Ruxandra Dumitrescu v Constantin Daniel Scradeanu

The principles 10When the court is asked to grant probate in solemn form it is called upon to decide whether the instrument propounded expresses the real intention of the testator. The law requires the court to exercise vigilant care and scrutiny whenever a case reveals reasonable grounds for suspicion (Re Estate of Fuld [1968] P 675 at 698, 699, 712 per Scarman J). The following passage from his judgment is apt (p 719): "Because it is often difficult, and sometimes impossible, to discover the truth, the law insists on two types of safeguard in will cases. The first type of safeguard is part of the substantive law - the requirements of proper form and due execution. Such requirements ... are no mere technicalities. They are the first line of defence against fraud upon the dead. The second type of safeguard is the second line of defence. It is invoked where there are circumstances which give rise to suspicion; it is the safeguard of strict proof. In cases where no suspicion reasonably arises the court will allow inferences - presumptions as they are sometimes called - to be drawn from the regularity of a testamentary instrument upon its face, or the fact of due execution. But if there are circumstances, whatever be their nature, which reasonably give rise to suspicion, the court must be on its guard. It must ensure that the burden of proof rests upon the party propounding the will: and 'he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator'." 11In Tobin v Ezekiel [2012] NSWCA 285 Meagher JA (Basten, Campbell JJA agreeing) summarised the relevant principles having undertaken a comprehensive analysis of the authorities. Relevantly, he said: "44 The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a "free and capable" testator: Barry v Butlin at 482; 1092; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21; 34 CLR 558 at 570; Timbury v Coffee [1941] HCA 22; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657-658; Atter v Atkinson (1869) LR 1 P & D 665 at 668, 670; Nock v Austin [1918] HCA 73; 25 CLR 519 at 522, 528. 45 If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity ... 46 Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator ... 47 ... [it is required] that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton at 157, 160; Nock v Austin at 523-524, 528; Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097 at [33]; Dore v Billinghurst [2006] QCA 494 at [32], [42]. 48 In this context the statements prescribing "vigilance" and "careful scrutiny" and referring to the court being "affirmatively satisfied" as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995. ... 51 ... However, the principle which requires that the suspicion or doubt be cleared away is directed only to requiring that affirmative proof. It does not also require that any remaining suggestion of undue influence be disproved: Low v Guthrie [1909] AC 278 at 281-282; Nock v Austin at 528; Vout v Hay at [29]-[30]. At the same time, the absence of any allegation of undue influence or fraud does not prevent the opponent putting knowledge and approval in issue and vigorously challenging the veracity of those propounding the will: Wintle v Nye at 294. ... 55 As the foregoing analysis shows, the primary judge was correct to proceed on the basis that the suspicious circumstances rule does not operate at large. It operates to displace presumptions of fact in favour of those propounding the will. For that reason it is necessary to identify the presumption or presumptions to which particular circumstances are said to be relevant. With respect to the presumption as to knowledge and approval, those circumstances must be capable of throwing light on whether the testator knew and approved of the contents of the will. If they give rise to a doubt as to knowledge and approval, those propounding the will must dispel that doubt by proving affirmatively that the testator appreciated the effect of what he or she was doing. They do not have to go further and disprove any suspicion of undue influence or fraud. Approval in this context does not include that in addition to knowing what he or she was doing, the testator executed the will in the absence of coercion and fraud. The proponents having affirmatively established knowledge and approval, the onus of proving undue influence or fraud is on those alleging it ..." 12No particular species of proof is required to satisfy the onus (Nock v Austin [1918] HCA 73; (1918) 25 CLR 519 at 528). 13The requirements for execution of a valid will are enacted by s 6 Succession Act 2006 which, relevantly, provides: "6 How should a will be executed? (1) A will is not valid unless: (a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and (b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and (c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other). (2) The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will."

Determination 14The defendant did not give evidence. His case relied principally on the affidavit and oral evidence of the attesting witnesses, Elizabeth Veruseska and Semyon Khodor, and on the evidence of his solicitor, Omar Juweinat as to the application made by him on 14 June 2011 for the grant of probate in common form. It was not disputed that the document had been signed by the testator and the attesting witnesses. 15Miss Veruseska's evidence was that the testator and his late wife had been friends of her parents, and she had known him for over 25 years prior to his death. Her affidavit (14.06.11) included the following: "9 On 14 January 2011, I was sitting on my mother's balcony smoking a cigarette. I saw Marin through his unit's window and he invited me over for a coffee. A short time later I attended Marin's unit and was introduced to a friend of his who I now know as Semyen [sic] Khodor. ... 11 Marin then commenced telling myself and Mr Khodor that he had significant health problems ... 12 Marin then told myself and Mr Khodor that he had prepared a Will and that he was leaving his Estate to Constantin Daniel Scradeanu. I had met Constantin previously on an earlier visit to Marin's unit and was aware that he was residing with Marin. 13 Marin spoke very highly of Constantin and said that he had loved him like a son and respected him immensely. Marin had said that the relatives that he had were 'like enemies'. He also said that since his wife passed away his wife's relatives had alleged that he was the cause of her death. Marin also said that he would prefer to leave his Estate to the government rather than allow any of his relatives to inherit it. 14 In the time that I have known Marin I have never seen any relative of his at his unit, nor have l heard Marin speaking of them. 15 Shortly after telling myself and Mr Khodor about the Will, Marin asked me and Mr Khodor whether we could witness him sign the Will as he said he would love nothing more than to have Constantin inherit his Estate. Both myself and Mr Khodor agreed to do so and Marin went into his room and returned with the Will. 16 Marin signed the Will first. I then witnessed his signature followed by Mr Khodor. 17 After that we had a general discussion and I left and returned to my mother's unit approximately an hour later. Annexed hereto and marked "A" is a copy of that Will that I had signed." 16In cross-examination she said that the defendant had been living with the testator and was his carer. She said she met Mr Khodor for the first time when introduced on 14 January 2011. She confirmed that the testator signed the will in front of her and Mr Khodor. She could not recall whether all signed with the same pen, but said there were a few pens on the desk. She denied the will was a forgery. When asked if she would be surprised to learn that the one page document had in fact been printed by two types of printer she said (T p 73, l 30 - l 35): "A. I can't comment on that. All I can comment is I was presented with one page and I personally am not an expert to look and think, "Oh this is different and that's typed differently and how is this printed?" I can't comment on that. All I can say is what happened. I was presented with one page. Marin Cristescu signed. I was a witness and then Semyon signed. That's all I can answer." 17Mr Khodor's evidence was that he had been a friend of the testator since early 2006, and frequently met him on social occasions. In his affidavit (15.05.12) he described his visit to the testator on 14 January 2011, and Miss Veruseska's arrival sometime later. The affidavit included the following: "11 Shortly after, Elizabeth arrived to Marin's unit. The three (3) of us spoke for approximately fifteen (15) minutes until Marin told myself and Elizabeth that his health had not been the best. 12 Marin told us that he had not been feeling so good since his most recent operation. Marin expressed to Elizabeth and myself that he really enjoyed Constantin's company as he had been residing with him. Marin referred to Constantin as a 'best friend'. 13 Marin then told us that he wanted to leave his Estate to Constantin. He also said to me, 'don't be upset', as he had assumed I was offended by his decision. I then replied, 'no, of course I'm not upset'. 14 Moments later, Marin went into a room and returned with a Will. He asked whether both Elizabeth and I would witness him sign the Will. I recall Marin had signed the Will first followed by either myself or Elizabeth. 15 Following that, I stayed with Marin for approximately one (1) further hour. I then took a train home." 18In cross-examination he accepted that he had mistakenly written "13" instead of "12" as the number of the unit in the details of the address he had written below his signature on the document. His explanation was that he had become upset from what the testator had told him about his life and health. He said that he saw the testator sign and write the date at the top of the document, after which he signed it in the presence of Miss Veruseska and himself. He denied the suggestion that the document had been signed by the testator before they were asked to witness it. He also denied the suggestion that he did not sign it in the testator's presence. He said he signed with a pen which he had picked from a few which were on the table. 19Miss Veruseska and Mr Khodor impressed me as reliable and truthful witnesses. Each was unshaken in cross-examination. I accept their evidence as an accurate account of the circumstances in which the will was executed. 20Mr Juweinat's evidence was in explanation of the presence of the staple holes and creasing in the top left hand corner of the document. In his affidavit (26.09.12) he said that the original will was one of a number of documents which made up a bundle and were stapled together in the top left hand corner thereof. He lodged the bundle in the court registry on 14 June 2011 for the application for the grant of probate. He said that after probate was granted on 16 June 2011 the material returned to his office included the original will stapled to which was the application for probate and the inventory of assets. The account of the procedure so described was not undermined in cross-examination. It demonstrated compliance with the Supreme Court Rules 1970 Pt 78, r 8(2)(a) which, in proceedings for a grant commenced by summons, requires necessary documents be each stapled together on the left hand side. I accept it as an entirely plausible and probable explanation for the presence of the staple holes and creasing where appearing on the will. That Miss Moussa accorded any weight to this observation strongly suggests that she was left in ignorance of the provisions of the rule. 21The plaintiff's evidence included her affidavit of 21 June 2012, and those of Florin Burhala, Amir Awad, and Attila Mete in support of the claim for a grant of letters of administration. There was also the affidavit and oral evidence of Lucretia Balaban, and the affidavit of Benjamin Hakim, solicitor. As this parcel of evidence is not concerned with the circumstances as to the preparation and execution of the will, I find it unnecessary to make any detailed reference to it. 22The authorities show that suspicion or doubt may be cleared away by affirmative proof that the will contains the real intention and reflects the true will of the testator. Satisfaction of the conventional civil standard of proof, not proof beyond reasonable doubt, is required (Tobin pars 47, 48). Proof in solemn form is to determine the validity of the will as a testamentary instrument so that it should be admitted to probate. The issue must be determined upon the balance of the whole of the evidence in the case. 23In this case, the task is to weigh the evidence of Miss Moussa with regard to the form and content of the will against the evidence of Miss Veruseska, Mr Khodor, and Mr Juweinat. The plaintiff attacked the physical form and layout of the document rather than its substantive content. 24As earlier mentioned, Miss Moussa's conclusion was that the will "... is very probably the product of some person creating a purported testamentary document on a pre-signed page which appears to have been the last page of a letter". It was the plaintiff's submission that her opinion justified the suspicion that the will was a forgery in that the page which the testator had signed was the last page of a letter to which, after he had signed, the matter appearing below his signature was added by some unknown person. This conclusion was said to be based upon the observations, a summary of which is set out in par 7 above. 25Against this evidence is that of the attesting witnesses which was neither contradicted nor relevantly challenged. Taken overall, it supports the finding, which I make, that the will was executed in compliance with the requirements of s 6 Succession Act 2006 and, accordingly, is a valid will. Their evidence was that the testator told them that the will expressed his wish to leave his estate to the defendant, and that he intended it to be his will. The contents of the will are consistent with what he told them. Their evidence also supports the findings, which I make, that the testator knew and approved of the contents of the will, and appreciated the effect of what he was doing. 26Their evidence, in my opinion, is sufficient to sweep away and remove any suspicion agitated by the plaintiff with regard to the unusual form and layout of the document. It follows that I find the evidence adduced on behalf of the defendant conclusively outweighs that relied on by the plaintiff. 27In so concluding, in my opinion it is not incumbent upon the defendant to provide an explanation for every matter which, together, formed the basis of Miss Moussa's opinion. In any event, the difference in ink was satisfactorily explained by the availability of a number of pens at the time of signing, and the stapling and creasing was satisfactorily explained by Mr Juweinat as attributable to the lodgement on 14 June 2011 of the will in a bundle of documents for the grant of probate. The use of what appears to be the last page of a letter, and the fact that the text in the signature block and the text in the body of the document are misaligned are features of the will left unexplained. In my opinion, in the circumstances, they are incapable of maintaining any lingering suspicion as to the validity of the will. In summary, I find that none of the so called suspicious circumstances is inconsistent with the will being a valid testamentary instrument. To the extent that forgery was alleged, it has not been proved. Taken overall, there was no evidence capable of rebutting the presumption of due execution. 28Accordingly, I find that the will dated 14 January 2011 propounded by the defendant is the testator's last will, and was in fact duly executed by him as his will in the presence of the attesting witnesses on the date it bears. I propose to pronounce in favour of the will. 29In addition to the issue of suspicion, the plaintiff contended that the defendant should be refused a grant of probate in solemn form by reason of his failure to comply with the requirements of Supreme Court Rules Pt 78, r 24. Particular reliance is placed on the defendant's failure in these proceedings to read an affidavit by him as executor in accordance with Form 97 as required by Pt 78, r 24(1)(a). 30Rule 28 is within Div 3 which deals with non-contentious proceedings for grant or resealing. The rule specifies the evidence to be relied upon in support of an application. It appears that the requirement of r 24(1)(a) to support an application for probate by affidavit in Form 97 is mandatory. 31The plaintiff submitted that the effect of the rule obliged the defendant to support his claim in these proceedings with a Form 97 affidavit and, if required, to be available for cross-examination, assumedly not only on the contents of the affidavit but generally on the suspicion issues. It was put that with regard to the operation of s 56 Civil Procedure Act 2005 the defendant should not be permitted to postpone the provision of the affidavit until the application for a grant was referred to the registrar. Accordingly, it was argued that the failure to comply with the rule, and to read the Form 97 affidavit at this stage of the proceedings was fatal to the defendant's success, and the cross-claim should be dismissed. 32In my opinion this ground of opposition to the defendant's claim is misconceived, and should be rejected for the following reasons. 33In proceedings for the grant of probate of a will in solemn form there is no rule that the party propounding the will must give evidence in order to succeed. No particular species of proof is required to satisfy the onus (Nock p 528). In this case the will has been pronounced valid. The contentious aspect of the proceedings has been resolved. The will should be admitted to probate. 34Under the will the defendant has been appointed the sole executor and trustee, and is the sole beneficiary, of the estate. His title as executor is derived from the will. In general, the person who is named as executor by the testator is entitled to a grant of probate. As the will has been proved in solemn form it is now open for the defendant to apply for a grant of probate in accordance with the rules of court. The grant of probate will prove his executorship and the terms of the will. 35Upon appointment by the will "... the property of the deceased vests in (the executor) from the moment of the testator's death, so that probate is said to have relation to the time of the testator's death ... the grant is merely operative as the authenticated evidence of the executor's title ... From this it follows that an executor who is at full age at the date of the testator's death before he proves the will, may do almost all the acts which are incident to his office, except only some of those which relate to actions. Thus he may seize and take into his hands any of the testator's effects. He may pay, or take releases of debts owing from the estate; he may receive or release debts which are owing to it ..." (Williams, Mortimer and Sunnucks, Executors, Administrators, and Probate, 17th Ed 1993, pp 83, 84; Re Stevens [1897] 1 Ch 422, p 429). 36The defendant's application for probate will attract the relevant rules of court. The question of the application of Pt 78, r 24 including provision of a Form 97 affidavit will fall for consideration when the application is made. In the circumstances of the present case I express no view as to whether or not it will be necessary for the defendant to provide such an affidavit.

Conclusion 37For the above reasons I propose to admit the will to probate in solemn form as claimed in the cross-claim, and to dismiss the statement of claim. I propose to order that: (1)Subject to compliance with the rules of court, probate in solemn form of the testator's will made on 14 January 2011 be granted to the defendant. (2)The matter be referred to the registrar to complete the grant. (3)The statement of claim be dismissed. 38The parties should have the opportunity to agree upon the final terms of the orders to be made to give effect to these reasons, following which the defendant is to bring in short minutes of orders. 39The question of costs remains outstanding. My prima facie view is that the appropriate order is that the plaintiff should pay the defendant's costs of these proceedings. However, absent agreement, the parties should have the opportunity to make submissions on the issue. 40The parties are directed to arrange with my associate by 4pm 23 October 2012 for the matter to be re-listed for purpose of making final orders and for directions as to any argument as to costs.

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