Osborne v Estate of Frederick Osborne and Daisy Osborne [2001] VSCA 228

Osborne v Estate of Frederick Osborne and Daisy Osborne [2001] VSCA 228 - VSCA 2001 case summary — Zoe

[16]

On this appeal, the appellant has challenged the correctness of his Honour's decision on a number of grounds. He is faced with a difficult task because his Honour's decision is clearly founded upon the facts derived from the evidence before him and, in respect of which, he had the advantage of seeing the witnesses and assessing their credibility - an advantage which this Court does not share[6]. Apart from the fact that the wills were drawn in identical terms and on the same day, the evidence upon which his Honour was asked to infer the existence of mutual wills with an implied term not to revoke without notice was meagre and speculative and, as it seems to me, based almost entirely upon reconstruction. The appellant's affidavit - which stood as his evidence in chief - referred to the fact that, in 1974, his mother and father had executed wills disposing of their property absolutely to each other, and to the children in the event of one pre-deceasing the other. It was these wills which they revoked in March 1985 upon the making of what the appellant asserted were mutual wills. The basis for that assertion was a replication of the "particulars" set out in the amended statement of claim. As his Honour noted, the affidavit and the particulars suggested that the "trigger" which caused the parents in 1985 to execute new wills was their concern about the re-introduction of death duties which might have an effect upon their estates. In cross-examination the appellant said that his parents had never talked in terms of making "mutual wills". He said that the term "mutual will" had arisen because he had "looked at what they had done and, on reading the law, ha[d] concluded that what they did constitutes in legal terms, mutual wills ...". He had come to this conclusion in 1994, having obtained a law degree from Bond University in 1992. He said he and his partner (an associate professor of law at the Deakin University) had "bandied it around and eventually come up with a conclusion that what mum and dad did constituted mutual wills". He said he could not recall any discussion about "non-revocation" but "its only a perception, but I'm sure my mother went to her grave ... knowing that my father would continue on down the track of the agreement they had made, and he did until such time as he was to re-marry". The solicitor, Peter McGrath, who drew the 1985 wills said that he had no present recollection of the circumstances surrounding the making of the wills, but it was his practice, if being asked to draw mutual wills, to draw an agreement by which the parties "would bind them not to change the wills in the event of one of them dying". There was no evidence of such an agreement being signed in this case and, as he said, if that had been intended "I would have done it in an entirely different way" which he explained was by severing the joint tenancy and giving a life interest to each tenant in common.

[17]

Counsel for the appellant made a number of criticisms of his Honour's reasons for judgment. In the first place it was said that his Honour had imposed too high an onus of proof when he said that, in order to establish his case, the appellant needed to satisfy a "heavy burden of proof". It was contended that the only standard which the appellant had to satisfy was the civil one of proof "on the balance of probabilities". This argument, I think, does not do justice to the full context of his Honour's remarks. The whole of his judgment makes it clear that his Honour did not regard the appropriate standard as other than the civil standard. Rather his Honour was reflecting on the strength of the evidence required in a case of this sort where the plaintiff was asserting that the testator had, because of his prior agreement, lost his freedom to dispose of his assets in the manner which he chose. It is not a novel concept that there are some civil cases where the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what is sought to be proved[7]. Thus in cases of the instant type, courts have constantly cautioned, in various terms, that those who carry the burden of proving an agreement between deceased testators that they will not revoke their wills "assume a heavy burden"[8]; or can only establish it "by clear and satisfactory evidence"[9]. Indeed, this Court recently said that those "seeking to establish an oral contract after the death of the other party to the contract" bear a "substantial burden"[10]. A fortiori where a person is seeking to prove such an agreement between two testators who are deceased. To my mind, his Honour was doing no more than giving effect to those principles and stating that, in a case where it is being alleged that deceased persons have bound themselves to dispose of their estates in accordance with "mutual wills", he should not reach a state of satisfaction unless there was clear and satisfactory evidence that such an agreement had been made. In this case, his Honour was of the view that the evidence before him was anything but clear and satisfactory; and in my view he was entitled to come to that conclusion.

[28]

It cannot, in my view, be sensibly contended that, in reaching the conclusions to which I have referred in the preceding paragraphs, the judge was considering the evidential circumstances in isolation to the exclusion of their combined impact. After all, he had the benefit of submissions by both counsel in which they had urged him to do just that. Unlike cases such as Birmingham & Ors. v. Renfrew (supra), Re Cleaver (supra) and Barns v. Barns & Anor (supra), his Honour was faced with a case where there was no clear and unequivocal independent evidence upon which a conclusion of an intention in the testator and testatrix to bind themselves not to revoke their wills could be safely inferred. It is true that, in the course of his reasons, his Honour went on to consider the effect of statements, in correspondence and otherwise, subsequent to the making of the wills. This, no doubt, was because the appellant, through his counsel, had urged the judge in his submissions (which I have read) to take specific account of those particular circumstances. The circumstances upon which the appellant relied occurred on various dates between 1990 and 1995 and, in response to the appellant's submissions, his Honour dealt with them and concluded that none of them could be construed as warranting the inference for which the appellant was contending. Having regard to the context of his Honour's reasons, it does not seem to me that he was looking at the evidence in a "compartmental" form. Rather, the framework of his Honour's reasoning suggests to me that he was not satisfied, upon the whole of the evidence, that Frederick and Winifred had agreed not to revoke their 1985 wills; nor was he satisfied that there was anything in the circumstances, specifically relied upon by the appellant, occurring between 1990 and 1995 - whether taken individually or in combination - which would lead him to a contrary inference. Having looked at the matters so relied upon, his Honour was, in my view, perfectly correct in his conclusion. Looked at in their entirety, those circumstances reveal something which is all too distressingly familiar; namely a son, more concerned with his material interests than his father's welfare, urging his father to do little or nothing for his new wife "in honour of mum's memory"; and a father, initially making concessions to keep the peace, finally rejecting the son altogether. These were not views which his Honour expressed in terms, but they seem to me to be implicit in his final statement about the evidence of the events between 1990 and 1995:

At a glance

Court

Decision date

Before

Source

Judgment (82 paragraphs)

Parties