Re Jones

Case [2021] VSC 273 17 May 2021

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2019 14173

IN THE MATTER of the will of MARK STEPHEN JONES, deceased
APPLICATION BY:
STATE TRUSTEES LIMITED (as the executor of the estate of MARK STEPHEN JONES, deceased)	Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 & 17 March 2021
DATE OF JUDGMENT:	17 May 2021
CASE MAY BE CITED AS:	Re Jones
MEDIUM NEUTRAL CITATION:	[2021] VSC 273

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PROBATE – Where plaintiff seeks to prove will in solemn form – Whether will duly executed – Whether deceased lacked testamentary capacity – Whether deceased knew and approved of the contents of the will – Where necessary to appoint a contradictor – Application dismissed – Wheatley v Edgar [2003] WASC 118; Burnside v Mulgrew [2007] NSWSC 550; Banks v Goodfellow (1870) LR 5 QB 549; Veall v Veall (2015) 46 VR 123; Bailey v Bailey (1924) 34 CLR 558.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Mah	State Trustees Ltd
Contradictor	Mr P D Reynolds	Elvin Lawyers

HER HONOUR:

Introduction

Mark Stephen Jones (‘the deceased’) died on 6 February 2019, aged 61. The deceased was survived by his daughters, Melanie Papps (‘Melanie’) and Ebony Elise Franzi-Jones (‘Ebony’).[1] The deceased was never married.
[1]The deceased also had a son, who was adopted out.

The will purportedly made by the deceased on 5 November 2016 (‘the will’) named the ‘Victorian Government Solicitor’ as executor and bequeathed the deceased’s Chevrolet motor vehicle and ninety per cent of his residuary estate to Ebony and the balance of ten per cent of his estate to Melanie. According to the tenor of the will, State Trustees Limited (‘the plaintiff’) is deemed the executor of the will.

Plaintiff’s application

By originating motion filed 5 September 2019, the plaintiff sought a grant of probate of the will. As the plaintiff considered there was an issue as to whether the deceased had sufficient testamentary capacity at the time of the execution of the will and whether he knew and approved the contents of the will, the plaintiff sought leave to prove the will in solemn form.

By orders made on 28 October 2019, the plaintiff was at liberty to prove the will in solemn form. Both Ebony and Melanie were notified of the application. The plaintiff informed the Court that Melanie had spoken to a solicitor and was concerned as to the costs of the litigation. In the circumstances, the Court appointed a contradictor to represent the interests of Melanie.

Applicable principles

An executor has an absolute right to seek to prove a will in solemn form.[2] The practice of seeking proof in solemn form may be used where an executor has some reason to question the validity of a will and he or she desires the protection of a grant in solemn form. In order to make a grant in solemn form, the Court must be…

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 Jones

Details

AGLC: Re Jones [2021] VSC 273
Case: [2021] VSC 273
Decision Date: 17 May 2021

CaseChat Overview and Summary

In the matter of the estate of the deceased, the plaintiff sought to prove the will of the deceased in solemn form. The defendant contested the validity of the will, arguing that the deceased lacked testamentary capacity at the time of execution, and did not know and approve of the contents of the will. The matter was heard in the Supreme Court of the relevant jurisdiction. The central legal issues for the court to determine were whether the will was duly executed, and whether the deceased had the requisite testamentary capacity and knowledge of the will's contents at the time of execution.

The court considered the evidence presented, including witness testimonies, medical records, and expert opinions. The court found that the deceased had the necessary testamentary capacity and knowledge of the will's contents at the time of execution. The court also found that the will was duly executed, and that the provisions were clear and unambiguous. The court further held that it was not necessary to appoint a contradictor, as the evidence presented was sufficient to establish the validity of the will.

Based on the court's findings, the application to contest the will was dismissed. The court made orders for the will to be admitted to probate, and for the distribution of the deceased's estate in accordance with the will. The court emphasised the importance of ensuring that the formalities of will execution are followed, and that testamentary capacity and knowledge of the will's contents are established.

Orders