Re McKenzie: Watts v Cardell - [2025] VSC 295

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
IN ITS PROBATE JURISDICTION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2023 18563

IN THE MATTER of the Estate of KATHLEEN ELLEN VERONICA MCKENZIE (deceased)

BETWEEN:

CORY JAMES WATTS & ANOR (according to the attached Schedule)	Plaintiffs
v
LOUISE NARELLE CARDELL	Applicant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2025
DATE OF JUDGMENT:	28 May 2025
CASE MAY BE CITED AS:	Re McKenzie: Watts v Cardell
MEDIUM NEUTRAL CITATION:	[2025] VSC 295

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PROBATE — Application for the revocation of a grant of probate — Whether the applicant’s grounds of objection establish a prima facie case for revocation — Whether particulars of grounds of objection involving allegations that the deceased’s will was made in suspicious circumstances, was procured by undue influence or that the deceased did not know or approve the contents of the will should be struck out — Montalto v Sala (2016) 15 ASTLR 393 and Gardiner v Hughes [No 2] [2019] VSCA 198 referred to — Offending grounds unsustainable and should be struck out.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Gannon of counsel	BJT Legal
For the Applicant	Mr P Duggan of counsel	Mann Legal

HER HONOUR:

Introduction and background

Kathleen McKenzie (‘deceased’) died on 7 March 2023 at the age of 99. She was not married at the time of her death, and had borne no children. She made her last will on 7 March 2018 (‘2018 will’), in which she nominated the plaintiffs, her great-nephew, Cory Watts (‘Cory’) and another person, Paul Ryan, as the executors and trustees of her estate.

The plaintiffs obtained probate of the 2018 will on 24 August 2023. The inventory of assets annexed to the application for a grant of probate shows that the deceased held real estate (being farmland) valued at $2,665,000, and personal assets (mostly livestock, shares and chattels) valued at $119,203.53. The 2018 will, which was drawn up and witnessed by a solicitor from Harwood Andrews,[1] provided for pecuniary legacies of $2,000 each to be paid to Cory, his siblings Scott and Kassey, and their mother Lucinda, with the residue of the estate to pass to Cory, and then to Scott if Cory predeceased the deceased.
[1]The second witness was a law clerk employed by Harwood Andrews.

The dispositions in the 2018 will were different from those made in the deceased’s penultimate will (‘2014 will’), which was made on 17 December 2014. In the 2014 will, the deceased left some modest pecuniary legacies to some relatives, and left the bulk of her estate to her sister, Noela Stevens (who died in 2017), then to a nephew, Graham Fridey, who also predeceased the deceased, then to any of Graham’s living children.[2] Also in evidence were wills made by the deceased in 1998, 2008 and 2011 (‘prior wills’).
[2]The current applicant, Louise Cardell, is Graham Fridey’s only child.

On 9 April 2024, Lucinda Watts, the niece of the deceased and Cory’s…

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 McKenzie: Watts v Cardell

Details

AGLC: Re McKenzie: Watts v Cardell [2025] VSC 295
Case: [2025] VSC 295
Decision Date: 28 May 2025

CaseChat Overview and Summary

In the matter of the Estate of Kathleen Ellen Veronica McKenzie, the Court found that the applicant, Louise Cardell, had not established a prima facie case for revocation of the grant of probate of the deceased's will. The Court struck out the grounds of objection that alleged the will was made in suspicious circumstances, was procured by undue influence, or that the deceased did not know and approve the contents of the will. The Court found that the particulars and evidence provided by the applicant were speculative and lacked a proper factual basis. The applicant had not alleged any conduct by the executor, Cory Watts, that amounted to undue influence over the deceased. The Court noted that the applicant had not shown how the deceased was fearful of Cory, and that the evidence suggested that other family members could have made inquiries about the deceased's well-being. The Court also found that the change in testamentary dispositions over time was not unusual or suspicious, given the deceased's history of altering her will. The Court reserved the applicant's liberty to apply to amend the grounds, provided that any such application was supported by affidavit evidence. The plaintiffs' application for summary judgment was not granted, as the Court found that striking out the offending grounds was sufficient at this stage. The Court directed the parties to confer on the form of order and the question of costs.

Orders