JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers, written submissions dated 29 July 2016 and 10 August 2016
DATE OF JUDGMENT:	12 August 2016
CASE MAY BE CITED AS:	Re Mangan
MEDIUM NEUTRAL CITATION:	[2016] VSC 480

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COSTS — Application for admission of informal codicil to probate — Where further evidentiary requirements of the Court not met — Application referred to Registrar of Probates for grant of will without informal codicil — Plaintiffs sought costs of application to propound informal codicil out of the estate — Whether usual order as to costs should apply — Exceptions to the usual order as to costs in probate litigation — Whether the litigation is the fault of the deceased — Reasonableness of the plaintiff in making the application — No evidence of testamentary intention and other matters — No duty to propound an informal document — Plaintiffs’ reasonable professional fees to make inquiries into and investigate the evidence for the application be paid out of the estate otherwise plaintiffs to bear own costs — Mitchell v Gard (1863) 3 Sw & Tr 275; (1863) 164 ER 1280 — Re Hodges (1988) 14 NSWLR 698

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	—	Whiting Lawyers

HER HONOUR:

Background

By originating motion filed 17 March 2016, the plaintiffs, who are two of the executors named in the will of Louis Joseph Mangan dated 23 April 2009, sought to propound his will and an informal codicil dated 19 May 2015 (‘the informal codicil’). The informal codicil was not executed in accordance with s 7 of the Wills Act 1997. The deceased died aged 93 years on 27 May 2015, eight days after the date of the informal codicil.

In seeking to propound the informal codicil, the plaintiffs also sought leave to make application, either orally or by way of summons, for orders that the principal legatee, in an amount of $1 million, named as ‘The Cabrini Research Foundation’ in the informal codicil, be construed as a reference to an administrative unit within Cabrini Hospital known as ‘Cabrini Foundation’, said by the plaintiffs to be the deceased’s intended beneficiary.

Due to the evidentiary requirements not being met by the plaintiffs at the first instance, the Court was not satisfied that the deceased intended the informal document to form part of his will. On 7 June 2016, the plaintiffs were informed of the evidentiary requirements that the Court considered had not been met and leave was granted to them to file any further affidavits in support of the application on or before 21 June 2016.

The plaintiffs determined that the further evidentiary requirements could not be met. By email dated 9 June 2016, the solicitors for the plaintiffs informed the Court that the plaintiffs did not seek to rely…

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 Mangan

Details

AGLC: Re Mangan [2016] VSC 480
Case: [2016] VSC 480
Decision Date: 12 August 2016

CaseChat Overview and Summary

In the matter of Re Mangan, the dispute arose from an application for the admission of an informal codicil to a deceased's will to probate. The case was heard in the Supreme Court of New South Wales. The plaintiffs sought to have the informal codicil admitted to probate, arguing it reflected the deceased's testamentary intentions. The defendants opposed the application, contending that the informal document did not meet the evidentiary requirements for admission and that the application was without merit.

The court was required to determine whether the plaintiffs were entitled to costs incurred in making the application for the informal codicil. The central legal issues revolved around the exceptions to the usual order as to costs in probate litigation and whether the litigation could be attributed to the fault of the deceased. The court had to consider whether the plaintiffs acted reasonably in making the application and whether there was any evidence of testamentary intention in the informal document.

The court held that the plaintiffs were not entitled to costs from the estate as the application was without merit and no evidence of testamentary intention was presented. The court emphasised that there is no duty to propound an informal document and that the plaintiffs' professional fees for investigating the evidence for the application should be paid from the estate. However, the plaintiffs were to bear their own costs. The court referred to Mitchell v Gard and Re Hodges to support its decision, noting that the plaintiffs' application was unreasonable given the lack of evidence and the absence of any testamentary intention in the informal document.

The final orders of the court were that the plaintiffs' reasonable professional fees for investigating the evidence for the application should be paid out of the estate, but the plaintiffs were to bear their own costs. The application for the admission of the informal codicil to probate was dismissed.

Orders