Re Robustelle
[2022] VSC 493
•25 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2021 08341
| IN THE MATTER of the will of CLARICE MARY ELIZA ROBUSTELLE, deceased | |
| APPLICATION BY: | |
| BRYDEN MAURICE ATKINS (in the will called BRYDEN MORRIS ATKINS) | Plaintiff |
| v | |
| JEANETTE MARY CLARKE | Caveator |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 May 2022 |
DATE OF JUDGMENT: | 25 August 2022 |
CASE MAY BE CITED AS: | Re Robustelle |
MEDIUM NEUTRAL CITATION: | [2022] VSC 493 |
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PROBATE — Standing of caveator to challenge validity of wills — Where caveator would not benefit from last will or penultimate will — Where caveator would benefit from antepenultimate will — Whether benefit under antepenultimate will sufficient to establish standing — Where caveator sought to invalidate last will and penultimate will — Standing established — Gardiner v Hughes (2017) 54 VR 394 — Administration and Probate Act 1958 (Vic) s 58.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | E Konstantinou | Border Wills and Probate |
| For the Caveator | J McCoy | Webb Legal |
HER HONOUR:
Introduction
Clarice Robustelle, known as ‘Mary’, died on 27 March 2021, aged 91 years (‘the deceased’). She was predeceased by her sister and brother.
The deceased owned and lived on a large farming property. Stephen Atkins (‘Stephen’) assisted on the farm and lived in a house on the property with his son, Bryden Atkins (‘the plaintiff’), and partner, Bernadette Williams.
The deceased’s last will dated 1 March 2018 (‘the 2018 will’) appointed Stephen as executor of her estate (‘the estate’).[1] After a number of small pecuniary legacies, he receives the residue of the estate, with a gift over to the plaintiff should he predecease the deceased. Stephen died in February 2020.
[1]Clause 2 of the 2018 will appoints ‘Steven Mark Atkins’ as executor. The reference to ‘Steven’ rather than ‘Stephen’ does not appear to be contentious.
On 16 May 2021, the plaintiff applied for letters of administration of the 2018 will on the basis that he is the residuary beneficiary of the estate. The inventory of assets and liabilities filed with the plaintiff’s application provides that the value of the estate is estimated at $7,275,176.[2]
[2]This is comprised chiefly of real property ($4,617,000), shares and ‘shares cash common fund’ ($1,624,654), livestock ($593,700) and an accommodation bond ($350,000).
Jeanette Mary Clarke (‘the caveator’) is the deceased’s niece. On 30 April 2021, she filed a caveat in relation to the deceased’s estate, as is permitted by s 58 of the Administration and Probate Act 1958 (Vic). Pursuant to her second further amended grounds of objection and particulars filed 15 December 2021, the caveator seeks to impugn the 2018 will for want of testamentary capacity and undue influence, and the deceased’s penultimate will dated 22 August 2012 (‘the 2012 will’) on the basis of undue influence. The caveator is a beneficiary under the deceased’s antepenultimate will dated 15 July 2008 (‘the 2008 will’).
A preliminary question has arisen as to the caveator’s standing which is to be resolved prior to further consideration of whether the caveator has established a prima facie case.
With respect to the issue of standing, the caveator’s grounds of objection and particulars provide:
10B. The caveator is a beneficiary of the 2008 will.
10C.By reason of the grounds set out herein, the caveator says that both the 2018 will and the 2012 will are invalid. Accordingly, the 2008 will is the last valid will of the deceased.
10D. The caveator has standing to support the caveat and these grounds by reason of her status as a beneficiary of the 2008 will.
Procedural history
The caveator filed grounds of objection on 18 June 2021, and amended grounds on 19 July 2021.
On 22 July 2021, Keith JR ordered by consent that a directions hearing listed for the following day be vacated and relisted for 3 September 2021, and that the caveator file amended grounds with particulars.
In August 2021, the caveator filed amended grounds with particulars, and five affidavits.
On 2 September 2021, the caveator was ordered to file and serve further amended grounds of objection with particulars, expressly addressing the issue of her standing. The proceeding was adjourned to 1 October 2021 for a further hearing, however, on 4 October 2021 Keith JR ordered that the question of whether the caveator’s further amended grounds of objection with particulars disclosed a prima facie case be determined on the papers, subject to any order of the trial judge.
On 10 December 2021, the parties attended a hearing at the Court’s request. The Court raised concerns as to the standing of the caveator, given that she is a beneficiary of the 2008 will, but not the 2018 will or the 2012 will, as well as to the absence of any notification of her application to the beneficiaries and executors of the 2012 will and the 2008 will.
The caveator’s solicitors subsequently sent notices to those beneficiaries and executors of the 2012 will and the 2008 will who were able to be located. The proceeding was then listed for hearing on the question of the caveator’s standing and whether the caveator’s further amended grounds of objection with particulars disclosed a prima facie case.
On 20 May 2022, the parties were heard on the question of standing.
Deceased’s wills
As set out, the deceased made the 2018 will, the 2012 will and the 2008 will. She also made a will dated 7 October 2004 (‘the 2004 will’).
The 2018 will
The 2018 will appoints Stephen as executor and provides the following dispositions:
(a) $10,000 to the deceased’s cousin, Kevin Harry Cook (‘Kevin’);
(b) the deceased’s guns and $5,000 to the plaintiff (in the will called Bryden Morris Atkins);
(c) $1,000 to Northeast Health Wangaratta ‘to be used for the treatment of cancer patients’; and
(d) the residue to Stephen, or if he failed to survive the deceased, to the plaintiff.
Both Stephen and Kevin predeceased the deceased. Northeast Health Wangaratta has advised the caveator that it does not intend to take part in the proceeding and will abide the decision of the Court.
The 2012 will
The 2012 will appoints Stephen and Kevin as executors, and provides the following dispositions:
(a) $5,000 to each of Albert Butterworth and Heather Butterworth;
(b) $20,000 to Kevin;
(c) the deceased’s guns to the plaintiff;
(d) the proceeds of all of the deceased’s bank accounts to Northeast Health Wangaratta ‘to be used for the treatment of cancer patients’; and
(e) the residue to Stephen.
It appears that no reply has been received from Albert or Heather Butterworth or Stephen’s daughter, Rylie Atkins,[3] to the notices sent by Webb Legal.
The 2008 will
[3]As provided in cl 9 of the 2012 will, if a beneficiary predeceases the deceased then any children of the beneficiary who have or shall attain the age of 21 will take the beneficiary’s share equally.
Under the 2008 will, Geoffrey Collin Schreiber (‘Mr Schreiber’) and ‘the senior partner or principal of the law firm Harrison Dobson & Cottrill or its successors’ are appointed as executors. The 2008 will provides as follows:
(a) $10,000 to the deceased’s sister, Doris Pearl Bowers;
(b) $10,000 and half of the deceased’s collection of photographs to the deceased’s nephew, Peter John Bowers;
(c) $140,000 and half of the deceased’s collection of photographs and the contents of the deceased’s house, excluding fixtures, fittings and major appliances, to the caveator;
(d) $10,000 to the deceased’s niece, Wendy Doris Piccolo (‘Wendy’);
(e) $80,000 to the deceased’s nephew, Robert George Bowers (‘Robert’);
(f) $10,000 and the deceased’s musical instruments to her nephew, Allen Bowers;
(g) $10,000 to Kevin;
(h) $10,000 and all of the deceased’s shares in publicly listed companies to the caveator’s daughter, Jacqueline Kelly Clarke (‘Jacqueline’);
(i) $100,000 together with two of the deceased’s farming properties, 50 cows, one bull, a motor vehicle, a tractor, a fridge and a washing machine, to Stephen;
(j) $10,000 and a motor vehicle to the plaintiff;
(k) $80,000 to Geoffrey Collin Schreiber;
(l) $10,000 to Albert Butterworth and Heather Butterworth jointly; and
(m) the residue to the cancer ward of the Wangaratta District Base Hospital.
In his affidavit filed 4 May 2022, Mr Schreiber deposes that he was a close friend of the deceased, that he intends to instruct solicitors to apply for a grant of probate of the 2008 will, and that he has advertised his intentions to apply.
Robert and Wendy have sworn affidavits, filed on behalf of the caveator. Jacqueline has deposed that, as a beneficiary of the 2008 will, she supports the challenge to the 2018 will and the 2012 will based on the caveator’s grounds.
The 2004 will
Under the 2004 will, Wendy and Ian John Watkins, solicitor, are appointed executors. After nine pecuniary legacies to named individuals, including the caveator and Stephen, the residue of the estate is left to Wendy.
Applicable law
Probate litigation is ‘interest litigation’.[4] Notwithstanding that the legislation permits ‘any person’ to lodge a caveat,[5] standing is not automatic. In order to establish standing to support a caveat challenging a will, a person must have a sufficient interest in the estate of a deceased. A caveator bears the onus to establish the bare possibility of an interest in a prior testamentary document such that his or her rights would or may be affected.
[4]Gardiner v Hughes (2017) 54 VR 394 (‘Gardiner’), 416 [86] (McLeish JA, Tate and Kyrou JJA agreeing).
[5]Administration and Probate Act 1958 (Vic) s 58.
In Nobarani v Mariconte,[6] the High Court quoted Re Devoy (No 1) (‘Re Devoy’)[7] in concluding that ‘[a] person will have a sufficient interest if he or she has a right “which will be affected by the grant”’.[8] There, a self-represented litigant was found to have sufficient interest in challenging a 2013 will, relying upon a share of unspecified jewellery that was gifted to him under a 2004 will.
[6](2018) 265 CLR 236 (‘Nobarani’).
[7][1943] St R Qd 137 (‘Re Devoy’).
[8]Nobarani (n 6) 251 [49] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ), quoting Re Devoy (n 7) 145 (Philp J, Webb CJ and Mansfield J agreeing). See also Gardiner (n 4) 417 [90]; Re Przychodski [2016] VSC 781 (‘Re Przychodski’), [17] (McMillan J).
In Re Devoy, the defendant, who was the testator’s nephew, challenged a will under which he had no interest. He also lacked an interest under an earlier will, the validity of which was not in dispute. The Court determined that ‘an interest sufficient to entitle a person to object to a grant must be some right of that person which will be affected by the grant’.[9] In the circumstances, it was held that the defendant had no right that could possibly be affected by the grant.
[9]Re Devoy (n 7) 145.
In Gardiner v Hughes, McLeish JA noted the following submission made in Re Devoy as clarifying what the case was about:[10]
[A]lthough the next of kin ‘may oppose probate of all the testamentary papers, as having an interest in having them set aside as a whole, he is not entitled to oppose any particular one he may think fit, for some interest in having that paper set aside, however remote, is necessary’.
That is, it was ‘not suggested that the defendant was unable to challenge both wills, just that he could not challenge the final will alone’.[11] A party was required to point to some right that would be affected by the grant, or to show that they had something ‘to gain’ from the litigation.[12] As there was an unchallenged will standing between the defendant and the disputed will, there was ‘“nothing to gain” by displacing the later will’.[13]
[10]Gardiner (n 4) 407 [53], quoting Re Devoy (n 7) 140-141.
[11]Gardiner (n 4) 407 [53].
[12]Ibid, 408 [57].
[13]Ibid.
The case in Gardiner involved three wills, made respectively in 2008, 2012 and 2015. Probate was granted on the 2015 will. An application for revocation was brought by the deceased’s niece and nephews who were not beneficiaries under any of the wills, but would take upon an intestacy.[14] Declarations were sought that all of the wills were invalid for want of testamentary capacity. At first instance, the Court found that the applicants lacked standing.[15] It noted that although the applicants’ prima facie case was the invalidity of the three wills, on the question of standing, reliance was not placed upon any evidence casting doubt upon the wills.[16] It was also noted that ‘multiple wills could not be heard in one application’ as there would be ‘different grounds relied upon in respect of separate wills and different parties in respect of each will’, and that a challenge to multiple wills was normally heard in one hearing, not one application or proceeding.[17]
[14]Although Gardiner involved an application for revocation, generally speaking, the interest sufficient to entitle a person to oppose a grant is sufficient to entitle the person to seek revocation of the grant. See Re Gillard [1949] VLR 378, 381 (Barry J).
[15]Re Gardiner [2016] VSC 541, [34]-[45], [62] (McMillan J).
[16]Ibid, [34].
[17]Ibid, [36].
The Court of Appeal upheld an appeal by the applicants. It stated that the requirements for standing in that case depended upon ‘both procedural requirements and the course of authority regarding standing in probate law’.[18] In relation to the former, McLeish JA summarised:[19]
Section 58 of the Administration and Probate Act 1958 (Vic) permits any person to lodge with the Registrar of Probates a caveat against the making of a grant of probate, in accordance with the Rules of the Supreme Court. Rule 8.01 of the Supreme Court (Administration and Probate) Rules 2014 (Vic) requires a caveat to be in a form requiring only particulars of the deceased and the caveator. Unless the caveat expires or is withdrawn, the Registrar cannot grant probate without an order of the Court.[20] Rule 8.02(b) requires the Registrar to give the caveator notice of any application for probate, whereupon the caveat will expire after 30 days unless the caveator files and serves a statement of the grounds of the objection to a grant of probate.[21] Within seven days after the filing of a statement of grounds, the caveator must apply to a judge for directions (failing which the applicant for probate may do so).[22] The directions that may then be given include directions as to particulars of the grounds, pleadings and affidavits.[23]
[18]Gardiner (n 4) 402 [35].
[19]Ibid, 403 [36] (citations as in original).
[20]Administration and Probate Act 1958 (Vic) s 12(2)(a).
[21]Supreme Court (Administration and Probate) Rules 2014 (Vic) r 8.03. The grounds may be stated as set out in r 8.06.
[22]Ibid, r 8.07.
[23]Ibid, r 8.08.
After surveying the relevant authorities, his Honour went on to set out the following principles:[24]
First, in order to establish standing, an applicant for an order revoking a grant of probate or letters of administration must have a sufficient interest in the proceeding. Sufficiency of interest is established by showing that the applicant’s rights would or might be affected if the grant were to be revoked. The bare possibility of an interest will suffice.
Secondly, where the validity of more than one will is in issue, the applicant must establish standing by showing that his or her rights would or might be affected if the grant were to be revoked and the disputed wills were found to be invalid. Conversely, if there is a prior, undisputed will under which the applicant would derive no benefit, the applicant will lack standing to challenge the grant made in respect of the later will.
Finally, although an application for revocation is made in the proceeding in which probate or letters of administration were granted, there are cases in which the validity of more than one will has been put in issue in the same proceeding. Alternatively, prior wills might be in dispute in separate proceedings. By whatever procedural means the dispute has been raised, the principles stated above operate in the same manner.
[24]Gardiner (n 4) 417 [90]-[92] (citations omitted).
Cases cited in support of the second principle were Van Wyk v Albon (‘Van Wyk’),[25] Re Devoy, Re Culina; Poulos v Pellicer (‘Re Culina’)[26] and Re Davies; Griffiths v Lewis (‘Re Davies’).[27] Van Wyk was an application for summary dismissal of a proceeding commenced by the deceased’s next of kin seeking revocation of a grant of probate of a 2004 will. In the context of six wills (none of which named the plaintiff as a beneficiary), the three most recent wills fell within a period that the deceased was asserted to be living with dementia. However, there appeared to be no grounds on which the earlier three wills could be challenged. As such, the chance of the deceased having died intestate and the applicant having standing to set aside all six wills was virtually ‘non-existent’ and the claim was deemed to have no real prospect of success.[28] In Re Culina, an earlier will existed that was ‘not yet subject to dispute’,[29] and in Re Davies, the deceased’s sister was not named as a beneficiary in an undisputed penultimate will, and was found to have ‘no interest in the estate whatsoever’.[30]
[25][2011] VSC 120 (‘Van Wyk’).
[26][2004] NSWSC 504 (‘Re Culina’).
[27][2013] VSC 609 (‘Re Davies’).
[28]Van Wyk (n 25) [10] (Habersberger J).
[29]Re Culina (n 26) [12] (Windeyer J).
[30]Re Davies (n 27) [14] (McMillan J).
In applying the three principles identified, McLeish JA reasoned that although the underlying proceeding concerned only the 2015 will, the applicants sought to challenge each of the wills.[31] The Court had confined the preliminary question to standing, and because ‘the applicants stood to benefit if the claims they made in their summons were upheld, they had standing to pursue that summons’.[32] In acknowledging that certain procedural issues may arise, his Honour stated:
That is not to say that the observations of the third respondent about the procedural difficulties that this case presents are without merit. For example, to introduce challenges to prior wills into a proceeding may well have implications for the proper parties to the proceeding. The amended summons in the present case illustrates the point. As the trial judge pointed out, where more than one will is in issue, the validity of the last will is ordinarily determined first and the others fall for consideration in turn only if there is no valid will established at that point. It may ultimately appear that separate proceedings, heard together or otherwise, would more efficiently enable the real issues in dispute to be decided. But these are issues to be decided by the trial judge at a later date. So far the present case has progressed no further than the amended summons and the preliminary question of standing which it presented and with which this appeal has been concerned.[33]
The third respondent’s observations referred to by McLeish JA were that the application for revocation related solely to the grant of probate of the 2015 will, and had nothing to do with the earlier wills. Further, those wills could ‘not be impugned until they were the subject of an application for a grant of probate’,[34] which could only occur if the grant in respect of the 2015 will was revoked. As such, it was asserted that the relief sought by the applicants could not be granted in the probate proceeding in which the applicants did not have an interest.
[31]Gardiner (n 4) 418 [94].
[32]Ibid.
[33]Ibid, 418 [96].
[34]Ibid, 402 [34].
Published cases addressing the question of standing since Gardiner are limited in number. The plaintiff has drawn the Court’s attention to Re Falzon,[35] and Govindan v Charan (‘Govindan’).[36]
[35][2022] VSC 55 (‘Re Falzon’).
[36][2020] VSC 137 (‘Govindan’).
In Re Falzon, the son of the deceased objected to probate being granted on a 2020 will. Under that will, the deceased’s estate was left to the deceased’s wife, with a gift over to his children. The parties disagreed as to which testamentary document was the deceased’s penultimate will. The substitute executor of the 2020 will asserted that it was a copy of a 1981 will with amendments made by the deceased, including a specific annotation, while the son argued that it was an alternative copy of the 1981 will without the annotation. The annotation stated ‘anything in this will goes to my children only’,[37] and evidence was given that its purpose was to ensure that once the deceased and the deceased’s wife had both died, the partners of the deceased’s children would not benefit from their respective estates.[38] Consistent with the plaintiff’s evidence, the Court determined that the testamentary documents showed that the deceased’s broad intention was to benefit his wife, and should his wife predecease him, his children.[39] As the deceased’s wife had survived, the son had not shown that the alternative copy of the 1981 will gave him a greater or different interest.[40]
[37]Re Falzon (n 35) [8] (McMillan J).
[38]Ibid, [15].
[39]Ibid, [24].
[40]Ibid, [25].
In Govindan, the deceased made wills in 2006, 1994 and 1989. The plaintiff applied for probate of the 2006 will. The caveator, who was a niece of the deceased and self-represented, objected on grounds including want of testamentary capacity. She was a beneficiary under the 2006 will, but not under the two earlier wills. In such circumstances, Keith JR determined that the caveator did not have standing, as she ‘[had] not shown an interest in the estate contrary to the grant of probate of the 2006 will’.[41] Rather, her interest was for the 2006 will to be admitted to probate, which aligned with the plaintiff’s interest, so there was nothing to ‘join suit about’.[42]
[41]Govindan (n 36) [18] (Keith JR).
[42]Ibid, [20].
Looking beyond those two cases, in Re Bertine,[43] which was an application for summary dismissal, the mother of the deceased was assumed to have standing to challenge an application for a grant of administration, on the basis that if she should succeed in disputing the registration of the deceased’s domestic partnership, she would take upon an intestacy.[44]
[43][2019] VSC 228.
[44]Ibid, [17] (Derham AsJ).
In Re Linworth, Hallen J accepted that a caveator who would benefit under a 2016 will had standing to challenge a 2017 will and a 2018 codicil.[45] In Re Zbrozek; Duszyk v Morgan,[46] the plaintiffs sought a grant of an informal will dated August 2014, while the first defendant cross-claimed, seeking a grant of an informal will dated August 2013. Counsel for the first defendant submitted that the second plaintiff could not attack the 2013 informal will, as he did not benefit under that document and therefore did not have the requisite interest or standing.[47] Rein J rejected the submission on the basis that the second plaintiff was a defendant to the cross-claim, instead finding that there was support for a ‘holistic approach’ to the totality of evidence.[48]
[45]Re Linworth [2021] NSWSC 334, [47] (Hallen J).
[46][2020] NSWSC 1591.
[47]Ibid, [74]-[75] (Rein J).
[48]Ibid, [76].
In contrast, McGettigan v Coulter[49] was a case in which the defendant was found to lack standing.[50] There, the plaintiffs sought a grant of administration with a will dated January 2000 annexed. Under that will, the deceased’s estate was bequeathed to his wife, who died shortly after the deceased. The plaintiffs were beneficiaries under the wife’s will. The deceased’s brother cross-claimed, challenging the 2000 will and asserting the validity of a 2016 will under which he benefited. Slattery J determined that the 2016 will was a fabrication and, even if the 2000 will was invalid, the deceased’s wife would have benefited upon intestacy and, as such, the brother did not have a ‘sufficient interest’ in the 2000 will.[51]
[49][2021] NSWSC 1097 (‘McGettigan’).
[50]See also the earlier case of Matusevich v Nipperess [2008] QSC 275, where Daubney J ordered security for costs against plaintiffs who failed to challenge earlier wills, and found that there were ‘very real questions’ as to standing (at [27]).
[51]McGettigan (n 49) [201], [235]-[237] (Slattery J).
In Jewish National Fund of Australia Ltd v Bar-Mordecai,[52] the plaintiff sought possession of certain property. The defendant attempted to cross-claim, seeking revocation of probate of a will dated January 2013. Davies J noted a number of difficulties with the defendant’s cross-claim, including that a separate proceeding ought be commenced and that the defendant lacked standing. Regarding the latter point, of note were five earlier unchallenged wills under which the defendant did not benefit, and the defendant’s lack of interest under an intestacy.[53]
[52][2020] NSWSC 384.
[53]Ibid, [79]-[84] (Davies J). See also German v Germantsis [2022] VSCA 157, [32], [39], [44]-[45] (Niall, Sifris and Walker JJA), where it was held that the caveator lacked standing as he did not benefit under, or challenge, the deceased’s penultimate will, and in any event he would not have taken upon an intestacy.
Submissions
Caveator’s submissions
The caveator asserts that by reason of the facts particularised in the grounds, the 2018 will and the 2012 will are invalid. If her grounds are made out, the executors of the 2008 will are free to propound it, and the caveator will stand to benefit from the estate. Accordingly, consistent with Gardiner, declarations that the 2018 will and the 2012 will are invalid would have a real effect on her interests, and as such, she has standing.[54]
[54]Citing Gardiner (n 4) 409–410 [64]-[65], in turn citing Re Culina (n 26) 417 [90]-[91]; Re Przychodski (n 8) [17].
Procedurally, similar to Gardiner, although no application has been filed in relation to the 2012 will, both the 2018 will and the 2012 will are disputed. In this regard, it is asserted that as the two executors of the 2012 will are deceased, and Northeast Health Wangaratta declined to participate in the proceeding, the plaintiff is the person with the best interest to apply for a grant of the 2012 will, so all persons with a relevant interest are before the Court. Presumably, if the 2018 will was found to be invalid, the plaintiff would seek to prove the 2012 will.
To the extent that the plaintiff relies upon Re Falzon and Govindan, the caveator submits that they are distinguishable. In Re Falzon, the caveator had no interest in the penultimate will as upon its proper construction, he was only a beneficiary if his mother predeceased the deceased, and that had not occurred. Here, there is no dispute that the caveator has an interest under the 2008 will.
In Govindan, the caveator was a beneficiary of the will that she was challenging, and she did not take under the penultimate will. Distinct from the current circumstances, by undermining the last will, the caveator there was undermining her own interest.
Plaintiff’s submissions
The plaintiff accepts that in accordance with Gardiner, the caveator must establish a sufficient interest by showing that her ‘rights would or might be affected if the grant to the plaintiff were to be made’. However, he contends that in the current circumstances, the caveator has ‘no standing to challenge the [2018 will] because she cannot establish a sufficient interest in showing that her rights and entitlements will be affected if there is a grant’ of that will. Without an interest in the 2012 will, she is said to be ‘one step away’ from challenging the 2018 will. As stated in Gardiner, if there is a prior undisputed will under which the caveator derives no benefit, she will lack standing, and here, the caveator does not benefit from the 2012 will.
Reliance is also placed on both Re Falzon and Govindan, where caveators lacked standing as there was no interest in the penultimate will. Regarding the former, standing was not established as the caveator did not have an interest under the penultimate testamentary document, that is, the Court found that he did not establish that his rights would be affected if the final will was proven, because he had no interest in the penultimate will.
As to Govindan, the plaintiff relies upon the following reasoning of Keith JR:
To be an interest in the estate for the purposes of s 58 of the Administration and Probate Act (1958) … there must be a proper basis for the Court to exercise its judicial power to determine a dispute or cause. Where the caveator has a benefit under the final will that interest can be effective if the caveator wishes to uphold that will, for example where an application has been made to prove an earlier will. The exercise of power by the Court is not to be for the purposes of a hypothetical question or deployed without contrary interest. It is to be exercised only to determine a cause between parties where the interest of the opposing parties is reflected in the outcome. The caveators have no relevant interest in holding the 2006 will to be invalid.[55]
[55]Govindan (n 41) [21].
According to the plaintiff, the same analysis applies here. There is no outcome reflected in the caveator’s challenge of the 2018 will that would put her in a better position because she has nothing to gain from the 2012 will. She cannot ‘jump over’ the 2012 will to argue that she has standing just because she has an interest in the 2008 will.
Consideration
The caveator will have a ‘sufficient interest’ for the purposes of standing if she has a right that will be affected by a grant of the 2018 will.[56]
[56]Nobarani (n 6) 251 [49]; Gardiner (n 4) 417 [90].
The plaintiff asserts that in the current circumstances, the intervening 2012 will means that the caveator’s interest in the 2008 will cannot possibly be affected by a grant of the 2018 will, that is, in the language of Gardiner, there is an ‘undisputed’ will under which the caveator will derive no benefit precluding her from establishing standing.
However, the circumstances of Gardiner demonstrate that a will may be ‘disputed’ even though it is not the subject of a separate application. In Gardiner, a proceeding was on foot concerning the 2015 will, but the applicants by their summons ‘disputed’ the two earlier wills. The issue was addressed at first instance and upon appeal,[57] and the lack of formal dispute via a separate proceeding did not preclude the conclusion that the applicants had standing.
[57]Re Gardiner [2016] VSC 541, [36]; Gardiner (n 4) 418 [94].
In the caveator’s further amended grounds, she challenges both the 2018 will and the 2012 will. If she succeeds, she stands to benefit under the 2008 will, a grant of which Mr Schreiber now intends to seek. In those circumstances, the caveator has an interest sufficient to establish standing.
As submitted by the caveator, Govindan and Re Falzon can be distinguished. In contrast to Govindan, the caveator here benefits under the 2008 will and her interest will be affected if a grant is made of the 2018 will. In such a way, the grant would be ‘contrary’ to her interest. As to Re Falzon, the son there could not point to any interest that would be affected should his case succeed.
Procedurally, the caveator has attempted to notify interested parties. Specifically concerning the 2012 will, much effort was directed toward establishing the position of Northeast Health Wangaratta. While it appears that Rylie Atkins was sent a notice by Webb Legal, it is unclear whether receipt was confirmed and what the position of Rylie is. According to the terms of the 2012 will, Rylie and the plaintiff would share in the residue of the estate equally. In contrast, the 2018 will provides a gift over specifically to the plaintiff. In these circumstances and given the size of the estate, it would be prudent to confirm Rylie’s position.
An additional issue concerning notification is that ‘Peter John Bowers’ is a beneficiary of the 2008 will but is not listed as a person notified by Webb Legal. Further, it appears that ‘Vicky Luke’ was notified but is not expressly identified as a beneficiary under either the 2012 will or the 2008 will. These points need to be clarified by the caveator.
A challenge to multiple wills cannot be heard in one application as there will be different grounds relied upon in respect of separate wills and different parties in respect of each will.[58] As the caveator is challenging the 2018 will and the 2012 will, the appropriate procedure is for the plaintiff to issue a separate application, in the alternative, for a grant of the 2012 will. In the usual course, the separate applications are heard together, with the validity of the 2018 will heard and determined first and prior to the determination of the validity of the 2012 will.[59] This ensures that the real issues in dispute concerning the 2018 will and the 2012 will are before the Court, in circumstances where if the 2008 will is the last valid will, Mr Schreiber intends to apply for a grant of the 2008 will.[60]
[58]Re Gardiner [2016] VSC 541, [36].
[59]See, for example, Brown v Guss [2014] VSC 251 (McMillan J), where probate was sought of an April 2010 will and objections to that will were filed by a caveator, before the plaintiff applied to propound in the alternative a September 2007 will and the caveator applied for letters of administration of a January 2010 will. Pursuant to orders made, the various applications were to be heard together, with the validity of the last will to be determined prior to determining the validity of the earlier will (at [8]).
[60]See also Walsh v Wallace [2005] VSC 124, [39], where Habersberger J stated:
[T]he application for probate vests the Court with jurisdiction to determine the validity of a particular will. Changing the particular document in respect of which a grant of probate is sought is not simply a matter of amendment. Further, requiring the issue of a fresh application is consistent with the general practice that applications for different grants, even in the one estate, are sought by separate originating motions.
Conclusion
The Court is satisfied that the caveator has established standing. The remaining issue is whether the caveator has established a prima facie case.
The plaintiff and the caveator are to forward proposed further orders by no later than 9 September 2022.
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