Hayden v State Trustees Ltd
[2002] VSCA 11
•21 February 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 7762 of 2000
| ROGER ALAN HAYDEN | |
| Appellant | |
| v. | |
| STATE TRUSTEES LIMITED (as the Administrator of the Estate of WYNNE SLEIGHT) | Respondent |
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JUDGES: | CHARLES, CALLAWAY and BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 February 2002 | |
DATE OF JUDGMENT: | 18 February 2002 | |
DATE OF REASONS FOR JUDGMENT: | 21 February 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 11 | |
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Wills – Testatrix lacking testamentary capacity – Application for court-authorized will – Beneficiary under existing will proposed to be excluded – Beneficiary desiring to place further material before court – Procedural fairness – Order authorizing will set aside retrospectively – Remitted to Trial Division for expedited hearing.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G.T. Grabau | Brett R.E. Ryan |
| For the Respondent | Mr R.R. Boaden | State Trustees Ltd. |
CHARLES, J.A.:
CALLAWAY, J.A.:
BATT, J.A.:
On 27th November 2000 Donna Lynn Harris, who was then the administrator of the estate of Wynne Sleight, filed an originating motion in the Supreme Court seeking orders pursuant to s.21 of the Wills Act 1997, including an order authorizing a will to be made on Mrs Sleight’s behalf. Mrs Sleight was then aged 97 and, the supporting affidavit said, lacked testamentary capacity. A letter from her doctor exhibited to the affidavit expressed the opinion that that had been so in 1995, when she had made her last will, and may have been so in 1993, when she made three other wills. The appellant, Roger Alan Hayden, was a beneficiary under each of those wills. His mother was a beneficiary under the last of the three wills made in 1993 and the will made in 1995. The appellant was joined as a defendant to the originating motion. His mother was notified of the proceeding, but her solicitors advised that she did not wish to take any part in them.
The will submitted for the consideration of the Court resembled the last of the three wills executed by Mrs Sleight in 1993 and the will executed by her in 1995 except for the omission of the appellant and his mother from her bounty. (We say “resembled” because other changes had been made, mainly to take account of the death of one of the intended beneficiaries and a change relating to one of the charities mentioned in those wills.) A revised version of the proposed will was exhibited to an affidavit sworn by Ms Harris on 26th February 2001. By that stage she had been replaced as administrator by State Trustees Limited, which was subsequently joined as a defendant. Ms Harris continued as plaintiff.
On 8th March 2001 the proceeding came on before the judge in the Practice Court. Mr Boaden represented the plaintiff and Mr Grabau represented the appellant. There was no transcript, but the appellant’s solicitor took the following note, in which “B” refers to Mr Boaden, “J” to his Honour, “G” to Mr Grabau and “S” to counsel for State Trustees Limited:
“10.45 a.m. matter called on
B: State trustees are now administrator.
J. Situation Mr Boaden?
B.Only when we arrived that found fresh solicitors. Had expected matter would go through as consent matter. Matters deposed. Haven’t been able to do much. Puts plaintiff in difficult position. Age 97 years. Application is that matter should be dealt with now and order statutory will and if matter goes further can replace with other statutory will. Frailty of client.
J.Mr Grabau? Why should I not make the order?
G:Number of factors. Substantive. Motion claims only that a new will be substituted but no application that will be revoked.
J.Wording.
G.Motion as you read out is simply for making a new will without any and/or. Section 21 read. Apparently valid will. Haven’t heard from witnesses to old will. Submit that there is some difficulty regarding section as no revocation.
J.New will shall revoke the old. In draft there is a clause seeking to revoke.
G.Word ‘or’ indicates one or both applications can be made or this (word indecipherable). Seek leave to tender the affidavit. Defendant states in it he is very distressed. Stressed.
J.Answer is no. Do you suggest that she wouldn’t have revoked the will as he didn’t repay the $320,000.00, lost in Glasshouse Hotel. He gets appointed apparent to (word indecipherable) $350,000.00 of money. She not capable of deciding.
G.She authorised the loan before V.C.A.T. Order.
S.No evidence before Court of that.
G.Evidence wish to put to the Court including that.
J.Anything further?
G:No.
J.Proposed to grant the order granting the will. I’ll hand back the exhibits.
Matter adjourned at 10.55 a.m.”
It should be said at once that, on the hearing of this appeal, Mr Grabau did not pursue the argument that the Court cannot revoke previous testamentary dispositions in the course of making a will pursuant to s.21. That submission was quite unsustainable and counsel was right to abandon it. It should also be said that, although the hearing took only ten minutes, the case had been before the Court on a previous occasion and his Honour would have read the file.
The only question argued before us was whether the judge had unintentionally denied natural justice to the appellant. It is apparent from the solicitor’s note[1] that the appellant was denied an opportunity to place further evidence before the Court, but the point becomes clearer when reference is made to the affidavit that counsel sought to tender. It would appear that his Honour did read it quickly on the bench and that “Answer is no” does not mean that it could not be tendered or would not be read, but rather that it was not persuasive. We turn to its contents.
[1]It was not suggested that the note was inaccurate but, if Mr Boaden said that he had expected the matter to go through “as a consent matter”, that must have been a slip of the tongue. Counsel intended to say that he had expected that it would not be opposed.
The affidavit was sworn by the appellant on the morning of the hearing. It endeavoured to explain his inactivity over the preceding months by reference to alleged psychological stress and inability to fund his former solicitors. He had retrieved his file from them at 4 o’clock the previous afternoon and instructed new solicitors at 6 p.m. He claimed a relationship with Mrs Sleight which, it was implied, would explain her bounty to him in the 1993 and 1995 wills. Paragraphs 9 and 10 of the affidavit read:
“9.I refer to the affidavits of Donna Harris and others filed in support of the application for leave and deny the material allegations of fact made therein. I wish to provide more detailed factual material both answering and in opposition to the material in support. Given the time constraints, however, I am unable to do so now. Further the plaintiff’s last affidavit was received by myself by way of ordinary post, postmarked ‘6.42 p.m.’ on ‘2 March, 2001’. It arrived at my post office box on 6 March, 2001.
10.I am advised by my present legal advisors that I should give notice to cross [sic] the deponents of the material in support in order that the court is fully conversant with the complex and detailed factual matrix of this matter.”
We agree with the judge that this was a matter that admitted of little further delay. Not only was Mrs Sleight of very advanced years, but she also suffered from a terminal illness. Fortunately she is still alive.[2] But we do not accept Mr Boaden’s submission that the case was comparable with Re Davey[3], where in circumstances of great urgency a statutory will was made without any notice at all to the person it disadvantaged and the testatrix died a few days later. In our opinion, the course of this proceeding and the evidence before his Honour required that there be at least a short adjournment to enable the appellant to file additional material. We do not decide whether cross-examination should have been allowed. Having regard to the orders that we have made, that will be a question for the judge hearing the proceeding on remitter.
[2]See s.21(3).
[3][1981] 1 W.L.R. 164.
It is also apparent from the solicitor’s note that Mr Boaden submitted that the judge should go ahead and leave the appellant to apply for the making of a new statutory will. That submission was repeated on the hearing of the appeal, together with the alternative submission that the appellant could make an application under Part IV of the Administration and Probate Act 1958.[4] The difficulty with those submissions, in the present case, is that they pre-judge the question whether the appellant should be excluded from Mrs Sleight’s bounty by reason of his conduct after the making of the 1995 will.[5]
[4]Compare Re Davey at 169 and 171. We observe in passing that, in her first affidavit, Ms Harris had deposed that she was not aware of any person who was likely to make an application under Part IV.
[5]It is undesirable that we should discuss that conduct. It will have to be assessed by the judge of the Commercial and Equity Division to whom the proceeding has been remitted.
In the circumstances that we have described, we decided to hear no argument on the other grounds of appeal but immediately to set aside the order made below and remit the proceeding to the Commercial and Equity Division for expedited hearing. The foregoing are our reasons for doing so. We made orders revoking retrospectively the authority that had underlain the statutory will made in March 2001 and gave a number of directions. State Trustees Limited will become the plaintiff. The appellant has been given a short time in which to file and serve any affidavit or affidavits on which he wishes to rely and the plaintiff has been given a week in which to reply. The proceeding will be brought on for hearing on 18th March 2002.
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