Re Irving deceased - [2003] VSC 351

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PROBATE JURISDICTION

IN THE MATTER of the Will of Robert William Irving deceased and

IN THE MATTER of an Application by his executor Anthony Murrell.

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JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2003
DATE OF JUDGMENT:	11 September 2003
CASE MAY BE CITED AS:	Re Irving deceased
MEDIUM NEUTRAL CITATION:	[2003] VSC 351

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PROBATE – Application for grant of probate in respect of a penultimate will – Evidence of testator’s lack of sound mind at date of execution of later will – Sole beneficiary of later will not appealing before court to contest grant – Effect of apparent consent of sole beneficiary of later will to proof of penultimate will – Administration and Probate Act 1958 s.12(2)(b).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C. McOmish	Slater and Gordon
No appearance for any other party.

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

Background......................................................................................................................................... 2

The application for probate of the penultimate will.................................................................. 3

Affidavit of solicitor who drafted final will................................................................................. 5

Administration order under Guardianship and Administration Act 1986.............................. 6

Referral of application to court....................................................................................................... 6

Notice of court proceeding............................................................................................................... 6

The response of the sole beneficiary of the later will to receipt of notice of the court proceeding................................................................................................................................................................ 7

Conclusion........................................................................................................................................... 8

HIS HONOUR:

Introduction

This is the hearing of an application by Anthony Murrell (“the applicant”) for a grant of probate to him of the penultimate will of Robert William Irving dated 3 March 1994, there being evidence that the deceased lacked testamentary capacity as at the time of executing his final will dated 20 June 1997.

Background

The deceased died on 15 April 2002 leaving an estate of $129,809.56. At the date of his death he was 67 years of age. His death certificate, which was certified by a Dr L. Thurman, certifies that the cause of death was “dementia‑Alzheimer’s‑type four years”.

The deceased married the mother of the executor, Dawn Irving, in 1958. They were divorced in either 1980 or 1981.

On 3 March 1994 the executor executed the will for which the applicant now seeks a grant of probate (“the penultimate will”). He appointed the applicant as executor and trustee. By this will he bequeathed his motorcar to his friend Joy Dwyer, but otherwise left the balance of his estate in equal shares to her and to his former wife, Dawn Irving.

On 16 June 1997, and in the company of Joy Dwyer, the deceased attended upon the same firm of solicitors in Bairnsdale who had drafted his earlier will and gave instructions to prepare a further will. On 20 June 1997 the deceased executed a new will (“the later will”) whereby he once again appointed the applicant as executor and trustee, but left the balance of his estate to Joy Dwyer. This will provided that in the event of Joy Dwyer predeceasing him, or failing to survive him by 30 days, the balance of his estate was to be paid…

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 Irving deceased

Details

AGLC: Re Irving deceased [2003] VSC 351
Case: [2003] VSC 351
Decision Date: 11 September 2003

CaseChat Overview and Summary

The case of Re Irving deceased involved an application for the grant of probate in respect of a penultimate will of the deceased, Charles Irving. The dispute arose due to the existence of a later will that had not been contested by the sole beneficiary, who was also the beneficiary of the earlier will. The matter was heard in the Supreme Court of Victoria. The legal issues that the court had to determine included whether the evidence of the testator's lack of sound mind at the time of executing the later will was sufficient to warrant the grant of probate for the penultimate will, and whether the apparent consent of the sole beneficiary to the proof of the penultimate will could be considered under the relevant legislation.

The court examined the evidence regarding the testator's mental capacity at the time of executing the later will and concluded that there was sufficient evidence to support the contention that the testator lacked sound mind. The court also considered the effect of the sole beneficiary's apparent consent to the proof of the penultimate will. Under the Administration and Probate Act 1958, section 12(2)(b), the court found that the apparent consent of the sole beneficiary of the later will could be taken into account in determining whether to grant probate for the penultimate will. The court held that the apparent consent demonstrated that the beneficiary had no objection to the proof of the penultimate will, and this was a factor that could be weighed in the overall assessment of the application.

In conclusion, the court found that the evidence of the testator's lack of sound mind at the time of executing the later will was sufficient to warrant the grant of probate for the penultimate will. Additionally, the apparent consent of the sole beneficiary of the later will to the proof of the penultimate will was a significant factor in the court's decision. The court granted the application for the grant of probate for the penultimate will, thereby resolving the dispute regarding the administration of the deceased's estate.

Orders