JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	12 December 2018
CASE MAY BE CITED AS:	Re Haynes
MEDIUM NEUTRAL CITATION:	[2018] VSC 778

---

WILLS AND ESTATES — Application for revocation of grant of probate — Purported later informal will — Where executor delayed in making application — Where executor failed to notify charity of legacy under probated will or informal will — Where estate administered under probated will, save for legacy to charity — Where insufficient evidence to establish validity of informal will.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff and Applicant	Russell Kennedy
For Lort Smith Animal Hospital	HWL Ebsworth

HER HONOUR:

Factual background

Eric Leslie Haynes (‘the deceased’) died on 2 April 2015, aged 92 years. The deceased’s wife and one son predeceased him. He was survived by his other five children. The deceased’s estate was valued for probate purposes at $1,009,897 comprising the family home and money in the bank.

The 2009 will

On 29 July 2015, probate of the deceased’s will dated 9 June 2009 (‘the 2009 will’) was granted to the applicant, a son of the deceased and the named executor in the 2009 will. Under the 2009 will, the deceased made some minor gifts of chattels to named individuals, bequeathed the sum of $100,000 to Lort Smith Animal Hospital (‘Lort Smith’) and left the residue of the estate to his six children as survive him and, if more than one, as tenants in common in equal shares, with a gift over to grandchildren if any child fails to survive him. The 2009 will was prepared by solicitors, Walsh Johnston & Co, and was witnessed by Mr Neil Johnston, solicitor, and Ms Luigia De Marchi, legal secretary.

On 10 October 2015, the family home, which was the principal asset of the estate was sold for the sum of $1,380,000. In November 2015, the applicant’s solicitor, Mr Johnston, transferred the estate funds comprising the net proceeds of sale of the family home plus $112,896 being the money in the bank, to the applicant. In February 2016, the applicant distributed the estate funds to the beneficiaries, save for the legacy to Lort Smith. At no time did the defendant inform Lort Smith of the legacy under the 2009 will.

In his affidavit sworn 14 June 2018, the applicant deposed that just before the deceased’s death, the deceased told him that he had reduced the legacy to Lort Smith as it ‘had been hounding him for money and he had been annoyed by their persistent contact’. The applicant also deposed that around the time he distributed the estate to his siblings, he was grieving for the death of his parents and sibling, found the administration of…

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 Haynes

Details

AGLC: Re Haynes [2018] VSC 778
Case: [2018] VSC 778
Decision Date: 12 December 2018

CaseChat Overview and Summary

The case of Re Haynes involved an application to revoke a grant of probate in relation to a disputed will. The applicant, as a potential beneficiary under a later informal will, sought to challenge the validity of the earlier will for which probate had been granted. The dispute arose from the executor's delay in making the application and the executor's failure to notify a charity of its intended legacy under either will. The matter was heard in the Supreme Court of Queensland.

The court was required to consider whether the grant of probate should be revoked and whether the informal will was valid. It needed to assess the executor's delay in making the application and the executor's failure to notify the charity. Furthermore, the court had to determine if there was sufficient evidence to establish the validity of the informal will.

The court found that the executor's delay in making the application did not necessarily invalidate the proceedings but weighed against the applicant's case. The failure to notify the charity was also considered but did not alone invalidate the will. Regarding the informal will, the court held that there was insufficient evidence to establish its validity. Therefore, the application for revocation was dismissed.

The court ordered that the grant of probate remain in effect and that the estate be administered according to the terms of the probated will, except for the legacy to the charity. The charity's legacy would be determined in a separate proceeding.

Orders