Re Falzon - [2022] VSC 55

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2021 02791

IN THE MATTER of the will and estate of CHARLES FALZON, deceased

IVONNE WENBORN

Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	15 February 2022
CASE MAY BE CITED AS:	Re Falzon
MEDIUM NEUTRAL CITATION:	[2022] VSC 55

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PROBATE — Standing of caveator to challenge validity of will — Where caveator unable to establish an interest under penultimate testamentary document — No point of principle — Gardiner v Hughes (2017) 54 VR 394

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Bridge Legal
For the Caveator	Hymans Solicitors

HER HONOUR:

Introduction

Charles Falzon (‘the deceased’) died on 25 May 2020, aged 83 years. He was survived by his wife, Elizabeth Falzon (‘Elizabeth’) and their four children: Ivonne Wenborn (‘the plaintiff’), Andre Falzon, Marcel Falzon (‘the caveator’) and Claudette Falzon.

The deceased’s will dated 7 March 2020 (‘the last will’) devises the deceased’s estate to Elizabeth and, in the event of Elizabeth not surviving the deceased by 21 days, then to the deceased’s four children in equal shares. The deceased’s estate comprises an interest in a property in Altona.

On 23 February 2021, the plaintiff applied for probate of the last will as a substitute executor, the instituted executor having renounced probate of the last will.

On 25 February 2021, the caveator filed a caveat thereby preventing anything further being done without notice to the caveator.

On 1 April 2021, the caveator filed his grounds of objection alleging:

The [last] will is not valid as it was not executed in accordance with s 7(1)(b) of the Wills Act 1997:

(a) the deceased did not have the intention of executing a will on 7 March 2020 and more precisely did not intend the document he signed in the presence of witnesses that day to be his will;

(b) the deceased did not know and was kept unaware of the nature of the document he signed on that day and which document is now produced in support of an application for a grant of probate;

(c) the deceased acted under the undue influence of the principal beneficiary of the will, his spouse Elizabeth Adrianna Falzon who:

(i) obscured the text of the document the deceased signed and physically prevented the deceased from reading said document;

(ii) verbally harassed and abused the deceased when he sought to read it and when the deceased complained he did not know the contents or nature of the document he was pressured to sign;

(iii) stated to the deceased that it was a document to enable him to access funds he held in France.

(d) the plaintiff spoke to the deceased by telephone and verbally harassed the deceased. The deceased repeated his complaint that he did not know what he was signing.

By summons filed 11 May 2021, the plaintiff sought the withdrawal of 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 Falzon

Details

AGLC: Re Falzon [2022] VSC 55
Case: [2022] VSC 55
Decision Date: 15 February 2022

CaseChat Overview and Summary

The case of Re Falzon involved the executor of the deceased's estate and a caveator who had lodged a caveat against the will. The deceased, Mr Falzon, had executed two wills, and the executor sought to have the earlier will set aside. The caveator, who had no interest in the estate under the later will, sought to challenge the validity of the later will, arguing that it was not executed properly. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the caveator had standing to challenge the validity of the later will. The court had to determine if the caveator had a sufficient interest in the estate to challenge the will, as established in previous cases such as Gardiner v Hughes. The court needed to examine the nature and extent of the caveator's interest under the earlier will and determine whether this was enough to confer standing.

The court found that the caveator did not have standing to challenge the later will. The caveator could not establish any interest in the estate under the earlier will, which meant that they did not have a sufficient interest to challenge the validity of the later will. The court concluded that there was no point of principle that would allow the caveator to challenge the later will, as there was no interest to protect. The court dismissed the caveat and the challenge to the later will was unsuccessful.

The court ordered that the later will be admitted to probate and that the caveat be dismissed. The executor was authorised to administer the estate in accordance with the later will. The court's decision reinforced the principle that a caveator must have a sufficient interest in the estate to challenge the validity of a will, and that the mere fact of lodging a caveat is not enough to confer standing.

Orders