SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of Olga Hart; Ross v Gordon |
Citation: | [2019] ACTSC 48 |
Hearing Date: | 22 February 2019 |
DecisionDate: | 4 March 2019 |
Before: | McWilliam AsJ |
Decision: | See [78] |
Catchwords: | SUCCESSION – Application to set aside caveat on probate – whether possible undue influence claim – where no doubt that grant of probate has been established – caveat set aside PRACTICE AND PROCEDURE – DISCOVERY AND INTERROGATORIES – application for discovery to identify right to claim relief – where no tangible basis for an action based on undue influence established – where documents requested not capable of shedding light on other possible claims being considered – application dismissed |
Legislation Cited: | Court Procedure Rules 2006 (ACT) rr 3069, 651 Domestic Relationships Act 1994 (ACT) s 17 Family Provision Act 1969 (ACT) |
Cases Cited: | Boyse v Rossborough (1857) 10 ER 1192 Bridgewater v Leahy (1998) 194 CLR 457 |
Parties: | James Young Ross (Plaintiff in SC 519 of 2018; Respondent in PRO 865 of 2018) Donna Maree Gordon (Applicant in PRO 865 of 2018; First Defendant and Second Defendant, as trustee for the Olga Hart Trust, in SC 519 of 2018) |
Representation: | Counsel W. Sharwood (Applicant in PRO 865 of 2018; First and Second Defendants in SC 519 of 2018) T. Crispin (Respondent in PRO 865 of 2018; Plaintiff in SC 519 of 2018) |
| Solicitors Sharman Robertson (Applicant in PRO 865 of 2018; First and Second Defendants in SC 519 of 2018) Ray Swift Moutrage & Associates (Defendant in PRO 865 of 2018; Plaintiff in SC 519 of 2018) | |
File Numbers: | PRO 865 of 2018; SC 519 of 2018 |
McWilliam ASJ
Two applications are before the Court following the death of Olga Hart (the deceased) on 30 September 2018, who had executed a will on 5 September 2018 (the Will). The same…
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- AGLC
- Ross v Gordon [2019] ACTSC 48
- Case
- [2019] ACTSC 48
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CaseChat Overview and Summary
The legal issues before the court were whether the caveator had a reasonable cause of action to set aside the grant of probate based on a claim of undue influence, and if not, whether the caveator was entitled to discovery of documents to identify other possible claims. The court had to consider the onus of proof required to establish undue influence and whether the documents requested could shed light on other potential claims.
The court found that there was no doubt that the grant of probate had been properly made. The caveator had not established a tangible basis for an action based on undue influence, and the documents requested for discovery were not capable of shedding light on other possible claims being considered. The court held that the caveat should be set aside as there was no reasonable cause of action for undue influence. The application for discovery was dismissed as the documents sought were not relevant to any other possible claims.
The final orders of the court were to set aside the caveat and dismiss the application for discovery. The caveat was set aside because there was no reasonable cause of action for undue influence, and the application for discovery was dismissed as the documents sought were not relevant to any other possible claims.
Orders
Orders of the court
See [78]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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