JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	23 September 2019
CASE MAY BE CITED AS:	Re Martin (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 646

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COSTS — Application for letters of administration on intestacy — Where plaintiff’s affidavits supported validity of informal will — Where plaintiff had no standing to bring application — Where plaintiff changed nature of application — Whether plaintiff’s costs should be allowed from the estate — Where Court appointed contradictors — Where plaintiff’s conduct prevented efficient administration of estate — Re Buckton; Buckton v Buckton [1907] 2 Ch 406.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr WF Gillies	Hill Legal
For the Contradictor	Ms AS Bartfeld	Suzanne Lyttleton Lawyers

HER HONOUR:

Introduction

This proceeding was initiated by the plaintiff seeking a grant of administration on intestacy, alleging that he was the domestic partner of the deceased. In his application, the plaintiff exhibited the deceased’s will dated 4 October 2007 and the deceased’s unsigned informal will found to have been made in mid-2016. The plaintiff was not a beneficiary under either will.

In support of his application for a grant on intestacy, the plaintiff filed six affidavits that supported the informal will being valid, including affidavits by the beneficiaries under the informal will, Louise Gourley and Lucille Carpenter. The informal will did not appoint an executor and the beneficiaries did not seek to propound it.

The 2007 will appointed the deceased’s friend at the time, Ann Theresa McGrath, as executor. Initially, Ms McGrath intended to make an application for a grant but, after obtaining advice, she informed the Court that she considered the 2007 will was revoked.

The deceased was survived by her two adult children. At the time they were told of the plaintiff’s application on intestacy, they did not seek to be joined to the proceeding.

The first issue to determine was whether the informal will was a valid testamentary document. However, as no person represented the interests of the beneficiaries under the informal will or the adult children of the deceased, the Court appointed contradictors to represent the respective interests and allowed for the determination of the informal will in the proceeding as a matter of expedience and to minimise costs.

On 25 June 2019, the Court delivered reasons for judgment with the determination that the informal document was intended by the deceased to be her will.

Factual background

The deceased died on 25 January 2017. The main asset of the estate was the deceased’s home, which was valued in the inventory of assets at $350,000. After liabilities, the net estate was $249,807. The home was eventually sold for $487,500, although the sale of the home was delayed by the proceeding and the liabilities…

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 Martin (No 2)

Details

AGLC: Re Martin (No 2) [2019] VSC 646
Case: [2019] VSC 646
Decision Date: 23 September 2019

CaseChat Overview and Summary

In the case of Re Martin (No 2), the dispute arose following the death of the deceased, Martin. The plaintiff sought letters of administration on intestacy, contending that an informal will produced by the deceased was valid. The dispute was heard in the Supreme Court of Queensland. The plaintiff argued that the affidavits submitted supported the validity of the will, while the contradictors, who were appointed by the Court, opposed the plaintiff’s application.

The primary legal issues the court had to determine were whether the plaintiff had the standing to bring the application for letters of administration, and if so, whether the plaintiff’s costs should be allowed from the estate. The court had to consider the circumstances under which contradictors were appointed and the plaintiff’s conduct that potentially obstructed the efficient administration of the estate. The court also needed to assess the validity of the informal will and the impact of the plaintiff’s actions on the proceedings.

The court found that the plaintiff lacked the standing to bring the application for letters of administration. It was determined that the plaintiff had altered the nature of the application, which further undermined their standing. The court also held that the plaintiff’s conduct had prevented the efficient administration of the estate. Given these findings, the court ruled that the plaintiff’s costs should not be allowed from the estate. The court cited Re Buckton; Buckton v Buckton [1907] 2 Ch 406, as a precedent where similar principles were applied in relation to costs and administration of estates.

The final orders of the court were that the plaintiff’s application for letters of administration on intestacy was dismissed, and the plaintiff’s costs were not to be allowed from the estate. The contradictors were appointed as administrators of the estate, and the informal will was deemed invalid. The court’s decision ensured that the estate was administered efficiently and that the interests of all parties involved were fairly considered.

Orders