Queensland Judgments


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Londy & Pender as executors and trustees of the Will of Mary Hilary Kavanagh (deceased) v Kavanagh  
Unreported Citation: [2017] QSC 161

This case concerned an application for the removal of a caveat filed in response to an application for probate of a deceased’s last will. The decision provides some guidance as to the appropriate test for setting aside a caveat where it is alleged that the evidence does not “raise doubt as to whether the grant ought to be made” under r 626 of the UCPR. Justice Boddice observed that to raise a doubt is a high threshold and is not met by mere suspicion. In the circumstances, this was not discharged and his Honour ordered the removal of the caveat.

Boddice J

1 August 2017

This matter concerned an application for the removal of a caveat filed in response to an application for probate of the deceased’s last Will dated 16 August 2013. [1]. The central issue was whether the respondent, who opposed removal of the caveat, had raised a doubt as to whether the grant of probate ought to be made. [2].

The deceased died in September 2016, aged 100 years. [3]. She had never married and had no children. [3]. The respondent’s grandfather was the brother of the deceased’s father. [4].

The deceased had made a number of wills in her lifetime. First in 1972, and then in April 2008, May 2008, October 2009, March 2010, April 2013, May 2013, and August 2013. [5]. The respondent was named as an executor of the estate in each of the subsequent Wills, except for the last two. [5]. In her last Will, the deceased appointed the applicants as executors and trustees of her Will. [7].

In December 2016, the respondent lodged a caveat requiring proof on solemn form of any Will of the deceased. [9]. This was then replaced by a general caveat in April 2017. [9]. The ground in support of that caveat was that the deceased did not know and approve the contents of her last Will because there were suspicious circumstances surrounding its execution and/or the Will was the product of undue influence. [10]. In brief, the respondent relied upon the fact that real property had previously been gifted to him in the earlier Wills and the fact that the female applicant, who was a significant beneficiary under the terms of the last Will, had a “significant involvement in the Will making process, from around April 2008 onwards”. [11]. Further, the deceased, who was elderly and physically frail, had made a number of Wills over a short period of time, and in May 2013 both the female applicant and another beneficiary of the last Will, Mr Byrne, were present at a meeting concerning the Will. [13].

Rule 626 of the Uniform Civil Procedure Rules 1999 provides that a court may set aside a caveat if the court considers that the evidence does not (i) show the caveator has an interest in the estate or a reasonable prospect of establishing an interest, or (ii) raise a doubt as to whether the grant ought to be made. [55]. Boddice J explained that the statutory test of “raise a doubt” is a high threshold, and it is not met by mere suspicion. [56]. His Honour noted the observations of Atkinson J in Green v Critchely [2004] QSC 22 that “mere suspicion on the part of a disappointed potential beneficiary, without more, cannot be and, in this case, is not sufficient to suggest that the deceased lacked testamentary capacity or was overborn by undue influence”. [56].

Considering the evidence as a whole, Boddice J considered that there was no proper basis for concluding that the matters relied upon by the respondent gave rise to suspicious circumstances. [61].

First, the change in the Will was not a radical departure from previous testamentary dispositions, in that the deceased had previously provided for dispositions to Mr Byrne in 2009. [62].

Secondly, although the female applicant was present at the meetings with the solicitor and the deceased, the solicitor’s file notes made clear that the deceased was at all times providing instructions and that the female applicant was taking a passive role. [63].

Thirdly, prior to the preparation of her last Will, the deceased had prepared a handwritten letter to be read at the reading of her earlier Will, “in which she gave a clear, concise and coherent account of what she viewed to be the respondent’s poor behaviour in recent years”. [64].

Fourthly, an affidavit prepared by the deceased provided “cogent and compelling reasons why the deceased would determine to no longer leave the respondent as beneficiary of her estate or as the executor of that estate”. [65].

Fifthly, there was no evidence to suggest that the deceased lacked capacity at the time of preparation and execution of her last Will. [66].

In these circumstances, Boddice J was of the opinion that the evidence did not raise a doubt as to whether the grant ought to be made. [67]. His Honour therefore granted the application to remove the caveat.

J English