Re Menzies - [2019] VSC 179

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2016 15563

IN THE MATTER of the will of ROY EDWARD MENZIES, deceased
BETWEEN:
GRAEME ROYDEN MOORE	Plaintiff
-and-
MELISSA ANNE KING and others (according to the attached schedule)	Defendants

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S PRB 2017 20663

IN THE MATTER of the will of ROY EDWARD MENZIES, deceased
APPLICATION BY:
GRAEME ROYDEN MOORE	Plaintiff

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S PRB 2017 20664

IN THE MATTER of the will of ROY EDWARD MENZIES, deceased
APPLICATION BY:
GRAEME ROYDEN MOORE	Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2018
DATE OF JUDGMENT:	22 March 2019
CASE MAY BE CITED AS:	Re Menzies
MEDIUM NEUTRAL CITATION:	[2019] VSC 179

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PROBATE — Where deceased executed three wills shortly before death — Objection to grant of last will on grounds of lack of testamentary capacity, knowledge and approval and suspicious circumstances — Where plaintiff also made application for grant of other two will — Plaintiff and defendants compromised the three related proceedings — Application for grant continued on undefended basis — Validity of testamentary document to be determined by Court — Probate of penultimate will granted — Veall v Veall (2015) 46 VR 123.

COSTS — Where costs not reasonable and proportionate to issues or amount in dispute — Civil Procedure Act 2010, s 24.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Shepherd	Sladen Legal
For the Defendant	Armstrong Legal

HER HONOUR:

Introduction

Roy Edward Menzies (‘the deceased’) died on 18 July 2016, aged 65 years. He was survived by his three daughters, Melissa King, Cindy Traves and Rachael Fox (‘the defendants’).

The deceased executed three wills shortly before his death. The wills are dated 11 July 2016, 7 July 2016 and 6 July 2016 respectively. The deceased named the plaintiff as his executor in each of the wills. The plaintiff is a long-standing friend of the deceased.

By originating motion filed 19 September 2016, the plaintiff seeks to propound the 11 July 2016 will. In the event that he is unsuccessful, by two other proceedings, he seeks to propound the 7 July 2016 will and, if necessary, the 6 July 2016 will.[1]
[1]S PRB 2017 20663 and S PRB 2017 20664 respectively.

At the date of death, the value of the deceased’s estate was approximately $682,650 consisting primarily of a leasehold interest and investment funds.

Procedural History

The defendants filed a caveat on 23 August 2016. After the plaintiff’s application was issued, the defendants filed grounds of objection on 4 October 2016 alleging that the deceased lacked testamentary capacity, did not know and approve of the contents of the 11 July 2016 will and that the 11 July 2016 will was made in suspicious circumstances. On 28 April 2017, the defendants, as caveators, filed particulars of the grounds of objection. Amongst other matters, the defendants alleged that the deceased was suffering from severe dementia in 2001.

By orders made…

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 Menzies

Details

AGLC: Re Menzies [2019] VSC 179
Case: [2019] VSC 179
Decision Date: 22 March 2019

CaseChat Overview and Summary

The case of Re Menzies involved a dispute over the validity of three wills executed by the deceased shortly before their death. The plaintiff, who was a beneficiary under the last will, objected to the grant of the last will on the grounds that the deceased lacked testamentary capacity, did not have knowledge and approval of the will, and that suspicious circumstances surrounded its execution. The plaintiff also applied for the grant of the second will, while the defendants sought the grant of the last will. The parties compromised the three related proceedings, resulting in the application for the grant of the last will proceeding on an undefended basis. The court had to determine the validity of the testamentary document.

The legal issues before the court were whether the deceased had testamentary capacity when executing the last will, whether they had knowledge and approval of the will, and whether there were any suspicious circumstances that would render the will invalid. The court also had to consider whether the costs awarded were reasonable and proportionate to the issues or amount in dispute.

In determining the validity of the testamentary document, the court found that the deceased had testamentary capacity, knowledge and approval of the last will, and that there were no suspicious circumstances. The court granted probate of the penultimate will, citing Veall v Veall (2015) 46 VR 123. Regarding costs, the court found that they were not reasonable and proportionate to the issues or amount in dispute, pursuant to section 24 of the Civil Procedure Act 2010.

The final orders of the court were that probate of the penultimate will be granted and that the costs awarded were not reasonable and proportionate to the issues or amount in dispute.

Orders