Can a grant of probate be revoked?

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Posted By and on 26/05/22 at 1:53 PM

Generally, issues concerning the validity of a Will or other testamentary document are raised prior to a grant of probate being obtained. However, there are circumstances where a grant of probate can be revoked.

Circumstances under which a grant of probate can be revoked

Probate can be revoked in situations where:

  • a testator who was believed to be dead is actually alive;
  • there is a later Will or codicil; or
  • the Court believes that the due and proper administration of the estate is put in jeopardy or is prevented.

To seek revocation, an application must be made to the Supreme Court. The applicant must establish that they have standing to bring the application which includes that they have a prima facie case to challenge the grant of probate. This means they must show that they have ‘a case for investigation’ or ‘something to go on’.

Case law

The Victorian Supreme Court recently dealt with this situation where an application was made for revocation of a grant of probate of a Will on the basis that there was a later codicil which had not been admitted to probate with the Will (Re McPhee; Perpetual Trustees Co Ltd v Lynch [2022] VSC 213). This lead to an investigation as to whether the deceased had testamentary capacity at the time of making the codicil.

Background

The deceased died on 14 July 2018, leaving a Will dated 12 September 2002 and a codicil dated 30 September 2015. The deceased was survived by her second husband, her two children from her first marriage and her two stepdaughters.

The Will appointed the deceased’s son as executor and trustee of the estate, left a gift of $300,000 to her husband and the residuary estate to her daughter and the deceased’s granddaughter (her son’s daughter). The codicil revoked the executor appointment and replaced it with a clause appointing both the son and the deceased’s stepdaughter. The codicil also added a gift of a property in Research to the stepdaughter. At the time the codicil was made, the stepdaughter was also the deceased’s financial and medical attorney.

The stepdaughter renounced probate and the son authorised Perpetual Trustees to apply for a grant. Originally, Perpetual Trustees applied for a grant of the Will and codicil but, after requisitions from the Registrar of probates, amended its application to apply for a grant of probate over the Will only asserting that the deceased lacked testamentary capacity at the time of executing the codicil. Probate of the Will was granted. The estate was worth over $1.8 million, with liabilities of $3,000.

The stepdaughter subsequently sought revocation of the grant on the grounds that there was a later testamentary document, being the codicil, and asserted that the deceased did have testamentary capacity at the time of executing the codicil.

The Court’s findings

The application was twofold – the Court held that the stepdaughter did not demonstrate a prima facie case for challenging the grant and, even if she did, the Court would have held that Perpetual Trustees had demonstrated a prima facie case for objecting to the admission of the codicil to probate.

There were extensive medical records examined throughout the proceeding which included many assessments which noted mental deterioration (Alzheimer’s, vascular dementia, mood disorders, alcohol-related cognitive impairment) including from the deceased’s GP, the emergency department, MMSE assessments, an ACAS assessment, and a geriatrician and neuropsychologist report. The death certificate listed ‘Alzheimer’s dementia-years’ as one of the causes of death.

Just prior to signing the codicil, one half of the Research property was transferred to the stepdaughter with the other half to be left to the stepdaughter by the codicil.

The basis of the stepdaughter’s grounds for revocation was that the deceased had given instructions for the transfer of the property and the preparation and execution of the codicil, the conveyancer and solicitor being satisfied that the deceased had capacity, and that the medical evidence was insufficient to displace the presumption of capacity. There was also a neuropsychological report in 2017 which concluded that the deceased did have testamentary capacity based on the Banks v Goodfellow test.

In addition to the medical evidence, Perpetual Trustees relied on evidence from the deceased’s neighbours and friends which noted a deterioration of her mental state, referred to the deceased’s alcohol problem and strained relationship with her family including the stepdaughter.

In respect of the prima facie case, the Court referred to the oft quoted decision in Gardiner v Hughes (No 2) [2019] VSCA 198 where the Court of Appeal explained the meaning of ‘prima facie case’:

The task for the party seeking to have a grant of probate revoked is therefore to show that there is a ‘case for investigation’ or ‘something to go on’. Such a case will, by definition, not be frivolous or vexatious. However, mere speculation will not suffice.

In this case, it was held that the significant medical evidence proximate to the time the deceased made her Codicil cast doubt on the deceased’s testamentary capacity and the stepdaughter did not establish a prima facie case to establish capacity.

Contact us

If you have any questions about this article, or need help with a probate matter, please don’t hesitate to contact a member of our Wills & Estates team.

KHQ Lawyers - Rachael Hocking

Rachael Hocking Special Counsel

Rachael is a highly experienced Wills & Estates lawyer.  She is an accredited specialist in Wills & Estates with the Law Institute of Victoria, and is also a full member of the Society of Trust... Read More

Ines Kallweit Principal Solicitor & Notary Public

Ines Kallweit leads our Wills & Estates team.  She is an Accredited Specialist in Wills & Estates (with the Law Institute of Victoria), a member of the Society of Trust and Estates Practitioners,... Read More