The Estate of Irene Elizabeth Dampf (in the Will called Irene Dampf) late of North Narrabeen v Richard Dampf & Anor

The Estate of Irene Elizabeth Dampf (in the Will called Irene Dampf) late of North Narrabeen v Richard Dampf & Anor - [2010] NSWSC 619 - NSWSC 2010 case summary — Zoe

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2008/292168 The Esate of Irene Elizabeth Dampf (in the Will called Irene Dampf) late of North Narrabeen v Richard Dampf & Anor JUDGMENT The proceedings 1 The sole issue in the proceedings is whether on 22 June 1999 the late Irene Elizabeth Dampf ("the deceased") who died on 15 September 2006 signed her last Will bearing the date 22 June 1998 ("the Will") in the presence of Hanz Czajkowski (also known as Hans Johannes Czajkowski and/or Johannes Czajkowski) and Christina Dixon (also known as Tina Dixon and/or Christina Czajkowski and/or Tina Czajkowski) who were present at the same time and who attested and signed the same in the presence of the deceased. 2 On 26 January 2008, the plaintiff, Stephen Dampf, who [following the renunciation of probate by Mr Alexander Mijovich] is the sole executor appointed under the Will, filed a Summons and supporting affidavits both sworn 26 January 2008 seeking a grant of probate of the Will in common form. 3 No such grant was made by reason that on 6 February 2008, the Principal Registrar issued a Requisition notifying the plaintiff that on 7 December 2007 a caveat had been filed in the Registry. That caveat (No. 121372/07) had been filed on behalf of the first defendant, Richard Dampf, requiring proof of the Will in solemn form. 4 On 11 August 2009, in accordance with directions made by the Registrar on 27 July 2009, the plaintiff filed the Statement of Claim in the present proceedings in which he is seeking a grant of the Will in solemn form. 5 The only issue taken by the defendants is as to whether the deceased had attested and signed the Will in the presence of Hans Czajkowski and Christina Dixon who were present at the same time. 6 On 30 June 2008 the Registrar noted that the defendants were no longer maintaining their allegation that the deceased lacked the requisite testamentary capacity at the time she executed the Will, and it was further noted by Nicholas J on 24 February 2010 that the only live issue between the parties was that of due execution (see Judgment dated 24 February 2010 at [6], no. 2010/39095). Indeed, having filed a Caveat requiring the Will to be proved in solemn form pursuant to SCR Pt 78 r 62, the caveators are only entitled to cross-examine the attesting witnesses - see Azzopardi v Smart (1992) 27 NSWLR 232 at 236-238. 7 By Summons filed 12 February 2010, the plaintiff sought leave under s.4 of the Felons (Civil Proceedings) Act 1981 to continue the application made by him for a grant of probate in solemn form of the deceased's Will. This application was listed by Nicholas J on 24 February 2010 and he, on that date, ordered that leave be granted to the plaintiff nunc pro tunc to commence and continue the probate proceedings - see Application of Stephen Dampf 2010/39095 (unreported). 8 In Azzopardi v Smart (1992) 27 NSWLR 232 at 236 - 238 Powell J had occasion to examine the authorities and observed as follows:

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The caveator should, if he so desired, have taken the course of fighting the question of incapacity at his own risk as to costs; he cannot now be allowed to raise the question." Later, when dealing with the question of costs, his Honour said (at 169;52): "It may be that the practice laid down by the rules creates a little difficulty, and that, even where a person merely wants proof in solemn form, it is necessary to lodge a caveat; but in such case the caveator should give notice to that effect in or together with his caveat. The absence of such notice leads the executors into expense which is quite unnecessary; they obtain a rule nisi, affidavits are filed by both sides, there is a motion for a rule absolute, and, if a prima facie case is made out, the matter is ordered to proceed as a contested cause, and then a statement of claim is filed. Not till then does the caveator show his hand. Such a practice cannot be allowed, because all the costs up to that point would have been incurred unnecessarily through the caveator not having taken steps to inform the executors that he only wanted proof in solemn form. The caveator is, therefore, entitled, out of the estate, to his costs as of an application to prove the second codicil in solemn form; but he must pay all further costs incurred by the executors by reason of the filing of the caveat." Although, in the first of his judgments in Beatson v Perry , Walker J referred to the "dearth of authority" on the question, it should be noted that, in the course of the judgment delivered by him in Hay v Simpson (1890) 11 LR (NSW) Eq 109 at 114-115), Manning J said: "… In this case it is true the opponent of the Will can claim more latitude, for he is one of the next of kin, and the next of kin have a right to have the Will proved in solemn form, that is, per testes and in open Court, though I think that even next of kin must shew some small justification for doing so - for instance, they may use their right by unreasonable delay. However, there is no doubt that as a general rule they may claim to have the Will proved in solemn form at the cost of the estate, but they must go no further than that; they must not put the estate to additional expense, they cannot fire off two barrels at once, and, because there was only one report, say that there was only one barrel - they must in fact say, and clearly say, that proof in solemn form is all they require, notwithstanding the fact that there is here no rule of Court to compel them to do so, and they must not file an ambiguous plea, keep to themselves what they really intend, and then, when all hope of succeeding on the other issues has failed, say that all they wanted was a proof in solemn form. In cases of this kind the general practice is that the plaintiffs prove the Will, and perhaps give evidence as to the circumstances attending the preparation of the Will as well as its execution, leaving the respondents to go into their case and turn back upon the plaintiffs the onus of proving the soundness of the testator's mind; but there is nothing whatever to compel the plaintiffs to take that course, and it is clear that counsel for the plaintiffs would never take the course of going fully and elaborately into evidence of a testator's capacity if they were merely called upon to give roof in solemn form." Finally, I record that, in the course of his judgment in Hughes v Public Trustee (Court of Appeal, 19 August 1980, unreported) Hutley JA (with whom Hope JA and Glass JA agreed) said: "The caveat also required that the Will be proved in solemn form. That, according to my understanding of the practice in New South Wales until the Supreme Court Act 1970, came into force, only entitled him to cross-examine the attesting witness. I know of no change brought about in this practice by the Supreme Court Act or the rules, and counsel were prepared to concede this." As is apparent from the second of the judgments delivered by Walker J in Beatson v Perry , if one seeks to raise a ground of invalidity other than want of due execution, one is required to file, not, a caveat requiring only proof in solemn form, but, a general caveat, and, further, one is required, on the return of a summons for an order that the caveat cease to be in force, to be in a position then to tender evidence raising at least a prima facie case of the ground of invalidity relied upon, in default of which the order will be made, with costs against the caveator: see In the Will of O'Driscoll (1929) 29 SR (NSW) 559; 46 WN (NSW) 176. 9 I do not understand these expressions of principle have been overruled since that point in time 10 It is also pertinent to refer to UCPR, Part 78 Rule 15 which is in the following terms:

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I paused to note that even if both attesting witnesses deny due execution, they may be contradicted by other evidence so that the Court may, nonetheless, be satisfied of due execution - per Brereton J, Burnside v Mulgrew, ibid at 15; Owen v Williams (1863) 32 LJPM & A 159. Accordingly, the evidence of an attesting witness to a Will is not necessarily conclusive: Williams J in Vere-Wardale v Johnson [1949] P 395; and see also Nicholas v Penn [2004] WASC 227. 22 At common law, there is a rule that where an attesting witness to a Will is called by the executor, the latter may cross-examine the attesting witness, whether hostile or not, because the witness is the Court's witness - In re Brock; Jones v Jones (1908) 24 TLR 839; Hartley v Fuld; In the Estate of Fuld, dec'd [1965] P 405; and see also Oakes v Uzzell [1932] P19. Statutory provisions (viz Evidence Act, Chapter 2, Part 2.1, Division 5) have not amended or affected this rule. The conflicting evidence 23 Whilst it is true that the evidence given by the plaintiff departed from the evidence given by those who attended Court by reason of subpoenas served upon them, having closely heard each of these witnesses, it is plain that the plaintiff has established that the last Will bearing the date 22 June 1998 was signed by the deceased in the presence of Mr & Mrs Czajkowski who were present at the same time and who attested and signed the same in the presence of the deceased. 24 The plaintiff for his part recalled taking his mother from her home to the Roseville residence of Mr & Mrs Czajkowski. 25 On the other hand, Mr & Mrs Czajkowski recalled that the Will signing took place at their home in Bondi Junction. 26 These differing recollections whilst somewhat puzzling, may be explained by the passage of time. The absolutely crucial matter from the Court's prospective is that each of the witnesses who have given evidence was quite clear in their evidence that they were present at the same time when the deceased signed the Will. 27 Ms Czajkowski was quite clear in recording that the deceased was present when she and her husband in her presence signed the document; that was the only document each of them ever witnessed for the deceased. Each was present when the other signed. 28 Whilst it is true that the evidence given by Mr Czajkowski was given from time to time in somewhat stilted fashion, he materially gave evidence as follows.

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