Re Hayes - [2022] VSC 178

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2020 00044

IN THE MATTER of the will and estate of THOMAS SYDNEY PASCOE HAYES, deceased
BETWEEN
IAN BENTLEY STILL (in his capacity as the executor of the will and estate of the abovenamed deceased)	Plaintiff
v
TACI HAYES	Applicant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	11 April 2022
CASE MAY BE CITED AS:	Re Hayes
MEDIUM NEUTRAL CITATION:	[2022] VSC 178

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PROBATE — Application for revocation of grant of probate — Where applicant alleges prima facie case of suspicious circumstances that testator did not know and approve of last will and penultimate will and circumstances that give rise to a suspicion about testator’s testamentary capacity — Whether alleged suspicious circumstances establish a prima facie case for investigation — Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms L Kinda	Still & Company Lawyers
For the Applicant	Mr J Stavris and Ms A Yuan	Constable Connor & Co

HER HONOUR:

Thomas Sydney Pascoe Hayes (‘the deceased’) died on 21 November 2019 aged 88 years. The deceased’s wife predeceased him, having died in 2013.

The deceased’s last will is dated 24 September 2008 (‘the 2008 will’). It was made when the deceased was 77 years of age. The 2008 will appointed the deceased’s wife as executor and, in the event she did not survive the deceased, the plaintiff the alternate executor. The 2008 will devised and bequeathed the whole of the deceased’s estate, after the payment of debts and testamentary expenses, to the deceased’s wife, provided she survived the deceased. In the event that the deceased’s wife did not survive the deceased, then subject to the gift of the contents of the deceased’s home and shed at his Kilmore property to Elizabeth Kay Gibson (‘Kay’) and Neil William Wright (‘Neil’) respectively, the residue of the estate was to be divided into 10 equal parts, with one part each to Kay; Neil and Jennifer Kaye Wright (‘Jennifer’); Stacie Wright; Nikkita Wright; Amber Wright; Celey Gibson; Sherry Gibson; Nicholas Gibson (‘Nicholas’); Andrew Gibson (‘Andrew’) and the remaining one part was to have been held on trust by Neil and Jennifer for the benefit of their daughter, Sarah Wright, to be used for Sarah’s benefit, and upon her death to be given to Neil and Jennifer.

On 9 January 2020, probate of the 2008 will was granted to the plaintiff. The plaintiff is a solicitor practising in Kilmore and is the principal of Still & Company Lawyers (‘Still & Co’). He was admitted to practice in 1967 and has extensive experience in the area of probate, will and estates.

The deceased’s penultimate will is dated 17 September 2003 (‘the 2003 will’). The 2003 will was made when the deceased was 72 years of age. The 2003 will appointed the deceased’s wife as the executor and if she did not survive him, then…

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 Hayes

Details

AGLC: Re Hayes [2022] VSC 178
Case: [2022] VSC 178
Decision Date: 11 April 2022

CaseChat Overview and Summary

In the matter of the estate of Hayes, the deceased, the executor of the estate applied for a revocation of the grant of probate. The applicant contended that there were suspicious circumstances indicating that the deceased did not know and approve of the last will and the penultimate will. Furthermore, the applicant argued that the circumstances raised a suspicion about the deceased’s testamentary capacity. The application was dismissed by the court. The court was required to determine whether the suspicious circumstances presented by the applicant were sufficient to establish a prima facie case for investigation into the validity of the wills.

The court found that the applicant had not presented evidence that would lead a reasonable person to believe that the alleged suspicious circumstances were true. The court emphasised that the applicant needed to demonstrate a genuine suspicion supported by evidence that would warrant further investigation. The court held that the applicant had failed to meet this burden of proof. Consequently, the court dismissed the application for revocation of the grant of probate.

The court's reasoning was grounded in the legal principle that a prima facie case requires a showing of sufficient evidence to support a belief that the alleged facts are true. In this instance, the applicant did not provide adequate evidence to establish a genuine suspicion that the deceased did not know and approve of the wills or lacked testamentary capacity. As a result, the court found that the application was not supported by sufficient evidence to warrant further investigation.

Orders