Ulman v Mom - [2022] VSC 186

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2019 21164

IN THE MATTER of the will of William Ditchburn, deceased

PATRICIA MARY ULMAN	Plaintiff
v
CHHEANG MOM	Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 & 9 March 2022
DATE OF JUDGMENT:	20 April 2022
CASE MAY BE CITED AS:	Ulman v Mom
MEDIUM NEUTRAL CITATION:	[2022] VSC 186

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WILLS & ESTATES – Where plaintiff seeks grant of probate of copy will – Where original will cannot be found – Where plaintiff seeks to rebut presumption of revocation – Weight to be given to presumptions of fact – Where deceased declined to prepare new will on the basis that he had a will already – Cahill v Rhodes [2002] NSWSC 561 – Re Demediuk [2019] VSCA 86 – Re Moschoudis [2016] VSC 139.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Rizzi	Saunders Family & Estate Lawyers
For the Defendant	Mr P Kistler	James Karavias & Co

HIS HONOUR:

In this proceeding, Patricia Ulman seeks that the Court grant probate in respect of a will which cannot now be found, but which is said to have been made by her brother, William Ditchburn (the deceased), on 23 September 2011. A document said to be an unsigned and undated copy of that will is in evidence (the will).[1] Ms Ulman seeks a grant of probate in respect of that document until the original will, or a more authentic copy of it, is filed with the Court.
[1]The will is contained within Exhibit P1.

The will purports to appoint Ms Ulman as the sole executor of the deceased’s estate; she is also identified as the sole beneficiary of the deceased’s estate under the terms of the will.

The deceased’s estate is modest. It is comprised of a property at 5 Genista Road in Cranbourne West (the Cranbourne property), personal assets valued at approximately $40,000 and a mortgage liability of approximately $48,000.

The grant of probate is opposed by Chheang Mom who, together with deceased, resided at the Cranbourne property from about 2012 until the deceased’s death on 22 December 2016 at 60 years of age. Ms Mom’s daughter, Sophear Khem and Ms Khem’s children, also lived at the Cranbourne property for several years.

The deceased and Ms Mom met at work in 2012. The deceased had previously been married and was divorced in 2010.

Ms Ulman’s case was that Ms Mom lived at the Cranbourne property as the deceased’s tenant. The characterisation of the relationship between the deceased and Ms Mom as being landlord and tenant was rejected by counsel for Ms Mom. Although it was submitted that their relationship extended beyond that of landlord and tenant, the nature of their asserted relationship remained vague and unclear. Counsel withdrew a submission made in opening that the deceased and Ms Mom were in a domestic relationship and instead submitted in closing…

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 Ulman v Mom

Details

AGLC: Ulman v Mom [2022] VSC 186
Case: [2022] VSC 186
Decision Date: 20 April 2022

CaseChat Overview and Summary

The case of Ulman v Mom involved the plaintiff, Ulman, seeking a grant of probate of a copy will of the deceased, Mom. The dispute centred on the existence and validity of the original will, which could not be found. Ulman argued that the copy will should be granted probate, while contending that the presumption of revocation had not been successfully rebutted by the opposing party. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the presumption of revocation of the original will could be rebutted and the appropriate weight to be given to the presumptions of fact in the context of this case. The court had to consider the relevant authorities, including Cahill v Rhodes, Re Demediuk, and Re Moschoudis. These cases provided guidance on the presumptions of fact and the burden of proof in relation to the revocation of wills.

In delivering its judgment, the court examined the evidence presented and the circumstances surrounding the case. The court found that the presumption of revocation was a significant factor to be considered, but it was not an insurmountable obstacle. The court concluded that the evidence provided by Ulman was sufficient to rebut the presumption of revocation, and therefore, the copy will should be granted probate. The court placed emphasis on the deceased's refusal to prepare a new will, indicating that they believed they already had a valid will in place. Based on this finding, the court granted Ulman's application for probate of the copy will.

The final orders of the court included the granting of probate to the copy will, allowing Ulman to administer the estate in accordance with its terms. The court also directed that the opposing party bear the costs of the proceedings, reflecting the outcome of the legal dispute.

Orders