In Tasmania, the Supreme Court has the exclusive authority to issue orders concerning
- the validity of a deceased person’s Will,
- the appointment of an executor or administrator, and
- the management of deceased estates.
However, revocation of a Grant of probate is a serious matter, and if directed by the Court, the Registrar may order the issue of a grant under the Probate Rules 2017 for the Wills Act 2008 if:-
- The plaintiff has standing to revoke the Grant of probate;
- The estate has not been fully administered, and
- The plaintiff can demonstrate sufficient grounds to revoke the Grant of probate.
The grounds for revoking a Grant of probate include the Grant of probate has been obtained under false pretences or on an incorrect basis, including
- the Deceased person is living at the date of the Grant of probate.
- the Executor is deceased at the date of the Grant of probate.
- Probate was granted on a Will where the testator did not have testamentary capacity.
- the Executor was under 18 years old at the time of the Grant of probate;
- a later Will is found;
- the Grant of probate was obtained by fraud.
Background
Mr Milford Lewis Bones (the deceased) died on or about 10 October 2022, following which his son, William Bones (the Executor), located what was presumed to be the deceased’s last Will executed on 8 June 2012 (2012 Will) and the Tasmanian Supreme Court Registry granted probate on 11 July 2023.
However, some months later, a bank informed the executor of a security box held on the deceased’s behalf at the branch that contained a Will dated 9 September 2021. (2021 Will)
The 2012 will left the bulk of the deceased’s estate to his three children, the executor, his sister Emily and brother Benjamin Bones (now known as Benjamin Armstrong). The 2021 Will left the bulk of the estate to Emily and the executor.
The executor and Emily were named joint executors under the 2021 Will and are plaintiffs in this action, and Benjamin Armstrong (the defendant) is the defendant.
The Matter
In Bones (as Executor of the estate of late Milford Lewis Bones), Bones v Armstrong [2024] TASSC 52, the executor and his sister Emily applied for an order revoking the grant of probate made concerning the 2012 Will. The contents of the 2021 Will were consistent with conversations had between the deceased, the executor, and Emily in or about September 2021.
At that time, the deceased had no impediments to testamentary capacity preventing him from making informed decisions about how his Will. The 2021 Will is valid and has not been revoked.
On 4 September 2024, Daly AJ ordered that the trial be by affidavit – to be tried by a judge sitting without a jury. An affidavit from the defendant stating that he was served with the writ and statement of claim in this proceeding on 17 May 2024. The defendant did not file a notice of appearance or an affidavit regarding the merits of the matter but, as a matter of courtesy, was sent a Notice of Hearing for a r 414(e) directions hearing but did not attend.
The decision
The Court presumed, therefore, that as the defendant does not wish to add to the factual material before the Court, it is appropriate to make the orders sought by the plaintiffs:
(i) The grant of probate dated 11 July 2023, following the death of Mr Milford Lewis Bones, is revoked.
(ii) The grant of probate in solemn form in the will of Mr Milford Lewis Bones, dated 9 September 2021, is made to the plaintiffs.
(iii) Upon receipt of a sealed or certified copy of this order, the Registrar shall issue a grant under r 6 of the Probate Rules 2017 (Tas) and dispense with any other compliance ordinarily required of the plaintiffs under the Probate Rules 2017 (Tas).
(iv) The plaintiffs’ costs are to be paid out of the estate of Mr Milford Lewis Bones on a solicitor and own client basis.