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Macpherson Kelley employs bold tactics in successful summary judgment

21 September 2021 Communications and Digital Marketing Executive Erin MacKinnon e: erin.mackinnon@mk.com.au d: 07 3235 0471 m: 0411 259 340
Read Time 1 mins reading time

A recent victory in the Supreme Court for Macpherson Kelley clients Ian and Kerry Haddow has created significant buzz amongst legal circles practising within Wills and Estates.

Principal Lawyer Joanne Hazeldene, Associate Alanna Richmond and Teri Konstantinou of Counsel took a bold approach to technical arguments which led to their ultimate success. The matter serves as a rare and vital precedent for future litigation in the area.

Ian Haddow, the son of the deceased, had been left his mother’s entire estate to the exclusion of his brother, Colin Haddow. Colin sought to challenge the Will relying on Part IV of the Administration and Probate Act 1958 (Vic) (‘APA’).

Colin’s legal representative filed an Originating Motion within the statutory limitation period of 6 months from the Grant of Probate. Significantly, Colin’s legal team put the estate on notice of their client’s intention to make an application but failed to serve the Originating Motion which would have put the estate on notice that the Originating Motion had actually been filed within the statutory limitation period.

Macpherson Kelley swiftly identified the opportunity to contest the precise wording of the notice, timing requirements of the APA and the very limited case law in this area.

We were watching the clock. Immediately upon the expiration of the limitation period, at 12.52pm we distributed the estate’s major asset (a property in regional Victoria) to Ian on the basis that we had only received notice of Colin’s intention to challenge the Will. Only an hour and 23 minutes later, we were notified that Colin’s Originating Motion had been filed,” Associate Alanna Richmond said.

The matter was heard before the Supreme Court following Macpherson Kelley’s application for a summary judgment, which is only granted where a claim has no real prospect of success.

In her decision, Judicial Registrar Englefield ruled in favour of Ian stating that “there is no real prospect that at trial it will be found that action lies against the defendants for having distributed the Property, on either of the plaintiff’s arguments regarding the effect of the Plaintiff’s First Letter under s 99A(3) of the Act.”

“[Given] the extremely small size of the remaining estate, there is no utility in this case proceeding any further,” Judicial Registrar Englefield said.

The result meant that Macpherson Kelley clients Ian and Kerry Haddow would not have to defend Colin’s claim against the estate – a great relief to them both.

“Thank you to everyone for your guidance and support throughout this stressful time… [The matter] has dragged out since 2016, Macpherson Kelley has done a great job for us,” Ian Haddow said.

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Macpherson Kelley employs bold tactics in successful summary judgment

21 September 2021 Erin MacKinnon e: erin.mackinnon@mk.com.au d: 07 3235 0471 m: 0411 259 340

A recent victory in the Supreme Court for Macpherson Kelley clients Ian and Kerry Haddow has created significant buzz amongst legal circles practising within Wills and Estates.

Principal Lawyer Joanne Hazeldene, Associate Alanna Richmond and Teri Konstantinou of Counsel took a bold approach to technical arguments which led to their ultimate success. The matter serves as a rare and vital precedent for future litigation in the area.

Ian Haddow, the son of the deceased, had been left his mother’s entire estate to the exclusion of his brother, Colin Haddow. Colin sought to challenge the Will relying on Part IV of the Administration and Probate Act 1958 (Vic) (‘APA’).

Colin’s legal representative filed an Originating Motion within the statutory limitation period of 6 months from the Grant of Probate. Significantly, Colin’s legal team put the estate on notice of their client’s intention to make an application but failed to serve the Originating Motion which would have put the estate on notice that the Originating Motion had actually been filed within the statutory limitation period.

Macpherson Kelley swiftly identified the opportunity to contest the precise wording of the notice, timing requirements of the APA and the very limited case law in this area.

We were watching the clock. Immediately upon the expiration of the limitation period, at 12.52pm we distributed the estate’s major asset (a property in regional Victoria) to Ian on the basis that we had only received notice of Colin’s intention to challenge the Will. Only an hour and 23 minutes later, we were notified that Colin’s Originating Motion had been filed,” Associate Alanna Richmond said.

The matter was heard before the Supreme Court following Macpherson Kelley’s application for a summary judgment, which is only granted where a claim has no real prospect of success.

In her decision, Judicial Registrar Englefield ruled in favour of Ian stating that “there is no real prospect that at trial it will be found that action lies against the defendants for having distributed the Property, on either of the plaintiff’s arguments regarding the effect of the Plaintiff’s First Letter under s 99A(3) of the Act.”

“[Given] the extremely small size of the remaining estate, there is no utility in this case proceeding any further,” Judicial Registrar Englefield said.

The result meant that Macpherson Kelley clients Ian and Kerry Haddow would not have to defend Colin’s claim against the estate – a great relief to them both.

“Thank you to everyone for your guidance and support throughout this stressful time… [The matter] has dragged out since 2016, Macpherson Kelley has done a great job for us,” Ian Haddow said.