Walsh v Wallace
[2005] VSC 124
•27 April 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
IN ITS PROBATE JURISDICTION
Probate No. 1 of 2004
In the Matter of the Will of ROBERT GORDON RICHARDSON, deceased.
BETWEEN:
| JOSEPH RAYMOND WALSH | Plaintiff |
| v | |
| CAROLYN EVA WALLACE | Defendant |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February 2005 | |
DATE OF JUDGMENT: | 27 April 2005 | |
CASE MAY BE CITED AS: | Walsh v Wallace | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 124 | |
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Administration and Probate – Objection by caveator to grant of probate of testator’s last Will – Executor and testator’s wife’s niece left whole of estate in equal shares – Settlement reached at mediation between executor and caveatrix to prove penultimate Will, under which executor, testators’ wife’s niece and caveatrix, who was testator’s niece, left whole of estate in equal shares – Whether adequate notice given to testator’s wife’s niece – Whether circumstances in which last Will was executed raised a well-founded suspicion that it did not express the true will of a free and capable testator – Appropriate procedure where, in an application for probate, one will is replaced by another will.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C.H. Sparke | De Marco & Co |
| For the Defendant | Mr R.R. Pritchard | Macpherson + Kelley |
HIS HONOUR:
The Application
By an originating motion dated 28 November 2003, the plaintiff, Joseph Walsh, the executor named therein, applied for a grant of probate of the last Will of Robert Gordon Richardson, deceased. However, in the circumstances detailed below, the application was altered to seek probate of the penultimate Will of the deceased. After hearing argument from counsel for the plaintiff and counsel for the defendant caveatrix, Carolyn Wallace, I indicated that, subject to clarification by the plaintiff of the procedure he wished to follow in respect of the new application, I would grant it. I now publish my reasons for reaching that conclusion and making the orders set out below.
The Wills
Mr Richardson died on 30 September 2003 aged 86 years, leaving a last Will dated 28 February 2003 ("the last Will"). The deceased left real estate (a house in Glenroy) valued at $325,000 and personal estate valued at $39,881.98.
In his last Will Mr Richardson appointed Mr Walsh as his executor or, if Mr Walsh predeceased him, his solicitor Mr Joseph De Marco. He left the whole of his estate to "my niece Shirley Shirley" [sic] and Mr Walsh "as tenants in common in equal shares". Ms Shirley's correct name is apparently Jeanne Shirley. She was the niece of the wife of Mr Richardson. Ms Shirley lives at Mona Vale in the State of New South Wales. In the event of Mr Walsh predeceasing him, Mr Richardson left Mr Walsh's share to Sheila Walsh, who was presumably his wife. The deceased stated in paragraph 5 of the last Will that he was:
"Living [sic] a substantial part of my estate to my good friend JOSEPH WALSH as he has been looking after me and assisting in my daily care and because he has been a good friend."
The deceased's penultimate Will was dated 1 March 2002 ("the penultimate Will"). It was in some respects similar to the last Will. Mr Walsh was appointed the executor with Mr De Marco again the substitute executor. There was an equivalent paragraph to paragraph 5 of the last Will, including the same typographical error. However, in the penultimate Will the estate was left to "my niece Caroline Wallace" [sic] and Ms Shirley and Mr Walsh "as tenants in common in equal shares", and there was no gift over to Sheila Walsh. Ms Wallace was the daughter of Mr Richardson's brother Norman, who died in December 2001.
Although it was not put into evidence, it appears that Mr Richardson had made his previous Will in 2000. According to subsequent correspondence from the plaintiff's solicitors, that Will left a gift of about $15,000 to Mr Walsh with the balance of the estate divided between Ms Shirley as to one half and Ms Wallace and her brother Graeme as to one quarter each.
By a caveat filed on 9 October 2003, Ms Wallace objected to the grant of probate of the last Will. Her grounds, as set out in a statement filed on 23 December 2003, were that:
"1.John Raymond Walsh, the person benefiting under the Will, prepared or obtained the Will or was instrumental in preparing or obtaining the same;
2.The deceased lacked testamentary capacity during the period shortly before and at the time of execution;
3.The deceased acted under the undue influence exercised by John Raymond Walsh."
The Factual Background
In his affidavit sworn on 31 March 2004 in support of his application for probate of the last Will, Mr Walsh said that he had known Mr Richardson for around 45 years. They met when Mr Richardson started working for the same company as Mr Walsh, although at a different factory. They were members of the same RSL branch and the same golf club. Mr Walsh said that Mr Richardson started "to go a little bit downhill" after his wife died in about 1992. Mr Richardson suffered from emphysema and was "a fairly heavy drinker". As the years went by Mr Walsh visited Mr Richardson at least three days a week and in the two years before he died Mr Walsh saw Mr Richardson every day. Mr Walsh said that although Mr Richardson became increasingly frail physically "there was nothing wrong with him mentally almost up until he died". Mr Walsh helped Mr Richardson with his shopping and did his banking. He said that Mr Richardson "understood his finances until quite late in life".
Ms Wallace said in her affidavit sworn on 11 May 2004 that her parents and her uncle and aunt enjoyed a close and happy relationship. She said that Mr Richardson on many occasions told her that she was his favourite niece.
Ms Wallace said that, in the last 12 months of his life, there was a marked deterioration in her uncle’s hygiene and appearance. He became very thin. He drank even more heavily. His house was messy with rum and whisky bottles strewn around the lounge room.
Ms Wallace agreed that Mr Walsh visited Mr Richardson frequently, but she said that when she visited, Mr Walsh’s presence caused a strained atmosphere. She said that commonly Mr Richardson acquiesced in things Mr Walsh said and in his responses to questions from Mr Walsh. According to Ms Wallace, after he had been appointed administrator Mr Walsh informed her on the telephone on one occasion that Mr Richardson did not like the way Mr Walsh was handling his affairs, particularly his money.
In about the middle of 2002, Mr Richardson granted an enduring power of attorney to Mr Walsh. Following this, on 11 September 2002, Ms Gail Willingham, the Community Services Manager of Vasey Housing Limited which was involved with Mr Richardson as an ex-serviceman, applied to the Victorian Civil and Administrative Tribunal (“the Tribunal”) pursuant to the Guardianship and Administration Act 1986 for the appointment of an administrator of Mr Richardson’s estate and pursuant to the Instruments Act 1958 for revocation of the power of attorney. By an order made on 4 October 2002 the Tribunal, having noted that Mr Walsh had disclaimed the power of attorney, appointed Mr Walsh to be the administrator of Mr Richardson’s estate. The order noted that the Tribunal was satisfied that Mr Richardson had a disability and that by reason of that disability he was unable to make reasonable judgments about his estate.
A consultant geriatrician, Dr Jenny Schwarz, visited Mr Richardson on 2 June 2003. This assessment was arranged by Vasey Housing because of concerns for Mr Richardson’s welfare following his cancellation of the contract for their assistance. In her report dated 11 June 2003, Dr Schwarz expressed the view that Mr Richardson had “significant cognitive impairment” the possible causes of which included “Alzheimer’s Disease, alcohol related damage or a combination of both”. She felt that if he were to remain at home he required support services.
On 23 July 2003 the Tribunal revoked its earlier order and appointed an independent and specialist solicitor, Mr Luigi Papaleo, administrator of Mr Richardson’s estate.
Dr Jack Armour, Mr Richardson’s general practitioner for over 35 years, had a different view of Mr Richardson’s testamentary capacity. In his affidavit sworn on 10 June 2004 Dr Armour stated that he believed that “the deceased was of sound mind in February 2003 and capable of making a will”. In a report dated 17 March 2004 which was exhibited to his affidavit, Dr Armour expanded on his opinion. He described Mr Richardson “as a ‘rascal’ or ‘scallywag’” with an inbuilt dislike of any form of authority. He agreed that Mr Richardson drank a lot but said that he had “never seen him drunk”. He said that Mr Richardson had been ill for years with lung cancer and osteoporosis. Dr Armour’s report continued:
“On one of my visits to him in 2003, he told me he had altered his will, and I asked him why he had cut out his relatives – I had no idea of how many – to which he answered in his typical fashion: ‘They never visit me, Doc.’...
I consider that he knew what he was doing when he altered the will, and was of sound mind at the time. In various mental tests done on him he often did poorly in regard to ‘day of the week, month etc.’, but he did not read newspapers or watch television, those things (day etc) had no importance to him, he only liked to talk. Whether he was influenced in any way, I am not in a position to know or answer. Nothing he ever said to me indicated that he was. He was at all times rational in my presence, but often not with strangers, particularly those who wanted to test him, or arrange accommodation.”
A neighbour of Mr Richardson, Mr John Oliver, said in his affidavit sworn on 21 May 2004 that in the last twelve or eighteen months before he died Mr Richardson’s memory became progressively defective. He could not maintain a conversation with Mr Richardson. Mr Oliver confirmed Mr Richardson’s heavy drinking. Mr Oliver also said that Mr Walsh was of a dominant disposition. Mr Walsh disregarded Mr Richardson when speaking about his affairs in his presence. Mr Walsh told Mr Richardson that he would not understand.
Mr Hubert Mayne was a friend and neighbour of Mr Richardson. He said in his affidavit sworn on 21 May 2004 that Mr Richardson told him that he trusted Mr Walsh and had appointed Mr Walsh his attorney because he did everything for him. However, Mr Mayne said that on one occasion in about June 2003 when he went to Mr Richardson’s house, Mr Richardson said to him that he had a problem because Mr Walsh had talked him into leaving everything to Mr Walsh in his Will. Mr Mayne told Mr Walsh that he should ring Veterans’ Affairs, but did not otherwise pursue the matter. Mr Mayne agreed that Mr Richardson drank heavily.
Mr Walsh said that Mr Richardson made three Wills in the time that he was having more contact with him. The first was made in 2000. Mr Walsh drove Mr Richardson to the solicitor's office and sat with him at the time he made the Will. He said that Mr Walsh was completely of sound mind and no questions were raised about his capacity.
Mr Walsh said that he again drove Mr Richardson to the office of his solicitor, Mr De Marco, when he made the penultimate Will. At the solicitor's office Mr Richardson asked him to be the executor. Mr Walsh agreed. Although Mr Walsh said he was not present when the instructions were given to the solicitor, Mr Richardson subsequently told him what was in it. Mr Walsh said that by that time he was virtually the only person visiting Mr Richardson.
According to Mr Walsh, Mr Richardson began talking about the changes he wanted to his Will before February 2003. At Mr Richardson's request, Mr Walsh contacted the solicitor's office following a telephone conversation between Mr Richardson and his brother's widow, Vera, in which she informed him that she was going to sell her place and live with her daughter Carolyn. Mr Walsh said that after telling him what Mrs Vera Richardson had said, Mr Richardson said: "Well if Carolyn's going to get all of Norm's money, she's not getting mine as well."
Mr Ian Aloni, a solicitor in the employ of Mr De Marco, stated in his affidavit sworn on 15 March 2004 that Mr Walsh telephoned on 12 December 2002 to advise that Mr Richardson wanted to amend his Will by excising Ms Wallace. Mr Walsh said that as Mr Richardson was not able to walk, the solicitor would have to come to Mr Richardson's house for execution of the Will. Having prepared the draft Will, Mr Aloni telephoned Mr Walsh on 18 December 2002 but was told by Mrs Walsh that Mr Richardson was in hospital.
Mr Aloni said that on 9 January 2003 Mr Walsh telephoned with further instructions from Mr Richardson – this time everything was to be left to Mr Walsh apart from a $10,000 legacy for Ms Shirley and $10,000 bequest for the RSL. After discussing his concerns with Mr De Marco, Mr Aloni wrote to Mr Richardson by a letter dated 20 January 2003 inviting him to make an appointment with Mr De Marco to provide his instructions. On 6 February 2003 Mr Walsh telephoned Mr Aloni and advised that the Will "was to be put in abeyance for the time being". On 20 February 2003 Mr Walsh attended the office and said that Mr Richardson wanted all of his papers, including the certificate of title to his house. By a letter dated the same day Mr Aloni sent to Mr Richardson the unexecuted Will, the powers of attorney and the certificate of title.
According to Mr Walsh, Mr Richardson was unhappy at the idea of paying his solicitor for changing the Will, and asked Mr Walsh to arrange with the RSL to have it signed. After some discussions with the RSL, on 28 February 2003 Mr Richardson and Mr Walsh went to the Glenroy branch of the RSL where Mr Richardson signed his Will, which was witnessed by Mr Reg McMaster, a Justice of the Peace and the Welfare and Pensions Officer at the Glenroy branch of the RSL, and Mr Max Usher, a Senior Vice-President of that branch.
Mr Walsh said in his affidavit that he was not with Mr Richardson "at the time he signed his Will". On the other hand, Mr Usher said in his affidavit sworn on 11 March 2004 that he, Mr McMaster, Mr Richardson and Mr Walsh "sat down to sign the Will". In his affidavit sworn on 12 March 2004, Mr McMaster agreed that all four "sat together at a table in the public area in front of the bar", although Mr Walsh went to another table "at the moment" when Mr Richardson signed the Will. Yet in a letter to Ms Wallace's solicitors dated 9 March 2004, Mr McMaster stated that "Mr Walsh was present during the entire proceedings."
Mr McMaster said in his affidavit the he knew Mr Richardson and Mr Walsh to be “close mates”. He considered Mr Walsh was simply helping out an old mate who was not very mobile. He saw no evidence of undue influence by Mr Walsh or lack of testamentary capacity in Mr Richardson. Mr Usher gave similar evidence in his affidavit. He said that he did not detect any evidence of undue influence or any sign that Mr Richardson did not know what he was doing in signing the Will.
The Settlement
Pursuant to an order of Master Kings made on 4 August 2004, the plaintiff and the defendant attended a mediation on 9 November 2004. A settlement was reached conditional on obtaining the consent of Ms Shirley. The parties agreed to waive the confidentiality of the mediation process for the purpose of obtaining Ms Shirley's consent and seeking orders from the Court. The proposed settlement was that probate of the penultimate Will would be sought in lieu of the last Will. As far as Ms Shirley was concerned the result of the settlement was that her half share of the deceased's estate would be reduced to one third.
Numerous unsuccessful attempts were made by the plaintiff executor's solicitors to obtain Ms Shirley's considered response to the proposed settlement. As executor, Mr Walsh needed to know her attitude to him settling or pressing on and fighting the case. The concern of the parties obviously enough was that fighting the case would see a significant part of the small estate consumed by legal costs.
Counsel for the plaintiff spoke by telephone to Ms Shirley from the mediation. Ms Shirley expressed unwillingness to participate in the proceeding but did not provide any instructions one way or the other concerning the settlement. By a letter dated 23 November 2004, the plaintiff's solicitors wrote to Ms Shirley confirming the discussions with counsel and again outlining the various outcomes discussed at the mediation and the advantages of settlement. A Settlement Agreement was enclosed with the letter and Ms Shirley was urged to obtain independent legal advice. It was pointed out that the hearing was fixed for 3 February 2005 and that further costs would be incurred, possibly at her expense, if the settlement was not finalised well before that date.
On 7 December 2004 Mr Walsh telephoned Mr De Marco’s office and stated that he had spoken to Ms Shirley who told him that she wanted to “bring in her brother” and “doesn’t want Carolyn Wallace to get anything”. On the same day the plaintiff’s solicitors wrote to Ms Shirley requesting her to return the signed Settlement Agreement or to instruct solicitors to contact them in relation to the matter. A similar letter was sent on 16 December 2004. The plaintiff’s solicitors received no direct contact from Ms Shirley in response to any of these letters.
On 21 January 2005 the plaintiff’s solicitors again wrote to Ms Shirley seeking a response to their earlier letters and reminding her that the matter was scheduled to commence on 3 February 2005. Enclosed with that letter was a letter from the defendant’s solicitors, Macpherson + Kelley, to the plaintiff’s solicitors indicating that because no response had been received from Ms Shirley counsel had been briefed to appear at the hearing and threatening to seek costs on an indemnity basis from the date of mediation from Ms Shirley. Seven days later a further reminder letter was sent to Ms Shirley by the plaintiff’s solicitors.
On 28 January 2005 the plaintiff’s solicitors received a telephone call from a solicitor who had been contacted by Ms Shirley about the matter. Copies of the correspondence, the Will and the Terms of Settlement were immediately provided to that solicitor. In a further telephone conversation later that day the solicitor advised that she did not have instructions from Ms Shirley as she did want to pay legal fees as she felt all funds should “go towards healing”. It was said that Ms Shirley intended to apply for legal aid from the relevant New South Wales body.
Nothing further was heard from Ms Shirley prior to the hearing and, not surprisingly, she did not appear at the hearing. However, the day after the hearing on 3 February 2005 the Court received the following letter from Ms Shirley, which was dated, probably mistakenly, 2 January 2005:
“I wish to lodge a submitting appearance. Owing to ill-health and lack of finance, I am unable to attend. A statement to this effect was sent to you yesterday... I only received all documents, except my uncle’s last Will, this week.
P.S. I can definitely attest to my uncle’s quality of mind and intentions.”
All of the letters from the plaintiff’s solicitors to Ms Shirley were sent to the address stated on her letter to the Court. There is also the plaintiff’s receipt of a telephone call from Ms Shirley on or before 7 December 2004. In the light of this evidence, I am satisfied that Ms Shirley had adequate notice of the proceeding, and that she had been given a detailed explanation of the terms of the settlement reached between the plaintiff and the defendant, how this settlement impacted on her entitlement under the last Will of the deceased and of the various options open to her. Further, in the absence of any express direction to the contrary from Ms Shirley, I consider that Mr Walsh is free to proceed with the implementation of the settlement reached at the mediation with Ms Wallace.
However, as both parties recognised, that is not the end of the matter. In Grey Smith, deceased[1] Murphy J said:
“It seems to be clear as a matter of law that consents given by parties interested, not to propound a will, do not enable the Court to proceed on the footing that such a will does not exist.
In In the Goods of Watts (1837), 1 Curt. 594 at p. 595; 163 E.R. 208, Sir Herbert Jenner said: ‘The consent of parties interested proves nothing; no person’s consent can make a will no will.’
In In the Estate of Speke (1913), 109 L.T. 719 at p. 720, Bargrave Deane, J. said: ‘I do not understand the position of the executors. An executor’s duty is to carry out the wishes of his testator as expressed in writing. Now, without the least material to go on, they say that this codicil is not duly executed. What possible right have they to say that?’
In Re Muirhead dec’d, [1971] P. 263 at p. 266; [1971] 1 All E.R. 609, Cairns, J. indicated his approval of the decision in In the Goods of Perry (1840), 2 Curt. 655; 163 E.R. 540, which he said ‘is an indication that an executor cannot pick and choose between the testamentary documents of which he applies for probate.”
[1][1978] VR 596 at 601-602. See also Re Irving, deceased [2003] VSC 351 at [23] per Kellam J
In order to give effect to the parties’ wishes that the penultimate Will be admitted to probate, I have to be satisfied that the last Will was executed in circumstances which “raise a well-founded suspicion that it does not express the true will of a free and capable” testator.[2] The onus is not on those seeking to propound the penultimate Will to prove the invalidity of the last Will, except that the onus of establishing duress or undue influence lies on those who assert it.[3] In the present circumstances, as no-one is now seeking to propound the last Will, there is no-one attempting to remove any suspicions surrounding the making of that Will. Nevertheless, as Baron Parke said in Barry v Butlin[4]:
“The conscience of the court must be satisfied by the evidence.”
[2]Re Grey Smith, deceased [1978] VR 596 at 605 per Murphy J; Re Fuld (dec’d) [1968] P. 675
[3]In the Will of Steward, deceased [1964] VR 179 at 184 per O’Bryan, Smith and Pape JJ; Re Grey Smith, deceased [1978] VR 596 at 604 per Murphy J
[4](1838) 2 Moo PCC 480
The following matters appear to me to support the submissions that there is a well-founded suspicion that the last Will does not express the true will of a free and capable testator:
(a)The plaintiff was instrumental in the drafting of the Will. He gave the instructions to the solicitors (paragraph 20 above).
(b)The plaintiff was instrumental in the execution of the Will. He arranged for the witnesses and took Mr Richardson to the RSL Glenroy branch (paragraph 22 above).
(c)There is evidence that the plaintiff was present throughout the signing of the Will (paragraph 23 above).
(d)Contrary to the previous Wills, the last Will was not executed with a solicitor present (paragraphs 17, 18, 22 and 23 above).
(e)The continual increase in the size of the bequest to the plaintiff in the three latest Wills and a proposed one (paragraphs 3-5 and 21 above).
(f)The fact that the plaintiff put the signing of the Will “in abeyance” following the solicitors' letter of 20 January 2003 inviting Mr Richardson to make an appointment with Mr De Marco (paragraph 21 above).
(g)Mr Mayne’s evidence that Mr Richardson had said that Mr Walsh had talked him into leaving everything to Mr Walsh in his Will (paragraph 16 above).
(h)The evidence of Mr Oliver and Ms Wallace concerning Mr Walsh’s attitude and demeanour towards Mr Richardson (paragraph 10 and 15 above).
(i)The appointment of the plaintiff as the administrator of Mr Richardson’s estate on 4 October 2002 (paragraph 11 above).
(j)The opinion expressed by Dr Schwarz following her assessment of Mr Richardson in June 2003 (albeit four months after the last Will was signed) that Mr Richardson had “significant cognitive impairment” (paragraph 12 above).
(k)The appointment of Mr Papaleo as the administrator of Mr Richardson’s estate on 23 July 2003 (again after the Will was signed) in place of the plaintiff (paragraph 13 above).
(l)The evidence of Mr Richardson’s heavy drinking (paragraphs 7, 9, 12 and 14-16 above).
(m)Mr Richardson’s poor health (paragraphs 7, 9, 12 and 14 above).
Not all of the matters mentioned above are unequivocal. In addition, there are other matters which tend to alleviate any suspicions concerning the validity of the last Will. They include:
(a)Dr Armour’s firmly expressed view that Mr Richardson had testamentary capacity in February 2003 (paragraph 14 above).
(b)The evident friendship between Mr Richardson and Mr Walsh and the care the latter took of the deceased which may have led to the deceased’s desire to reward Mr Walsh for his assistance over many years, particularly if he believed his niece was likely to benefit when her mother died (paragraphs 7, 14, 16, 19, 22 and 24).
Nevertheless, it seems to me that there is sufficient evidence to justify me coming to the conclusion that there is a well-founded suspicion that the last Will does not express the true will of a free and capable testator. Further, although there were obvious financial reasons for settling, it is not without significance that the plaintiff decided, for his own part, not to persist with his application to propound the last Will.
The New Application
The issue about which there was some uncertainty was what procedure should be followed in circumstances such as this. Did the plaintiff need to issue a fresh application seeking a grant of probate of the penultimate Will or was it sufficient simply to amend the present application? This issue did not seem to have been fully considered by the parties prior to me raising it. Counsel for the plaintiff tended to favour the course of issuing a fresh application whereas counsel for the defendant submitted that the existing application could simply be amended. As I understood it, this matter was to be clarified by the plaintiff by way of written submission. Instead, on 15 March 2005 the solicitors for the plaintiff made a fresh application by a new originating motion for a grant of probate of the penultimate Will. Regrettably, this step was not drawn to my attention by either the plaintiff’s legal representatives or the Probate Office. As a result of the ensuing confusion, the publication of these reasons was unnecessarily delayed for some time.
In my opinion, issuing the fresh application was the correct course to follow. As counsel for the plaintiff submitted, the application for probate vests the Court with jurisdiction to determine the validity of a particular will. Changing the particular document in respect of which a grant of probate is sought is not simply a matter of amendment. Further, requiring the issue of a fresh application is consistent with the general practice that applications for different grants, even in the one estate, are sought by separate originating motions.
This is not to say, however, that every step in such an application has to be repeated. Here, most of the formal proofs for a grant of probate of the penultimate Will are before the Court, including the filing of an affidavit of due execution sworn on 1 February 2005 by a secretary, Patricia Santo, and an affidavit of due execution sworn on 2 February 2005 by a solicitor, Robert Auricchio. One exception is the advertising of the new application for a grant of probate of the penultimate Will. In Re Bloomfield[5] is authority for the proposition that further advertising can be dispensed with, and I propose to so order. Any other formalities can be dealt with by ordering that probate be granted, subject to satisfaction of the requirements of the Registrar of Probate.
[5][1939] VLR 1 at 2 per Lowe J
The order of the Court will be as follows:
In respect of the original application, order that:
1.The application for probate of the Will dated 28 February 2003 be dismissed.
2.The plaintiff’s costs of applying for probate of the Will dated 28 February 2003, including the costs of this proceeding, be paid from the estate of the deceased on a solicitor and client basis.
3.The defendant’s costs relating to the application for probate of the Will dated 28 February 2003, including the costs of this proceeding, be paid from the estate of the deceased on a solicitor and client basis.
In respect of the new application, order that:
1.Subject to satisfaction of the requirements of the Registrar of Probates, probate of the Will dated 1 March 2002 of the abovenamed Robert Gordon Richardson, deceased be granted to Joseph Raymond Walsh of 60 Lincoln Avenue, Merlynston, Victoria, retired, the executor named in the Will.
2.Advertising of the application for probate of the Will dated 1 March 2002 be dispensed with.
3.The plaintiff’s costs of obtaining probate of the Will dated 1 March 2002 be paid from the estate of the deceased on a solicitor and client basis.
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