Re Matthews - [2022] VSC 15

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2020 07465

IN THE MATTER OF the will and estate of JAMES WILLIAM MATTHEWS, deceased

APPLICATION BY:

ANDREW MARK ALEXANDER
(in his capacity as executor of the will and trustee of the estate of the deceased

Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2021
DATE OF JUDGMENT:	25 January 2022
CASE MAY BE CITED AS:	Re Matthews
MEDIUM NEUTRAL CITATION:	[2022] VSC 15

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PROBATE – Where caveat objecting to grant of probate lodged with Registrar of Probates – Where caveator filed grounds of objection and particulars – Whether caveator’s particulars establish a prima facie case – Alleged lack of testamentary capacity – Alleged undue influence – Where will rational on its face and duly executed – Insufficient factual basis – No case for investigation – Banks v Goodfellow (1870) LR 5 QB 549.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R Grayson Morison	Martin Middleton Oates Lawyers
For the Caveator	Mr A Burnett	Petersen Westbrook Cameron Pty Ltd

HER HONOUR:

Introduction

James William Matthews died on 18 May 2019, aged 34 years. Some months before the deceased made his will dated 17 May 2019, he was diagnosed with terminal cancer. At the date of his death, the deceased was not married and had no children.

Pursuant to his will, the deceased appointed the plaintiff as his executor, bequeathed certain chattels to his godson and the plaintiff, devised his interests in two Tasmanian properties to his grandparents and left the residue of his estate to the plaintiff. The deceased’s father, being the caveator, receives no provision under the terms of the will.

The deceased’s estate is valued at approximately $785,734 comprising personal estate in Victoria and New South Wales and the two properties in Tasmania.

Procedural history

On 15 May 2020, the plaintiff filed an application for a grant of probate of the will.

On 19 May 2020, the plaintiff’s solicitor received a requisition from the Registrar of Probates requesting that medical evidence on oath be filed to establish the testamentary capacity of the deceased at the time the will was executed.

On 16 October 2020, the plaintiff filed three affidavits in response to the Registrar’s requisition. The affidavits were sworn by the lawyer who took the instructions for the will, the lawyer who attended on the deceased to execute his will and the lawyer with the conduct of the application for the grant of probate. On 20 October 2020 copies of the sworn affidavits were provided to the solicitors for the caveator, Petersen Westbrook Cameron Pty Ltd (‘PWC’).

On 21 October 2020, the caveator filed a caveat in the probate proceeding.

On 16 November 2020, the caveator filed grounds of objection alleging that the deceased lacked testamentary capacity shortly before and at the time he executed the will, alternatively, the will was procured by the undue influence of the plaintiff.

On…

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 Matthews

Details

AGLC: Re Matthews [2022] VSC 15
Case: [2022] VSC 15
Decision Date: 25 January 2022

CaseChat Overview and Summary

The case of Re Matthews involved an objection to the grant of probate of a will. The caveat was lodged with the Registrar of Probates by a party questioning the validity of the will. The primary issues before the court were whether the caveator had established a prima facie case through their grounds of objection and particulars. The specific grounds of objection were a claim of the deceased's lack of testamentary capacity and alleged undue influence in the creation of the will.

The court examined whether the caveator's particulars were sufficient to establish a prima facie case. The will in question appeared rational on its face and was duly executed, which made the burden on the caveator more challenging to meet. The court found that the particulars provided did not establish a sufficient factual basis to warrant an investigation into the validity of the will. This decision was grounded in the principles set out in Banks v Goodfellow, where it was held that unless the caveator's particulars disclose a reasonable cause for suspecting the will's invalidity, the caveat should not be sustained. Given the lack of evidence, the court concluded that no case had been made out for investigation.

Consequently, the court dismissed the caveat and ordered that probate be granted to the executor named in the will. This outcome was based on the insufficient evidence presented by the caveator to challenge the will's validity on the grounds of testamentary capacity or undue influence. The court's decision underscored the high threshold that must be met to successfully contest the grant of probate when the will appears valid at first glance.

Orders