SAMUEL EDGAR (By His Guardian Ad Litem TERENCE RANDALL RITCHIE)

Probate and administration - Proof in solemn form - Common form practice - Caveat against grant in common form on grounds of alleged incapacity at date of will - Subsequent institution of solemn form proceedings - Compromise - Proposed discontinuance - Procedure to be followed

Directions given for trial of action for proof in solemn form

1 EM HEENAN J: The applicants for the proof in solemn form of a will of the deceased, have applied by summons in chambers for a discontinuance of the action and for a grant of probate pursuant to RSC O 73 r 18 as a result of a compromise reached between the parties to the contentious proceedings. The important question of procedure which, therefore, arises is whether a grant of probate can or should be made in these circumstances and if so whether it should be a grant in common form or in solemn form of law. There are associated minor issues of whether or not the court should approve the proposed compromise on behalf of the second named second defendant who is yet to attain the age of majority, and whether the court should dispense with the requirement for obtaining independent counsel's opinion on whether the proposed compromise is in the interests of the infant second defendant.

2 Hazel Louisa Lawrance late of 31 Mackie Street, Victoria Park widow, died on 23 March 2002 at Royal Perth Hospital aged 83 years. She was survived by her only child, her daughter, Lynita Keryl Edgar, born 29 November 1950 and by her two grandchildren Hew Edgar and Samuel Edgar. Samuel Edgar remains under the age of 18 years at the date of this application and defends these proceedings by his guardian ad litem, Terence Randall Ritchie, who was appointed by an order made by the Master on 30 January 2003. Until now Mr Ritchie has been described as the next friend of the second named second defendant but it is desirable that the correct description of guardian ad litem should from now on be used - RSC O 70 r 2(1).

3 On 9 May 2002 Edward John Wheatley and Rosemary Verna Wheatley applied by motion for a grant of probate to them of the last will of the deceased dated 31 October 2000 which named them both as the only executors. By an amended statement of assets and liabilities filed by the plaintiffs in support of the application for probate it appears that the net value of the estate of the deceased in Western Australia is a little over $754,000. Slightly more than half of this consists of the deceased's house and land, 31 Mackie Street, Victoria Park and the balance is chiefly comprised of bank deposits and a small shareholding.

4 On 24 October 2002 the first defendant, Lynita Keryl Edgar, filed a caveat in the registry against the grant of probate being sought demanding that nothing be done without notice to her and claiming an interest as the daughter of the deceased and a beneficiary of her last will. Previously, the first defendant had filed an affidavit in the probate registry sworn by a Dr Carr on 6 June 2002. By this affidavit it appears that Dr Carr is a duly registered medical practitioner, who had known and treated the deceased from 1971 until her death. In the view of Dr Carr the deceased had become severely depressed, anxious and extremely paranoid over the last four years of her life and he expressed the opinion that the deceased did not have legal testamentary capacity in the last four years of her life during which the last will and a previous will had been made. However, Dr Carr believed that she did possess testamentary capacity in August 1991 at the time an earlier will was made. In the light of the affidavit of Dr Carr, the probate Registrar refused the application for a grant of probate in common form and directed, instead, that the will should be proved in solemn form.

5 The present action for proof of the will of 31 October 2000 in solemn form was commenced by writ issued on 10 July 2002. The various affidavits of scripts later filed in the action revealed the existence of four wills of the deceased made respectively;-

6 As there is no suggestion that the deceased lacked testamentary capacity in August 1991 when the second of these wills was made, it is apparent that the earlier 1958 will was then revoked and need not be discussed any further.

7 The first defendant put in a defence and counterclaim by which she alleged that the deceased was not of testamentary capacity when she executed the will of 31 October 2000 because of her age, depression and personality disorders. The first defendant then counterclaimed for probate of the will of 9 December 1999 also seeking that the Court pronounce against the force and validity of the alleged wills of 9 December 1999 and 31 October 2000. No defences were filed by the second defendants and a defence to the first defendant's counterclaim was filed by the plaintiffs.

8 The will of 5 August 1991 was prepared by the deceased's solicitors and appears to have been duly executed in the presence of two witnesses. By this document the testatrix appointed her husband as her sole executor and trustee, but in the event that he did not survive her, her solicitor, the first named plaintiff Mr E J Wheatley was appointed as sole executor and trustee. The will provided for the forgiveness of all debts owing at the time of death by her daughter, Lynita Keryl Edgar and by her husband and made a specific bequest of all her jewellery to her daughter. There were also specific legacies each of $5,000 to her daughter and to her grandchildren. The residuary estate was then bequeathed to the trustee on trust for the payment of all debts and administration expenses and thereafter to be held solely for her surviving husband. In the event that her husband predeceased the testatrix then the residuary estate was to pass solely to the first defendant, but if she did not survive her mother it was to go to the grandchildren in equal shares on condition that they should each attain the age of 18 years with a provision for per stirpes distribution if a grandchild should die before that age leaving a child or children.

9 This document was prepared by the deceased's solicitors and appears to have been duly executed in the presence of two witnesses. It appoints the plaintiffs as the executors and trustees of the deceased's estate.

10 It contains a specific bequest of all her jewellery to her daughter. There is then a bequest of all her real estate and the remainder of her personal estate to the trustees upon trust to pay her debts, funeral and testamentary expenses and then for the whole of the residuary estate to be paid to her husband absolutely in the event that he should survive her for 28 days. In the event that the deceased's husband did not survive her for the 28-day period, the trustees were to hold the residuary estate in two equal shares for the benefit of her two grandsons, the second defendants, on protective trusts as established under the will. After making provision for the possibility that a grandson might die before the deceased, or before obtaining the eligible age of 30 years under the provisions of the protective trust, the will concluded with a clause stating that the testatrix and her husband had been very generous to their daughter, the first defendant, during their lifetime and that it was their wish to benefit their grandsons after their deaths.

11 This document was prepared by the deceased's solicitors and also appears to have been duly executed in the presence of two attesting witnesses. It appoints the plaintiffs as sole executors and trustees. Again there is a bequest of all the deceased's jewellery to the first defendant. Then there is a bequest of all real estate and the remaining personal estate to the trustees to be held on trust for the payment of debts, funeral and testamentary expenses and for the whole of the residuary estate then to be paid to the husband of the testatrix in the event that he should survive her for 28 days. In the event that the husband did not survive the testatrix for 28 days, the residuary estate is to be divided into three equal shares and then one such equal third share is to be paid and transferred to her daughter, the first defendant, and the two remaining one-third equal shares are to be held on protective trusts for the grandchildren, the second defendants. The will then goes on to establish the terms of the protective trusts and to deal with the contingencies of a grandson predeceasing her or not obtaining the age of eligibility under the protective trusts. It is unnecessary to describe the details of these provisions except to say that the will provides that in the event of the failure of the trusts of the capital of any of the one-third shares in the residuary estate, that share should be held by the trustees as an accretion to the shares the trusts of which have not failed and upon the trusts powers and provisions applicable thereto.

12 There does not appear to be any direct evidence when Leonard Osmond Lawrance, the husband of the deceased, died but is common ground that he predeceased his wife who was described as a widow in her death certificate.

13 Therefore, in the events which have happened, the deceased's daughter and two grandchildren are the only beneficiaries entitled in distribution to the estate of the deceased under any of the three last wills. On the pleadings, the position of the parties is that the plaintiffs contend that the deceased possessed full testamentary capacity at the time when each of the three wills was executed and that, therefore, the latest will is the one which should be admitted to probate. However the first defendant propounds the will of 5 August 1991 as the last valid testament of the deceased contending that the later two wills are not valid because of want of testamentary capacity. Leaving aside the small bequests and specific legacies and the substitutional gifts of the residuary estate applying if the primary dispositions should fail, it is significant to note that, under the 1991 will the whole of the residuary estate would pass to the first defendant; but under the 9 December 1999 will the whole of the residuary estate would pass to the two grandchildren, the second defendants, and that under the will of 31 October 2000 the residuary estate would be distributed in three equal shares between the daughter and two grandchildren of the deceased.

14 At a mediation conference conducted by the court in the course of the contentious proceedings, an agreement between the parties, by their solicitors, was reached which, in effect, provided that there should be grant of probate in solemn form of the will of 31 October 2000, that the daughter's counterclaim propounding the will of 5 August 1991 should be discontinued and that the costs of all the parties should be paid out of the estate. The terms of the agreement also provided for the first defendant and her aunt, Mrs Dorothy Thomas, to be appointed as the protective trustees for the two second defendants under cl 3 of that will. It is also proposed that the need for counsel's opinion under RSC O 70 r 10(2) for the approval by the Court of the proposed compromise as it affects Samuel Edgar should be dispensed with. Consequently, two chamber summonses were issued seeking an order for the discontinuance of the action, a grant of probate of the will of 31 October 2000 and for incidental orders including an order dispensing with the need for counsel's opinion before approval of this proposed compromise. It was these applications which were heard before me on 22 May 2003 but, as there was a divergence in the submissions by counsel as to whether probate could be granted without more evidence in such circumstances I considered it desirable to reserve my decision on those applications. The submissions for the parties and my subsequent consideration of the position have revealed that important principles and procedures arise in this situation.

Practice and Procedure to Implement Compromise

15 The plaintiff submitted that the Court has power to make the orders sought pursuant to O 73 r 18 or r 19. Those rules provide as follows:

"18. Discontinuance

(1) Order 23 does not apply to a probate action.

(2) Where at any stage of the proceedings in a probate action the plaintiff or any party who has entered an appearance therein applies by summons for an order for discontinuance of the action, the Court may so order on such terms as to costs and otherwise as it thinks just and may further order that a grant of probate of the will or letters of administration of the estate of the deceased person, which is the subject of the action be made to the person entitled thereto.

19. Compromise

Where at any stage of the proceedings in a probate action the parties agree to a compromise, the action may, with the leave of the Court, be set down for trial."

16 The questions arising in this case are whether, pursuant to those powers or otherwise, the Court should make a grant of the probate of the deceased's will dated 31 October 2000, with the consent of all the parties, and if so whether that grant should be in common form or in solemn form. As no authority was cited dealing directly with those questions it is necessary to examine the principles which apply to such proceedings and consider them in this context.

17 The alternative modes for proving a will and the different consequences resulting from the choice made were examined by Legoe J in In the Estate of Kirs (1990) 55 SASR 61. In that case, at page 68, his Honour explained that wills can be proved in two ways, in common form or in form of law, the latter method usually being described as proof in solemn form. As his Honour explained:

"Wills are proved in solemn form in a probate action where the main, and generally the sole question for the determination of the court is whether a will is or is not either in whole or in part, valid as a testamentary instrument. The will is propounded in the action to which persons, interested under another will, or intestacy, are made parties (or are cited to see the proceedings) and for the validity of which the court pronounces after hearing the evidence. On the other hand a will is proved in common form:

(i) where its validity is not contested and

(ii) where the court allows it to be admitted after a hearing or motion or summons."

18 His Honour went on to explain that the difference in effect between probate granted in common form and probate which has been granted in solemn form is that the former is revocable and the latter, with two exceptions, is irrevocable. The exceptions stated are if a later will is discovered or if the judgment has been obtained by fraud. There are at least two other circumstances in which a grant in solemn form may be revoked, namely if it is found that the testator is still alive: Re Napier's Goods (1809) 1 Phillim 83; 161 ER 91; and if a person opposing the grant was prevented, for reasons beyond his or her control, from taking part in the proceedings Re Barraclough (deceased); Barraclough v Young [1967] P 1 - see also Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153 per Kitto J at 158-159. The parties to a probate action and those privy thereto are bound by the result. - See In Estate of Vauk (1986) 41 SASR 242 at 248.

19 An executor has an absolute right to seek proof in solemn form and the next of kin have a right to apply for proof in solemn form, but the court has a discretion to grant or refuse the application - In the Will of Harrison (1905) 11 ALR(CN) 25 an executor may even obtain a grant in solemn form when there has already been a grant in common form - In Re Levy deceased [1953] VicLawRp 87; [1953] VLR 652 where the potential advantages to an executor who may learn of facts giving rise to a risk of an application for revocation of a common form grant are explained.

20 A situation which can sometimes arise is where a deceased may name the same executor in two or more wills and, on the testator's death, the executor decides to propound the penultimate, or some earlier, will of the deceased because of his knowledge or because investigations lead him to conclude that the last will is invalid for want of capacity or for some other reason. A similar situation might arise where an executor decides to propound the last will of a deceased notwithstanding his knowledge that some other person is contending for the invalidity of that will and is propounding an earlier testament. The second situation is the one which arises in this case. The proper role of the executor and of the court in such situations was considered by Sholl J in Re Levy deceased [No 2] (1957) VLR 662 at 665 where his Honour said:

"That indicates that the common case in which the executor was wont to make an application for proof in solemn form, after he had obtained a grant in common form, was the case in which he had reason to anticipate some question being raised as to the validity of the will and desired to have the protection which a grant in solemn form would give him. In such cases it was nevertheless the practice to grant probate in solemn form on proof of the due execution only, at all events if there was no opposition. That seems clearly enough to indicate that the executor was not, in the view of the Prerogative Court, or, after 1857, the Probate Court, bound to call before the Court of his own motion all available evidence, both favourable to and adverse to the will of which he obtained a grant in common form. The duty of such a person, after all, must be a duty to propound the instrument which the testator has appointed him to propound, if he puts it forward at all. He cannot owe any duty to take legal proceedings to destroy the instrument from which alone he takes his title, and that was pointed out in case of In the Goods of Chamberlain (1867), L.R. 1 P & D at 316, to which reference was made in Re Levy deceased [1953] VicLawRp 87; [1953] VLR 652 at 655. Such an executor has, of course, no duty to put forward an instrument if he is satisfied that it ought not to be put forward. But once he does put it forward, he is entitled, in my opinion, to put it forward with only such evidence, available to him, as is in its favour."

"Nor is it the duty of the Court to make its own investigation of all the facts when an application is made to it for a grant of probate in solemn form. There is, so far as I can see, no ground for saying that on such an application the Court comes under any duty, statutory or otherwise, to satisfy itself, by any form of independent investigation, of the validity of the will for which probate is sought."

22 That at least adequate proof of due execution of a will before there may be a grant of probate in solemn form is required, even in a case where there is a compromise between the parties, also emerges from two further decisions: In the Estate of Szylowicz deceased (1978) 19 SASR 263 and in Re Munn (2) [1943] SASR 309. In the latter case, dealing with an agreed compromise of an action for proof in solemn form, Mayo J said:

"An agreement by parties not to insist on formal proof of scripts by an attesting witness, although they are available, may, particularly in the case of a small estate, where attendance may involve difficulty, or considerable expense, be useful and at times warranted, but that course raises the question whether a grant of probate in solemn form can properly follow. I have no doubt facts may be admitted or an arrangement made to facilitate proof of facts or an arrangement may be made fixing the terms of a compromise in settlement of an action for probate or revocation (see for example, Harvey v Allen (1858) 1 Sw & Tr 151: 164 E.R. 670; Wytcherley v Andrews (1871) L.R. 2 P&D. 327, but a compromise will be subject to this qualification, if a decree of probate of a will in solemn form of law is to be recorded pursuant thereto, there must be proof of the will to justify the decree in accordance with solemn form practice. In the case of compromise, Mortimer on Probate Law and Practice 2nd edition (1927), 611 puts it, 'the court must be satisfied by evidence that the will was duly executed', and at p 543, in describing solemn form proceedings the statement is made that their 'must be at least one of the attesting witnesses, to prove due execution'. I will add that unless the rules relating to such actions be actually followed the order or decree should not, so it seems to me, be in such terms, i.e. using the phrase 'in solemn form of law,' as to represent that such practice has been duly observed."

23 See also Morton v Thorpe & Ors (1863) 3 Sw & Tr 179; 164 ER 1242 as discussed in Re Breen deceased [1961] VicRp 83; [1961] VR 522 by Sholl J at 523-524.

24 In my view these authorities produce the result that for there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the will, or by any other party to that suit, whether joined or cited, of the formal validity of the will, on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time: Barry v Butlin [1838] EngR 1056; (1838) 2 Moo PC 480 and Pereira v Pereira [1901] AC 354 PC. In this regard the propounder may take advantage of the rule that a will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding. If there is evidence to the contrary it is for the propounder to establish affirmatively that the testator was of sound mind: Western Australian Trustee Executor Agency Co Ltd v Holmes [1961] WAR 144. Nevertheless, there must be proof at least to this extent on the civil standard to justify a grant in solemn form.

25 These precedents assist in addressing the situation which has arisen in the present case, namely an agreed resolution of contentious probate proceedings well before the trial of the action for proof in solemn form has commenced. However, there are also authorities dealing with the position which arises when the settlement or compromise of the contentious proceedings is reached after the trial has commenced and even where all the evidence has been taken and a jury has been directed to answer specific questions on the issues arising in the cause. One such case is Vandeleur v Francich [1991] 1 Qd R 481 where the issues put to a civil jury concerned whether or not the will of the deceased had been duly executed, whether the deceased was of sound disposing mind at the time that the will was made and, whether at the time of execution she was subject to the undue influence of a certain relative. Before the jury had agreed upon its answers to all the questions a compromise was agreed between the parties who asked the trial Judge to discharge the jury and to decree in favour of the will in solemn form. By that stage evidence had been adduced on all the contentious issues including evidence for and against testamentary capacity. Accordingly, an important question arose as to whether the trial Judge should pronounce in solemn form in favour of the will in the light of the conflict of evidence which had not been resolved by the jury. The judgment of Macrossan CJ contains, with respect, a most helpful examination of the principles which also appear to be relevant in the present situation. At [1991] 1 Qd R 484-485 the learned Chief Justice said:

"Real J. in Queensland Trustees Limited v. Finney [1904] Q.W.N. 21 was of the view that in a solemn form action there cannot be grant ordered in solemn form by consent unless the proof is offered which in law is necessary. In the circumstances of that case he ordered proof in common form. In the present trial if opposition had been withdrawn at an earlier time, for example at the beginning of the hearing or even at the time when the plaintiff's executors' case had been concluded one particular difficulty would have been absent.

It is common enough for a compromise to be arrived at in a probate suit even after the trial has commenced. Amongst the reported cases are Wytcherley v. Andrews (1871) L.R. 2 P.D. 327, Tiger v. Handley [1948] W.N. 432; In re King [1917] 2 Ch. 420, Ritchie v. Malcolm [1902] 2 I.R. 403 and Mecredy v. Brown [1906] 2 I.R. 437. It does not appear that in any of those cases evidence adverse to the validity of the will had been led at the time the respective suits were compromised.

A further consideration arises where, as part of the compromise, the court is invited to pronounce for or against the will. Only parties or persons privy to the suit will be bound by the terms of the compromise and the decree as the cases last cited show. If a pronouncement for or against the will is sought, there will need to be appropriate evidence: see Queensland Trustees Ltd v. Finney (supra) and Mortimer on Probate (2nd ed.) at 611. If a declaration in favour of validity is sought, it seems that, as a minimum, there must be evidence of due execution: see Williams, Mortimer and Sunnucks Executors, Administrators and Probate, (16th ed., 1982) at 401, 402. In view of the answer taken from the jury on the issue of due execution in the present case and because of the lack of contest as the cases of the parties were presented, no problem arises on this aspect in the present case, but there may be a requirement that evidence on other aspects be provided: see e.g. Williams Mortimer and Sunnucks (supra) at 401 - 402 where, dealing with evidence on trial in the Short Probate List in England, it is said: 'Where a will is being set up, evidence of one of the attesting witnesses should be adduced. Affidavit evidence will usually be sufficient. Where the circumstances raise strong doubt as to the testamentary capacity of the deceased it is advisable to call medical evidence, if available, to show capacity'.

Clear definitive statements as to what is required do not seem to be available and the answer may depend to an extent upon the circumstances, consistently always with the application of basic principles. Pronouncing for or against a purported will is a solemn act and it will not be possible simply to ignore a substantial body of evidence to which the court's attention may have been drawn, depending upon the stage at which the parties propose a compromise. If the court, after hearing evidence, has already arrived at a firm view on a vital issue, there will at least be difficulty in asking the court to act in a contrary fashion: see the opinion expressed In the Estate of Szylowicz (dec'd) (1978) 19 S.A.S.R. 263, 271, In the will of Podger, (dec'd) [1957] VicRp 35; [1957] V.R. 275, 278 and In the Will of Pearce (dec'd) (1945) 46 S.R. (N.S.W.) 71. However, mere conflict in the evidence will not necessarily preclude the court from acting on a compromise which may be proposed - see the observations of Cairns J. In re Muirhead [1971] P. 263 at 265 explained.

In a case of conflict the court may find it easier to pronounce in favour of rather than against the testator's expressed wishes. In the former case there may not be as firm a requirement for a fullness in the evidence in support of the course proposed. Still I do not consider it can be said that there is any hard and fast rule.

In the present case due execution has been proved and, looking at the conflicts in the evidence on the other two questions raised, I consider that I am justified in acting on the compromise and decreeing in favour of validity as invited by the parties. I think that the compromise and the request is a sufficient basis for the order which I shall make."

26 This passage obviously recognises that, when a compromise is reached between the parties to a contested action for proof in solemn form, it is open to the court to decree in favour of the will either in common form or in solemn form but, for solemn form to be decreed sufficient evidence to satisfy the minimum requirements for validity must be adduced and that this will require, at least, proof of due execution. This is entirely consistent with the other cases so far examined. There is also the significant observation that, whether or not there should be a decree in solemn form by the court in the event of a compromise will also depend on the circumstances of the particular case.

27 It is in this context that the provisions of RSC O 73, r 18 and the acknowledged power for a court to grant probate in the event of a discontinuance, come to be examined. Clearly enough the rule recognises the power of the court to make a grant in the event of the discontinuance of part or all of an action for proof in solemn form, whether of the will propounded by the plaintiff or of some other will propounded on a counterclaim. However, whether the grant which might then be made should be a grant in solemn form or in common form would seem to depend on the circumstances of the individual case and, in particular, whom the grounds alleged for challenging the validity of the will propounded, the availability of evidence sufficient to prove due execution and at least raise a presumption of testamentary capacity in the absence of evidence to the contrary.

28 Consistently with these principles I consider that a grant of probate in common form could be made upon the discontinuance, by leave of the court, of proceedings for proof in solemn form where, upon examination, the opposition to the grant discloses only an interest insufficient to entitle the objector to oppose a grant; or where no appearance has been entered and the party commencing proceedings does not desire to proceed to obtain a grant in solemn form - see Mortimer on Probate Law and Practice (1911) at 543-544. There may possibly also be other situations where nothing has been shown which would have prevented the grant of probate in common form had proceedings for proof in solemn form of law not been commenced. By contrast, even where there is the consent or compromise of the parties, but there remain doubts, for example, about the adequacy of the testator's capacity, I am inclined to the view that a grant in common form should not be made and, instead, the action should be listed for a short hearing on the application for proof in solemn form pursuant to O 73 r 19 when, presumably, the party propounding the will will be able to adduce evidence at least of due execution by a person of an age competent to make a valid will.

29 In the present case there seem to be at least two impediments to the grant of probate in common form on the application to discontinue. The first is that, under the terms of the agreement reached between the parties at the mediation conference, the plaintiffs are to obtain a grant in solemn form. At the hearing counsel for the plaintiffs submitted that their clients would be prepared to take a grant in common form. But as there are advantages in the more formal grant, not least of all to the infant second defendant, I do not rush to accept this alternative as an adequate solution. The second, and more significant objection, is that the affidavit of Dr Carr remains on the court file in the application for probate in common form and unless the last will is properly proved, it seems to be an insuperable obstacle to a common form grant.

30 Accordingly, I consider that, notwithstanding the agreement of the first defendant to abandon opposition to the proof of the testament of 31 October 2000 as the last valid will of her deceased mother, and her readiness to discontinue her counterclaim seeking proof of the will of 5 August 1991, no grant of probate should be made by the court at this stage merely on the consent of the parties. I note that it was said by Sir Herbert Jenner in Re Watts (1837) 1 Curt 594 that:

"How can the court then, on mere ex parte affidavits, pronounce against such a paper? Tho consent of parties interested proves nothing; no third person's consent can make a will no will."

and the converse would also seem to follow, namely that no person's consent can make an invalid will a will. Accordingly, I consider that the proper course to follow, is that the Court should, on the application of the first defendant make an order for the discontinuance of the first defendant's counterclaim and then grant leave to set down the plaintiffs' action for trial for proof of the 31 October 2000 will in solemn form. If the parties seek them directions may be granted allowing proof of due execution of that will by one or other of the attesting witnesses and the identity and the death of the deceased leaving property within the jurisdiction, by affidavit although it might turn out to be simpler and more economical for oral evidence of these matters to be given in the ordinary way. Then, the plaintiff can assume the onus of proving the will on evidence in open court where, should they choose to do so, any of the defendants may cross-examine a witness and where evidence is to be led at the discretion of the propounding executors as explained in Re Levy [No 2] (supra).

31 It is also necessary to note that the terms of the agreed compromise between parties include a provision that Mrs Dorothy Thomas should be appointed an additional protective trustee at the second defendants pursuant to s 77 of the Trustees Act (1962) and cl 3 of the will. However, I accept the submission made by counsel for the first defendant that such a step, involving as it does the appointment of an additional trustee to administer the trusts established by the very will which is still subject to proof, should not be taken as part of the proceedings leading to a grant but, rather, should occur after any grant has been made. This also follows, in my opinion, from the decision of Jacobs J in the Estate of Szylowicz (supra). Notwithstanding the broad powers of the court to make the terms of a compromise of contested probate proceedings a rule of the court this should not be done where the court has otherwise resolved the only issues in dispute in the action and has pronounced in favour of the validity of the will thus proved. As Jacobs J said in Estate of Szylowicz at 271:

"It is, of course true that in The Will of Podger deceased [1957] VicRp 35; [1957] VR 275 and in The Will of Pearce deceased (1945) 46 SR NSW 71 it was not sought to vary the terms of the will propounded by way of compromise; but nevertheless, those cases seem to lend support to the view that once the Court is satisfied by evidence, not merely of the formal validity of the will propounded, but that it is in all respects a valid and subsisting last will of the testator, and probate thereof is decreed, the power of the Court to sanction in its decree a variation of the terms of the will, by way of compromise, is no longer exercisable. There is no unresolved issue between the parties to support the compromise, and the will so established speaks according to its tenor. What the parties may choose to do by way of family arrangement is a matter for them, but not a matter to which the court can be called upon to lend its aid."

32 In the present case I do not see any issue in the action which would support a term of the compromise being made an order of the court that an additional nominated protective trustee for the grandchildren should be appointed. No doubt the parties are satisfied that this should occur but I consider that that should be done in some other way or in other proceedings under s 77 of the Trustees Act.

33 There remains the second named second defendant's application for an order dispensing with the need for the provision of independent counsel's opinion for the approval of the compromise because he remains a person under age. Relevantly, O 70 r 10(2) provides that no settlement or compromise in any cause or matter in which there is a claim by or on behalf of or against a person under disability shall be valid unless it is approved by the court and the necessary application for approval shall be supported by an affidavit and by the opinion of an independent counsel; but that the court or Judge may dispense with the necessity of obtaining counsel's opinion.

34 The claim for proof in solemn form of the will of Hazel Louise Lawrance which is to proceed, as a result of this compromise, is for the will of 31 October 2000 the last such document executed by the deceased and which, subject to other minor dispositions previously described, provides for the division of her residuary estate into three equal shares between her daughter and two grandsons, including the second named second defendant, and in the case of her grandsons for those shares to be held on the protective trusts established by the will. Nothing in the compromise involving the abandonment by the first defendant of her challenge to the validity of that will and of her counterclaim to propound the will of 5 August 1991, under which she was the sole residuary beneficiary, detracts from the interests of either of the second defendants under the will which is now to proceed to proof. While it is the case that, under the will of the deceased of 9 December 1999, each of the second defendants, subject to substitutional provisions already described, is to receive an equal half share of the residuary estate, there is no person seeking to propound that will. This would seem to signify that none of the parties, and especially neither of the second defendants, desires to attempt to make out a case that the deceased possessed testamentary capacity at the time the will of 9 December 1999 was made but that she no longer retained that capacity less than a year later when the will of 31 October 2000 was made. As the proposed compromise, namely the abandonment of the defence and counterclaim of the first defendant, does not in any way detract from, or qualify, the interest of the second defendants derived from the estate of their grandmother on the issues which have been joined in the action, it does not appear to me to constitute a settlement or compromise of a claim by or on behalf of a person under a disability, namely the second named second defendant.

35 Yet the claim of the first defendant which is being abandoned by the compromise is a claim, at least in part, against the second named second defendant in that, were it to be made out, it would deprive him of any entitlement to his grandmother's residuary estate. Nevertheless, the abandonment of the claim is absolute and, except as to costs, it will have no impact on the entitlements of the second defendants. On the issue of costs it seems to me to be reasonable, in all the circumstances, that all the costs of the proceedings should come out of the estate of the deceased even if, to some extent, these costs have been increased by the caveat lodged by the first defendant and her subsequent defence and counterclaim in the probate action. Bearing in mind the need to conserve costs which, otherwise, are likely to be at the expense of all the residuary beneficiaries, I do not see that the ability of the Court to consider the interests of the person under disability is to any degree materially diminished by the absence of independent counsel's opinion in this situation. Therefore I am disposed to dispense with the necessity for obtaining counsel's opinion and to approve the proposed compromise, subject to eventual proof of the will being propounded, to the extent that it affects the interests of Samuel Edgar.

36 I should say that the proposed appointment of an additional protective trustee for Samuel, if it were to have been dealt with in these proceedings, would have raised further and different considerations. The choice and suitability of the proposed trustee, and a consideration of any expenses occasioned by her appointment, including any ongoing fees or commissions, would seem to be matters that would need to be considered by the Court as part of its role in supervising the interests of the grandson who remains under age. Whether independent counsel's opinion be needed in any subsequent application in different proceedings for the appointment of that additional protective trustee is a matter which may require further consideration in the light of the evidence then available and especially the financial consequences for the continued administration of those protective trusts.

37 For these reasons I consider that the orders to be made on the two chamber summonses before the Court should be as follows:

(a) on the plaintiff's summons for an order for discontinuance of the action and other relief:

(i) an order for the discontinuance of the first defendant's counterclaim by which she seeks to propound for proof an alleged will of the deceased made 5 August 1999;

(ii) the application for the appointment of an additional protective trustee under cl 3 of the will of the deceased of 31 October 2000 be dismissed, but without prejudice to any party to bring or renew such an application in other proceedings in the event of a grant of probate of the will of 21 October 2000 later being made;

(iii) leave be granted for the plaintiffs' action for proof in solemn form of the alleged will of the deceased of 31 October 2000 to be set down for trial, without further directions and as a short cause either on evidence by affidavit or by witnesses in open court as the plaintiffs may elect;

(b) on the second named second defendant's chamber summons seeking an order dispensing for the need for independent counsel's opinion in support of an application for approval in the proposed compromise under RSC O 70 r10:

(i) subject to the alleged will of the deceased Hazel Louisa Lawrance made 31 October 2000 being admitted to probate as propounded in this action, the Court approves the compromise by which the counterclaim is discontinued and the first defendant abandons her defence to the claim for proof of the deceased's will of 31 October 2000; and

(ii) any need for the opinion of an independent counsel supporting the proposed compromise of the discontinuance of the first defendant's counterclaim and the abandonment of her defence in the action, as far as it affects the second named second defendant, be dispensed with.

38 I am prepared to hear further submissions from the parties if any additional or different orders are sought in the light of my decisions on these applications but, if no such other orders are sought by any party then, the solicitors should file a minute of orders in the terms which I propose with their consents that those terms represent the substance of the disposition of these summonses produced by this decision and those orders then can be made without any need for further appearances.

39 In relation to the costs of both summonses I am presently inclined to the view that the costs of all the parties should be paid out of the estate but only in the event that a grant of probate in solemn form of the will of the deceased propounded by the plaintiffs is eventually made. Accordingly, until the final disposition of this action I consider that the costs should be reserved but, again, I am prepared to entertain further submissions from the parties if any different orders as to costs are sought.