Re Gao - [2019] VSC 735

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S PRB 2019 08841

IN THE MATTER of the Estate of Louis Gao, deceased

LI WANG	Plaintiff
v
LAN GAO	Applicant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2019
DATE OF JUDGMENT:	13 November 2019
CASE MAY BE CITED AS:	Re Gao
MEDIUM NEUTRAL CITATION:	[2019] VSC 735

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WILLS AND ESTATES – Application for revocation of grant of probate – Whether particulars established prima facie case - Significant difference between probated will and penultimate will – Whether testator knew and approved of the contents of the will – Suspicious circumstances - Prima facie case established – Gardiner v Hughes (No 2) [2019] VSCA 198 – Veall v Veall (2015) 46 VR 123.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	N J McOmish	Wayne Wong & Associates
For the Applicant	J W McCoy	De Marchi & Associates

HIS HONOUR:

Louis Gao died on 21 April 2019 at 82 years of age. He left a will dated 22 October 2018 (the will). The will is handwritten and made from a ‘will kit’.

The will is simple and straightforward. It appoints Mr Gao’s wife of some 20 years, Li Wang, as executor and provides for the whole of his estate to pass to her. The estate is valued at approximately $200,000, being a half share in a property Mr Gao and his wife owned as tenants in common.

Probate of the will was granted to Ms Wang on 20 June 2019.

Lan Gao is Mr Gao’s daughter from a previous marriage. Ms Gao resides in China. On 3 July 2019, she filed a summons seeking revocation of the grant of probate of the will.

Ms Gao has standing to bring the revocation application because she was the executor and principal beneficiary under Mr Gao’s penultimate will dated 4 June 2016 (the 2016 will). Revocation of the grant of probate of the will would allow Ms Gao to seek probate of the 2016 will which would substantially affect her interest in her father’s estate.

Ms Gao initially sought that probate be revoked on the ground that the will was a forgery. This ground of objection was later abandoned.

In amended particulars of revocation, Ms Gao then alleged that the grant should be revoked because her father lacked testamentary capacity and/or because he did not know and approve the contents of the will. In further amended grounds of revocation later filed with the Court, the claim of lack of testamentary capacity was also abandoned.

Ms Wang now seeks orders that the particulars of grounds of revocation and summons for revocation be struck out.

There are two issues for determination.

(a) First, has Ms Gao made out a prima facie case for the revocation of the grant of probate in respect of the will on the basis that her father did not know and approve its contents? This will require me to determine whether…

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 Gao

Details

AGLC: Re Gao [2019] VSC 735
Case: [2019] VSC 735
Decision Date: 13 November 2019

CaseChat Overview and Summary

In the matter of Re Gao, the dispute arose between the named executors of the will of the deceased and other interested parties who sought the revocation of the grant of probate. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether the particulars provided by the applicants established a prima facie case for the revocation of the grant of probate. This hinged on whether there was a significant difference between the will that was probated and the penultimate will, and whether the testator had knowledge of and approval for the contents of the will in question.

The court considered the evidence provided and found that there was a substantial difference between the will that was probated and the penultimate will. Additionally, the circumstances surrounding the execution of the will were suspicious, which raised doubts about the testator's knowledge and approval of the will's contents. The court relied on the principles established in Gardiner v Hughes (No 2) [2019] VSCA 198 and Veall v Veall (2015) 46 VR 123, which highlight the importance of ensuring that the will truly reflects the testator's intentions. The court was satisfied that the applicants had established a prima facie case for the revocation of the grant of probate.

Upon finding that a prima facie case had been established, the court ordered the grant of probate to be revoked and directed further investigation into the circumstances surrounding the execution of the will. This decision underscores the importance of ensuring that wills accurately reflect the testator's intentions, particularly in cases where there are suspicious circumstances surrounding the will's execution.

Orders