Clay v Karlson & Anor [2001] WASC 141

Clay v Karlson & Anor [2001] WASC 141 - WASC 2001 case summary — Zoe

[72]

"4.1 denies that the 'alleged' Codicil was prepared by Messrs Gibson & Gibson, and says that the Codicil was prepared by Messrs Gibson & Gibson on instructions from ALF CLAY ('Alf') and after contact with Alf before execution.

Particulars

Prior to 30 November 1988, Alf expressed a wish to change his Will. He had the changes he wanted to his Will typed and gave a typed note of the changes to the second defendant and he instructed her to take it to a solicitor to have a new Will prepared.

On behalf of Alf and pursuant to his direction the second defendant contacted Messrs Gibson & Gibson and passed on Alf's instructions to that firm.

Messrs Gibson & Gibson wrote a letter to Alf on 30 November 1988 advising him that a Codicil had been prepared for his consideration. The letter stated that the effect of the Codicil was to modify clause 3 of Alf's present Will by removing MARY GLADYS WHITING as the beneficiary by reducing to $50,000 the sum to be paid to each of MARK GREGORY CLAY and PAUL JAMES CLAY, by removing ELAINE FRANCES OLDHAM and PAMELA CASTELLE ROELOFSEN as beneficiaries and by expressing Alf's wish that he be cremated at a private ceremony. The letter stated that if the terms of the draft Codicil were acceptable to Alf, Messrs Gibson & Gibson would arrange for a member of its staff to attend at his home at his convenience in order to act as one of the two independent witnesses required to the execution of the Codicil. Messrs Gibson & Gibson returned Alf's Will dated the 25th July 1987.

On the 30th November 1988, Mr Anthony Elliott, a lawyer, employed by Messrs Gibson & Gibson, attended Alf at his unit at Unit 2, 22 Avonmore Terrace, Cottesloe.

After speaking with Alf on his own on the above date at the above address, the Codicil was executed by Alf and witnessed by Mr Elliott and another adult person. There was no medical practitioner present nor necessary at the time of execution of the Codicil.

In speaking with Alf alone, Mr Elliott sought to ensure that the contents of the Codicil truly represented Alf's testamentary intention. Mr Elliott asked Alf whether he appreciated that whilst the three named beneficiaries in his former Will did stand to receive $100,000 each, the Codicil gave simply two beneficiaries $50,000 each and whether he appreciated that the Codicil also reduced the beneficiaries of $10,000 bequests to one only and that two other named beneficiaries would receive nothing. Again he responded 'yes'. Mr Elliott pressed him and asked did he comprehend that his residuary beneficiary would therefore receive an additional $220,000 and he once more replied 'yes'. Alf's answers were given promptly. His voice was not strong. His answers were clear. Although there was a tremor in his voice this was consistent throughout and his answers were given in his normal voice being a voice affected by age. Mr Elliott called the other witnesses into the room once more and asked Alf whether he had read the Codicil and whether it represented his testamentary intentions. In Mr Elliott's presence and in the presence of the other witness he replied 'yes'. Mr Elliott then asked Alf to sign and date the Codicil. He signed the Codicil in the presence of Mr Elliott and the other witness. Alf signed with his left hand. His signature was most shaky. Mr Elliott then asked Alf to date the operative part of the Codicil which he did. In the first space he wrote '30th'. Because of the nature of his writing he wrote 'NOV' in the second space.

Thereafter Dudley Morrison Mackey, Retired of 5/22 Avonmore Terrace, Cottesloe, 6011, WA subscribed his signature, name, occupation and address to the Codicil. Mr Elliott then subscribed his signature followed by his full name, address and occupation. Mr Elliott then endorsed the date on the front page of the Codicil namely 30th November 1988.

Mr Elliott returned the Codicil to Alf and suggested to him that he keep it with his original Will and other important papers. Once more he responded 'yes'. Mr Elliott then explained to him that if he wished to alter his Will again, he would be obliged to execute a new Will or a further Codicil. Mr Elliott also told him that if he wished to revoke the Will and Codicil he could do so by destroying and obliterating the writing completely. Mr Elliott told him that he could cut the instruments into small pieces and burn them and that would be sufficient. Alf then nodded to signify that he understood.

The second defendant does not know whether or not Alf took other legal or financial advice as to the Codicil but says such advice would not have been necessary as Alf was of sound mind, memory and understanding at the time of execution of the Codicil."

[133]

"So far as the complaint is made by Mr Clay that leading evidence of that kind ought not to be permitted because it has not been pleaded, it seems to me that the pleadings clearly put very much in issue Alf's consciousness of what was in his estate and the various dispositions that he was making in the codicil in particular.

For example, the plaintiff's own statement of claim in paragraph 7 alleges that at the time of the execution of the codicil Alf was not of sound mind, memory and understanding. Paragraph 8 alleges that at the date of it he did not know and approve of the contents of the will and alleged codicil.

It seems to me that evidence of dispositions made by Alf consistently with the contents of the challenged codicil clearly have a potential bearing and hence relevance in this matter. I do not accept Mr Clay's submission that in the circumstances this is a matter of strict pleading. It seems to me that they are matters of evidence on the pleadings as they already are. They are matters of evidence which go to, in particular, Alf's knowledge and testamentary intention.

I do not propose to accede to Mr Clay's submission that I should give directions restricting the evidence to such an extent as to prohibit evidence of that kind. This is not to say that I am intimating these proceedings will in any way turn into a general inquisition into Alf's affairs or conduct particularly after the execution of the codicil, much less the affairs and conduct of the second defendant or anyone else.

Evidence led and questions asked will, as always, be constrained by the requirement of relevance to the issues. Consequently, if Mr Clay has relevant matters to put to witnesses in cross-examination which may go to their veracity, as he has put it, or to their credibility, then of course he will be entitled to do so, subject of course again always to the question of relevance.

In that situation, however, again the ordinary rules would apply so that if a witness is cross-examined on a relevant matter but one which is relevant only because it goes to credibility, then the cross-examiner will of course be constrained by the answers given by the witness in due course, but, as I say, that is the normal rule in any event.

I do not propose to give a direction limiting the evidence in the way sought. The application is refused."

[191]

"The Clay Schedules, in my view, are substantially speculative. They are argumentative and really amount to a written formulation of the case the plaintiff seeks to put, and indeed one which he is not permitted to put. The assumptions so far identified are mostly, if not all, completely contrary to the only evidence on the issues at the moment.

Given the constraints upon the plaintiff, that he cannot lead evidence seeking to prove fraud or illegality, or to lead evidence to disprove answers given in cross-examination as to credit, or which are otherwise collateral, it is difficult to see how there could be evidence which could possibly support them, but even if there were, the point is the assumptions are at best wholly argumentative. In my view, the schedules and the evidence to support them are inadmissible, both for those reasons, and because they are irrelevant to the issues in this trial.

There are other difficulties too with what the plaintiff is proposing. As I have said, there is no allegation of fraud. The evidence of the financial records, to give a general picture of what was in the estate for the purpose of ascertaining whether Alf had a reasonable understanding of that, is one thing, but this exercise has now gone way beyond that.

It is crystal clear now that despite the earlier rulings as to the pleadings and on the conduct of the case, and in the context that he has not pleaded fraud or illegality, and in the context that his application is for revocation of the codicil, on grounds essentially going to testamentary capacity and understanding, to put it in broad terms, the plaintiff now seeks to mount a full collateral attack on all transactions or transfers of money or property between Alf and the second defendant both pre-dating and post-dating the codicil. That is patently the purpose of the exercise he seeks to undertake by way of adducing evidence in the form of the Clay Schedules and otherwise about those transactions. It is quite outside the scope of this action and is impermissible.

Furthermore, to the extent Mr Clay seeks to rely upon expert evidence there must be compliance with the procedural rules regarding expert evidence and in particular order 36A of the Supreme Court Rules. Order 36A rule 3(2) provides:

At a glance

Court

Decision date

Before

Catchwords

Source

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Judgment (295 paragraphs)

Clay v Karlson & Anor [2001] WASC 141 (5 June 2001)

Parties

Legislation Cited (1)

Cases Cited (13)