Clay v Karlson
[1999] WASC 205
CLAY -v- KARLSON & ANOR [1999] WASC 205
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 205 | |
| Case No: | CIV:2388/1996 | 9 SEPTEMBER 1999 | |
| Coram: | MASTER SANDERSON | 9/09/99 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to amend refused | ||
| PDF Version |
| Parties: | MARK GREGORY CLAY KEVIN GUSTAV KARLSON MARIE KURELIC |
Catchwords: | Practice and procedure Leave to amend statement of claim Turns on its own facts |
Legislation: | Nil |
Case References: | Re Stott (Dec) [1981] All ER 259 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
KEVIN GUSTAV KARLSON
First Defendant
MARIE KURELIC
Second Defendant
Catchwords:
Practice and procedure - Leave to amend statement of claim - Turns on its own facts
Legislation:
Nil
Result:
Leave to amend refused
(Page 2)
Representation:
Counsel:
Plaintiff : In person
First Defendant : No appearance
Second Defendant : Mr R K F Davis
Solicitors:
Plaintiff : In person
First Defendant : No appearance
Second Defendant : Tydde & Co
Case(s) referred to in judgment(s):
Re Stott (Dec) [1981] All ER 259
Case(s) also cited:
Nil
(Page 3)
1 MASTER SANDERSON: This is an application by the plaintiff for leave to amend his statement of claim in terms of the minute of further reamended statement of claim dated 19 August 1999. For the sake of convenience, throughout these reasons I will refer to this document as the proposed minute. The action was commenced in 1996 and it relates to the will of the late Alf Clay.
2 Essentially what the plaintiff seeks to do is to have the grant of probate of that will and the codicil thereto set aside, and he seeks to do so on the basis that at the time the codicil was entered into the testator was not of sound mind and understanding and lacked testamentary capacity.
3 The writ was issued on 10 December 1996. The statement of claim has been amended on a number of occasions, the last such amendment being 7 July 1997. A minute of amended statement of claim was filed in July of this year, so some two years after the last amendment, and that has been superseded by the proposed minute.
4 What essentially the plaintiff seeks to do by this minute is to further expand the particulars of the matters which raise doubt as to the sound mind, memory and understanding of the testator and to his testamentary capacity. It is accepted by all parties that at the outset there is a presumption in favour of the validity of the grant of probate. What the plaintiff needs to do is raise matters which cast doubt on the presumption sufficient to displace the prima facie case. Having done that it is then for the defendants to satisfy the court that the deceased was of sound mind, memory and understanding and had testamentary capacity.
5 Paragraph 7.1A(a) raises a matter which refers to significant trauma to the health of the testator which was suffered on or about 14 October 1988. In my view, it is open to the plaintiff to raise the fact of significant trauma as a particular to support his case. However, I am not satisfied that it is as presently pleaded in proper form. It seems to me that all that needs to be pleaded is that the testator suffered a significant trauma, the trauma needs to be identified and the allegation then made that this affected the capacity of the testator.
6 The other matters raised in par 7.1A(a) are either irrelevant or they are not matters which are properly pleaded as particulars. Subparagraph 7.1B(b) is, in my view, not a proper plea, it taking the matter nowhere. It does not advance the case at all. It is too vague and it cannot stand.
(Page 4)
7 The amendments 7.4A, B and C all relate to an allegation that Messrs Gibson and Gibson prepared the codicil to the will in the space of one day and they seem also to relate to an allegation that the solicitors did not provide the testator with proper advice. It seems to me that these three paragraphs plead evidence or they raise matters which are of no consequence in the context of the pleading as a whole.
8 What I would be prepared to permit is a plea that Messrs Gibson and Gibson prepared the codicil in the space of one day, if in fact that was the case. Such a plea would seem to me to be a plea of a material fact or a particular which might well be a relevant consideration in the application. But as par 7.4A, B and C are presently pleaded they are not in a proper form and I would not allow them to stand. Paragraph 7.6A seems to me to be entirely irrelevant, it is not material to any matter which is raised either before or after and should not stand.
9 Paragraphs 7.8A through to 7.8G go to the question of the understanding that the testator had of his estate at the date that he signed the codicil. I would accept that the level of understanding that the testator had is a matter which might properly be the subject of a particular. For instance in Re Stott (Dec) [1981] All ER 259 Slade J, at 261, sets out particulars that were provided in that case of a plea that there was want of knowledge and lack of testamentary capacity. One of those particulars is in the following form:
"The deceased gave instructions for the said alleged will by a letter dated 5 December 1975 to Messrs Febra Slack and Co. At the date of the said letter the deceased was in a confused and disturbed mental state and was unaware of the extent of her free estate."
10 That seems to me to be a proper particular. It is alleged that the deceased was unaware of the extent of her estate. Such an allegation here could properly be made. It may be made by 7.8, although that seems to go to the question of independent advice. Whichever way it is viewed it seems to me that the matters raised in 7.8A are not proper pleas, they are a mixture of allegations and evidence and they cannot stand.
11 Paragraphs 7.9A and onwards are matters which, as I read them, are really in the nature of submissions. They are suppositions which the plaintiff has made and based upon those suppositions the plaintiff would seek to have the Court conclude that a certain state of affairs existed. It is equivalent of the plaintiff attempting to pull himself up by his own boot
(Page 5)
- straps. In my view, all of the pleas in par 7.9A through to par 7.9F cannot stand.
12 That being the case the same difficulty arises with respect to par 8 which simply picks up the particulars repeated in par 7. Paragraph 9 is redrafted to pick up matters which are raised in the additional particulars. In my view there is nothing in par 9 in its present form which is justified. The plea is that the plaintiff puts the defendants to proof of the mind, memory and understanding and the knowledge and understanding of the nature and extent of the estate of the deceased. Once that is pleaded that is all that needs to be pleaded, along of course with the testator's lack of knowledge and approval of the contents of the will and codicil. The additional words added to par 9 add nothing to the claim and, in my view, they ought not be permitted.
13 What I would propose then is to allow the plaintiff to bring in a further minute picking up the comments that I have made and I will hear the parties as to the time-frame in which that ought be done.
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