Re Fletcher - [2023] VSC 170

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2022 03287

IN THE MATTER of the will and estate of GREGORY GORDON FLETCHER, deceased

-and-

IN THE MATTER of an application pursuant to s 22(1) of the Administration and Probate Act 1958

APPLICATION BY:

LORNA FLETCHER (in her own capacity and in her capacity as the sole beneficiary of the Estate of IAN FLETCHER deceased) (by her litigation guardians Jennene Fletcher and Suzanne Burmeister)	Plaintiff
v
MITCH KARAFILI and VINCENT TRALCI	Non-parties

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	4 April 2023
CASE MAY BE CITED AS:	Re Fletcher
MEDIUM NEUTRAL CITATION:	[2023] VSC 170

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COSTS – Application for limited grant - Where plaintiffs in contested informal will application refused to agree to limited grant pendente lite – Where refusal misconceived and contrary to clearly established principles.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A S Bartfeld	Carbone Lawyers
For the non-parties	Merhi Lawyers

HER HONOUR:

Introduction

Gregory Gordon Fletcher (‘the deceased’) died on 9 August 2021. He was survived by his parents, Lorna Fletcher and Ian Fletcher, who are the beneficiaries of the deceased’s estate on intestacy.

At the date of his death, the deceased was the registered proprietor of a property in Eltham and the sole proprietor of a business trading as ‘To Your Health’ that sells chemical free products.

By originating motion filed 29 November 2021 Mr Mitch Karafili and Mr Vincent Tralci sought a grant of probate of the deceased’s will dated 6 August 2021 (‘the will’). The will appoints Mr Karafili and Mr Tralci as his executors and leaves the residue of the estate to Mr Tralci, Sally Catherine Juhasz, Harry Tournas and the deceased’s siblings, Jennene Fletcher and Suzanne Burmeister.[1]
[1]Proceeding S PRB 2021 20876.

On 9 December 2021, the Probate Office forwarded requisitions to Mr Karafili and Mr Tralci requiring evidence to establish that the deceased had testamentary capacity when executing the will and evidence of the due execution of the will.

On 21 December 2021 Lorna Fletcher and Ian Fletcher, by their litigation guardians, Jennene Fletcher and Suzanne Burmeister, filed their grounds of objection to a grant of probate of the will claiming that the deceased lacked testamentary capacity, Mr Karafili and Mr Tralci unduly influenced the deceased, and suspicious circumstances surrounding the execution of the will.

As a result of the then solicitors for Mr Karafili and Mr Tralci, MCK Legal, filing the affidavits of Lucinda Smarrelli affirmed 8 March 2022 and Mirka Carmelli of MCK Legal affirmed 24 March 2022, it was established that the will was not signed in conformity with s 7 of the Wills Act 1997.

On 26 April 2022 the parties held the first of a number of unsuccessful mediations in relation to the contested will proceeding. Prior to the first mediation Jennene Fletcher and Suzanne Burmeister filed an originating motion on 24…

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.

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Details

Case: [2023] VSC 170
Decision Date: 4 April 2023

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Re Fletcher was brought forth to address a contentious informal will application. The deceased, Mr Fletcher, left an estate that was the subject of dispute between various relatives. The plaintiffs, who were beneficiaries under the will, applied for a limited grant pendente lite to secure their financial interests pending the final determination of the case. However, the defendants, other relatives contesting the will, refused to agree to this application. The plaintiffs sought a decision from the court on whether the refusal to agree to the limited grant was justified and whether the court should still grant the application despite the defendants' opposition.

The legal issue before the court was whether the refusal of the defendants to agree to a limited grant pendente lite was reasonable and whether the court should intervene to grant the application in light of this refusal. The court had to consider established principles regarding pendente lite applications and the discretion granted to the court in such matters. The court needed to weigh the defendants' right to contest the will against the plaintiffs' need to secure their financial interests during the proceedings.

The court found that the refusal to agree to a limited grant was misconceived and contrary to clearly established principles. The principles guiding pendente lite applications are designed to ensure that parties can protect their interests during litigation. The court held that the refusal was unjustified and, in light of the established legal principles, granted the plaintiffs' application for a limited grant. The court emphasised that the refusal was contrary to the well-established practice and the need to balance the interests of all parties involved in the litigation. The defendants' refusal did not alter the plaintiffs' entitlement to a limited grant pendente lite.

The final orders of the court included a limited grant pendente lite to the plaintiffs, ensuring that they could secure their financial interests pending the resolution of the informal will application. The court's decision underscored the importance of adhering to established legal principles in such applications and highlighted the court's discretion to grant relief despite opposition from other parties.

Orders