| 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]
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- AGLC
- Re Gardiner [2016] VSC 541
- Case
- [2016] VSC 541
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
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