Vernon v Watson; Estate Clarice Isabel Quigley dec'd

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

108010/01 - VERNON v WATSON; ESTATE OF CLARICE ISABEL QUIGLEY DECEASED JUDGMENT 1 HIS HONOUR: The plaintiffs seek in solemn form a grant of administration cum testamento annexo in the estate of Clarice Isabel Quigley, who died on 1 July 1999 aged 99 years. Their interest in the estate, which is very substantial, is derivative, they being the persons entitled in the estate of their mother, Doris Eva Read, who was a beneficiary to the extent of approximately one-half of the estate of Miss Quigley under the will they propound. The bulk of the balance of Miss Quigley's estate, by the terms of the same will, which is dated 30 April 1985, would have been left to their father, Francis William Read, a first cousin of Miss Quigley, but for the fact that he predeceased her, with the result that there was a partial intestacy. Opposed to the plaintiffs' suit is another first cousin of Miss Quigley, Mrs Isobel Jane Watson, who had for a long period been associated with her, had provided services for her, and was said to be a significant beneficiary under an earlier will. 2 The central question in the case is whether, and if so how, the validity of the will propounded by the plaintiffs is affected by the doctrine of probate law commonly invoked by the use of the expression suspicious circumstances. The principle relating to suspicious circumstances was stated by a'Beckett J in In re Nickson, deceased [1916] VLR 274 at 281: "There is one rule which has always been laid down by the Courts having to deal with wills, and that is that a person who is instrumental in the framing of a will, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees, who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enough in their case that the will is read over to the testatrix, and that she was of sound mind and memory and capable of comprehending it. But there is a further onus upon those who take for their own benefit after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of showing the righteousness of the transaction: Fulton v Andrews [1875] LR 7 HL 448."

See also the interesting article "Suspicious Circumstances and Wills" by Anthony Smith [1994] Queensland LSJ 347 et seq. 3 The burden imposed by the rule is the burden of removing the suspicion so as to show that the mind of the testator is indeed to be found reflected in the will that is propounded. In the authorities, what is required is expressed in different ways, but they are all to the effect that extreme care, the nature of which will vary according to the facts of the case, is required before the court can accept a will as valid where the will or the instructions on which it was drawn came into existence, or the making of the will was conducted, by the agency of a person who benefits substantially under it. In some instances, it may be virtually impossible to remove the suspicion attaching to such a will. From the many statements in the authorities, I select the following as indicating the extent of the burden. Sir John Nicholl, in Paske v Ollat (1815) 2 Phill Ecc 323; 161 ER 1158, said of a case of suspicious circumstances: "The Court is always extremely jealous of a circumstance of this nature. … [I]n all instances of the sort, … the proof should be clear and decisive."

His Lordship referred to "propriety and delicacy" as inferring that "an interested person … should not conduct the transaction", and he mentioned its "clandestinity", among other factors, as increasing the onus, which, he said, may be increased "even so much as to be conclusive against the instrument". 4 In Baker v Batt (1838) 2 Moore 317; 12 ER 1026, Parke B, delivering the advice of the Privy Council, said at 321; 1027: "There is also another principle … which has long prevailed in the Ecclesiastical Courts, which is this, - that if the person benefitted by a Will, himself writes or procures it to be written, the Will is not void, as it would have been by the Civil Law; but the circumstance forms a just ground of suspicion, and calls upon the Court to be vigilant and jealous, and requires clear and satisfactory proof that the instrument contains the real intention of the Testator."

But in Barry v Butlin (1838) 2 Moore 480; 12 ER 1089, Parke B, again speaking for the Privy Council, at 485; 1091, set the limit of the stringency of the rule as "in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the Court in investigating the case, and calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased." Thirty years later, in Atter v Atkinson (1869) LR 1 P & D 665 at 668, Sir J P Wilde (as Lord Penzance then was) said: "The proposition, however, is undoubted that if you have to deal with a will in which the person who made it himself takes a large benefit, you ought to be well satisfied, from evidence calculated to exclude all doubt, that the testator not only signed it, but that he knew and approved of its contents." 5 One of the leading cases is Fulton v Andrew (1875) LR 7 HL 448, where Lord Hatherley described (at 469-470) the facts that "the will had … been framed through the agency of those who took [the] benefit in the residue"; that the same persons "alone supported the case of the will having been read to the testator"; and that the "instructions [were not sent] to the testator's ordinary solicitor", as "grave circumstances attending the transaction"; and his Lordship proceeded (at 471-472) to declare the law in terms which have often been repeated since, as they were by a'Beckett J in the passage I have cited from In re Nickson.

In Fuller v Strum [2002] 2 All ER 87 at 96, 107 and 112, the members of the Court of Appeal emphasized that Lord Hatherley's expression (adopted by a'Beckett J) "the righteousness of the transaction" does not involve what Chadwick LJ called an "overriding requirement of morality". But their Lordships did not cast any doubt on the rule which requires the dispelling of the suspicion that the testator may not have known or may not have approved the contents of the will. As Peter Gibson LJ put it, "[t]he doctrine of 'the righteousness of the transaction' whereby the law places a burden on the propounder of the will, in circumstances where the suspicion of the court is aroused, to prove affirmatively that the deceased knew and approved of the will which he was executing, is a salutary one which enables the court in an appropriate case properly to hold that the burden has not been discharged." But it seems to me that the true meaning of Lord Hatherley's expression was explained by a'Beckett J in In re Nickson at 281, when he said: "I do not understand the righteousness of the transaction to mean that the will was a wise and just one, but that there was no unrighteousness in the conduct of the person who drew the will and took a benefit under it."

This was the view of the burden that was taken by Lord Macnaghten, delivering the advice of the Privy Council, in Farrelly v Corrigan [1899] AC 563 at 566 when he said it was "incumbent on those who sought to uphold the gift … to prove the truth and honesty of the transaction, and to remove the suspicions which the comparative magnitude of the gift and the circumstances under which the will was prepared were calculated to excite." To the extent that Turner P may be thought to have implied a different understanding in Tanner v Public Trustee [1973] 1 NZLR 68 at 88 et seq , I respectfully disagree with that understanding, both as a matter of the natural meaning of Lord Hatherley's language, and on the authority of a'Beckett J and Lord Macnaghten. 6 In Tyrrell v Painton [1894] P 151 at 156, Lindley LJ put it that suspicious circumstances raised the question: "Do the defendants affirmatively establish to my satisfaction that the testatrix knew what she was doing when she executed this will?" After referring to Barry v Butlin and Fulton v Andrew, he made it clear (at 157) that the rule is not confined to the case where a will is prepared by or on the instructions of a person taking large benefits under it, "but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document". In the same case, A L Smith LJ put the matter succinctly (at 158) when he expressed a need to be satisfied that the testatrix "knew what she was about when she signed that will". The third member of the court, Davey LJ, said (at 159-160): "[T]he principle is, that wherever 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 that suspicion is removed. Here the circumstances were most suspicious, and the question a judge has to ask himself is whether the defendants have discharged themselves of the onus of shewing the righteousness of the transaction."

Similarly, in The Public Trustee v McKeon (1917) 17 SR (NSW) 157 at 164, Street J took the principle to require that probate ought not to be granted unless the court could feel "full and entire satisfaction that the instrument did express [the testator's] real intentions". 7 The law on this subject has been considered in the High Court of Australia, and particularly in Nock v Austin (1918) 25 CLR 519. Barton and Gavan Duffy JJ (at 524) adopted the question posed by Lindley LJ in Tyrrell v Painton as the right test, adding (at 525) that circumstances of suspicion "necessitated vigilance and jealousy on the part of the Court in weighing the evidence". Isaacs J (at 528) said "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"; and that 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". 8 Among 20th century decisions on this ancient principle, a leading place is held by Wintle v Nye [1959] 1 WLR 284, a decision of the House of Lords. There, the verdict of a jury in favour of the will was overturned by the House in view of the strength of the suspicious circumstances. Those circumstances were that the will gave a significant benefit to the solicitor who drew it, who was not an intimate friend and whose evidence of the testatrix's instructions was uncorroborated. Viscount Simonds said (at 291): "It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed."

Lord Reid (at 295) referred to "the weight of the onus which must be discharged if the will is to stand", making it clear that this was very great. What was required to be shown was that the person procuring the execution of the will had fulfilled the duty "to bring home to the mind of the testator the effect of his testamentary act". 9 The relevant principles have been applied in a series of Victorian Supreme Court decisions. I have already referred to In re Nickson, decided by a'Beckett J. In In re Breen [1927] VLR 164, Irvine CJ, having observed that it was the proponent himself who took the instructions for the will and drew it up, said (at 166): "The difficulty is whether I am justified in relying entirely upon the evidence of a man who drew up, upon instructions alleged to have been taken by himself, a will under which he receives a substantial benefit."

He referred (at 169 and 170) to the necessity for "very clear proof of volition and capacity as well as of a knowledge by the testator of the contents of the instrument", and to "the presumption against the will propounded which the law so clearly attaches to the other circumstances of this case". Despite direct evidence, which his Honour did not criticise except insofar as it came from interested persons, Irvine CJ concluded (at 170): "After full consideration, I think I should not be justified in accepting the evidence of this character from an interested source as sufficient to rebut the presumption against the will arising from the nature of the will itself."

A very recent Victorian decision is McKinnon v Voigt [1998] 3 VR 543, where Tadgell JA (with whom Phillips JA agreed) said (at 552) of circumstances exciting suspicion in a case where the evidence supporting the will was given by interested witnesses and the will itself had not been produced for a significant period: "In accordance with settled principle, an onus lay upon the respondents to dispel that suspicion as a pre-requisite to a grant to them of letters of administration." 10 The will propounded in the present case consists of two pages, bearing at the end of the second page the signature of the testatrix "Clarice I. Quigley" against a normal attestation clause, followed by the signatures of the two attesting witnesses " R A Vernon" (Richard Arthur Vernon) and "V C Shaw" (Mrs Veronica Charlotte Shaw, who died before the hearing, on 28 February 2001). The same three signatures appear at the foot of the first page, except that the testatrix there signed her first name as "Clarrie", a familiar form of it often used by her, and Mrs Shaw signed twice, quite obviously because the pen did not flow properly at first. All the signatures were black, as was the handwritten completion of the date "30th … April" on the second page (which Mr Shaw referred to as looking like his wife's hand). But the addresses of the witnesses were inserted after their signatures on the second page, and the date "30th APRIL" was completed on the backsheet, in blue-black. Otherwise, the document was typed in a familiar enough form, although it failed to provide for the possibility that a beneficiary might predecease the testatrix, as actually happened, with the result that, if this will is valid, there is a partial intestacy to the extent of almost half the estate. 11 The will consists of six clauses. By the first, all previous wills are revoked. By the second, Francis William Read (who was often called "Bill") and Harold Shaw (the husband of Mrs Shaw, one of the witnesses) are appointed executors and trustees. (Mr Read, as I have said, predeceased Miss Quigley and Mr Shaw has renounced probate). By the third clause, a bequest is made to the defendant (though her name, somewhat unusually, is spelled as "Isabel") of $10,000. By the fourth clause, a bequest in the same sum is expressed to be made to Harold Shaw, although his wife was an attesting witness, so he cannot receive this legacy unless he can satisfy the provisions of s 13 of the Wills, Probate and Administration Act, 1898, as to which see Miller v Miller; Estate Miller (2000) 50 NSWLR 81. By the fifth clause, the will provides: " I GIVE, DEVISE AND BEQUEATH the rest and residue of my estate both real and personal of whatsoever nature and wheresoever situated to the said FRANCIS WILLIAM READ AND DORIS EVA READ , his wife, in equal shares as tenants in common absolutely."

By the sixth clause, there are given to the trustees the familiar powers (familiar to lawyers and people of affairs, that is) to sell, postpone, and invest such parts of the estate as may not consist of money. 12 The testatrix, having lived to the age of 99 years, was not survived by one residuary beneficiary, Francis William Read, as has already been stated. He died in 1990. She was barely survived by the other, Doris Eva Read, who died fifteen days after her, on 16 July 1999, leaving a will effectively in favour of the plaintiffs, and appointing them her executrices. They obtained a grant of probate of that will on 24 November 1999. 13 The defendant does not raise only one or two matters as suspicious circumstances, but the whole web of circumstances in which the will came into existence. These begin with the manner in which the solicitor who drew it received his instructions. He never at any time saw Miss Quigley, nor did he even speak to her on the telephone or write to her, though he regarded her as his client. He received his instructions and payment for his services from "Bill" Read, who was known to him through Richard Vernon, a client of his. He told Mr Read it was "imperative" he see Miss Quigley, but that was never arranged. It was to Mr Read, not the testatrix, that he read through and explained the will. Mr Read and his wife stood to gain from the will in excess of two million dollars. As a first cousin of the testatrix, he had kept in touch with her over the years, but there is nothing to suggest their relations were particularly close. They were certainly not comparable to Miss Quigley's relations with her other first cousin, Mrs Watson, who had been her close companion for a number of years, her housekeeper for some time, and before that a considerable support to her older sister's declining years over a substantial period. 14 The persons present when the will was signed by the testatrix, apart from Mr and Mrs Read, were their son-in-law, the witness Richard Vernon, plainly an interested person where a gift of a large residue to his wife's parents was concerned, and Mr and Mrs Shaw. Mr Read said on this occasion that Mrs Watson "should not be aware" of what was done. Mr Shaw, a retired accountant, though not a relative, was also an interested person since he was named as a beneficiary to the extent of $10,000, notwithstanding that his wife was the other witness, a circumstance the legal significance of which he did not at the time appreciate. The very senior Sydney solicitor who had previously acted for Miss Quigley on various occasions, and had drawn in 1973 a will substantially benefitting Mrs Watson, Mr Geoffrey Hughes, was not present, nor was Mrs Atkinson, who handled all accounting matters for Miss Quigley and held her power of attorney. The engagement of a solicitor who was a stranger to her, and was requested not to get into touch with her, a feature of the case that recalls Brown v Fisher (1890) 63 LT 465 at 466, effectively concealed from her two professional advisers the fact that the dispositions previously made were being altered in favour of Mr and Mrs Read and Mr Shaw. The reason given by Mr Read to Mr Kerridge, that she might be persuaded to change her will, if its existence were known, may be seen as either an acknowledgment that she was, at 85, a person vulnerable to influence, or else an acknowledgment that the advisers upon whom she normally relied, who it was not suggested were other than entirely disinterested, would be likely to advise her to think again. 15 According to Mr Richard Vernon's evidence, the will was executed while the testatrix was visiting Mr and Mrs Read for a few days at their home in the Manly area. On 29 April 1985, he drove Mr Read to Mr Kerridge's office in Manly to pick up the will for execution. Mr Kerridge gave them the document in duplicate, and arranged to attend Mr Read's house at 11 am the next day to "oversee the signing of the will". But, on 30 April, when he, Mr and Mrs Read, Mr and Mrs Shaw and the testatrix were all assembled, Mr Vernon's wife telephoned him saying Mr Kerridge had been on the telephone to her to advise that an urgent matter prevented him attending. She said she had asked whether the signing of the will should be cancelled, but he had said it could go ahead, as he did not have to be there. After this little hiccup, the will was placed on a table in front of Miss Quigley, and "Bill read the will slowly to Clarice and explained it to her paragraph by paragraph". She said she was happy with it, and then read it herself. Finally, she signed it, Mr Read having handed her a pen, and Mrs Shaw and he himself followed, signing it too. It is important to notice two things about this account: that Mr Kerridge allegedly approved of the will being executed in his absence, although he had never taken instructions from Miss Quigley; and that the will was allegedly read over and explained by Mr Read, as well as read herself by Miss Quigley. 16 But both these important features of Mr Vernon's account (which, so far as the telephone conversation is concerned, is supported by his wife) are contradicted by other evidence. Mr Kerridge directly denied saying they "should proceed to the execution of the will even though [he] could not be there". On the contrary, he claimed to have said the appointment would have to be changed to another time. According to him, Mr Vernon "rang up and said, and kept asking me, 'But is it legal if it is signed without you there, if there are two witnesses?'" Not only that, both before and after 29 April 1985, which he thought (with some confirmation from his diary) to have been the day the will was to be signed, not 30 April, he said he urged Mr Read against the latter's resistance that he must see Miss Quigley "to check her instructions". Mr Kerridge saw the situation as "bizarre", but found Mr Read "a bit of an overbearing sort of bloke" who ignored his advice and "was adamant that he would not be having her sign [the will] again". Mr Kerridge pointed out that his lack of contact with Miss Quigley could lead to suspicion and "issues about undue influence", and argued with Mr Read - on one occasion, for at least an hour. When it was made clear Mrs Watson could challenge the will, Mr Read "was most arrogant about it", saying "she couldn't afford to do that". 17 Although it may be that Mr Kerridge, looking back, now sees his own attitude as rather firmer (and more appropriate for a solicitor) than it actually was, I am satisfied that Mr Read acted deliberately in a way that denied Miss Quigley the protection she should have had from disinterested legal advice. 18 As for Mr Vernon's evidence about the reading over of the will, the other evidence on this vital matter is the evidence of Mr Shaw. He did not confirm the account of Mr Bill Read reading the will out slowly and explaining it. His version of what happened when the will was produced and signed was that it was he himself who "told Clarrie Quigley the substance of the will", and after she expressed approval, said "We can go ahead and sign it." (The "we" in the last statement seems unconsciously to reveal how small was Miss Quigley's own role in the making of her will.) Required to elaborate, Mr Shaw said he "actually went through the will and I explained to her each part of the will … . Some of the will I actually read out to her … ". Later, he reiterated: "I didn't read the will through. I pointed out to her the various parts of it, and I read some parts of it that were easier for me to read to her than to explain to her." Specifically asked, he said the will was "partially read", and he was "the person conducting that process", and "the one that explained the terms of the will". He added concerning what was read to her: "I think only the parts that I read to her." 19 Mr Shaw's evidence puts in doubt the reading and explanation by Mr Read that are asserted by Mr Vernon. But it claims there was a partial reading, and there was explanation, given by Mr Shaw. However, this is itself doubtful, and not only because of the conflicting evidence of Mr Vernon. For Mr Shaw attended a solicitor very soon after the death of Miss Quigley. Handwritten notes from the solicitor's file dated "27/7/99" which appear to record a draft of his initial statement, and were unexplained otherwise, refer to the production and signing of the will as being conducted by Mr Read, and contain the statement: "Don't think read will thro'." A typed statement, dated in ink "27/8/1999" and signed by Mr Shaw, changes this to "I think the will was read through before signing although the terms of the will had been talked about on other earlier occasions during which time I was advised I was going to be an executor and left $10,000.00 as well." It will be observed that "I think" is less than definite, and that the reader is unidentified and explanations are not said to have been made. Mr Shaw does turn his mind in this statement to his own part in the transaction, but specifies that part, not as reading or explaining, but as asking "[b]efore Clarrie signed", whether that was what she wanted and was she happy with it, to which he says he received an affirmative response. 20 An assessment of Mr Shaw's credibility involves more than taking account of his inconsistencies, and of his conflict with Mr Vernon. He was certainly an interested party, since he was to be given a legacy of $10,000. There is also the possibility of some degree of ill feeling towards Mrs Watson, with whom he had had a falling out over her refusal to reward him financially (through his wife) for the role he claimed to have played in persuading Miss Quigley to make a gift of valuable shares to her. His lack of independence, as a witness, is demonstrated by the existence of an agreement between the plaintiffs and him, pursuant to which he stands to receive the $10,000 mentioned in the will if they succeed in the proceeding, or settle it. 21 Various more or less peripheral matters were raised in the evidence, and debated by counsel. However, what is decisive, in my opinion, is the failure of the plaintiffs to dispel the suspicion necessarily aroused by the actions and omissions of those involved in the making of this will. The conflicts in the versions of the witnesses cast a shadow over the circumstances, leaving the evidence too uncertain to show clearly and definitely, as the authorities require, that the testatrix's true intention accompanied her signature. 22 Although it is not necessary to my decision, I should mention a particular matter that was raised on behalf of Mrs Watson as heightening the suspicion in this case. In May 1998, the plaintiffs, in their personal capacities, made an application to the Guardianship Tribunal, alleging Miss Quigley's property was being dissipated during her senile incapacity. In the result, the Tribunal appointed Mrs Atkinson, who had since 10 November 1983 held Miss Quigley's power of attorney, to manage her affairs. During the hearing, Mr Geoffrey Hughes produced the 1973 will, in the presence of the plaintiffs and Messrs Richard Vernon and Harold Shaw, saying: "There is no other known will. Mrs Vernon and Mrs Whitton have no possible future interest in the property of Miss Quigley because Mr Francis William Read is dead; Miss Quigley is 98 years of age, and is suffering from dementia. As a result of her condition, she now lacks testamentary capacity." No revelation of the existence of the 1985 will came in response. If confirmation were needed that those who procured the execution of the 1985 will had determined on a settled policy of secrecy, this episode might be thought to provide it abundantly. Given Miss Quigley's medical state, what reason remained for stealth, unless the practice of it had been pre-determined? 23 Several things may be said about Mr Hughes's evidence. First, if there is something clandestine about the execution of a will, observations made in the judgments in Paske v Ollat and McKinnon v Voigt may have obvious application. But, next, the incident under consideration can throw no light on the actions of Mr Read, who died in 1990, unless the inference of a settled policy is drawn, in which case the adoption of that policy might be attributed to him, having regard to the evidence of his urging that Mrs Watson should not be made aware of what was done. However, apart from any light that might be cast on previous events, is the concealment of the will in 1998 in itself a suspicious circumstance? Dicta in Paske v Ollat and McKinnon v Voigt, and also Wintle v Nye at 291-293 and Tanner v Public Trustee at 85, per Macarthur J (with whom Turner P and Richmond J agreed), would suggest an affirmative answer. Nevertheless, in Thompson v Bella-Lewis [1997] 1 Qd R 429 at 451, McPherson JA (in dissent) remarked that generally "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will". It was not necessary for the majority, in the view they took of the case, to comment on this proposition. It is not necessary for me either, in the view I take of this case. However, I venture the observation that although, to be relevantly suspicious, a circumstance must have a connection with the bringing into existence of the will, there is no reason why such a connection must necessarily be temporal; a revealing light may sometimes be cast backwards by later events. This case may be of that kind; however, as I have made clear, I have found it unnecessary to utilize the evidence concerning the hearing at the Guardianship Tribunal in reaching my decision. 24 The plaintiffs' proceeding must be dismissed. However, it was not by their agency that the will they propounded was procured. In all the circumstances, their costs as between party and party should come out of the residue of the estate. The costs of the defendant, as between solicitor and own client, should also come out of the residue of the estate. In exercising my discretion as to costs in this way, I have had regard to the general principles stated by Kearney J in Re Herbert (1990) 101 FLR 279 at 310 et seq; Mitchell v Gard (1863) 3 Sw & Tr 275; 164 ER 1280; and Wintle v Nye at 295. See also the article by Anthony Smith at 352.

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