Re Irving deceased

The application for probate in the matter of Irving, deceased, was heard in the Supreme Court of Victoria. The dispute centred on the validity of a later will in light of evidence suggesting that the testator lacked sound mind at the time of its execution. The applicant sought to prove a penultimate will, with the sole beneficiary of the later will not appearing to contest the grant of probate for the earlier will. The primary legal issue was whether the apparent consent of the sole beneficiary of the later will could be considered sufficient to permit the proof of the penultimate will under section 12(2)(b) of the Administration and Probate Act 1958.

The court considered the statutory provision which allows for the grant of probate if no one appeals against it within the stipulated time. Here, the sole beneficiary of the later will did not contest the grant of probate for the penultimate will, which could be interpreted as consent. The court examined the principles of consent and the implications of the beneficiary’s silence in light of the evidence about the testator’s mental state at the time of the later will's execution. It was determined that the lack of contest by the sole beneficiary, coupled with the evidence of the testator’s mental incapacity, warranted a cautious approach. The court found that the beneficiary’s apparent consent did not override the evidential concerns regarding the testator’s sound mind at the time of the later will's execution.

The court concluded that, given the substantial evidence suggesting the testator lacked sound mind when executing the later will, the proof of the penultimate will should proceed. The court acknowledged the beneficiary's silence but emphasised the importance of protecting the interests of potential claimants who might have a right to contest the will. The court granted the application for probate of the penultimate will, noting the necessity to protect the estate against potential future claims. The orders included the formal grant of probate for the penultimate will, subject to any future contest by interested parties within the legal timeframe.