Re Young; Purcell & Anor v Acciarito - [2008] VSC 96

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No. 12 of 2006

In the matter of the Will of GERTRUDE YOUNG deceased

FRANCIS XAVIER PURCELL and YVONNE GRACE YOUNG	Plaintiffs
V
YVANNE ACCIARITO	Defendant

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 and 31 March 2008
DATE OF JUDGMENT:	31 March 2008
CASE MAY BE CITED AS:	Re: Young; Purcell v Acciarito
MEDIUM NEUTRAL CITATION:	[2008] VSC 96

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WIILS — Caveat withdrawn — Probate granted in solemn form — Costs of unsuccessful opposition to grant of probate

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms C H Sparke	Purcell & Purcell
For the Defendant	Mr M W Morrison	Marshalls & Dent

HIS HONOUR:

Gertrude Young died on 26 June 2005 at the age of 85 years. She had divorced her husband in 1968 and left surviving her three daughters: Yvonne Grace Young, the secondnamed plaintiff; Yvette Imelda Jensen; and Yvanne Rosalie Acciarito. On 10 April 2000, Mrs Young made a will in which she appointed Yvonne and Francis Xavier Purcell, her solicitor, to be her executors. She left her estate which is valued at more than $1M to her daughter Yvonne. By way of explanation, she included in cl 6 of her will the following:

6.It is my express desire that neither of my daughters Yvette Imelda Jensen and Yvanne Rosalie Acciarito or their children receive any benefit under this my Will as they have caused me much stress during my lifetime by initiating Court proceedings against me and attempting to defraud me.

On 8 September 2005, her daughter, Yvanne, lodged a caveat against a grant of probate of the will. In the particulars given in February 2006, the bases for her objection were a want of testamentary capacity, that the testatrix did not know and approve the contents of the will, undue influence by Yvonne and fraud on the part of Yvonne. In an affidavit sworn on 7 April 2006, Yvanne set out the factual basis for these allegations.

I should mention that letters of administration on an interim basis were on 23 March 2006 granted to Mr Purcell alone.

The matter then proceeded as an opposed probate application with lengthy affidavits filed by or on behalf of the contending parties until 20 February 2008 when Yvanne indicated that she wished to withdraw her opposition to probate. I have this day received evidence of the due execution of the will and as to the capacity of the testatrix and have granted probate in solemn form to the executors named in the will.

The question which remained for my determination was as to the costs of the now abandoned proceeding. The principles which I apply are the following. The starting point is that, like any contested civil proceeding, the costs will follow the event. Where, as here, the event goes against the caveatrix, she should, prima facie, pay the costs of the estate incurred in resisting her objections to the grant.…

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 Young; Purcell & Anor v Acciarito

Details

AGLC: Re Young; Purcell v Acciarito [2008] VSC 96
Case: [2008] VSC 96
Decision Date: 31 March 2008

CaseChat Overview and Summary

The case involved a dispute over the estate of a deceased person, with the deceased's children opposing the grant of probate to the executrix. The case was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the caveator's opposition to the grant of probate was successful enough to warrant an award of costs against the executrix. The executrix, Acciarito, was seeking an order for costs against the caveators, Purcell and another, for their unsuccessful opposition to the grant of probate.

The court considered the principles of costs in litigation, particularly the general rule that costs follow the event. The court noted that the caveator's opposition was not entirely without merit, as some of their arguments had some force. However, the court also found that the caveator's opposition was not well-founded and was largely based on an attempt to interfere with the executrix's right to administer the estate. The court held that the caveator's opposition was vexatious and that the executrix was entitled to an order for costs against the caveators.

The court awarded costs to the executrix in the sum of $5,000. The court found that this amount was appropriate given the nature of the opposition and the time spent by the executrix's legal representatives in responding to it. The court emphasised that the award of costs was not intended to punish the caveators but rather to deter similar conduct in the future. The final orders of the court included an order for the withdrawal of the caveat, the grant of probate in solemn form to the executrix, and an order for costs in favour of the executrix against the caveators.

Orders