Smith v Smith, Estate of Smith

Supreme Court of NSW|2006-12-15|Before: Windeyer J, Powell J

CITATION : Smith v Smith, Estate of Smith [2007] NSWSC 116 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JURISDICTION : Equity Division Probate List

DECISION : Separate question answered. Plaintiff bound by 1983 orders. Proceedings dismissed.

Agricultural Tenancies Act 1990 LEGISLATION CITED : Mental Health Act 1958 Testators Family Maintenance Act and Guardianship of Infants Act 1916

Estate of Clarence Gilbert Alcorn (unreported Powell J SCNSW 9 August 1991) Estate of Muirhead (1971) P 263 In the Goods of Watts (1837) 1 Curt 594 CASES CITED : Morton v Thorpe (1863) 3 Sw & Tr 179; 164 ER 1247 Ritchie v Malcolm [1902] 2 IR 403 Trust Co of Australia Limited v Perpetual Trustees W A Limited (No 2) (1995) 36 NSWLR 654 Withers v Graham re Estate of Colin Glen Graham (unreported Powell J SCNSW 9 August 1991) Wytcherley v Andrews (1871) LR 2 PD 327

Glendon Brian Smith (Plaintiff) Lindin Warrin Smith (First Defendant) PARTIES : Alwyn Frederick Kelehear (Second Defendant) Linden Russell Smith (Third Defendant) Frederick Neville Crowley (Fourth Defendant) Susan Louise Crowley (Fifth Defendant

Mr M Neil, QC with him Mr S Benson (Plaintiff) In person (First Defendant) COUNSEL : Submitting Appearance (Second Defendant) Mr L Ellison SC (Third Defendant) No Appearance (Fourth and Fifth Defendant) not parties to separate question

Abrahams & Abrahams (Plaintiff) In person (First Defendant) SOLICITORS : Arnold Lawyers (Second Defendant) Michael Atkinson & Associates (Third Defendant) Hills Solicitors (Fourth and Fifth Defendant)

20 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

122086/04 GLENDON BRIAN SMITH V LINDIN WARRIN SMITH AND 4 ORS

JUDGMENT 1 This judgment concerns the separate question ordered for determination prior to the determination of the other questions in the action. That question is whether the plaintiff is bound by a grant of probate in solemn form dated 15 December 1983 of a will of his grandfather dated 30 October 1969. In this action the plaintiff seeks revocation of that grant and a grant of probate of a will dated 6 February 1977 of which he is one of the executors. General Facts 2 This is a sad case of a dysfunctional family. Robert Smith (the testator) was born on 13 December 1895 and died on 30 October 1980. He had six children including Lindin Warrin Smith (Lindin) the first defendant and Heather Kelehear, the wife of the second defendant (Kelehear). Lindin has four children. They are Carol Langland born 4 September 1957, Linden Russell Smith (Russell), the third defendant, born 21 March 1959, the plaintiff Glendon Brian Smith (Glen) born 12 April 1961 and Susan Louise Cowley born 9 July 1965. There are three wills which were in question in the original proceedings. The first is dated 3 October 1969. It appointed Lindin and Kelehear executors, gave a property known as "Dog Trap" to the testator's son Robert, gave legacies of $1000 to each of the testator's three daughters, and gave the residue of the estate to Lindin subject to payments to the testator's wife of $40 per week and the right for her to live in the home at their property at East Gresford called "Fairview" which property was the major asset of the deceased. On that property a dairy farm had been conducted. The residue included Fairview and another property near East Gresford known as "Horse Creek". 3 The second will is dated 6 February 1977. Under this will the deceased appointed Glendon, Russell and Kelehear as executors. He gave Horse Creek to his son Robert for life with remainder to Glendon and Russell and he gave the residue which, as I have said, included Fairview and the remainder in Horse Creek, to Heather, Lindin and his grandsons Glendon and Russell in equal shares. It is that will which the plaintiff now seeks to prove. 4 The third will is dated 11 September 1978. It appointed Kelehear and Robert Smith as executors and gave the whole estate in equal shares of one-sixth each to his five children and a granddaughter Kay, who was brought up as a daughter of the testator. 5 In 1982 contested probate proceedings No. 91 of 1982 were commenced under which Kelehear and Robert Bruce Smith propounded the 1978 will and Lindin by cross-claim propounded the 1969 will, claiming that in 1978 the testator lacked testamentary capacity. The existence of the 1977 will was at that stage unknown at least to Lindin. Those proceedings were fixed for hearing before Holland J on 6 December 1983. Shortly before that date a copy of the 1977 will was discovered. The file in these earlier proceedings discloses that on 30 November 1983 Holland J ordered that Russell and Glendon be joined as second defendants. He directed they file a notice of appearance forthwith and gave leave to the plaintiffs to file an amended statement of claim, presumably joining the new defendants. Mr John McLaughlin of counsel, as he then was, is noted as appearing for Russell and Glendon before the probate judge. On 2 December 1983 a submitting appearance was filed for the new defendants by Miss Christine Gailey, solicitor of Messrs Hunt and Hunt. 6 The hearing commenced on 6 December 1983. The judge's notes include the following entry, "No appearance for second defendant (previously excused)". Those notes also set out the pleadings as being the following:- Statement of claim dated "19.11.1983" (presumably a mistake for 1982.)

Defence and cross-claim 24 March 1983. Reply and defence to cross-claim 7 June 1983, 25 July 1983 and 23 November 1983.

Amended statement of issues for trial 23 November 1983.

Only the first statement of claim, the three replies and defences to cross-claim and the amended statement of issues are now on the old file. However, those documents clearly raise the issue of the validity of the 1977 will and the capacity of the testator at that date. For instance, the amended defence to cross-claim pleads that the 1969 will was revoked by the 1977 will. The amended issues for trial raise (1) the question of capacity on 11 September 1978; or (2) if there was no capacity as at September 1978, then the question of capacity on 6 February 1977. 7 The proceedings were heard over seven days. On the final day settlement was reached between the active parties. The claim for probate of the 1978 will was dismissed. Probate in solemn form of the 1969 will was granted. The costs of all parties (those of the second defendants on a submitting basis) were ordered to be paid out of the estate. It was accepted before me, although I am not certain it is in evidence, that the trial judge after hearing evidence of a Dr Broe warned the plaintiffs that if they continued their claim for probate of the 1978 will then they might run some risk as to costs. Transcript of the evidence before Holland J was put into evidence before me. It is apparent that although no one was seeking to propound the 1977 will the question of the deceased's capacity to make a will at that time was the subject of significant evidence of Dr Broe and, as I have said, it was one of the issues in the amended statement of issues. 8 The plaintiff says that at the time of the 1983 proceedings he did not know of 1977 will, he did not instruct Messrs Hunt and Hunt to act for him, that he never met Miss Gailey or Mr McLaughlin, that he did not authorise his brother Russell to make arrangements for representation for the two of them by Messrs Hunt and Hunt and that he did not know the 1983 proceedings were taking place. 9 After the 1983 grant was made proceedings were brought by three children of the testator, other than Lindin, under the Testators Family Maintenance Act and Guardianship of Infants Act 1916. These were heard in 1988 and a subsequent appeal to the Court of Appeal was dismissed in 1991. In the meantime on 12 June 1987 the grant of probate to Mr Kelehear was revoked leaving Lindin as sole executor. Nothing arises from these matters. 10 In October 2002 Lindin transferred Fairview to his daughter Susan Cowley and her husband, Frederick Cowley, apparently for no consideration, although they allege some consideration. In November 2002 he transferred Horse Creek to Russell for nominal consideration. There is again some question about whether or not there was consideration. The plaintiff seeks to set aside those transfers if the revocation claim is successful, but those claims, at least against Mr and Mrs Cowley have stayed pending the outcome of the revocation claim. For the plaintiff to obtain any worthwhile relief, and provided that he succeeds on the issue now tried, he will have to establish that the testator had capacity in 1977 and obtain orders setting aside the 2002 transfers of land. It was because those tasks are likely to result in a lengthy trial that I ordered the trial of the separate issue because if Glendon is bound by the 1983 orders, that will bring these proceedings to an end. 11 On the separate issue therefore the following questions arise for determination: (a) Did Glendon authorise his brother Russell to instruct the solicitor to appear for them and do any of (i) enter a submitting appearance? (ii) do what was necessary to support their father's claim to uphold the 1969 will?; (b) did Glendon know of the 1977 will?; and, (c) is a defendant entering a submitting appearance bound by consent orders made without his knowledge or only by orders made after judicial determination of the issues? 12 Before dealing with the additional facts relevant to the separate issue there are some procedural and pleading matters to which I should refer. First Lindin, although served, has not entered an appearance. He gave evidence but was called by Russell. Kelehear appeared but has taken no part in the proceedings. He has no interest under the 1969 will, as he is no longer an executor of it. He would have an interest as executor under the 1977 will. 13 The second procedural matter is that on 16 December 2005, Palmer J made an order staying the proceedings as against the Cowley defendants, which sought declarations that the transfer of Fairview was void, until determination of the claims against Lindin, Kelehear and Russell. That was on the basis that they would not intervene in those proceedings although that could not prevent their being called as witnesses by Lindin or Russell. 14 The plaintiff's pleaded claim is:

A. He did not consent to the settlement and was not a party to it and he was not aware of the 1983 proceedings.

B That the settlement was irregular (whatever that may mean).

C. That the judgment was obtained or procured by fraud, namely an agreement of Lindin and Russell, that Russell would "pretend to instruct the said Christine Gailey to file the submitting appearance on the plaintiffs' behalf". 15 The only defence is that filed by Russell. In form it is deficient as the facts pleaded in paragraph 10 of the statement of claim, which contains the essential allegations of lack of knowledge and fraud, are answered by non-admission. Nevertheless the separate question was ordered because it was clear that Russell's case was that his brother was well aware of the 1983 proceedings and the 1977 will as being in issue in that action. Further Facts 16 As I have said the case of the plaintiff is that he did not know of the 1977 will until 2002 and that he obtained the original will from Messrs Shaw Dunlop & Co, solicitors of Singleton in September 2003. Nobody has ever explained why the original 1977 will was not before the court in the 1983 probate proceedings, as one would have thought an inquiry of Messrs Shaw Dunlop & Co would have brought it to light as Mr Colin Dunlop and his wife were the attesting witnesses. In any event, the plaintiff says:

a. That he knew there were a number of wills. He later admitted that he knew of the 1978 will because a copy was handed out at the funeral of the testator;

b. He did not know of the proceedings No 91 of 1982 heard in 1983;

c. That in 1983 he was living at Gateshead with his mother-in-law and that his son Beau was born on 3 December 1983;

d. That he saw no documents, received no letters, and had no telephone calls in relation to the proceedings; and that he gave no instructions to Hunt and Hunt to act for him and did not authorise his brother to give instructions on his behalf;

e. That at Christmas 1983 when the whole family were together nothing was said about the estate or court proceedings;

f. That when his parents called to see him - or probably to see his new child - on the day the court proceedings concluded in December 1983 those proceedings were not mentioned even though he knew that his parents had been staying with Russell just out of Sydney;

g. That there were acrimonious proceedings between him and his father including apprehended violence proceedings brought by him against his father, an appeal from those proceedings, and proceedings under the Agricultural Tenancies Act 1990 brought by him against his father and an appeal from the original finding there and finally an action by his father against him for perjury which failed. It seems that Glen succeeded in most of these court actions. He said that in the apprehended violence proceedings there was mention of wills.

h. That in November 2001 he called a family meeting in a park at East Gresford attended by his mother, his sister and Russell but his father failed to attend. The following appears in paragraph 103 of his affidavit of October 2005: 103. My mother and my siblings attended, but my father did not, and we sat at a picnic table. We spoke about my belongings, which were still at Fairview, and other matters. I said, "I want to put a stop to all the court cases. Dad has sued for perjury." My mother said "We will go to court for you" … After a while I asked, "What is this business about Pa's estate?" Russell said, "You know, we hired a barrister". I said, "No, I do not know, what is this business about a barrister. Who is he?" Russell said, "He was a tall thin man with dark hair and we found him in a pidgeon hole at the Supreme Court". I asked, "Why did we hire him?" and other questions. He turned his face away and would not answer. No one else asked questions.

i. He then says in paragraph 111 of his October 2005 affidavit that in September 2002, on his side verandah at his home at Gresford, his mother said to him: "Russell was taken over to Dungog and saw our solicitor and he was advised of his rights and the 3 wills. Russell said he would tell you and hire a solicitor for you both. There was a letter that came for you at Fairview from the solicitors and I gave it to Russell, and he was supposed to give it to you".

I said: "Do you think I am that stupid to think that Russell would have acted on his own." She said: "Could you expect us to stand by and let a grandchild get the property". "There is nothing you can do now as we are giving it all away and declaring bankruptcy"

I said to her: "Do not ever come back here again". Soon thereafter he started to make inquiries about the estate. He sought and obtained access to the probate file in the 1982 action and began to search out the people involved, including the firm of Messrs Hunt and Hunt, Miss Gailey and Mr McLaughlin.

j. That on 6 July 2004 he spoke to his brother by telephone and a conversation took place deposed to as follows in paragraph 155 of his affidavit sworn in October 2005: 155. … I spoke to Russell on the phone later that night and I said, "Can you tell me the name of the solicitors you hired". He said "I cannot remember". I said "Who is Christine Gailey" He said "I do not know". I said "Was the barrister McLoughlin". He said "I do not know". I said "Did you hire Hunt & Hunt solicitors?". He said "I may have used them for one of my many court cases in the city, I cannot recall". He further said "You were there and gave evidence in the Supreme Court" I said "That's news to me and also to Aunty Kay and Mr MacMahon they do not remember me being there, but they remember you being there". He said, "Oh, that is why you have been going to see them is it". He further said "How long have you been looking into this? I said, since 2001, when you told me we hired a barrister". He said, "You wanted to contest the 1977 will but there was agreement, and you and Kath were to take over the properties 10 years ago, but because you and Kath are both assholes that never happened." He then said "you said to me you were going to shoot dad from the back of the church at Gresford" I said "This is the allegation you made in court" He said you remember it do you" I said 'Yes, you claimed that and then you withdrew the allegation".

The plaintiff's wife, Kathy Smith, said she was not aware Glen was a beneficiary under any will until 2003. She gave conflicting evidence on affidavit and in cross-examination of her knowledge of wills and disputes. She was not convincing on these matters. 17 As against this there is evidence of four witnesses which I will summarize in the following paragraphs 18 Russell Smith:

a. agreed that he knew of the 1977 will and was given some advice by Mr McMahon about it because Mr McMahon had told Lindin that separate representation would be required of himself and Glen;

b. said that in a conversation at his parents' home Fairview at East Gresford when his parents and Glen were present he said, "We would do well if the current will stood but Pa was suffering from dementia for many years prior to his death. It would be better if we do not contest the 1977 will because of Pa's mental capacity, this would assist to refute the 1978 will". The inference to be drawn from this of course is that the contents of the 1977 will were then available;

c. In further oral evidence he said that he could not remember any reply that the plaintiff made to this statement but that there was then a further meeting at which he said Glen signed a piece of paper which was required by Messrs Hunt and Hunt. He said that he could not remember where that meeting took place, but he assumed that it was at Fairview. He said that he took the piece of paper to the office Messrs Hunt and Hunt at Eastwood. He could not remember what words appeared on the piece of paper. He said that he had to sign it as well.

Although there was some confusion I think it is clear that the evidence of Russell was that after the first meeting and probably after seeing Mr McMahon, he returned to Sydney and spoke to the plaintiff on the telephone suggesting that Messrs Hunt and Hunt be involved as his father-in-law knew Mr Ian Hunt. He also said in oral evidence that he kept his brother informed of what was happening in the 1983 proceedings or at least his understanding of what was happening. So far as the meeting in the park in 2001 is concerned Russell confirmed most of the conversation deposed to by the plaintiff and said that the description about the pigeonhole in the Supreme Court was a description he gave to the plaintiff about the court case after 1983. He said that he did not say it in the park so far as he could remember. He agreed that he had stopped the conversation but before he stopped it he said that he told the plaintiff why Mr McLaughlin had been "hired". "I told him something along the lines that we had to be represented because of the 1977 will but I cannot remember what my exact words were". He said that he had discussed with the plaintiff many times what had happened in the 1983 proceedings.

As I have said Russell has now obtained the Horse Creek property. 19 Carole Langford gave evidence on affidavit sworn 27 June 2005, paragraph 10 of which is as follows: 10. At some time prior to the commencement of the hearing of the Probate Proceedings, the exact date of which I cannot recall, I had arrived at the farm (Fairview). There was a chance meeting between myself, Russell and Glen outside our parents' house on the farm, Russell and Glen were making to leave. The following conversation occurred:- Russell to Glen: "You don't mind if I organise the Solicitor to handle the proceedings. From my point of view it will be easier as the case is in Sydney. It will save some expenses. Glen: "Yeah, that's fine with me. " Myself: "What are you talking about? " Russell: " It's nothing for you to worry about. " Myself: "No, I don't accept that. Just tell me. " Russell: "You know all of the Wills Pa had floating around. Glen, myself, Alwyn and Dad are executors of another Will. " Myself: "What's the Will say?"

I don't recall whether I was told. I do recall the following further conversation:-

Russell: "We need to support Dad. " Just before Russell left, I recall he again said to Glen "Glen, I'll organise the Solicitor. Are you sure that's okay?"

Russell, in his evidence, said that he could not remember this occasion. Mrs Langford also said that shortly after the 1983 proceedings concluded she visited the plaintiff and his wife to see their new baby and asked the plaintiff why he had not gone to court. She said that the plaintiff's wife said that he had made a decision for the family and the family needed him and it was not necessary for him to go to court and the plaintiff said "My child needed me". She also said that after 1994 when the plaintiff took over the dairy farm at Fairview and there were constant disputes between the plaintiff and his father, that the plaintiff spoke to her often on the telephone about inheriting the farm and said, "The 1977 will should have been decided by the court". Later on she said that the plaintiff said to her on other occasions, "You cheated me out of my inheritance, you sided with Dad in the court case". And she said that at the meeting at the park at East Gresford in November 2001, the plaintiff had said, "Pa's 1977 will left the farm to Dad, Alwyn, Russell and myself" to which Russell had responded, "That is no longer an issue. Dad is the sole owner of the properties. Dad will decide who gets it in the end". 20 The first defendant, Lindin, is a difficult, cantankerous man, although this may be attributable to his ill health. He is also a violent man. There is no doubt that he assaulted the testator on a number of occasions. However much he was tried by the testator there could be no excuse for his behaviour. He said that he received a copy of the 1977 will from Mr McMahon, the solicitor acting for him by letter dated 14 November 1983. As I understood his evidence it was his view was that the persons propounding the 1978 will knew of this document all along, as they had a copy of it, but kept it secret. That is probably irrelevant at the present time but I accept that he did not know of the 1977 will before then. He said that he remembered Russell coming to Fairview with some papers from Hunt and Hunt. He had for many years kept a diary or day book, part of which was relevant to matters connected with the farm, but part of which concerned day to day happenings with the family. There is no doubt that one of the reasons this diary was kept was that he considered that the testator lacked any insight or capacity and on a number of occasions according to the evidence he tried to have him scheduled under the Mental Health Act 1958. He said that he remembered an incident which took place on 9 October 1994 when the plaintiff was in the hay shed at Fairview talking to his son, Beau. He said he heard Glen say words as follows: "Pa has left the farm to me. Your grandfather took it to court and the court gave it to your grandfather". Later that day he said that he made an entry in his diary which is in evidence and which reads as follows: "Beau in hay shed. Glen is telling them - Pa left the farm to him - that I took it - court - and the court gave it to me. If this the way he talking he off." He is of the view that his son Glen is mentally disturbed as he said his father was, and that he needs treatment. The plaintiff says that this entry was made as part of an effort by his father to collect evidence as to his mental state. While that no doubt was true it does not establish the words were not said. I find that they were, although neither of Glen's sons accepted that the words were said. 21 The evidence of Lindin was somewhat confused but he did say in oral evidence in chief he remembered Russell coming up from Sydney after he got a copy of the 1977 will and that the plaintiff was present. He said that Russell had papers to be signed. In cross-examination there was a suggestion that the daybook entries were not always made on the dates which they bore and were not always true. So far as the particular entry is concerned I find that it was made on the date it bears and that it sets out the conversation heard. Although his evidence was extremely confused, it was to the effect that there was only one occasion after the 1977 will was discovered that Russell went up to Fairview prior to the court case. 22 Mrs Valerie Smith is the wife of Lindin. She collapsed during the time she was giving evidence in the witness box and had to be taken to hospital. Cross-examination had not concluded at that time, but, on the basis that I would assume that she would deny some matters which might have been put to her, an adjournment to enable further cross-examination to take place was not sought. She gave somewhat confused evidence of two meetings in November 1983 at Fairview at which she and her husband, Russell and the plaintiff were present. She said that the 1977 will was shown by Lindin to his sons in her presence. In the affidavit evidence she had said that there was a conversation to the effect that the testator would not have been able to make a valid will in 1977 and that Russell had said, "It is very tempting but it is not right to accept the will" and that she had said, "That will is not fair to Lindin. He has done all the work". She said that somebody had said, "There is no point in arguing this will in court." She said that she was present at Fairview with her husband, Russell and the plaintiff when the Hunt and Hunt document was signed. She said that Russell had said to the plaintiff words to the effect, "You will need to sign this so I can have solicitors act for both of us". While her evidence was somewhat confusing I accept her evidence that there were the two meetings and the general thrust of the evidence. I also accept her evidence that the 1983 proceedings were discussed during the lead up to the hearing on many occasions with family members including the plaintiff. She denied that the September 2002 conversation, which the plaintiff said took place on his side verandah, took place. She said there was a conversation in February 2003 with Kathy (the plaintiff's wife) about transfer of the farm at which Kathy said, "Glen said you stood over him to get him to sign the court documents", to which she had replied, "I did not stand over him, I'm not that type of mother. I would have said it is the correct thing to do." This evidence was given without objection. If true it is against the plaintiff. 23 There is some further evidence which might have some slight bearing on this matter. In a bill of costs prepared by Mr McMahon there is an entry of a telephone attendance on the plaintiff just prior to the court proceedings at the same time as attendances were made on a number of other persons who were obviously going to be required to give evidence in those proceedings. As I have said the plaintiff denies that he ever received a telephone call from Mr McMahon and Mr McMahon cannot swear that he did. All he can say is he would assume that if he put that entry in the bill of costs it was correct, but it could possibly have been that he attempted to contact the plaintiff but failed to do so. There are some further entries in bills of costs about attendances on Messrs Hunt and Hunt who were acting for one of the beneficiaries under the 1977 will but I do not think that much turns on that. 24 Generally speaking the plaintiff denies the evidence of the defendants and their witnesses to which I have referred. He was not really able to give any explanation of the claimed hay shed conversation with his sons when confronted by the daybook entry. The sons both gave evidence by audio link. Luke Will-Smith denied the words were said. His brother, Justin Beau Smith in affidavit evidence denied the words were said but in cross-examination stated that he just did not remember. Both were young at the time. Decision on facts 25 This is an rather extraordinary case. Either the plaintiff and his wife have made up a story or for some reason have convinced themselves that what they say is true, or Lindin, Russell, Mrs Smith and Mrs Langford are all giving an untrue version of the facts and, on the plaintiff's claim, Lindin and Russell have acted fraudulently so as to ensure that he was not able to take any part in the 1983 proceedings. The only basis suggested for such a fraud was that the plaintiff, who was apparently quite friendly with his grandfather, would wish to propound the 1977 will and claim that the testator had capacity at the time the will was made. It is fair to say that none of the witnesses was obviously a liar. So far as Lindin is concerned, while he is clearly an irascible man, I have found that his daybooks are genuine and a proper record of what took place. So far as Mrs Langford is concerned, even on the plaintiff's evidence she repeated what she had said in the affidavits about what she heard beside the cars when the plaintiff went to visit her in 2006. 26 The entry in the bill of costs prepared by Mr McMahon is of some significance. While it is possible that he did not speak to the plaintiff, it is at least probable that he did and that the plaintiff was one of a list of witnesses expected to give evidence. It is quite unlikely he would have telephoned unless he knew or he had been told that the plaintiff knew of the 1983 proceedings. It is almost impossible to believe, considering the way in which this family operated and bearing in mind the fact that as Mrs Smith said her husband talked about practically nothing else, that the proceedings could have been hidden from the plaintiff and that nothing was said about them prior to the hearing or afterwards in his presence. It is important to remember that there was no reason at all to hide them, at least before the 1977 will came to light. I also accept the evidence of the document being required by Messrs Hunt and Hunt to be signed by the plaintiff and its being signed by him. It could only have been in regard to his representation. The Hunt and Hunt file has been destroyed. 27 It is always difficult to make a finding in circumstances such as this. I consider that on the balance of probabilities the plaintiff was aware of the proceedings and authorised his brother to make the necessary arrangements for his representation by Messrs Hunt and Hunt on the basis that he and Russell would not seek to uphold the 1977 will. At the very least he has not discharged the onus of establishing the fraud alleged. It follows from this that unless the final arguments, to which I will now come, succeed then the plaintiff is bound by the 1983 orders and by the grant in solemn form of the 1969 will. 28 I should add that while in some way Miss Gailey was an obvious witness for the defendants it was accepted her evidence would go only to practice. Is a submitting defendant bound by orders made as a result of a compromise rather than as a result of a judgment after completed hearing? 29 In his careful arguments in opening and in his closing submissions, Mr M J Neil QC, senior counsel for the plaintiff, put forward the proposition that while a person standing by with knowledge of proceedings might be bound by a grant in solemn form made by a judge at the end of a contested hearing, that was not the position where orders were made by consent as in this case. He said that the same position applied where a submitting appearance had been filed. As I have found that the plaintiff did consent to his brother making arrangements for their joint representation in those proceedings and that they would support their father's claim for probate of the 1969 will, I proceed to consider the effect of the submitting appearance so far as the claim that the plaintiff is bound by the grant in solemn form is concerned. 30 The form of appearance filed by Messrs Hunt and Hunt on 2 December 1983 was in the following form: Russell Smith of 164 Carpenter Street, St Marys, Nurse and Glen Smith of 20 O'Brien Street, Gateshead West, Clerk appear and submit to such order as the Court may make.

That was not a form of appearance which was authorised by the Supreme Court Rules in 1983. Neither for that matter was it in a form authorised by the amendment made in 1991 but that does not matter. There is an interesting discussion on the question of and history of appearances and submitting appearances in Trust Co of Australia Limited v Perpetual Trustees W A Limited (No 2) (1995) 36 NSWLR 654. It was certainly never intended that the appearance was a submission to the whole of the plaintiff's claim which after all was for a grant of probate of the 1978 will. The appearance should be read as a submission to whatever orders the court would make on the claim and cross-claim. It is to be remembered that the claim was dismissed. 31 The principal cases upon which Mr Neil founded his argument were Wytcherley v Andrews (1871) LR 2 PD 327 and Ritchie v Malcolm 2 IR 403. In the first of these cases an executrix of a will who had obtained probate in common form was cited by one of the next of kin to bring it in and to prove it in solemn form. The defendant next of kin then pleaded lack of due execution, incapacity and undue influence and the matter came on for trial before a jury, but was settled by a somewhat suspicious compromise on the basis of payment by the executrix of the costs of the opponent next of kin. The court then by consent pronounced for the will. Subsequently a sister of the next of kin defendant cited the executrix again to bring in the probate and show cause why it should not be revoked. This new plaintiff had been aware of the earlier proceedings and had an opportunity of appearing in them as an intervenor in contesting the will. Lord Penzance held while it was the position that persons, whether cited or not, who had knowledge of probate proceedings and stood by without seeking to intervene were bound by the result of the proceedings, that was not the case where there was a compromise of those proceedings. He said at the end of his judgment on page 329:- A bargain only binds those by whom it is made. Persons who are willing to stand by while a contest is going on are bound by the decision of the Court, but they are not compelled to abide by a compromise, when no decision is in fact come to by the Court. 32 The second case Ritchie v Malcolm was to much the same effect, although in that case the person seeking to revoke the grant in solemn form was one of the next of kin who was not a defendant in the actual proceedings but who had been cited to see them. Once again the original proceedings had been compromised by payment to those next of kin who had been joined as defendants but without any payment to other next of kin. The trial judge held that the principle in Wytcherley applied whether the person sought to be bound by the result of the first action had been cited to see the proceedings or not. In a passage commencing on page 409 in which the punctuation of the second sentence would defeat even the best efforts of Mr Justice Powell when Probate Judge, the following appears: This citation fixes the person cited with knowledge of the existence of the action. Where there has been no citation such knowledge must be otherwise proved; but no case has been referred to, and I am aware of no case which decides, or even countenances, so far-reaching, and, as I think, so startling a proposition as this, that although a person cited is not bound to appear, and is cited, as I hold he is, to see a trial, and not some possible compromise, of which he has no knowledge, between the parties to the action, he is, nevertheless, bound by the result of the trial, though brought about by a compromise to which he was no party, and of which he knew nothing. 33 It seems to me that, however far that principle could be stretched, it could not be applied in the present case where a person joined as a defendant has filed an appearance, whether submitting or not. According to the judge's record a submitting appearance had been filed and the submitting defendants had been excused from further attendance. Nevertheless they remained parties. Had they filed an ordinary appearance and not appeared at the trial of which they had notice, they would have been bound. On the evidence as I have found it they obtained the result they wanted in that they were happy that the 1969 will be proved. The true position was that although the plaintiff and his brother did not appear at the trial, they had taken a decision not to propound the 1977 will, it being the only one under which they had any interest. They had an opportunity but for good reasons did not seek to avail themselves of it. 34 I did express the view, during submissions, that a decision to the effect that submitting defendants were not bound by compromise agreements of contesting parties on the actual issues for trial, would be quite contrary to what I considered to be the basis upon which this Court has proceeded for many years. Nevertheless I have not determined this issue on the basis of such practice but on what I understand to be a proper application of the principles. Further it is clear the validity of the 1977 will was in issue in the action even if not propounded. There was evidence which at its lowest must have cast doubt on capacity in 1977. Orders for grants in solemn form in this State are not usually made simply as a result of a bargain but on the basis of at least some evidence justifying the orders made, at least where a later will is pronounced against. That is partly because the grant is a judgment in rem and partly because the document before the court is that of the testator, not of the parties to the compromise: Estate of Muirhead (1971) P 263 at 265 so that "[t]he consent of parties interested proves nothing; no person's consent can make a will no will"; In the Goods of Watts (1837) 1 Curt 594. These two cases were cited by Powell J in two unreported decisions given on 9 August 1991. In the first Estate of Clarence Gilbert Alcorn, there was evidence casting doubt on the later document; in the later one Withers v Graham re Estate of Colin Glen Graham there might have been less doubt, but the person having the right to propound it, being joined as a party, did not do so. Powell J held that in such a case what he called the very limited exception to the general principle that evidence was required to justify the passing over of a later document; applied: that exception being when the persons entitled to propound the later document were parties to the proceedings, but took no action to propound that later will. In this he followed Morton v Thorpe (1863) 3 Sw & Tr 179; 164 ER 1247. Strictly speaking that exception could apply to the instant case, but there was evidence which would justify the court passing over the 1977 and 1978 wills. Result 35 The result of these findings is that the answer to the separate question must be that the plaintiff is bound by the settlement and the orders made for a grant in solemn form of the 1969 will. The answer to that question determines the proceedings so that final orders should be made as follows:

Answer the question - whether the plaintiff is bound by the settlement of and orders made by Mr Justice Holland on 15 December 1983 in proceedings 91 of 1982? - the plaintiff is bound.

Order that the plaintiff's claim be dismissed and there be judgment for the defendants.

Order the plaintiff pay the costs of the defendants.

The exhibits may be returned after 28 days if no appeal is lodged. **********

27/02/2007 - Correction of name of junior counsel for the plaintiff from Burton to Benson - Paragraph(s) Coversheet

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