son of the Deceased
MR: The Widow of the Deceased (by the NSW Trustee as her financial manager)
NSW Trustee: Administration of the Estate of the Deceased, by an interim grant.
Public Guardian: Guardian of MR
Representation:
Counsel:
IR: MK Meek SC and G Huxley
AR: Non-appearance
MR: C Phang, solicitor (NSW Trustee)
NSW Trustee: C Phang
Public Guardian: C Phang
Solicitors:
IR: Uther Webster & Evans
MR: NSW Trustee and Guardian (C Phang)
Public Guardian: NSW Trustee (C Phang)

File Number(s): 2015/00188706

Judgment – EX TEMPORE

These proceedings concern the estate of GR who died on 15 May 2015, aged 86, leaving:

a widow MR, aged 83 and presently a “protected person” within the meaning of the New South Wales Trustee and Guardian Act 2009 NSW by virtue of orders made by the Guardianship Division of NCAT, varied by orders of this Court made on 24 August 2015, the subject of reasons for judgment published as IR v AR [2015] NSWSC 1187 (21 August 2015, with addendum 31 August 2015);

two adult sons, IR (born in 1961, now aged 54 years) and AR (born in 1969, now aged 46 years);

a will dated 27 March 2007; and

a will dated 3 March 2015.

Both wills provide for the widow of the deceased to be his sole beneficiary. The earlier will appoints his widow as executrix. The latter will appoints AR as executor.
There is no dispute as to the validity of the earlier will but for its purported revocation by the latter will.
Controversy attaches to the validity of the later will because:

its execution was evidently secured by AR, apparently in the belief that he is beneficially entitled to the whole of the estates of his parents by virtue of a controversial “life contract” allegedly executed by his parents, in his favour, in Croatia.

some time before the 2015…

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 Estate GR, deceased

Details

AGLC: Re Estate GR, deceased [2015] NSWSC 1584
Case: [2015] NSWSC 1584
Decision Date: 26 October 2015

CaseChat Overview and Summary

The parties involved in this case are the estate of GR, who recently passed away, and several potential beneficiaries. The nature of the dispute centres around the validity of GR's final will and whether it should be granted probate or if an alternative will should be considered. The court handling this matter is the Supreme Court of Victoria. The legal issues before the court were to determine the validity of the final will, and if it was invalid, whether to grant probate to the penultimate will or issue letters of administration with the will annexed. The court was also required to consider whether to reserve the liberty to apply for revocation of the grant of probate in the event that new evidence or arguments emerged to challenge the validity of the penultimate will.

The court examined the circumstances surrounding the creation of the final will and the arguments presented by the parties. It found that there was sufficient controversy over the validity of the final will to warrant not granting probate to it. The court then considered the penultimate will, which was not disputed, and decided that it should be granted probate in the common form. The court reserved its liberty to allow an application for revocation of the grant of probate if new evidence or arguments arose to challenge the validity of the penultimate will. The court also set a time limit for making such an application.

The final orders of the court were to grant probate in the common form of the penultimate will and reserve the liberty to allow an application for revocation of the grant of probate within a specified time period. This decision ensures that the estate is properly administered while allowing for the possibility that new evidence may emerge to challenge the validity of the penultimate will. The court's decision provides clarity for the parties involved and ensures that the estate is dealt with in a fair and efficient manner.

Orders