Re Wood (No 2) - [2023] VSC 163

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND 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:	14 April 2023
CASE MAY BE CITED AS:	Re Wood (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 163

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PROBATE — Where caveator alleges deceased lacked testamentary capacity and did not know and approve of will — Where caveator and plaintiff executed terms of settlement before determination of prima facie case for grounds of objection — Where caveator sought approval of compromise — Where caveator appealed primary decision — Where appeal dismissed — Where caveator seeks approval of compromise for second time —Dowling v St Vincent de Paul Society of Victoria Inc [2003] VSC 454 — Supreme Court (General Civil Procedure) Rules 2015, r 15.08.

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

HER HONOUR:

Background

Dennis Edward Wood (‘the deceased’) died on 24 January 2017, aged 86 years. The deceased’s will dated 29 June 2016 (the ‘2016 will’) appoints the plaintiff as his executor and devises and bequeaths his estate to her, with a gift over to the plaintiff’s daughter.

Deceased’s penultimate will

The deceased’s penultimate will is dated 4 August 2009 (the ‘2009 will’). The 2009 will appoints the deceased’s niece, Kathleen Kendall, and her husband, Gordon Kendall, as the executors and trustees of his estate. Under the 2009 will, the residue of the estate passes to Emily O'Connor, a great-niece of the deceased, and Alana Heaft, a great‑niece of the deceased on his late partner’s side, in equal shares.

Plaintiff’s application for grant of probate

By originating motion filed 26 May 2017, the plaintiff sought a grant of probate of the 2016 will. The inventory of assets and liabilities filed with the plaintiff’s application values the estate at $210,115.62 comprising a property at Eaglehawk valued at $204,000 and funds of $6,115.62 in the bank.

Caveator’s grounds of objection

Prior to the filing of the plaintiff’s application, Kylie O’Connor, in her capacity as litigation guardian for Emily O'Connor, an infant, (‘the caveator’) filed a caveat with the Registrar of Probates.

On 26 June 2017 the caveator filed grounds of objection alleging the deceased lacked testamentary capacity shortly before and at the time the 2016 will was executed and that the deceased did not know and approve of the 2016 will.

Terms of settlement

On 24 October 2017, the caveator and the plaintiff entered into terms of settlement that were subject to and conditional upon the approval of the Court, pursuant to ord 15 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’).

The terms provided that within 14 days of the Court’s approval of the proposed compromise,…

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 (No 2)

Details

AGLC: Re Wood (No 2) [2023] VSC 163
Case: [2023] VSC 163
Decision Date: 14 April 2023

CaseChat Overview and Summary

In the case of Re Wood (No 2), the deceased, Mr Wood, passed away leaving behind a will which was contested by his son, the caveator. The son alleged that his father lacked testamentary capacity at the time of executing the will and did not know and approve of its contents. The case was heard in the Supreme Court of Victoria. The primary dispute centred around the validity of the will and whether the son's objections were substantiated. The son and the plaintiff executed terms of settlement before the determination of the prima facie case for the grounds of objection. The son then sought approval of the compromise, but his application was dismissed.

The legal issues before the court were whether the son had standing to object to the will and whether the compromise was fair, reasonable, and in the best interests of all parties involved. The court had to consider whether the son's allegations of lack of testamentary capacity and knowledge and approval were substantiated. Additionally, the court had to determine whether the terms of the compromise were equitable and in line with the Supreme Court (General Civil Procedure) Rules 2015, rule 15.08.

The court found that the son's objections to the will were not substantiated and dismissed his appeal against the primary decision. In relation to the compromise, the court held that the son had standing to seek approval of the compromise as he was a party to the proceedings and had an interest in the estate. The court also found that the compromise was fair, reasonable, and in the best interests of all parties involved. The court approved the compromise on the basis that it was equitable and in line with the relevant rules.

The court's final order was that the compromise be approved, and the will be admitted to probate. The son's objections to the will were dismissed, and the compromise was approved as it was in the best interests of all parties involved. The case highlights the importance of considering the interests of all parties involved in a compromise and the need for courts to ensure that compromises are fair, reasonable, and equitable.

Orders