Last week Davis J ordered the return of a common form grant of probate and the appointment of an interim administrator, in a case where both the capacity and the knowledge and approval of the testator was in doubt.
Even though the will had been drafted by a solicitor, the testator signed the will in hospital, without any involvement of the solicitor, very shortly after having had a stroke, followed by surgery to remove a blood clot from her brain.
Further, the will was a complex testamentary discretionary trust will, in circumstances were the testator’s previous will was a simple will which left her estate equally between her adult three children. Whilst each of the three children were the primary beneficairy of one testamentary trust, the trusts for two of the children were ultimately controlled by the other child (the respondent), who has “total practical control of the testamentary trusts created at least nominally for the benefit of her brothers.”
Some useful discussion by Davis J (at [52]-[58]) on the test to be satisfied on an application to return a grant under r640 of the UCPR.
Further, despite r640(4) providing that as soon as practicable after the court makes an order under r640 (that the grant be returned) the LPR must start a proceeding for a grant in solemn form, his Honour did not consider it was appropriate for the court to order the LPR to do so, stating “The role of the Court is to hear and determine cases, not order they be commenced” (at [91]).
caitebrewer.com.au 