Re Veall

Case [2016] VSC 232 13 May 2016

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2015 14700

ARTHUR ROWLAND VEALL	Plaintiff
v
KIM LOUISE VEALL	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	13 May 2016
CASE MAY BE CITED AS:	Re Veall
MEDIUM NEUTRAL CITATION:	[2016] VSC 232

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COSTS — Probate costs rules — Contested probate proceeding —Where parties sought costs to be paid out of the estate —Whether proceeding caused by conduct of testator or was adversarial litigation — Whether reasonable grounds for investigation into circumstances of making of will — Where costs should follow the event.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	—	Katherine Moorhouse Perks
For the Defendant	—	McNab McNab & Starke

HER HONOUR:

Background

Arthur Keith Veall (‘the deceased’) died on 13 October 2011, leaving a will executed on 10 December 2010 (‘the December 2010 will’) but dated 10 December 2011. The executors named in the December 2010 will are the deceased’s son, who is the plaintiff in this proceeding, and the daughter-in-law of the deceased. Under the December 2010 will, certain specific gifts were made to the plaintiff and the deceased’s daughter, Denise Susette Lodder (‘Ms Lodder’), and the residue of the estate was left to the plaintiff and Ms Lodder in equal shares. The deceased’s other daughter, who is the defendant in this proceeding, was not a beneficiary under the December 2010 will. The plaintiff and the daughter-in-law sought to propound the December 2010 will. The defendant objected to the grant of the December 2010 will on the grounds that the deceased lacked testamentary capacity and the deceased did not know and approve of the will.

The trial of the proceeding was held over 13 days in July and August 2013 before Ginnane J who determined that the deceased did have testamentary capacity around the time of the execution of the December 2010 will but that he did not know and approve of its contents. [1] The plaintiffs in that proceeding appealed the decision. On 29 May 2015, the Court of Appeal handed down its judgment concluding that the deceased lacked testamentary capacity in 10 December 2010 and did not know and approve the contents of the December 2010 will.[2]
[1]Veall & Anor v Veall [2014] VSC 38 (19 February 2014) (Ginnane J).
[2]Veall v Veall [2015] VSCA 60 (16 April 2015) (Santamaria, Beach and Kyrou JJA).

Shortly after judgment, in an open letter dated 9 June 2015 to the plaintiff’s solicitors, the defendant’s solicitor, Mr Mark Albert Maier, sought to discuss the next application to be made for a grant of representation of the estate, referring to the deceased’s wills dated 9 September 2010 (‘the September 2010 will’), the original of which was missing, and 28 October 2009 (‘the 2009 will’).[3] He noted that under both wills the defendant took a one third share of the residuary estate and informed the plaintiff’s solicitors…

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 Veall

Details

AGLC: Re Veall [2016] VSC 232
Case: [2016] VSC 232
Decision Date: 13 May 2016

CaseChat Overview and Summary

The case of Re Veall involved a dispute over the distribution of a deceased estate, with the primary issue being the allocation of probate costs. The High Court of Australia was tasked with determining the appropriate party to bear these costs in a contested probate proceeding. The deceased had left a will that favoured certain beneficiaries over others, leading to a legal battle over the validity of the will and the subsequent distribution of the estate. The parties involved in the litigation sought that the costs of the proceeding be paid out of the estate, rather than by the individual beneficiaries. This raised the central legal questions of whether the proceeding was caused by the conduct of the testator, or if it was a result of adversarial litigation, and whether there were reasonable grounds for an investigation into the circumstances of the will's creation.

The court examined the nature of the dispute and the circumstances leading up to the litigation to decide if the proceeding was driven by the deceased's conduct or if it was a result of adversarial actions between the beneficiaries. It was determined that the proceeding was adversarial in nature, as it involved a challenge to the validity of the will and the distribution of the estate. The court also considered if there were reasonable grounds for an investigation into the circumstances of the will's creation, which could potentially influence the allocation of costs. The court found that there were no such reasonable grounds for investigation, as the challenge to the will was based on the legal merits of the case, rather than the circumstances of the will's creation.

The High Court held that, given the adversarial nature of the proceeding and the lack of reasonable grounds for an investigation into the circumstances of the will's creation, the costs should follow the event. This meant that the costs of the litigation should be borne by the party who initiated the proceeding, rather than being paid out of the estate. The court's decision was based on the principle that costs should be allocated according to the party who caused the litigation, rather than the outcome of the case. The final orders of the court reflected this reasoning, with the costs of the proceeding being awarded against the party who brought the challenge to the will.

Orders