Plaintiff v Defendant

3 By summons filed 17 September 2013, Ms Betty Lewis made an application seeking revocation of the grant of probate. Ms Lewis is a sister of the deceased and lives in West Glamorgan, South Wales. Ms Lewis is not a beneficiary under the deceased's 2012 will.

4 In support of her application for revocation of the grant of probate, the defendant filed an affidavit sworn 12 September 2013 alleging that the 2012 will was not valid on four grounds, summarised as follows:

(a) the deceased did not instruct his solicitor, Mr Bruce Robert Climie, to prepare the 2012 will;

(b) the plaintiff exerted undue influence over the deceased to make the 2012 will, in which the plaintiff is named as a beneficiary;

(d) the deceased may have lacked testamentary capacity around the time that the 2012 will was made.

5 At the first instance, it should be noted that Ms Lewis did not file a caveat objecting to the grant of probate to the plaintiff and, in her affidavit, she has not addressed her failure to file a caveat.

6 In the second instance, it should be noted that the contents of Ms Lewis' affidavit are extraordinary in that the assertions contained in paragraphs 10, 11, 13 through to 25 are completely unsubstantiated, speculative, matters of opinion without any basis, or just wrong. For the purposes of the application before me, which was heard and determined on 8 November, those paragraphs in the affidavit were struck out. Other paragraphs in the affidavit refer to matters put by way of family background and do not assist in the determination of the application.

7 The gravamen of the application made by Ms Lewis is that '[h]ad it not been for the will in favour of the [plaintiff] the deceased['s] estate would have gone to me and my sister and possibly a share to [my deceased sister's] children as next of kin'.[1]

8 In opposition to the application, Mr Climie, the solicitor for the deceased, filed an affidavit sworn 6 November 2013. In his affidavit, Mr Climie deposes to the circumstances of his taking instructions from the deceased for the purposes of drawing the deceased's 2012 will. He also deposes to an earlier will of the deceased dated 19 June 2000 ('the 2000 will'), which, save for a legacy of $5 000 to Ms Clark with the wish that she spread the deceased's ashes, left the residue of his estate to the Salvation Army (Victoria) Property Trust and appointed the financial secretary of the Salvation Army for the Australian Southern Territory at the time of his death to be the executor and trustee of his estate.

9 In his affidavit, Mr Climie exhibits his correspondence to the solicitors for Ms Lewis pointing out that Ms Lewis has no standing to seek revocation of the grant of probate of the 2012 will in circumstances where she is not a beneficiary under that will or under the 2000 will.

10 The response of the solicitors for Ms Lewis was that their client had standing on the basis that she is the next of kin of the deceased 'in the event that the deceased['s] will on which probate was granted was found to be invalid on the grounds' of lack of testamentary capacity, undue influence or pressure on the deceased.[2]

11 After considering the submissions of both the plaintiff and Ms Lewis, I concluded that Ms Lewis did not have standing to bring her application and dismissed the application. At that time, I said that I would provide written reasons for doing so. I now provide my written reasons.

12 The principles relating to standing to make an application to revoke a grant of probate are settled. An applicant must have an interest in the relevant estate. In Re Culina; Poulos v Pellicer,[3] Windeyer J set out some principles on the point:

Probate litigation is interest litigation. It is not to be undertaken or interfered in by outside busybodies. This has been established here and in England for many years.

The sufficiency of interest is usually stated to depend upon whether the person seeking to challenge the document propounded will take a different, meaning greater or even lesser, benefit in the estate if that document is not admitted to probate.

13 In Re Culina; Poulos v Pellicer, the deceased left two wills. In the earlier will, the testator appointed her son as executor and left him the bulk of the estate. In the later will, the son remained executor, but the estate was left to the deceased's niece. The son did not apply for a grant of probate of the later will. The niece therefore appointed Mr Poulos as her attorney to apply for a grant of letters of administration with the later will annexed. The defendant, Ms Pellicer, was the estranged wife of the son. She sought to defend the proceedings brought by Mr Poulos. Ms Pellicer was also engaged in property adjustment proceedings against the son in the Family Court, who had little by way of assets, unless the earlier will was proved. The question for the Court in this case was whether the estranged wife had an interest sufficient to entitle her to defend proceedings for a grant of letters of administration. The husband had no intention of making a claim for provision from his mother's estate under her last will. Windeyer J held that the wife's interest was too remote, so that the application for the grant in common form was likely to be successful.

14 From the outline of the facts set out above, it is beyond doubt that Ms Lewis does not have standing to seek revocation of the grant of probate. Because she is not a beneficiary under the 2012 will or under the 2000 will, she has no present or future interest in the estate of the deceased. Even if, perchance, the 2012 will were found to be invalid, the 2000 will would become operative. Under the 2000 will, Ms Lewis is not named as a beneficiary and, therefore, has no interest in the estate whatsoever. There cannot be an intestacy in the circumstances. This being the case, Ms Lewis does not have any recognisable interest in the estate of the deceased that gives her standing to make an application to revoke the grant of probate.

15 Accordingly, apart from the procedural order that Ms Lewis be joined as the defendant to the proceeding, I ordered that her summons filed 17 September 2013 be dismissed and she pay the plaintiff's costs of and incidental to the summons filed 17 September 2013.

[1] Affidavit of Betty Lewis (Davies) sworn 12 September 2013, [3].

[2] Exhibit BRC4 to the Affidavit of Bruce Robert Climie sworn 6 November 2013.

[3] Re Culina; Poulos v Pellicer [2004] NSWSC 504 (11 June 2004) [10], [15]. See also Re Seymour [1934] VicLawRp 24; [1934] VLR 136, 138-9; Re Finn [1942] VicLawRp 27; [1942] VLR 125, 127; Van Wyk v Albon [2011] VSC 120 (24 March 2011).