PROBATE - Standing of caveator to challenge validity of will - Where caveator unable to establish an interest under penultimate testamentary document - No point of principle - Gardiner v Hughes

2 The deceased's will dated 7 March 2020 ('the last will') devises the deceased's estate to Elizabeth and, in the event of Elizabeth not surviving the deceased by 21 days, then to the deceased's four children in equal shares. The deceased's estate comprises an interest in a property in Altona.

3 On 23 February 2021, the plaintiff applied for probate of the last will as a substitute executor, the instituted executor having renounced probate of the last will.

4 On 25 February 2021, the caveator filed a caveat thereby preventing anything further being done without notice to the caveator.

5 On 1 April 2021, the caveator filed his grounds of objection alleging:

The [last] will is not valid as it was not executed in accordance with s 7(1)(b) of the Wills Act 1997:

(a) the deceased did not have the intention of executing a will on 7 March 2020 and more precisely did not intend the document he signed in the presence of witnesses that day to be his will;

(b) the deceased did not know and was kept unaware of the nature of the document he signed on that day and which document is now produced in support of an application for a grant of probate;

(c) the deceased acted under the undue influence of the principal beneficiary of the will, his spouse Elizabeth Adrianna Falzon who:

(i) obscured the text of the document the deceased signed and physically prevented the deceased from reading said document;

(ii) verbally harassed and abused the deceased when he sought to read it and when the deceased complained he did not know the contents or nature of the document he was pressured to sign;

(iii) stated to the deceased that it was a document to enable him to access funds he held in France.

(d) the plaintiff spoke to the deceased by telephone and verbally harassed the deceased. The deceased repeated his complaint that he did not know what he was signing.

6 By summons filed 11 May 2021, the plaintiff sought the withdrawal of the caveat.

7 On 26 August 2021, orders were made referring the question of the caveator's standing to a Judge of the Court for determination on the papers, subject to any further orders of the Court.

8 The plaintiff and caveator identified the following prior testamentary instruments of the deceased:

(a) a will dated 13 March 1981 that appoints Elizabeth as executor and sole beneficiary of the estate of the deceased ('the 1981 will');

(b) a copy version of the 1981 will with original undated amendments made by the deceased on or about late 1998 ('the amended 1981 will'). The relevant change to the document is the inclusion of a hand written annotation 'anything on this will goes to my children only' at the end of the first page ('the annotation');

(c) an alternate copy version of the amended 1981 will produced by the caveator that does not include the annotation as the end of the first page is cut off at the relevant part;

(d) An unsigned copy of a will dated 2014 ('the unsigned 2014 will'); and

(e) A blank and undated signed and witnessed will not listing any bequests, beneficiaries or the name of the testator on the will ('the blank will').

9 The plaintiff and the caveator appear to have discounted the blank will and the unsigned 2014 will from consideration. While the blank will is not before the Court, given that it fails to list any bequests, beneficiaries or the name of the testator, it is clear that the caveator has no interest under it.

10 As the unsigned 2014 will is unsigned, it fails to comply with s 7 of the Wills Act 1997 (Vic). The original signed version of the unsigned 2014 will has been misplaced. In early 2020 the deceased searched for the original of the will signed by him in 2014. This was a catalyst for executing the final will dated 7 March 2020. The caveator receives no greater interest under the unsigned 2014 will than he would under the last will.

11 There is some dispute between the plaintiff and caveator as to which version of the amended 1981 will is to be regarded as the penultimate will.

12 The plaintiff relies upon the amended 1981 will as the penultimate will. The inclusion of the annotation is important and the interpretation of it has bearing on the rightful beneficiaries and, accordingly, the issue of the standing of the caveator to challenge the last will.

13 The caveator relies upon his own copy version of the amended 1981 will as the penultimate will. His copy version does not contain the annotation.

14 The plaintiff's position regarding standing relies on her interpretation of the annotation as a clarification of eligibility in regard to the existing entitlements under it.

15 The context of the annotation is set out in the affidavits of the plaintiff and Elizabeth. The annotation was made by the deceased in or around 1998 when his children started having serious relationships but were not marrying. The plaintiff states that the purpose of the annotation was to ensure that once Elizabeth and the deceased had both died that the spouses or partners of the deceased's children would not benefit from their respective estates. The plaintiff produced a mirror will for Elizabeth with the same amendments, including the relevant annotation also made by the deceased.

16 The plaintiff submits that the amended 1981 will must be construed as a whole.[1] Further, where a will contains conflicting dispositions, the latter disposition is subject to and operates only in the event of the earlier disposition.[2] The clause leaving the entire estate to Elizabeth has not been struck out, removed or amended.

17 The plaintiff submits that a similar annotation was not required in the last will as the children were instead individually named, which overcame any concerns regarding the children's spouses or partners.

18 If the plaintiff's interpretation is accepted, the caveator's entitlement under the penultimate will is contingent on Elizabeth predeceasing the deceased. As Elizabeth survived the deceased by the requisite number of days, the caveator receives no benefit under either the last will or the plaintiff's version of the amended 1981 will.

19 The caveator has not specifically address standing. He notionally relied upon a version of the amended 1981 will that does not include the annotation, contrary to his own interests. This appears to be an innocent omission as the caveator has alluded to the annotation in his position paper as follows -

[the caveator's version of the amended 1981 will], while undated and having internal conflicts in its dispositions, nevertheless was apparently deliberately executed by the deceased with the intention that it be his last will, and that he by it would benefit his children.

20 This is the only submission made by the caveator to refute the plaintiff's interpretation of the annotation. The caveator did not produce any evidence to support an interpretation of the annotation whereby the children would benefit in preference to Elizabeth.

21 Notwithstanding that the legislation permits 'any person' to lodge a caveat,[3] standing is not automatic. In order to establish standing to support a caveat challenging a will, a person must have a sufficient interest in the estate of a deceased. A caveator bears the onus to establish the bare possibility of an interest in a prior testamentary document that his or her rights would or may be affected. In Gardiner v Hughes the Court of Appeal stated that:

in order to establish standing, an applicant for an order revoking a grant of probate or letters of administration must have a sufficient interest in the proceeding. Sufficiency of interest is established by showing that the applicant's rights would or might be affected if the grant were to be revoked. The bare possibility of an interest will suffice.[4]

22 Central to the determination of the standing of the caveator is the interpretation of the annotation, specifically, whether its inclusion was intended to change the existing dispositions so that the deceased's children, including the caveator, benefit in place of Elizabeth or merely to clarify the definition of the beneficiaries of the class identified as 'my children', which is the plaintiff's position.

23 The placement of the annotation and the inclusion and emphasis on the word 'only' after 'my children' are significant. The other amendments on the document clearly intended as replacements, such as replacing Charles Micallef with Geoff Wenborn as executor, also provide context. In each case, the deceased has neatly struck out the relevant parts of the original and included his revised version immediately above the struck out text.

24 Elizabeth's recollection of events giving rise to the annotation is reasonable and has not been refuted. Notably the deceased's testamentary documents show that the deceased's broad testamentary intention was to benefit his wife and should his wife predecease him, then his children benefit equally. This intention was consistent across the testamentary documents save, of course, in the blank will that has not been produced.

25 The caveator has not demonstrated the bare possibility of an interest such that his rights will be affected should any of the prior testamentary documents be relied upon. The caveator has not substantiated his assertion that the deceased intended to benefit his children in preference to Elizabeth by including the annotation to his 1981 will. In such circumstances, it is unnecessary to determine which testamentary document is to be regarded as the deceased's penultimate will. In any event that the penultimate wills provide the caveator with no greater or different interest, then the caveator has no relevant interest in holding the last will invalid.[5] The caveator has no standing to prosecute them and no further interrogation of his prima facie case is required.

(a) Pursuant to r 59 of the Supreme Court (General Civil Procedure) Rules 2015, the plaintiff serve this order on the caveator, Marcel John Falzon.

(b) The caveat filed 25 February 2021 and the caveator's grounds of objection filed 1 April 2021 be dismissed.

(c) The caveator pay the costs of and incidental to the caveat.

(d) The plaintiff's application be referred to the Registrar of Probates.

[1] Peter v Shipway [1908] HCA 52; (1908) 7 CLR 232, 247 (O'Connor J); Fell v Fell (1922) 31 CLR 268.

[2] Re Robertson [1966] VicRp 26; [1966] VR 196.

[3] Administration and Probate Act 1958 (Vic) s 58.

[4] Gardiner v Hughes (2017) 54 VR 394, [90] (McLeish JA, Tate JA and Kyrou JA agreeing)(citations omitted); see also Re Munro [2018] VSC 747, [32] (Derham AsJ).

[5] Govindan v Charan [2020] VSC 137.