Uniting Church v Millane [2002] NSWSC 1070

New South Wales Supreme Court

CITATION : Uniting Church v Millane [2002] NSWSC 1070 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 112864 of 2002 HEARING DATE(S) : 11 November 2002 JUDGMENT DATE : 13 November 2002

The United Church in Australia Property Trust (NSW) (First Plaintiff) PARTIES : Brian Melville Banfield (Second Plaintiff) John Carey Millane (Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr C Harris (Plaintiffs) Mr P Hallen SC (Defendant) SOLICITORS : Hunt and Hunt (Plaintiffs) Kemp Strang (Defendant) CATCHWORDS : SUCCESSION - probate - claim for summary dismissal - claim for probate by 2 of 3 executors seeking that the defendant executor be passed over on the grounds of pleaded unconscionable conduct towards deceased - whether defendant not competent to take a grant - whether inherent power to refuse grant could be exercised Administration and Probate Act 1958 (Vic), s34(1) LEGISLATION CITED : Supreme Court Rules Pt13 r5 Wills Probate and Administration Act 1898 s74 Bowler v Bowler unreported Young J 7 June 1990 CASES CITED : In Re Hunter (deceased) Hunter v Hunter [1932] NZLR 911 Monty Financial Services Limited v Delmo [1996] 1 VR 65 DECISION : See paragraphs 11 and 12

- 5 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

WINDEYER J

WEDNESDAY 13 NOVEMBER 2002

112864/02 THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) & ANOR V JOHN CAREY MILLANE RE THE ESTATE OF OTTERLEY LYNDA MAY RITCHIE JUDGMENT Outline 1 The two plaintiffs and the defendant are the three executors named in a will dated 16 March 2000 of Otterley Lynda May Ritchie who died on 11 March 2001. 2 By statement of claim filed on 19 August 2002 the plaintiffs seek a declaration that the defendant is not competent to take probate and an order that probate be granted to them. In the alternative, they seek an order that they be granted probate with leave reserved to the defendant to come in and prove after proceedings against him on behalf of the estate have been concluded. Issue 3 By notice of motion filed on 16 October 2002, the defendant seeks to have the proceedings dismissed pursuant to Pt13 r5 of the Supreme Court Rules on the basis that they are doomed to fail. Pleaded facts 4 The basis of the plaintiffs' claim is as follows: