Re Veca - [2015] VSC 74

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

S PRB 2014 14469

In the matter of the Will of VINCENZA VECA, deceased
Application by:
ANNA MARIA VECA and LUISA MICHIELIN	Plaintiffs

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2015
DATE OF JUDGMENT:	6 March 2015
CASE MAY BE CITED AS:	Re Veca
MEDIUM NEUTRAL CITATION:	[2015] VSC 74

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SUCCESSION, WILLS AND PROBATE — Costs of caveator — Where caveator alleges lack of testamentary capacity, knowledge and approval and undue influence of deceased — Where caveat withdrawn after first directions hearing — Where caveator seeks costs to be paid by the estate of the deceased — Application refused

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S F McNab	Pearsons Lawyers Pty Ltd
For the Caveator	Ms C McOmish	Arnold Thomas Becker

HER HONOUR:

Introduction

This proceeding concerns a caveator’s costs in circumstances where a caveat was lodged objecting to a grant of probate on the three grounds: the deceased lacked testamentary capacity, the deceased did not know and approve of the will and the caveator’s brother unduly influenced the deceased. The caveator withdrew the caveat after the first directions hearing in the proceeding.

The caveator now seeks her costs of $14,700 to be paid from the estate. The estate says it will pay part of those costs so long as they are reasonable and proportionate.

I have concluded that there is no special feature in this case that would warrant a departure from the general rule that costs follow the event and have refused the caveator’s application for her costs to be paid out of the estate.

Background

Vincenza Veca (‘the deceased’) died on 22 March 2014 leaving a will dated 31 March 2011. At the date of her death, the deceased was aged 83 years and, according to her death certificate, was survived by her four adult children, Antonino aged 61 years, Rosalba aged 59 years, Joseph and Silvio both aged 43 years.

By her will the deceased appointed her daughter-in-law, Anna Maria Veca, and her granddaughter, Luisa Michielin, the executors and trustees of her estate (‘the executors’).

The deceased’s estate was valued by the executors at $994, 260.06. Of that amount, the sum of $800,000 represents the value of the deceased’s property known as 347 Moreland Road Coburg (‘the property’).

The deceased left her estate as follows:

(a) the property in four equal shares to be held on trust in the following shares — two shares for Antonino, one share for Silvio and the remaining share for Joseph;

(b) her jewellery to her granddaughters, Luisa Michielin, Nadia De Natali and Belinda Veca;

(c) her furniture in the bedroom to Rosalba and her remaining personal chattels to Antonino;

(d) legacies of $20,000 to each of Silvio, Joseph and Rosalba; and

(e) the residue of her estate to Antonino.

On 14 May 2014, Rosalba met with her solicitor, Ms Michel Margolit. At that meeting, Rosalba provided Ms…

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 Veca

Details

AGLC: Re Veca [2015] VSC 74
Case: [2015] VSC 74
Decision Date: 6 March 2015

CaseChat Overview and Summary

The case of Re Veca involves a dispute over the estate of the deceased, Maria Veca, following the withdrawal of a caveat by the caveator. The legal issues before the court centered on the costs associated with the caveat, particularly whether these costs should be borne by the estate of the deceased or by the caveator. The caveator had alleged various grounds for challenging the validity of the deceased's will, including claims of lack of testamentary capacity, insufficient knowledge and approval, and undue influence. After the first directions hearing, the caveator withdrew the caveat, and subsequently sought an order that the estate should pay the costs of the caveat.

The court was required to determine the appropriate allocation of costs in light of the caveator's decision to withdraw the caveat and the merits of the claims made. The court considered the conduct of the caveator and the reasons for the withdrawal, along with the principles governing costs in such proceedings. The court noted that the caveator had not established any substantial merit in the claims made, and that the withdrawal of the caveat did not necessarily absolve the caveator of the costs incurred. The court found that the caveator's decision to withdraw the caveat was not sufficient to warrant an order that the estate should bear the costs.

In its reasoning, the court emphasised that the decision to bear the costs of a caveat lies with the caveator unless exceptional circumstances exist. The court held that the caveator had not demonstrated such circumstances, and that the withdrawal of the caveat did not constitute a change in the legal position that would warrant a costs order against the estate. The court concluded that the caveator should bear the costs of the caveat, and dismissed the application for the estate to pay those costs. The court's decision underscores the importance of the caveator's responsibility in relation to the costs of a caveat, and the limited circumstances in which an estate may be ordered to bear those costs.

Orders