Re Hyland - [2023] VSC 468

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2022 14864

In the matter of the estate of BRIAN GREGORY HYLAND (deceased)

KELLIE LOUISE HYLAND	Plaintiff
and
DAVID JAMES CARPENTER	Applicant

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JUDGE:	McDonald J
WHERE HELD:	On the papers
DATE OF HEARING:	None required
DATE OF RULING:	11 August 2023
CASE MAY BE CITED AS:	Re Hyland
MEDIUM NEUTRAL CITATION:	[2023] VSC 468

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WILLS AND ESTATES – Application for revocation of grant of letters of administration – Letters of administration granted to plaintiff on basis of the deceased having died intestate – Deceased had made a validly executed will at the time of his death which appointed the applicant an executor of his estate – Application for revocation granted – Supreme Court (Administration and Probate) Rules 2014, Orders 4 and 11.

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HIS HONOUR:

This proceeding concerns an application pursuant to Order 11 of the Supreme Court (Administration and Probate) Rules 2014 (‘Rules’) for revocation of a grant of letters of administration issued by the Court on 1 August 2022. The deceased, Mr Brian Gregory Hyland, passed away on 17 June 2022. A month prior to his passing, Mr Hyland signed a will dated 3 May 2022 (‘Will’). Pursuant to clause 1 of the Will, the applicant, Mr David Carpenter, was appointed executor of Mr Hyland’s estate.

The plaintiff, Ms Kellie Hyland, was the deceased’s wife. Ms Hyland is not named in the deceased’s will. On 7 July 2022, Ms Hyland attended the offices of Mr Peter Berenger, the solicitor who drafted Mr Hyland’s will, and obtained a copy of the Will. On 13 July 2022, pursuant to Order 4.03 of the Rules, Ms Hyland advertised that she would ‘apply to the Supreme Court of Victoria for a grant of administration of the estate of the deceased upon intestacy, there being no will of the deceased’.

Mr Berenger, who acts for Mr Carpenter in these proceedings, deposed that on 17 July 2022, Ms Hyland contacted VicRoads and effected a transfer to herself of a motor vehicle and two trailers. The vehicle and trailers were registered in Mr Hyland’s name at the time of his death.[1] Ms Hyland admits to having transferred the vehicles into her name.[2]
[1]Affidavit of Peter Berenger dated 15 September 2022, [31]-[33]; Exhibit BGH-22.
[2]Affidavit of Kellie Hyland dated 14 October 2022, [14(x)].

On 28 July 2022, Ms Hyland filed an application in this Court for administration of Mr Hyland’s estate. In the affidavit supporting her application, Ms Hyland deposes that she had ‘made careful enquiry and search but [was] unable to find any will of the deceased’. By orders from the Court’s Registrar of Probates dated 1 August 2022, Ms Hyland was granted letters of administration of Mr Hyland’s estate (‘Grant’).

Mr Carpenter, by summons dated 29 August 2022, seeks a revocation of the Grant. Mr Carpenter alleges that Mr Hyland’s will was validly executed and appoints an executor. In the alternative, Mr…

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 Hyland

Details

AGLC: Re Hyland [2023] VSC 468
Case: [2023] VSC 468
Decision Date: 11 August 2023

CaseChat Overview and Summary

The applicant, who had been granted letters of administration of the deceased’s estate on the basis that the deceased had died intestate, applied to the Supreme Court for the revocation of the letters of administration on the basis that a validly executed will had been discovered. The respondent opposed the application on the basis that it was not in the best interests of the estate for the will to be admitted to probate and the letters of administration revoked. The court was required to decide whether the application should be granted and the letters of administration revoked, or whether the application should be dismissed.

The court found that the will was validly executed and that the applicant was duly appointed as an executor. The court considered the relevant statutory provisions and held that it was in the best interests of the estate for the will to be admitted to probate and the letters of administration revoked. The court found that the respondent had not adduced any evidence to show that the revocation of the letters of administration would be detrimental to the estate or the beneficiaries. The court also considered the relevant case law and found that the applicant had satisfied the requirements for revocation of the letters of administration.

The application for revocation was granted and the letters of administration were revoked. The court ordered that the applicant be granted letters of administration with the will annexed. The court also ordered that the respondent pay the applicant’s costs of the application. The court held that the applicant was entitled to be paid reasonable remuneration for their services as an executor, and that the respondent was liable to pay any costs or expenses incurred by the applicant in the administration of the estate.

Orders