Newnham v Wakefield

• 9 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

113462/01 PHYLLIS MARGARET NEWNHAM V JEAN WAKEFIELD & ANOR IN THE ESTATE OF FLORENCE EVELYN MATHER JUDGMENT 1 This judgment deals with a notice of motion of the plaintiff seeking orders that certain paragraphs of the amended defence be struck out or, in the alternative, that the defendants provide particulars requested by letter on 19 September 2002. Background 2 It is necessary to give some background as the action has had a difficult history and as far as I can determine is still not under control. The plaintiff in the proceedings seeks to have admitted to probate a copy of an informal will. It is alleged by the plaintiff that the original document was witnessed by one person only, namely the plaintiff. The plaintiff's claim is that the original document was partly destroyed when eaten by a dog. 3 As the plaintiff's claim is that the document propounded was witnessed by her, and she is the residuary beneficiary, s13(2)(c) of the Wills Probate and Administration Act 1898 becomes relevant. The necessary notices have been served. There is evidence that the deceased made a will on 1 December 1995, appointing the Public Trustee as executor. Mrs Johnston, the deceased's sister, took a legacy of $10,000 under that will. The deceased's niece, Jean Wakefield, who is the first defendant, took the residue. The RSPCA took a legacy of $20,000 under that will, but received a much greater benefit under the propounded document. 4 There is no cross-claim for probate of the 1995 document. There is no doubt that the defendants have an interest in contesting the plaintiff's claim but it would be desirable for them to cross-claim seeking a grant to the Public Trustee of the 1995 document. The Public Trustee has been given the necessary notice of the s18A claim, but has not filed an appearance. The Guide Dogs Association of New South Wales and the A.C.T., would need to be cited if such a cross-claim were filed. 5 The action was originally fixed for hearing before Palmer J on 8 August 2002. The defence, dated 7 March 2002, was not a good pleading, but unfortunately neither was the statement of claim. 6 Paragraphs 2, 3 and 4 of the statement of claim are as follows: 2. On 3 April 2001 the Deceased, being of sound mind, memory and understanding, signed a document ["the Document"] identical in form to the document annexed hereto in the presence of the plaintiff, and the plaintiff attested and subscribed the Document in the presence of the Deceased. 3. On 23 April 2001 the Document was partially mutilated. Particulars On 23 April 2001 a dog known as Daisey destroyed and consumed part of the document. 4. The Deceased knew and approved of the contents of the Document and intended that it constitute her will. Particulars (a) On 16 March 2001 the Deceased expressed an intention to revoke her prior will (b) On 30 March 201 the Deceased gave to the plaintiff instructions to prepare a will (c) On 2 April 2001 the plaintiff prepared the Document in accordance with the instructions given by the Deceased (d) On 3 April 2001 the Deceased read over and signed the Document in the presence of the plaintiff. 7 It is not correct for a plaintiff to allege sound mind, memory and understanding of a deceased person. There is a presumption of capacity until the contrary is alleged and some basis laid for that allegation. It is not usually necessary to allege knowledge and approval, as unless suspicion attaches to the document propounded, execution is sufficient evidence of knowledge and approval unless challenged: Guardhouse v Blackburn (1866) LR 1 P & D 109; Re Hodges, Shorter v Hodges (1988) 14 NSWLR 698 at 705; although in a case such as this where the document propounded was prepared by the person taking a major benefit under it the righteousness of the document may more easily be brought into question: Nock v Austin (1918) 25 CLR 519 at 528. There is, I consider, no reason why similar presumptions should not apply to s18A documents. I am conscious that the allegation of knowledge and approval is part of the precedent found in Mason and Handley Wills Probate and Administration Service (New South Wales) at 6081. Nevertheless I point out as I have on other occasions that in ordinary circumstances it is not necessary for a plaintiff to plead that the deceased knew and approved of the contents of the will and that such an allegation of fact met by a non-admission has the tendency to raise an issue when that is not really intended. The defence may put that in issue if there is a basis for so doing. It is, of course, necessary in s18A matters, to establish that the deceased intended the document to constitute her will. 8 Paragraph 2 of the defence as originally filed was as follows: 2. The defendants do not admit the allegations contained in paragraphs 2, 3 and 4 of the Statement of Claim. So as to avoid surprise, the defendants note that they specifically do not admit the Deceased executed the Document. 9 This, on its face, raised issues by non-admission of capacity and knowledge and approval. That was probably unintended. The real issue the defendants seek to raise, apart from the s18A issue, is whether the deceased saw the original document at all and if she did, whether she signed it. That is the point of the second sentence of paragraph 2 of the defence. Paragraph 3 of the defence was in response to an allegation that because the s18A requirements were satisfied the document became the will of the deceased. Paragraph 3 of the defence was accordingly as follows: 3. In relation to the allegations contained in paragraph 5 of the Statement of Claim:- (a) The defendants deny the allegations; (b) The defendants note that the facts pleaded in paragraph 2 of the Statement of Claim disclose that (on the plaintiff's case) the document in question was witnessed by only one person; (c) The defendants note that, therefore, the allegations contained in paragraph 5 are consistent with the provisions of s.7 of the Wills Probate and Administration Act 1898 (NSW) ( "the Act" ); (d) The defendants reserve the right to move for summary judgment in relation to the said allegations. 10 The purpose of a pleaded defence is to admit, not admit or deny facts alleged in the statement of claim and to plead other facts which, if proved, will constitute a defence to the plaintiff's claim. It is not a pleading to "note" matters nor to reserve a right to move for summary judgment. 11 This was the state of the proceedings on 8 August 2002 when the case was opened before Palmer J, who sought to establish, by opening statements from counsel for both sides, the issues for determination. What happened then appears from the following paragraphs of a judgment of His Honour on that day. 2. It appeared from Mr Smark's opening that the Defendants' case raised an issue of whether a serious fraud had been committed by the Plaintiff in propounding a document as a copy of a Will which had not been executed at all to the Plaintiff's knowledge.

Mr Smark frankly conceded that in the course of his cross examination of the Plaintiff he would be advancing a case that the Plaintiff was deliberately and fraudulently propounding as a copy of the Deceased's Will a document which was not a copy of any document in fact signed by the Plaintiff.

When Mr Smark's opening had concluded Miss Sandford expressed her concern that the case now being made by the Defendants was one which raised fraud. She pointed to the fact that the Defendants' Defence did not plead fraud expressly as required by Part 15 r.13 of the Rules.

She required a short adjournment to take instructions from her client as to whether the Plaintiff wished to have an adjournment of the case in order to obtain further material to answer an allegation of fraud.

After taking instructions, Miss Sandford informed me that her client wished to seek an adjournment in order to obtain additional evidence. Mr Smark said that he did not oppose the adjournment. The question now in issue is whether, and to what extent, the Defendants should pay the costs thrown away by reason of the hearing date being vacated.

I am of the view that the Defendants should pay the costs thrown away by reason of the vacation, at this stage on a party/party basis and not on an indemnity basis, as sought by the Plaintiff.

As Mr Smark has very reasonably conceded, the adjournment is necessary in a case of such importance when an allegation of fraud is raised; it was occasioned by the Defendants' failure to plead fraud in accordance with the requirement of the Rules.

10. Accordingly, the hearing of this matter is vacated and the Defendants will pay the Plaintiff's costs thrown away by reason of the vacation on a party/party basis at this stage and without prejudice to the Court's ability in the circumstances to vary that order to provide for costs on an indemnity basis.

11. In this matter I direct that the Defendants file and serve an Amended Defence alleging or specifically pleading fraud, if that allegation is still advanced by the Defendants, by 4.00 pm on 15 August 2002.

His Honour adjourned the hearing. 12 In May 2002 the defendants had filed affidavits of a document examiner and a computer expert. The first of these casts some doubt upon the original documents some parts of which remain in existence and as to whether or not it could be what the plaintiff alleged it to have been. The second cast doubt upon the evidence of the plaintiff's witnesses as to the provenance and validity of the copy document now propounded. It was, I think, clearly flagged that the defendants' claim that the document propounded is a forgery in the sense of its being put forward as something it is not. Forgery can be set up under a plea that the document was not executed in the manner and form alleged: Kenny v Wilson (1911) 11 SR NSW 460 the claim of course being the document was not executed "at all". This is clearly announced by the defence. Insofar as it is fraudulent to propound a forgery that goes to conduct not to the issue of a valid testamentary instrument so that no further particulars are needed. 13 It seems to me that what happened before Palmer J was as a result of a misunderstanding. The requirements to plead fraud arise when that is a necessary component of the cause of action or the defence. Cross-examination may be directed towards showing that a party had brought a forged document into evidence, but pleading particulars of the fraudulent conduct in doing so are not required. 14 In response to directions of Palmer J, the defendants filed an amended defence including the following paragraphs: 2. The defendants do not admit the allegations contained in paragraphs 2, 3 and 4 of the Statement of Claim. So as to avoid surprise, the defendants note that: (a) They specifically do not admit the Deceased executed the Document: (b) It is their contention that the plaintiff, in seeking Probate of the Document, is doing so dishonestly, in that she has been aware at all material times that the Deceased had not executed the Document ; (c) It is their contention that the plaintiff is dishonestly maintaining that the Deceased intended the Document to constitute the Deceased's will ; (d) It is their further contention that even if the Deceased did execute the Document, she did not thereby intend to constitute the Document as her will . 3. In relation to the allegations contained in paragraph 5 of the Statement of Claim: (a) The defendants deny the allegations; (b) The defendants note that the facts pleaded in paragraph 2 of the Statement of Claim disclose that (on the plaintiff's case) the documents in question was witnessed by only one person; (c) The defendants note that, therefore, the allegations contained in paragraph 5 are in consistent with the provisions of s.7 of the Wills Probate and Administration Act 1898 (NSW) ( "the Act" ); (d) The defendants reserve the right to move for summary judgment in relation to the said allegations. … 7. Further to the extent to which the plaintiff seeks to rely upon the provisions of s.13(2)(c) of the Act, the defendants contend that the Deceased did not know and approve of the gift to the plaintiff . 15 The solicitor for the plaintiff, by letter of 19 September 2002, sought particulars of the claims under paragraphs 2(b), 2(c) and 7. Some particulars were furnished which need not be discussed, other than to say it is made clear that the defendants say that the deceased did not execute the document a copy of which is propounded. 16 There is, and has been, obvious confusion on both sides. Neither counsel seem to be prepared to stand back and address these problems. Both counsel seem to think that their pleadings are satisfactory, if not perfect. The way to overcome this is for the plaintiff to file an amended statement of claim omitting the allegation of sound mind, memory and understanding. In the circumstances of this case the allegation of knowledge and approval can remain if the plaintiff wishes as she may consider the circumstances raise a suspicion of this, although it is certainly not the main issue. A pleading of forgery in my view in modern times requires not only a denial of the allegation of due execution but a specific statement. Nevertheless, as I have said, it is perfectly clear what is intended. Paragraphs 2(b) and 2(c) of the amended defence should be deleted. Paragraph 2(d) should be recast; paragraph 3(d) should be deleted. It was acknowledged before me that paragraph 7 of the amended defence was related only to forgery. If the deceased signed the document it is not alleged that she did not know of the gift to the plaintiff. If that remains the position the paragraph should be deleted. 17 It is not the function of the court to settle pleadings. I have only done what I have done because there seems to have been obvious confusion and misunderstanding. Palmer J was obviously left with the impression that there was some case of fraud being made out by way of defence in addition to the claim of forgery. In general circumstances such a defence would be that the execution of the will was obtained by fraud. 18 It is time for the sparing to cease and for this action to be heard. It seems that the evidence is complete. There should be no order as to costs on the motion. 19 The orders are as follows:

1. The plaintiff file an amended statement of claim within fourteen days.

2. The defendant file a defence to the amended statement of claim within fourteen days after service of the amended statement of claim.

3. Leave to the defendants to file a cross-claim seeking a grant of probate of the will under which they claim an interest or in the alternative, letters of administrations with the said will annexed.

4. That in the event of a cross-claim being filed, a citation be issued and served on the Guides Dogs Association of NSW and the ACT, giving notice of such cross-claim.

6. Direct that the proceedings be re-listed before me in the Probate List on 10 February 2003.

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