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Re Maddock; Bailey v Maddock (No 2)

Re Maddock; Bailey v Maddock (No 2)

Case [2023] VSC 2 12 January 2023

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2020 24528

MARCIA BAILEY	Plaintiff
v
NELLIE THELMA O’CONNOR-GUNN and NORMAN WILLIAM MADDOCK JUNIOR (as executors of the will and estate of SHIRLEY TAYLOR MADDOCK, deceased)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	12 January 2023
CASE MAY BE CITED AS:	Re Maddock; Bailey v Maddock (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 2

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COSTS – Contested probate proceeding – Where former defendant objected to grant on grounds of lack of testamentary capacity and suspicious circumstances – Where plaintiff did not accept open offer – Where determination of validity of will required prior to approval of compromise – Where plaintiff unsuccessful – Where failure to accept open offer was unreasonable in the circumstances – Supreme Court Act 1986 (Vic) s 24 – Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Maurice Blackburn
For the Defendants	Hicks Oakley Chessell Williams[1]

[1]The former defendant, Shirley Taylor Maddock, by her administrator, Australian Unity Trustees Limited, was represented by KCL Law.

HER HONOUR:

Introduction

This proceeding concerned the validity of the last will (‘the 2020 will’) of Norman William Maddock (‘the deceased’). Marcia Bailey, a friend of the deceased, is the plaintiff (‘the plaintiff’). The defendant was the deceased’s widow, Shirley Taylor Maddock, by her administrator, Australian Unity Trustees Limited (‘AUTL’). Mrs Maddock died on 30 May 2022 (‘the former defendant’).

Judgment was delivered on 21 June 2022.[2] The proceeding was dismissed, save for costs. The parties were unable to agree on the costs of the proceeding and filed submissions as to their costs.
[2]Re Maddock; Bailey v Maddock [2022] VSC 346.

By orders made 6 December 2022, the former defendant’s children, Nellie Thelma O’Connor-Gunn and Norman William Maddock Junior, in their capacity as executors and trustees of the former defendant’s estate, were substituted as the defendants in the proceeding (‘the defendants’).

Factual background

The details of the instructions given by the deceased to a solicitor, Anthony Naughton of the firm Morley Naughton Pearn & Cook (‘MNPC’), for the making of the deceased’s last three wills and a power of attorney in favour of the plaintiff, as well as in relation to the proposal that the deceased gift a property located in Bentleigh East (‘the Bentleigh East property’) to the plaintiff, are set out in the reasons for judgment.[3] In regard to the latter issue, Mr Naughton opined that if the deceased were to predecease the former defendant, there would be litigation by the former defendant and the deceased’s children.[4] As became clear, the former defendant had already lodged a caveat over the Bentleigh East property. Ultimately, the deceased devised the Bentleigh East property to the plaintiff in the 2020 will.
[3]Ibid [6]–[8], [43]–[57].
[4]Ibid [53].

2020

The deceased died on 17 June 2020. On 14…

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 Maddock; Bailey v Maddock (No 2)

Details

AGLC: Re Maddock; Bailey v Maddock (No 2) [2023] VSC 2
Case: [2023] VSC 2
Decision Date: 12 January 2023

CaseChat Overview and Summary

In this case, the plaintiff, Bailey, contested the defendant's probate of the will of their late father, Maddock. The defendant objected to the grant on the basis that Maddock lacked testamentary capacity and that the circumstances surrounding the will were suspicious. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the plaintiff's refusal to accept an open offer for a settlement was unreasonable, considering the need to determine the validity of the will before approving the compromise.

The court considered the relevant statutory provisions and case law, including Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435, to assess the reasonableness of the plaintiff's conduct. The court determined that the plaintiff's refusal was unreasonable given the circumstances, particularly as the resolution of the validity of the will was a prerequisite for approving the compromise. This was deemed to be an important factor in assessing the costs, as the Supreme Court Act 1986 (Vic) s 24 allows the court to consider such matters when deciding on costs in contested probate proceedings.

The court found that the plaintiff's refusal to accept the open offer was unreasonable and ordered that costs be paid by the plaintiff. The court's decision hinged on the necessity of resolving the validity of the will prior to approving the compromise and the plaintiff's unreasonable conduct in refusing the open offer. This case underscores the importance of considering the broader context and procedural requirements when assessing costs in contested probate proceedings.

Orders