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

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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).

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

HIS HONOUR:

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.

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.

In the proceeding commenced by the plaintiff on 11…

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 Van Wyk v Albon

Details

AGLC: Van Wyk v Albon [2011] VSC 120
Case: [2011] VSC 120
Decision Date: 24 MARCH 2011

CaseChat Overview and Summary

Van Wyk brought an action against Albon seeking a declaration that a 2004 will of the deceased was invalid and that a transfer of the deceased’s home to Albon in 2004 should be set aside. Probate of the 2004 will had been granted. Albon applied to have the proceeding summarily dismissed. The deceased had executed five wills over a 15 year period, none of which named Van Wyk or his sister as beneficiaries. The death certificate stated that the deceased had been suffering from dementia for 10 years. Albon argued that the plaintiff had no standing to seek the declaration or to set aside the transfer, that the claim had no real prospect of success, and that the proceeding should be dismissed under section 63(1) of the Civil Procedure Act 2010 and rule 23.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2005. Albon further contended that the caveat should be removed as Van Wyk had failed to establish a caveatable interest under the Transfer of Land Act 1958. The court agreed with Albon. Van Wyk and his sister had not been named as beneficiaries in any of the deceased’s wills and there were no grounds to challenge three of the wills executed prior to the deceased being diagnosed with dementia. Albon had established that the plaintiff had no standing to seek the declaration or to set aside the transfer, that the claim had no real prospect of success, and that the proceeding should be dismissed with costs. The caveat was removed under section 89A and 90(3) of the Transfer of Land Act 1958. The proceeding was dismissed and the caveat removed.

Orders