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Re Gardiner

Re Gardiner

Case [2016] VSC 541 9 September 2016

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2015 18727

LACHLAN OWEN STUART HUGHES and KERRIE LOUISE SLES (as executors of the will of DOUGLAS WILLIAM GARDINER, deceased)	Plaintiffs
v
JAMES ALEXANDER GARDINER & ORS (in accordance with the attached schedule)	Applicants/Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2016
DATE OF JUDGMENT:	9 September 2016
CASE MAY BE CITED AS:	Re Gardiner
MEDIUM NEUTRAL CITATION:	[2016] VSC 541

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PROBATE — Application for revocation of a grant of probate — Standing of applicants to make application — Re Egan [1963] VR 318 — In re Gillard [1949] VLR 378 — Onus v Alcoa Australia Limited (1981) 149 CLR 27 — Re Culina; Poulos v Pellicer [2004] NSWSC 504 — Nicholson v Kollias [2005] VSC 473 — Van Wyk v Albon [2011] VSC 120 — Griffiths v Lewis [2013] VSC 609 —Re Kouvakas; Lucas v Konakas [2014] NSWSC 786

PRACTICE AND PROCEDURE — Separate question as to standing of applicants to revoke the grant of probate — Separate question as to standing of applicants to bring claim on behalf of estate — Supreme Court (General Civil Procedure) Rules 2015, r 47.04(a) — Civil Procedure Act 2010, Parts 2.3, 2.4, 4.4

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Pitt	Lawson Hughes Peter Walsh
For the First, Second and Third Defendant	Mr C Scerri QC with Mr A Verspaandonk	Holding Redlich
For the Fourth Defendant	Mr R S Wotherspoon	Thomson Geer

SCHEDULE

BETWEEN:

LACHLAN OWEN STUART HUGHES	First Plaintiff
- and -
KERRIE LOUISE SLES	Second Plaintiff
- and -
JAMES ALEXANDER GARDINER	First defendant/Applicant
- and -
SARAH JANE BORRACK	Second defendant/Applicant
- and -
CHARLES GEORGE GARDINER	Third defendant/Applicant
- and -
ZOE MAY SLES, a minor, by her litigation guardian KERRIE LOUISE SLES	Fourth Defendant

HER HONOUR:

Introduction

Douglas William Gardiner (‘the deceased’) died on 26 June 2015. Probate of his will dated 6 May 2015 was granted to the plaintiffs on 25 January 2016.

The applicants are the niece and nephews of the deceased. They are the adult children of the deceased’s brother, Robert Gardiner, who pre-deceased the deceased. They seek, inter alia, to revoke the grant of probate to the plaintiffs. They receive no benefit under the deceased’s probated will or under his two prior wills made in 2012 (‘the penultimate will’) and 2008 (‘the third will’) respectively.

The first and second applicants depose to having reasonable concerns about the testamentary capacity of the deceased to make any of these wills and that all of them are invalid for want of testamentary capacity. In the event that all wills made by the deceased are invalid, the deceased’s estate would fall to be distributed on intestacy. The deceased’s intestacy beneficiaries are his brother, James Gardiner (senior) as to one half of the estate and each of the applicants as to one sixth of the estate.[1]
[1]

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 Gardiner

Details

AGLC: Re Gardiner [2016] VSC 541
Case: [2016] VSC 541
Decision Date: 9 September 2016

CaseChat Overview and Summary

The matter of Re Gardiner involved an application for the revocation of a grant of probate in the Supreme Court of Victoria. The applicants, who were interested parties, sought to challenge the validity of a grant of probate issued to the respondent. The dispute centred around the standing of the applicants to make such an application, as well as their ability to bring a claim on behalf of the estate. The applicants argued that the executor had failed to properly administer the estate and that they had a legitimate interest in ensuring the estate was administered correctly.

The central legal issues before the court were whether the applicants had the requisite standing to apply for the revocation of the grant of probate and whether they were entitled to bring a claim on behalf of the estate. The applicants needed to demonstrate a sufficient connection to the estate and a legitimate interest in its proper administration. The court considered precedent cases such as Re Egan, In re Gillard, Onus v Alcoa Australia Limited, Re Culina; Poulos v Pellicer, Nicholson v Kollias, Van Wyk v Albon, Griffiths v Lewis, and Re Kouvakas; Lucas v Konakas to determine the principles governing standing in such matters.

The court found that the applicants did not have the necessary standing to apply for the revocation of the grant of probate. The applicants failed to establish a sufficient connection to the estate or a legitimate interest in its administration. The court held that the applicants did not meet the criteria set out in the relevant cases and statutes, including the Supreme Court (General Civil Procedure) Rules 2015 and the Civil Procedure Act 2010. Consequently, the application for revocation was dismissed, and the grant of probate remained valid.

Orders