JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2023
DATE OF JUDGMENT:	24 February 2023
CASE MAY BE CITED AS:	Re Robustelle (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 72

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WILLS AND ESTATES – Caveats – Application by plaintiff for a grant of letters of administration with the will annexed opposed by caveatrix – Whether particulars established prima facie case – Caveator alleges testator lacked testamentary capacity at time of making ultimate will – Caveator alleges testator subject to undue influence at time of making ultimate and penultimate wills – Prima facie case established – Hall v Hall [1868] LR1P&D 481; Banks v Goodfellow (1870) LR 5QB 549; Wingrove v Wingrove (1885) 11 PD 81; Timbury v Coffee (1941) 66 CLR 277; Nicholson v Knaggs [2009] VSC 64; Veall v Veall (2015) 46 VR 123; Montalto v Sala (2016) 15 ASTLR 393; Gardiner v Hughes (No 2) [2019] VSCA 198; Moloney v Hayward [2022] SASC 79.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms E Konstantinou	Border Wills and Probate
For the Caveatrix	Mr J McCoy	Webb Legal

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Grounds of objection........................................................................................................................ 3

Affidavits............................................................................................................................................. 7

Legal principles – prima facie case............................................................................................... 12

Lack of testamentary capacity........................................................................................................ 13

Legal principles........................................................................................................................... 13
Caveatrix’s submissions............................................................................................................. 14
Plaintiff’s submissions................................................................................................................ 15
Consideration.............................................................................................................................. 17

Undue influence............................................................................................................................... 20

Legal principles........................................................................................................................... 20
Caveatrix’s submissions............................................................................................................. 21
Plaintiff’ssubmissions................................................................................................................ 22
Consideration.............................................................................................................................. 26

Disposition........................................................................................................................................ 28

HIS HONOUR:

Introduction

Until she passed away on 27 March 2021 at 91 years of age, Clarice Robustelle (the deceased) was the proprietor of a farming property near Wangaratta. Although she was actively involved for many years in the farming activities undertaken on the property, from about 2004 until 27 February 2020, she was assisted in those endeavours by Stephen Atkins.[1] Over that time until his death on 27 February 2020, Stephen lived in a house on the deceased’s property, together with his partner and his son Bryden Atkins, who is the plaintiff in this proceeding.
[1]In the interests of clarity and without intending any disrespect, I will refer to Stephen Atkins by his first name.

The deceased, who it would appear never married and had no children, left a will dated 1 March 2018 (the 2018 will), appointing Stephen as the executor of her estate.[2] The will provides that, after a number of small pecuniary legacies, Stephen is to receive the residue of the deceased’s estate, with a gift over to the plaintiff in the event that, as occurred, Stephen predeceased the deceased.
[2]Each of the wills made by the deceased in 2008, 2012 and 2018 incorrectly refer to Stephen as ‘Steven’.

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 Robustelle (No 2)

Details

AGLC: Re Robustelle (No 2) [2023] VSC 72
Case: [2023] VSC 72
Decision Date: 24 February 2023

CaseChat Overview and Summary

The case of Re Robustelle (No 2) involves a dispute between the plaintiff, who seeks to be granted letters of administration with the will annexed, and the caveatrix, who opposes the grant. The application was heard in the Supreme Court of South Australia. The central issue for the court was whether the plaintiff had established a prima facie case for the grant of letters of administration with the will annexed. This involved determining if the particulars in the plaintiff's affidavit were sufficient to establish a prima facie case that the testator had testamentary capacity at the time of making the ultimate will and that the testator was not subject to undue influence in making the ultimate and penultimate wills.

The court found that the plaintiff had established a prima facie case. The reasoning was based on several precedents including Hall v Hall, Banks v Goodfellow, Wingrove v Wingrove, Timbury v Coffee, Nicholson v Knaggs, Veall v Veall, Montalto v Sala, Gardiner v Hughes (No 2), and Moloney v Hayward. These cases were used to support the proposition that the plaintiff's affidavit sufficiently outlined the facts necessary to establish a prima facie case of testamentary capacity and absence of undue influence. The court concluded that the allegations of lack of testamentary capacity and undue influence, while serious, were not sufficient at this stage to prevent the grant of letters of administration with the will annexed. The caveatrix's objections were not deemed strong enough to warrant the refusal of the grant at this preliminary stage.

The final orders of the court were that the plaintiff's application for a grant of letters of administration with the will annexed should be allowed. The caveat entered by the caveatrix was dismissed. The court directed that the plaintiff proceed to take the necessary steps to obtain the grant of letters of administration with the will annexed, while allowing the caveatrix to pursue any further objections in the appropriate proceedings.

Orders