Frances Louise Cronan as executrix of the will of Henry John Regan v Cheryl Ann Coates as universal beneficiary under the will of Henry John Regan
[2024] WASC 61
•8 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: FRANCES LOUISE CRONAN as executrix of the will of HENRY JOHN REGAN -v- CHERYL ANN COATES as universal beneficiary under the will of HENRY JOHN REGAN [2024] WASC 61
CORAM: WHITBY J
HEARD: 6 MARCH 2024
DELIVERED : 8 MARCH 2024
FILE NO/S: CIV 1745 of 2022
BETWEEN: FRANCES LOUISE CRONAN as executrix of the will of HENRY JOHN REGAN
First Plaintiff
BRYN EDWARD REGAN as executor of the will of HENRY JOHN REGAN
Second Plaintiff
AND
CHERYL ANN COATES as universal beneficiary under the will of HENRY JOHN REGAN
First Defendant
JOHN HENRY REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Second Defendant
MARK JAMES REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Third Defendant
HELEN CATHERINE FOSTER as universal beneficiary under the will of HENRY JOHN REGAN
First-named Fourth Defendant
FRANCES LOUISE CRONAN as universal beneficiary under the will of HENRY JOHN REGAN
Second-named Fourth Defendant
KAYE SUZANNE REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Third-named Fourth Defendant
PAUL CHRISTOPHER REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Fourth-named Fourth Defendant
ROXANNE MAY KERR as universal beneficiary under the will of HENRY JOHN REGAN
Fifth-named Fourth Defendant
KEVIN GEORGE REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Sixth-named Fourth Defendant
BRYN EDWARD REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Seventh-named Fourth Defendant
DAVID REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Fifth Defendant
(BY ORIGINAL ACTION)
CHERYL ANN COATES as universal beneficiary under the will of HENRY JOHN REGAN
First Plaintiff by Counterclaim
JOHN HENRY REGAN as univeral beneficiary under the will of HENRY JOHN REGAN
Second Plaintiff by Counterclaim
MARK JAMES REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Third Plaintiff by Counterclaim
ROXANNE MAY KERR as universal beneficiary under the will of HENRY JOHN REGAN
First-named Fourth Plaintiff by Counterclaim
KEVIN GEORGE REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Second-named Fourth Plaintiff by Counterclaim
AND
FRANCES LOUISE CRONAN as executrix of the will of HENRY JOHN REGAN
First Defendant by Counterclaim
BRYN EDWARD REGAN as executor of the will of HENRY JOHN REGAN
Second Defendant by Counterclaim
(BY COUNTERCLAIM)
Catchwords:
Wills and probate - Informal will - Injunction to restrain solicitor - Material witness - Inherent jurisdiction - Order to provide affidavit - Practice and procedure
Legislation:
Legal Profession Uniform Law Australian Solictiors' Conduct Rules 2015 (WA)
Wills Act 1970 (WA)
Result:
Injunction granted to restrain legal practitioner from acting for the plaintiffs
Order for legal practitioner to provide affidavit evidence
Category: B
Representation:
Counsel:
| First Plaintiff | : | E Hensler |
| Second Plaintiff | : | E Hensler |
| First Defendant | : | P MacMillan |
| Second Defendant | : | P MacMillan |
| Third Defendant | : | P MacMillan |
| First-named Fourth Defendant | : | No appearance |
| Second-named Fourth Defendant | : | No appearance |
| Third-named Fourth Defendant | : | No appearance |
| Fourth-named Fourth Defendant | : | No appearance |
| Fifth-named Fourth Defendant | : | P MacMillan |
| Sixth-named Fourth Defendant | : | P MacMillan |
| Seventh-named Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
| First Plaintiff by Counterclaim | : | P MacMillan |
| Second Plaintiff by Counterclaim | : | P MacMillan |
| Third Plaintiff by Counterclaim | : | P MacMillan |
| First-named Fourth Plaintiff by Counterclaim | : | P MacMillan |
| Second-named Fourth Plaintiff by Counterclaim | : | P MacMillan |
| First Defendant by Counterclaim | : | E Hensler |
| Second Defendant by Counterclaim | : | E Hensler |
Solicitors:
| First Plaintiff | : | HWL Ebsworth Lawyers |
| Second Plaintiff | : | HWL Ebsworth Lawyers |
| First Defendant | : | Eastwood Law |
| Second Defendant | : | Eastwood Law |
| Third Defendant | : | Eastwood Law |
| First-named Fourth Defendant | : | No appearance |
| Second-named Fourth Defendant | : | No appearance |
| Third-named Fourth Defendant | : | No appearance |
| Fourth-named Fourth Defendant | : | No appearance |
| Fifth-named Fourth Defendant | : | Eastwood Law |
| Sixth-named Fourth Defendant | : | Eastwood Law |
| Seventh-named Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
| First Plaintiff by Counterclaim | : | Eastwood Law |
| Second Plaintiff by Counterclaim | : | Eastwood Law |
| Third Plaintiff by Counterclaim | : | Eastwood Law |
| First-named Fourth Plaintiff by Counterclaim | : | Eastwood Law |
| Second-named Fourth Plaintiff by Counterclaim | : | Eastwood Law |
| First Defendant by Counterclaim | : | HWL Ebsworth Lawyers |
| Second Defendant by Counterclaim | : | HWL Ebsworth Lawyers |
Case(s) referred to in decision(s):
Barrack Corporation Pty Ltd v The Kara Group of Companies Pty Ltd [2014] NSWCA 395
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 5] [2016] WASC 263
Chant v Curcuruto; Chant v Curcuruto [2021] NSWSC 751
Commonwealth Bank of Australia v Jackson McDonald (A firm) [2014] WASC 301
George 218 Pty Ltd v Bank of Queensland Ltd [2017] WASC 232
Hatsatouris v Hatsatouris [2001] NSWCA 408
Holborow v MacDonald Rudder [2002] WASC 265
In the Estate of Shirley Kendall [2020] ACTSC 42
Kallinicos v Hunt [2005] NSWSC 1181
Makripoulias v Arhontoavasilis [2022] VSC 53
Oreski v Ikac [2008] WASCA 220
Re Estates Brooker-Pain and Soulous [2019] NSWSC 671
The Queen v Silverstein [2020] VSCA 233
Wild v Meduri [2023] NSWSC 113
Young v Martin [2018] WASCA 206
WHITBY J:
On 29 September 2021, Henry John Regan died. Henry was married to Helen Rose Regan. Helen died on 30 August 2019, predeceasing Henry.
Henry and Helen had ten children. Those ten children are the parties to this action. Given many of the parties share the same last name I will refer to all of the individuals by their first names with no disrespect intended.
The plaintiffs are Frances Louise Cronan and Bryn Edward Regan. Frances and Bryn are executors and trustees under an informal will signed by the Henry on 12 September 2021 (2021 Will).
Frances and Bryn seek an order that the court pronounce the force and validity of the 2021 Will.
The first, second, third and fourth defendants are Henry and Helen's other children. The fifth defendant is Henry's brother.
When Henry died he was living in the family home at 78 Elvira Street in Palmyra with Bryn who is also the seventh-named fourth defendant.
Cheryl Ann Coates, John Henry Regan, Mark James Regan, Kaye Suzanne Regan, Roxanne May Kerr and Kevin George Regan, the first, second and third defendants and fifth and sixth-named fourth defendants respectively, say that Henry was not of sound mind, memory or understanding and lacked testamentary capacity at the time he signed the 2021 Will. They say that Henry did not have knowledge of and approve of the contents of the 2021 Will. I will refer to these parties as the active defendants.
Cheryl, John and Mark, by way of counterclaim, seek an order that the court pronounce the force and validity of an informal will of Henry dated 1 May 2010 (2010 Will).
Application
By chamber summons dated 16 November 2023, the active defendants applied for orders to have Ms Cassandra Michelle Guy provide evidence by affidavit in the proceedings and for an injunction restraining Ms Guy from continuing to act in the proceedings (Application).
The Application is brought on the basis that the court should restrain Ms Guy from continuing to act on behalf of Frances and Bryn because she is a material witness in the action.
The active defendants rely upon the following in support of the Application:
(1)affidavit of Cameron Victor Eastwood sworn on 28 August 2023;
(2)affidavit of Cameron Victor Eastwood sworn on 1 November 2023; and
(3)written submissions dated 18 December 2023.
Frances and Bryn oppose the Application and rely upon the affidavit of Luke Jarrad Bone sworn 19 January 2024 and their written submissions dated 23 January 2024.
Henry's wills
There are two wills of Henry that are relevant to the dispute - the 2010 Will and the 2021 Will.
2010 Will
On 1 May 2010, Henry signed the 2010 Will at the foot of the first page in the presence of Thelma Joy Faulds and Donald Reese Faulds. Henry did not sign page 2 of the 2010 Will, but Mr and Mrs Faulds did.
The terms of the 2010 are to the following effect[1]:
[1] Affidavit of Scripts of Mark James Regan sworn 31 August 2022 (Mark's Affidavit); Annexure MJR-2.
(1)Clause 2 appointed Helen, Frances and Mark as executors of Henry's estate;
(2)Clause 3 gifted the whole of Henry's estate to Helen if she survived him by 14 days;
(3)If Helen did not survive Henry for a period of 14 days then:
(a)Clause 3(a)(i) gifted Henry's share in the family business known as Fremantle Thermal Insulation to Bryn;
(b)Clause 3(a)(ii) gifted Henry's share in his horses to Bryn with the condition that when the horses are sold that Henry's share of the sales less any debits than may be due against his share, the proceeds be divided equally between Henry's 10 children; and
(c)Clause 3(a)(iii) gifted the residue of the estate to each of Henry's children in equal shares.
2021 Will
Frances and Bryn plead that Henry signed the 2021 Will on every page in the presence of Bryn and Mr Robert Hunter, with Mr Hunter attesting to Henry's execution of the 2021 Will. They also plead that Mr Matthew Whitford-Smith attested to the Henry's execution of the 2021, but that he was not in the same room at the time that Henry signed the 2021 Will. The active defendants do not admit that Henry signed the 2021 Will and that, even if he did sign the 2021 Will, they deny that Henry had knowledge of and approved of its contents.
The terms of the 2021 Will are to the following effect:[2]
[2] Mark's Affidavit; Annexure MJR-5.
(1)Clause 1 revoked all former wills and testamentary acts made by Henry;
(2)Clause 2 appointed Bryn and Frances as executors of Henry's estate;
(3)Clause 6 granted Bryn the right to reside in the family home on the following terms:
(a)Bryn shall be permitted to reside at the family home for as long as he wishes for his life and the executors shall not sell or require Bryn to vacate the family home if he:
(i)pay the rates, taxed and reasonable insurance premiums on the family home;
(ii)keeps the family home in good and tenantable repair; and
(iii)pays one half the costs of keeping the family home in a good and tenantable repair.
(b)When Bryn:
(i)ceases to live at the permanently at the family home;
(ii)has failed to comply with the terms of this right of occupation; or
(iii)otherwise by mutual agreement,
then this right of occupation shall end and the family home shall form part of the balance of Henry's estate.
(c)The right of occupation shall be binding on Henry's executors, administrators, successors, substitutes and permitted assignees, including any person taking by way of novation.
(4)Clause 7 gifted:
(a)the family home, subject to the right of occupation granted to Bryn, gifted the family home to those of Cheryl, Helen, Mark, Frances, Kaye, Paul, Roxanne Kevin and Bryn who survived Henry in equal shares;
(b)Henry's shares in Poulet Pty Ltd to Bryn;
(c)Henry's share of any horses that he owned or leased to be shared between those that are already in the horse if they so wish.
(5)Clause 8 gifted the residue of Henry's estate to such of his children as survived him in the following shares:
(a)John 1%
(b)Cheryl 10%
(c)Helen 10%
(d)Mark 10%
(e)Frances 10%
(f)Kaye 10%
(g)Paul 10%
(h)Roxanne 10%
(i)Kevin 10%
(j)Bryn 10%
(k)David (Henry's brother) 9%
(6)Clause 10 states that Henry has carefully considered his obligations towards John and that he does not wish to leave any further provision of his estate to John as Henry has provided funds, shares, employment and business opportunities to John during Henry's lifetime. Henry expresses the belief and wish that no further provision for John be made from his estate as John has been adequately provided for during Henry's lifetime.
The pleadings
Frances and Bryn plead that:
(1)In July or August 2021, Henry instructed Frances to prepare a new will for him;
(2)Frances prepared a document in terms of the 2021 Will and discussed its contents with Henry;
(3)Henry told Frances that he understood and approved of the draft 2021 Will and its contents;
(4)Frances emailed the draft 2021 Will to Bryn for him to print and for Henry to sign;
(5)Bryn printed the draft 2021 will for Henry to sign;
(6)On 12 September 2021, Bryn read out loud the draft 2021 Will to Henry, in the presence of Mr Hunter, and asked Henry whether he approved of its contents;
(7)Henry told Bryn, in the presence of Mr Hunter, that he approved of the contents;
(8)Henry then signed every page of the 2021 Will at the foot of each page in the presence of Bryn and Mr Hunter;
(9)Mr Hunter attested to Henry's execution of the 2021 Will;
(10)Mr Whitford-Smith then attested to Henry's execution of the 2021 Will but he was not in the same room as Henry when Henry signed the 2021 Will.
Frances and Bryn say, that in these circumstances, Henry understood the effect of, and knew and approved of the contents of, the 2021 Will when he signed it. They say that the 2021 Will embodies Henry's testamentary intentions at the date of his death, even though it was not executed in accordance with the formal requirements contained in the Wills Act 1970 (WA) (Wills Act).
The active defendants plead that:
(1)the initial draft of the 2021 Will was prepared by Ms Guy, on 24 February 2020 without instructions from Henry;[3]
(2)that, in February 2021, at a family dinner at Frances' house, Ms Guy presented Henry with a further draft of the 2021 Will, which Henry refused to read;
(3)deny that Bryn read the 2021 Will out loud to Henry, but say that even if he did:
(a)Bryn was incapable of giving a proper explanation of the 2021 Will to Henry because he was not a legal practitioner;
(b)Henry was deaf at that time and did not wear hearing aids;
(c)Henry was not capable of comprehending and approving the contents of 2021 Will;
(d)if Henry was capable of comprehending and approving the contents of the 2021 Will, any approval expressed by Henry occurred without the benefit of any or any proper explanation of the material terms of the 2021 Will;
(e)from at least the beginning of 2020, Henry suffered from a number of illnesses and medical conditions and from at least 7 July 2021, was taking a range of medications and did not understand that he was making a will, the extent of the property that he was disposing of and the claims to which he ought give effect.
[3] At the hearing of the application, when questioned about whether the active defendants maintained this plea, counsel indicated that the defence would be amended to reflect that the active defendants now say, after reviewing the evidence of Mr Cronan, that Ms Guy did take instructions from Henry.
Frances and Bryn deny that Ms Guy attended a dinner party at Frances' house where Henry was present.
Legal principles
Injunction restraining lawyer from acting
The courts do not lightly deprive litigants of their choice of lawyer.[4] It is only in exceptional and unequivocal circumstances that the court will exercise its discretionary power to restrain solicitors from acting in a proceeding.[5]
[4] Commonwealth Bank of Australia v Jackson McDonald (A firm) [2014] WASC 301 [26].
[5] Holborow v MacDonald Rudder [2002] WASC 265 [31].
The rationale for the exercise of the court's jurisdiction to grant an injunction restraining a solicitor from acting was described by Heenan J in Holborow v MacDonald Rudder in the following terms: [6]
If there are circumstances which are likely to imperil the discharge of these duties to a court by a legal practitioner acting in a cause, whether because of some prior association with one or more of the parties against whom the practitioner is then to act, or because of some conduct by the practitioner, whether arising from associations with the client or a close interest which gives rise to the fair and reasonable perception that the practitioner may not exercise the necessary independent judgment, a court may conclude that the lawyer should be restrained from acting, even for a client who desires to continue his service…
From the wider viewpoint, including the perspective of the legal practitioner's duty to the court, it can readily be perceived that this situation justifies intervention by the court because of an actual or sufficiently material threatened conflict of interest by the practitioner, as an officer bearing fiduciary obligations, between his obligations to the court, and his obligations to the client or to some other interest. So it has long been accepted that a legal practitioner, who is likely to be a witness in a case should not act as counsel, or continue to act as counsel if a situation arises where he is unexpectedly required to give evidence. The reason being is that the personal integrity of the practitioner may be put in issue if his credibility is at stake as a witness, and that this will, or may, constitute a personal interest inconsistent with the practitioner's duty to the court or to the client. Other similar conflicts of interest can arise if, for example, the counsel or solicitor had a substantial personal stake in the litigation such as, for example, if he or she were to be a partner in a firm which was a party to the litigation, or a substantial shareholder in a corporation which was a party. (citations omitted)
[6] Holborow v MacDonald Rudder [28 - 29].
This principle is embodied in r 27 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (WA):
27.Solicitor as material witness in client's case
27.1In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as an advocate for the client in the hearing.
27.2In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member must not continue to act for the client if doing so would prejudice the administration of justice.
In determining whether a solicitor continuing to act, if a material witness, would prejudice the administration of justice, the test to apply is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the solicitor should be prevented from acting in the interests of the protection of the integrity of the judicial process and the due administration of justice including the appearance of justice.[7]
[7] Belgravia Nominees Pty Ltd v Lowe Pty Ltd[No 5] [2016] WASC 263 [35].
The fact that a practitioner may be required to give evidence does not automatically result in the court granting an injunction restraining them from acting. There must be a realistic sense of impropriety about the circumstances which suggests that unless the injunction is granted, the integrity of the judicial practice would be undermined. [8]
[8] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 5] [2016] WASC 263 [40].
If a lawyer is giving evidence of a formal nature or about a minor matter then it is unlikely that an injunction will be granted which restrains the lawyer from continuing to act.[9]
Ordering a person to give evidence by affidavit
[9] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 5] [2016] WASC 263 [40]; George 218 Pty Ltd v Bank of Queensland Ltd [2017] WASC 232 [24].
In actions commenced within the contentious probate jurisdiction of the court, the court may enquire as to the process by which the document sought to be proved as a will was produced. In the case of Re Estates Brooker-Pain and Soulous,[10] the court considered case management principles in the context of production of documents in aid of probate proceedings. As to whether the court may order a party to provide evidence on affidavit in such proceedings, Lindsay J said:[11]
Upon an application of case management principles, it is open to the Court, on the application of an interested party or on its own motion, to order that a solicitor (or other person) who prepared, or arranged for execution of, a will explain the circumstances in which the will was prepared and executed. Such an order might require the person to whom it is addressed to attend before the Court for examination. However, in most instances, it is likely to be made, at least in the first instance, in the form of an order for the provision of an affidavit, or affidavits.
[10] Re Estates Brooker-Pain and Soulous [2019] NSWSC 671.
[11] Re Estates Brooker-Pain and Soulous [2019] NSWSC 671 [98].
Issues arising in the Application
The following issues arise for determination on the Application:
(1)will Ms Guy be required to give evidence material to the determination of contested issues before the court? In order to answer this, I must consider the likely contested issues in the action.
(2)if the answer to (1) is yes, then would it prejudice the administration of justice if Ms Guy continues to act for Frances and Bryn?
(3)should Ms Guy be ordered to provide evidence on affidavit?
Will Ms Guy be required to give evidence material to the determination of contested issues before the court?
Contested issues - relevant evidence
On 20 July 2023, I made orders that the trial of this action is to proceed on affidavit evidence and such evidence stand as the evidence in chief of those deponents as witnesses at the trial.
The parties have filed the evidence of their witnesses by affidavit.
I summarise below the affidavit evidence filed by the parties that goes to the preparation and execution of the 2021 Will. In doing so, I do not make any findings of fact for the purposes of this Application or the trial of the action.
Helen Foster (Helena) says that in December 2019, Henry asked her to prepare a new will for him. She prepared the will, printed it, and left it on the kitchen table of the family home for Henry to review. This was a draft of what is referred to as the 2020 will.[12]
[12] Affidavit of Helen Catherine Foster sworn 22 August 2023 (Helena's First Affidavit) [50 - 53].
Mr Tom Cronan, Frances' son and Henry's grandson, says that on 30 January 2020, Ms Guy met with him and Henry at Tom's house. The meeting went for about 90 minutes and Tom's evidence is:
as to the discussions between Henry and Ms Guy during the meeting about wills; and
relevantly, that Henry told Ms Guy that he wanted to ensure that while Bryn was using the workshop out the back of the house, Bryn would be able to stay in and use the house/workshop; and that he wanted to make sure that was in his will.[13] (emphasis added)
[13] Affidavit of Tom Cronan sworn on 21 August 2023 (Tom's First Affidavit) [7], [12], [15], [16], [17]; Annexures TC 2, TC 3 and TC4.
Tom says that sometime after that meeting between Henry and Ms Guy, Henry told Tom that he wanted Ms Guy to prepare his will, that the will should be the same as his other will, but that it should have a term that the house could not be sold, and Bryn should be allowed to live in the house while he was using the workshop out the back for work and that Tom should speak to Ms Guy and give her everything she needed to do that.[14]
[14] Tom's First Affidavit [10].
On 11 February 2020, Tom says he called Ms Guy and their conversation was to the effect that Henry had told Tom that he wanted Ms Guy to prepare a new will for him, that he wanted his will to be along the same lines as a draft 2020 will and what 'they had discussed' and Ms Guy asked for a copy of the 2020 draft will.[15]
[15] Tom's First Affidavit [12].
Tom says he called his mother Frances after speaking to Ms Guy and asked her to email him a copy of the 2020 draft will. On 11 February 2020, Frances emailed an incomplete copy of the draft 2020 will to Tom. On 11 February 2020, Tom forwarded that email to Ms Guy and wrote 'no house sale whilst Bryn is still using the place for work'.[16]
[16] Tom's First Affidavit [14 - 15]; Annexure TC-2.
On 17 February 2020, Tom forwarded the draft 2020 will to Ms Guy a second time and sent Ms Guy a text message in which he said, inter alia, '[a]nd the part about Bryn staying in the house can't sell'.[17]
[17] Tom's First Affidavit [16] - [17]; Annexure TC-4.
On 21 February 2020, Henry was admitted to hospital and a few days later, diagnosed with multiple myeloma.[18]
[18] Helena's First Affidavit [71 - 72], [82 - 84].
On 22 February 2020, Tom sent a text message to Ms Guy advising there was a 'bit of an issue'.[19]
[19] Tom's First Affidavit at [20 - 22].
On 24 February 2020, Ms Guy emailed a draft will she had prepared to Tom. In the email Ms Guy noted that she had questions and requested a call or meeting with Henry to take his instructions.[20] By reply email on 24 February 2020, Tom advised Ms Guy that he was heading oversees for work and to liaise with Helena.[21] On 24 February 2020, Tom emailed this draft will to Helena.[22]
[20] Tom's First Affidavit [25]; Annexure TC-6.
[21] Tom's First Affidavit [27]; Annexure TC-7.
[22] Helena's First Affidavit [73].
On 27 February 2020, Helena emailed Ms Guy copies of a trust deed and company constitution but noted that Henry was not well and requested that preparation of his will be placed on hold.[23]
[23] Helena's First Affidavit [75].
Nearly one year later on 16 February 2021, Frances emailed Ms Guy asking for a copy of the will she had drafted for Henry. Ms Guy emailed a copy of the draft will to Frances on the same day.[24]
[24] Affidavit of Frances Louise Cronan sworn on 1 November 2023 (Frances' November 2023 Affidavit) [14].
On 3 March 2021, Henry told Mark that, the week before, he had dinner at Frances' home and that Ms Guy was there and discussed his draft will with him.[25]
[25] Affidavit Mark James Regan sworn on 18 September 2023 [377] - [418]; Affidavit Cheryl Ann Coates sworn on 14 September 2023 [110] - [113].
In or about July or August 2021, Frances says that Henry asked her to help him prepare a new will. During that discussion, Henry told Frances, amongst other things, that he had met with Tom and Ms Guy some time ago and he wanted to finalise the new will that Ms Guy had drafted.[26] (emphasis added)
[26] Affidavit Frances Louise Cronan sworn on 31 August 2022 (Frances' August Affidavit) [22], [79] - [80], [243] - [245].
Frances says that Henry told her that he wanted to keep the right of possession for Bryn to stay living in the family home, keep the gift of the family home between Frances and her eight siblings equally (excluding John), change the gifts of the balance of the estate such that Mark receives an equal tenth share of the balance of the estate, John only receives 1% of the balance of the estate and Uncle Davey receives the other 9% balance of the estate. (emphasis added)
Frances amended the draft will prepared by Ms Guy in accordance with Henry's instructions.
The active defendants suggest that Ms Guy is a material witness as she took instructions from Henry in preparing the first draft of the 2021 Will. The active defendants say that Ms Guy will be cross-examined as to her involvement in obtaining instructions from Henry in relation to drafting a new will for him.
Contested issues arising in the proceedings
Frances and Bryn contend that the Henry's informal 2021 Will is valid.
Section 8 of the Wills Act provides:
Subject to sections 17 and 20 and Parts XA, X and XI, a will is not valid unless –
(a)it is in writing; and
(b)it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's direction, in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator's will; and
(c)the testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and
(d)the witnesses attest and subscribe the will in the presence of the testator but no publication or form of attestation is necessary.
Part X of the Wills Act comprises s 32, s 33, and s 38. Section 32(2) provides:
A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes –
(a)a will of the person; or
(b)an alteration to a will of the person; or
(c)the revocation of a will of the person; or
(d)the revival of a will or part of a will of the person, if the Supreme Court is satisfied that the person intended the document to constitute the person's will, an alteration to the person's will, the revocation of the person's will or the revival of a will or part of a will of the person, as the case may be.
Section 32(3) of the Wills Act provides that the court may have regard, in addition to the document, to 'any evidence relating to the manner of execution or testamentary intentions of the person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the person'.
In Oreski v Ikac;[27] Newnes JA said of s 34 (which was the equivalent to s 32 before amendment to the Wills Act in 2007):
It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased's testamentary intentions, that is not of itself sufficient. Section 34 does not enable any document which expresses the deceased's testamentary wishes to be admitted to probate. The document must be intended to be the legally operative act which disposes of the deceased's property upon their death; that is, it must have been intended by the deceased to have present operation as his or her will. Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased's lifetime, or to be a note of instructions, or a draft will or a 'trial run'…
It is therefore of fundamental importance that the person seeking to propound the document establish that the deceased, by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will.
[27] Oreski v Ikac [2008] WASCA 220 [54] - [55] (citations of authority omitted) cited with approval in Young v Martin [2018] WASCA 206 [14].
In considering whether the 2021 Will constitutes Henry's will, Frances and Bryn bear the onus of satisfying the court of the following three matters:[28]
(1)there is a document;
(2)the document purports to embody Henry's testamentary wishes; and
(3)the court is satisfied, on the basis of the evidence before it, that Henry, by some words or acts, demonstrated it was his intention that the document should without more on his part operate as his will.
[28] Hatsatouris v Hatsatouris [2001] NSWCA 408 [56].
Frances and Bryn plead that Henry understood the effect of and knew and approved of the contents of the 2021 Will when he signed it and therefore, the 2021 Will embodies Henry's testamentary intentions.
The clause in the 2021 Will which purports to grant a life interest to Bryn appears to be the clause which is at the heart of this action. It did not appear in any earlier wills of Henry and its effect has a significant impact on the other beneficiaries of the 2021 Will. Some of the material issues to be determined are whether Henry knew the effect of that clause, whether he knew and approved of it being contained in the 2021 Will and whether it embodied his testamentary intentions.
Determination - is Ms Guy a material witness?
When summarising the evidence, I placed emphasis on a number of portions thereof. That is for this reason - the evidence upon which Frances and Bryn rely clearly demonstrates that Henry and Ms Guy discussed, amongst other things, Henry's wish to include a clause in his 2021 Will providing Bryn with a life interest in the family home. This clause, and the provenance thereof, is a central issue in this action.
The evidence of Tom is that he asked Ms Guy to prepare a will for Henry along the same lines as a draft 2020 will and what 'they had discussed'. I infer that this is a reference to what Ms Guy and Henry had discussed when they met as Tom refers to 'they' not 'we'. Ms Guy then prepares a draft will which includes a clause granting Bryn a life interest in the family home. It is difficult to conclude, on the evidence relied upon by Frances and Bryn, that Ms Guy drafted a will for Henry merely on the instructions of Tom, without reference to her discussions with Henry.
The life interest clause as drafted by Ms Guy appears in identical terms in Henry's 2021 Will (save for the removal of one subparagraph that provides Bryn may register the life interest).
It is clear that it is open for the court to find that the provenance of the 2021 Will is the draft will prepared by Ms Guy, albeit on incomplete instructions, from Henry.
Frances and Bryn submit that Ms Guy's evidence is not material to any contested issue in the action because the 2021 Will that Henry signed was prepared by Frances, on Henry's instructions, contained changes to the draft will prepared by Ms Guy, was not executed until 18 months later and Ms Guy was not present at the time that Henry executed the 2021 Will. Frances and Bryn say that these facts distinguish this case from the cases referred in the active defendants' submissions.[29]
[29] The Queen v Silverstein [2020] VSCA 233 [118]; Barrack Corporation Pty Ltd v The Kara Group of Companies Pty Ltd [2014] NSWCA 395 [44], [47]; Wild v Meduri [2023] NSWSC 113 [265], [292]; Makripoulias v Arhontoavasilis [2022] VSC 53 [13], [16]; In the Estate of Shirley Kendall [2020] ACTSC 42.
I accept that the cases referred to by the active defendants do not mirror the facts in this case. However, that does not mean that Ms Guy is not a material witness in relation to a contested matter in this action.
In Hatsatouris v Hatsatouris,[30] the NSW Court of Appeal observed that it is necessary for a court to be satisfied that the deceased possessed the relevant intention either at the time the document was brought into being or at some later time.
[30] Hatsatouris v Hatsatouris [2001] NSWCA 408 [56].
In my view, it is open on the evidence before the court to find that the draft will prepared by Ms Guy, on some instructions from Henry, was utilized in preparing the 2021 Will.[31]
[31] Therefore, Ms Guy is a material witness as to the instructions she took from Henry, as this goes to Henry's testamentary intentions at the time that the 2021 Will was brought into being.
I find that Ms Guy is required to give evidence material to the determination of contested issues before the court.
Would it prejudice the administration of justice if Ms Guy continues to act for Frances and Bryn?
Frances and Bryn contend that, even if Ms Guy is a material witness (as I have found), she should not be restrained from acting for them because the active defendants have not demonstrated any actual or potential conflict on the part of Ms Guy.
They also say, relying upon the case of Kallinicos v Hunt,[32] that the lateness of the Application is a relevant consideration in refusing to grant an injunction restraining Ms Guy from acting. They say that the cost, inconvenience and impracticality of restraining Ms Guy from acting at such a late stage of the proceedings provides a reason to refuse relief.
[32] Kallinicos v Hunt [2005] NSWSC 1181 [76].
Having found that Ms Guy is a material witness, it is undesirable, in my view for her to continue to act for Frances and Bryn. Although there is no suggestion of impropriety on Ms Guy's part, there is the potential for Ms Guy's duties to the court to conflict with her obligations to her client. I am satisfied that, where Ms Guy is a material witness in relation to instructions given to her by Henry in relation to the first draft of what formed the basis of the 2021 Will and she is acting for parties who are seeking to prove the 2021 Will, a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that she not continue to act.
The issue of the inconvenience, cost and impracticality that Frances and Bryn may suffer as a result of Ms Guy being restrained from acting for them can be alleviated by allowing the firm they have instructed to continue to act for them. Mr Luke Bone, another practitioner at that firm, has been involved in the preparation of Tom's affidavit evidence[33] and Ms Hensler is briefed as counsel for Frances and Bryn. I am of the view that there is no risk posed to the administration of justice by allowing the firm of solicitors to continue to act for Frances and Bryn.
Should Ms Guy be ordered to provide evidence on affidavit?
[33] Affidavit of Luke Jarrad Bone sworn on 19 January 2023 [6].
The circumstances in which the 2021 Will came into existence are not simply matters upon which the active defendants may submit that the court should draw an adverse inference against Frances and Bryn from the failure to provide evidence from Ms Guy. The only inference that can be drawn from such failure is that the uncalled evidence would not have assisted Frances and Bryn's case - the court cannot draw an inference that the evidence of Ms Guy would have positively damaged their case. Further, the failure of Ms Guy to give evidence cannot fill gaps in the evidence or allow the court to speculate as to what Ms Guy's evidence would have been.[34] Tom's evidence is that he was not present for the entire meeting between Henry and Ms Guy - his evidence cannot fill in those gaps.
[34] Chant v Curcuruto; Chant v Curcuruto [2021] NSWSC 751 [78].
I consider that, in order to facilitate a resolution of the contested issues in the action in a cost effective, timely and fair manner, Ms Guy should be ordered to provide an affidavit deposing to the circumstances in which she prepared Henry's draft will.
Summary
Ms Guy is a material witness and it would prejudice the administration of justice if she continues to act for Frances and Bryn. I grant an injunction to restrain her from doing so.
It is appropriate that Ms Guy provide an affidavit deposing to the circumstances in which she prepared Henry's draft will.
The parties should confer and attempt to agree consent orders reflecting these reasons. In the event that orders cannot be agreed within 7 days of the date of these reasons, the parties are to file competing minutes of proposed orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
8 MARCH 2024
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