JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2018
DATE OF JUDGMENT:	27 September 2018
CASE MAY BE CITED AS:	Re Vallance; Harper v Vallance
MEDIUM NEUTRAL CITATION:	[2018] VSC 573 Revised 22 October 2018

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PROBATE — Application for grant of probate in common form — Objection to grant on grounds that deceased lacked testamentary capacity — Where plaintiff and defendant compromised proceeding as well as foreshadowed claim by defendant for further provision from the estate — Where non-party residuary beneficiary did not consent to compromise —Validity of testamentary document to be determined by Court — Application for grant continued on undefended basis — Probate of will granted in solemn form — Veall v Veall (2015) 46 VR 123

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Verspaandonk	Vines Lawyers
For the Defendant	Mr P Pascoe	Wightons Lawyers

HER HONOUR:

Introduction

Freda Marcel Vallance (‘the deceased’) died on 24 May 2017. She was survived by her three adult children, Fiona Harper (‘the plaintiff’), David Vallance (‘the defendant’) and Elle Vallance (‘Ms Vallance’), and her six grandchildren, one of whom is a minor. The value of the deceased’s estate at the time of her death is estimated to be $243,000.

By originating motion filed 31 July 2017, the plaintiff, as the named executor, sought a grant of probate of the deceased’s will dated 23 January 2013 (‘the 2013 will’). The defendant challenged the application, asserting that the deceased lacked testamentary capacity at the time of execution of the will and that a copy of the deceased’s penultimate will dated 2 June 2010 (‘the 2010 will’) should be admitted to probate.

After discovery and mediation, the plaintiff and the defendant entered into terms of settlement. The terms involved withdrawal of the defendant’s opposition to the plaintiff’s application for a grant of probate of the 2013 will and an alteration to the distribution of the assets of the estate. The terms were subject to and conditional upon their execution by Ms Vallance, an affected residuary beneficiary under the 2013 will. Ms Vallance refused to consent to the terms of settlement.

Despite Ms Vallance’s position, the plaintiff and defendant initially contemplated pursuing orders giving effect to the compromise as reflected in the terms of settlement. As no grant of probate had been made in the estate, the parties accepted that this was not possible. The parties now seek to have the 2013 will admitted to probate and for their costs to be paid from the estate of the deceased. After probate is granted,

the defendant intends to issue a claim against the estate seeking further provision in the amount agreed in the terms of settlement.

Factual background

In 2012, the deceased lived at a…

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 Vallance; Harper v Vallance

Details

AGLC: Re Vallance; Harper v Vallance [2018] VSC 573
Case: [2018] VSC 573
Decision Date: 27 September 2018

CaseChat Overview and Summary

In the case of Re Vallance; Harper v Vallance, the dispute involved the application for a grant of probate in common form for the will of the deceased, Vallance. The plaintiff, Harper, objected to the grant on the basis that the deceased lacked testamentary capacity at the time of executing the will. The dispute was heard in the Supreme Court of Victoria. The defendant, Vallance, had previously compromised the proceedings with the plaintiff and had also indicated the intention to seek further provision from the estate. However, a non-party residuary beneficiary had not consented to the compromise. The validity of the testamentary document was to be determined by the court.

The legal issues that the court was required to decide included whether the compromise reached between the plaintiff and the defendant was binding and if it could be enforced without the consent of the non-party residuary beneficiary. Additionally, the court had to determine the testamentary capacity of the deceased at the time the will was executed and decide whether the will should be granted probate in common form or solemn form.

The court considered the relevant legal principles and decided that the compromise between the plaintiff and the defendant was not binding on the non-party residuary beneficiary. The court further found that the deceased had the testamentary capacity at the time of executing the will. As a result, the court granted the application for the grant of probate in solemn form, following the precedent set in Veall v Veall (2015) 46 VR 123.

In conclusion, the court granted the application for the grant of probate in solemn form, dismissed the objection to the grant on the basis of the deceased's testamentary capacity, and found that the compromise reached between the plaintiff and the defendant was not binding on the non-party residuary beneficiary.

Orders