Executor Trustee Australia Ltd v Henderson - [2006] SASC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
EXECUTOR TRUSTEE AUSTRALIA LTD AND ORS v HENDERSON
Ruling of The Honourable Justice Perry
21 March 2006
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF THE COURT
In proceedings in which the plaintiffs challenged a will which had been made the subject of a grant of probate in common form, and sought an order pronouncing for the force and validity of an earlier will in solemn form of law, the Court was asked to make an order by consent, revoking the grant of probate of the later will - consideration of the questions whether such an order could properly be made by consent, without hearing evidence as to alleged want of testamentary capacity or lack of knowledge and approval of the will, whether a grant in solemn form of law of the later will should be made on affidavit evidence, and whether terms of the compromise between the parties varying the terms of the later will could properly be made a rule of court - orders made as sought.
Williams, Mortimer and Sunnucks 18th Edition [39.08] page 441; Re Muirhead [1971] P 263; Re Watts (1837) 1 Curt 594; In the estate of Edwards (deceased) (1981) 28 SASR 380; In the Estate of Szylowicz (1978) 19 SASR 263; Public Trustee v Cawthorne (1993-4) 175 LSJS 90; Wheatley v Edgar (Unreported) Supreme Court of Western Australia BC300303231 [2003] WASC 118; Haines, Succession Law in South Australia LexisNexis (Butterworths) 2003 [20.19] p 271, considered.

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - CONDUCT OF PARTIES
In applying for a consent order in the Testamentary Causes Jurisdiction of the Supreme Court, the parties' representatives failed to draw the Court's attention to a time constraint permitting parties to opt out of the settlement if the order was not made before a stated date - urgent hearing called on to deal with the matter outside of ordinary sitting times on the last day before the time limit expired - counsel offered no assistance to the Court on possibly contentious issues as to the manner in which the application might be dealt with - where there is no contradictor, it is the duty of counsel to draw to the Court's attention possibly contentious matters and relevant authority - ordered that none of the legal representatives recover costs of their attendance.

EXECUTOR TRUSTEE AUSTRALIA LTD AND ORS v HENDERSON
[2006] SASC 82
Civil

PERRY J. On 10 March 2006, I made orders disposing of these proceedings, at the same time, reserving the right to publish reasons later.
On 14 November 2002, probate in common form of what was put forward as the last will and testament of Phyllis Mary Rondahl (“the deceased”), who died on 5 September 2002, was granted by this Court to the defendant, Mary Phyllis Henderson (“Mrs Henderson”), who was the sole executor named in the will. The will was dated 27 August 1993.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Executor Trustee Australia Ltd v Henderson

Details

AGLC: Executor Trustee Australia Ltd v Henderson [2006] SASC 82
Case: [2006] SASC 82
Decision Date: 21 March 2006

CaseChat Overview and Summary

The case of Executor Trustee Australia Ltd v Henderson involved a challenge by the plaintiffs to a will that had been granted probate in common form. They sought an order declaring an earlier will, executed in solemn form of law, to be valid. The court was asked to revoke the grant of probate for the later will by consent, without the need for evidence regarding the alleged lack of testamentary capacity or knowledge and approval of the will. Additionally, the court was asked to consider whether a grant in solemn form of the later will could be made based on affidavit evidence and if the terms of the compromise between the parties, which varied the terms of the later will, could be made a rule of court. The court granted the orders as sought.

The legal issues before the court included whether an order revoking the grant of probate could be made by consent without evidence of testamentary capacity or knowledge and approval, whether a grant in solemn form could be granted based on affidavit evidence, and whether the terms of the compromise could be made a rule of court. The court held that it was within its discretion to accept affidavits from attesting witnesses as sufficient evidence for a grant of probate in solemn form. The court also found that the terms of the compromise could be made a rule of court, as the order of revocation itself was an expression of the terms of the compromise.

The court followed the approach of Sangster J in a previous case, where it was held that evidence to support a grant of probate in solemn form was a matter of the court's discretion. The court was satisfied that the affidavits of the two attesting witnesses were sufficient evidence for such a grant. Regarding the terms of the compromise, the court initially considered the decision in the Estate of Szylowicz, which suggested that the court's power to make the terms of compromise a rule of court could not be exercised when all outstanding issues had been resolved. However, the court found that the observations of Jacobs J in Szylowicz did not apply in this case, as the order of revocation was itself an expression of the terms of the compromise. Therefore, the court allowed the remaining terms of the compromise to be made a rule of court.

The court made the orders as sought, revoking the grant of probate for the later will and making the terms of the compromise a rule of court. The court also noted that no costs were awarded as the terms of compromise included a clause allowing the plaintiffs to terminate the obligations of the parties if the court did not make the orders by a specified date.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Not without some hesitation, I was in the circumstances prepared to follow the approach adopted by Sangster J in that case.Evidence to support a grant of probate in solemn form I am satisfied that it is in the discretion of the court as to what evidence it regards as sufficient to justify such a grant. In the circumstances of this case, I was prepared to accept the affidavits of the two attesting witnesses, without seeking further evidence.Making the terms of compromise a rule of court When I first gave consideration to this question, it appeared to me that the decision of this court In the Estate of Szylowicz[6] stood in the path of acceding to the request to make the terms of compromise a rule of court.[6] (1978) 19 SASR 263. In Szylowicz, the plaintiff asked the court to pronounce for the force and validity of the purported last will and testament of the deceased. The matter came before Jacobs J by way of a motion for judgment in default of a defence. In addition to the decree of probate sought, the plaintiff sought to have the terms of compromise between her and the defendant embodied in the decree as a rule of court. In the course of referring to a number of authorities, Jacobs J observed:[7]I have found no case in which the power to make the terms of compromise a rule of court has been exercised when all outstanding issues have been resolved in the course of proving the “disputed” will in some form.[7] Ibid 270. After indicating that he would pronounce in favour of the formal validity of the propounded will and order that probate of it be decreed, Jacobs J said:[8]… the power of the court to sanction in its decree a variation of the terms of the will by way of compromise, is no longer exercisable. There is no unresolved issue between the parties to support the compromise, and the will so established speaks according to its tenor. What the parties may choose to do by way of family arrangement is a matter for them, but not a matter to which the court can be called upon to lend its aid.[9][8] Ibid 271.[9] See also Public Trustee v Cawthorne (1993-4) 175 LSJS 90; Wheatley v Edgar (unreported) Supreme Court of Western Australia BC200303231 [2003] WASC 118 per Heenan J at [31]; Williams, Mortimer and Sunnucks (supra) at [39-04]; and Haines, Succession Law in South Australia, LexisNexis (Butterworths) 2003, [20.19] p 271. However, after hearing argument, I was satisfied that insofar as the order of revocation sought in this case is itself an expression of the terms of the compromise, the observations of Jacobs J in Szylowicz did not apply. I indicated that I was prepared to allow the remaining terms of the compromise to be made a rule of court.No costs When the matter was called on for mention on 1 March 2006, no reference was made by counsel to the fact that the terms of compromise include a clause which provides that:If the court shall not by 13 March 2006 make the orders [for probate of the 1992 will in solemn form and making the terms of compromise a rule of court] the second, third and fourth plaintiffs shall be at liberty by notice to the defendant and the first plaintiff to terminate the obligations of the parties under the terms of this compromise.

Decision

Reasons for decision

PERRY J

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Ratio Decidendi

Legal Principle Established

Established by: PERRY J

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