Wilcox v Wilcox

Submissions for Mr Wilcox

1. In oral submissions on the present application, there was some confusion as to what Mr Wilcox was seeking: whether that be to sight a copy of the original Will or to sight the affidavit(s) filed in support of the application for probate of the deceased's Will (see, for example T 5.50; T 10.18; T 13.19; T 14.22; T 14.42). Mr Wilcox has apparently assumed that an affidavit was made by the second respondent to the motion in support of the probate application. Although, at T 13.19, Mr Danis informed me that "[w]e would like to still have a look at the original will", at T 13.34, he said "[w]ell, most importantly, we can forego the original, and most importantly, we seek the order to be made where we can inspect the probate file and have a look at those affidavits".
2. As emerged from the submissions made orally by Mr Danis, the application to review the Registrar's decision of 3 July 2018 thus seems largely to be misconceived in that what Mr Wilcox now seeks is access to the probate file for the purpose of inspecting and/or obtaining a copy of the affidavit(s) filed in support of the application for probate (and no decision has been made in relation to any such application).
3. The purpose of so doing, as articulated by Mr Danis, relates to Mr Wilcox' suspicion or belief that there was inappropriate non-disclosure in that affidavit (or affidavits) of the existence of certain trusts (see T 10.35ff) that Mr Danis describes as testamentary trusts and to the assertion that there is "new and fresh" evidence that the deceased did not sign the Will.
4. As to the first of those matters, weight is placed on a letter sent to the late Ms Wilcox by the second respondent in September 1980 (that Mr Wilcox complains was sent in breach of confidentiality obligations owed in relation to the deceased's affairs) in which reference was made to her grandfather's (and the deceased's father's) Will and it was said that a particular property (Barwon Vale) was left to her father (i.e., the deceased) absolutely and the balance of the estate left to her father and her late aunt in "certain proportions". The letter stated that the late Ms Wilcox' interests in a named company were "covered through trusts"; and that her father was the "trustee of the trust" and had power to accumulate income for her during her lifetime and then to pay the capital out to her children. (A copy of this letter was tendered and I admitted it, subject to relevance.)
5. Mr Danis submits in this regard (at T 10.35-11.2; 12.20-28) that: We know that the executrix' affidavit does not, that we've got that we've tendered that, it doesn't disclose those trusts, and that's based on a letter of 25th of September that was tendered, where Mr Duffy informs Mrs Wilcox what's in the wills, and the fact that there's trusts in place ‑ inappropriately, may I say so ‑ and both Mr Duffy and Mr Wilcox were aware of those trusts back in 1980, however we know that Mrs Wilcox did not disclose those trusts in her affidavit, the executrix' affidavit, and we say that Mr Duffy didn't disclose those trusts in his affidavit that he filed on behalf of Mrs Wilcox to obtain probate of Mr Sanderson's will. We also have, Mr Wilcox came across. He visited the two witnesses in 2017, the two witnesses that signed a will, and they told him that they had never seen the will, didn't sign the will, they had never seen his grandfather signing the will, so, on those bases, that's why we're asking to have a look at that, that affidavit Mr Duffy filed. And also, if there was an executrix' affidavit filed along with Mr Duffy's affidavit when probate was obtained, we're saying that the trusts were concealed, and they should have been disclosed, and the letter that's dated 25 February … … Well, we're saying that the trusts, those trusts, testamentary or otherwise, the trusts reserved the properties for the boys, because it says, it clearly says in there that Ms Wilcox, their mother, was entitled to the income during her lifetime, and the capital passed to the boys, so we're saying that the existence of the trust should have been disclosed in the affidavit of, Mr Duffy's affidavit, when the probate for Mr Sanderson's last will was filed, and it should also have been disclosed in Mrs Wilcox's, executrix's affidavit, which was presumably filed at the same time when the probate was obtained, so that's the relevance of those letters.
6. As to the second of those matters, as adverted to in the above extract from the transcript of submissions it is asserted that in 2017 Mr Wilcox visited the two witnesses who signed the Will and that they told him that: they had never seen the Will; did not sign the Will; and had never seen the deceased signing the Will (see T 10.45ff). Reliance is placed by Mr Wilcox on a passage in the transcript of the evidence given by the late Ms Wilcox before Pembroke J in which the late Ms Wilcox is recorded as saying that "when he [the deceased] could no longer sign a cheque, I had to become the attorney" (see annexure C to Mr Wilcox' affidavit sworn 8 October 2018; T 09/10/12; 86.49). Mr Wilcox points out that the power of attorney in favour of the late Ms Wilcox was dated 17 April 2002 yet the Will was dated August 2002. (He clearly regards the timing in this respect as suspicious, though as the late Ms Wilcox is now deceased it may now be difficult to test this and there is by no means only one inference that might be drawn from that evidence, see at T 15.21ff.)
7. Complaint is also made by Mr Danis as to what is said to have been a 20 month delay in the application for a grant of probate (although on Mr Danis' account of events the application was filed in September 2010, 11 months after the death of the deceased) (see T 15.42ff). The relevance of this complaint to the present application is by no means apparent.
8. Similarly, complaint is made that the late Ms Wilcox "appropriated" most of "her mother's estate" to her boyfriend and reference is made to the "grief" felt by the Wilcox brothers at this (T 16.1-8). It is asserted that "we are currently conducting an investigation into the fraud of [the] 153 years old estate of Mr Francis Sanderson" (T 1.36). Again those matters are not of apparent relevance to the present application other than to set the context of the application - namely, the suspicions apparently harboured by Mr Wilcox (and/or Mr Danis on his behalf) as to what has transpired in relation to the deceased's estate.
9. At T 16.10ff, there seemed to be an assertion by Mr Danis of some kind of conspiracy between the second respondent and the first respondent, the executor of the late Ms Wilcox' estate, (both solicitors) on the basis of which it was asserted that the former's knowledge of the "trusts" should be imputed to the latter.
10. Ultimately, the submission for Mr Wilcox was that he should have access to inspect the probate file because there is new or fresh evidence that indicates that the last Will of the deceased is a forgery and that the respective solicitors failed to comply with their obligation to disclose relevant information to the Court (see T 24.14ff).

Submissions by the first respondent (the legal personal representative of the late Ms Wilcox)

1. The position of the first respondent, although initially having been one of neither opposing nor consenting to Mr Wilcox' application for access, was by the time of the hearing before me that he opposed the grant of access to the probate file. This was for the reasons that: Mr Wilcox is a non-party to the 2011 probate proceedings; Mr Wilcox did not articulate any proper reason for access to inspect the probate file; and Mr Wilcox could apply for exemplification of the Will. Further, it was said, in effect, that such an application is unnecessary because Mr Wilcox had been provided many years ago with a copy of the grant of probate and the affidavit filed. A copy of the grant of probate (Exhibit 1) was tendered and a copy of the exhibit was provided to Mr Wilcox in Court. That exhibit did not, however, attach the formal parts of the affidavit or affidavits to which the various documents comprising the exhibits, including the inventory of property were annexed. It appears from the attestation clauses appearing at the foot of some of those documents that there was an affidavit sworn 18 January 2012 (to which the grant of probate was attached) and an affidavit sworn 22 September 2011 (to which the inventory of property was attached). Mr Wilcox clearly already had a copy of an affidavit sworn 2 April 2012 by the late Ms Wilcox (to which a copy of the grant of probate was annexed), and setting out the assets of the estate, since that is reproduced in the Court Book (but this seems to have been sworn in the context of the 2010 proceedings).
2. As noted above, the first respondent, in light of the applicant's submissions raising issues of fraud, changed his position to one of opposition to access (T 28.40). Pausing here, while it is understandable that the first respondent would not wish the estate to incur further unnecessary costs in responding to what he may regard as baseless conspiracy/fraud theories on the part of Mr Wilcox, at the end of the day all that this opposition has done seems to have been to fuel those theories and to make Mr Wilcox more convinced that his suspicions have substance.
3. The first respondent submits that Mr Wilcox has not provided any proper reason for accessing the documents and that there is no good evidence to suggest that "special circumstances" exist to justify the granting of access, (noting that the documents sought are likely to be subject to the implied undertaking - see UTSG Pty Limited v Gwynvill Properties Pty Limited [2017] NSWSC 558 at [58]-[62] per Robb J).

Second respondent's submissions

1. The second respondent's submissions in effect confirmed his advice (see below at [33]) that he did not himself make any affidavit in support of the application for probate (as opposed to preparing the affidavit sworn by the late Ms Wilcox) and that he has had nothing to do with the court proceedings brought by Mr Wilcox. He wishes (understandably) to be removed as a party to the present application.
2. Mr Duffy has referred to an email dated 30 November 2018 which he sent to Mr Danis, in response to the latter's request for a copy of the executor's affidavit filed by him in support of the application for probate in the estate of the deceased, in which he advised that: I do not have the file, or the documents you mentioned. Nor have I received an email from the court with orders relating to me as mentioned in your earlier email.

Determination

1. I accept the force of the first respondent's complaints that: it is now some years since probate was granted; there have been contested proceedings already in relation to claims made by Mr Wilcox; and the allegations of fraud (seemingly so readily made by Mr Wilcox) are serious allegations, not ones lightly to be made, and would need to be properly particularised.
2. I also consider that there is no basis on which the second respondent should have been joined as a party to the present application. No relief has been sought against him and he clearly has no interest in the outcome of an application by Mr Wilcox for access to the probate file. He has stated that he handed his file in relation to the deceased over to the first respondent when the proceedings were commenced by Mr Wilcox and that he does not have any of the documents requested by Mr Wilcox. He made his position clear in correspondence to that effect.
3. No error has been shown in the decision by the Registrar not to permit access to the original Will in circumstances where no reason was put forward by Mr Wilcox (a non-party to the litigation) for such access. Moreover, that is not now what he is seeking. Since no application to review the entire probate file was made to the Registrar there can have been no error in not permitting such access. Accordingly, the application for review of the Registrar's decision of 3 January 2018 should be dismissed.
4. As for the application now made for an order for access to the entire probate file, sought for the purpose of inspecting the affidavit(s) filed in support of the application for probate, seemingly so that Mr Wilcox can satisfy himself as to whether there was disclosure of the so-called "testamentary trust", subject to one qualification I propose (in the, perhaps forlorn, hope of quelling once and for all the misconception Mr Wilcox has that an affidavit made by Mr Duffy was filed in support of the application by the late Ms Wilcox for probate of the deceased's Will) to permit Mr Wilcox to inspect and obtain a copy of the affidavit filed in support of the application for probate of the deceased's Will and to sight the Original Will. I am fortified in reaching that conclusion by the first respondent's belief that Mr Wilcox has long ago been provided with a copy of the relevant affidavit in any event.
5. The qualification I make is this. It seems to me that unnecessary costs have been incurred in this matter - first, because the decision challenged in these proceedings (not to allow access to the original Will) was not in fact the access Mr Wilcox now seeks; second, because had Mr Wilcox provided reasons in the first place the present application might have been wholly unnecessary; and, third, because there was no reason for the second respondent to be joined.
6. Despite Mr Danis' protestation to the contrary, Mr Wilcox would need leave to be released from the implied undertaking were he to attempt to make use of the document so obtained in other proceedings. Further, the conduct of Mr Wilcox in making broad-ranging and indiscriminate allegations of fraud, unsubstantiated by proper particulars or evidence, is a serious matter and cannot be condoned.
7. In these circumstances, and in view of the fact that I am here granting an indulgence to Mr Wilcox in any order for access, I am of the view Mr Wilcox should pay the costs of both the first and second respondents of this application and should do so on the indemnity basis (and that access to the executor's affidavit and to inspect the original Will should be conditional on those costs being paid or otherwise secured in advance). This issue was not ventilated in oral submissions. Therefore before making any order to that effect, I will direct Mr Wilcox to file any brief written submissions (no more than two pages) as to why, if he maintains that is the case, such an order should not be made. Accordingly, I will defer making any order for access at this stage. The only order I will make is to direct any such written submissions to be filed by Mr Wilcox within 14 days. Final orders will be made after that period, having regard to any submission filed and served in accordance with that timetable.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2019