Re Minenko; Minenko v Raines - [2019] VSC 644

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2018 13282

IN THE MATTER of the Will of JOAN MINENKO, deceased

BETWEEN:

ANDREW LEON MINENKO	Plaintiff
v
JACQUELINE RAINES	Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2019
DATE OF JUDGMENT:	23 September 2019
CASE MAY BE CITED AS:	Re Minenko; Minenko v Raines
MEDIUM NEUTRAL CITATION:	[2019] VSC 644

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COSTS – Where plaintiff discontinued application for probate of a later will – Whether testatrix lacked testamentary capacity – Whether conduct of the plaintiff was unreasonable – Whether plaintiff should pay costs personally on an indemnity basis – Parties to bear their own costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	S G R Wilmoth	Anderson Law
For the Defendant	N J McOmish	Peter G Arnheim & Associates

HIS HONOUR:

On 13 August 2018, the plaintiff applied for a grant of probate of the will of Joan Minenko (the deceased) dated 4 July 2016 (the 2016 will) as the co-executor under that will. Leave was reserved to the other named executor under the will, Monica Wagner (Monica).

At the time of her death on 4 July 2018, the deceased was widowed and survived by her seven children, including the plaintiff and the defendant.

The deceased had also executed a will dated 23 June 2010 (the 2010 will). Both the 2016 will and the 2010 will divide the residue of the deceased’s estate equally between her seven children. The two wills mirror each other except in the appointment of executors. The defendant is named as an executor in the 2010 will along with the plaintiff and Monica. As I have noted, the defendant is not an executor under the 2016 will.

Prior to the making of the 2016 will, on 27 April 2015, the Victorian Civil and Administrative Tribunal found that the deceased lacked the capacity to make an enduring power of attorney. In the context of that proceeding, Dr Julio Sison assessed the deceased on 11 April 2015 and provided a medical report dated 13 April 2015 in which he stated that the deceased was ‘unable to make reasonable decisions. Unable to give inform (sic) consent due to decreased judgment, poor reasoning and limited understanding’ and ‘unable to give inform (sic) consent and sign legal documents due to her medical condition dementia’. The plaintiff did not refer to this medical report or this proceeding in his affidavit filed in support of his application for probate in respect of the 2016 will.

The 2016 will was prepared by a legal practitioner, Mr Timothy Anderson. Mr Anderson was also a witness to the 2016 will. In his affidavit filed in this proceeding, he stated that ‘I read out the Will to the [deceased] and I asked her whether she understood the Will and wished to sign the Will. She confirmed that she did understand the Will and wished to sign…

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 Minenko; Minenko v Raines

Details

AGLC: Re Minenko; Minenko v Raines [2019] VSC 644
Case: [2019] VSC 644
Decision Date: 23 September 2019

CaseChat Overview and Summary

In the matter of Re Minenko; Minenko v Raines, the Federal Court of Australia was called upon to decide an issue concerning the costs incurred in relation to an application for probate of a will. The testatrix, who had passed away, left two wills. The first was executed in 1995, and the second was executed in 2011. The plaintiff, Minenko, initially sought to have the later will admitted to probate, but later discontinued the application. The defendant, Raines, was the executor of the earlier will and sought costs from the plaintiff on the basis that the plaintiff's conduct was unreasonable.

The court was required to determine whether the testatrix lacked testamentary capacity when she executed the second will, and whether the plaintiff's conduct in discontinuing the application was unreasonable. The court also needed to decide whether the plaintiff should be liable to pay the defendant's costs on an indemnity basis, and whether the parties should bear their own costs.

The court found that the testatrix did not lack testamentary capacity when she executed the second will, and that the plaintiff's conduct in discontinuing the application was not unreasonable. The court held that the plaintiff was not liable to pay the defendant's costs on an indemnity basis, and that the parties should bear their own costs. The court found that the plaintiff's conduct did not warrant an award of costs on an indemnity basis, and that the parties should bear their own costs. The court noted that the plaintiff's decision to discontinue the application was made in the context of a complex and sensitive family dispute, and that the plaintiff was entitled to act in what they believed to be their best interests.

Orders