Plaintiffs v Defendant

1. It is my express desire that neither of my daughters Yvette Imelda Jensen and Yvanne Rosalie Acciarito or their children receive any benefit under this my Will as they have caused me much stress during my lifetime by initiating Court proceedings against me and attempting to defraud me.

2 On 8 September 2005, her daughter, Yvanne, lodged a caveat against a grant of probate of the will. In the particulars given in February 2006, the bases for her objection were a want of testamentary capacity, that the testatrix did not know and approve the contents of the will, undue influence by Yvonne and fraud on the part of Yvonne. In an affidavit sworn on 7 April 2006, Yvanne set out the factual basis for these allegations.

3 I should mention that letters of administration on an interim basis were on 23 March 2006 granted to Mr Purcell alone.

4 The matter then proceeded as an opposed probate application with lengthy affidavits filed by or on behalf of the contending parties until 20 February 2008 when Yvanne indicated that she wished to withdraw her opposition to probate. I have this day received evidence of the due execution of the will and as to the capacity of the testatrix and have granted probate in solemn form to the executors named in the will.

5 The question which remained for my determination was as to the costs of the now abandoned proceeding. The principles which I apply are the following. The starting point is that, like any contested civil proceeding, the costs will follow the event. Where, as here, the event goes against the caveatrix, she should, prima facie, pay the costs of the estate incurred in resisting her objections to the grant. To this rule there are two established exceptions: where the testatrix or the residuary beneficiary has been the cause of the litigation and where there exist circumstances which raise suspicion about the validity of the will. I bear in mind that the award of costs lies in the discretion of the court; these rules are guides for the exercise of that discretion. I am mindful in this context that the admission of the testamentary document to probate is no mere dispute inter partes. The solemn legal effect of a will is such that there is a public interest in the court refusing to grant probate where the propounders have not discharged the burdens which they bear.

6 The circumstances attending the preparation and execution of this will are a little unusual. In 1994, Mrs Young made a will in which she left her estate to Yvonne and Yvanne equally. Yvette, who had left home some 40 years ago, was not on good terms with the mother.

7 In the years that followed 1994, Mrs Young was the subject of serious allegations and court proceedings. In 1997 she was proceeded against by the RSPCA for alleged maltreatment of her farm animals. About the same time she was involved in the making of intervention orders with respect to a Mr Kennedy and a Mr Lee. In June of that year she was the subject of an investigation by the police regarding an allegation that she had improperly inherited a property under a will made by her brother Ralph.

8 It seems that Mrs Young formed the view that one or other or both of her daughters, Yvette and Yvanne, were behind these matters. I make no finding as to the correctness of these allegations or the rights and wrongs of these proceedings; it is sufficient that they were part of the background to a visit which Mrs Young made to her solicitor, Margaret Katherine Purcell, in June 1997 in which she gave instructions for a new will. Under the draft then prepared, her estate would pass to Yvonne. This draft contained a clause 7 which was in terms similar, but not identical, to the clause which I have quoted above. This will was not executed. In mid-1998, Mrs Young became ill. She was, in August 1998, hospitalised for heart surgery and during the operation she suffered a stroke. In the course of her rehabilitation, she executed a power of attorney on 23 October 1998 in favour of Yvonne and Yvanne jointly. About this time, too, concerns were expressed by the hospital staff about her ability to conduct her own affairs. Application was made to VCAT for the appointment of a guardian. Medical reports at this time speak of some cognitive infirmity. This appears to have passed and, on 25 January 1999, the application before VCAT was dismissed.

9 In 1999, the police investigations continued. The allegations which were of concern appear to have been that Mrs Young was implicated in the murder of her brother and in the forgery of his will. Yvonne was interviewed by the police in November 1999. Her mother declined to be interviewed.

10 In the same year Yvonne faced further troubles. She is a solicitor. As a result of complaints made, her practising certificate was cancelled, effective from 29 October 1999 and she was not entitled to reapply until 1 March 2002.

11 In order to complete the story it is sufficient that I note that in early 2000 charges were laid against Yvonne and her mother. Briefs were served on 3 April 2000. There followed in August a committal hearing at the end of which the charges against them were dismissed.

12 At this time too, Mrs Young raised, again, the question of her will. She gave instructions to Ms Purcell on 5 April 2000, a few days after the police brief was delivered, and a fresh will was prepared in similar terms to the draft of 1997. This will, which was duly executed on 10 April 2000, is the will before the Court.

13 The propounders seek the costs of the opposed probate applications on the basis that these costs should follow the event. They contend also that there was no real basis for the filing of the caveat, particularly on the grounds of undue influence and fraud.

14 Dealing first with these grounds, I was taken on behalf of Yvanne to a number of matters which, it is said, give rise to a reasonable suspicion of undue influence and fraud. I will not, here, go through them all. There is a mound of affidavits filed on behalf of the parties in which the sorry history of the relationship between the sisters and between them and their mother is set out. Again, I remind myself that it is not for me to unravel this history or to resolve the many conflicts of fact which the affidavits expose.

15 It is clear that there is antipathy between Yvonne on the one hand and her sisters on the other. This is evidenced, not only by the affidavits but also from the readiness of the caveatrix to make allegations against her sister and the readiness of each of them to accept as fact adverse matters against the other.

16 There is no direct evidence of undue influence or fraud. Nor does the evidence before me show that the will was not made otherwise than as a consequence of these matters.[1] Fraud was never identified nor spelt out. I say nothing about it except that it is an allegation which ought not to have been made.

17 The case for undue influence was really nothing more than that, for various reasons, Yvonne was a person of bad character and that she had a close relationship with her mother. The evidence showed that Mrs Young was a woman of strong views which she expressed in a forthright manner. She clearly intended, with or without good reason, to disinherit her daughters Yvette and Yvanne. This was an intention which she exhibited in 1997 and again in 2000. In this case, too, there is the unusual circumstance that in July 2000, Mrs Young was interviewed on tape by a solicitor acting for her in the criminal proceeding. In the course of this interview she discussed her will and the reasons for making it. I have not heard the tape. The transcript shows a woman of 80 years with a firm grasp of what she wanted. There is nothing to suggest that the terms of the will did not reflect her true wishes.

18 The case for incapacity and a want of appreciation of the content of the will also faced formidable difficulties. Instructions in 1997 and again in 2000 were taken by an experienced and careful solicitor who took full notes. In 2000, Ms Purcell had taken the precaution of having her client obtain a certificate as to capacity from her GP.

19 There was, of course, a period of time in late 1998, after her stroke, when there may have been doubts about Mrs Young's capacity. The fact remains that she was able to make decisions with respect to her property in 1999 and to arrange the sale of the Werribee farm. It may be that she gave some or all of the proceeds to Yvonne. This was, after all, her right.

20 I have been troubled, however, that it might have been appropriate for a disappointed beneficiary to put the propounders to proof of capacity, given the age of the deceased and her previous infirmity. Fresh doubts about her capacity arose about a year after the will was made when, in March 2001, a fresh guardianship application was made.

21 In the circumstances I will not order that the caveatrix pay the early costs of putting capacity in issue. This situation continued until March 2006 when the propounders filed and served their affidavits.

22 As to the incidence of costs, however, I will not order that the caveatrix have her costs from the estate; she has conceded defeat. I will, however, not order that she pay the costs of the propounders incurred prior to their discovering the testamentary documents. Thereafter, or a short time thereafter, there was, in my view, no reasonable basis for concern about the capacity of the deceased. As from 30 March 2006, that is a week after the discovery, the costs of the estate should be borne by the caveatrix. I will so order because she was unsuccessful, because there was no reasonable basis for the undue influence and fraud allegations and because, after that date the issue of capacity ought not to have been pursued.

23 On behalf of the propounders, I was asked to make a punitive order for costs against the caveatrix. In the course of argument, I indicated that I would not do so. The primary basis for the application was the service of three Calderbank offers. For reasons already given, I do not consider it unreasonable for the caveatrix not to have accepted that made in February 2006 before discovery by the executors. The later offers sought capitulation. I will not act upon them for that reason. The other bases for the punitive order were that the caveatrix's case was hopeless and that she had been guilty of high-handed conduct in the litigation. I have said what I want to say about the caveatrix's case. I do not find that her conduct was high-handed.

24 The orders which I propose, therefore, are that the costs of the plaintiffs of the opposed application for probate as from 1 April 2006 be paid by the defendant. I will add, to avoid uncertainty, that these costs do not include the costs of the affidavit of Yvonne sworn 26 June 2006. Otherwise, the costs of the parties will lie where they fall.

[1] See Viscount Haldane in Craig v Lamoureux [1920] AC 349 at 357.