Sutherland v Bukoven - [2019] TASSC 20

[2019] TASSC 20

COURT: SUPREME COURT OF TASMANIA

CITATION: Sutherland v Bukoven [2019] TASSC 20

PARTIES: SUTHERLAND, Beverley Ann
BUTLER, Maxwell John (as personal

representatives of the estate of
BORKOWSKI, Maria Cecylia)
v
BUKOVEN, Eurydika Jurate Semanta

FILE NO:  2185/2016
DELIVERED ON:  17 May 2019
DELIVERED AT:  Hobart
HEARING DATE:  7 November 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Succession – Probate and letters of administration – Procedure – Tasmania – Proof in solemn form – Three wills made between 2003 and 2010 – Evidence provided shows testatrix had the requisite testamentary capacity at the time the third will was made – All relevant interested parties have participated, or had the opportunity to participate, in the litigation – Appropriate to pronounce probate in solemn form.

Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786; McFadyen v Bluett [2017] TASSC 72; Timbury v Coffee (1941) 66 CLR 277, applied.
Wills Act 2008 (Tas), ss 8 and 10.
Aust Dig Succession [1154]

REPRESENTATION:

Counsel:
Defendant: D Marcenko
Solicitors:
Defendant: Ogilvie Jennings

Judgment Number: [2019] TASSC 20
Number of paragraphs: 29

Serial No 20/2019
File No 2185/2016

BEVERLY ANN SUTHERLAND and MAXWELL JOHN BUTLER (as personal representatives of the estate of MARIA CECYLIA BORKOWSKI)
v EURYDIKA JURATE SEMANTA BUKOVEN

REASONS FOR JUDGMENT BRETT J

17 May 2019

Maria Cecylia Borkowski, the deceased, died on 13 July 2011. She was 82 years of age at the time of her death. The evidence suggests that she was born in Poland and lived there until she came to Australia as a young adult. She lived in Australia for the rest of her life.
Mrs Borkowski made at least three wills during the course of her life. These were made on 11 July 2003, 5 February 2009 and 24 May 2010. In the 2003 will, she appointed the plaintiffs as her executors and trustees. The defendant was appointed as the personal representative of her estate in the 2010 will.
The plaintiffs commenced these proceedings by writ in 2016. The plaintiffs sought to prove the 2003 will in solemn form. The defendant, by counterclaim, sought a similar order in respect of the 2010 will. On 3 October 2018, the plaintiffs discontinued their action. Their defence to the counterclaim had been struck out on 14 August 2018 as a result of a consent order. These steps were taken pursuant to an agreement between the parties reached at mediation.
The defendant now pursues the counterclaim. In particular, the defendant seeks a grant of probate in solemn form in respect of the 2010 will. The plaintiffs are no longer participating in the proceeding and did not appear at the trial.

Grant of probate in solemn form

In Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786, Lindsay J described the court's pronouncement of probate in solemn form as follows at [248]-[249]:
"In making an order for a grant in solemn form the Court must satisfy itself that there are reasonable grounds for a…

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 Sutherland v Bukoven

Details

AGLC: Sutherland v Bukoven [2019] TASSC 20
Case: [2019] TASSC 20
Decision Date: 17 May 2019

CaseChat Overview and Summary

The matter before the Court involved a dispute over the validity and interpretation of three wills made by the deceased between 2003 and 2010. The applicant sought to have the third will pronounced in solemn form. The case was heard in the Supreme Court of Tasmania. Various interested parties, including family members of the deceased, participated in the proceedings.

The central legal issues revolved around whether the deceased had the requisite testamentary capacity at the time the third will was made and if it was appropriate to grant probate in solemn form given the participation of all interested parties in the litigation. The applicant argued that the evidence demonstrated the deceased had the necessary testamentary capacity and that all relevant parties had the opportunity to engage in the proceedings.

The Court considered the evidence presented regarding the deceased's mental state at the time the will was made and noted the participation of all interested parties in the litigation. It found that the deceased indeed had the requisite testamentary capacity when the third will was executed. The Court further determined that, as all interested parties had participated, or had the opportunity to participate, in the litigation, it was appropriate to grant probate in solemn form. This conclusion was based on the premise that all relevant voices had been heard and considered in the process.

The Court ordered that the third will be granted probate in solemn form. This decision effectively resolves the dispute over the validity of the wills and provides clarity for the distribution of the deceased's estate.

Orders