Plaintiff v Defendants

3 The caveators lodged a caveat on 18 February 2019. The caveator, Anuradha Charan, is a niece of the deceased and is a named beneficiary in the will dated 11 May 2006, entitling her to receive "jewellery". The second named caveator is married to Anuradha and has no personal interest in the estate.

4 The plaintiff lodged her application for a grant of probate on 28 May 2019. The estate comprises a flat at Richmond valued at $320,000 and a Unit at Dandenong valued at $320,000 together with an accommodation bond of $225,795.12 and funds controlled by State Trustees Limited of $178,376.95 making a total in excess of $1m [I observe the inventory lodged in support of the application for probate appears to incorrectly show the value of the estate at $818,376.95].

5 The caveat is supported by grounds filed on 24 June 2019 that the testatrix lacked testamentary capacity to make a will in May 2006, and that the plaintiff acted in some manner to influence the testatrix or so as to overcome the free exercise of testamentary capacity.

6 In support of the application that the caveat be dismissed the plaintiff relies on two grounds. First it is submitted the caveators lack standing and second, the grounds in support of the caveat fail to disclose a prima facie case. On those grounds it is said the claim stated in the caveat has no real prospect of success within the meaning of section 63 of the Civil Procedure Act 2010.

7 The plaintiff submits the court should dismiss the caveat under the proper application of the principles stated in the decision of Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[1] and also in the decision of McMillan J in Re Przychodski.[2]

8 The approach of the Court in matters of this nature is an investigation as described by McMillan J in Re Przychodski[3]. The Court exercises its power to investigate issues raised by the caveator to deal with the issues prior to the making of a grant of probate.

9 The history of wills made by the deceased is relevant to both issues raised by the plaintiff as grounds to dismiss the caveat. The parties have identified that three wills are known to have been made by the deceased:

(a) on 31 October 1989 a will was made appointing Mr and Mrs Hoadley and Mr Whippy as executors and providing for the estate to go to a niece Ruth Nalini Suresh. The will appears to have been made on instructions of the testator to McKean & Park solicitors, and was witnessed by two solicitors. The document has a line across the text and the word "revoked", but there is no evidence of who added that marking.

(b) on 9 November 1994 a will was made appointing Mr and Mrs Whippy and Mr and Mrs Hoadley as executors and providing for the property at Richmond and its contents (including any motor vehicle) to go to Mr Whippy and the residue to a niece Shiu Kumari Singh. The will appears to have been made on instructions of the testator to McKean & Park solicitors, and was witnessed by a solicitor and a secretary. The document has a line across the text and the word "revoked", but there is no evidence of who added that marking.

(c) on 11 May 2006 a will was made appointing the plaintiff as executrix and providing: for the property at Richmond and its contents (including any motor vehicle) to go to the plaintiff; for "my jewelry" to go to "my niece Anuradha Charan [the caveator]; and for the residue to be divided into three parts for a niece Shyma Lucas, and nephews Ajay Banfal and James Chetty. The will appears to have been made on instructions of the testator to Doolan Kemp & Townsend solicitors, and was witnessed by a solicitor and an articled clerk.

10 It is apparent the caveator Anuradha Charan receives a benefit only under the last will. It is also apparent the beneficial provisions of each will changed substantially. There is no established pattern of testamentary intention that calls for an explanation of the changes made in 2006.

11 Section 58 of the Administration and Probate Act 1958 provides that a caveat may be lodged against the making of a grant of probate by "any person". It is well established that a person must have an interest in the estate to exercise this power.[4] McMillan J in Re Przychodski[5] said:

In order to establish standing in a proceeding relating to a deceased estate, a person must be able to show that his or her rights will, or may, be affected by the outcome of the proceeding. Standing is usually established by the caveator having a beneficial interest in the deceased's final will or under the penultimate will or the intestacy provisions where there is no penultimate will.

12 McMillan J referred to the decision of the NSW Supreme Court in Estate of Kouvakas; Lucas v Konakas[6], where Lindsay J reviewed the nature of 'interest' for the purposes of estate litigation at [212], [213], [249] and [320].

13 For the purposes of this decision I must consider whether Anuradha Charan has established a basis for the caveat. I find the caveator Suresh has no interest in the estate of the deceased and has no entitlement to lodge the caveat.

14 The affidavits in this matter include evidence of the two earlier wills made by the deceased. A will had been made on 9 November 1994 and an earlier will had been made on 31 October 1989. Both wills make gifts of property to other nieces or friends of the deceased, but not to the caveator Anuradha Charan.

15 The plaintiff submits the caveator has no sufficient interest in the estate to support the caveat. The submission is that if the 2006 will is found to be invalid the caveator does not benefit under the 1994 will or the 1989 will and so has no interest such as can support the caveat. The submission for the plaintiff is expressed as 'the caveator has no interest in making the claim [that the 2006 will is invalid] as were her claim successful she would not receive anything.' (Outline dated 17 September 2019 at [9])

16 A decision from 1904 of Hodges J in the Supreme Court of Victoria appears to be against the plaintiff on this aspect of the case. In the Will of Adcock[7] it was decided a caveator may have a sufficient interest even if it is the case that the result of the caveat proceeding would be the caveator receives no benefit from the earlier will. The decision was explained on the basis that the caveator is entitled to challenge the validity of the will in much the same way that a beneficiary can disclaim a benefit or decline to receive a gift. The caveators have referred to this decision in their submissions.

17 The 1904 decision may not retain support in view of more recent developments and, in Victoria, the introduction of the Civil Procedure Act 2010.

18 A statement of principle appears in the text book Williams, Mortimer and Sunnucks 20th edition of Wills and Administration of Estates at [30-14] where it is said 'the caveator is not in a position to resist the making of the grant [if] she shows no interest contrary to that of the plaintiff'. That proposition is consistent with the submission for the plaintiff. It is also consistent with the statement quoted above from McMillan J in the sense that the relevant interest is for the caveator to protect an interest either by supporting a will under which a benefit is given or opposing a later will in order to gain a benefit given by an earlier will or intestacy. The caveator has not shown an interest in the estate contrary to a grant of probate of the 2006 will.

19 The Civil Procedure Act 2010 provides that the Court may give summary judgment in any civil proceeding if satisfied a claim has no real prospect of success. The term 'civil proceeding' is defined broadly in s 3 of the Act. Section 63 has been routinely applied in probate proceedings, including caveat proceedings. The case decided in 1904 does not apply with sufficient force to answer the question raised by s 63. This aspect overlaps with the second issue raised by the plaintiff as to the merits of the 'prima facie' case issue.

20 The caveat fails on the ground that Anuradha does not have an interest in the estate sufficient to oppose a grant of probate for the 2006 will. Her interest in the estate is for the 2006 will to be admitted to probate. Anuradha is a beneficiary under the 2006 will and to that extent may be thought to have an interest in the estate. However there must be an interest to support the case going to trial. That is not the case here. The interests of both the plaintiff and the caveator are for the 2006 will to be admitted to probate. It appears that the caveat is against her interests in the sense that she would lose her entitlement to the gift in the 2006 will. As the plaintiff submits 'There is nothing for the caveator to join suit about'.

21 To be 'an interest' in the estate for the purposes of s58 of the Administration and Probate Act (1958) (interpreted in accordance with the authority to which I have referred), there must be a proper basis for the Court to exercise its judicial power to determine a dispute or cause. Where the caveator has a benefit under the final will that interest can be effective if the caveator wishes to uphold that will, for example where an application has been made to prove an earlier will. The exercise of power by the Court is not to be for the purposes of a hypothetical question or deployed without contrary interest. It is to be exercised only to determine a cause between parties where the interest of the opposing parties is reflected in the outcome. The caveators have no relevant interest in holding the 2006 will to be invalid.

22 The parties did not address the question of whether a beneficiary under the 2006 will has a proper interest to support a caveat for the purpose of preventing the executor taking office. I do not consider that such purpose would suffice. Other procedures are available to pass over an executor if grounds exist or for an application pursuant to s34 of the Administration and Probate Act 1958 again if such grounds exist. A challenge to the validity of the will, as is made in the grounds in support of the caveat, is not the appropriate vehicle for such a challenge.

23 An alternative submission by the plaintiff is there is no utility in this proceeding going to trial. The caveator has no entitlement under the earlier wills. The utility of proceedings on a caveat proceeding requires there be a dispute between parties with contrary interests as to the outcome of the validity of the asserted last will. There is no such dispute over the interests of the plaintiff and the caveator. Both their interests [understood in the sense set out above] are for the 2006 will to be admitted to probate.

24 The Civil Procedure Act 2010 has a further consequence for this aspect of the matter. The overarching purpose of the Act and the Rules of Court in relation to civil proceedings is set out in s 7 as 'to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute'. The real issue in dispute is not so much whether the caveator is a beneficiary under the 2006 will, as no party denies that. If the real issue is said to be the bigger issue of the validity of the 2006 will then the court is required to consider whether the caveator has established an interest in that issue such as to justify the use of resources in conducting a trial of that issue.

25 Section 9 of the Civil Procedure Act 2010 requires the Court to further the overarching purpose by having regard to, among other matters: the efficient conduct of the business of the court; the efficient use of resources; and dealing with civil proceedings in a manner proportionate to the complexity or importance of the issues in dispute and the amount in dispute.

26 Each of those matters is against the continuation of the caveat and against this proceeding continuing to a full trial of the matters raised in the caveat. The amount in dispute is the value of the jewellery, which is not known [the inventory does not disclose any amount for jewellery, but has $1,054 for furniture and effects]. The business of the court would not be conducted efficiently if a trial were to be conducted in the absence of an interest in the outcome of the grant application that is contrary to the interest of the plaintiff in obtaining that grant.

27 I also consider that the interests of the due and proper administration of this estate should be considered. In the Estate of Kouvakas, Lindsay J commented at [320] on a range of matters on which the Court should be informed before exposing the estate to expensive, protracted litigation. The "interest" of the caveator here does not warrant the estate incurring costs of the proceedings and delay in the distribution of the estate. The caveators' interest is limited to the gift of the jewellery and even that interest is lost if the 2006 will is not admitted to probate. For these reasons the caveat must be dismissed.

GROUNDS IN SUPPORT OF CAVEAT - IS THERE A PRIMA FACIE CASE?

28 The grounds in support of the caveat may be described in general terms as raising issues of testamentary capacity to make the 2006 will and also questions of influence, or lack of knowledge and approval affecting the exercise of testamentary capacity in making the 2006 will.

29 The terms of the grounds and the submissions in support of the grounds appear in several different documents on the court file. The court has considered each of the documents to identify the particular grounds relied on by the caveators. The documents are:

(a) on 25 June 2019 the caveators lodged "Grounds of the caveators' objections under Rule 8.06 against the grant of probate";

(b) on 21 August 2019 the Court received "Submissions in Opposition" signed by the caveators in person;

(c) on 9 September 2019 the Court received "Amended Statement of Objections to grant of probate". This followed a directions hearing before Moore J on 23 August 2019; and

(d) on 11 September 2019 the Court received an "Outline of the Caveators' submission opposing grant of probate to the plaintiff".

30 The documents refer to some history of the health of the deceased in 2006 and 2007 and to proceedings in VCAT resulting in the appointment of an administrator on 23 February 2007 on the grounds that "Bahanmati Silver has a disability and is unable to make reasonable judgments". The VCAT proceedings do not amount to a finding of a want of testamentary capacity. The matters considered by VCAT concerned wider issues of management and ability to cope.

31 The grounds include reference to a "rule of law" which required medical guidance from a general practitioner to determine whether the required capacity to make the will was present in 2006. No authority is provided in support of the claimed "rule".

32 The documents make reference to the fact that the testatrix was 80 years of age at the time the 2006 will was made, and assert she was vulnerable and had been admitted to a mental health unit in 2006. The caveators make allegations against the plaintiff concerning the role the plaintiff was to have as a carer for the deceased.

33 The first statement of grounds dated 25 June 2019 contain the following [using paragraph numbers from the Court document for identification]:

(a) [2] "She (the deceased) was heavily pressurised to be put in Sir Eric Pearce home. At that time (the plaintiff) came into the picture." It is not said how or by whom this pressure was applied. There is no means of assessing what impact any pressure had on the deceased;

(b) [3] The deceased was in distress when the caveators asked her reason for giving the plaintiff not only power of attorney but also a will". It is not said how the distress was manifested or expressed, nor whether any witnesses other than the caveators observed it.

(c) [4] "She (the testatrix) did not execute her will for love and affection". This statement contains expression of an opinion or view from the caveators. It is not supported by anything from the testatrix herself to support such a conclusion.

(d) [4] (The plaintiff) "took advantage of her (the deceased's) depressed state of mind with undue influence", but there is no statement of what that influence was, how it was deployed, or who observed it;

(e) [5] The plaintiff "was not able to defend serious allegations made against her in the VCAT of misuse of her position as EPOA" but the nature of the allegations are not made clear. The Court can discern nothing other than assertion, allegation and speculation in the material presented by the caveators; and

(f) [6] Contains a reference to a "contractual obligation" apparently to the effect that the plaintiff had obtained the will by agreeing to be the carer but then had failed to fulfil her part of the bargain. Unfortunately such an assertion is nothing more than speculation.

34 The amended statement of objections filed on 9 September 2019 contains:

(a) [1] "The deceased had disclosed to us in confidence that she had mildly suffered loss of her memory in 1989". This apparent hearsay does not allow the Court to investigate the existence of any objective evidence or medical report in relation to 1989. Moreover, the mild loss of memory in 1989 does not support a finding of loss of testamentary capacity, whether in 2006 or at any other time.

(b) [7] "The will was executed without disclosure to the legal practitioner that (the testatrix) did not have the mental capacity to execute the will". This involves an assumption of lack of capacity. There is nothing from which the Court could infer the legal practitioner did not assess capacity at the time the will was made. An allegation of failure by the practitioner would be a very serious allegation. It should not be made in the absence of some evidence of the events at the time the will was prepared and the document signed. The presumption of due execution cannot be rebutted by this type of assertion;

(c) [8] The caveators allege the plaintiff took Ms Silver to Fiji on 28 May 2006 "to hide her" but that allegation has no basis and appears to be made to suggest some doubt about the plaintiff, without providing the factual basis for such a conclusion; and

(d) [10] The caveators assert that "The caveator Anuradha is entitled to the whole of the deceased's property as she is only person who cared for her without reward". This ground is without merit as the caveator has no share of the estate if the 2006 will is held to be invalid. The suggestion that provision of care creates an entitlement appears to be linked to the ground that the plaintiff lost the benefit of the will by not performing the role of carer. There is no basis for such a view.

35 The "Submission in Opposition" document filed on 21 August 2019 contains

(a) [1] The plaintiff "had duty and care [sic] to disclose to the legal practitioner that the deceased did not have the capacity to make the will." No such duty is established or shown to exist. The submission assumes the plaintiff was capable of making that assessment. The capacity to make a will is not a self-evident attribute held or not held, nor is it shown that the plaintiff knew or had the relevant skill to know of the assumed absence of capacity.

(b) The health issues relied on by the caveators [1] and elsewhere do not establish a lack of testamentary capacity. The caveators appear to place reliance on medical reports produced to VCAT in November 2007, but those reports do not address the same issue and do not address the issue of capacity at May 2006.

(c) [3] The deceased was "severely pressured" but no statement is made of by whom or how and it is not possible to use such assertions to support a case against the validity of the May 2006 will.

(d) [4] "On our inquiry the deceased admitted that she was misled by (the plaintiff)" However, there is no indication of when this 'admission' was made, or the circumstances in which it was apparently given. The submission relies on an acceptance that Ms Silver was capable of understanding the matter, recalling the relevant events and making her own decision. Each of those assumptions are against the caveators' other grounds.

(e) [6] The caveator seeks to apply as Administrator "as was sought before VCAT" but the caveator cannot become administrator of the estate. The 1994 will contains an appointment of executors and the caveator has no entitlement to a benefit under the earlier wills. The submission appears to confuse the grant of representation after death with appointment of an administrator during the life of Ms Silver. There is no ground on which the caveators are entitled to a grant of representation as executors or as administrators of the estate of the deceased.

36 The second Outline filed on 11 September 2019 contains restatements of the allegations and statements made in the earlier documents and it is not necessary to repeat each of the submissions. The document contains extracts from other documents referred to as Appendix C. I have had regard to those documents.

37 The caveators place reliance on the history of orders in VCAT to say the conduct of the plaintiff is against the grant of probate for the 2006 will. For the caveators there seems to be some connection between the failure to provide care or to act as administrator and reasons for the plaintiff to be denied a grant of probate of the 2006 will. There is no such connection. The orders of VCAT concerning the administrator appointment do not have any relevant impact of the grant of probate for the 2006 will. The plaintiff is the named executrix in the 2006 will.

38 These various assertions and conclusions do not rise above speculation. The statements contain views of the caveators but not a basis on which the Court can find a prima facie case. The authorities direct the Court to investigate all matters advanced in support of the case asserted, but the mere assertion of the case does not suffice to allow the Court to conclude in favour of the caveators.

39 The strongest submission for the caveators appears to be that the testatrix had been hospitalised with mental health problems in March 2006. The difficulty is the evidence does not address the relevant question as to whether she had capacity to sign the will on 11 May 2006. A solicitor was instructed to prepare the will, it was then prepared and signed. It is apparent that the testatrix had been released from hospital by the time the will was executed.

40 The plaintiff relies on the principles stated by the Court of Appeal in Gardiner v Hughes [No 2][8] to the effect that the caveat must be supported by more than mere speculation. The grounds in support of the caveat must show there to be a case for investigation, or "something to go on"

41 The principles stated in Gardiner have been applied by McMillan J in Kizelis[9]. And by Moore J in the Estate of Louis Gao deceased[10].

42 The submissions for the caveators, and the grounds in support of the caveat, do not rise above speculation and assertion. They do not provide a prima facie case to doubt the validity of the 2006 will.

43 I accept the Court must consider whether the matters raised by the caveators, if true, call for further investigation see Gardiner at [79]-[80] and Gao at [11]. I must consider not only the individual particulars, but also whether the grounds as a whole constitute a narrative warranting further investigation; see Gardiner [82] and Gao [12].

44 The cases show the finding of a prima facie case [or not] is not a matter of discretion but is the application of a legal test to the facts of the case. It is accepted that each case will depend on its own particular facts; see Gardiner at [42] and [43].

45 The facts of this matter show the testatrix had been prepared to change her will, exercising her undoubted right to testamentary freedom of expression. The changes and the history of the wills do not raise a case for investigation. This is not a case of "complete reversal" of disposition and the changes occur over a long period of time. There is no statement by the testatrix in her will to allow for an investigation of reasons for her changes. For each will the testatrix has used the services of solicitors. There is a change of solicitor for the third will but there is nothing to suggest a reason for investigation on that ground.

46 The preparation of a will by a legal practitioner, and the presence of a legal practitioner at the execution of the will, lends support to the due execution apparent on the face of the will. There has of course been no handwriting evidence presented but there is no suggestion the 2006 will was not signed by the testatrix. The apparent circumstances of the execution of the will on 11 May 2006 do not create a reason to investigate, or provide "something to go on."

47 I have referred to the case for the caveator that the testatrix had been admitted to hospital with some mental health issues. However the facts also show she had been discharged from hospital. The discharge, presumably, was on the basis that hospitalisation was no longer required. Again there is no detailed medial history or evidence of medication [if any], but there is also no basis to say the facts require investigation.

48 Considering each ground individually and taking all of the grounds as a whole narrative the facts do not warrant further investigation. I include in this conclusion the evidence available as well as evidence that might reasonably be thought likely to be available. The caveators have not made out a case for investigation or "something to go on".

49 The caveators have not satisfied the "prima facie case" test and have not satisfied the Court that the caveat should remain. In the terms of section 63 of the Civil Procedure Act 2010 the claim represented by the caveat has no real prospect of success and the plaintiffs are entitled to orders that the caveat be struck out.

50 I will receive submission from the parties as to the costs of this matter, as directed below.

1 The caveat lodged by the caveators on 18 February 2019 be struck out.

2 Each party may file and serve short written submissions as to costs with fourteen (14) days from the date of this decision and any submission in reply seven (7) days thereafter.

3 The court will determine costs on the papers unless a party requests a hearing for oral submissions to be presented.

[1] [2013] VSCA 158; (2013) 42 VR 27 at [29].

[2] [2016] VSC 781 at [12].

[4] Re Seymour [1934] VicLawRp 2; [1934] VLR 136; Re Finn [1942] VicLawRp 7; [1942] VLR 125.

[5] [2016] VSC 781 at [17].

[6] [2014] NSWSC 786.

[7] [1904] ArgusLawRp 101; (1904) 10 Argus LR 268.

[8] [2019] VSCA 198 at [41].

[9] [2019] VSC 667 at [28] to [30].

[10] [2019] VSC 735.