McGrath v Cherry; Estate of Latimer [2012] NSWSC 569

McGrath v Cherry; Estate of Latimer [2012] NSWSC 569

The defendant failed to adduce any evidence to cast doubt on the due execution or validity of the will, and merely raising suspicions was insufficient to prevent the grant of probate in solemn form. The will was drafted and witnessed by a solicitor with evidence as to testamentary capacity; no substantial challenge was mounted. The defendant should pay the difference between indemnity costs and costs of a grant in common form due to her lodging a caveat without sufficient inquiry or evidence.

Parties
Plaintiff: Patrick McGrath; Defendant: Rae Lesley Esma Cherry
Jurisdiction
Australia
Judgment Date
21 May 2012
Procedural Posture
Probate Proceeding / Application for Grant of Probate in Solemn Form
Outcome
Probate in solemn form granted to the plaintiff; cost orders made as described.
Legal Topics
Probate, Grant of Probate in Solemn Form, Testamentary Capacity, Improper Influence, Caveat Procedure, Costs in Probate Litigation
Wills and Probate Probate Grant of Probate in Solemn Form Testamentary Capacity Improper Influence Caveat Procedure Costs in Probate Litigation

Case Brief

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Parties

Patrick McGrath

Plaintiff

Rae Lesley Esma Cherry

Defendant

Procedural Posture

Probate Proceeding / Application for Grant of Probate in Solemn Form

Legal Issues

  1. 1 Whether the will of 3 June 2009 was duly executed and represents the last will and testament of Raymond Albert Latimer
  2. 2 Whether the deceased had testamentary capacity at the time of execution of the will
  3. 3 Whether the plaintiff exerted improper influence over the deceased

Ratio Decidendi

The defendant failed to adduce any evidence to cast doubt on the due execution or validity of the will, and merely raising suspicions was insufficient to prevent the grant of probate in solemn form. The will was drafted and witnessed by a solicitor with evidence as to testamentary capacity; no substantial challenge was mounted. The defendant should pay the difference between indemnity costs and costs of a grant in common form due to her lodging a caveat without sufficient inquiry or evidence.

Court Disposition

Probate in solemn form granted to the plaintiff; cost orders made as described.

Orders

  • Declare will of 3 June 2009 to be the last will and testament of Raymond Albert Latimer.
  • Probate in solemn form of deceased's will dated 3 June 2009 granted to plaintiff.