Herring v Dimov - [2011] WASC 50

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HERRING -v- DIMOV [2011] WASC 50

CORAM: EM HEENAN J

HEARD: 16 FEBRUARY 2011

DELIVERED : 16 FEBRUARY 2011

PUBLISHED : 28 FEBRUARY 2011

FILE NO/S: CIV 1781 of 2009

MATTER :The estate of ILIA ANASTOSSOV DIMOV formerly of Bethanie Fields Nursing Home, 111 Eaton Drive, Eaton in the State of Western Australia, retired person, deceased

BETWEEN: TAMARA LOUISE HERRING
Plaintiff
AND
JOHN LOUIS DIMOV
YANA ILIA KENYON
Defendants

Catchwords:

Wills - Probate - Application for proof of will in solemn form - Counterclaim for proof of later will in solemn form - Compromise of claims - Withdrawal of plaintiff's claim - Interest of unrepresented beneficiary - Grant of probate of later will upon the counterclaim

Legislation:

Wills Act 1970 (WA)

Result:

Grant of probate in solemn form of law of will dated 15 September 2006

Category: B

Representation:

Counsel:

Plaintiff: Mr D L Jones
Defendants: Ms M Van Der Kwast

Solicitors:

Plaintiff: Martin Hynes
Defendants: Dwyer Durack

Case(s) referred to in judgment(s):

Wheatley v Edgar [2003] WASC 118

EM HEENAN J: In her statement of claim the plaintiff is seeking a grant of letters of administration with the will annexed of the will of Ilia Anastossov Dimov made on 9 April 2002 in solemn form of law. The defendants oppose that application and, by their counterclaim, seek a grant of probate in solemn form of law of a later will dated 15 September 2006. Since the commencement of the action the parties have reached an agreement that the later will is the last valid will of the deceased and that, accordingly, the plaintiff should withdraw her claim and that, subject to satisfactory proof, probate of the second will should be granted to the defendants upon their counterclaim. Nevertheless, the court must be satisfied that a grant of probate as proposed or some other grant of representation should be made and that the defendants are entitled to a grant.
Ilia Anastossov Dimov, late of Bethanie Fields, 111 Eaton Drive, Eaton, died on 22 August 2008. He was then aged 85 years, having been born on 4 April 1923. According to the death certificate, the cause of his death was aspiration pneumonia, end stage dementia, Alzheimer's disease (contributory cause) and acute on chronic renal failure. He was divorced.
The deceased had three children, who were Stephen Anastossov Dimov, born 13 January 1952; Yana Ilia Kenyon, born 15 February 1956, the second‑named defendant; and John Louis Dimov, born 8 October 1958, the first‑named defendant. Stephen had predeceased his father, dying on 15 May 2006, leaving an only child, Tamara Louise Herring, the plaintiff in this action.
By a will dated 15 September 2006 made by his solicitors, the deceased appointed his two children, John Louis Dimov and Yana Ilia Kenyon, to be executors and trustees of his will and left the whole of his estate to such of his children as should survive him absolutely, if both then as tenants in common in equal shares. In September of 2008 the two defendants jointly applied for a grant of probate of this will. The application in the non‑contentious jurisdiction was made on 19 September 2008 and was accompanied by a joint affidavit of the two applicants, in conventional form, affidavits of the two attesting witnesses and a statement of assets and liabilities of the estate of the deceased. This showed that the estimated net value of the estate in Western Australia at the date of death was $2,456,294 consisting mainly of three separate suburban properties in North Perth and Mount Lawley, a bank deposit and an accommodation bond with some minor liabilities.
However, on 9 November 2008 the plaintiff filed a caveat (later renewed) in the probate registry against any grant of probate or representation of the estate of the deceased on the grounds that she was a beneficiary under an earlier testament which, so she claimed, was the last valid will of the deceased.
Under this earlier will made by the deceased on 9 April 2002 the late Mr Dimov appointed his elder son, Stephen Anastossov Dimov, to be his sole executor and trustee and, after the payment of all debts, taxes, funeral expenses, testamentary expenses and any death duties, directed that his trustee should distribute his residuary estate, first by a legacy of $5,000 to one Margaret Pozzi of North Perth and then the balance to his three children, John, Stephen and Yana, in equal shares but with a direction that if any of his children should die before him or survive him but fail to take a vested interest, then that child's share should vest in equal shares to the children of that child alive at his death who reached the age of 21 years. There was a further clause in the testament to the effect that if the disposition of the interest of any deceased child failed then such share should return to his residuary estate and be distributed to the other beneficiaries pro rata according to their shares.
Thereafter, on 28 April 2009 the plaintiff commenced this action seeking proof in solemn form of the will of her grandfather dated 9 April 2002 and alleging that at the time the deceased made his later will of 15 September 2006 he was not of sound mind, memory or understanding and lacked testamentary capacity to make a valid will. She sought a grant of letters of administration with the will of 9 April 2002 annexed.
On 1 October 2009 the defendants filed a defence which admitted that the deceased had made the earlier will on 9 April 2002 as alleged but pleading, in effect, that that will had been revoked by the later will dated 15 September 2006 made by the deceased then with full testamentary capacity. Both defendants counterclaimed for a grant to them jointly of probate of the later will of 15 September 2006.
The action proceeded and affidavits of scripts were duly filed by each of the parties. These revealed that there had been a third will of the deceased made on 6 September 1972, apparently his first will, which appointed his elder son, Stephen, as executor and provided for his estate to be distributed equally to his three children, Stephen, Yana and John. That will was eventually revoked by the subsequent will of 9 April 2002 and, for that reason, need not be mentioned further.
On 21 January 2010 the parties to the action attended a court conducted mediation of these proceedings before a registrar. As a result of that mediation a settlement of the claims was reached which the parties thereafter set out to have put into effect. As a result, orders were made at a case management directions hearing by Registrar Dixon on 21 May 2010 as follows:
1.Pursuant to O 73 r 19 of the Rules of the Supreme Court, the parties have leave to set this matter down for trial.
2.Evidence in this matter shall be given by affidavit and the following affidavits, filed in Probate Application 4055/08 [the original application for a grant in common form to the defendants of the will dated 15 September 2006] stand as evidence in this matter:
(a)John Louis Dimov and Yana Ilia Kenyon ‑ 18 September 2008
(b)Clive Leslie Treffry Young ‑ 13 November 2008
(c)Jacinta O'Connor ‑ 13 November 2008
3.The plaintiff
(a)have leave to discontinue the action and
(b)withdraw her defence to the defendants' counterclaim
4.There be liberty to apply.
A directions hearing of the claim and counterclaim was then listed before me on 23 August 2010 at which I was informed that, as a result of the mediation, there had been a settlement of the claims, as a result of which a deed had been entered into between all the parties providing for: an agreed distribution of the estate of the deceased; for the plaintiff to discontinue her claim for a grant of letters of administration with the 2002 will annexed; and her defence to the counterclaim for a grant of probate to the defendants of the 2006 will. I was also informed that this proposed resolution of the litigation included an agreement that the sole legatee under the 2002 will, Mrs Pozzi, would be paid that legacy of $5,000 but that she was not a party to the deed implementing the agreed terms of distribution. At no stage had Mrs Pozzi been joined as a party to these proceedings and there were no proposals, by the plaintiff or by the defendants, that she should be so joined. I then directed that the matters could be listed for trial but that at the hearing there would need to be evidence adduced that Mrs Pozzi had been given notice of these proceedings and an opportunity to appear, or that she had no wish to be joined as a party, nor any objection to the relief now being sought or some other evidence to satisfy the court that Mrs Pozzi's potential interest under the will of 2002 (if it were valid) had been duly considered.
Accordingly, the claim and counterclaim came on for hearing on 16 February 2011. On that occasion, there was produced a written consent signed by Mrs Margaret Pozzi dated 8 November 2010, by which she confirmed that she knew and understood that Ilia Anastossov Dimov had died on 22 August 2008, that he had made a will dated 9 April 2002, a copy of which was attached, under which she was to receive a gift of $5,000, and a later will of 15 September 2006, a copy of which was also attached, and under which she received no benefit.
By this acknowledgement, Mrs Pozzi confirmed that the plaintiff had applied for a grant of probate in solemn form of the 2002 will (in fact, the application is, as already mentioned, for a grant of letters of administration with that will annexed) and that the defendants had applied for a grant of probate in solemn form of the later will. Mrs Pozzi had been made aware of this action with its claim and counterclaim by a letter from the defendants' solicitors dated 16 September 2010, a copy of which was also attached. Further, Mrs Pozzi confirmed that she had been informed of the terms of the compromise between the parties under which the plaintiff would discontinue her application for a grant of representation of the first will, the defendants would seek a grant of probate of the second will, and that she, Mrs Pozzi, would receive the $5,000 that she was to be given under the first will even if probate were granted of the second will.
Mrs Pozzi also confirmed that she had been informed by the defendants' solicitors that she could: (a) propound the first will; (b) oppose the grant of probate of the second will; and (c) appear at any hearing of the matter but Mrs Pozzi recorded that she had chosen to abide by the decision of this court and confirmed that she had already been paid the $5,000 which was due to her under the compromise settlement. In the light of this evidence, I am satisfied that the court can and should proceed to deal with this claim and counterclaim in the absence of and without any further notice to Mrs Pozzi.
The plaintiff has applied for leave to discontinue her action for proof of the 2002 will and to discontinue her defence to the counterclaim. There being no objection to those applications for leave to discontinue, nor any application for costs in respect of them, I am satisfied that the plaintiff should be given leave as sought and that her claim and her defence of the counterclaim should be treated as discontinued. She appeared by counsel who proposed this course of procedure.
In Wheatley v Edgar [2003] WASC 118 I set out the principles which apply in contested probate proceedings where a compromise is reached between the contending parties leading to an agreement that one, rather than another, will should be propounded for proof, and how, notwithstanding agreement between the parties, the court still needs to be satisfied that the grant of representation in the particular form should be made ‑ see [17] ‑ [27]. In doing so, I said, [20] ‑ [24]:
A situation which can sometimes arise is where a deceased may name the same executor in two or more wills and, on the testator's death, the executor decides to propound the penultimate, or some earlier, will of the deceased because of his knowledge or because investigations lead him to conclude that the last will is invalid for want of capacity or for some other reason. A similar situation might arise where an executor decides to propound the last will of a deceased notwithstanding his knowledge that some other person is contending for the invalidity of that will and is propounding an earlier testament. The second situation is the one which arises in this case. The proper role of the executor and of the court in such situations was considered by Sholl J in Re Levy deceased [No 2] (1957) VLR 662 at 665 where his Honour said:
That indicates that the common case in which the executor was wont to make an application for proof in solemn form, after he had obtained a grant in common form, was the case in which he had reason to anticipate some question being raised as to the validity of the will and desired to have the protection which a grant in solemn form would give him. In such cases it was nevertheless the practice to grant probate in solemn form on proof of the due execution only, at all events if there was no opposition. That seems clearly enough to indicate that the executor was not, in the view of the Prerogative Court, or, after 1857, the Probate Court, bound to call before the Court of his own motion all available evidence, both favourable to and adverse to the will of which he obtained a grant in common form. The duty of such a person, after all, must be a duty to propound the instrument which the testator has appointed him to propound, if he puts it forward at all. He cannot owe any duty to take legal proceedings to destroy the instrument from which alone he takes his title, and that was pointed out in case of In the Goods of Chamberlain (1867), L.R. 1 P & D at 316, to which reference was made in Re Levy deceased [1953] VLR 652 at 655. Such an executor has, of course, no duty to put forward an instrument if he is satisfied that it ought not to be put forward. But once he does put it forward, he is entitled, in my opinion, to put it forward with only such evidence, available to him, as is in its favour.
Sholl J went on to say:-
Nor is it the duty of the Court to make its own investigation of all the facts when an application is made to it for a grant of probate in solemn form. There is, so far as I can see, no ground for saying that on such an application the Court comes under any duty, statutory or otherwise, to satisfy itself, by any form of independent investigation, of the validity of the will for which probate is sought.
That at least adequate proof of due execution of a will before there may be a grant of probate in solemn form is required, even in a case where there is a compromise between the parties, also emerges from two further decisions: In the Estate of Szylowicz deceased (1978) 19 SASR 263 and in Re Munn (2) [1943] SASR 309. In the latter case, dealing with an agreed compromise of an action for proof in solemn form, Mayo J said:
An agreement by parties not to insist on formal proof of scripts by an attesting witness, although they are available, may, particularly in the case of a small estate, where attendance may involve difficulty, or considerable expense, be useful and at times warranted, but that course raises the question whether a grant of probate in solemn form can properly follow. I have no doubt facts may be admitted or an arrangement made to facilitate proof of facts or an arrangement may be made fixing the terms of a compromise in settlement of an action for probate or revocation (see for example, Harvey v Allen (1858) 1 Sw & Tr 151: 164 E.R. 670; Wytcherley v Andrews (1871) L.R. 2 P&D. 327, but a compromise will be subject to this qualification, if a decree of probate of a will in solemn form of law is to be recorded pursuant thereto, there must be proof of the will to justify the decree in accordance with solemn form practice. In the case of compromise, Mortimer on Probate Law and Practice 2nd edition (1927), 611 puts it, 'the court must be satisfied by evidence that the will was duly executed', and at p 543, in describing solemn form proceedings the statement is made that there 'must be at least one of the attesting witnesses, to prove due execution'. I will add that unless the rules relating to such actions be actually followed the order or decree should not, so it seems to me, be in such terms, i.e. using the phrase 'in solemn form of law,' as to represent that such practice has been duly observed.
See also Morton v Thorpe & Ors (1863) 3 Sw & Tr 179; 164 ER 1242 as discussed in Re Breen deceased [1961] VR 522 by Sholl J at 523-524.
In my view these authorities produce the result that for there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the will, or by any other party to that suit, whether joined or cited, of the formal validity of the will, on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time: Barry v Butlin (1838) 2 Moo PC 480 and Pereira v Pereira [1901] AC 354 PC. In this regard the propounder may take advantage of the rule that a will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding. If there is evidence to the contrary it is for the propounder to establish affirmatively that the testator was of sound mind: Western Australian Trustee Executor Agency Co Ltd v Holmes [1961] WAR 144. Nevertheless, there must be proof at least to this extent on the civil standard to justify a grant in solemn form.
In the present case, notwithstanding the allegations made by the plaintiff in her statement of claim that the deceased did not have requisite testamentary capacity at the time he made his 2006 will, there is no evidence of any kind before the court to support that allegation. The will is regular on its face, professionally prepared and makes dispositions of the testator's estate which, on their face, are conventional and which do not suggest or imply any lack of consideration or aberration of mind. The affidavits of the two attesting witnesses confirm the circumstances of execution. One of the witnesses is a very experienced solicitor who has deposed to the manner in which he paid attention at the time to the question of the deceased's testamentary capacity and how he was satisfied that the testator was competent.
Otherwise, the evidence in the joint affidavit of the defendants in support of the original application for a grant of probate in common form establishes that the deceased was over the age of 18 years when he made the will being propounded; that he left property, including real property, within the State of Western Australia; that he had not married since making the will which is propounded for the grant of probate; and that that will had been duly executed and witnessed in accordance with the provisions of s 8 of the Wills Act 1970 (WA).
Proof of the due execution of the will, which I am satisfied has been demonstrated, carries with it a presumption, in the absence of evidence to the contrary, of contemporary testamentary capacity and, as already noted, there is no evidence to displace or dilute that assumption.
The affidavit evidence also establishes that the deceased died in this State, leaving the defendants as the only two of his three children surviving him and that his eldest child, Stephen, predeceased him, leaving only one child, the plaintiff. The defendants, as proposed grantees, have themselves already attained the age of 18 years. There is evidence that there is, so far as is known, no later will than the will of 2006 which is being propounded and there is nothing to suggest that that will had been revoked or varied in any way, whether by codicil or otherwise.

In these circumstances, I am satisfied that the defendants have established that there should be a grant of probate in solemn form of law to them of the will of 15 September 2006.
The form of the grant of probate in solemn form of law to the defendants of the 2006 will should be referred to a probate registrar for settlement but, in the event of any issue arising as to the form of order, there will be liberty to apply to this court.
There being no application in this regard by any of the parties, there will be no order as to the costs of these proceedings.