McGrath v Cherry; Estate of Latimer

Judgment 1HIS HONOUR: These proceedings concern the estate of Raymond Albert Latimer, who died on 24 September 2010 aged 85. 2The plaintiff seeks a grant of probate in solemn form of a will made on 3 June 2009. By that will the deceased revoked prior wills and appointed the plaintiff, whom he described as his grandson, as his executor and trustee. He gave to a Ms Shirley Standen, whom he described as his friend, the right to live in this property in Mowbray Street, Sylvania during her life on certain conditions. The only substantial asset of the estate, which is a small one, is the deceased's interest as a tenant in common of that property. 3In the events that happened he left the residue of his estate to the plaintiff. 4The deceased was survived by his daughter, Rae Lesley Esma Cherry, who claimed to be entitled to the estate on intestacy. She is resident in the United States. 5On 11 April 2011, through her solicitor Mr McGowan, of De Groots Wills & Estate Lawyers, she caused a caveat to be lodged demanding that there be no grant made in the estate without prior notice to her. The caveat was extended on 24 October 2011. The caveat has now expired. 6These proceedings were commenced by a statement of claim on 30 January 2012. The plaintiff seeks a grant of probate in solemn form in respect of the will of 3 June 2009. Mr McGowan of De Groots refused to accept service of the statement of claim. He stated that his firm did not have instructions to accept service of the proceedings and his instructions were limited to obtaining information and documents as outlined in earlier correspondence. 7On 27 February 2012 the Registrar ordered that in lieu of personal service on the defendant, service could be affected on De Groots. Service has been effected in accordance with that order. The statement of claim named Ms Cherry as defendant. No appearance has been filed and there has been no appearance for her today. 8In email correspondence the defendant has raised queries as to the deceased's state of health at or about the time the will was made and has asserted that the plaintiff exerted improper influence over the deceased at the time of execution of the will. 9The will in question was prepared by a solicitor, Mr Simon Bennett of Willis & Bowring Solicitors. He gives evidence as to the receipt of the instructions for the making of the will, and the enquiries he made as to the extent of the deceased's assets, the deceased's reasons for the gifts made by the will, and his reasons for the exclusion of the defendant from it. 10The will was duly executed, and is apparently the will of a competent testator. There is nothing to rebut that inference apart from the assertions or queries raised by the defendant in her email correspondence. An ACAT assessment was carried out which, although not conclusive, is consistent with the deceased's having had testamentary capacity. I am satisfied from the evidence of Mr Bennett that he did. 11The defendant has not chosen to appear in the proceedings. There is nothing to cast any real doubt on the evidence given by Mr Bennett. For these reasons I make the following declaration and orders: