JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2016
DATE OF RULING:	15 December 2016
CASE MAY BE CITED AS:	Re Przychodski
MEDIUM NEUTRAL CITATION:	[2016] VSC 781

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PROBATE — Where caveat objecting to grant of probate lodged with Registrar of Probates — Where caveator filed grounds of objection — Where caveator required to file particulars of grounds of objection — Whether caveator’s further amended grounds of objection establish a prima facie case — Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 — In re Smith (dec’d) [1951] VLR 368 — Moran v Place [1896] P 214 —Supreme Court (Administration and Probate) Rules 2014, r 8.08(a)(iii)

PRACTICE AND PROCEDURE — Summary judgment — Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 — Civil Procedure Act 2010, s 63

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms E L Coates	Jim McCarthy Lawyers
For the Caveator	Mr M McKenzie	Constable Connor & Co Pty Ltd

HER HONOUR:

Background

Anastazja Przychodzki died on 12 January 2016, aged 78 years (‘the testatrix’). She was survived by her son (‘the plaintiff’) and the two children of her deceased daughter, one of whom is the caveator.

By her will dated 17 March 2005 (‘the will’) the testatrix appointed the plaintiff as her executor and trustee and left her estate to the plaintiff. Her estate comprised her property at 24 Tennyson Avenue, Clayton South valued at $1.2 million and $7,863 in her bank account.

The plaintiff filed an application for grant of probate of the will on 24 June 2016. The caveator objected to the grant on three grounds:

(a) the will was not executed in conformity with the Wills Act 1997 and was not intended by the deceased to be her will (‘ground 1’);

(b) the deceased lacked testamentary capacity shortly before and at the time of the execution of the will (‘ground 2’); and

(c) the testatrix acted under undue influence, the plaintiff being the person exercising that influence (‘ground 3’).

The caveator was required by the Court to file amended grounds of objection on three occasions. He filed amended grounds on 2 September 2016, further amended grounds on 19 September 2016 and further amended grounds on 8 November 2016.[1]
[1] Supreme Court (Administration and Probate) Rules 2014, r 8.08(a)(iii).

The November grounds of objection provide as follows:

1.The Caveator has standing to bring this application as he is a grandson of the testator.
2.The Caveator has standing because the sole beneficiary and executor of the Will exercised or is likely to have exercised undue influence on the testator to change her Will and as such is not a fit and proper person to administer the estate. Estate of Crane [2005]…

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 Przychodski

Details

AGLC: Re Przychodski [2016] VSC 781
Case: [2016] VSC 781
Decision Date: 15 December 2016

CaseChat Overview and Summary

In the Supreme Court of Victoria, the matter of Re Przychodski was heard. The dispute at hand involved a caveat that had been lodged by the caveator objecting to the grant of probate for the estate of a deceased person. The caveator filed grounds of objection, and was subsequently required to provide particulars of these grounds. The central legal issue was whether the caveator's further amended grounds of objection were sufficient to establish a prima facie case. Relevant cases cited include Estate Kouvakas; Lucas v Konakas, In re Smith (dec’d), and Moran v Place. Additionally, the court considered relevant rules from the Supreme Court (Administration and Probate) Rules 2014, and sections from the Civil Procedure Act 2010.

The court examined the procedural requirements under the Supreme Court (Administration and Probate) Rules 2014, particularly rule 8.08(a)(iii), which deals with the filing of particulars of grounds of objection in caveat proceedings. The court also considered the case law on the standard required to establish a prima facie case, and the principles of summary judgment as outlined in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd. The court had to determine whether the caveator had provided sufficient evidence to warrant a full hearing of the objection to the grant of probate.

The court found that the caveator's further amended grounds of objection did not establish a prima facie case. The court held that the caveator had not provided sufficient evidence to support their claims, and that the requirements of rule 8.08(a)(iii) had not been met. The court granted summary judgment in favour of the applicant, and dismissed the caveat. This decision underscores the importance of adhering to procedural rules and providing adequate evidence in caveat proceedings.

Orders