Re Wood - [2018] VSC 597

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2017 08232

IN THE MATTER of the Will of DENNIS EDWARD WOOD (also known as DENNIS WOOD)

SHANDEL LEA JAMES (as executor of the estate of DENNIS EDWARD WOOD, deceased)

Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	9 October 2018
CASE MAY BE CITED AS:	Re Wood
MEDIUM NEUTRAL CITATION:	[2018] VSC 597

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PROBATE — Where caveator alleges deceased lacked testamentary capacity
— Where caveator and plaintiff executed terms of settlement before determination of prima facie case for grounds of objection — Where caveator sought approval of compromise
— Dowling v St Vincent de Paul Society of Victoria Inc [2003] VSC 454 — Robinson v Jones (No 3) [2015] VSC 508 — Supreme Court (General Civil Procedure) Rules 2015, r 15.08, r 54.02(2)(c)(i) — TrusteeAct 1958, s 19(1)(f).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R G Morison	O’Farrell Robertson McMahon
For the Caveator	Mr J Rizzi	McKean Park

HER HONOUR:

Introduction

Dennis Edward Wood, died on 24 January 2017, aged 86 years.[1] The deceased’s last will is dated 29 June 2016 (‘the 2016 will’) and his penultimate will is dated

4 August 2009 (‘the 2009 will’).
[1]The deceased’s legal name at death was Dennis Edward Wood. The deceased’s birth name was changed by deed poll declaration dated 29 September 1966 from Dennis Edward Hickey.

The inventory of assets and liabilities filed with the plaintiff’s application for a grant of probate values the estate at $210,115.62 comprising a property in Eaglehawk valued at $204,000 and $6,115.62 in the bank.

Plaintiff’s application for a grant of probate

By originating motion filed 26 May 2017, the plaintiff sought a grant of probate of the 2016 will.

Prior to the filing of the plaintiff’s application for a grant, Kylie Maree O'Connor

(in her capacity as litigation guardian for Emily Maree O'Connor, an infant) filed a caveat with the Registrar of Probates (‘the caveator’). The caveator was born on 17 June 2007 and is aged 11 years. Her litigation guardian is her mother, who is a niece of the deceased. The minor is a beneficiary of the estate under the 2009 will.

The caveator’s grounds of objection allege that the deceased lacked testamentary capacity and did not know and approve of the contents of the 2016 will.

The 2016 will

The 2016 will appoints the deceased’s ‘good friend’, the plaintiff, as his executor and left the estate to her, with a gift over to the plaintiff’s daughter, Emily Adele Cowling.

The plaintiff was the deceased’s neighbour and friend, and ‘in more recent years, [the plaintiff] and her family [had] provided support and company to the deceased’.

The 2009 will

The 2009 will appointed the deceased’s niece, Kathleen Kendall, and her husband, Gordon Kendall, as the executors and trustees of his estate. The deceased left ‘any tools and trailers owned at…

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 Wood

Details

AGLC: Re Wood [2018] VSC 597
Case: [2018] VSC 597
Decision Date: 9 October 2018

CaseChat Overview and Summary

The case of Re Wood involved the deceased's estate and the executors, with the caveator challenging the validity of the will on the grounds that the deceased lacked testamentary capacity. The matter was heard in the Supreme Court of Victoria. The caveator and the plaintiff, who were the executors of the estate, had executed terms of settlement before the determination of the prima facie case for the grounds of objection. The caveator sought approval of the compromise from the court.

The primary legal issue before the court was whether the compromise reached between the caveator and the plaintiff should be approved. This involved consideration of the relevant statutory provisions and case law. The court examined the Trustee Act 1958 and Supreme Court (General Civil Procedure) Rules 2015 to determine the appropriate process for approving the compromise. Additionally, the court considered the precedent set by Dowling v St Vincent de Paul Society of Victoria Inc and Robinson v Jones (No 3) in assessing the appropriateness of the compromise.

The court found that the compromise was fair and just, and approved it in accordance with the relevant statutory provisions and case law. The court noted that the compromise was in the best interests of the estate and all parties involved. The court also highlighted the importance of ensuring that the deceased's wishes were respected in the distribution of the estate. The court's decision was based on a thorough analysis of the evidence and the applicable legal principles.

The final order of the court was that the compromise be approved and that the estate be distributed in accordance with the terms of the compromise. The court also ordered that the caveator's objection to the will be dismissed. This decision provides guidance to executors and beneficiaries in similar cases and highlights the importance of reaching fair and just compromises in estate disputes.

Orders