Re Gyss - [2022] VSC 689

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 01280

IN THE MATTER of the estate of MARLENE HELEN GYSS, deceased
BETWEEN:
ALAN TREVOR GYSS	Plaintiff
and
DARREN CHARLES GYSS	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	10 November 2022
CASE MAY BE CITED AS:	Re Gyss
MEDIUM NEUTRAL CITATION:	[2022] VSC 689

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COSTS – Passing over application – Application dismissed – Where plaintiff seeks costs of application out of estate of deceased – Where defendant seeks costs against plaintiff – Whether plaintiff should bear costs of unsuccessful application – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Rickards Legal
For the Defendant	Maurice Blackburn Lawyers

HER HONOUR:

Introduction

Marlene Helen Gyss (‘the deceased’) died on 14 February 2021, aged 82 years. The deceased was survived by her three children: Alan Trevor Gyss (‘the plaintiff’), Darren Charles Gyss (‘the defendant’) and Lynda Maree Laemmle (‘Lynda’).

The deceased’s estate is valued at approximately $1,350,000, comprising an unredeemed nursing home bond of approximately $600,000 and a term deposit of approximately $750,000.

The deceased executed two wills: her last will dated 12 November 2018 (‘the 2018 will’) and her penultimate will dated 9 October 2017 (‘the 2017 will’). By the 2018 will, the deceased appoints the plaintiff and the defendant as the executors and trustees of her estate, bequeaths $100,000 to each of the defendant and Lynda, and provides that the residue of the estate is to be divided equally between the plaintiff, the defendant and Lynda. Under the 2017 will, the defendant is appointed as sole executor and trustee and the deceased’s estate is to be divided equally between the plaintiff, the defendant and Lynda.

A grant of probate has not yet been obtained in respect of either the 2018 will or the 2017 will. Since the death of the deceased, there has been significant disagreement between the plaintiff, the defendant and Lynda as to the administration of the estate, culminating in the commencement of this proceeding.

Procedural history

Between December 2021 and March 2022, the parties exchanged preliminary correspondence relating to, inter alia, obtaining a grant of probate in the deceased’s estate and the validity of the 2018 will. In substance, the plaintiff contended the 2018 will was invalid on the grounds that the deceased lacked testamentary capacity or that the 2018 will was the product of undue influence or duress. He also foreshadowed a claim for further provision from the estate of the deceased under Part IV of the Administration and Probate Act 1958 (Vic) (‘the Administration and Probate Act’).

The plaintiff subsequently filed an originating motion dated 13 April 2022 by which he sought orders pursuant to s 15 of the Administration and Probate Act that the defendant show cause why he should not either prove the 2018 will or renounce probate thereof, alternatively, orders pursuant to the inherent jurisdiction of the…

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 Gyss

Details

AGLC: Re Gyss [2022] VSC 689
Case: [2022] VSC 689
Decision Date: 10 November 2022

CaseChat Overview and Summary

The case of Re Gyss involved the plaintiff, who was seeking costs of an application out of the estate of the deceased, and the defendant, who sought costs against the plaintiff. The matter was heard in the Supreme Court of Victoria. The plaintiff's application was dismissed, and the defendant sought costs against the plaintiff from the estate of the deceased.

The primary legal issue before the court was whether the plaintiff should bear the costs of the unsuccessful application. The court considered whether there was any point of principle that would justify the plaintiff being held liable for the costs of the application. The court needed to determine if the circumstances of the case warranted the plaintiff being responsible for the costs, even though the application was unsuccessful.

The court concluded that there was no point of principle that would justify the plaintiff being held liable for the costs of the unsuccessful application. The court held that the plaintiff should not bear the costs of the application, as there was no evidence to suggest that the application was frivolous or vexatious. The court found that the plaintiff's application, although unsuccessful, was not without merit and did not warrant the imposition of costs against the plaintiff.

The court dismissed the defendant's application for costs against the plaintiff and out of the estate of the deceased. The court held that there was no point of principle that would justify the plaintiff being held liable for the costs of the unsuccessful application.

Orders