Clocchiatti v Chadwick

Judgment 1HER HONOUR: Before me in the Protective List on 8 October 2012 was an application by Notice of Motion filed on 29 August 2012 by the plaintiff seeking an order under Part 78 rule 69 of the Supreme Court Rules that three caveats lodged in respect of any grant of probate cease to have effect. 2The plaintiff, by Summons filed 28 May 2012, has sought probate of an informal handwritten will of the deceased, John Pierobon. An order under s 8 of the Succession Act is sought in relation to that informal will. 3The deceased died on 19 November 2011. Under the will sought to be admitted to probate by the plaintiff, she is appointed executrix and is the beneficiary of the whole of the estate. Under an earlier will, the deceased had appointed two solicitors (Mr Richard Chadwick and Mr Owen Nichol) as his executors and had distributed his estate amongst a variety of persons (including 15% to Mr Chadwick, 15% to a cousin, Mr John Pierobon, and 15% to Scalabrini Villages (the retirement village in which he had resided)). Each of Mr Pierobon and Scalabrini Villages lodged caveats claiming an interest as beneficiaries under the 2006 will. The solicitors have also lodged a caveat claiming as executors under that will. 4Only the caveat lodged by Scalabrini Villages remained in force as at the date of the application before me (the other two caveats having lapsed by effluxion of time). That caveat appears to challenge the validity of the informal will due to execution. 5Counsel for the plaintiff, Mrs Bridger, relies on D'Apice v Farrell (unreported, NSWSC, 15 May 1992, Powell J) and Azzopardi v Smart (1992) 27 NSWLR 232 at 238 for the proposition that, on the return of the plaintiff's motion, the onus lies on the caveator to adduce evidence raising a sufficient doubt that the will is invalid. Mrs Bridger contends that no such doubt is raised on the affidavit evidence filed for Scalabrini Villages (affidavits sworn by each of Mr Chadwick and Mr Christopher Price on 5 October 2012). 6In Azzopardi v Smart at 238, Powell J (as his Honour then was) said: As is apparent from the second of the judgments delivered by Walker J in Beatson v Perry, if one seeks to raise a ground of invalidity other than want of due execution, one is required to file, not, a caveat requiring only proof in solemn form, but, a general caveat, and further, one is required on the return of a summons for an order that the caveat cease to be in force, to be in a position then to tender evidence raising at least a prima facie case of the ground of invalidity relied upon, in default of which the order will be made, with costs against the caveator: see In the Will of O'Driscoll (1929) 29 SR (NSW) 559; 46 WN (NSW) 176. 7In D'Apice v Farrell, his Honour said: I pause, here, to observe that, although the provisions of s144 of the Wills and Probate and Administration Act 1898 would seem to indicate that it is open to any person to lodge a Caveat, it is to be remembered that Probate litigation is what might be called "interest litigation", it following, that a Caveator must show that she, or he, has a relevant interest in the estate of the relevant deceased (see for example Bascomb v Harrison (1849) 2 Rob Ecc 118; 163 ER 1262; Bull v Futon (1942) 66 CLR 295, 337 per Williams J; Re Devoy; Fitzgerald v Fitzgerald (1943) QSR 137; Hughes v Public Trustee, Court of Appeal, 19th August 1989 (unreported) at 2 of the Transcript of the Judgment per Hutley JA). A Caveator will show a relevant interest if she, or he, is able to show that her, or his, rights will, or may, be affected by the grant which is opposed (Re Devoy; Fitzgerald v Fitzgerald (supra)). Thus, the executor of, or a beneficiary under, another Will than that propounded has a relevant interest in the estate of the relevant deceased, as also do the next of kin unless there are other Wills than that sought to be propounded, the validity of which other Will is not impugned. 8Mrs Bridger noted that insofar as the affidavit of Mr Chadwick deposed to his observation that there appear to be some differences between the testator's signature and that on the 2006 will and the 2011 will, this was not evidence that would raise a sufficient doubt as to the execution of the will. Reference was made to the observations of Hodgson J (as his Honour then was) in Peterson v Spartalis (unreported, NSWSC, 7 April 1995) where even the preliminary view of a handwriting expert was not sufficient to raise such a doubt. 9Counsel for Scalabrini Villages (Mr Burke), however, disclaimed reliance on the observation by Mr Chadwick as to the handwriting as the basis for challenging the execution of the informal will. Rather, I was informed that Scalabrini Villages contends that there is a doubt as to whether the informal will existed at the date of Mr Pierobon's death; in other words, it contends that the informal will is a forgery. Doubt is said to be raised in that regard by the evidence of Mr Chadwick as to the history of the making of wills by the deceased going back to 1973 and to conversations with the plaintiff shortly after the deceased's death when she expressed surprise at the existence of another will drafted by solicitors after one that had been made in 2005 and then enquired as to what the position would be if there had been a note by the deceased prior to his death. 10I interpose to note that that for the plaintiff there is evidence that has been filed by witnesses to the actual signing of the informal will on which the plaintiff will presumably rely to defend any allegation of forgery. However, for present purposes the question is whether the affidavit evidence filed by the caveator raises a sufficient doubt as to this issue. 11Mr Burke submits that the evidence does raise such a doubt. He points to para [47] of Mr Chadwick's affidavit in which he gives evidence about a conversation with the plaintiff on 30 November 2011 that is said to be entirely inconsistent with any knowledge of any later document which could be said to be a later will. (In this regard, there might be some doubt as to how the response by the plaintiff to news of a 2006 will is to be understood - the plaintiff apparently referring to a lack of knowledge that a will had been made since the 2005 will, but arguably in the context of reference to a will made for the deceased by the solicitors). Mr Burke places weight on the fact that the plaintiff did not raise in this conversation the existence of the informal will. 12As to the reference in the conversation to which Mr Chadwick deposes, to a note by the deceased, Mr Burke contends that it is entirely inconsistent with that note being a will (and submits that this may well have been an instance of the plaintiff trying to think of a way to "change things back around"). It is submitted that this shows that at that point the plaintiff was aware of the 2005 will and all of its terms (and was consistent with the plaintiff thinking that that was the final will and that no other will had been created since 2005). 13I am not satisfied that the affidavit of Mr Chadwick raises sufficient doubt as to the execution of the will, given the inconclusive nature of the relevant conversation to which it deposes. It was certainly not apparent to me on an initial reading of the affidavit that an allegation of fraud was being made (and I note that there is ample authority to the effect that such allegations should not only not lightly be made but that, where raised, they must be clearly particularised). It clearly came as some surprise to Mrs Bridger that the doubt that was said to have been raised by reference to Mr Chadwick's affidavit was as to whether the informal will was actually in existence at the date of the deceased's death. 14I consider that what is required, by the authorities referred to above, by way of evidence at the return of the present application is evidence that is sufficient to raise a doubt as to the execution of the will on the particular ground on which the will is sought to be challenged (here, that being said to be fraud), not evidence from which it might later be said that an inference can be drawn as to an unstated ground of challenge to the will. That leads me to conclude that there should be a declaration that the caveat ceases to take effect. 15That does not, however, dispose of the matter before me. Mrs Bridger submitted that if the declaratory relief was granted then the proceedings should be referred to the Registrar in Probate for determination as to whether the will should be admitted to probate in common form. Mr Burke, to the contrary, maintained that directions should be made to permit his client to challenge the grant of probate. 16Mr Burke contends that there was no compliance with the requirements of the Supreme Court Rules in relation to the service of notice to the affected persons and the filing of a statement of claim once those affected persons had lodged caveats. Part 78 rule 36 requires that a statement of claim be filed where there is a defendant and Part 78 rule 45 requires that where a party seeks to intervene by Notice of Motion there be an order that the intervening party be joined as a party. 17Notices were served on the persons likely to be affected by the grant of the relief sought in these proceedings (served on 5 August 2012). However, Mr Burke points to the fact that the notices were not on all fours with the form set out in the Rules. (In that regard Mr Burke pointed to the omission of paragraphs 2 and 3 from the form of notice in the Rules and that the final paragraph is in slightly different form to that in the Rules.) Mr Burke notes that Scalabrini Villages filed an appearance in accordance with the notice within the requisite 28 day period but that there has been no application by the plaintiff to the Court for directions. It is submitted that, whether or not the caveat stands, those directions need to be made and that Scalabrini Villages should be joined as a party to the proceedings under s 8 of the Succession Act. As to the future conduct of the proceedings, Mrs Bridger resisted an order for the filing of a statement of claim on the basis that the summons, as presently filed, seeks declaratory relief under s 8 and that this was all that was required under the Rules at the time the proceedings were commenced. 18It seems to me that in circumstances where one of the affected persons on whom notice has been served (irrespective of whether the notice was compliant with the rules) has clearly indicated that it wishes to oppose the making of a declaration as to the informal will (and the grant of probate in relation to that will), the appropriate course is for the matter to proceed by way of pleadings and for the caveator to be joined as a party. In those circumstances the rules provide for a statement of claim to be filed. The need for pleadings is even more acute where, as here, it appears that there will be an allegation of fraud. 19Accordingly, I propose to make orders as follows (subject to any submissions as to the timetable contemplated therein):