Re Munro

Case [2018] VSC 747 4 December 2018

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS,EQUITY AND PROBATE LIST

S CI 2018 04390

IN THE MATTER of the estate of ALAN GROWNDS MUNRO (deceased)

PATRICIA MARGARET MUNRO and ALAN JOHN CLARKE	Plaintiffs
v
BRENT FRASER MUNRO	Caveator

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2018
DATE OF JUDGMENT:	4 December 2018
CASE MAY BE CITED AS:	Re Munro
MEDIUM NEUTRAL CITATION:	[2018] VSC 747

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PROBATE – Caveat objecting to grant of probate lodged with Registrar of Probates – Caveator filed grounds of objection with particulars – Grounds alleging executors’ conflict of interest and duty, lack of testator’s testamentary capacity and testator did not know and approve the contents of his will – Whether caveator has a real prospect of success on grounds of objection – Supreme Court (Administration and Probate) Rules 2014, r 8.08(a)(iii).

PRACTICE AND PROCEDURE – Plaintiffs seek summary dismissal of caveat – Whether defendants have no real prospect of success – Whether discretion should be exercised to allow matter to proceed to trial – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 – Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 – Re Demediuk [2016] VSC 587 – Civil Procedure Act, ss 62, 63(1), 64.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J L Smith	Marsh & Maher Richmond Bennison
For the Caveator	Mr J Rizzi	Portfolio Law Pty Ltd

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Affidavits............................................................................................................................................. 2

Background......................................................................................................................................... 3

Caveat grounds................................................................................................................................... 5

Applicable Law................................................................................................................................... 7

Summary judgment...................................................................................................................... 7
Principles governing caveats.................................................................................................... 11
Passing over executors............................................................................................................... 12
Testamentary capacity................................................................................................................ 17
Deceased must know and approve of the contents of the will............................................ 20

Prior Wills.......................................................................................................................................... 21

Is there a case to pass over the executors?.................................................................................... 23

Broadbeach property.................................................................................................................. 26
Munro Pension Plan................................................................................................................... 27
Ivanhoe property......................................................................................................................... 30
Eaglemont property.................................................................................................................... 31
Munro Taxi Services................................................................................................................... 35
Taxi licence compensation......................................................................................................... 37
Loan by the deceased to Combined Panels Pty Ltd.............................................................. 39
Passing over the executors - conclusion.................................................................................. 39

Is there a case that the deceased lacked testamentary capacity?.............................................. 40

Is there a case that the deceased did not know and approve the contents of the will?...... 46

Conclusion......................................................................................................................................... 49

HIS HONOUR:

Introduction

These reasons concern an application by the plaintiffs to summarily dismiss a caveat lodged by Brent Fraser Munro (Caveator) against any grant of representation to the plaintiffs of the Will and Estate of Alan Grownds Munro (deceased), his father. The plaintiffs are the deceased’s widow, Patricia Margaret Munro (Patricia) and an old friend of the deceased (and of Patricia), Alan John Clarke (Alan Clarke).

The caveat was lodged on 6 March 2018. On 19 March 2018 the plaintiffs filed an originating motion for a grant of probate to them of the will of the deceased. On 18 April 2018 the Caveator lodged his grounds of objection, with particulars. On 24 April 2018 the Caveator issued a summons for directions as…

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 Munro

Details

AGLC: Re Munro [2018] VSC 747
Case: [2018] VSC 747
Decision Date: 4 December 2018

CaseChat Overview and Summary

In the matter of Re Munro, the case involved a caveat lodged against the grant of probate by a caveator, who filed grounds of objection with particulars. The caveator alleged a conflict of interest and breach of duty by the executors, a lack of testamentary capacity in the deceased, and that the deceased did not know and approve the contents of his will. The case was heard in the Supreme Court of Victoria.

The primary legal issues the court needed to address were whether the caveator had a real prospect of success on the grounds of objection and whether the defendants had any real prospect of success. The court also needed to determine whether discretion should be exercised to allow the matter to proceed to trial. The court considered the Supreme Court (Administration and Probate) Rules 2014, r 8.08(a)(iii), and relevant case law such as Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, Mandie v Memart Nominees Pty Ltd, and Re Demediuk. Additionally, the court applied the provisions of the Civil Procedure Act, ss 62, 63(1), and 64.

The court found that the caveator did not have a real prospect of success on the grounds of objection. The court held that the evidence presented by the caveator was insufficient to establish the alleged conflict of interest and breach of duty by the executors. Furthermore, the court determined that the deceased had testamentary capacity and that he knew and approved the contents of his will. Consequently, the court exercised its discretion under the Civil Procedure Act to summarily dismiss the caveat.

The final orders of the court were that the caveat be dismissed with costs. The defendants were awarded costs on an indemnity basis, reflecting the court's determination that the caveator had no real prospect of success and that the defendants were entitled to protection of their rights.

Orders