MATTER : ESTATE OF DUDLEY HERBERT CROSSLAND (DEC)

DECISION OF REGISTRAR CHRISTOPHER BOYLE TO REJECT THE CAVEAT OF JOHN DUDLEY CROSSLAND

Wills - Execution and trustees - Probate - Caveat against grant - Caveatable interest - Legatee under prior Will - Next of kin - Whether interested in estate - Whether entitled to enter caveat - Form of caveat - Authority of Registrar to reject caveat - Non-Contentious Probate Rules 1967 r 5 and r 33(1) and (2)

Non-Contentious Probate Rules 1967, r 5, 5 33(1) and (2)

Hart Roach v The Public Trustee, unreported; SCt of WA; Library No 980044; 11 February 1998

In the Will of Adcock [1904] 26 ALT 127

In the Will of Young (1968) 70 SR (NSW) 386

Re The Will of Poland, unreported; SCt of WA; Library No 6795; 22 July 1987

1 ANDERSON J: On 24 August 2000, Dudley Herbert Crossland died, leaving a Will dated 20 October 1998 in which he appointed "The Financial Secretary of THE SALVATION ARMY Australian Southern Territory" executor and trustee. The effect of his Will was that 10 per cent of his estate was bequeathed to the Salvation Army (Western Australia) Property Trust and the remainder to his daughter, Ms Pasco. His other four children, including his son, John Dudley Crossland, who is the appellant in these proceedings, were expressly disinherited, because, according to the testator, " ... they are all independent and no longer require any assistance from me."

2 On 30 October last, Mr Neil Douglas Curnow made an application for a grant of probate of the Will. Mr Curnow is the financial secretary of the Salvation Army Australian Southern Territory and is therefore the executor and trustee named in the Will.

3 On 15 November, the appellant, by his solicitor, Martin De Haas, lodged a caveat:

1. in intestacy by reason that I am a son of the deceased, and

2. as a beneficiary named in the prior will of the deceased dated 31 August 1989 ... "

and demanded that nothing be done in the matter of the probate of the Will sought to be proved by Mr Curnow without notice to the appellant.

4 On 22 November 2000, the Registrar wrote to the solicitors advising that the caveat would be rejected for non-compliance with the rules. The non-compliance was said to be that the caveat did not fully state the nature of the interest of the appellant as required by r 33(2) of the Non-Contentious Probate Rules. The Registrar considered that the two interests claimed by the appellant were inconsistent in that one alleged an interest by reason of intestacy and the other alleged an interest as beneficiary under a prior Will. The appellant's solicitors did not accept the Registrar's reasoning as correct, but lodged a fresh caveat on 24 November:

1. as a beneficiary named in the prior will of the deceased dated 31 August 1989 of which I have been aware; further and alternatively

2. to the extent that there is an intestacy or partial intestacy, in intestacy by reason that I am a son of the deceased ... "

5 The Registrar did not consider this caveat overcame the problem. He did not think that any interest was shown under any earlier Will unless there was an allegation in the caveat that the Will sought to be proved, that is the later Will, was invalid and there was no such assertion in the caveat. Neither did he think that a partial intestacy was a ground to oppose the grant of representation in respect of the Will sought to be proved and, absent an allegation that the later Will was invalid, he did not think that there could be a total intestacy.

6 There was some further correspondence, but the solicitors were unable to persuade the Registrar to accept the caveat. This appeal is brought pursuant to r 5(1) of the Non-Contentious Probate Rules 1967, which provides:

"A person aggrieved by an order, decision or requirement of the Registrar may appeal therefrom to a Judge in Chambers."

7 I have come to the conclusion that the Registrar should accept the caveat. Rule 33 of the Non-Contentious Probate Rules entitles any person having any interest in an estate in which application is being made for a grant to enter a caveat in the Registry. The formal requirements with respect to a caveat are those which are set out in r 33(2) which provides:

"A caveat shall be in accordance with Form 3, and shall state fully the nature of the interest of the caveator."

8 The Registrar has not suggested that the caveat is not in accordance with Form 3. As to whether it states fully the nature of the interest of the caveator, I think it does. The caveator's interest is stated to be as a beneficiary named in an earlier Will, alternatively as a son of the deceased. Nothing more is required by r 33(2). The rules do not require a caveator to state the grounds of his objection to the grant of probate or to put forward anything in the nature of a prima facie case of invalidity with respect to the Will sought to be propounded. The caveator is required only to state his/her interest in the estate.

9 It is well-settled that a beneficiary under an earlier Will has an interest in the estate. Nor is there any doubt that a person who would be entitled to a distribution on an intestacy has an interest in the estate. They may be divested of that interest (or it may cease to exist) once the Will sought to be propounded is proved, but until it is there is no denying their interest. It is necessary only to refer to the case of In re Finn [1942] VicLawRp 27; [1942] VLR 125, especially per Lowe J at 127. That was a case in which it was held that an undischarged bankrupt claiming an interest as legatee under a prior Will had a caveatable interest, even though such interest would pass to the trustee in bankruptcy if it ever became a proprietary interest. The principle that was applied in the case is the principle that whenever the validity of a prior Will depends on the invalidity of the Will that is sought to be propounded, a legatee under the prior Will has an interest in contesting the validity of the later Will. This is all that is necessary to sustain the caveat.

10 A person not named as a beneficiary, but who would be entitled as on an intestacy, also has an interest in the estate on the same principle. Anyone who has a real interest in opposing the grant has a caveatable interest: In the Will of Keepkie [1960] Qd R 436.

11 As the Registrar's authority to reject the caveat is confined to rejecting it for non-compliance with the formal requirements of the rules, and as this caveat did comply with the formal requirements of the rules, the appeal must be upheld.