Judgment - EX TEMPORE
Revised from transcript; issued 22 February 2021
Before the Court is an application under s 192A of the Evidence Act 1995 (NSW). The defendant seeks a ruling that part of an affidavit relied upon by the plaintiff is inadmissible. The application is brought in advance of the hearing of the proceedings, as s 192A permits.
The proceedings concern the estate of the late Marika du Maurier, who died in December 2017. She was survived by her three children. They are Philippe du Maurier; David Pierre du Maurier; and Karen Dominique (known as Dominique) du Maurier. For convenience, and without disrespect, I will refer to the members of the deceased's family by their given names.
The deceased's husband, Michael du Maurier, predeceased her, dying in October 2014. His will had been made in March 2012. That will was mirrored by a will made by the deceased at the same time.
Following her husband's death, the deceased amended her will on a number of occasions. Her final will was made in October 2016. Under that will she appointed her son, David, as her executor. He is the defendant in these proceedings. David's sister, Dominique, is the plaintiff.
The deceased's October 2016 will is less favourable to Dominique than the will made by the deceased in March 2012, which mirrored Michael's will. In these proceedings, Dominique relevantly claims that the deceased's later will is ineffective. Her case is that it was inequitable of the deceased, having inherited Michael's property pursuant to the mutual wills made in March 2012, thereafter to make provisions which were less favourable to her than the ones made under those mutual wills.
On the present application there were tendered the affidavits, or some of the affidavits, upon which the parties propose to rely at the trial. The witnesses at the trial will include Dominique, David and Mr Sean Gallagher. Mr Gallagher was the solicitor for Michael and the deceased during Michael's lifetime, and later acted for the deceased. He was responsible for preparing the March 2012 wills. He will be a witness for the defence.
du Maurier v du Maurier [2021] NSWSC 83 | Case summary | Zoe
The evidence on the application includes emails sent by Michael to Dominique, both before and after the March 2012 wills were made. There is also an email from Michael to Mr Gallagher concerning the preparation of the wills which were executed in March 2012. This correspondence describes the testamentary arrangements of Michael and the deceased in joint terms. The wills, or proposed wills, are referred to as "our" will. It is clear from the emails that the terms of the March 2012 will and other testamentary arrangements had been discussed and agreed between Michael and the deceased.
I was not taken to any other evidence which would identify the precise terms of those discussions and that agreement. Both parties to those discussions are now dead. I was not taken to any written or oral evidence of contemporaneous statements made either by Michael or the deceased about the content of the discussions or the agreement.
The evidence which has provoked this application arises from events about five years after the mutual wills were made. In January 2017 the deceased, who was then aged 79, was admitted to hospital. She was operated on for a brain tumour. The disputed evidence concerns statements which Dominique claims were made to her by her mother in hospital. The contention for Dominique is that these statements, if accepted, tend to support her case about an agreement between the deceased and Michael to make mutual wills.
The affidavit which contains this evidence was sworn in August 2019. In response, an application was made on behalf of David to have the Court rule that extensive parts of it (including the paragraphs the subject of the present application) were inadmissible. That application did not proceed to hearing. It was agreed between the parties that certain passages (but not the paragraphs now in question) would not be pressed and would be redacted from the affidavit. Directions were then made for affidavits to be filed in response on David's behalf and for affidavits in reply to be filed on behalf of Dominique.
Pursuant to these directions, responsive affidavits were filed by David and by Mr Gallagher. Neither of them was present when the alleged conversations took place. (Indeed, according to Dominique's account of those conversations, she and her mother were the only persons present.) The case made in the responsive affidavits was that the deceased's behaviour and state of mind at the time was quite inconsistent with the terms and tone of the conversations alleged by Dominique.
According to David, his mother first expressed irritation and then stronger emotions about being pestered and then pressured by Dominique about her will. Mr Gallagher gave evidence of receiving similar instructions from the deceased and went so far as to write a letter, allegedly on her instructions, demanding that Dominique cease speaking to the deceased.
This evidence provoked further "evidence" in reply in the form of a series of unsworn affidavits. These affidavits came from Dominique and two friends or relatives of the deceased. The case made in them was that, contrary to the case put forward on behalf of David, the deceased was friendly towards Dominique at the time and wished to see her. The implication was that David was controlling the deceased and sequestering her from Dominique.
As I have mentioned, these affidavits were not sworn, apparently because of the then prevailing COVID-19 emergency. But Dominique's legal representatives have decided that they do not wish to press evidence in that form in any event. I was informed in the course of the hearing that this was so, and it will be formally noted on the Court record for future reference.
Only three paragraphs of Dominique's affidavit are now in issue. They are paragraphs 193, 195 and 196. I set them out below:
193. On 22 February 2017, I was again at Marika's bedside in the hospital and we had a conversation during which we stated in part:
Marika: I put my shares of the Town Hall pub in an account for the boys and have asked them not to spend the money on any more toys.
Me: Mum what happened in the last two years? I don't understand. Sean Gallagher wrote to me about you changing your will and about a Deed. When I wrote to him to ask about the Deed, he said you had other plans. I understood you and dad had formalised what you were going to do. Dad and you wrote to me about what you agreed to.
Marika: There is some money for Lloyd and Ella. The boys will have Longueville Road. I left you the apartment.
(Mum looked visibly anguished as she said this and a few moments later mum leant over to me and pointed to her finger where she usually wore her wedding rings)
Marika: I still left you my rings.
It's not what was agreed, sorry, how can I make it up to you? I am sorry.
195. Marika had various people come in to see her each day. I had found myself unable much one-on-one time with Marika, which I wanted. On 23 February 2017, I spoke to the nurse who was attending and said:
Me: I would like to spend some time with my mother in private for a while.
Nurse: I will put a sign on the door for you.
Me: Mum, do you mind if we have a conversation about the things we have been talking about over the last few days. I want to tell you what it has been like for me over the last two years.
Marika: I don't mind and if I feel tired or anything during the conversation, I will let you know.
196. I told Marika I loved her, and I loved Michael. I told her I was upset she was ill and wished her well. I told her about the impact that the period since Michael's death had had on me and my family. I said I suffered from severe migraines, which was partly due to stress and that I ended up harming myself I was so upset. I told her I started losing my hair and that my doctor had prescribed anti-depressant for me. We continued:
Me: Mum, the things that have gone on are going to impact me for the rest of my life. If it is possible, please, would you go back to the will you and dad agreed to and made together.
Marika: (Nodded her head to me.)
Yes, I will do that.
Me: Mum I think it is best if we have a family meeting to do this so that David and Phillipe are present. Would you agree to that?
Marika: We will have a family meeting at my place. We will all have a meal together at home or I will take you all out for dinner.
The meeting referred to apparently never took place.
The contention on behalf of David in this application is that the Court should now rule these paragraphs out of the evidence for the trial. Counsel for David submitted that the paragraphs were irrelevant to any issue in the proceedings. Alternatively, counsel contended that if admissible they should be excluded in the exercise of the Court's discretionary power under the Evidence Act, s 135.
Dominique's claim is one for enforcement of a trust, arising from an agreement to make mutual wills which are to be irrevocable. The applicable principles appear from the decision of the High Court in Birmingham v Renfrew (1937) 57 CLR 666. At 674-675 Latham CJ said:
Those who undertake to establish such an agreement assume a heavy burden of proof. It is easy to allege such an agreement after the parties to it have both died, and any court should be very careful in accepting the evidence of interested parties upon such a question. Perhaps most husbands and wives make wills 'by agreement,' but they do not bind themselves not to revoke their wills. They do not intend to undertake or impose any kind of binding obligation. The mere fact that two persons make what may be called corresponding wills, in the sense that the existence of each will is naturally explained by the existence of the other will, is not sufficient to establish a binding agreement not to revoke wills so made.
Although the other members of the Court did not expressly adopt this statement of principle by Latham CJ, it reflects the course of authority both before and since Birmingham v Renfrew. For instance, in Hubbard v Mason (Supreme Court (NSW), 9 December 1997, unrep) Santow J, in expounding the relevant principles, said at 28 (citations omitted):
2. The agreement not to revoke is a key element in the concept of mutual wills. It may be implied from all the circumstances, but where implied, "it will be important to identify with precision the nature of the implied promise" In deciding whether to draw the relevant implication, the court will consider "All the surrounding circumstances, the history, the factual matrix. The Court will look at all the circumstances and draw any proper inferences. And where ... there is extrinsic evidence as to what was being effected and why - that is clearly a relevant factor."
3. The requirement that in order for a mutual wills contract to be enforceable each party must have intended to enter into legally binding relations is insisted upon by the courts notwithstanding that most mutual wills contracts are made between husband and wife, and notwithstanding that in other contexts such as the purchase of property together for a common purposes the courts have found an informal common intention sufficient to give rise to a constructive trust.
. . .
5. The mere fact that there are mutual wills to the same or similar effect which may have been executed simultaneously is relevant to, but not determinative of, the question of whether the parties intended to enter into a legally binding agreement to execute mutual, irrevocable wills.
As Santow J stated, the existence of an agreement not to revoke mutual wills is a "key element." In the present case, the it is crucial for Dominique's claim to demonstrate that her parents agreed that the testamentary arrangements in the March 2012 wills were to be irrevocable if they had not been changed by the time the first of them died. I think that the disputed evidence has two features which are of particular significance in this regard.
The first is that the evidence is disputed and non-contemporaneous. The events the subject of the evidence post-date the making of the wills by almost five years, and they post-date Michael's death by more than two years. The evidence comes from an interested party (a matter giving rise to particular vigilance, according to the principles stated by Latham CJ and Santow J). In such circumstances, its weight must necessarily be limited.
The second point is that, in terms, the reported statements by the deceased refer only to the existence of an agreement. They say nothing about whether any such agreement was irrevocable.
Counsel for Dominique argued that paragraph 196 suggested implicitly a recognition by the deceased that she should not have departed from the arrangements made in the March 2012 will. But in my view, in deciding whether the parties agreed that the mutual arrangement made in March 2012 would be irrevocable, that paragraph is quite equivocal. It could just as readily be argued that it suggests an understanding on the deceased's part that she had no obligation to maintain those testamentary arrangements and that whether to restore them was a matter of choice.
There was some debate before me about the authorities on the circumstances in which, in considering a dispute about a contract, a court can take post-contractual conduct into account. But it is not necessary to go into those authorities for the purpose of this decision. The real question is whether the statements made by the deceased, as reported in the disputed paragraphs of the affidavit, establish that the agreement was to be irrevocable at all. In my view they do not do so, either directly or by implication.
Counsel for Dominique submitted that the evidence should not be disallowed because it was relevant to the existence of an agreement to make mutual wills. But there is no issue between the parties about that. As I have already noted, it is clear from the emails that the parties did agree on the terms of the March 2012 wills.
There was no dispute before me as to the principles to be applied on this application. The Court's power to make an advance ruling on evidence should be exercised as to facilitate the objectives specified in the Civil Procedure Act 2005 (NSW), s 56: see Chaina v Presbyterian Church (NSW) Property Trust (No 6) [2012] NSWSC 1476 at [8]-[10].
Clearly if the disputed evidence were permitted, it would give rise to fresh factual issues in the proceedings. In particular, it would require the Court to go into the circumstances of the alleged statements by the deceased in February 2017, when that subject is otherwise irrelevant to the issues in the proceedings. I do not think there can be any doubt that if those new factual issues were to arise, they will result in a significant lengthening of the hearing. If the evidence is to be rejected there are good reasons to reject it now.
In my view, the evidence in question is so tangential that it fails the test for relevance under the Evidence Act, s 55. If I am wrong in that view I would nevertheless reject the evidence under s 135. There are two reasons for that. First, given the nature of the evidence it is impossible for the defence to contradict it directly. Secondly, given that at best its probative value is very slight, I think that to receive the evidence would result in an undue waste of time.
Counsel for Dominique complained that this application was brought after the previous application made on David's behalf was resolved by agreement and the challenge to the three paragraphs in question was not pressed. This may ultimately be relevant to costs, but having concluded that the objectives under the Civil Procedure Act require the rejection of the evidence in the interests of saving not only the parties' costs, but also the Court's time, I do not think that this can be of any great significance.
The modern theory of case management holds that it is the Court's responsibility, in the interests of all litigants, to ensure that proceedings are conducted as efficiently and as briefly as possible. The Court should not indulge the parties in an inquiry into an irrelevant or insignificant factual issue, even if both parties wish to do so. A fortiori the Court should not reject one party's attempt to keep the scope of the hearing within proper and economical bounds simply because the attempt is made belatedly.
For these reasons, I will make orders as sought in the application.
(The parties submitted draft orders to give effect to the judgment).
The orders of the Court made on 22 February 2021 were:
1. The Plaintiff will not read paragraphs 146-150, 154, 155, 157, 158, 182(a) to (j) and (l) to (n), 184(b) to (e) and (g) to (j), 186, 188, together with the exhibits referred to therein, in the affidavit of Karen Dominique du Maurier affirmed on 23 August 2019 (the "Affidavit").
2. Paragraphs 193, 195 and 196 of the Affidavit are ruled inadmissible and will not be read by the Plaintiff.
3. The Plaintiff will redact paragraphs in the Affidavit in accordance with orders 1 and 2 above.
4. The Plaintiff will not read paragraphs 37 to 62 of the unsigned affidavit of Karen Dominique du Maurier dated April 2020 (the "Reply Affidavit").
5. The Plaintiff is granted leave to serve the Reply Affidavit (properly excluding paragraphs 37 to 62 in accordance with order 4 above) sworn or affirmed by the Plaintiff on the Defendant within 14 days of the date of these orders.
6. The Plaintiff will not read paragraphs 1 to 11 of the unsigned affidavit of Adrianne Kern dated April 2020.
7. The Plaintiff will not read paragraphs 1 to 6 of the unsigned affidavit of Anna Bailleul dated April 2020.
8. The Plaintiff pay the Defendant's costs of the Amended Notice of Motion filed 17 December 2020 on the ordinary basis.
9. The proceedings be listed before the Registrar on 3 March 2021 for the purposes of directions which, if considered appropriate, is to include obtaining a date for final hearing.
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Decision last updated: 22 February 2021