JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers, pursuant to r 1.14(2) of the Supreme Court (General Civil Procedure) Rules 2005
DATE OF JUDGMENT:	17 July 2015
CASE MAY BE CITED AS:	Robinson v Jones (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 334

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COSTS — Where plaintiffs sought to propound informal document as deceased’s informal will, alternatively, the deceased’s earlier duly executed will – Where application to propound informal document refused – Where parties to consider costs of application ensuring that costs are reasonable and proportionate – Where plaintiffs did not address concerns raised by the Court — Civil Procedure Act 2010, s 24 — Yara Australia Pty Ltd v Oswal [2013] VSCA 337

WILLS AND ESTATES – Where plaintiffs appointed administrators of estate under a limited grant – Powers to administer the estate under limited grant – Where Court requires explanation of exercise of powers – Where plaintiffs did not provide explanation – Supreme Court (Administration and Probate) Rules 2014, r 5.02

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	—	—
For the Defendant	—	—

HER HONOUR:

Background

This proceeding concerned an application by the plaintiffs, pursuant to s 9 of the Wills Act 1997 (‘the Act’), for a grant of probate of an unexecuted draft will. The draft will was said to have been approved by the deceased, who died on 8 March 2013, in a telephone conversation with the first plaintiff on 1 March 2013 (‘the informal document’). Alternatively, the plaintiffs sought a grant of the deceased’s will dated 26 June 2012 (‘the June 2012 will’). The plaintiffs are named as executors in both the June 2012 will and the informal document.

The first defendant was a beneficiary under the June 2012 will, but not under the informal document, and the second defendant was a beneficiary under the informal document, but not under the June 2012 will.

On 1 June 2015, judgment was delivered in this proceeding.[1] The Court was not satisfied that the deceased intended the informal document to be his last will and the application for a grant of probate of the informal document was refused. The Court made an order that, subject to any further requirements of the Registrar of Probates, probate of the deceased’s will dated 26 June 2012 be granted to the plaintiffs.
[1]Robinson v Jones [2015] VSC 222.

I informed the parties that I would hear them as to the costs of the application and that in respect of the costs:

… the parties should take into consideration the concerns expressed in this judgment regarding the quality of the affidavit evidence filed in the proceeding and the overarching obligation of the parties, as contained in s 24 of the Civil Procedure Act

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 Robinson v Jones (No 2)

Details

AGLC: Robinson v Jones (No 2) [2015] VSC 334
Case: [2015] VSC 334
Decision Date: 17 July 2015

CaseChat Overview and Summary

The case of Robinson v Jones (No 2) involved a dispute over the informal document propounded as the deceased's will. The plaintiffs sought to establish the document as the deceased's will or, alternatively, the deceased's previously executed will. The application to propound the informal document as the deceased's will was refused. The court was tasked with considering the costs of the application and ensuring that these costs were reasonable and proportionate. The plaintiffs did not address the concerns raised by the court, leading to the consideration of the Civil Procedure Act 2010, s 24 and Yara Australia Pty Ltd v Oswal [2013] VSCA 337.

The primary legal issues before the court were whether the plaintiffs were entitled to propound the informal document as the deceased's will, and if not, whether the deceased's earlier duly executed will should be considered. Additionally, the court needed to determine the reasonableness and proportionality of the costs incurred by the parties involved in the application. The plaintiffs, appointed as administrators of the estate under a limited grant, were also required to provide an explanation for the exercise of their powers under the limited grant, in accordance with the Supreme Court (Administration and Probate) Rules 2014, r 5.02.

The court refused the application to propound the informal document as the deceased's will, highlighting the plaintiffs' failure to address the concerns raised by the court. The court emphasised the importance of ensuring that costs are reasonable and proportionate, in accordance with the Civil Procedure Act 2010, s 24 and Yara Australia Pty Ltd v Oswal [2013] VSCA 337. The plaintiffs' failure to provide an explanation for the exercise of their powers under the limited grant was also noted, as required by the Supreme Court (Administration and Probate) Rules 2014, r 5.02. The court's decision ultimately rejected the plaintiffs' attempts to establish the informal document or the earlier will as the deceased's will.

The final orders of the court were that the application to propound the informal document as the deceased's will was refused. The court also directed the parties to consider the reasonableness and proportionality of the costs incurred in the application. The plaintiffs were required to address the concerns raised by the court and provide an explanation for the exercise of their powers under the limited grant, in accordance with the Supreme Court (Administration and Probate) Rules 2014, r 5.02. The court's decision ensured that the costs of the application were reasonable and proportionate, and that the plaintiffs provided the necessary explanation for the exercise of their powers.

Orders