Robert Edmund Wilson (the deceased) died on 12 February 2016.
The deceased was one of nine children of Kathleen and John Edwin Wilson, two of whom as well as his parents predeceased him.
On 5 July 2015, the deceased signed a simple will in which he appointed the plaintiff, one of his brothers John Dalton Wilson, as his executor and devised and bequeathed the whole of his real and personal estate to him. For convenience, and without disrespect, I will refer to the siblings of the deceased by their first names.
The deceased's estate is valued at $384,330.39, of which $83,956.68 is the deceased's superannuation. The deceased had nominated John as his (non-binding) beneficiary to his superannuation benefit many years prior to his death.
One of the deceased's other brothers, Noel Wilson, who is the defendant, has filed a series of caveats under Supreme Court Rules 1970 (NSW) (SCR) Pt 78 r 66 to prevent a grant of probate in the deceased's estate without prior notice to Noel. The series of caveats was apparently filed to deal with the effect of SCR Pt 78 r 69 whereby each caveat lapsed 6 months after it was filed in the absence of any order by the Court extending its duration.
As required by SCR Pt 78 r 66(2), the caveats stated the nature of the interest claimed by Noel as being a surviving brother of the deceased with an entitlement to share in his estate together with the other surviving siblings of the deceased pursuant to s 129 of the Succession Act 2006 (NSW).
By summons filed on 29 May 2017, John sought an order that the caveat filed on 17 March 2017 cease to be in force pursuant to SCR Pt 78 r 71. As it happens, Noel filed a later caveat on 3 November 2017. It is implicit in the way the parties conducted the hearing that, if John establishes that he is entitled to an order under rule 71 it will be made in respect of the last caveat filed by Noel that is in effect.
Part 78 r 71 of the SCR relevantly provides:
(1) If:
(a) a person has applied or intends to apply for the grant of probate or administration or the resealing of a foreign grant, and
(b) a caveat under this Division is in force in respect of any grant of probate or administration, or resealing of a foreign grant, being made in respect of the estate concerned,
the person may apply for an order that the caveat cease to be in force in relation to the application or intended application.
…
(4) If the Court considers that the evidence fails to show:
(a) that the caveator has an interest in the estate concerned, or a reasonable prospect of establishing such an interest, and
(b) that there is a doubt as to whether the grant of probate or administration should be made or whether the foreign grant should be resealed,
the Court may order that the caveat cease to be in force in respect of the application.
…
(6) If it does not order that the caveat cease to be in force in respect of the application, the Court may give such directions as appear best adapted for the just, quick and cheap determination of proceedings on the application, or intended application.
(7) Directions that the Court may give pursuant to sub-rule (6) include a direction to the caveator to commence proceedings.
(8) If the Court directs the caveator to commence proceedings, it may order that if the caveator does not commence proceedings within such time as the Court fixes, the caveat is to lapse, either generally or in respect of the application or intended application.
(9) An order under sub-rule (8) may be made at the time the caveator is directed to commence proceedings or at any subsequent time.
It was common ground that Noel has an interest that satisfies sub-rule (4)(a).
The issue before the Court is whether for the purposes of sub-rule (4)(b) the evidence fails to show that there is a doubt as to whether a grant of probate of the deceased's will should be made to John.
The parties accepted that the sub-rule should be applied in accordance with its terms, in so far as the issue is whether on the evidence there is a doubt as to whether a grant of probate should be made, and it was not suggested that Noel has any burden of establishing a prima facie case that probate of the deceased's will would not be granted to John. The position adopted by the parties accords with that set out in Ritchie's Uniform Civil Procedure NSW [SCR Pt 78.71.5]. As is there noted, the requirement has been construed as meaning that what has to be established is that there is reason to allow the matter to proceed as a contested suit, relying upon the decision of Windeyer J in Weinstock v Beck [2007] NSWSC 193; (2007) 1 ASTLR 156 at [13]. His Honour said:
… If the caveator adduces some evidence that may cast doubt upon the validity of the will propounded or whether it is the last will then orders will be made that the matter proceed as a contested suit on pleadings. There is no requirement on the caveator to establish a prima facie case or a serious question to be tried; what has to be established is that there is reason to allow the matter to proceed as a contested suit.
In the present case John has filed affidavits in chief and reply, affidavits by the two witnesses to the will, Lynne Maree Trovato and Anthony Trovato, and by a friend of the deceased, John Adams. Noel's defence is supported by affidavits by himself, his sister Margaret and his brother Laurence. The affidavit evidence goes a long way towards dealing with the issues that would arise on a contested application by John for a grant of probate of the deceased's will in solemn form, although it is probable that some of those issues would be dealt with more extensively in the evidence on such an application.
It is important that it be understood that the only issue before the Court on a consideration of the evidence is whether there is sufficient doubt to justify the Court making directions to enable the issue of whether the Court should make a grant of probate of the deceased's will in solemn form to John. Not only is it properly the case that the parties would wish to supplement their evidence if the issue was whether a grant of probate should be made, but on the present application the evidence of the witnesses was not tested by cross-examination. Accordingly, even if it were appropriate to do so, which it is not, the Court would not be in a position to attempt to make any final findings concerning the issues raised by the parties.
I make that comment because I have come to the conclusion that Noel has established that there is a sufficient doubt to cause the Court to decline to make an order under SCR Pt 78 r 71, and instead the Court should invite the parties to bring in short minutes of order for the future efficient hearing of an application by John for a grant of probate of the deceased's will in solemn form. Although I envisage that the parties will wish to supplement the affidavit evidence that they have already filed, the existing affidavits have by and large been prepared in proper form, so they should be of use in the continuation of the proceedings. To that extent the preparation of the affidavits will not have been wasted.
I should observe that counsel for John put thorough and well-reasoned submissions to the Court, but circumstances required her to take on the burden of trying to persuade the Court on the evidence that John would necessarily succeed. That was, so to speak, a bridge too far. All that it is necessary for me to do in these reasons for judgment is to explain why I am satisfied on the evidence that the necessary doubt has been established. I will not enter upon the dispute as to how the evidentiary contest should be resolved. Any observation that I make as to why I consider that a doubt exists as to whether John is entitled to a grant of probate of the deceased's will should not be taken to imply any judgment at all as to how the doubt is likely to be resolved at a final hearing.
The principles that govern the validity of wills in cases where capacity and knowledge and approval are in issue have been considered by Meagher JA (with whom Basten and Campbell JJA agreed) in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285. Both parties relied upon this authority. As this is a recent statement by a unanimous Court of Appeal, I will set it out at some length:
[44] The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a "free and capable" testator: Barry v Butlin at 482; 1092; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21 ; 34 CLR 558 at 570; Timbury v Coffee [1941] HCA 22 ; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657-658; Atter v Atkinson (1869) LR 1 P & D 665 at 668 and 670; Nock v Austin [1918] HCA 73 ; 25 CLR 519 at 522, 528.
[45] If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring (1848) 6 Moo PC 341 at 355; 13 ER 715 at 720; Sutton v Sadler (1857) 3 CB NS 87 at 97-98 ; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13 ; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453.
[46] Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In Thompson v Bella-Lewis [1997] 1 Qd R 429 McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval 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". See also McKinnon v Voigt [1998] 3 VR 543 at 562-563; Robertson v Smith [1998] 4 VR 165 at 173-174. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document: Barry v Butlin at 484-485; 1091; Cleare v Cleare at 658; Tyrrell v Painton at 157, 159; Nock v Austin at 528.
[47] Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will: Barry v Butlin at 484; 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VR 646 at 652. 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. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew at 472; Tyrrell v Painton at 160. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton at 157, 160; Nock v Austin at 523-524, 528; Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097 at [33]; Dore v Billinghurst [2006] QCA 494 at [32], [42].
[48] 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.
As I understand Noel's position, he does not claim that at the time the will was made the deceased was physically or mentally incapable of making a will. He does say that the deceased was seriously ill physically, as he had very recently been diagnosed with terminal cancer, and that the deceased's physical infirmity affected his capacity freely to make the will, and interfered with his ability to know and approve of its contents in the circumstances in which the will was made.
John acknowledged that there were grounds for suspicion or doubt as to whether the will expresses the mind of the deceased, in the sense discussed by Meagher JA at [46], because John suggested to the deceased that he make a will, John prepared the will upon what he claimed were the deceased's instructions after John had responded to the deceased's suggestion that it might be necessary for him to see a lawyer by saying that John did not know a suitable lawyer, and John was the sole executor and beneficiary.
John submitted that on the evidence as a whole it was sufficiently clear that the suspicion had been displaced, but I am not satisfied that the evidence leaves room for no doubt that John is entitled to a grant of probate.
According to John's primary affidavit, between 24 June and 2 July 2015 the deceased had medical tests that culminated in him being advised by Professor Arthur Richardson that he had inoperable cancer. John was present during this consultation. Professor Richardson's report, which was in evidence, did not suggest that the deceased was at immediate risk of death.
John said that by 4 July 2015 he had observed a rapid decline in the deceased's physical presentation and that he did not think the deceased would survive another week. John was aware that the deceased did not have a will and said to him: "Maybe you should think about making a will". The deceased replied: "Yes. We may need to see a lawyer". John replied: "I don't know any lawyers". John said that at the time he had not had previous dealings with any law firms, although there was evidence that John had used a lawyer in a purchase of real estate.
John said that he advised the deceased that if the deceased told him what he wanted to do in his will, John could type the will up on his computer. The deceased agreed, and John asked the deceased to have a think about what he wanted to put in his will.
The will was prepared and executed the next day, Sunday 5 July 2015. John said that although for the first time the deceased needed John's assistance in dressing, he remained alert, and was able to have conversations and was able to express his opinion on matters that they talked about. During breakfast at about 9 AM, John said that he asked the deceased whether he had thought any more about his will, and the deceased replied: "I don't have very much. I will leave it all to you". The deceased also said that John may as well be his executor.
John said that he was surprised that the deceased wanted to name him as his sole beneficiary, but after the deceased's death he discovered that the deceased had nominated him as the beneficiary of his superannuation death benefit.
John prepared the will that the deceased executed by using his mother's will as a precedent.
John said that he gave the draft will to the deceased to check, and after the deceased had read the draft he said: "Yes. That is what I want".
The terms of the will were as simple as could be imagined, so it would not have been a complex task for the deceased to understand the effect of the will, if he read it as stated by John.
John arranged for his neighbours, Lynne and Anthony Trovato, to come to his home to witness the deceased's will. He said that he did not know the Trovatos well, and they had not been in his home before. They sat at the dining table which adjoins the kitchen area, and the deceased sat opposite them at the dining table. John said they all had a general discussion in which the deceased spoke about his illness and talked about cars. The deceased then signed the will in the presence of the Trovatos, and they witnessed his signature.
The Trovatos each confirmed in their affidavits that they witnessed the deceased signing the will. There was no discussion as to its contents, they did not read the will and do not know its contents. Mrs Trovato said: "I formed the view that Robert was sick. He did not look well and he was struggling to breathe. However, from our conversation I believed he was mentally fine and made sense when he spoke". Mr Trovato said that the deceased was sitting in the rear left corner of the room, and did not confirm John's evidence that the deceased was sitting at the dining table. He said: "It was clear that Robert was sick and quite frail. He held a conversation without difficulty. We discussed his illness and he was perfectly rational … Robert's mental capacity appeared fine to me".
Later that day, the deceased collapsed in John's home and was taken to hospital where he stayed until he was discharged on 15 July 2015. The hospital notes at the time of the deceased's admission record that he was not confused, disoriented or agitated. There was no evidence or history of episodes of delirium, confusion, fluctuation in cognition or wandering.
A dispute was raised in the parties' evidence concerning (a) whether the deceased had suffered from impaired cognitive functioning from birth, and (b) whether John was the natural object of the deceased's testamentary bounty to the exclusion of the deceased's other siblings. As to the first of these matters, there is a basis for thinking that the evidence led in Noel's case may be somewhat overstated, but it would not be safe for the Court to reach any conclusion on this issue on the limited evidence that was before it. As to the second matter, the evidence was that after the deceased's mother's death in 1995 the deceased's financial affairs were managed by John, and the deceased stayed at John's home when he was not in hospital during the course of his final illness. It would also not be safe on the evidence for the Court to draw any conclusions concerning the relative affection in which the deceased held his surviving siblings, as although it appears that the deceased's day to day association may have been greater with John than the other siblings, the evidence is capable of supporting a finding that the deceased had reasonably close relations with all of his siblings. The deceased was the youngest surviving sibling at about 66 years of age, while his three brothers are now 87, 85 and 82. His sister Doreen is 80 years old, Margaret is 74 years old and lives in the United States, and Stella is 70 years old and resides in Melbourne. The simple point is that by reason of age and place of residence it may have been difficult for the siblings to visit the deceased regularly. That is an issue that would need to be dealt with at a hearing.
There is also an issue between the parties as to whether the deceased was habitually overborne by John and whether he was afraid of John. That is also an issue that could not be resolved on the present state of the evidence.
There is, however, sworn evidence by Margaret that in April 2015 when she was visiting the deceased in hospital a doctor asked the deceased whether he had a will and the deceased said that he did not. Noel also gave sworn evidence that he was told by the deceased after the date of the will that the deceased did not have a will, and when Noel asked what was going to happen with the deceased's wealth, the deceased said: "I want the same as Mum's will. Everyone has equal shares".
Laurence gave sworn evidence that the deceased told him that John had bullied him into signing a document, without the nature of the document being stated. Laurence also said that he asked John whether the deceased had a will, which John confirmed. When Laurence asked John how he got the deceased to sign a will, John said:
It was quite easy. I said to him: "if you want to get well you will have to have a will. To get into the hospital, you will have to get a will.
And:
I got a piece of paper and sat him in the lounge room at my place. I said, "now make out your will". I went back some time later and he had not put pen to paper. He said: "I can't do it". I said, "Do you want me to do it?" And he said, "yes".
Noel also swore that later in the visit to the hospital during which Noel was told by the deceased that he did not have a will, the deceased said:
"John gave me a bit of paper and said I want you to sign this. I said, "what is it?" He said: "you want to get better don't you?" I said, "yes". He then said: "if you don't sign this you won't be able to get into the hospital". I signed it and there were two other people there at John's house and they signed it too".
Each of Margaret, Laurence and Noel also gave evidence of being present when the deceased said to John words to the effect that he wanted his money, and when John replied that he was looking after the deceased's money, the deceased said: "I want it all like Mum's". The deceased's meaning if he used these words is not entirely clear.
Margaret and Noel each gave evidence that after the date of the will John told them that the deceased did not have a will.
Given that John prepared the deceased's will, that he is the sole beneficiary and the executor, that the will was not read out to the deceased in the presence of the witnesses, and that there is no independent evidence that the deceased was aware that he was signing a will, the Court could not conclude in the face of the evidence of the deceased having said to his siblings that he did not have a will, and that he had been bullied or induced to sign a document so that he would be admitted to hospital, that there is no doubt that John is entitled to probate of the will.
Accordingly, I dismiss the claim for relief in par 1 of John's summons.
The parties should confer and bring in short minutes of order to give effect to these reasons and also to make directions for the further conduct of the proceedings as contemplated by SCR Pt 78 r 71.
I will hear the parties as to the appropriate order for costs. I am presently minded to think that no costs order should be made at this stage concerning the preparation of the evidence as it appears to me that the evidence could be relied upon at a hearing to determine whether John should be granted probate in solemn form of the deceased's will.
[3]
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Decision last updated: 14 December 2017