Fairclough v. Cvitan

Australia

15.10.2019

Family

Parties to a probate action cannot simply consent to a solemn form grant in respect of a will without offering of sufficient evidence for Court’s satisfaction

In the present probate action, the last will and testament of the late Anka Cvitan (the deceased), who died on 1 September 2013 is sought to be proved in solemn form. The will in question was executed on 13 June 2008 (the 2008 will). The action has been set down for a trial on an unopposed basis pursuant to Order 73 Rule 19 of the Rules of the Supreme Court, 1971. The question rasied in present case is whether Court should pronounce will in solemn form.

The objective was for the court to be satisfied as to the issuing of a grant of probate in solemn form. As seen, the acceptance of the appointment as administrator by the Public Trustee is contingent upon the court being so satisfied and issuing such a grant. The parties to a probate action cannot simply consent to a solemn form grant being made in respect of a will without the offering of sufficient evidence to provide a justifiable basis for the Court to be satisfied to the requisite standard to issue a grant in solemn form.

The compromise arrangement under the heads of agreement effectively makes all children equal residuary beneficiaries incurred and provides for an equal contribution of $100,000 each towards the legal costs of Krystyna and Srecko in this action. From the material before the Court, it would appear that a one-quarter residuary share will exceed Srecko's previously bequested sum of $50,000.

A grant of probate in solemn form as proposed should issue. The last will and testament of the late Anka Cvitan dated 13 June 2008 (Will) is valid and has force and effect in solemn form of law as the Will of the late Anka Cvitan.

Tags : Will Probate Grant

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