HIS HONOUR: This matter has been referred to me by a Senior Deputy Registrar in Probate and was dealt with in Chambers. It involved what was, until relatively recently, contested Probate proceedings. The proceedings now involve the question whether the Court should grant Probate of a duly executed Will dated 19 January 2015 of Francesco Cassarino (the deceased) (the 2015 Will), thereby overlooking a later duly executed Will made by him on 15 April 2016 (the 2016 Will). All parties who are concerned with the question stated reached a compromise, the principal effect of which was to seek an order that there be a grant of Probate in solemn form of the 2015 Will.
(The deceased made an earlier Will on 24 September 2014 but none of the parties involved in the litigation, or anyone else, seeks to propound that Will. This is because there is no dispute that, but for the 2016 Will, which contains a revocation Clause, the 2015 Will is a valid Will of the deceased.)
[2]
Background Facts
It is necessary to set out a brief statement of the relevant facts.
The deceased was born in November 1928 and died on 3 August 2018, leaving property in New South Wales. He left surviving him, his wife, Caterina Cassarino, and their four children, being the Plaintiff, Francesca Cassarino, and the three Defendants, Vincent Cassarino, Tony Cassarino and Connie Russo.
In a Statement of Claim filed 15 November 2018, the Plaintiff, as the sole executrix named therein, propounded the 2016 Will, while the Defendants, as three of four executors named in the 2015 Will (the Plaintiff being the fourth executor), in a Defence and Statement of Cross-Claim filed 1 July 2019, asserted that the 2016 Will was not a valid Will and they propounded the 2015 Will.
In the 2015 Will, the deceased's wife was given a right to reside for the rest of her life in real estate situated at Fairfield (the Fairfield property), which she and the deceased owned as tenants in common in equal shares, subject to her keeping the home in good repair and insured in the name of the executors and in a sum approved by them, her paying the rates and taxes levied on the Fairfield property, and her keeping it in good repair having regard to its condition at the date of death. On her death, the remainder of the Fairfield property was divided, equally, between the four children of the deceased. The whole of the residue of the deceased's estate was divided between the four children of the deceased.
The evidence reveals that as at 16 December 2016, the deceased's wife was a resident of Scalabrini Aged Care Facility in Austral, a suburb of Sydney. Accordingly, she, no longer, has any interest under the 2015 Will. She is the subject of a financial management order and her financial affairs are, apparently, managed by the NSW Trustee and Guardian.
In the 2016 Will, no provision was made for the deceased's wife. The estate, after the payment of debts, funeral and testamentary expenses, was divided, as to one half to the Plaintiff, and as to the other half, equally between the three Defendants.
The proceedings were before the Court on a number of occasions, most notably, when a contested notice of motion, filed by the Defendants, seeking leave to issue a subpoena, was heard, and determined, on 29 May 2019. The then Senior Deputy Registrar in Probate, L Brown, delivered ex tempore reasons and made an order requiring "[the] Plaintiff solicitors [sic] [to] produce the file containing all documents involving the preparation of the [2016] Will including the instructions and all documents going to execution including any documents referring to capacity …".
Importantly, for present purposes, the learned Senior Deputy Registrar in Probate wrote:
"The applicants [sic] claim:
(a) That approximately one month prior to the execution of the Will the defendants made an application to the Guardianship Tribunal of NCAT for a financial management order. This order was made approximately six months after the Will was executed.
(b) That the Will was made without an Italian translator which had been provided in the previous Will and which was ordered by the Guardianship Tribunal in circumstances where the testator had a poor understanding of English.
(c) That the Will did not provide for the wife of the testator who had, under previous Wills, been provided with a right of residence and prior to that a life estate.
(d) That a Mr Rock had provided evidence five months after execution of the Will that the testator was confused, unable to complete a particular test, did not realise that he did not own his own house outright and that he had last worked in 1953 when he had in fact come to Australia after that date.
(e) There was also a suggestion that the testator was dazed and confused when he understood that $300,000 had been taken from him by one of the defendants, when there's not been apparently any evidence of $300,000 being in existence.
(f) Also that there was a real issue of capacity by the testator to make a Will in April 2016.
…
If the defendant [sic] were simply propounding an earlier Will which favoured them without any evidence of why this might have taken place, the issue of a subpoena or notice to produce may well be a fishing expedition.
In this case the defendants have given significant reasons as to why they suspect that capacity and knowledge and approval and suspicious circumstances may be in evidence.
There is, as I mentioned, the application to the Tribunal which was commenced prior to the execution of the Will. There was the question of knowledge and approval in terms of the Will possibly not being read, or if there is no evidence of the Will being read in Italian and the testator approving its contents. The issue of there being no provision for the wife and then the general evidence about some confusion or alleged confusion by the plaintiff, surrounding the time of the execution of the Will.
If the financial management application had been refused, then there would be little merit to the application but the fact that the application for financial management was made prior to the execution of the Will, does raise a doubt about the capacity of the testator at the time of the execution of the Will.
…
The respondent claimed that the application was a fishing exhibition [sic]. As I have suggested, I do not agree. If as I say, the applicant had simply propounded an earlier Will because it favoured them without any evidence in support, then I would agree, it would be a fishing expedition but in this case, it seems to me that there is quite a significant amount of evidence which would go towards the likelihood that there may be a lack of capacity at the time of execution of the Will."
The conclusions set out above were based upon the evidence read in support of the notice of motion.
The only person who is adversely affected by the grant of Probate of the 2015 Will, and the passing over of the 2016 Will, is the Plaintiff, as her share of the estate would be reduced from one-half of the whole of the estate (as provided for in the 2016 Will) to one-quarter of the rest and residue of the estate (as provided for in the 2015 Will).
Relevantly, for present purposes, it is only necessary to note that the "Terms of Settlement" provided to the Court involve the grant of Probate of the 2015 Will and consequential orders (as set out later). For the purpose of these reasons, other paragraphs, reflecting the agreement of the parties as to occupation of the Fairfield property, the method of sale, and the distribution of proceeds of sale, and the balance of the deceased's estate, do not need to be rehearsed.
Although some of the terms are framed in the "Terms of Settlement" as orders, they are really matters that the Court will note as agreements of the parties. In addition, the Court was informed, by the legal representative of both parties, that the NSW Trustee and Guardian, on behalf of the wife of the deceased, is aware of the proposal to sell the Fairfield property and does not oppose the sale. Naturally, one half of the net proceeds of sale of the Fairfield property will be paid to it as her financial manager.
There is no dispute about due execution of the 2015 Will. There is also no dispute that the deceased had the capacity to make a will at that time. In addition, the matters identified by the then learned Senior Registrar in Probate set out above, reveal that there is some doubt about the validity of the 2016 Will.
[3]
Principles to be applied
The principles to be applied in a case such as this are clear. In broad terms, if the last will of a testator is not to be admitted to probate, but an earlier one is, the last will has to be pronounced against and the earlier will (if there is one) pronounced for. Where a genuine doubt exists as to the validity of a testamentary document, the court, as part of a compromise, may be willing to pronounce against that testamentary document, but the court will not, as part of a compromise, be willing to pass over a testamentary document (either a will or codicil) which is, apparently, a valid document, and as to which there is no evidence of invalidity. Where the evidence filed is insufficient, the court may refuse to approve the compromise and instead direct a trial on written evidence, even where the matter is agreed or uncontested.
As long ago as 1991, Powell J in The Estate of Clarence Gilbert Alcorn (Supreme Court (NSW), Powell J, 9 August 1991, unrep), wrote at 7:
"Since they so neatly encapsulate my own views as to the duty of an executor, the duty of, and the practice which ought normally to be adopted by, the Court when an executor, or the Court, is faced with a situation similar to that which I am now concerned to deal, I think it convenient to incorporate, here, the following observations of Cairns J (as His Lordship then was) in In Re Muirhead ((1971) P 263, 265-6):
'I approach the matter with the conviction that it is the duty of a Court of Probate to give effect, if it can, to the wishes of the testator as expressed in testamentary documents. Sometimes it is impossible to discover the true intention of the testator, because there may be doubts about his testamentary capacity, or about whether he knew and understood the contents of some document propounded, or there may be doubts about the formalities of execution. In such cases a compromise is often reached, and given effect to by the court. Where certainty cannot be achieved, it is often better that a will which is prima facie valid should be admitted to probate than that there should be a prolonged investigation into allegations of incapacity or undue influence; and it is sometimes better that a will or codicil should be pronounced against, where there are good reasons for suspecting its validity, although by a full inquiry it might be possible to remove those suspicions. It is proper that in either of these cases, terms should be agreed (and if all parties are not sui juris approved by the court), to take account of the doubts which remain.'"
Macrossan CJ in Vandeleur v Franich [1991] 1 Qd R 481 at 484-485 wrote:
"Real J in Queensland Trustees Limited v Finney [1904] QWN 21 was of the view that in a solemn form action there cannot be a grant ordered in solemn form by consent unless the proof is offered which in law is necessary. In the circumstances of that case he ordered proof in common form. In the present trial if opposition had been withdrawn at an earlier time, for example at the beginning of the hearing or even at the time when the plaintiffs executors' case had been concluded one particular difficulty would have been absent.
It is common enough for a compromise to be arrived at in a probate suit even after the trial has commenced. Amongst the reported cases are Wytcherley v Andrews (1871) LR 2 PD 327, Tiger v Handley [1948] WN 432, In re King [1917] 2 Ch 420, Ritchie v Malcolm [1902] 2 IR 403 and Mecredy v Brown [1906] 2 IR 437. It does not appear that in any of those cases evidence adverse to the validity of the will had been led at the time the respective suits were compromised.
A further consideration arises where, as part of the compromise, the court is invited to pronounce for or against the will. Only parties or persons privy to the suit will be bound by the terms of the compromise and the decree as the cases last cited show. If a pronouncement for or against the will is sought, there will need to be appropriate evidence: see Queensland Trustees Ltd v Finney and Mortimer on Probate (2nd ed) at 611. If a declaration in favour of validity is sought, it seems that, as a minimum, there must be evidence of due execution: see Williams, Mortimer and Sunnucks Executors, Administrators and Probate, (16th ed, 1982) at 401, 402. In view of the answer taken from the jury on the issue of due execution in the present case and because of the lack of contest as the cases of the parties were presented, no problem arises on this aspect in the present case, but there may be a requirement that evidence on other aspects be provided: see eg Williams Mortimer and Sunnucks (supra) at 401-402 where, dealing with evidence on trial in the Short Probate List in England, it is said: 'Where a will is being set up, evidence of one of the attesting witnesses should be adduced. Affidavit evidence will usually be sufficient. Where the circumstances raise strong doubt as to the testamentary capacity of the deceased it is advisable to call medical evidence, if available, to show capacity'.
Clear definitive statements as to what is required do not seem to be available and the answer may depend to an extent upon the circumstances, consistently always with the application of basic principles. Pronouncing for or against a purported will is a solemn act and it will not be possible simply to ignore a substantial body of evidence to which the court's attention may have been drawn, depending upon the stage at which the parties propose a compromise. If the court, after hearing evidence, has already arrived at a firm view on a vital issue, there will at least be difficulty in asking the court to act in a contrary fashion: see the opinion expressed In the Estate of Szylowicz (dec'd) (1978) 19 SASR 263, 271, In the Will of Podger, (dec'd) [1957] VR 275, 278 and In the Will of Pearce (dec'd) (1945) 46 SR (NSW) 71. However, mere conflict in the evidence will not necessarily preclude the court from acting on a compromise which may be proposed - see the observations of Cairns J In re Muirhead [1971] P 263 at 265 explained.
In a case of conflict the court may find it easier to pronounce in favour of rather than against the testator's expressed wishes. In the former case there may not be as firm a requirement for a fullness in the evidence in support of the course proposed. Still I do not consider it can be said that there is any hard and fast rule."
In Smith v Smith, Estate of Smith [2007] NSWSC 116, Windeyer J wrote, at [34]:
"Orders for grants in solemn form in this State are not usually made simply as a result of a bargain but on the basis of at least some evidence justifying the orders made, at least where a later will is pronounced against. That is partly because the grant is a judgment in rem and partly because the document before the court is that of the testator, not of the parties to the compromise: Estate of Muirhead (1971) P 263 at 265 so that '[t]he consent of parties interested proves nothing; no person's consent can make a will no will'; In the Goods of Watts (1837) 1 Curt 594. These two cases were cited by Powell J in two unreported decisions given on 9 August 1991. In the first Estate of Clarence Gilbert Alcorn, there was evidence casting doubt on the later document; in the later one Withers v Graham re Estate of Colin Glen Graham there might have been less doubt, but the person having the right to propound it, being joined as a party, did not do so. Powell J held that in such a case what he called the very limited exception to the general principle that evidence was required to justify the passing over of a later document; applied: that exception being when the persons entitled to propound the later document were parties to the proceedings, but took no action to propound that later will. In this he followed Morton v Thorpe (1863) 3 Sw & Tr 179; 164 ER 1247. Strictly speaking that exception could apply to the instant case, but there was evidence which would justify the court passing over the 1977 and 1978 wills."
Lindsay J wrote in the now celebrated case of Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [271]-[272] and [277]:
"Because a grant of probate or administration is a public act, the Court will not make an order for a grant merely because parties have agreed that one should be made: Phillpot v Olney [2004] NSWSC 592 at [7]. Of itself, the consent of parties interested in an estate does not prove a will: In the Estate of Clarence Gilbert Alcorn (Powell J, unrep, 9 August 1991) BC 9101691 at 6, and Smith v Smith; Estate of Smith [2007] NSWSC 116 at [34], citing In the Goods of Watts (1837) 1 Curt 594 at 595; 163 ER 208 at 208 and In the Estate of Muirhead [1971] P 263 at 265-266 and 267-268 (and 269H).
An order for a grant in solemn form is not usually made as a result of a bargain, but on the basis of at least some evidence justifying such an order, at least where a later will is pronounced against. That may be because the grant is perceived to be a 'judgment in rem' but, essentially, it is because the document submitted to the Court for its approval as a testator's last will is the document of the deceased, not parties contesting its validity: Smith v Smith, Estate of Smith [2007] NSWSC 116 at [31]-[34], especially at [34]. Similar considerations apply on an application for a revocation order 'by consent': In the Estate of Edwards (deceased) (1981) 28 SASR 380 at 384; Executor Trustee Australia Limited v Henderson [2006] SASC 82 at [26]-[29].
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In the less than perfect world in which human affairs must be conducted, the task of the Court remains one of attempting to establish the true position regarding the deceased's last valid expression of testamentary intentions, accepting that, even if abstract certainty cannot be achieved, the community depends on the Court to provide practical certainty by its certification of title to estate property in the form of a grant appropriate to the facts of the particular case: In the Estate of Muirhead, decd [1971] P 263 at 265E-G, followed in In the Estate of Clarence Gilbert Alcorn (Powell J, unrep, 9 August 1991) BC9101691 at 7."
It is a relevant consideration that the only interested parties have agreed upon a resolution of how the estate will be administered: Phillpot v Olney [2004] NSWSC 592 at [7] (White J (as his Honour then was)); Tolson v Hender [2009] WASC 319 at [4] (Hall J); Public Trustee v Gerritsen [2012] WASC 201 at [14] (Beech J); Fairclough v Cvitan [2019] WASC 370 at [26] (Kenneth Martin J).
[4]
Determination
The agreement that has been reached by the parties and the approach they have taken in achieving that agreement, appear to be prudent insofar as each of them is concerned. The result of Probate suits is often difficult to predict and there often emerges, in the course of a hearing, circumstances which one party, or both parties, may not have quite expected.
It is salutary that the parties have determined, presumably on legal advice, to agree, consensually, to avoid what may well have continued to have been a complex and protracted hearing, which would have required the Court to adjudicate on issues of witnesses' credit, and the circumstances, in relation to an elderly deceased, whose habits, whose medical condition, and whose last years of life, obviously would have required some detailed examination in order to ascertain whether, as the Plaintiff had sought to assert, the 2016 Will was valid. Furthermore, significant costs have been saved in reaching agreement.
Bearing in mind the matters to which I have referred, including the due execution of the 2015 Will, the fact that the 2015 Will was made when there is no dispute that the deceased had capacity, the existence of a bona fide attack on the 2016 Will, and the agreement of all those potentially affected by the grant of probate of the 2015 Will, I am satisfied that a grant of Probate in solemn form of the 2015 Will, as proposed, should issue.
The form of orders proposed by the parties in the document has required some refinement and amendment. In this regard, I provided to the parties a form of proposed orders with which they have all agreed. I have noted the agreement of the parties in the document provided by them (which is not necessary to rehearse in these reasons). I shall now make the orders and notations and refer the matter back to the Senior Deputy Registrar in Probate to complete the grant.
The Court:
1. Orders subject to compliance with the Probate rules of Court, that Probate in solemn form, of the Will dated 19 January 2015 of Francesco Cassarino ("the deceased") be granted to the Defendants/Cross-Claimants, Vincent Cassarino (a.k.a. Vince Cassarino), Tony Cassarino, Connie Russo and to the Plaintiff, Francesca Cassarino.
2. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.
3. Orders that the administration bond be dispensed with.
4. Orders that the Statement of Claim, filed on 15 November 2018, be dismissed.
5. Orders that the Cross-Claim, filed on 1 July 2019, otherwise be dismissed.
6. Orders that there be no order as to the costs of any party, to the intent that she, and they, will bear her, and their, own costs, respectively, of the proceedings.
7. Notes the agreements of the parties.
[5]
Amendments
30 April 2020 - [9] - second sentence, deleted "written" and replaced with "ex tempore".
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Decision last updated: 30 April 2020