Weiss v Weiss; Estate of Anita Hildegard Weiss

Supreme Court of NSW|2020-08-05|Before: Hallen J

Solicitors: Turnbull Hill Lawyers (Plaintiff) File Number(s): 2019/00102339

Introduction

HIS HONOUR: Where a declaration is sought by the Plaintiff that the deceased died intestate, where the Defendant, who is the sole executor and universal legatee named in what, on its face, appears to be a valid Will disclosed to the Court, does not appear (and is not an active party to the proceedings although a named Defendant), and where no person seeks to propound the apparently valid Will, what evidence, if any, needs to be adduced on the application for a grant of letters of administration on intestacy? These are the questions for determination in this case.
The matter came before the Court in somewhat unusual circumstances. It was listed for determination of a notice of motion, filed by the Plaintiff, on 17 June 2020, in which he sought an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 28.2, that the prayers for relief in pars 1 to 4 of the Statement of Claim filed on 15 January 2020 be determined separately from the balance of the relief claimed in the proceedings. I shall return to this application later in these reasons.
The paragraphs of the Statement of Claim were in the following terms: "1. A DECLARATION that the deceased died intestate. 2. A GRANT OF LETTERS OF ADMINISTRATION on intestacy to the plaintiff. 3. AN ORDER that the administration bond be dispensed with. 4. AN ORDER that the matter be remitted to the registrar to complete the grant."
The balance of the relief claimed (pars 5, 6, 7, 8 and 9) related to the alternative claim for a family provision order under Ch 3 of the Succession Act 2006 (NSW), a notional estate order (which appears to be unnecessary), and an order for costs. However, counsel for the Plaintiff acknowledged that if the Plaintiff were successful in his application for a grant of Letters of Administration on intestacy, he would consent to the dismissal of the family provision claim. Counsel submitted that, in the circumstances, the separate determination of the probate claim was consistent with the just, quick, and cheap resolution of the real issues in the proceedings: Civil Procedure Act 2005 (NSW), s 56.
In the events that happened, I dealt with the notice of motion for the separate hearing of the question and made the order sought pursuant to UCPR r 28.2, with reasons to be provided. Then, the hearing of the separate question was stood over until 5 August 2020 in circumstances to which I shall come.
On each occasion, other than the first, there was no appearance by, or on behalf of, the Defendant. As will be read, even though he is named as the only Defendant, he has not played any part in the proceedings and is not an "active party", the definition of which, relevantly, is, "a party who has an address for service in the proceedings": UCPR, Dictionary. As will also be read, I am satisfied that this is a case where there is a defendant who is genuinely inactive. There can be no doubt, however, that he is "an interested party" in the proceedings.
I shall, for convenience and brevity, refer to the purported Will dated 5 November 2015 as a Will, even though I accept the Plaintiff does not admit that it is a valid Will of the deceased.

Background

The Plaintiff, Udo Hans Weiss, is one of four children of Anita Hildegard Weiss (the deceased). The Defendant, Peter Hans Weiss, is the Plaintiff's brother. The deceased's other children are the sisters of the parties, Petra Anita Reichert (née Weiss) and Elke Hildegard Worboys (née Weiss).
The deceased died on 11 December 2015, aged 82 years. She had been married to Johannes Hans Weiss, the father of the four children, but he predeceased her, having died on 23 July 1989. She did not marry, or enter into a de facto relationship, at any time, after his death.
The Plaintiff gave evidence of having made several attempts to locate a will of the deceased. He deposed that on the night of his mother's death, his sister, Ms Worboys, told him that their sister, Ms Reichert, was the executor named in the deceased's will. Shortly thereafter, the Plaintiff searched the family home, but he did not find a will, or any other testamentary document. At around that time, the Defendant repeated to the Plaintiff what he had already been told, that their sister, Ms Reichert, was the executor named in the deceased's Will. After approximately 12 months, in January 2017, the Plaintiff made further enquiries as to the whereabouts of the deceased's Will. Following those enquiries, the Plaintiff received a copy of the document dated 5 November 2015 from his sister, Ms Worboys.
The Plaintiff pleaded that he "believes" that the 5 November 2015 document was not signed by the deceased, although he did not give evidence in his affidavits deposing to this belief.
As the deceased died leaving no spouse, but leaving issue, her children are entitled to the whole of her intestate estate in equal shares in the event that she died intestate: Succession Act, s 127. Thus, on intestacy, the four children of the deceased would each receive one quarter of the deceased's estate.
The estate of the deceased is said to have an estimated, or known, gross value of $478,570. It is said to consist of real estate at Leumeah, a suburb of Sydney, about 39 kilometres south-west of the Sydney central business district ($465,000), cash in bank ($11,570), a car ($2,000), the contents of the Leumeah property and other personal effects (of no commercial value). (I have omitted, and shall continue to omit, a reference to cents so that may explain any apparent mathematical errors.)
There is evidence that the Defendant is living in the Leumeah property. As will be read, he has been served with documents at the Leumeah property even though he is not an active party.

Procedural Background

The Court file discloses that on 12 July 2019, the Plaintiff, by his solicitors, Turnbull Hill Lawyers, filed a caveat requiring that "[n]o grant of probate or reseal be made in the estate of [the deceased] … without prior notice to me". This caveat is what has been described as "a general caveat". That is the appropriate form of caveat to raise a ground of invalidity of a will, other than because of a want of proper execution: Azzopardi v Smart (The Estate of Alice Ann Smart) (1992) 27 NSWLR 232 at 236-238 (Powell J), applying Beatson v Perry (1906) 6 SR (NSW) 167 at 168-169 (Walker J); Estate of Theresa Katalinic; Vea & Katalinic v Katalinic [2020] NSWSC 805 at [54].
As earlier stated, the Plaintiff commenced the proceedings by Statement of Claim filed on 15 January 2020. Relevantly, the Statement of Claim asserted: "8. The deceased died leaving property in New South Wales. 9. The deceased purportedly left a will dated 5 November 2015. 10. No Notice of Intended Application for Probate was published in relation to the purported will dated 5 November 2015 ('the purported will'). 11. The plaintiff believes the purported will was not signed by the deceased. 12. The plaintiff believes the purported will was obtained by fraud. Particulars of the purported will i. Revoked all previous testamentary dispositions; ii. Appointed the defendant as the sole executor of the deceased's estate; and iii. Bequeathed the whole of the deceased's estate solely to the defendant. 13. In the event that the deceased signed and duly executed the purported will (which is not admitted), the plaintiff believes the purported will was executed in suspicious circumstances namely: i. The purported will leaves the deceased's entire estate to the defendant ii. The purported will makes no provision for her other children iii. The purported will was not disclosed or otherwise made known to the plaintiff until 10 January 2017 iv. A clear copy of the purported will was never provided to the plaintiff v. The purported will does not appear to have been prepared by a legal practitioner vi. The purported will was prepared within 5 weeks of the deceased's death. 14. By reason of the matters pleaded in the preceding paragraph, even if the purported will was duly executed by the deceased (which is not admitted) the defendant must affirmatively establish that the deceased knew and approved its contents. 15. In the event that the purported will is admitted to probate, the deceased did not make adequate provision for the proper maintenance, education or advancement in life of the plaintiff."
The proceedings were first listed before Lindsay J on 14 February 2020, on which occasion Ms M Windeyer, solicitor, appeared for the Plaintiff and Mr M Zhang, a solicitor from Legal Aid NSW, appeared with the Defendant "pending Legal Aid NSW's consideration of the defendant's application for legal aid". However, his Honour noted that the Defendant had appeared in person.
Lindsay J then, relevantly, made the following orders and notations: "2) ORDER that the defendant file and serve a notice of appearance no later than 6 March 2020. 3) ORDER that, in the meantime, the defendant may be served with process of the court in these proceedings by post at XX Franklin Street, Leumeah, and/or by email addressed to XX. 4) NOTE that the defendant informs the Court that his contact mobile number is XX. 5) NOTE that the defendant has today produced to the Court the original document of which MFI P1 is a copy. … 7) ORDER that paragraph 12 of the statement of claim filed by the plaintiff on 15 January 2020 be struck out, reserving to the plaintiff liberty to apply for leave to file an amended statement of claim which properly pleads and particularises any allegation of fraud the plaintiff proposes to make. 8) ORDER that the defendant, no later than 19 March 2020: a) file and serve an affidavit, or affidavits, deposing (to the best of his knowledge, information and belief) to the circumstances in which the putative will of the deceased dated 5 November 2015 was prepared and executed, including a statement as to the identity and whereabouts of the persons who purportedly witness the will (namely, Shane Boyd and Annette Cains). b) file and serve an affidavit, or affidavits, explaining any delay on the part of the defendant in making an application for a grant of probate or administration in respect of the estate of the deceased (who died on 11 December 2015). 9) ORDER that the proceedings be listed before the Family Provision List Judge on 27 March 2020 (or such other date as his Honour might appoint) for directions. 10) ORDER that the plaintiff serve written notice of these proceedings on Elke Worboys and Petra Weiss (no later than 21 February 2020), with leave to serve those parties at their last known addresses by post. 11) RESERVE all questions of costs. 12) NOTE that each of the plaintiff and the defendant inform the Court that they have no knowledge of any putative will of the deceased other than the document dated 5 November 2015, a copy of which is MFI P1. … 15) ORDER that these orders be entered forthwith."
The matter was listed before me, for the first time, on 27 March 2020. On that date, Ms Windeyer, appeared for the Plaintiff, but there was no appearance by, or on behalf of, the Defendant. Meantime, the Defendant had not complied with any of the directions that Lindsay J had made. The Court then directed the Plaintiff to serve any further evidence in chief upon which he intended to rely by 4:00 p.m. on 17 April 2020 and stood the proceedings over until 20 April 2020.
On 20 April 2020, Ms Windeyer, appeared for the Plaintiff, but, again, there was no appearance by, or on behalf of, the Defendant. On this occasion, the Court noted that the Plaintiff was giving consideration to taking steps to have these proceedings determined summarily due to the lack of compliance by the Defendant with any of the directions made by the Court; directed that in the event that any notice of motion was filed by the Plaintiff, it was to be made returnable on 25 May 2020; and stood the proceedings over until 25 May 2020.
On 25 May 2020, Ms Windeyer appeared for the Plaintiff but, again, there was no appearance by, or on behalf of, the Defendant, even though Ms Windeyer informed the Court that he had been served on 21 May 2020. The matter was adjourned until 15 June 2020.
On 15 June 2020, Mr C P Birtles, of counsel, appeared for the Plaintiff. There was no appearance by, or on behalf of, the Defendant. On this occasion, the following notations and orders were made: "1. Notes that there has been no appearance, once again, by the Defendant, and that there has been an affidavit of service filed 11 June 2020 enclosing various documents served personally by affixing them to the front door of the Defendant's address. 2. Notes that the Plaintiff wishes the issue of whether the deceased died intestate to be determined as a separate hearing because in the event that he is successful he will not be proceeding with his claim for provision pursuant to s 59 of the Succession Act 2006 (NSW). 3. Orders that any notice of motion be filed and served by 4:00 p.m. on Friday, 19 June 2020. 4. Stands the notice of motion and the hearing of the matter in the event that the Court determines that it should be determined as a separate issue to 10:00 a.m. on Thursday, 25 June 2020 with an estimated duration of one half day. 5. Notes that there is on the Court file an actual document which appears to be an original of the Will dated 5 November 2015 and that the two persons identified are Shane Boyd and Annette Cains who are the attesting witnesses."
The matter was then adjourned, for hearing of the forthcoming notice of motion, to 25 June 2020.
The notice of motion, adverted to on 20 April 2020, had not been filed until 17 June 2020. The evidence read on the adjourned date, revealed that the notice of motion, a letter from the Plaintiff's solicitors, a copy of the affidavit of the Plaintiff affirmed 17 June 2020, and a copy of the Statement of Claim, had been personally served on the Defendant, by Mr P Gamsby, a licensed process server, at 3:00 p.m. on 19 June 2020, "by affixing them to the screen door" at the Leumeah address.
I should mention that, at my request, on each occasion the matter was listed, my Associate forwarded to counsel for the Plaintiff, and to the Defendant, personally, at the email address provided by him to Lindsay J, details of the Court telephone number to dial in (because of the COVID-19 pandemic and the protocol relating to the conduct of Court proceedings).
In each email, my Associate stated the date on which the matter was listed to be heard. In this way, each of the parties was made aware of the way in which the directions hearing, and then the hearing, would be conducted, and how he, or his legal representatives, could participate.
In addition, on each occasion that the Court received an email from Mr Birtles, for example, when he asked whether the Court required the authorities to which he had referred in his submissions, the response, from the Court, was copied to the Defendant. On no occasion did the Defendant acknowledge receipt of the email sent, or respond, in any way, to the email.
In my view, the Defendant has been given more than enough opportunity to propound the Will and to participate in the Court process.

The Will

The original Will of the deceased was marked "MFI P1" by Lindsay J, and was tendered by Mr Birtles, as Ex P1, at the hearing of the notice of motion. It was in the following terms: "I Anita Weiss, of XX Franklin St Leumeah NSW 2056, revoke all former wills and testamentary dispositions made by me and declare this to be my last will and testament. I appoint Peter Weiss to be sole executor of this will and I give to Peter Weiss absolutely all my real and personal property whatsoever and wheresoever."
The Will appears to bear the signature of the deceased and the signature of two other persons, the name of each of whom is inserted above the signature. Near each of the signatures is the date "5/11/2015". Underneath the signatures is a fourth signature (which may be the signature of the Defendant, although this is not entirely clear), the date "21-6-2016" next to it, and the words "Signed in my presence at Campbelltown on 21st June 2016" followed by another indecipherable signature and a "J.P No XX".
At the hearing of the notice of motion for a separate hearing, counsel for the Plaintiff pointed out in his written submissions, correctly, that: "The document dated 5 November 2015: a. Does not have an attestation clause (a circumstance which, of itself, requires an affidavit of attesting witness - Pt 78 R 26 Supreme Court Rules 1970 (NSW)) b. Appears to contain writing of at least three, possibly four, different pens. c. Has typed printing in inconsistent ink. d. Does not appear to have been prepared by a solicitor. e. Benefits only the defendant."
Although I have ignored the assertions made in par 12 of the Statement of Claim (as a result of that paragraph having been struck out by Lindsay J), par 11 remains as an allegation by the Plaintiff. As stated, in that paragraph, the Plaintiff asserted his belief that "the purported will was not signed by the deceased".

The hearing of the notice of motion for a separate hearing

UCPR r 18.7 provides that if service of a notice of motion on any party is required by the rules, and the notice of motion has been duly served on that party, the court may hear, and dispose, of the motion in the absence of that party. (I leave aside the issue of the Defendant not being an active party in the proceedings because, in my view, he remains an "interested party".)
Before a person can be adversely affected by judicial order, he, or she, must be afforded an adequate opportunity to be heard. Justice to both parties requires that each should be entitled to present his, or her, case: Taylor v Taylor (1979) 143 CLR 1 at 4 (Gibbs J, Stephen J agreeing), 15-16 (Mason J), 20 (Murphy J), 22 (Aickin J); [1979] HCA 38.
Apart from the various affidavits of service, an affidavit of Ms Windeyer sworn 25 June 2020, disclosed that she had telephoned the Defendant (on the mobile telephone number that he had provided to the Court) on the evening of 24 June 2020, and that after he asked her who she was, and she had told him her first name, he ended the telephone call. Ms Windeyer telephoned the Defendant on two more occasions that evening, but there was no answer on each attempt.
Upon being satisfied that the notice of motion and the affidavits had been personally served, and that letters, or emails, notifying the Defendant of each adjourned date, and the date for the hearing of the notice of motion, and the final hearing, had also been served, I determined to hear the notice of motion in his absence. I was satisfied that the Defendant had been given every opportunity to participate in the hearing of the notice of motion.
The notice of motion proceeded on 25 June 2020. As stated, the Plaintiff sought an order that the decision of the Probate questions be heard and determined separately from the family provision question pursuant to UCPR r 28.2. Counsel for the Plaintiff referred to the affidavits that had been filed, and served, including each of the affidavits of service.
During the course of the hearing, I noted that there was little difficulty in concluding that there should be a separate hearing as was sought. Although counsel did not refer to the rules, or to the authorities, on that question, for completeness I note that UCPR r 28.1 defines a "question" as including: any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.
I have stated a summary of the principles to be applied to the issue of whether a separate question should be determined in Southwell v Bennett [2010] NSWSC 1372 at [15]-[17]. The principles were restated, more recently, by Lonergan J in Loretta Craig v Anthony Johnson [2020] NSWSC 430 at [26]-[28] and by Davies J in Combis & Staatz as joint and several liquidators of RB Hospitality Holdings Pty Ltd (in liq) v Lee [2020] NSWSC 960 at [27]. I shall not repeat what I stated.
In this case, the questions for determination were whether the deceased had died intestate and whether a grant of Letters of Administration on intestacy should be made to the Plaintiff, or whether the Court could be satisfied that the Will was a valid Will. Importantly, I considered that the judicial determination of these questions would involve a conclusive, or final, decision based on concrete and established facts; that the overriding purpose of s 56 of the Civil Procedure Act, namely the just, quick and cheap resolution of the real issues in the proceedings, would occur; that the hearing would be able to be conducted within a short time (or a shorter time relative to the total length if the hearing of the separate question were not to be dealt with in this way); that there would not be likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at a trial of the remaining questions, if there remained any left to be determined; and the fact that the questions may be able to be resolved, even more expeditiously if the Defendant did not appear, which, in all the circumstances, was more likely than not.
Counsel for the Plaintiff also read a number of affidavits on the application for the determination of the separate question. Then, I raised with Mr Birtles a number of matters concerning the apparent validity of the Will, and, enquired, since the Plaintiff was asserting that it was not a valid testamentary instrument, the nature of the evidence, if any, needed to be adduced on the application for the grant of Letters of Administration on intestacy.
I raised these questions because it appeared to me that, even though the Plaintiff had been aware of the Will since January 2017, it had only been in mid-2019 that he had lodged the general caveat, and because it was not until January 2020 that he had commenced the proceedings in which its invalidity was asserted. I also noted that there were persons named on Ex P1, who were both, apparently, attesting witnesses to the deceased's signature on that document.
On this occasion, I made clear that the Court was not requiring the Plaintiff to make any further enquiries, but was simply raising the factual aspect, since the Court had before it what appeared to be a valid original Will.
After taking a short adjournment to enable counsel to obtain instructions, Mr Birtles sought an adjournment of the notice of motion so that some further investigations could be carried out. The adjournment sought was granted.
I then made the following orders: "1. Orders pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the prayers for relief numbered 1 - 4 of the Statement of Claim filed on 15 January 2020 be determined separately from the balance of the relief claimed. 2. Notes that upon the application of the Plaintiff the hearing of the separate determination be adjourned. 3. Directs the Plaintiff to file and serve any further affidavits going to the determination of prayers 1 - 4 in the Statement of Claim by 4:00 p.m. on 16 July 2020. 4. Stands the separate question over for hearing before Hallen J at 10:00 a.m. on Wednesday, 5 August 2020."
In view of the hearing having taken place by audio-visual means, at which the Defendant had not appeared, my Associate, at my request, subsequently, sent the form of orders that I had made to each of Mr Birtles, and the Defendant, at his email address, shortly after the conclusion of the part-heard hearing. Once again, there was no response from the Defendant.

The hearing of the separate questions

Prior to the adjourned date, the Court received the following affidavits, each of which was read at the hearing: 1. An affidavit of Mary Windeyer sworn 22 July 2020; 2. An affidavit of Lauren Jane Ridgeway affirmed 22 July 2020; 3. An affidavit of Udo Weiss affirmed 4 August 2020; and 4. An affidavit of Adrian Corbould affirmed 4 August 2020.
At the remote telephone hearing, which took place on 5 August 2020, Mr Birtles referred to the affidavits and other documents that had been read on the previous occasion, and read the affidavits referred to above. As there was no appearance, once again, by the Defendant, I reserved my decision.
Subsequently, with leave, Mr Birtles filed supplementary written submissions.

The Evidence

I have referred to some of the background facts earlier in these reasons, which have been taken from the Plaintiff's evidence. Whilst that evidence has not been tested, there is no basis upon which to reject it.
I turn then to the evidence of searches carried out on behalf of the Plaintiff.
The affidavit of Ms Ridgeway set out enquiries made of neighbours of the deceased; persons identified as having the name "Shane Boyd" on a NSW Owner Enquiry Search; persons identified as having the name "Annette Cains" on a NSW Owner Enquiry search; persons identified as having the surname "Cains, initial A" in the Campbelltown Council area, via the White Pages; and persons identified as having the surname "Boyd, initial S" in the Leumeah area, via the White Pages.
Her affidavit also refers to Douglas Butt, one of the persons whose signature appears on the original of the purported Will, who was found, and who informed her that he did not specifically recall seeing the Defendant sign the document, but identified his signature. This recollection does not significantly assist in resolving questions about the circumstances of the execution of the purported Will, as it appears that Mr Butt signed the document on 21 June 2016, more than six months after the deceased's death.
Ms Windeyer, in her affidavit sworn 22 July 2020, deposed that one of the deceased's neighbours, Tony Quinn, had informed her that an elderly neighbour, Mrs Cains, had lived in Franklin Street Leumeah, across the road from Mr Quinn, many years earlier. This information prompted correspondence to be sent to that address. "Stefania", one of the occupants of that address, responded that she did not know either of Shane Boyd or Annette Cains: Affidavit, Adrian Corbould, 4 August 2020 at pars 3-4, annexures A, B.
Mr Corbould deposed to having become aware, through his secretary, on 30 June 2020, that Ms Worboys had passed away. Mr Corbould's secretary then caused correspondence to be sent to the legal personal representative of the estate of Ms Worboys. Ms Reichert, the sister of Ms Worboys and also the parties, responded to the correspondence (although it is unclear whether she is, in fact, the legal personal representative of Ms Worboys' estate). From the documents provided by Ms Reichert, Statutory Declarations of Petra Anita Reichert (née Weiss) dated 5 February 2020 and of Elke Worboys (née Weiss) dated 26 February 2020 and a copy letter dated 21 July 2020, were, together, marked as MFI 1 (although not read by counsel). The Court noted, however, that "the Plaintiff accepts that Ms Reichert, and Ms Worboys prior to her death on 26 June 2020, do not support the Plaintiff's application for administration".
Other evidence revealed that a Notice of Death for a property at Popondetta Place, Glenfield, a suburb of Sydney, located 36 kilometres south-west of the Sydney central business district, recorded that one Annette Cains had become the sole registered proprietor of that property, by survivorship, in July 2013: Ex LJR1/49. A member of the conveyancing firm which had acted on the transmission informed the Plaintiff's solicitors that the firm did not have any details for Ms Cains: Ex LJR1/53.
In the supplementary written submissions forwarded to the Court by Mr Birtles, the following submissions were made regarding the siblings of the Plaintiff: "7. As the Plaintiff's sisters Petra Reichert (Weiss) and Elke Worboys (Weiss) are not adversely affected by the Plaintiff's application, but they are one of the persons other than the Plaintiff entitled to administration, they were required to be served with notice of the Plaintiff's application, but service by post was permitted: SCR Pt 78 R 19(3). 8. Petra Reichert (Weiss) responded to the Notice by letter dated 30 January 2020 (page 33, affidavit of applicant for administration of Udo Hans Weiss affirmed 15 April 2020). A Consent to Administration sent to Petra Reichert (Weiss) was returned to the Plaintiff's solicitors unsigned: affidavit of Adrian Corbould affirmed 4 August 2020 paragraph 9, annexure F. 9. Elke Worboys died on 26 June 2020 (affidavit of Adrian Corbould affirmed 4 August 2020 annexure D)."
(The two children of the deceased referred to are not adversely affected since neither would receive any benefit under the Will. They are, as stated, on intestacy, each entitled to one quarter of the deceased's estate.)
It is necessary to repeat that the Defendant has continued to fail to give any evidence, even though an order was made by Lindsay J on 14 February 2020 to file an affidavit or affidavits, deposing (to the best of his knowledge, information and belief) to the circumstances in which the Will dated 5 November 2015 of the deceased was prepared and executed, and an affidavit as to his knowledge of the whereabouts and identity of the attesting witnesses.
Other evidence showed that the existence of the Will was not revealed to the Plaintiff until January 2017, more than one year after the deceased's death.

Determination

As stated, the Plaintiff filed the Statement of Claim on 15 January 2020. The Defendant has not filed any Defence within the time limited by UCPR r 14.3 or at all. It follows that he is "in default": UCPR, r 16.2(1).
UCPR r 14.26 provides that an allegation of fact made by a party in a pleading is taken to be admitted by any opposite party required to plead in response unless (a) in the pleading in response, the opposite party traverses the allegation, or (b) a joinder of issues under r 14.27 operates as a denial of the allegation. Accordingly, the allegations of fact asserted in the Statement of Claim are taken to be admitted: see, further, Alesco Corporation Limited v Te Maari [2015] NSWSC 469 at [41]-[57]; Westpac Banking Corporation Ltd v Kay (No 3) [2020] NSWSC 206 at [16] (Davies J). However, I do not propose to determine the matter upon the basis of deemed admissions.
Almost 50 years ago, Cairns J (as his Lordship then was) wrote in In the Estate of Muirhead, Deceased [1971] P 263 at 265: "I approach the matter with the conviction that it is the duty of a Court of Probate to give effect, if it can, to the wishes of the testator as expressed in testamentary documents."
In Wharton v Bancroft [2011] EWHC 3250 (Ch), Norris J wrote at [9]: "The task of the probate court is to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost."
The Court will only make a grant of Probate in solemn form if it is satisfied, on the balance of probabilities, that the testator, or testatrix, was free to make the will, had the requisite testamentary capacity and knew and approved of the contents of the will. In Barry v Butlin [1838] II Moore PC 480 at 482; 12 ER 1089 at 1090, Parke B (as Lord Wensleydale then was) noted that "the onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator". Furthermore, "the court always has a supervisory, and to some extent investigatory, jurisdiction in probate matters": Cushway v Harris [2012] EWHC 2273 (Ch) at [8] (Henderson J).
The Defendant, who would be the natural propounder of the Will, bears the ultimate onus of proving that the Will was the last will of a free and capable testatrix: Bailey v Bailey (1924) 34 CLR 558 at 570-572 (Isaacs J, Gavan Duffy and Rich JJ agreeing); [1924] HCA 21; Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 at 289-290 (Gleeson CJ, Handley JA agreeing); Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 704-707 (Powell J). He would also be required to prove that the deceased affixed her signature to the Will, that she had testamentary capacity, and also that she knew and approved the contents of the Will, at the time it was executed, so that it could be said that she comprehended the effect of what she was doing. The last requirement is conceptually distinct, and separate, from testamentary capacity, and must not be conflated with it: Hoff v Atherton [2004] EWCA Civ 1554 at [33] (Peter Gibson LJ, Lindsay LJ agreeing), [62] (Chadwick LJ, Lindsay LJ agreeing); Perrins v Holland [2009] EWHC 1945 (Ch) at [45] (Lewison J); Perrins v Holland [2011] Ch 270 at 283-284 [30]-[31], 293 [64]; [2010] EWCA Civ 840 at [30]-[31] (Sir Andrew Morritt C, Jackson LJ agreeing), [64] (Moore-Bick LJ). However, they are linked: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [128] (Leeming JA, Basten JA and Emmett AJA agreeing).
The Defendant's duty, in the first place, would be discharged by establishing a prima facie case. Here there is no case at all advanced by the Defendant.
The Court must consider all the relevant evidence available and then, drawing such inferences as it can from the totality of the evidence, come to a conclusion on the question whether the person propounding the Will has discharged the burden of establishing that the document is a valid testamentary disposition.
What is necessary to discharge that onus depends on the case. As Meagher JA (Basten and Campbell JJA agreeing) wrote in Tobin v Ezekiel (2012) 83 NSWLR 757 at 771-772 [47]-[48]; [2012] NSWCA 285 at [47]-[48]: "What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose 'as heavy a burden as can be imagined'. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice … In this context the statements prescribing 'vigilance' and 'careful scrutiny' and referring to the court being 'affirmatively satisfied' as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995."
Where a Will has, on its face, been regularly executed, there is a rebuttable presumption that the formal requirements of the Act have been duly complied with in the absence of proof to the contrary: In re Bladen [1952] VLR 82 at 84-87 (Sholl J).
It is not essential for a will to have an attestation clause: Succession Act, s 6(3). However, one function of an attestation clause is to satisfy an evidentiary purpose, namely whether there has been compliance with s 6 of the Succession Act. In other words, "the presence of an attestation clause is desirable because it facilitates the grant of probate and will give rise, in the absence of other material circumstances, to a presumption of due execution: Vinnicombe v Butler (1864) 3 Sw & Tr 580": Scarpuzza v Scarpuzza (2011) 4 ASTLR 244 at 254-256 [32]-[37]; [2011] WASC 65 at [32]-[37] (E M Heenan J). Although not conclusive, it constitutes prima facie evidence that the formalities have been complied with: G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) at 95 [6.80].
Mr Birtles made reference to the Supreme Court Rules 1970 (NSW) Pt 78 r 26 which provides: (1) If the will contains either no attestation clause or an insufficient attestation clause, the plaintiff must file an affidavit by one or more of the attesting witnesses to the due execution of the will. (2) A plaintiff who is unable to comply with subrule (1) must file - (a) an affidavit as to the reason for the inability, and (b) a further affidavit by some other person who was present when the will was executed. (3) A plaintiff who is unable to comply with subrule (1) or (2) must file an affidavit as to - (a) the reason for the inability, and (b) either - (i) the signatures of the testator and the attesting witnesses, or (ii) other facts from which it may be inferred that the will was duly executed.
The effect of this rule, which forms part of the Subdivision relating to non-contentious proceedings in which a party seeks to prove a will and seeks a grant of probate or administration of a will, is to require satisfactory proof, by affidavit, of due execution.
In this case, there is no affidavit from either attesting witness and the Defendant has not given any evidence of the matters in SCR Pt 78 r 26. The presumption of due execution, often, is not applied where a will contains no attestation clause and where there other relevant material circumstances: Estate of Janet Robertson (deceased) [1964] NSWR 1087 at 1089 (Hardie J); In the Goods of Catherine Uniacke, Deceased [1964] IR 166 at 166-168 (Davitt P); Re Nicholls [1996] 1 Qd R 179 at 181-182; [1995] QSC 184 at 6 (Williams J).
There is also the assertion that the Plaintiff believes that the signature, purportedly of the deceased, is not her signature. No presumption of due execution applies where there is an issue about whether the testatrix had, or had not, in fact, signed the Will: Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550 at [25] (Brereton J, as his Honour then was).
There is no evidence that the Will was read by, or read to, the deceased before execution. Nor is there any evidence that the Will was explained to her. The Will left nothing to the three other children of the deceased.
Furthermore, there are a number of curiosities in the original Will to which reference was made by counsel for the Plaintiff. They are inexplicable on the present evidence.
Even if the Defendant was not a person who participated in the preparation of the Will, or if he was not present when the Will was executed, he could have said so. In Fuller v Strum [2002] 1 WLR 1097 at 1119-1120 [66]-[67]; [2001] EWCA Civ 1879 at [66]-[67], Chadwick LJ quoted from the advice of Parke B, at 484-486, to the effect that the strict meaning of the term onus probandi, in this context, is that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. However, that is the legal burden.
The Defendant's failure to give any evidence, particularly explaining the provenance of the Will, where it was found, and how he came to find it, and how it came into his possession, remains unexplained. He ought to have been able to give some material evidence on a number of such crucial issues going to the Will. He has led no evidence which could begin to discharge the burden of proof. In this regard, I note the principles identified in Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 at [477]-[482] (Robb J).
Then, it is necessary to remember the steps taken by the Plaintiff to locate each of the attesting witnesses. He has not been able to do so, despite a number of attempts.
Mr Birtles, in his written submissions, referred the Court to the decision of Sholl J in In re Bladen. In that case, his Honour wrote, relevantly, at 86-87: "But, in the case of a will, no presumption of due execution arises from the mere tender of the document, without any evidence as to the witnesses, unless it is produced from proper custody and is over thirty years old. Otherwise, it is only when the evidence of the witnesses is unavailable, or is rejected, or fails to help the Court to a conclusion, that the presumption arises."
His Honour's expression of principle is reflected in the outcome of Hardie J's (as his Honour then was) decision in Estate of Janet Robertson (deceased). His Honour concluded in that case, at 1089: "Notwithstanding what was pressed upon me by counsel for the applicant, I am not prepared to accede to the proposition that the presumption of regularity is available in the circumstances of this case to dispense with evidence of due execution. The will was made in September 1962 - only very recently, and a few months before the death of the deceased. Under those circumstances, I am not prepared to extend the principle or presumption applied by the Probate Court in Denning's case, supra, to a testamentary instrument of recent origin in the complete absence of evidence as to the circumstances of execution, or as to the existence or identity of either of the attesting witnesses. Proof of the deceased's signature coupled with the strong probability that the instrument expresses the deceased's testamentary wishes does not, in such a case as the present, dispense with the necessity of some evidence of compliance with the statutory requirements as to execution. In the event of no further evidence becoming available to prove due execution of the will, the estate will of necessity pass on the basis of an intestacy."
On the question of the delay in producing the Will to the Plaintiff, I refer to what was said by Ormiston JA in McKinnon v Voigt [1998] 3 VR 543 at 562-563: "... it has been suggested, notwithstanding the broad dictum to this effect by Lindley LJ in Tyrrell v Painton [1894] P 151 at 157, that forbearance to put a will forward cannot of itself raise appropriately a suspicion that the testator did not know and approve of the contents of the will. Indeed, suspicious circumstances were later held by the Court of Appeal not to have arisen in a case where that was the sole matter said to raise suspicion: In the Estate of Musgrove; Davis v Mayhew [1927] P 264. Consistently with the reasoning of the other members of the court (Lord Hanworth MR and Sargant LJ), Lawrence LJ said at 286 that 'the circumstances which the learned Lord Justice [Lindley] had in mind were primarily circumstances existing at the time when the alleged will was executed and having a direct bearing on the question whether the testator then knew and approved of its contents,' thereby excluding (at 287) 'matters which occurred only after the execution of the will,' being in that case a delay in revealing and propounding a will for over 12 months after it was found, which in itself was some 20 years after the deceased's death. The case was followed by Willmer J in Re R [1951] P 10, his Lordship holding that on a pleading summons only matters 'relevant in some way to the preparation and execution of the will' might properly be alleged as raising a well-grounded suspicion that the will in question did not express the mind of the testator. Neither case was cited in Wintle v Nye [1959] 1 WLR 284 (HL), a matter pointed out in the recent judgment of McPherson JA as a member of the Queensland Court of Appeal in Thompson v Bella-Lewis [1997] 1 Qd R 429 at 449-51. Although his Honour dissented in that judgment his conclusions on the particular incident were broadly consistent with those of Davies JA in so far as he saw inconsistency between the broad statements in Wintle v Nye and those in Re Musgrove and Re R. He attempted to reconcile them by saying at 451: In my opinion, it is consistent with the decisions in this country to hold that, except perhaps where the will is retained by someone who participated in its preparation or execution, or who benefits under it, a circumstance must, to be accounted "suspicious", be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death. What happens after a person's death is not readily capable of throwing light on the question whether he or she knew of and approved the contents of a document executed during his or her lifetime. Indeed, to adopt a contrary approach would be to leave the efficacy of a will to the mercy of acts or omissions, possibly deliberate, of the person to whom the will was entrusted and over whom the testator necessarily has no control after his death. What I think flows from this discussion is that, if the failure of the propounders, their mother and Mr Noel Voigt to disclose the will were not otherwise connected with some other suspicious circumstance relating to its execution, the non-production for some seven weeks or so after the death of the deceased would not be such as to alter the onus of proof so as to call upon the propounders to explain those circumstances. Where, however, that delay has been properly ascribed to a person who directly or indirectly takes a benefit or who may be expected to benefit significantly from a disposition under the alleged will, there the factor of delay may also be called in aid as adding to the suspicious circumstances already engendered and thus require more emphatically that the element of suspicion should be clearly and distinctly repelled before probate or letters of administration might be granted. A delay of that kind occurred in the present case, as has been described in detail by Tadgell JA."
And at 564-565: "Where execution is in issue, facts which excite 'suspicion' may not be precisely those arousing suspicion as to knowledge and approval. In Wilson v Sabien the test was expressed generally as requiring evidence 'which suggests that the signature is not that of the deceased', whereas Street J in Public Trustee v McKeon at 159 looked more generally to evidence which was such as to create 'an atmosphere of suspicion surrounding the execution of the will'. So it might have been said that a failure to produce a will for some time after the death of the deceased may itself 'suggest' that the will was not in existence at his death and thus had not been executed by the deceased, but that would be an oversimplification. There are many reasons why wills are not produced or sought to be proved; there must be additional circumstances which give to such a failure an atmosphere of a kind which will properly excite the court's suspicions. In the present case it was the non-production by those who were obviously going to benefit directly and indirectly from the alleged will which gave that relatively short delay an added significance requiring all suspicion to be dispelled."
In reaching conclusions about the evidence on the topic of the validity of the Will, I also remind myself of what was said by Bryson AJ in Sullivan v Mouglalis; Wilson v Mouglalis - Estate Late Willem Wyma [2008] NSWSC 1326 at [29], [36]: "Consideration of the authenticity of wills, as of other documents, it is usually much affected by circumstances of prominence. The will produced in some circumstances of regularity, for example from the custody of a lawyer, a bank or building society, where the testator could be supposed to have deposited it for safekeeping can be more readily accepted. Where everything depends upon opinion about recognition of handwriting to establish that the document is the deceased's will, or had any connection with the deceased at all, the force of any doubts about recognition of handwriting is enhanced. ... I found this case very troubling and took some months to consider it. I clearly see the possibility that the document put forward truly is the will of the late Willem Wyma and that his estate ought to be administered according to it. I have to come to a conclusion based on the probabilities as I assess them to be. In a context where cases are decided on the balance of probabilities, I am unable to come to an actual persuasion that the document is the last will and testament of Willem Wyma, and I am unable to come to an actual persuasion that it was duly executed and attested by two witnesses as the law requires."
The process by which the Will was produced (prior to it being delivered to the Court) has not been the subject of any evidence. I am satisfied that this is not a case where the presumption of due execution or regularity has any application. Taken with the complete silence of the Defendant, I cannot be satisfied that the Will dated 5 November 2015 of the deceased is a valid Will. There should be an order pronouncing against the validity of the Will. It follows that the deceased died intestate and that there should be, subject to compliance with the Probate Rules of Court, a grant of Letters of Administration on intestacy to the Plaintiff.

Costs

Finally, it is necessary to address the issue of the costs orders which should be made by the Court.
Naturally, in the Statement of Claim, the Plaintiff seeks an order that his costs of the proceedings be paid. A successful party has a "reasonable expectation" of being awarded costs against an unsuccessful party, unless there is good reason for that presumption to be displaced: Oshlack v Richmond River Council (1998) 193 CLR 72 at 81 [22], 120-121 [134]; [1998] HCA 11 at [22] (Gaudron and Gummow JJ), [134] (Kirby J). Also see UCPR r 42.1 which provides: Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.
In Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121], Hodgson JA (Mason P agreeing) observed that: "underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs."
There is merit in making an order for costs. I am also of the view that the Plaintiff's costs, calculated on the ordinary basis, should be borne by the share of the deceased's estate which passes to the Defendant on intestacy. He, alone, would have benefited if there had been a grant of Probate of the Will. By his silence, he has required the Plaintiff to undertake searches and to appear before the Court on a number of occasions to establish the case that there should be a grant of Letters of Administration on intestacy. If he did not wish to propound the Will, he should have said so, and the matter could have proceeded much more expeditiously and with limited costs.
To the extent that the Plaintiff's costs, calculated on the indemnity basis, are greater than the costs calculated on the ordinary basis, the difference should be paid out of the estate. The sisters of the Plaintiff have benefited from the proceedings having been brought by the Plaintiff.
As counsel for the Plaintiff stated that in the event that the Plaintiff was successful on the separate question he did not wish to proceed with the balance of the relief sought in the Statement of Claim (the claim for a family provision order and consequential relief), I shall, subject to no successful appeal being brought, order that the Statement of Claim otherwise be dismissed.
In the circumstances, the Court: 1. Declares that the Court is not satisfied that the purported Will dated 5 November 2015 of Anita Hildegard Weiss is a valid testamentary instrument of the deceased. 2. Declares that the deceased died intestate. 3. Orders that, subject to compliance with the Probate Rules of Court, letters of administration of the intestate estate of the deceased be granted to the Plaintiff, Udo Weiss. 4. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. 5. Orders that, subject to no appeal being brought, which is successful, the balance of the relief claimed in the Plaintiff's Statement of Claim filed 15 January 2020 be dismissed. 6. Orders that the Plaintiff's costs, calculated on the ordinary basis, be paid out of the share of the deceased's intestate estate that passes to the Defendant. 7. Orders that the difference between the Plaintiff's costs, calculated on the ordinary basis, and his costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

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