Re Hayne [2018] VSC 778

11 November 2019


Eric Haynes (the deceased) died on 2 April 2015. The deceased’s wife and one son predeceased him. He was survived by his other five children.  His estate was valued for probate purposes at $1,009,897. On 29 July 2015, probate of the deceased’s Will dated 9 June 2009 was granted to one of his sons. Under the 2009 will, the deceased bequeathed the sum of $100,000 to the Lort Smith Animal Hospital (“Lort Smith“) and left the residue of the estate to his children.

The deceased also left a handwritten pro forma ‘will kit’ dated 20 October 2013. This also appointed the son-executor, bequeathed the sum of $10,000 (not $100,000) to Lort Smith and divided the residue among his wife and children. The 2013 document was signed by the deceased and two witnesses, however the document was invalid as a will as the witnesses were not in each other’s presence when they each signed the document. Furthermore, only a photocopy of it could be produced to the Court, not the original. In addition, the copy had handwritten amendments, and it was not clear whether those were only to the copy, or also to the original.

In an affidavit before the Court, the son-executor alleged that:

  • Shortly before the deceased’s death, the deceased had told him that the deceased had reduced the legacy to Lort Smith; and
  • His reason for not notifying Lort Smith of the $100,000 legacy was because he felt it was not what his father wanted.

As a result, the son-executor did not apply for probate of the 2013 document and obtained probate of the 2009 document. On 10 October 2015, the family home, which was the principal asset of the estate was sold for the sum of $1,380,000. In February 2016, the son-executor distributed the estate funds to the beneficiaries except for the legacy to Lort Smith. At no time did the defendant inform Lort Smith of the legacy under the 2009 will or otherwise what was specified in the 2013 document.

In February 2017, the son-executor consulted a solicitor about ‘fixing the Lort Smith problem’. In July 2017, Lort Smith became aware – via a search of the public records office – of the deceased’s death, the grant of probate and the $100,000 legacy owed to it under the 2009 will. It contacted the son-executor to request payment. In response, the son-executor refused payment, alleged that only $10,000 was owed and informed Lort Smith that the matter was with his solicitor to address.

The Proceedings

Lort Smith commenced proceedings seeking the payment of its $100,000 legacy, interest and costs. In response, the son-executor applied for a revocation of the grant of probate in respect of the 2009 will and sought to prove the informal 2013 document in its place. At Lort Smith’s application, the son-executor was ordered to – and did – pay $125,000 into Court pending the outcome of the revocation application.

Lort Smith did not consent to the revocation application in the circumstances and was given leave to file submissions setting out grounds of objection (although it was not a party to the revocation application).

The Court refused the revocation application on the grounds that:

  • The son-executor had delayed without adequate explanation in bringing the revocation application – and had only done so after Lort Smith had commenced proceedings to compel payment of the legacy owed to it under the 2009 Will;
  • There was no evidence before the Court about the deceased’s signature on the 2013 document or the circumstances of the witnesses having signed separately or the handwritten amendments appearing on the copy of the 2013 document; and
  • The son-executor had effectively concealed the 2009 Will from Lort Smith and breached his undertaking to the Court – upon his application for Probate – to administer the deceased’s estate according to law.

After having refused the revocation application, the Court ordered the release of the $125,000 paid into Court to Lort Smith, together with a further sum fixed in the amount of 100% of Lort Smith’s legal costs borne by the executor personally – which were supported by an affidavit. The costs order was made by consent. HWL Ebsworth acted for Lort Smith in this case.

This article was written by Simon Crawford, Partner and Christian Teese, Senior Associate.

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