Administration Act 1903

Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558

Banks v Goodfellow (1870) 5 QB 549

Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295

Kenny v Wilson (1911) 11 SR(NSW) 460

O'Brien v Trustees of Western Australia Ltd [1999] WASC 185

Re A Solicitor [1975] QB 475

Roebuck v Smoje [2000] WASC 312

Roos v Karpenkow [1998] SASC 7228; (1998) 71 SASR 497

Theophanous v Gillespie [2001] QSC 177

Twist v Tye [1902] P 92

Tyrrell v Painton [1894] P 151

West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144

Wintle v Nye [1959] 1 WLR 284

1 PULLIN J: The plaintiff, Peter Kosta Paraskov, and the defendant, Steve Paraskos, are the sons of Kosta Parascos ("deceased"), who died on 22 February 1996. I will call the plaintiff and the defendant by their given names.

2 In these proceedings, Peter asks that the Court pronounce for the force and validity of the deceased's last will and testament dated 6 April 1973.

3 By the will, the deceased appointed Jospeh Slavko Marian ("Mr Marian") to be the executor and trustee of the will and then made bequests of $500 each to his children, Steve and the deceased's married daughters, whose names were spelled in the will "Palikceni Batkos" and "Olga Georgiou". Those provisions were followed by cl 4, which read:

"I GIVE DEVISE AND BEQUEATH my real and personal estate whatsoever and wheresover situate of which I may die seised or possessed unto my Trustee UPON TRUST that my Trustee shall sell call in and convert into money the same (with power to my Trustee from time to time to postpone the sale calling in or conversion of my real and personal estate as my Trustee shall think fit) AND I DIRECT that notwithstanding the aforesaid trust for the sale thereof my Trustee shall have power to raise money by sale mortgage or charge of any part of my estate and with and out of the proceeds of sale and conversion or out of moneys raised by sale mortgage or charge of any part of my estate PAY my funeral and testamentary expenses and just debts AND STAND POSSESSED of such moneys and of such part of my estate as may for the time being remain unsold or unconverted UPON TRUST for my wife VESA PARASCOS for her life and thereafter for my son PETER PARASCOS absolutely."

4 The following facts are not in dispute unless I note the existence of a dispute, which I will resolve and make findings about as I proceed.

5 The deceased was born on 5 May 1905 in Neohoraki in Macedonia, which is now part of Greece.

6 The deceased married for the first time in Macedonia. The surviving children of that marriage are Steve, Olga Grigoriadis, who now lives in Victoria, and Polikceni Mpatkou, who lives in Greece. Olga is now aged 79, and Polikceni is now aged 72.

7 In 1934, the deceased migrated to Australia, leaving his children and wife in Macedonia. In 1945, Steve's mother died and he was then cared for by his sisters until 1949, when he migrated to Australia to join his father. He settled in Perth with his father.

8 The deceased found work with Metters, the stove makers, as a labourer, and he worked with that company in that role until he retired when he was 66 years old, in about 1971.

9 The deceased purchased a property in Money Street, Perth, in 1951. In 1955, the deceased married again. This wife, Vesa Parascos, who is still alive, had one child, namely Peter. Peter was born on 5 February 1956. Vesa Parascos had two daughters by an earlier marriage.

10 The deceased could not read English and could read only very little Greek. He could speak a little broken English. He could sign his own name. The deceased always spoke Macedonian to Vesa. Most of the people he spoke to in Vesa's presence were people who spoke Macedonian.

11 The surname "Parascos" was used by the deceased and his widow. Steve spells his surname "Paraskos", and Peter spells his surname "Paraskov". He says that the "ov" ending renders the name more Macedonian than Greek.

12 In the 1950's, shortly after the deceased and Vesa married, Steve himself married and shifted into his own home. This was basic accommodation in Manjimup.

13 In the late 1950's, the deceased gave Steve [sterling]200, which several witnesses said was "a lot of money in those days". Steve says that a block of land could be bought in Manjimup at that time for [sterling]50.

14 The deceased and Vesa were never rich, but, as Steve said, they were "economical" and this allowed them to make the gift to Steve. In their lifetime, the main asset they acquired was their house. Peter lived with the deceased and his mother, and his mother's two daughters by her first marriage, at Money Street until about 1961.

15 The deceased purchased a property at 160 Chelmsford Road, North Perth, on 17 November 1961. The family then shifted into the house at 160 Chelmsford Road, North Perth, and the deceased rented out the Money Street property.

16 In about 1964, Steve asked the deceased to give him the Money Street property. The deceased told Steve that he was not flush with funds at that time and that Steve could buy it from him. Steve agreed to do so for [sterling]1,500.

17 The deceased regularly visited the Macedonian Club, and as a result he came to know Mr Marian, who was a solicitor and who practised under the name of Marian & Co at 64 James Street, Perth. Mr Marian's practice involved motor vehicle insurance trust work, making wills, and carrying out conveyancing work. He also did some criminal defence work. The large majority of Mr Marian's clients did not speak English. Mr Marian was fluent in English and in Macedonian and Greek Macedonian. His son says that he was extremely articulate in these languages.

18 Mr Marian employed a lawyer called Don Jaquet and a secretary/clerk Leah Annette Millar. Leah Millar was about 19 years old in 1973. She commenced working with Mr Marian in 1971.

19 Mr Marian's son Boris worked with Mr Marian in 1962, 1963 and part of 1964. He was about 19 or 20 in 1962, and he was thinking of becoming a lawyer himself. Boris recalled that his father went to the Macedonian Club and that he did a lot of legal work for people who were unable to speak or read the English language. Many of those people were Macedonian or Greek Macedonian. Boris gave the following evidence, which is not in dispute:

"I also recall that my father prepared many Wills for clients that did not speak or read the English language. On numerous occasions I was with my father when he took instructions for the preparation of Wills. I have a recollection of my father's practices when it came to the signing of Wills by clients when they were not fluent in the English language or could not speak English. He explained the contents of those Wills to the clients prior to the Wills being executed by the clients. I witnessed many of the Wills prepared by my father.

It was not uncommon for clients to give my father instructions for a Will in Macedonian. I recall that the Will would then be prepared in English. My father always explained the contents of the Will in considerable detail to the client in the language spoken by that client. The client then signed the Will once the client was satisfied with its contents."

20 Leah Millar gave the following evidence, which is not in dispute:

"I can recall that Mr Marian appeared to have standard practices in respect of preparing Wills and in respect of clients signing them. If the client did not appear to be fluent in English, Mr Marian spoke to the client in the client's own language. I can recall that after the Will was typed up, Mr Marian would see the client again in his office. I would then watch the testator sign the relevant document and then I would sign that document in the presence of another witness."

21 The deceased's will, the subject of these proceedings ("the will"), was witnessed by Leah Millar and Mr Jaquet. Mr Jaquet died in 1992, and Mr Marian died on 4 December 1979.

22 Leah Millar gave evidence and was shown a copy of the will of the deceased dated 6 April 1973. She recognised her own signature and Mr Jaquet's signature. Mr Jaquet witnessed many wills. Leah Millar had no recollection of witnessing the will. She witnessed a lot of wills during her time at Marian & Co. She said that in the case of the deceased's will, "I have no reason to believe that Mr Marian, Mr Jaquet nor I would have departed from the usual practice ... and of watching Mr Parascos signing that document and then Mr Jaquet and I signing it as witnesses in Mr Parascos' presence". Again, that evidence was not in dispute.

23 When the deceased died (and Mr Marian also having died), Peter applied for letters of administration with will annexed.

24 On 11 June 1996, Steve entered a caveat. As a result, these proceedings were commenced by Peter, asking the Court to pronounce for the will in solemn form. By the defence and counterclaim, Steve seeks a declaration that the will is of no force and effect, and a declaration that the estate be dealt with pursuant to the provisions of the Administration Act 1903, as on an intestacy. If the counterclaim succeeded, Steve would have an interest in the estate. If the will is good, Steve will receive nothing from the estate.

25 No issue is raised as to the deceased's testamentary capacity. The only issue raised by Steve in his defence and counterclaim is that:

"The Deceased ... did not understand the Will as it was in English."; and,

" ... the Deceased was, at all material times, illiterate in the English language and did not have a good command of the English language, and that there is no notation on the face of the document purporting to be the last Will and Testament of the Deceased stating that its contents were read and interpreted to the Deceased before its execution."

26 Steve gave evidence that he did not know of the existence of the will until after the death of the deceased; he did not know Mr Marian; he knew nothing of the circumstances at the time the will was executed; and he never discussed with the deceased the contents of the will, or whether or not he had made a will. He gave evidence that no-one mentioned to him what would happen to the deceased's property after the deceased died. He gave evidence that his sister's names were "Olga Grigoriadis" and "Polikceni Mpatkou".

27 Peter gave evidence and called five witnesses - his mother and four others, who were friends of the deceased - all of whom had conversations with the deceased in his lifetime about the deceased's will. Save where I say so, the evidence I record below is not in dispute.

28 Vesa Parascos gave evidence that in the early 1970's, the deceased told her that he had made a will. The deceased told her that he had been to see Mr Marian about making a will. Vesa gave evidence that:

"Kosta at that time said to me that under the Will nobody, not even the devil, could drive me from the house and when I passed away it would go to Peter. He told me that he was leaving $20 to each of his other 3 children. I asked him what they could possibly buy with $20. I told him to give them more and to make it at least $500. He said that he would tell Joe Marian to leave them $500 each."

29 Vesa Parascos gave evidence that the deceased told her that he had been again to see Mr Marian and signed a will, leaving $500 to each of his children (except Peter). The deceased brought the will home after he had signed it. Mrs Parascos saw the will and showed it to a friend of hers who could read English. The friend told her that the will said what Kosta had told her it was meant to say. The will was then kept at the Commonwealth Bank for safekeeping. Vesa Parascos gave evidence that on a number of occasions she was told by the deceased that she would be able to live in the Chelmsford Road property until she died, and it would then go to Peter. The evidence of Vesa which I have recorded above was not disputed.

30 Dimitrios Dodos is a Macedonian man who was a friend of the deceased. He is about 67 years of age. He had known the deceased since 1954. He would often visit the deceased at his house. He gave evidence that on many occasions the deceased had said that after his death, his wife was to live at the Chelmsford Road property and that after her death, the property was to go to Peter. The deceased told Mr Dodos that he had already looked after Steve during his lifetime by giving him a house and some money. This evidence was not in dispute.

31 Stogianis Donis lived next door to the deceased at Chelmsford Road, North Perth, from 1961 until the deceased passed away in 1996. Mr Donis is Macedonian. Mr Donis and the deceased went to the Macedonian Club nearly every day. Neither of them had a driver's licence, and they walked to the Club, which was about two to three kilometres away from where they lived. Mr Donis gave evidence that during the last 25 years, he had been told by the deceased that the deceased was not leaving anything to his wife but that she would be able to live in the Chelmsford Road house until she died, and that nobody could sell the house while she was alive. The evidence of Mr Donis which I have set out above is not disputed.

32 Mrs Slavka Naumcevska is 78 years of age. She also is Macedonian and knew the deceased and his wife for approximately 20 years before his death. She could recall talking to the deceased about his will. He told Mrs Naumcevska that he had left $500 to his three eldest children and that his youngest son, Peter, was to get the rest. That evidence is not disputed. Mrs Naumcevska also gave evidence:

"Shortly before Kosta died, I visited him at his house. He was in bed in his bedroom. His son Steve was with him. Kosta said to Steve words to the effect of 'you didn't want me to get married again, but who would have looked after me while I've been sick. Peter has done so much for me and because of that I'm giving everything to Peter'. Kosta continued with words to the effect of 'I've given you your share already and everything else will be Peter's'. Throughout that discussion, Steve was saying yes and was nodding his head. He was unmistakably agreeing with Kosta."

33 Steve disputes that evidence. He gave evidence that there was no such conversation. I accept his evidence. This is not to reflect adversely on Mrs Naumcevska in any way. It is simply the case that there can be different recollections of events. I believe Steve when he says that there was no such conversation, because I believe him when he says that he knew nothing about what was to happen to the deceased estate after the deceased died.

"When Dad was about 80-85 years of age (and I was about 30-35 years of age) he said that he was going to transfer a property he owned in Greece to his daughter Polikceni. He said that he had been asked by the Greek Consulate Office to sign certain documents to transfer that property. I told Dad that it was his property and he could do what he wanted with it.

...

At the time of that discussion, Dad told me that the Chelmsford Road property would be given to me but Mum was to live there for the rest of her life. He said that he was giving a property in Greece to Polikceni and he had already given the Money Street property to Steve. He said that when he made his Will his lawyer had advised him to mention all of his children in the Will to stop them contesting the Will. He told me that he had left each of his other 3 children a small amount of money. I didn't know how much. I assumed it was only a nominal amount like $20. I didn't find out it was $500 until after the time of Dad's death.

...

My father told me on many occasions that he was leaving me the Chelmsford Road property once Mum died. He said that he had already taken care of his other children and they were only receiving a small amount of money under his Will."

36 Jean Tallis gave evidence that she knew the deceased from the 1940s until his death. She said that there were many occasions when she and her husband and the deceased and Vesa would sit around the table talking in Macedonian, and when the deceased discussed what would happen after his death. She said that he repeatedly said that he did not need to worry about Vesa. He said that he had made a will and that she was well looked after, and that nobody could move her out of the Chelmsford Road house whilst she was alive. He said that after her death, it was to go to her son Peter. On other occasions, she said that the deceased said that Vesa could live in the house for the rest of her life, and then it was to go to Peter. Vesa had said in the presence of the deceased, that the deceased had not forgotten about his other children and that they would each get $500, and the deceased acknowledged that this was correct. In cross-examination, Mrs Tallis was asked again what was said about what the deceased had said about his will. She said that the deceased had stated that:

"Vesa was to live there (ie in Chelmsford Road property) for the rest of her life and then it was to go to Peter. He also said that there was $500 to go to each of the two girls and the one in Greece was well provided, because he gave her the property there ..."

"Did he say whether or not she could sell it or do something else with it if she wanted to?---No, he wouldn't have liked that. Whatever he said would have been that that house is to be left there for his son Peter."

39 I therefore find the facts in accordance with undisputed evidence.

40 There were a number of side disputes about gifts of money. It seems that at some time after the deceased had made his will, according to Vesa Parascos, there was a discussion between she and the deceased whereby it was agreed that the money that Steve had paid for the Money Street property should be "repaid". According to Vesa, the deceased was unhappy that he had required Steve to pay for the Money Street property, and they decided that he should be given $3,000, representing the amount that he had paid for the Money Street property. Steve denied that he was "repaid" the Money Street purchase price, but he does agree that he was given $3,000 by the deceased in about 1975. What motivated the deceased to make the gift seems to me to be irrelevant. The resolution of that dispute does not bear upon whether or not the deceased understood the contents of the will.

41 From all of the above, Steve raises six points which he says raise a suspicion that the deceased did not know or understand the contents of the will when it was made. They are, first, that the deceased was illiterate; secondly, there was no notation on the will that it had been explained to him; and, finally, that the will contained four errors which the deceased would not have allowed in the will if the contents had been explained to him. Steve says that the four errors are:

(a) The deceased was described as a "labourer", when he had already retired. It is submitted on behalf of Steve that the deceased would have corrected this error, and that gives rise to the inference that the contents of the will were not made known to him.

(b) He points to what he says is the misspelling of Polikceni's surname. It was submitted on behalf of Steve that if "Batkos" had been read out to the deceased, he would have corrected this error. Steve submits that the inference to be drawn is that the contents of the will were not made known to the deceased.

(c) Steve points to the misspelling of Olga's surname as "Giorgiou" rather than "Grigoriadis". Steve submits that the same inference as in (b) should be drawn.

(d) Finally, it is submitted on behalf of Steve that by cl 4 of the will, the real and personal estate was left to a trustee to sell, call or convert into money (with the power of postponement). It is submitted that the explanations the deceased gave to others about his will, leads to the inference that he did not understand the contents of the will. It is submitted on Steve's behalf, for example, that when the deceased told Vesa that she was to be secure in her home and that not even "the devil" could turn her out, that this shows that the deceased did not understand the contents of the will. The inference is, it is submitted, that the will was not explained to the deceased before he signed it.

42 Although no objection was made to the receipt of evidence about what the deceased said about the contents of his will, I should nevertheless refer to the judgment of Gibbs J in Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 150. Gibbs J stated that evidence of statements made by a deceased explaining why he or she made the will as he or she did, is admissible. The evidence is admissible to provide evidence of the reason why the deceased had disposed of his or her estate in a particular way, although it is not admissible to prove what the deceased said or believed was true. The evidence of what the deceased said in this case was always made in circumstances where he was explaining why the will was made in the terms it was.

43 In the case of contested probate suits, it was said in In the Will of Steward [1964] VicRp 26; [1964] VR 179 at 184-185:

"There is ... (an) onus which lies upon the propounder of any will to satisfy the Court that the testator knew and approved of its contents. That onus is usually satisfied by evidence that the testator was at the time of the making of the will of sound mind, and that before its execution either he had read the will or it was read to him or that he had either unaided or apparently without outside suggestion given instructions as to its contents. Evidence of that kind leads readily to the inference that he knew and approved of the contents of the document which he executed as a will. Indeed, in the absence of evidence to the contrary such an inference may be drawn from the mere fact that a person of sound mind has duly executed a document declaring it to be his will."

44 In Nock v Austin [1918] HCA 73; (1918) 25 CLR 519 at 528, Isaacs J stated that, in general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to, and approved by, the testator, the mere proof of his capacity and of the fact of due execution of the instrument, creates an assumption that he knew of, and assented to, its contents.

45 Although there was no direct evidence of what instructions were given to Mr Marian and whether the will was read to the deceased or the contents explained to him, there is strong evidence as to Mr Marian's usual practice. Once it was established, as it was, that Mr Marian's usual practice was to explain the contents of wills to clients who could not speak English, then it can be inferred, in the absence of any evidence to the contrary, that he followed that usual course in this case. This inference, or presumption, arises because the common experience and observation of mankind is that persons acting in the course of business tend to conduct themselves in a routine and regular way: McLean Bros & Rigg Ltd v Grice [1906] HCA 1; (1906) 4 CLR 835 at 849. In Public Trustee v Permanent Trustee Co Ltd [1999] NSWSC 722, Young J, in the absence of any direct evidence, drew an inference that a will had been explained to a testatrix because the lawyers involved were experienced and that it could be inferred that the lawyers "did their job properly".

46 There is strong evidence of a system in this case. Boris Marian worked with his father between 1962 and 1964, but by then Mr Marian was in his 60's, and it can be reasonably concluded that he had settled in his way of working by that age. Leah Millar's evidence corroborated Boris Marian's evidence. Although she did not say that she heard Mr Marian explaining the contents of wills to clients, it seems that she was only called in when the time came to witness the will and after Mr Marian had "seen" the client. I find that there was a regular practice on Mr Marian's part to explain the contents of a will to persons who did not speak English, before they would execute the will. From that it can be inferred, and I do infer and find, that the practice was followed by Mr Marian in this case. As will be seen later in these reasons, there are no grounds for refusing to draw the inference.

47 It is submitted on Steve's behalf that the fact of illiteracy, the lack of a written note confirming that the will had been explained to the deceased, and the four points mentioned above, should lead me to the conclusion that the regular practice followed by Mr Marian was not followed in this case.

48 First, I should say that the lack of a note indicating that the contents of the will had been explained to the testator, is not a legal requirement. It would certainly be good practice to have such a note to help prevent this kind of litigation. However, there is no evidence that there was any usual practice on Mr Marian's part to employ such a note, and in the absence of any requirement at law, I consider that this element of the defence affords no evidence to suggest that there is any suspicion about the will.

49 I now turn to the point about the deceased's illiteracy. The fact that the deceased was illiterate and could not read English, does not mean that a grant should not be made for that reason alone. It is true, however, that the illiteracy of the testator may (not must) give rise to a suspicion about the document to be propounded. In Re Estate of Hodges (decd); Shorter v Hodges (1988) 14 NSWLR 698 at 705, Powell J stated a number of propositions which included propositions 9 and 10 reading.

"9. unless suspicion attaches to the document propounded, the testator's execution of it is sufficient evidence of his knowledge and approval;

10. facts which may well cause suspicion to attach to a document include:

(a) that the person who prepared, or procured the execution of, the document receives a benefit under it;

(b) that the testator was enfeebled, illiterate or blind when he executed the document;

(c) where the testator executes the document as a marksman when he is not."

50 An illiterate person can make a will. Because the person cannot read the will, does not mean that it is invalid. The question is whether the deceased understood what the contents of the will were before it was signed. In some cases this will be established by reference to the instructions which were given before the will was signed; in others by the fact that the will was accurately translated into language the testator understood before it was signed; and in others it will be satisfied by proof that the contents of the will, although not translated, were explained to the testator in a way which accurately informed the testator what the will provided for. See In the Will of Steward (supra); In the Will of Clayton (1906) 8 GLR 516; Parker v Felgate (1883) 8 PD 171 at 173 per Hannen P; Perera v Perera [1901] AC 354; Astridge v Pepper [1970] 1 NSWR 542 at 548 per Helsham J; Battan Singh v Amirchand [1948] AC 161; and Re Flynn [1982] 1 WLR 310 at 320.

51 I now deal with the four points in the will referred to by Steve's counsel as giving rise to an inference that the deceased did not understand the contents.

Description in the will of the deceased as a labourer

52 In my view, the fact that the deceased was described as a "labourer" when he was a "retired labourer", is not of any significance at all. In explaining the contents of the will, Mr Marian may not have referred to the deceased's occupation. In any event, even if he had mentioned his occupation as "labourer", this does not lead to the conclusion that the deceased would have objected. He had, after all, worked all his life in that occupation. The use of that description does not lead me to infer that the contents of the will were not explained.

The misspelling of (1) Polikceni's and (2) Olga's surnames.

53 The submission made on behalf of Steve was that the deceased would have objected to the spelling of Polikceni's name as Batkos when it is, in fact, Mpatkou. Similarly, it was submitted that the deceased would have objected if he was told that Olga's surname appeared in the will as Georgiou rather than Grigoriadis. I do not agree.

54 The evidence is that Mr Marian would explain the contents of the will, not that he would read it out. An explanation of the contents could easily have been in terms that "Steve, Polikceni and Olga" were being left $500 each, or that "Steve and your two daughters" were being left $500 each. Further, it is not at all certain that Polikceni's surname was known by the deceased as "Mpatkou". I say this because in a document produced in evidence and signed by the deceased in 1990 concerning a property transaction involving Polikceni, her surname is translated from the document as "Batkos". Finally, the pronunciation of the different names as I heard them used in Court by Steve, could easily be misheard, even if Mr Marian read out Polikceni's surname. Steve explained that the "Mp" in "Mpatkou" is pronounced as a "B". Pronouncing the "Mp" as a "B" makes the sound of "Mpatkou" and "Batkos" quite similar.

55 The misspelling of the two surnames does not lead me to infer that the will was not explained to the deceased.

56 The argument on this point is as follows. It is submitted on Steve's behalf that if cl 4 of the will had been properly explained to the deceased by Mr Marian, it would have been explained that by the will, the trustee was directed to sell, call and convert into money, the whole of the testator's estate; that the trustee would then hold any money on trust for life for Vesa and then hold the whole of that money upon Vesa's death, on trust for Peter absolutely; and that the trustee would, however, have the power to postpone the sale of property.

57 The submissions on behalf of Steve were that the explanations given by the deceased to others after making his will were inconsistent with cl 4, and that the inference must therefore be that the terms of the will were not explained to him, and that he did not therefore understand the contents of his will when he executed it.

58 In my view, it does not follow that because the deceased gave the explanations which he did to Vesa, Peter, Mr Dodos, Mr Donis, Mrs Naumcevska and Mrs Tallis, leads to the inference that the will was not explained to him.

59 A full explanation of the will by Mr Marian would have involved explaining in simple language, not only the effect of the doctrine of conversion and the power of postponement but also the rule in Saunders v Vautier [1841] EngR 629; (1841) 4 Beav 115. It can be reasonably inferred that the explanation given by Mr Marian to the deceased would not have been the type of explanation which would be given to a lawyer. The explanation might have been to the effect that the trustee would usually consult with the two beneficiaries, Vesa and Peter, about whether or not the trustee should exercise the power of postponement and that, when the deceased died, if he still owned the Chelmsford Road property and if both Vesa and Peter, when consulted, expressed the view that Chelmsford Road should not be sold but retained for Vesa to live in for life, then the trustee was likely to agree with that view. He may have explained in simple terms, the rule in Saunders v Vautier (supra). That is, it would have been explained that if the trustee refused to postpone the sale of Chelmsford Road, that Vesa and Peter could, if they were in agreement, extinguish the trust.

60 If such a full explanation was given, it is not therefore surprising that the deceased said what he did to his friends. It is unlikely that he thought it necessary to tell friends all that he had been told by Mr Marian. The close relationship which the deceased had with Peter and Vesa, and which I find Peter and Vesa had with each other, would make it unnecessary to explain to close friends, or to either Peter or Vesa, that they would have to be in agreement before they could exercise control.

61 Viewed in that way, the partial explanation which the deceased gave friends, corroborates the conclusion that I have already reached that Mr Marian did give an explanation about the contents of the will to the deceased.

62 The partial explanation certainly gives rise to no suspicion that the effect of the will was not explained to the deceased. I find that none of the six points raised by Steve, whether considered alone or together, give rise to any inference that Mr Marian did not explain the contents of the will to the deceased before it was signed.

63 I therefore find that the deceased understood the meaning and effect of the will at the time it was executed by him.

64 The plaintiff's claim succeeds. I therefore pronounce for the force and validity of the will of Kosta Parascos dated 6 April 1973 in solemn form. I dismiss the counterclaim.

65 I have received written submissions concerning the question of costs.

66 The general rule or prima facie rule in probate actions is that the costs follow the event: Re Green (decd); Lloyd v Green [1969] WAR 67 and Middlebrook v Middlebrook (1962) 36 ALJR 216.

67 There are two well recognised circumstances in which the general or prima facie rule will not apply. They are:

(a) Where the testator has, or those interested in residue have, been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate.

(b) If the circumstances led reasonably to an investigation in regard to the document propounded, the cost may left to be borne by those who respectively incurred them: Re Estate of Hodges (supra); Re Green (supra); Clay v Karlson [2001] WASC 141; and Re Herbert [1990] NTSC 26; (1990) 101 FLR 279.

68 Order 73 r 15 of the Supreme Court Rules provides:

"In a probate action a party opposing the will may, with his defence, give notice to the party propounding the will that he merely insists on the will being proved in solemn form, and only intends to cross-examine the witnesses produced to support the will and he may thereupon do so and, if he does not participate further in the action, he shall not be liable to pay the costs of that other party unless the Court considers that there was no reasonable ground for opposing the will."

69 Observance of the provisions of that rule provides some degree of assurance to a party wishing to test the evidence led to propound a will, that they will not be ordered to pay the costs of the other party. The defendant in this case did not rely upon O 73 r 15. This is not to say that this decides the issue of costs. I must still exercise my discretion. The defendant was justified in requiring the will to be proved in solemn form, but the defendant sought to make out a positive case and went into evidence. Even after seeing the plaintiff's statements of evidence, the defendant insisted on defending the case and leading evidence.

70 Taking into account the legal principles and the facts relevant to the exercise of my discretion, I am of the opinion that costs should follow the event.

71 The plaintiff seeks an order that the costs be taxed on an indemnity basis. Indemnity costs may be ordered where litigation is fought unreasonably by the party against whom the order is contemplated, where the proceedings have been instituted unreasonably, or where the use of aggressive, discourteous and non co-operative behaviour leads to the incurring of delay, inconvenience and needless costs: Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190 at 194 and Clay v Karlson (supra) at 187. None of those circumstances exist in this case.

1. The Court pronounces for the force and validity of the will of Kosta Parascos dated 6 April 1973 in solemn form.

3. The defendant to pay the plaintiff's costs of the action (including reserved costs) to be taxed.