Re Hyland
[2023] VSC 468
•11 August 2023
| 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 Carpenter alleges that Ms Hyland obtained the Grant by fraud.
On 21 December 2022, Mr Carpenter made an application for a grant of probate in a separate proceeding in this Court.[3] On 2 March 2023, Judicial Registrar Englefield made orders for Mr Carpenter’s revocation application to be determined on the papers.
[3]Supreme Court Proceeding S PRB 2022 26518.
Should the Grant be Revoked?
An applicant for revocation of a grant must show their rights will, or may be affected by the revocation of the grant.[4] Given that Mr Carpenter is named as executor in the Will, it is clear that he has standing to challenge the Grant.
[4]Gardiner v Hughes (2017) 54 VR 394, 418 [90].
Further, as stated by the Court of Appeal in Gardiner v Hughes (No 2),[5] the Court’s power to revoke a grant requires showing that there is a ‘case for investigation’ for revocation of the grant. Once a ‘case for investigation’ is established, the Court must consider the totality of the circumstances to determine whether, in the Court’s discretion, it is appropriate to revoke the grant.[6]
[5][2019] VSCA 198.
[6]Ibid [41]-[42].
Mr Hyland has a valid will that appoints an executor
Mr Carpenter’s first ground for revocation of the Grant alleges that a valid will exists that appoints an executor. Where there exists a valid will that the Court was not aware of at the time of the grant of letters of administration, it is appropriate for the Court to revoke its grant upon discovery of the will.[7] The existence of the Will clearly constitutes a case for investigation.
[7]In Re Christian (1975) 25 FLR 89.
Mr Hyland’s Will was prepared for him by his solicitor, Mr Peter Berenger. The Will was signed by Mr Hyland on 3 May 2022 and was witnessed by Mr Berenger and Ms Catherine Brownell, Local Justice Worker.[8] The Will was executed validly in accordance with s 7 of the Wills Act 1997.
[8]Affidavit of Peter Berenger dated 15 September 2022, [14]-[15].
Clause 1 of the Will reads as follows:
I APPOINT my Nephew DAVID CHARLES CARPENTER of 17 Filter Road West Nowra in the State of New South Wales Executor of this my Will and Trustee of my Estate and I DIRECT that the expression 'my Trustees' where used in this Will shall include the Trustee or Trustees for the time being of my Estate whether original additional or substituted.
By her affidavit dated 14 October 2022, Ms Hyland disputes the authenticity of the Will:
In Peter Berenger's very carefully worded Affidavit there is no proof of the authenticity of the last 2 signatures of the Will, he doesn't provide proof & swear where/when this supposed signing of two different signatures happened. He similarly doesn't state how he came to be supposedly preparing a Will in the first place. Theres a reason for that - He knows that Will has been forged & they have put themselves in the position of having to manipulate the Court so as to not expose the truth of what they have done. I make this very clear - I have already made efforts to engage Forensic Investigators who are expert at determining authenticity of signatures.[9]
The Court has not received any further evidence from Ms Hyland to substantiate her allegation that the Will is a forgery.
[9]Affidavit of Kellie Hyland dated 14 October 2022, [5].
Where, as here, a will is rational on its face and has been duly executed, it will be presumed that the testator possessed testamentary capacity and knew and approved of the contents of the will.[10] A party seeking to impeach the validity of a will ‘must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator’.[11]
[10]Tobin v Ezekiel (2012) 83 NSWLR 757, 771 [45].
[11]Veall v Veall (2015) 46 VR 123, 175 [171]; Re Cassar [2022] VSC 126, [14].
I have considered the contents of Ms Hyland’s affidavit. I do not consider any of the matters raised in the affidavit to support a well-grounded suspicion that the Will does not represent Mr Hyland’s intention.
Mr Hyland’s Will was not presented to the Court at the time of Ms Hyland’s application. The Will, being a valid will that appoints Mr Carpenter as executor of the Will and trustee of Mr Hyland’s estate, reflects Mr Hyland’s testamentary intention that Mr Carpenter be appointed executor of the Will.
I do not consider there to be any discretionary factors that militate against an order revoking the Grant. Orders will be made for the revocation of the Grant.
Whether the Grant was obtained by fraud
Mr Carpenter’s second ground for revocation of the Grant is that the Will was obtained by fraud. Given my finding that the Will is valid, I do not consider it necessary to determine whether Ms Hyland fraudulently obtained the Grant.
Conclusion and Orders
The applicant has provided the Court with a draft set of orders sought. The orders primarily seek revocation of the Grant. However, the orders also seek to reverse Ms Hyland’s transfers of the motor vehicle and trailers that were previously in Mr Hyland’s name. The evidence discloses that the motor vehicle and two trailers were owned by Mr Hyland at the time of his death and so formed part of his estate. Accordingly, the property should be dealt with in accordance with Mr Hyland’s will. I consider it appropriate to make orders for those items to be transferred to Mr Carpenter as executor upon him being granted probate.
Mr Carpenter also seeks orders that ‘the Plaintiff delivers the motor vehicle being a 2004 Peugeot Roadstar 206 motor vehicle currently in the possession of the Plaintiff’ to Mr Berenger’s office. There is no evidence before the Court regarding the ownership of the Peugeot vehicle. I do not consider it appropriate to make an order for delivery of the Peugeot vehicle.
I will provide the parties with an opportunity to make submissions on costs.
I shall make the following orders:
1. The Grant of Letters of Administration to the Plaintiff be revoked as of 11 August 2023;
2. By 4pm 18 August 2023, the Plaintiff deliver the motor vehicle registration number YTS022 being a 2011 Ssanyong Actyon Ute to Wards Barristers and Solicitors at 10 Service Street Bairnsdale in the State of Victoria.
3. Within fourteen (14) days of the applicant being granted probate, the Plaintiff is to do all such things that are necessary to transfer the registration of the motor vehicle registration number YTS022 being a 2011 Ssanyong Actyon Ute into the name of David Charles Carpenter as Executor for the Estate of the late Brian Gregory Hyland at the Plaintiff's expense;
4. In the event that the Plaintiff fails to comply with Order 3 the Court hereby authorises and directs VicRoads to transfer the registration of the motor vehicle registration number YTS022 being a 2011 Ssanyong Actyon Ute into the name of David Charles Carpenter as Executor for the Estate of the late Brian Gregory Hyland at the Plaintiff's expense;
5. Within fourteen (14) days of the applicant being granted probate, the Plaintiff is to do all such things that are necessary to transfer the registration of the Box Trailer registration number Z67768 being a 2019 Jumis 2 axle Box Trailer with ramp and cage into the name of David Charles Carpenter as Executor for the Estate of the late Brian Gregory Hyland at the Plaintiff's expense;
6. In the event that the Plaintiff fails to comply with Order 5 the Court hereby authorises and directs VicRoads to transfer the registration of the Box Trailer registration number Z67768 being a 2019 Jumis 2 axle Box Trailer with ramp and cage into the name of David Charles Carpenter as Executor for the Estate of the late Brian Gregory Hyland at the Plaintiff's expense;
7. Within fourteen (14) days of the applicant being granted probate, the Plaintiff is to do all such things that are necessary to transfer the registration of the Camper Trailer registration number U43661 being a Mega Camper Trailer into the name of David Charles Carpenter as Executor for the Estate of the late Brian Gregory Hyland at the Plaintiff's expense;
8. In the event that the Plaintiff fails to comply with Order 7 the Court hereby authorises and directs VicRoads to transfer the registration of the Camper Trailer registration number U43661 being a Mega Camper Trailer into the name of David Charles Carpenter as Executor for the Estate of the late Brian Gregory Hyland at the Plaintiff's expense.
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