Hansen v Hansen
[2013] WASC 268
•22 JULY 2013
HANSEN -v- HANSEN [2013] WASC 268
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 268 | |
| 22/07/2013 | |||
| Case No: | CIV:2036/2010 | 1 JULY 2013 | |
| Coram: | EM HEENAN J | 1/07/13 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Leave to discontinue action for probate of alleged lost will Grant of letters of administration in solemn form of law to first defendant | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL PAUL HANSEN DARRYL GRANT HANSEN MATTHEW JAMES HANSEN |
Catchwords: | Probate Contentious proceedings Action for proof of alleged lost last will Defence that lost will had been destroyed with intention of revocation Counterclaim for letters of administration on intestacy Lost will naming only two adult children of the deceased as beneficiaries Widower and two adult children only persons entitled upon distribution in intestacy Family Court proceedings pending between deceased and husband at time of death seeking dissolution of marriage and property settlement Large estate in which unresolved claim for matrimonial property settlement constituted a significant asset Compromise of proceedings leading to agreement to discontinue claim to prove alleged lost will and for counterclaim for letters of administration on an intestacy to proceed Suitability of widower for appointment as administrator in view of Family Court proceedings Settlement of Family Court proceedings Principles relating to compromise of contested probate proceedings |
Legislation: | Administration Act 1904 (WA) Family Law Act 1975 (Cth) |
Case References: | Andrews v Hogan (1952) 86 CLR 223 Darrington v Caldbeck (1980) 20 NSWLR 212 Executor Trustee Australia Ltd v Henderson [2006] SASC 82 Fisher v Fisher [1986] HCA 6; (1986) 161 CLR 438 Powell v Dinwoodie [2012] WASC 139 Re Barraclough (dec); Barraclough v Young [1967] P 1 Re Cameron; Cameron v Public Trustee [1982] WAR 55 Re Langton; Langton v Lloyds Bank Ltd [1964] P 163 Ryan v Davies Bros Ltd (1921) 29 CLR 527 Stamford v Stamford [2012] HCA 52; 87 ALJR 74 Sykes v Sykes [2010] SASC 356 Tsagouris v Bellairs [2010] SASC 147 Vandeleur v Franich [1991] 1 Qd R 481 Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
DARRYL GRANT HANSEN
First Defendant
MATTHEW JAMES HANSEN
Fourth Defendant
Catchwords:
Probate - Contentious proceedings - Action for proof of alleged lost last will - Defence that lost will had been destroyed with intention of revocation - Counterclaim for letters of administration on intestacy - Lost will naming only two adult children of the deceased as beneficiaries - Widower and two adult children only persons entitled upon distribution in intestacy - Family Court proceedings pending between deceased and husband at time of death seeking dissolution of marriage and property settlement - Large estate in which unresolved claim for matrimonial property settlement constituted a significant asset - Compromise of proceedings leading to agreement to discontinue claim to prove alleged lost will and for counterclaim for letters of administration on an
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intestacy to proceed - Suitability of widower for appointment as administrator in view of Family Court proceedings - Settlement of Family Court proceedings - Principles relating to compromise of contested probate proceedings
Legislation:
Administration Act 1904 (WA)
Family Law Act 1975 (Cth)
Result:
Leave to discontinue action for probate of alleged lost will
Grant of letters of administration in solemn form of law to first defendant
Category: B
Representation:
Counsel:
Plaintiff : Mr P K Walton
First Defendant : Mr G K Paull
Fourth Defendant : Mr G K Paull
Solicitors:
Plaintiff : Jackson McDonald
First Defendant : Paull & Calder
Fourth Defendant : Paull & Calder
Case(s) referred to in judgment(s):
Andrews v Hogan (1952) 86 CLR 223
Darrington v Caldbeck (1980) 20 NSWLR 212
Executor Trustee Australia Ltd v Henderson [2006] SASC 82
Fisher v Fisher [1986] HCA 6; (1986) 161 CLR 438
Powell v Dinwoodie [2012] WASC 139
Re Barraclough (dec); Barraclough v Young [1967] P 1
Re Cameron; Cameron v Public Trustee [1982] WAR 55
Re Langton; Langton v Lloyds Bank Ltd [1964] P 163
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Ryan v Davies Bros Ltd (1921) 29 CLR 527
Stamford v Stamford [2012] HCA 52; 87 ALJR 74
Sykes v Sykes [2010] SASC 356
Tsagouris v Bellairs [2010] SASC 147
Vandeleur v Franich [1991] 1 Qd R 481
Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1
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1 EM HEENAN J: Patricia Irene Hansen (nee Tibbey) died on 16 December 2009 at Winthrop in the State of Western Australia. She was then aged 54 years, having been born on 8 July 1955. She had married the first defendant, Darryl Grant Hansen, on 11 May 1985 and was still married to him at the date of her death. However, there had been matrimonial differences between the two and Mrs Hansen had been separated from her husband for some time.
2 She had commenced proceedings in the Family Court of Western Australia against her husband seeking an alteration of their marital property interests. As will be described later, those Family Court proceedings had taken a somewhat slow and intermittent course because of several overtures towards a reconciliation. However, no reconciliation had been achieved despite some attempts and the parties remained separated.
3 There are two children of the marriage of the deceased and the first defendant - Matthew James Hansen, the fourth defendant, born 28 October 1985, and Michael Paul Hansen, the plaintiff, born 25 July 1987. The persons previously named as the second and third defendants (beneficiaries under one earlier will) were removed from the action on 16 November 2011. The deceased had no other children.
4 The proceedings in the Family Court were commenced by the deceased in January 2009. They were later adjourned by consent in March 2009, apparently because of prospects of reconciliation and the solicitors acting for the deceased ceased acting and returned the files and papers to her. Over the ensuing months there were various proposals for reconciliation of the deceased and the first defendant, including a visit by the deceased and the first defendant to a marriage counselling session, but despite some apparent reunions, a reconciliation did not eventuate.
5 In August 2009, that is, about five months after the consent order was made adjourning the Family Court proceedings, the deceased contacted her solicitor and instructed him to make some changes to her will. On 27 August 2009 she attended the offices of McDonald Pynt Lawyers and executed a new will, prepared by her solicitor, in accordance with these instructions. That will provided that the whole of her estate was to be distributed equally between her two sons, the plaintiff and the fourth defendant, but it made no provision for her husband or any other person. The original will was delivered to the deceased by her solicitors and apparently kept by her at her Winthrop home. In October 2009 the deceased gave her son, the plaintiff, a copy of the new will and instructed
(Page 5)- him to keep it safe. Shortly after, she told her other son, the fourth defendant, that she had recently made a new will.
7 After his mother's death the plaintiff instructed another firm of solicitors to revive the Family Court proceedings and, as a result, an application was made to proceed with the claim for property settlement in about July 2010. Such a claim for an alteration of marital property under the Family Law Act 1975 (Cth) will survive and may be continued after the death of one of the parties to the marriage: s 79(8) Family Law Act 1975 (Cth); Fisher v Fisher [1986] HCA 6; (1986) 161 CLR 438 and Stamford v Stamford [2012] HCA 52; 87 ALJR 74.
The estate of the deceased
8 By the will of 22 August 2009 the deceased appointed the plaintiff, her son, Michael Paul Hansen, and her sister, Jacqueline Dawn Schwanger, as her sole executors. In March of 2010 her sister renounced all her right and title to probate and thereupon the plaintiff applied as sole remaining executor for a grant of probate in common form of the alleged lost will. In the course of making that application the plaintiff filed a statement of assets and liabilities of the estate pursuant to rule 9B(1) Non-Contentious Probate Rules which showed that the gross value of assets within the State was some $14,274,000 and that there were debts of some $357,000. By far the largest asset was described as being the claim by the estate against the first defendant under the Family Law Act for alteration of property interests which was estimated to be worth $14 million.
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9 The motion for probate in the non-contentious jurisdiction did not proceed because of a caveat against any grant lodged by the first defendant. He asserted that the will had been revoked and that he was entitled to a grant of letters of administration of the estate upon intestacy. That resulted in the current action being commenced by the plaintiff seeking probate in solemn form of his mother's alleged lost will of August 2009.
10 There is a second statement of the assets and liabilities of the estate of the deceased filed by the first defendant in support of his counterclaim for letters of administration verified by his affidavit of 1 July 2013. This puts the gross value of the deceased's estate, all of which consists of property within the State, at some $2,464,000 and lists debts of $362,969, producing a stated net value of $2.101 million. Significantly, the value for the claim against the first defendant under the Family Law Act for alteration of property interests carries the notation 'Disputed – unable to be ascertained'. Consequently, excluding the claim in the Family Law Act proceedings, this more recent statement shows a lower value of the estate than the earlier statement submitted by the plaintiff as it does not recognise the claim in the Family Court as having any value. Questions about the value of the estate do not in any way affect the essential issue of whether or not the August 2009 will of the deceased is her last valid testament or whether she died intestate. However, they can have some bearing upon whether or not the first defendant is a suitable person to be appointed as administrator in the event that an intestacy has eventuated and that question will be examined later.
Change of parties
11 When the writ in this action was first issued on 6 July 2010 the plaintiff, Michael Paul Hansen, purported to sue as executor of the estate of his deceased mother although, at that point, no grant of probate had been made to him. This is not fatal because an executor takes his title from the will rather than from the grant of probate with the consequence that so long as a grant is obtained before it is necessary to prove his status as executor, for example, at trial or when obtaining some form of relief, that will suffice – Administration Act s 8: Ryan v Davies Bros Ltd (1921) 29 CLR 527, 536; Andrews v Hogan (1952) 86 CLR 223 and Darrington v Caldbeck (1980) 20 NSWLR 212. This is in contrast to the position of administrator whose title depends upon the grant of letters of administration even when that grant relates back to the date of death: Re Cameron; Cameron v Public Trustee [1982] WAR 55.
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12 As originally issued, the writ named two other defendants, Toni Margharita Pooley and Kathryn Erica Hearn, as second and third defendants. They were beneficiaries of an earlier will made on 28 January 2009 and were named as defendants, presumably to cater for the contingency that this earlier will had not been revoked because of some possible want of validity of the lost will of 27 August 2009. They were retained as defendants when the writ was amended on 25 November 2010, at which time the plaintiff was still suing as alleged executor of the estate of the deceased. He was then added in his personal capacity as a fifth defendant.
13 By further amendment to the writ on 16 November 2011 the plaintiff deleted his status as executor of the will, although he asserted that he had been named as the sole remaining executor in the will which he then sought to have proved and advanced, for the first time, an alternative claim for a grant of letters of administration to him as sole administrator in the event of an intestacy. The claims against the former second and third defendants, Pooley and Hearn, were abandoned and they were deleted as defendants. The plaintiff in his personal capacity was also removed as a fifth defendant, leaving the constitution of the action in its present form with the plaintiff suing in person, with Darryl Grant Hansen as first defendant, and the plaintiff's brother, Matthew James Hansen, as the only other remaining defendant but who retained the description of fourth defendant.
Evidence
14 Although a large number of affidavits have been filed in this action, both in support of and in opposition to the plaintiff's claim and in support of and in opposition to the counterclaim, in the course of events which have happened no evidence was tendered for the plaintiff and only two affidavits were tendered (or read) for the first defendant. Earlier there had been a de bene esse examination of a witness for the plaintiff who was not available to give evidence at the date fixed for the trial. The witness was called, examined and cross-examined and his evidence was recorded in the usual way for use, if so desired, at the trial. However, again because of the course of events which followed, none of that witness's evidence was tendered by the plaintiff.
15 The result is that in the action there are pleadings showing the issues arising between the parties but the only evidence which has been tendered is that in support of the counterclaim. Consequently, I have not had regard to the large quantity of other evidence which has been placed on
(Page 8)- the file but not tendered. There is nothing controversial or unusual in this course as it is entirely for the parties to determine what, if any, evidence will be put before a court in support of or in refutation of the facts alleged in the pleadings.
A probate action is, in a sense, an action in rem, and it appears to be well settled by decisions which, if not binding on this court, have stood for some time and, in my view, were properly decided, that any person who has cognisance of the probate proceedings, and had an interest which would have entitled him to intervene, is bound by the decision in the Probate Court, and cannot start a fresh action.
Accordingly, the wide-reaching effect of any judgment in probate proceedings, even if reached by consent or compromise, must always be considered when entertaining an application for a resolution of the proceedings by discontinuance, consent or compromise.
17 In the present case when counsel for the parties initially announced that agreement between them had been reached on a compromise which, if implemented, would lead to the plaintiff's claim being discontinued and the first defendant obtaining a grant of letters of administration upon an intestacy, it was submitted that these proceedings could be adjourned or dismissed and that the first defendant could make an application for letters of administration in common form in the non-contentious jurisdiction. I rejected that submission as a possible resolution because the pleadings in this action and the caveat in the non-contentious proceedings plainly showed that there were major issues of controversy over whether the deceased had died testate or intestate. Furthermore, the affidavits which were on the court file containing evidence both for and against the positions of the contending parties were such that no Registrar in the non-contentious jurisdiction could ignore them or make any grant of representation satisfied in the knowledge that there was no reason to do otherwise. Once controversy of the nature raised by the pleadings in this (Page 9)
- action had arisen, the only course to follow was to resolve it by a trial of which all potentially interested parties had notice and upon such evidence as they wished to put before the court.
19 In the present case, when the court was informed by counsel for the parties of the compromise, I considered that the appropriate procedure to be followed was to direct that the trial should proceed for hearing on such affidavit evidence as the parties wished to adduce as an uncontested matter which, if the evidence satisfied the requirements for an appropriate grant, would result in a corresponding judgment of the court. This is the course which was then followed.
The pleadings
20 It is still necessary to mention the issues which arose on the pleadings as they stood at the trial. As mentioned, the plaintiff, as the only executor of the alleged will of the deceased who had not renounced, sought proof in solemn form of the lost will alleged to have been duly made by the deceased on 27 August 2009. He alleged that the will was never revoked or destroyed by the deceased or by any person in her presence or her by direction with the intention of revoking it, but that it could not be found. Proof of the contents of the will was offered by the proof of copies already filed with the court. In the events which have happened, the only persons entitled to benefit under the will are the plaintiff and the fourth defendant and the only persons entitled to benefit upon an intestacy are the plaintiff, the first and the fourth defendants. The statement of claim includes an alternative claim in the contingency,
- denied by the plaintiff, that the deceased died intestate, in which case the plaintiff sought a sole grant of letters of administration contending that letters of administration should not be granted to the first defendant either solely or conjointly because of the conflict of interest which would arise if the first defendant were appointed as administrator or co-administrator in ascertaining, collecting or pursuing a claim for property settlement in the remaining Family Court proceedings.
21 By his defence and counterclaim the first defendant admitted the death of his late wife and that she duly executed a will on 27 August 2009 as alleged in the claim, and that that testamentary document cannot now be found. Subject to those admissions, the first defendant did not admit that the document of 27 August 2009 was a last valid will of the deceased. He pleaded specifically that at all times prior to her death the deceased had custody of the document and the opportunity to destroy it, and that during September to December of 2009 the relationship between himself and the deceased changed and she was seeking a reconciliation. In those circumstances, the first defendant pleads that the will was destroyed by the deceased with the intention of revoking it and that it was thereby revoked, producing an intestacy – any previous will having been revoked by the testament of 27 August 2009 (an implied plea which, it must be said, may be at variance with the non-admission of the validity of that document).
22 As for the Family Court proceedings, the first defendant pleaded that the deceased had instructed her solicitors not to continue them and, in any event, had not evinced any intention to do so after 12 March 2009. Furthermore, the first defendant denied that the plaintiff was entitled to any relief in those proceedings. He sought appointment as the sole administrator of her estate upon an intestacy.
23 By a reply and defence to counterclaim the plaintiff pleaded that his mother and the first defendant had attempted a reconciliation during the period May to June 2009 but that this was unsuccessful and that by June 2009 the deceased and the first defendant were living separately and apart and did not reconcile. He pleaded that in late 2008 and early 2009 the deceased had developed a close personal relationship with another person and shortly before her death had planned to leave the State and move to New South Wales indefinitely. As for the allegation that the August 2009 will had been destroyed by, or at the direction of, the deceased with the intention of revoking it, this was denied by the plaintiff, who went on to plead that the first defendant had a motive and opportunity to find and destroy that will. He further pleaded that there was power for the
(Page 11)- deceased and any executor or administrator granted representation of her estate to revive and pursue the property settlement proceedings in the Family Court.
Presumption of revocation in the case of a lost will
24 There is now a presumption of fact, and one which is therefore rebuttable, that the original of a duly executed will which was last known to be in the custody of the testator, but after a careful and appropriately comprehensive search cannot be found, that the will was destroyed by the testator with the intention of revoking it. If there is no evidence to rebut the presumption and no other will can be located, the testator is treated as having died intestate. I have referred to this presumption earlier in a number of cases, including Powell v Dinwoodie [2012] WASC 139 where, at [32], I observed:
The law has long recognised a presumption that a will which is shown to have been in the possession of the testator but which cannot be found after his death has been destroyed animo revocandi and hence revoked – Welch v Phillips (1836) 1 Moo P C 302; 12 ER 824 and McCauley v McCauley (1910) 10 CLR 434. This presumption has been recognised and considered in a series of cases, including Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 (Hasluck J); Dalton v Dalton (Unreported, WASC Library No 970479, 24 September 1977) (Parker J); and by myself in Scarpuzza v Scarpuzza [2011] WASC 65; Sawyer v McKenzie [2011] WASC 215; and even more recently in Proud v Proud [2012] WASC 134. Having reviewed those authorities in Sawyer v McKenzieI observed in that case [36] – [37]:
It has been said that where the will makes a careful and complete disposition of the testator's property and there are no other circumstances to point to a probable destruction animo revocandi by the testator, the presumption is so slight that it may be said not to exist; Sugden v Lord St Leonards (1876) LR 1 PD 154 and Finch v Finch (1867) LR 1 P&D 317 cited by Powell J in Whiteley v Clune(No 2); The Estate of Brett Whiteley (Unreported, SCNSW, 13 May 1993 [26] – [27]). Nevertheless, the presumption exists and if there are circumstances implying that it is improbable that the will would have been destroyed by the testator animo revocandi, then it will be rebutted but, if not, it will be given such weight as the particular facts and circumstances suggest.
The presumption may be rebutted by evidence that the will simply went missing or was lost, as opposed to having been destroyed with the necessary intention: Re Hampshire [1951] WN 174. The presumption may also be rebutted by evidence that the testator lacked the necessary capacity to revoke the will by destroying it.
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25 See also generally Dalpoint and Mackie: Law of Succession (2013, Butterworths) 1121. As these authorities note, the strength of this rebuttable presumption varies from case to case but unless rebutted expressly or by implication it will stand and have such evidential force as the court may consider is warranted in the particular case.
26 The position taken by the parties in the present litigation is that the plaintiff does not seek to prove the August 2009 will and offers no evidence in support of his claim for probate of that will. In view of the circumstances of the agreed compromise, including the agreement by the plaintiff and the fourth defendant that the first defendant should be entitled to obtain a grant of letters of administration, I am satisfied that this is an occasion where leave to discontinue the plaintiff's claim should be granted and I will make an order to that effect.
27 The first defendant has filed an affidavit deposing to all various matters necessary to establish an entitlement to a grant of letters of administration on the basis of an intestacy and seeks relief from the obligation to enter into any guarantee for the due administration of the estate. Both the plaintiff and the fourth defendant are equally entitled to apply for letters of administration in the event of an intestacy but each has filed a consent for the plaintiff to apply for and obtain a grant of letters of administration as sole administrator and I am satisfied that there is no other person with an equal or better right to seek any such grant.
28 Similarly, both the plaintiff and the fourth defendant agree to dispense with the need for any guarantee by the first defendant for his due administration of the estate of the deceased. The evidence adduced by the first defendant in support of his entitlement to letters of administration is contained in his affidavit of 1 July 2013 and annexures. For reasons which will now emerge, this was supplemented by a further affidavit of the first defendant of the same date deposing to agreement that proceedings for property settlement commenced in the Family Court have been resolved by the agreement between the parties to this action and that if he is granted letters of administration that claim for property alteration will be discontinued.
29 That agreement upon the resolution of the Family Court proceedings removes one obstacle to the appointment of the second defendant as administrator of the estate of Patricia Irene Hansen. As pleaded by the plaintiff, the appointment of the first defendant as administrator in circumstances where that claim remains unresolved and a potential asset of the estate, would leave him with a serious conflict of interest because
(Page 13)- of his obligation as executor to ascertain, identify and collect all the assets of the estate and to distribute them in accordance with the laws of intestate distribution contained in s 14 of the Administration Act. The claim under the Family Court Act is a potential asset of the estate and it is a claim against the first defendant personally. Having raised the significance of this issue in the course of the hearing, I was given further assurances that evidence would be provided that the present state of the claim in the Family Court proceedings had been resolved by agreement reached between the plaintiff, the first defendant and the fourth defendant to the effect that the claim will not be pursued and that it will not form any part of the assets of the estate. That removed the obstacle to the appointment of the first defendant as administrator and the orders which I proposed were conditional upon evidence to that effect being provided. This has since occurred by Mr Darryl Hansen's second affidavit of 1 July 2013.
30 The considerations which need to be evaluated by a court when faced with a proposed compromise of a contested action for grant of probate or letters of administration in solemn form were referred to generally by me in Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1 and include the careful and helpful observations of Macrossan CJ in Vandeleur v Franich [1991] 1 Qd R 481, 484 – 485. This approach has since been followed in a large number of cases in this jurisdiction and in other cases, including Sykes v Sykes [2010] SASC 356 and Tsagouris v Bellairs [2010] SASC 147, both decisions of Gray J, and by Perry J in Executor Trustee Australia Ltd v Henderson [2006] SASC 82.
31 In Tsagouris v BellairsGray J dealt with the obligation of the court to notice issues raised by the parties to the litigation about the testamentary capacity of deceased even if these were not being pursued. His Honour's remarks are equally apposite to the present case where the issue of the existence and potential validity of the alleged lost will has been squarely raised but not pursued. His Honour said at [12]:
In proceedings such as the present, the court cannot ignore issues raised regarding testamentary capacity once raised inter partes. Despite withdrawal, the allegations still warrant a vigilant examination by the court of the whole of the evidence which the parties place before it. In this respect, the following observations of the High Court in Worth v Clasohm [1952] HCA 67 [18]; (1952) CLR 439:
… The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to
- defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution …
32 I have no doubt as to the applicability of this principle to slightly different circumstances such as the present where the issue is not one of testamentary capacity but whether or not a will validly executed in the possession of the deceased was destroyed with the intention of it being revoked, producing, as a consequence, an intestacy. On the only evidence put before the court by the parties in the present case, and having regard to the existence of the presumption, I must conclude that Patricia Irene Hansen died intestate.
33 Accordingly, I will order that the plaintiff have leave to discontinue his claim for proof in solemn form of law of an alleged will of the deceased dated 27 August 2009; that the court should make a grant of letters of administration in solemn form of law to the first defendant of the estate of Patricia Irene Hansen; and that the need for an administrator's guarantee should be dispensed with. The form of the grant will be settled by a Probate Registrar and there shall be liberty to apply. Further, by consent of the parties, I will order that all orders for unpaid or reserved costs made against any party in this action be vacated and that there be no other order for the costs of the claim or the counterclaim.
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