The Public Trustee v Permanent Trustee Co Ltd; Estate of Rintoul

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

100288/97 - THE PUBLIC TRUSTEE V PERMANENT TRUSTEE COMPANY LIMITED; ESTATE OF MEH TIAP RINTOUL

1 HIS HONOUR : Meh Tiap Rintoul died on 24 August 1992 in the Gosford District Hospital. She died suddenly, as a result of an accident. Her last address was 366 Ocean Beach Road, Umina. 2 Mrs Rintoul had been married to Robert Humfrey Rintoul who died on 24 December 1978. According to Mr Rintoul's death certificate, he was born in Scotland and married Meh Tiap Rintoul in Malaysia in 1947 and was a solicitor by occupation. He had moved to Australia in 1968. 3 Mr Rintoul was a partner in a law firm in Kuala Lumpur, Shearn Delamore & Co. The firm is still practising in that city. 4 Mrs Rintoul died with assets in Malaysia and Singapore as well as assets in NSW to the value of about $1.2 million. 5 On 25 August 1980, Mrs Rintoul made a will, probate of which was granted in common form to the defendant on 28 October 1992. 6 On 19 July 1994, the High Court of Malaysia granted probate to Dato Khoo and Dato Kandan, two Malaysian attorneys, partners in Shearn Delamore & Co, the probate being of a will of Mrs Rintoul dated 22 February 1989. 7 It would seem clear that although Mrs Rintoul lived permanently in Australia she did, from time to time, visit Malaysia and she was in Malaysia between 7 January and 24 February 1989. 8 Upon the defendant becoming aware of the will of which the Malaysian court granted probate, discussions ensued amongst the beneficiaries under the two wills. Following the failure of those discussions the Public Trustee commenced these present proceedings on 10 January 1997. The proceedings are for revocation of the common form grant and for a grant of administration cta of the will of 22 February 1989. 9 Although at one stage capacity was at issue, Mr Harris of counsel, who appeared for the defendant, indicated that after due research that defence had been abandoned so that the issues before me are due execution and knowledge of approval in respect of the 1989 will. 10 Mr Blackburn-Hart, for the plaintiff, said that his application was made under s 75 of the Wills Probate and Administration Act 1898, or alternatively, under s 74. 11 Section 75 is a rather peculiar section. It first came into the law of NSW as s 46 of the Probate Act 1890. Its genesis is the Victorian Probate Act 1872. This Victorian Act was one of the first secular Probate Acts and at least in part, sought to introduce more straightforward procedures than those used in the ecclesiastical courts in England. 12 On a literal reading of the section, the Public Trustee or any other person referred to in the section, might obtain an order that probate be granted to the executor named in the will despite the opposition of that executor. That cannot be what the section means because it was obviously intended to be a procedural provision and in no way to affect one of the primary rules in probate that an executor cannot be forced to take a grant (see Williams and Mortimer, Executors Administrators and Probate (Stevens, London, 1970) p 34). What the section does mean is that the Public Trustee or other named persons may commence proceedings in which the named executor is a party to give that person one last chance of taking the grant, but the court cannot make an order that that person be granted probate without his or her consent. If there is no consent, then the order that must be made is for administration with the will annexed to be granted to the applicant or some other appropriate person who is a party to the proceedings. 13 There is no problem with an application under s 75 in the instant case as of the two Malaysian executors named in the will, one has died and the other is quite content for the Public Trustee to take a grant, he himself saying that he took on the executorship out of respect for the late Mr Rintoul and has no particular desire to take Australian administration. 14 As the case falls within s 75, it is unnecessary to consider s 74. 15 The will was prepared by Shearn Delamore & Co. Exactly how it came to be prepared is unclear but a number of the details leading up to the execution appear from the evidence. 16 It would seem that at the time the 1989 will was made, Mrs Rintoul was having some difficulties with her daughter Margaret, who is now deceased. She called in at Shearn Delamore & Co and spoke to Dato Khoo, one of the senior partners. Dato Khoo (who is now deceased) made an affidavit in these proceedings stating that the testatrix told him about her problem with Margaret and said that she would like to make a new will. Dato Khoo said "The deceased then proceeded to discuss with me her thoughts and intentions in words the exact nature of which I do not recollect. In turn I told her that I would introduce her to other solicitors in our office who worked in that area, namely Mrs Petrus and Miss Goh Bee Chen of that section in our office." 17 Dato Khoo said that Mrs Rintoul did speak clear coherent English and he conversed with her in English, Malay and the Hokien dialect of Chinese, all of which she understood well. Goh Bee Chen (Dr Goh) is now an academic lawyer teaching at Bond University in Queensland. Dr Goh filed an affidavit and also gave oral evidence. She said that Shearn Delamore & Co was organised into various departments and one department over which a senior partner, Mrs Menon, presided dealt with conveyancing, banking, probate and administration. The principal work done by the department appears to be mortgage debentures, but some probate work was done. Dr Goh said that she had only ever drafted one will, but that she had been called in on many occasions to be the second witness to a will. 18 I recite this evidence at this stage because it does seem to me that it is probably reconstruction on Dato Khoo's part that he introduced the testatrix to Dr Goh. Dr Goh was principally working on banking documents rather than probate. It seems to me more likely than not that Dato Khoo merely mentioned Dr Goh because she was one of the witnesses of the will. 19 This is reinforced by a letter of 16 September 1997 which Dato Khoo wrote to Dr Goh (PX09). It would seem that Dr Goh had been asked to file an affidavit in these proceedings and she wrote to Dato Khoo to the effect that she really couldn't remember anything apart from the fact that her signature clearly appeared on the will as a witness. In PX09, Dato Khoo wrote "I knew Meh Tiap well and recall discussing the details of this will with her before asking Shantini to do the Will as referred to for execution". The letter was written about four months before Dato Khoo swore his affidavit. 20 Mrs Shantini Petrus swore an affidavit and also gave oral evidence. She is still practising in Malaysia as a lawyer. She said that she could not remember anything about this will at all, but she obviously had signed it as a witness. She had dated the will. This was significant because Dr Goh said the only will that she had ever drawn she, Dr Goh, had dated herself, and as her handwriting was not in the date section, she was fairly clear that she had not drafted it. 21 Mrs Petrus said that it was her standard practice to read over the will line by line to the testator and then when she was satisfied that the testator understood it, call in a second solicitor from the firm to witness the will. Mrs Petrus was trained in England and had been with the firm for a few years, though at the time the will was drawn had relatively recently been assigned to Mrs Menon's department. Mrs Petrus said that she could speak some Bahasa, but not enough to converse with a client. She said her practice was, whenever the client was not well versed in the English language, to call somebody from the firm who could speak the client's language to help her explain each line of the will to the client. 22 Mrs Menon gave evidence both by affidavit and orally. She said that it was her custom to train the lawyers in her department in the procedures for executing a will and that training included telling the solicitors in her section to read the will out aloud to the client, to ask whether he or she understood it, and to ask whether it complied with his or her wishes and instructions. Where a will was prepared for an illiterate testator, it was always to be read to them fully in the language in which they were conversant. An interpreter would be called in on occasions when the drafter was not conversant in the language of the testator. 23 Dr Goh, Mrs Petrus and Mrs Menon were all cross examined before me and all appeared to be competent, intelligent lawyers of the highest integrity. 24 Although none of the lawyers could remember who drafted the will, it seems to me more likely than not that its was Mrs Petrus. Dr Goh did not believe she had drafted it as she had not dated it, Mrs Petrus was more involved in the probate side of the department than Dr Goh, Mrs Petrus had dated the will and Dato Khoo remembered referring the will to Mrs Petrus in his letter to Dr Goh. Mr Harris puts that anyone could have drafted the will. It may have been another lawyer altogether. That is certainly a possibility, but when one is looking at what is more likely than not, in my view it is more likely than not that Mrs Petrus drafted the will. 25 Mr Blackburn-Hart notes the evidence that the 1989 will was found in the safe deposit box of the testatrix on her death. He says that this is the very place one would expect the testatrix to put a document which she considered to be her last will. This adds to the strength of the presumption of due execution: see Hendy v Jenkins (1901) 18 WN (NSW) 140, 143 and 145. 26 Mr Blackburn-Hart says that the case is clear. The testatrix went to the firm with which her husband had been associated, she gave details of the will she wanted to Dato Khoo, she was introduced to the people who normally drafted wills in the firm, the will was drafted for her, it was read over and explained to her by Mrs Petrus in accordance with her usual practice, and then witnessed before two solicitors. Finally, it was found in the testatrix's safe deposit box on her death. 27 Mr Harris says that the case is not that simple, and indeed, when the evidence is properly examined, it will be seen that this is a case where the plaintiff has not shown that this is a will which was duly executed by a testatrix who knew and approved of what was in the will. 28 To support his submission, Mr Harris relies on a number of factors. First he says that the testatrix was unable to speak English to any real extent. Secondly, she could not read nor write English. Thirdly, her vision was very poor. Fourthly, the will shows mistakes which would almost certainly have been corrected had it been read over to her. Fifthly, there is some suggestion that the testatrix intended to deal with her real property in Umina by giving it to her daughter which did not make its way into the will. Sixthly, evidence as to Mrs Petrus' usual practice must take a secondary role in the light of the other factors. 29 It is certainly true that the testatrix could not read nor write English. However, on the balance of probabilities, she was able to speak English and to understand spoken English. Although there is some evidence the other way, the preponderance of the evidence points in this direction. In particular, Dato Khoo said he had had no difficulty in understanding the English that the testatrix spoke, though some of his conversations with her were in other languages, but more significantly, two Australian ladies who lived near the testatrix at Umina spent time conversing with her and had had no difficulty understanding or being understood, even though they did not speak a word of any other language. The evidence of these ladies, Mrs Pierce and Mrs Harrison, was clear and obviously truthful. Dr Mala, the testatrix's doctor, a lady of Indian origin whose first language is English, also had no difficulty in understanding the testatrix who was her patient over many years. 30 It is true that the testatrix had limited vision. She had had an eye operation on one eye about the relevant time and there were problems with the vision in the other eye. As, however, the testatrix could not read English in any event, I cannot see how this is a relevant factor in the case. 31 The principal mistake to which Mr Harris alludes is that the will suggests that the testatrix owned "my house known as No 24 Harriet Street, West End, QLD Brisbane" whereas in fact that house was owned by the testatrix's daughter Margaret (the testatrix purported to give the house to Margaret by the will). 32 There is some basis for the submission that the testatrix might have thought she owned the property, but it is more probable that there was a breakdown in communications between the testatrix and the drafter of the will. This is a significant matter. 33 There is another matter concerning the text of the will which is unusual. The residuary gifts in clause 5 of the will are to "(i) the Cancer Hospital in Sydney, Australia, (ii) the Presbyterian Church in Sydney, Australia (iii) the Tuberculosis Hospital in Sydney Australia". 34 The 1980 will contained a gift to the NSW State Cancer Council. The thought crossed my mind that the word "Hospital" in the first residuary gift might have been a result of mishearing the word "Council" and this might be significant. However, I discarded this thought as mere speculation. 35 The fact that two of the three organisations given residuary bequests are so vaguely and inexactly named excites suspicion that there was insufficient checking and that the testatrix did not understand what was read over to her, if indeed anything was so read. 36 Of course, these errors can be explained on hypotheses other than that the will was not read over to the testatrix as claimed by Mrs Petrus. As Mr Blackburn-Hart said in his submissions, there is many a will which was properly executed but in which the charities are misdescribed. However, the mere fact that the mistakes were made is a fact against there being knowledge and approval. 37 The 1980 will gave the Umina property to Margaret. The omission of any reference to it in the 1989 will is a little unusual as it would appear to be the testatrix's most significant asset. However, as she was in some dispute with her daughter Margaret, to whom this property had been left in the 1980 will, the omission is not so singular as to cast doubt on the 1989 will. 38 These submissions then throw up a point on the onus of proof which was debated at some length before me. Mr Blackburn-Hart says that it is not uncommon for the witnesses to the will not to remember anything about it and this is a fortiori the case when the will is prepared by solicitors in a legal office who have no connection with the testatrix other than a professional one. On the other hand, Mr Harris says that the rule clearly is that where there are suspicious circumstances, the person propounding the will must actually prove that the will is that of a testatrix who knew and approved its contents when she executed it. 39 I was referred to some leading cases in the area. In Nock v Austin (1918) 25 CLR 519, 528, Isaacs J set out various general propositions that apply in this area of the law. Omitting references to authorities, the relevant propositions were as follows:

"1. In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents.

2. Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.

4. The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will.

5. But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification.

6. Nor does the rule require as a matter of law any particular species of proof to satisfy the onus." 40 Mr Blackburn-Hart emphasises proposition 5 in Nock v Austin. The rule only calls for vigilance. 41 Mr Blackburn-Hart relied on Re Fenwick [1972] VR 646 where at 651-5, Menhennitt J sets out the basal propositions. His first and fifth propositions are:

"1. The due execution of a will raises a presumption that the testator approved of its contents.

5. Where it is established that a will has been read by or to a testator, the presumption that the testator knew and approved of the contents of the will is a very strong one and can be rebutted only by the clearest statement." 42 Proposition 5 in Re Fenwick is supported by Gregson v Taylor [1917] P 256, 261. Menhennitt J made it clear that "clearest statement" was not as high as "beyond reasonable doubt". 43 There are a host of cases in this general area of the law. There is no need to consider them all. I will merely mention that Mr Blackburn-Hart did rely on the way Helsham J stated the law in Astridge v Pepper [1970] 1 NSWR 542. 44 In Re Estate of Hodges (1988) 14 NSWLR 698, 705, Powell J set out various propositions applicable in this type of case, propositions 9 and 10 of which are as follows: "9. Unless suspicion attaches to the document propounded, the testator's execution of it is sufficient evidence of his knowledge and approval; 10. Facts which may well cause suspicion to attach to a document include: (a) that the person who prepared, or procured the execution of, the document receives a benefit under it; (b) that the testator was enfeebled, illiterate or blind when he executed the document; (c) when the testator executes the document as a marksman when he is not." 45 There was argument that Powell J's proposition 10(b) meant that whenever one had an illiterate testator one had circumstances of suspicion and therefore there was a heavier burden on the propounder. 46 With respect, I do not consider that that submission is correct. 47 The authorities referred to by Powell J in connection with his proposition 10(b) are Tyrrell v Painton [1894] P 151 and Kenny v Wilson (1911) 11 SR (NSW) 460, 469. 48 In Tyrrell's case, Lindley LJ said at p 157 that the rule that the court must examine wills made in suspicious circumstances "is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court ...". 49 In Kenny's case, as shown in the judgment of Rich AJ at p 469, there were a multitude of factors leading to suspicion including the age and moribund condition of the deceased, death supervening within six hours after execution as well as being executed by the deceased as a marksman although he was not a marksman. 50 Lindley LJ's statement in Tyrrell's case was examined by Willmer J in Re R [1951] P 10, 17. His Lordship there said of Tyrrell's case "Lindley LJ however, went on to make it clear that the circumstances to which he was referring must be circumstances attending the preparation or execution of the will ... ." Willmer J said that the real principle is summed up in the judgment of Davey LJ in Tyrrell's case at p 159 viz, "the principle is, that whenever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the court ought not to pronounce in favour of it unless the suspicion is removed." 51 Willmer J then summarized the law by saying, "The conclusion which I draw from these authorities... is that, when it is a question of knowledge and approval of the contents of a will the circumstances which are held to excite the suspicions of the court must be circumstances attending, or at least relevant to, the preparation and execution of the will itself." He said that this view was confirmed by Davis v Mayhew [1927] P 264, where, in the words of Willmer J "...it was held that a suspicion engendered by extraneous circumstances, arising subsequent to the execution of the will, was not a sufficient reason for rebutting the presumption of due execution of a will regular upon its face." 52 Re R is also authority for the proposition that the circumstance that the deceased was a person of weak mind does not in itself amount to a circumstance to arouse suspicion, see p 15 and also Barry v Butlin (1838) 2 Moore PC 480, 487; 12 ER 1089, 1092. 53 Mr Harris cites the New Zealand case of Re Clayton (1906) 8 GLR 516 for the proposition that the mere fact of illiteracy is sufficient to arouse suspicion. However, in that case, there was more than mere illiteracy to indicate that further enquiry was needed. Clayton's case is based on a passage from Tristram and Coote's Probate Practice which in turn comes from Rule 71 of the English Probate Rules of 1862 (see Tristram and Coote, 19th ed (Butterworths, London, 1946) p 946). There is no corresponding rule in NSW. 54 It thus seems to me that the mere fact that the testatrix was illiterate is not a circumstance which by itself would arouse suspicion. 55 However, the combined effect of the illiteracy, the fact that the attestation clause does not mention that the will was read over, the mistake as to the Brisbane house and the vague names given to the residuary beneficiaries indicates that there could well be insufficient checking between the time of the instructions and the time of execution. This in turn means that the court should examine the validity of this will more closely than others where there was nothing at all to excite suspicion. 56 Putting those thoughts aside for a moment and turning to a different matter, the fact is that probate was granted of the 1989 will in Malaysia and the Malaysian probate was resealed in Singapore. 57 There is some difficulty in determining where the testatrix was domiciled. There are insufficient facts to make the determination and it is unnecessary to do so in any event. The testatrix had lived in Australia for many many years and would appear to have made Australia her permanent home, but on the other hand she did go back to Malaysia from time to time. Malaysia may have been her domicile of origin (Australian certainly wasn't) and there is some indication in the evidence that she told her Brisbane solicitors that she would go back to Malaysia one day. In appropriate circumstances such a statement may bring about the situation where the domicile of origin applies; see Chen Chow v Chen Chow (1911) 11 SR (NSW) 529. I note in passing that in the document recording resealing by the Singapore court, it is recorded that that court was satisfied that the testatrix was domiciled in Malaysia. It may be (I have not checked on this) that that was a prerequisite to jurisdiction to reseal. 58 Section 32C of the Wills Probate and Administration Act 1898 provides as follows:

"A will shall be treated as properly executed if its execution conformed to the internal law in force; (a) in the territory in which it was executed ...". 59 The question that arises is whether in the circumstances where the High Court of Malaysia has granted probate of a will which was executed in Malaysia it is open to anybody to question the formal validity of the will in NSW. 60 I would note that 50 years ago when Malaysia was part of the British Empire, s 107 of the Wills Probate and Administration Act 1898 would have permitted the Malaysian grant merely to have been resealed. The court would have a discretion as to whether or not it would order a reseal, but generally speaking, this would occur; see Will of Lambe [1972] 2 NSWLR 273. Outside Her Majesty's Dominions, production of the foreign probate seems only to be sufficient proof of death and probably nothing further; see Re Spenceley [1892] P 255. 61 Section 32C is part of the amendments introduced into NSW law following the Hague Convention of 1960 on the conflict of laws relating to the form of testamentary dispositions. Section 32C provides that formal validity by the law of the territory in which it was executed is an alternative to formal validity in the territory where the testatrix at the time of her death habitually resided. The question is whether it is sufficient merely to show that probate has been granted in Malaysia where the will was executed and this precludes all other questions of formal validity. 62 Section 32C only goes to formal validity. The question is whether matters of knowledge and approval are matters of formal validity. Mr Harris submits that reference to section 32C cannot assist as the real question here is essential validity not formal validity. Although it was I myself who raised this question, on reflection, Mr Harris' submission must be correct. 63 Sykes and Pryles Australian Private International Law 3rd ed (LBC, Sydney, 1991) p 754, opine that questions of essential validity, that is, the validity of the act of will-making other than in its formal aspects including mistake, duress, non est factum, are not covered by s 32C but are determinable by the law of the last domicile of the deceased. 64 As I do not know the testatrix's domicile, this causes a problem. However, I can approach the problem by assuming either (a) that the testatrix was domiciled in Malaysia at the relevant time; or (b) that she was domiciled in NSW. If (a) is the case, then the court of Malaysia has already pronounced by its grant of common form probate that it is satisfied inter alia as to essential validity. This would then need to be applied to movables in NSW. If (b) is the situation, then what was decided by the grant in common form in Malaysia and by the reseal in Singapore is of no value at all. 65 This gives rise to the possibility that the 1989 will, the subject of probate in Malaysia, would deal inter alia with immovables in Malaysia as well as movables in Australia and the 1980 will would govern the fate of immovables and movables in Australia. This may lead to a large number of complications because the NSW executors who hold share certificates for Australian shares would probably, if the testatrix died domiciled in Malaysia, hold those shares on trust for the Malaysian executors who would then administer the estate under the 1989 will. 66 Mr Blackburn-Hart said that the solution may very well be that, if the plaintiff loses this case, the defendant would move in Malaysia to revoke the common form grant of the 1989 will in view of the findings in this case. I accept that that may, in a practical way, solve the problem. 67 Thus a consideration of these conflict of law questions does not avoid the necessity of giving a decision on the evidence in this case as to whether, according to NSW law, the testatrix knew and approved of the contents of the will. The fact that probate was granted in Malaysia of this will in common form is not a matter which is a "quick fix" of the problem I have. 68 Returning then to the principal problem in this case, I need to observe that even if there are some unusual factors about the will, the presumption of due execution may still apply though with less force: Re Lucas [1966] VR 267, 270; Re Young [1969] NZLR 454, 458 and Re Unsworth (1974) 8 SASR 312, 319. 69 Thus, the matter is not merely one of choosing between the proposition that everything is free of suspicion (in which case the application can simply be disposed of by applying the presumption of due execution) or the proposition that this is a suspicious case where the court will look closely at all of the material and insist that the propounder (on whom the burden of proof rests) establish the case strictly. 70 For the reasons I have set out, even though there are some odd features about the execution of the will, I still apply the presumption of due execution though with less force. 71 In making my assessment of the evidence, I take into account that the will was prepared by a disinterested person, by a lawyer, it was witnessed by a second lawyer, that each of those lawyers was skilled in the preparation of wills and knew of the proper practice for their execution. I also take into account that although they have no memory of the execution, the probabilities on the evidence are that the lawyers did their job properly. 72 On the other side of the equation, I also bear in mind that the testatrix was illiterate and the attestation clause does not say that the will was read over to her. This fact, of itself, in view of Mrs Petrus' evidence of her normal practice, does not cause me undue worry. The fact is, however, reinforced by the problem that at least two of the charities who were to be the residuary beneficiaries have been described in inexact terms and a mistake was made as to the Brisbane property. Such errors can be explained on hypotheses other than that the will was not read over to the testatrix as claimed by Mrs Petrus.

73 I can see no reason why Mrs Petrus would not adopt the firm's usual practice of reading the will to the testator especially as she was introduced to the testatrix by a senior partner and would probably have considered her to be a special client. 74 I consider that it is more likely than not that Dato Khoo may have imperfectly conveyed to Mrs Petrus the contents of the will and that the latter may have read the will in such a way that Mrs Rintoul did not pick up the major mistake in the document. The testatrix may also have thought that the oddities in the description of the charities were merely matters of legal phraseology. 75 Although my mind has wavered several times, I consider that the presumption of due execution, the fact that the will was made professionally and that it was thereafter retained by the testatrix as a special document outweigh other considerations and that I should grant probate of the 1989 will. 76 Accordingly, I revoke the Common Form Grant of the 1980 will and order the grant Exhibit DX10 to be impounded. I order that the plaintiff be granted administration cta of the 1989 will. I refer the matter to the Registrar to complete the grant. 77 As the problems that have brought about this application are really caused by the testatrix in appending her signature to the 1989 will, I order that the costs of both parties are to be paid out of the estate on the indemnity basis. 78 The exhibits other than the Common Form Probate and the Malaysian Probate of the 1989 will may be returned: there must be liberty to apply. *************

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