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:

1. 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’). 

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

1. 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.

1. 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.

1. 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’).

1. 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.

1. 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.

1. The plaintiffs submitted that because the caveatrix is not a beneficiary under the penultimate will and because, as a residuary beneficiary, she will receive no distribution under the last will after the debts and funeral expenses are paid, she has no beneficial interest in the estate and therefore does not have standing.

1. The caveatrix is a named beneficiary under the deceased’s last will which in and of itself provides her with a beneficial interest in the estate and gives her certain rights, for example, the caveatrix had the right to bring the application pursuant to s 15 of the Administration and Probate Act 1958 in proceeding number S CI 2016 01647 as a beneficiary of the estate. Prima facie, she would also have rights as a beneficiary to seek an administration of the estate pursuant to s 28 of the Administration and Probate Act 1958 if concerns arose regarding its administration.  Similarly, she also has the right to challenge the final will if she is able to establish a prima facie case in relation to the grounds of objection filed 17 June 2016,[1] being lack of testamentary capacity and lack of knowledge and approval.[2]

   [1]The caveatrix by her counsel provided the Court with proposed amended grounds of objection dated 16 September 2016.

   [2]Re Gardiner [2016] VSC 541 (9 September 2016).

1. On the date the deceased executed her final will she was in palliative care at the Casey Hospital.  The caveatrix asserts that the deceased was on a morphine drip.  She also asserts that around this time and for some years prior the deceased suffered from insane delusions, which may not negate capacity but should be investigated.  In my view, the combination of the deceased’s age, her hospitalisation and the possibility of her mental health issues at the time of her last will provide sufficient grounds to warrant an investigation of the deceased’s last will.

1. The caveatrix has also included particulars that purport to challenge the wills of the deceased made on 6 February 2015, 11 April 2014 and 3 April 2014.  No applications have been made in respect of these wills.  It is also not known whether the deceased destroyed these three wills or her preceding two wills dated 10 October 2012 and 30 June 2008.  If this is the case, the presumption of revocation may apply.  Prima facie, the caveatrix would have standing to challenge each of these wills as set out below:

(a)   6 February 2015 – on the assumption that the caveatrix is a beneficiary in the 11 April 2014 will.

(b)   11 April 2014 - on the assumption that the caveatrix is a beneficiary in the 3 April 2014 will.

(c)    3 April 2014 – on the basis that the caveatrix is a beneficiary in the 10 October 2012 will.

(d)  10 October 2012 – on the basis that the caveatrix is a beneficiary in the 30 June 2008 will.

(e)   30 June 2008 – on the basis that the caveatrix is a beneficiary under the intestacy provisions.

1. The caveatrix has stated that she will make an application either in respect of the 10 October 2012 will, which was prepared by her solicitors, or on the basis of an intestacy if, after discovery, there is a prima facie case that the deceased did not have capacity at the time she executed any of her six wills from 2008 onwards.  Counsel for the caveatrix stated that she could not adequately assess the appropriate application to make before discovery and I accept this explanation in the circumstances.

1. In line with the overarching purposes of the Civil Procedure Act 2010, proceedings with common parties and common facts should be heard together to facilitate a just, efficient and cost-effective resolution of the real issues in dispute.  The beneficiaries under the each of deceased’s wills include the first plaintiff and the caveatrix (apart from the 6 February 2015 will), both being daughters of the deceased, and their children.  Assuming that the various challenges proceed, it would be just, efficient and cost-effective for each application to be heard and determined in one hearing, but not in one proceeding or in one application.  This will enable the Court to investigate the validity of each will, commencing with the final will of the deceased dated 23 September 2015.

1. Accordingly, I am satisfied that the caveatrix has standing and should be added as a defendant to the proceeding by her legal personal representative.  The caveatrix is granted leave to file amended grounds of objection and I will make the usual orders providing for discovery by 30 November 2016.  Leave will also be granted to the caveatrix to inspect the will files held by the Court.

1. In view of the health of the legal personal representative of the caveatrix, I will also order that a de bene esse examination be undertaken on a date convenient to both counsel in the coming weeks.