ANZ EXECUTORS and Trustee Company Ltd v Sampson
[2002] WASC 238
ANZ EXECUTORS & TRUSTEE COMPANY LTD -v- SAMPSON & ORS [2002] WASC 238
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 238 | |
| Case No: | CIV:2433/2001 | 19 SEPTEMBER 2002 | |
| Coram: | MCKECHNIE J | 19/09/02 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Proof of will of 18 September 2000 in solemn form Second defendant to pay plaintiff's costs | ||
| B | |||
| PDF Version |
| Parties: | ANZ EXECUTORS & TRUSTEE COMPANY LTD LYNETTE MARGARET SAMPSON PAULINE DIANE KEETING WAYNE MICHAEL ELEZOVICH VANYA ANN ELEZOVICH PAUL ALFRED ELEZOVICH COLLEEN VI YUKICH NANCY MARGARET RUBERY PHILIP YUKICH ARLENE IZZI CARL YUKICH |
Catchwords: | Probate and wills Dispute on validity of will Defence withdrawn Costs Whether unreasonably incurred by action of deceased Whether litigation unreasonably maintained |
Legislation: | Nil |
Case References: | Clay v Karlson [2001] WASC 141 Roebuck v Smoje [2001] WASC 95 Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow [1870] 5 L5 QB 549 Boughton v Knight (1873) 3 LR P & D 64 Brown v M'Encroe (1890) 11 LR (NSW) Eq 134 Bull v Fulton (1942-1943) 66 CLR 295 Cash v Nominal defendant; Gillespie (third party) (1969) 90 WN (Pt 1) (NSW) 77 Easter v Griffith; The Estate of Griffith, unreported; SCt of NSW (Santow J); 104467 of 1993; 17 June 1994 Ex p Public Trustee; Re Birch (1951) 51 SR (NSW) 345 In the Estate of James George Tiver (deceased); Elder's Trustee and Executor Company Ltd and Karay v De Caux and Anor, unreported; SCt of SA (Duggan J); 2966 of 1987; 22 June 1990 Lowry v Fulton (1838) 59 ER 298 Mitchell v Gard (1863) 164 ER 1280 Re Green, deceased; Lloyd v Green [1969] WAR 67 Re Stevens; Cooke v Stevens [1897] 1 Ch 422 Timbury v Coffee (1941) 66 CLR 277 Twist v Tye [1902] P 92 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
LYNETTE MARGARET SAMPSON
PAULINE DIANE KEETING
WAYNE MICHAEL ELEZOVICH
VANYA ANN ELEZOVICH
PAUL ALFRED ELEZOVICH
First Defendants
COLLEEN VI YUKICH
Second Defendant
NANCY MARGARET RUBERY
Third Defendant
PHILIP YUKICH
ARLENE IZZI
CARL YUKICH
Fourth Defendants
(Page 2)
Catchwords:
Probate and wills - Dispute on validity of will - Defence withdrawn - Costs - Whether unreasonably incurred by action of deceased - Whether litigation unreasonably maintained
Legislation:
Nil
Result:
Proof of will of 18 September 2000 in solemn form
Second defendant to pay plaintiff's costs
Category: B
Representation:
Counsel:
Plaintiff : Mr I R Morison
First Defendants : No appearance
Second Defendant : Mr D E C McGrael
Third Defendant : No appearance
First-named Fourth Defendant : Mr D E C McGrael
Second-named Fourth Defendant : No appearance
Third-named Fourth Defendant : Mr D E C McGrael
Solicitors:
Plaintiff : Machlins Lawyers
First Defendants : No appearance
Second Defendant : Clayton Utz
Third Defendant : No appearance
First-named Fourth Defendant : Clayton Utz
Second-named Fourth Defendant : No appearance
Third-named Fourth Defendant : Clayton Utz
(Page 3)
Case(s) referred to in judgment(s):
Clay v Karlson [2001] WASC 141
Roebuck v Smoje [2001] WASC 95
Case(s) also cited:
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow [1870] 5 L5 QB 549
Boughton v Knight (1873) 3 LR P & D 64
Brown v M'Encroe (1890) 11 LR (NSW) Eq 134
Bull v Fulton (1942-1943) 66 CLR 295
Cash v Nominal defendant; Gillespie (third party) (1969) 90 WN (Pt 1) (NSW) 77
Easter v Griffith; The Estate of Griffith, unreported; SCt of NSW (Santow J); 104467 of 1993; 17 June 1994
Ex p Public Trustee; Re Birch (1951) 51 SR (NSW) 345
In the Estate of James George Tiver (deceased); Elder's Trustee and Executor Company Ltd and Karay v De Caux and Anor, unreported; SCt of SA (Duggan J); 2966 of 1987; 22 June 1990
Lowry v Fulton (1838) 59 ER 298
Mitchell v Gard (1863) 164 ER 1280
Re Green, deceased; Lloyd v Green [1969] WAR 67
Re Stevens; Cooke v Stevens [1897] 1 Ch 422
Timbury v Coffee (1941) 66 CLR 277
Twist v Tye [1902] P 92
(Page 4)
1 MCKECHNIE J: I have had the advantage of reading the affidavits filed and the submissions of the parties and I am in a position now to pronounce on the validity of the will made by the testatrix dated 18 September 2000.
2 This action was commenced by the plaintiff because issue was taken by the second and the first and third-named fourth defendants as to the testamentary capacity of the testatrix to make the will on 18 September 2000. It appears they were propounding a will made six weeks earlier on 1 August 2000.
3 When the action came before Steytler J on 30 July 2002, it appears that the defendants had withdrawn their defence and the sole issue remaining was costs. However, affidavits filed subsequently, particularly by the second defendant, appear to continue to put in issue the question of testamentary capacity. I have this morning heard counsel's explanation for the position and I understand there is now, nevertheless, no challenge to the testamentary capacity. That matter is said to be relevant on the issue for costs and I understand the basis upon which the affidavits will be read in that respect.
The validity of the will
4 It appears to me, therefore, there is no impediment now to the grant of probate. Whether it is strictly necessary or not, it seems to me manifestly convenient that I should pronounce on the validity of the will of 18 September 2000 propounded by the plaintiff.
5 I have had the advantage of reading before all the affidavits which have been filed and which bear upon the testamentary capacity of the deceased. I have paid particular regard to the affidavit of Mr Tangney who is the fiduciary officer of the plaintiff who took instructions for the will in 2000. In fact he took instructions from the testatrix for a number of wills.
6 I have paid account to Ms McCracken who witnessed the will and Ms Rubery who enjoyed a close relationship with her mother. I have paid particular attention to the affidavit of Dr Stanley-Cary who was the testatrix's general practitioner. In his conclusion he states as follows:
"… I have no reason to believe or even suspect that Mrs Moir was suffering from dementia or any other condition which would have affected her mind over the relevant period."
(Page 5)
7 On the evidence I am quite satisfied that the testatrix was of sound mind and that the will of 18 September 2000, which I find was her last will, is valid. I therefore pronounce for the force and validity of the last will and testament dated 18 September 2000 of Clara Annie Moir, the deceased in this action, which is referred to in the affidavit of scripts of the state manager of the plaintiff, Wally Wlodko Perzylo sworn 19 September 2001. To the extent necessary, I pronounce against the force and validity of the alleged last will and testament dated 1 August 2000 of Clara Annie Moir, deceased, which is referred to in the affidavit of scripts. I direct that probate of the will dated 18 September 2000 be granted to the plaintiff out of the Probate Registry.
8 Although I have noted that the defence has been withdrawn, I would formally order that the counterclaim of the second defendant and the first and third-named fourth defendants be dismissed.
Costs
9 The costs of any action are in the discretion of the Court under the Supreme Court Act s 37 and that is a very wide discretion, although a court will generally order that the successful party to any action recover costs from the unsuccessful party under O 66 r 1.
10 In Clay v Karlson [2001] WASC 141, from par [147] Roberts-Smith J conducted an exhaustive and, with respect, very helpful analysis of the authorities bearing on the question of costs in cases like this; see also Roebuck v Smoje [2001] WASC 95 per Hasluck J. As a result of the work of both of those Judges it is unnecessary for me to do likewise. I simply say that I accept the principles laid down in those cases and of course in the cases which have gone before.
11 The parties have agreed that there are two issues. First: Did the testatrix contribute to the proceedings in such a manner as to make it just that costs should come from the estate? Second: Were the defendants reasonably led into litigation by a bona fide belief in their case? To this I would add a qualification. A party may have reasonably caused litigation to commence but unreasonably maintained it from some point in its course.
12 The second defendant is a daughter of the deceased. She has not been named in any of the five wills produced by the plaintiff going back over 10 years. Specifically, she was not named in the August 2000 will preceding the 18 September 2000 will which has now been proved. Her
(Page 6)
- professed reason for requiring the plaintiff to prove the will is as follows, at par 23 of her affidavit sworn 20 August 2002:
"I instructed my solicitors to request that my mother's will dated 18 September 2000 be proved in solemn form because there were matters contained in Letter 1 and Letter 2 that were untrue. I verily believe that Letter 1 and Letter 2 contain evidence that goes to prove that my mother was suffering from delusions."
Paragraph 25:
"I verily believe my mother was suffering from dementia when she made her will dated 18 September 2000. I also verily believe that my mother was suffering from a cognitive impairment when she made her will dated 18 September 2000."
"I swear this affidavit in support of submissions as to the costs of the first and third named fourth defendants and me."
14 However, the balance of the affidavit from par 25 challenges the mind, memory and understanding of the deceased. I have already found, on the basis of what I might say is overwhelming evidence, that the deceased did not lack testamentary capacity but was of sound mind. Furthermore, I think that the will reflects exactly what Mrs Moir wanted to achieve.
15 It matters little whether the deceased may have been mistaken as to some details of her relationship with Mrs Yukich. She certainly was mistaken in respect of the farm. The letters of the deceased provide no evidence of delusion, dementia or cognitive impairment. In view of my earlier findings, I do not consider that any conduct of the deceased caused the litigation. I have re-read the letters. There are significant matters left unanswered by Mrs Yukich and by the first and third-named fourth defendants.
16 I note in Letter 1 the deceased provided an independent and acceptable reason to exclude the Yukich family when she said:
(Page 7)
- "They are very well off each of them. They will receive a fair amount from their Dad's and Grandad's will. I am sure my small amount will not hurt them in any way. I have Great-Grandchildren who are close to me and find time to come and visit me. With what the Yukich family has is more than they can spend. So am in no way upset to leave them out of my will."
17 Notwithstanding that some query may be made in relation to the comment about "Dad and Grandad's will", this paragraph provides a reason for the deceased to proceed as she did. On the whole of the evidence, I find that no action of the deceased contributed to the need to take proceedings to prove the will in solemn form. In this I also note that the will was regularly prepared by the plaintiff at arm's length from the beneficiaries and the parties.
18 I turn to the second issue. My impression is that this litigation has principally been driven by Mrs Yukich whom in earlier correspondence Clayton Utz has referred to as "client" in the singular. She had no interest in any will. I suspect her dominant motivation was to put the record straight as she saw it in relation to the comments contained in the two letters which she regarded as wrong.
19 Her belief in the cognitive impairment of the deceased is quite unreasonable. The medical evidence as to the deceased's mental state was readily ascertainable. The issue as to the need for medical evidence was specifically brought to the defendants' attention on more than one occasion. Furthermore, the counterclaim asserted that the August will was valid, yet that was made only 6 weeks before the proved will. If there was operative dementia it would have been manifested in August as well as September.
20 In assessing the reasonableness of the second defendant's conduct, I do have regard to the fact that she would obtain no benefit and suffer no detriment whether the will of August 2000 or the will of September 2000 is proved. The first and third-named fourth defendants do not appear to have played much of an active role in these proceedings. I note their affidavits sworn on 22 and 23 August 2002 respectively.
21 I am firmly persuaded that the justice of the case requires that the estate should not be burdened with any costs arising from these proceedings which have been made necessary by what I find is the unreasonable attitude of the second defendant. I therefore order that the
(Page 8)
- second defendant pay the plaintiff's costs of the action, including reserved costs, and that the first and third-named fourth defendants bear their own costs.
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