Van Wyk v Albon

[2011] VSC 120

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT

No. S CI 2010 6143

LEONARD PETER VAN WYK	Plaintiff
v
ROSAMARIA ALBON	Defendant

---

JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 MARCH 2011
DATE OF RULING:	24 MARCH 2011
CASE MAY BE CITED AS:	VAN WYK v ALBON
MEDIUM NEUTRAL CITATION:	[2011] VSC 120

---

Practice and Procedure – Summary dismissal of proceeding claiming declaration that the deceased’s 2004 will was invalid and that a transfer in 2004 of the deceased’s home to the defendant should be set aside – Probate granted of 2004 will – Five prior wills of the deceased executed over a 15 year period tendered in evidence – Neither the plaintiff nor his sister (the son and daughter of the deceased) named as beneficiary in any of these wills – Death certificate stated that the deceased had been suffering from dementia for 10 years – No grounds for challenging three wills executed before this period – Plaintiff has no standing to seek declaration that the 2004 will was invalid or that the 2004 transfer should be set aside – Claim has “no real prospect of success” – Civil Procedure Act 2010, s.63(1) Supreme Court (General Civil Procedure) Rules 2005, r.23.01(1)(a).

Real Property – Application to remove caveat – Proceeding commenced by the plaintiff purportedly to substantiate the claim of the caveators – No caveatable interest shown – Caveat to be removed – Transfer of Land Act 1958, s.89A, 90(3).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr J.L. Evans	Pryles & Co

HIS HONOUR:

1. I have before me today a summons filed on 21 February 2011 by the defendant, Rosamaria Albon, seeking an order pursuant to rule 23.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2005 that the proceeding be dismissed; further or alternatively, an order pursuant to s.90(3) of the Transfer of Land Act 1958 (“the TLA”), that the Registrar of Titles remove from the Land Titles Register the caveat with dealing number AH529042C lodged on Certificate of Title Volume 9364 Folio 219; and in the further alternative, an order that the plaintiff provide security for costs.

1. The plaintiff, Leonard Peter Van Wyk, is the son of Jeanette Jacqueline Antoinette Van Wick, nee Versteegh, deceased.  The deceased died on 5 June 2010, leaving a will dated 14 May 2004.  The defendant was named as the executor and trustee of the will and estate of the deceased.  Under that will, there was a bequest to the plaintiff in the sum of $50 and a bequest to his sister, the daughter of the deceased, also in the sum of $50.  (The sister, Frederica Catherina Salmon, lives in the United Kingdom).  The remainder of the estate was left to the defendant.  The defendant did not seek to obtain probate.  Instead, probate of that will was granted to State Trustees.

1. In the proceeding commenced by the plaintiff on 11 November 2010, he sought a declaration that the 2004 will was invalid, a declaration that the testatrix died intestate, an order that he be appointed executor of his late mother's estate, and that there be no Limitation of Actions Act time limit applied against a claim to set aside a transfer dated 17 September 2004 of the deceased's former home to the defendant.

1. It is unnecessary to set out the long and complicated history in detail.  Very briefly, it appears that the defendant, whilst she was a younger woman than the deceased, was a longstanding friend or acquaintance of the deceased.  For various reasons, there had been no contact for a very long time between the deceased and her son and daughter.

1. In his affidavit affirmed on 9 November 2010 and filed in support of his originating motion, the plaintiff deposed that the deceased had been diagnosed as suffering from dementia for the period of ten years prior to her death.  This was stated in the death certificate.  In addition to lack of testamentary capacity, the plaintiff alleged undue influence and/or duress by the defendant.  He also sought to attack the transfer of the deceased’s home to the defendant.

1. In September 2010 the plaintiff and his sister lodged a caveat on the title of the deceased’s former home now registered in the defendant’s name. The caveat claimed that the defendant held the property on trust for herself and the caveators pursuant to an implied, resulting or constructive trust. In October 2010, the defendant’s solicitor lodged an application pursuant to s.89A of the TLA. On 15 November 2010, the Registrar of Titles advised the defendant’s solicitor that he had been notified in writing that “proceedings in a court of competent jurisdiction to substantiate the claim of the caveator were on foot”. This can only have been a reference to this proceeding, although both caveators were not plaintiffs and no relief is sought in the proceeding to the effect that the defendant held any part of the property on trust for the plaintiff or for his sister.

1. An application to revoke the grant of probate of a will can be made by a party who has an “interest” in the outcome,[1] obviously on sufficient grounds, such as that the testatrix lacked testamentary capacity or that the will had been obtained by undue influence or duress of the beneficiary.  The difficulty here for the plaintiff is that, as now appears from earlier wills, there is no ground on which I could conclude that he could stand to benefit from the setting aside of this will. 

   [1]Re Seymour [1934] VLR 136 (Mann ACJ);  Re Finn [1942] VLR 125 (Lowe J).

1. In response to a subpoena, solicitors produced five prior wills of the deceased, which were respectively dated 5 December 1989, 9 October 1990, 4 December 1997, 12 September 2001 and 2 January 2003.  The last two of those wills also named the defendant as the residuary beneficiary.  She did not appear as a beneficiary in the first three of the wills.  Neither the plaintiff nor his sister were named as beneficiaries in any of these wills.  In one of them they were mentioned and an explanation was given why there was no bequest in their favour.

1. As I have previously stated, the death certificate notes that the deceased had been suffering from dementia for 10 years.  That, arguably, might be sufficient to mount a prima facie case[2] that the three wills, including the last will, that favoured the defendant could be challenged on the ground of lack of testamentary capacity.  However, the 1997 and earlier wills are outside that stated period.  Given that the first of those wills, the 1989 will, was some 21 years prior to the death of the deceased, there would seem to be no ground for challenging that will on the basis of lack of testamentary capacity.  I note also that the will was prepared by solicitors and would appear to have been executed in the presence of a solicitor, although the occupations of the witnesses are not stated.

   [2]ReEgan, deceased [1963] VR 318 (Herring CJ).

1. In those circumstances, the chance that the deceased would be found to have died intestate, which would give the plaintiff standing to attempt to set aside all of these wills, is virtually non‑existent. In my opinion, this means that the plaintiff’s claim that the deceased died intestate has “no real prospect of success” within the meaning of s.63(1) of the Civil Procedure Act 2010.

1. Mr Evans of counsel, who appeared for the defendant, drew my attention to the decision of Sifris J in Wood v McLean,[3] where his Honour held that the two plaintiffs who had made claims under Part IV of the Administration and Probate Act 1958 did not have standing to bring an action seeking to set aside an inter vivos transfer by the deceased to their sister.  Mr Evans submitted that this case was stronger than the one before Sifris J because, as I have explained, in order to put himself in the position of a beneficiary, the plaintiff would have to be able to successfully challenge six wills of the deceased.

   [3][2010] VSC 550, [40].

1. Mr Evans, very properly, brought to my attention that he understood that the decision was on appeal.  Nevertheless, with respect I adopt his Honour's reasoning as applicable to the situation in this case.  Unless it could be said that there was a prima facie case that each of the wills of the deceased could be set aside, it seems to me that the plaintiff, and his sister for that matter, have no standing to seek the revocation of the grant of probate of the 2004 will. 

1. I turn then to the situation with respect to the transfer of the deceased's former home to the defendant.  The same problem confronts the plaintiff, in that even a successful action by the executor, which would normally be the proper party to bring such an action,[4] does not benefit the plaintiff.  In the case of the last three wills, if the executor were to bring such an action and the deceased’s former property were brought back into the estate, then unless each of those wills were set aside, the asset would simply go into the estate and go out again to the defendant as residuary beneficiary.  With respect to the earlier wills, the beneficiaries under those wills would be the ones to benefit from the enlarging of the deceased's estate by a successful action by the executor to recover that property.  Thus, once again the plaintiff has no standing with respect to this issue and it has “no real prospect of success”. 

   [4]In certain limited cases, a beneficiary can institute the proceeding.  See Ramage v Waclaw (1988) 12 NSWLR 84 (Powell J).

1. Finally, I turn to the application to remove the caveat.  Mr Evans submitted that the caveators had no caveatable interest.  I agree.  Whatever one might think about the transfer by the deceased to the defendant of her home, if equity were to grant relief with respect to that transfer, the result would be that the defendant would hold the property on trust for the estate of the deceased and not on trust for the deceased’s son and daughter.  Nothing has been shown to support the caveators’ claim that they have a caveatable interest. 

1. As I understand s.89A(7) of the TLA, in addition to ordering that the plaintiff's action be dismissed, I can also make an order requiring the caveat to be removed. Alternatively, I can make such an order under s.90(3) of the TLA. Either way the caveat should be removed.

1. Having reached those conclusions, it is unnecessary for me to consider the question of security for costs. 

---