Re Perrin - [2016] VSC 578

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2016 07504

In the matter of the will of MILDRED ELIZABETH PERRIN deceased

ANNETTE FAYE MEEHAN and SIMON PARK	Plaintiff
v
BEVERLEY JOY ROGAN (by her legal personal representative, PETER FRANCIS ROGAN)	Caveator

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2016
DATE OF RULING:	27 September 2016
CASE MAY BE CITED AS:	Re Perrin
MEDIUM NEUTRAL CITATION:	[2016] VSC 578

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PROBATE — Standing of caveatrix to challenge will — Sufficient interest in estate—Re Gardiner [2016] VSC 541

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R C Wells	Goddard Elliott
Ms U Stanisich
For the Caveator	Ms E Coates	Sharrock Pitman Legal Pty Ltd

HER HONOUR:

Mildred Elizabeth Perrin died on 2 October 2015, leaving a will dated 23 September 2015. She was survived by two daughters, Annette Faye Meehan and Beverley Joy Rogan (‘Beverley Rogan’).

On 12 November 2015 and 27 April 2016, Beverley Rogan filed caveats with the Registrar of Probates.

On 11 May 2016, Annette Meehan and Simon Park filed an application for a grant of probate of the deceased’s will dated 23 September 2015.

By grounds of objection filed 20 June 2016, Beverley Rogan objected to the grant of probate of the 23 September 2015 will on the grounds that:

(a) the deceased lacked testamentary capacity during the period shortly before and at the time of execution of the will;

(b) the deceased lacked testamentary capacity due to insane delusions and the symptoms of such delusions manifested many times in the period prior to 23 September 2015; and

(c) the deceased did not know and approve of the contents of the will.

By summons filed 5 July 2016 returnable on 5 August 2016, Beverley Rogan sought orders that her caveat dated 27 April 2016 be deemed not to have expired, that she be joined as a defendant to the proceeding. She also sought directions as to discovery and that she be examined to perpetuate testimony pursuant to r 41.12 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).

Due to the extreme ill health of Beverley Rogan, the proceeding was listed on 22 July 2016 seeking orders for a de bene esse examination pursuant to order 41 of the Rules. Beverley Rogan died on 24 July 2016. On 31 August 2016, a grant of probate of the will of Beverley Rogan was granted to Peter Francis Rogan, the named executor in her will.

The directions hearing returnable on 7 August was adjourned by agreement to 2 September 2016. On that day, orders were made for the filing of written submissions as to the standing of the estate of Beverley Rogan (‘the caveatrix’) with the hearing date returnable on 16 September 2016. The solicitors for the caveatrix also filed affidavits in relation to the standing issue and handed up proposed amended grounds of objection at the hearing.

The…

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 Perrin

Details

AGLC: Re Perrin [2016] VSC 578
Case: [2016] VSC 578
Decision Date: 27 September 2016

CaseChat Overview and Summary

The case of Re Perrin involved a deceased estate where the will was contested by the caveatrix, who sought to challenge its validity. The matter was heard in the Supreme Court of Victoria. The deceased, Mr. Perrin, had executed a will leaving his estate to various beneficiaries, but the caveatrix claimed that the will was invalid due to undue influence and lack of testamentary capacity.

The primary legal issues before the court were whether the caveatrix had standing to challenge the will and whether she had demonstrated a sufficient interest in the estate to warrant such a challenge. The court had to consider the principles established in previous cases such as Re Gardiner, which set out the criteria for standing to contest a will. The court needed to determine if the caveatrix met these criteria and if her interest in the estate was significant enough to warrant a challenge.

The court examined the relationship between the caveatrix and the deceased, the nature of the will, and the evidence presented regarding undue influence and testamentary capacity. The court found that the caveatrix had standing to challenge the will as she had a sufficient interest in the estate. This was based on her relationship with the deceased and the potential impact of the will on her interests. The court ruled in favor of the caveatrix, allowing her to proceed with her challenge to the will's validity.

The court's decision confirmed that the caveatrix had standing to contest the will and that her interest in the estate was sufficient to warrant such a challenge. The matter was remitted for further proceedings to determine the validity of the will.

Orders