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Re Gardiner (No 3)

Re Gardiner (No 3)

Case [2018] VSC 414 31 July 2018

Testamentary Capacity

Prima Facie Case

Onus of Proof

Succession Law

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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 and others (according to the schedule)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2018
DATE OF JUDGMENT:	31 July 2018
CASE MAY BE CITED AS:	Re Gardiner (No 3)
MEDIUM NEUTRAL CITATION:	[2018] VSC 414

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WILLS AND ESTATES — Application for revocation of grant of probate — Whether particulars of grounds establish a prima facie case of testamentary incapacity — Re Egan [1963] VR 318 — Re Watson [2017] VSC 322 — Re Gardiner (No 2) [2017] VSC 699.

EVIDENCE — Onus of proof, presumptions, weight and sufficiency of prima facie case — Nicholson v Knaggs [2009] VSC 64.

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

SCHEDULE OF PARTIES

BETWEEN:

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

31 July 2018

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Revocation principles........................................................................................................................ 1

Testamentary capacity principles............................................................................................... 6
Onus of establishing prima facie case....................................................................................... 6

The applicants’ amended particulars of grounds of revocation................................................ 9

Applicants’ particulars of the deceased’s circumstances and history................................ 10

Written submissions of the applicants......................................................................................... 12

Written submissions of the plaintiffs and fourth defendant................................................... 13

Consideration of the applicants’ prima facie case...................................................................... 15

Behaviour of the deceased......................................................................................................... 15
Employment of the deceased.................................................................................................... 16
Will of the mother of the deceased........................................................................................... 17
Physical health of the deceased from 2005 onwards............................................................. 19
Psychiatric assessment of the deceased in 2006..................................................................... 21
Deceased’s behaviour towards his mother in September/October 2007........................... 21
Deceased’s personality and behaviour.................................................................................... 25
Hospital admission of the deceased in May or June 2015.................................................... 27
Deceased’s relationship with the second plaintiff................................................................. 30
Continuity between the deceased’s 2008 will, 2012 will and last will................................ 32
Natural objects of the deceased’s bounty................................................................................ 33
Financial decisions of the deceased......................................................................................... 34

Applicants’ submissions relying on Larke v Nugus................................................................... 35

Applicants’ submission as to satisfying the conscience of the Court..................................... 39

Conclusions....................................................................................................................................... 40

Orders................................................................................................................................................. 41

HER HONOUR:

Introduction

The first, second and third defendants (‘the applicants’) seek revocation of the grant of probate of the will dated 6 May 2015 of Douglas William Gardiner deceased (‘the last will’), on the ground that the deceased did not possess testamentary capacity at the time of making the last will.

The applicants are the niece and nephews of the deceased. They are the adult children of the deceased’s brother, Robert…

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 (No 3)

Details

AGLC: Re Gardiner (No 3) [2018] VSC 414
Case: [2018] VSC 414
Decision Date: 31 July 2018

CaseChat Overview and Summary

In the case of Re Gardiner (No 3), the application for revocation of the grant of probate was brought before the Supreme Court of Victoria. The primary dispute involved the testamentary capacity of the deceased, Mr. Gardiner, at the time of executing his will. The executors of the will opposed the application, arguing that the deceased had the requisite mental capacity to make the will.

The legal issues before the court were whether the particulars of grounds for the application established a prima facie case of testamentary incapacity, and if so, whether the applicant had discharged the onus of proof. The court had to consider the applicable legal principles from previous cases such as Re Egan and Re Watson, as well as the earlier decision in Re Gardiner (No 2). Additionally, the court needed to determine the weight and sufficiency of the prima facie case in light of the evidence presented.

The court found that the applicant had indeed established a prima facie case of testamentary incapacity. The evidence, which included medical reports and witness testimonies, demonstrated that the deceased suffered from significant cognitive impairment at the time of making the will. The court concluded that the applicant had discharged the onus of proof and that the presumption of validity of the will was rebutted. Therefore, the grant of probate was revoked. The court ordered that the will of Mr. Gardiner be set aside, and the estate be administered according to intestacy rules.

Orders