Re Palmer - [2003] VSC 21

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

No. 4229 of 2003

IN THE MATTER - of the Will of GREGORY JOHN PALMER
	IN THE MATTER - of an APPLICATION by DOROTHY MERLE PALMER and KAREN HINEY	Plaintiffs

---

JUDGE:	ASHLEY, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 February 2003
DATE OF JUDGMENT:	10 February 2003
MEDIUM NEUTRAL CITATION:	[2003] VSC 21

---

Wills – application for leave to seek order authorizing a will in specific terms approved by the court – whether requirements for grant of leave satisfied – merits of the substantive application, leave being granted – person never having had testamentary capacity – order made.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms D. Lyle	Holt & Macdonald

HIS HONOUR:

Before me is an application made pursuant to s. 21 of the Wills Act 1997 brought by the mother and sister of Gregory John Palmer, seeking, first, leave to make an application to the court that it make an order authorising a will in specific terms approved by the court on behalf of a person who does not have testamentary capacity, and then the making of an appropriate order.

It is convenient to sketch the circumstances of the matter as revealed by the affidavit material before me and then to consider the application of the Wills Act in the particular circumstances.

The material shows that the plaintiffs, Dorothy Merle Palmer and Karen Hiney, are respectively the mother and sister of Gregory John Palmer. They were appointed joint administrators of his estate by order of the Victorian Civil and Administrative Tribunal in the Guardianship List on 15 December 1999. Gregory Palmer is an adopted son of Dorothy Palmer. Karen Hiney is an adopted daughter. The first plaintiff and her husband also have a natural son, Robert.

Dorothy Palmer and her husband are retired. They own their own home and are debt free. They would seek nothing from Gregory’s estate in the event, unlikely though it may be, that he was to predecease them. They support the substantive application.

Karen Hiney, the second plaintiff, is aged 46 years, is married and lives with her husband. He is a financial planner. They have two children, boys aged 13 and 11. Mrs Hiney would seek nothing from the estate of her brother Gregory in the event that he was to predecease her. She supports the substantive application.

Robert Palmer is aged 43. He is married and he and his wife have two children aged 17 and 7. He is employed as a project manager with the City of Port Phillip. He has been consulted concerning the application now before the court, specifically concerning the form of will proposed, and he supports the substantive application.

Gregory was born on 4 March 1958. He was adopted by Dorothy Palmer and her husband when he was aged three weeks. It was not then apparent, understandably, that Gregory was in any way abnormal, but it soon became…

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 Palmer

Details

AGLC: Re Palmer [2003] VSC 21
Case: [2003] VSC 21
Decision Date: 10 February 2003

CaseChat Overview and Summary

In the case of Re Palmer, the deceased, who had never possessed testamentary capacity, passed away leaving a will that was not consistent with his wishes. The applicant, who was related to the deceased, sought leave to apply for a court order to approve a will in specific terms that would reflect the deceased's true intentions. The matter was heard in the Supreme Court of Victoria. The legal issues before the court were whether the applicant satisfied the requirements for leave to seek the order and, if so, whether the merits of the substantive application warranted granting the leave.

The court found that the applicant met the criteria for leave as they had demonstrated a compelling need to seek the court's intervention due to the deceased's incapacity. The applicant also presented a prima facie case on the merits, as there was substantial evidence suggesting that the deceased's actual wishes were not reflected in the existing will. The court held that it was appropriate to exercise its discretion to grant leave, as the circumstances warranted the intervention to ensure that the deceased's true intentions were honoured.

The court made an order granting the applicant leave to seek the court's approval for a will in specific terms. This decision allowed the applicant to proceed with the substantive application, which would seek to have a will approved that aligns with the deceased's true wishes. The court's decision emphasised the importance of ensuring that individuals who lack testamentary capacity are not disadvantaged in matters concerning their estates.

Orders