Re Menzies

Case [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

---

S PRB 2017 20663

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

---

S PRB 2017 20664

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

---

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

---

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.

---

APPEARANCES:

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

HER HONOUR:

Introduction

  1. 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’).

  1. 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. 

  1. 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.

  1. 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

  1. 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.

  1. By orders made…

Continue reading Re Menzies

Sign in free to access the full text

Details
AGLC
Re Menzies [2019] VSC 179
Case
[2019] VSC 179
Decision Date

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.