Carney v Hall

Case [2011] SASC 207

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

CARNEY & ORS v HALL

[2011] SASC 207

Judgment of The Honourable Justice White

30 November 2011

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS - GENERALLY

In November 2006, the testator made a will the terms of which departed significantly from the manner of distribution of assets contemplated in her eight previous wills - the defendant entered a caveat against the grant of probate in respect of the November 2006 will ("the Will") - the plaintiffs, two of the executors and one of the beneficiaries under the Will, sought an order from the Court pronouncing the force and validity of the will in solemn form of law.

The defendant did not allege that the testator had been subject to undue influence, but pointed to circumstances said to be suspicious - he contended that these circumstances were sufficient to rebut the presumption that the testator knew and approved of the contents of the Will and that it was for the plaintiffs to prove that the Will was not the product of undue influence.

Whether suspicion of undue influence can amount to suspicious circumstances for the purposes of rebutting the presumption of knowledge and approval of the terms of a will - whether suspicious circumstances existed - whether the plaintiffs obliged to negative undue influence.

Held:  the November 2006 will is valid - whilst evidence tending to show the exercise of undue influence may be capable of creating a suspicion that a testator did not know or approve of the terms of the document in question as a will, and accordingly have the effect of displacing the presumption of knowledge and approval, that was not the case here - although the testator was the subject of some persuasion and pressure by her daughter and husband regarding the contents of her will, that pressure did not give rise to a suspicion of undue influence - the evidence indicated in any event that the testator did know of, and approve, the terms of the Will - it was for the defendant to allege and prove undue influence but the defendant had not made an allegation to that effect.

Inheritance (Family Provision) Act 1972 (SA), referred to.
Nock v Austin (1918) 25 CLR 519, applied.
Roos v Karpenkow (1998) 71 SASR 497; Bridgewater v Leahy (1998) 194 CLR 457; Wingrove v Wingrove [1885] LR 11 PD 81; Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; Thomas v Nash (2010) 107 SASR 309; Craig v Lamoureux [1920] AC 349; Nicholson v Knaggs [2009] VSC 64; Vout v Hay [1995] 2 SCR 876; Tobin v Ezekiel [2011] NSWSC 81; Wintle v Nye [1959] 1 WLR 284; Jones v Dunkel (1959) 101 CLR 298; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; Tyrell v Painton [1894] 1 P 151;

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Carney v Hall [2011] SASC 207
Case
[2011] SASC 207
Decision Date

CaseChat Overview and Summary

The case of Carney v Hall involved the plaintiffs, Mrs Carney and Mr Douglas, as executors and a beneficiary of the deceased's will, seeking a declaration from the court regarding the validity of a will made by Mrs Elliott in November 2006. The defendant, Mr Hall, opposed the declaration, arguing that Mrs Elliott was unaware of the contents of the will at the time of its execution. The court was tasked with determining whether Mrs Elliott knew and approved of the contents of the will, and whether there were any suspicious circumstances surrounding its preparation and execution.

The court examined the principles established in Nock v Austin, which outline the requirements for proving that a testator knew and approved of the contents of a will. The court noted that if there were no circumstances that would arouse suspicion, the mere proof of the testator's capacity and due execution of the will would create an assumption that the testator knew and approved of its contents. However, if there were suspicious circumstances, the burden of proof would shift to the proponents of the will to affirmatively prove that the testator knew and approved of its contents.

In this case, the court found that while Mrs Elliott was subject to pressure from Mrs Carney and Mr Elliott in relation to her will, she did know of the terms of the will and intended it to be her last will. The court was not persuaded by Mr Hall's arguments that his mother was unaware of the contents of the will or that the circumstances surrounding its preparation and execution were suspicious.

The court concluded that the plaintiffs were entitled to a declaration that the will made by Mrs Elliott on 17 November 2006 was valid and binding. The court gave the parties an opportunity to make submissions about the form of the order that should be made to give effect to its conclusions.

Orders

Orders of the court

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Background

Background to the litigation

Subsequently, Mrs Carney and Mr Douglas in their capacity as executors commenced these proceedings seeking an order from this Court pronouncing the force and validity of the Will in solemn form of law. Following an application by Mr Hall, Mr Elliott, in his capacity as a beneficiary, was added as a plaintiff on 4 May 2009. Mr Hall opposes the pronouncement sought by the plaintiffs. He contends that Mrs Elliott did not know of, and approve, the terms of the Will at the time she executed it, and that the circumstances surrounding its preparation and execution are suspicious.Family Background Mrs Elliott was born in January 1915. In June 1940 she married Mr Aubrey Hall. Both were interested in dancing and, until Mr Aubrey Hall’s death in 1970, conducted the business known as “Aubrey Hall Dance Studio” in which they taught dancing. They had two boys, Grantley and Marcus, and adopted Mrs Carney soon after her birth in 1960. Marcus died in 1973. In May 1976, Mrs Elliott married Mr Elliott and they continued as man and wife until her death. Mr Hall has separated from his wife and has no children. Mrs Carney was previously married and has two children. In November 2006 they were respectively nine and 11 years old. In November 1999 Mrs Elliott purchased a house on Dawson Avenue, Plympton South. She did this in order to provide accommodation for Mrs Carney and her two children, then aged two and four respectively. The evidence did not disclose the details but it seems that Mrs Carney was in somewhat difficult circumstances at the time and Mrs Elliott wished to assist her. Mrs Elliott purchased the house in her own name and rented it to Mrs Carney for the sum of $150.00 per week. In addition, Mrs Carney at times paid some of the outgoings on the property as well as making some improvements. Mr Hall considered that his mother’s purchase of Dawson Avenue was imprudent. He expressed his annoyance to his mother in very strong terms and that led to a period of prolonged estrangement between them. After the death of Mr Aubrey Hall, Mrs Elliott continued to conduct the dance studio business in rooms attached to their home at 247 Anzac Highway. In fact, she continued to conduct the business, including by conducting lessons herself, until at least October 2006, ie, until shortly before the diagnosis of her cancer. Dr Chia was Mrs Elliott’s general practitioner. He described her as having been in generally good health until early December 2006, when x-rays and other investigations revealed the presence of metastic skeletal cancer. Dr Chia then arranged Mrs Elliott’s admission to the Ashford Hospital where she remained until transferring to a hospice shortly before her death in late January 2007.Matters of Approach The principles to be applied when the knowledge and approval by a testator of the terms of a document purporting to be his or her will are put in question are well established. Isaac J summarised those principles in Nock v Austin:[2][2] (1918) 25 CLR 519.The relevant law is not doubtful. It may be thus stated:(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents.(2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.(3) If in such a case the conscience of the Tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate.(4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator’s appreciation and approval of the contents of the will.(5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification.(6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus.(7) The doctrine that suspicion must be cleared away does not create “a screen” behind which fraud or dishonesty may be relied on without distinctly charging it.[3](Citations omitted)This statement of principle by Isaacs J has generally been regarded as authoritative. See, for example, Doyle CJ in Roos v Karpenkow.[4] [3] Ibid at 528.[4] (1998) 71 SASR 497.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J
For these reasons, I consider that while Mrs Elliott was subject from some pressure from Mrs Carney and from Mr Elliott in relation to her will, she did know of the terms of the Will, and intended that it should be her will.Conclusion In summary, I consider that the Court should pronounce for the force and validity of the Will made by Mrs Elliott on 17 November 2006. However, at the request of the parties, I will give them the opportunity to make submissions about the form of the order which the Court should make to give effect to my conclusions.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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