Howe v Farrell - [2024] WASC 170

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HOWE -v- FARRELL [2024] WASC 170
CORAM:   HOWARD J
HEARD:   2 MAY 2024
DELIVERED          :   2 MAY 2024
PUBLISHED           :   14 MAY 2024
FILE NO/S:   CIV 1658 of 2023
BETWEEN:   PETER JOHN HOWE
Plaintiff

AND

HELENE ANN FARRELL
Defendant

Catchwords:

Application to prove will in solemn form - Following Deed of Settlement and Compromise and Supplementary Deed plaintiff given leave to proceed on an undefended basis - Where original Will cannot be located and relying on photocopy of the Will - Will proved in solemn form - Direction to grant probate of the copy of the Will

Legislation:

Non-Contentious Probate Rules 1967 (WA)

Result:

Application allowed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr P J Hannan
Defendant	:	Ms G K Lee

Solicitors:

Plaintiff	:	Vibe Legal Pty Ltd
Defendant	:	Rattigan & Associates

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

Austress v Marlin [2002] NSWSC 958
Larussa v Anna Carr as administratrix of the estate of The Late Giuseppe Larussa [2018] WASCA 127
Nurse v Morfitt [2024] WASC 96

HOWARD J:

(These reasons were delivered ex temporaneously and have been lightly edited from the transcript.)

By a Writ endorsed with a statement of claim dated 21 June 2023, the plaintiff sought the following orders:
1.a declaration that the 2008 Will is valid and effective and is the last will of the late Adrian Robert HOWE;
2.a decree pronouncing for the force and validity of the 2008 Will propounded by the Plaintiff;
3.a decree admitting the Photocopy 2008 Will to proof;
4.a decree of probate of the 2008 Will in solemn form of law be granted to the Plaintiff;
5.the grant of probate referred to in prayer (4) above be limited until the original of the 2008 Will or a more authentic copy thereof is brought into the Probate Registry of this Court;
6.such further or other relief as the Court thinks fit; and
7.costs.
The defendant filed a defence and counterclaim dated 31 August 2023. By the counterclaim, the defendant claimed:
1.a declaration that the 2008 Will is revoked and ineffective as the last Will of the late Adrian Robert HOWE;
2.a decree that the late Adrian Robert Howe died intestate;
3.a decree of probate on the basis of intestacy be granted to the Defendant; and
4.Such further or other relief as the Court thinks fit.
On 29 August 2023, the parties signed a Deed of Settlement and Compromise.
On 6 February 2024, the parties executed a Supplementary Deed.
As a result of those Deeds, by consent, Master Russell on 8 February 2024 made the following Orders:
1.the defendant has leave to withdraw her defence and discontinue her counterclaim in this action, based on the plaintiff obtaining a grant of probate, and upon these orders being made the defence shall be treated as withdrawn and the counterclaim discontinued;
2.the plaintiff has leave to set the matter down for trial on an unopposed basis pursuant to Order 73 rule 19 of the Rules of the Supreme Court 1971, without the need to file a certificate of readiness, with an estimated hearing time of 1 hour;
3.subject to any directions of the trial judge, the plaintiff's evidence at trial shall be adduced by affidavit;
4.the plaintiff shall file any affidavits on which he intends to rely by 7 March 2024; and
5.costs in the cause.
At trial, the plaintiff relied upon the following affidavits:
1.made by the plaintiff and filed 6 February 2024;
2.made 5 March 2024 by the plaintiff and filed 7 March 2024;
3.made by the plaintiff (affidavit of Scripts) 5 March 2024 and filed 7 March 2024;
4.made and filed by the plaintiff on 1 May 2024;
5.certain paragraphs of the defendant's affidavit made and filed 16 October 2023 (in particular paragraphs 1 - 10, 21, and 26 - 29); and
6.certain paragraphs of the defendant's affidavit (of Scripts) made and filed 7 March 2024 (in particular paragraphs 4 - 8 and 12 - 13 inclusively).
The plaintiff by his written submissions, properly drew the Court's attention to a discussion in Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958 [10] (Barrett J) as to whether the plaintiff could read only part of the defendant's affidavits.
Barrett J (as he then was) was dealing with an application by a party (opposed by the other party) for the first party to rely on parts of the other party's affidavit material (in an appeal).
His Honour at [10] referred to a statement made to the effect that it was not appropriate to tender part of an affidavit as a documentary exhibit where a direction had been given that the trial was to proceed by way of affidavit evidence.
A number of things might be said about that, namely:
1.it is unclear whether Barrett J approved of that statement as it appears he was, in substance, considering whether the unread affidavit by the other party remained privileged and so could not be read by the first party;
2.there was opposition in that case to the first party reading the affidavit: that is not the case here where the defendant's counsel appeared at the trial and did not oppose that tender. There is nothing to suggest that the defendant opposes the plaintiff reading any or all of her two affidavits (and, indeed, the second of them was made and filed after the Orders of Master Russell on 8 February 2024); and
3.although the plaintiff says in this case he was making a 'documentary tender' of those parts of the defendant's affidavits, I am not sure, with respect, that is relevantly so.
As I understand the difference between 'reading' an affidavit and making a 'documentary' tender of an affidavit, it is that in the case of the former there is the possibility that the deponent may be required for cross-examination; whereas that is not the case in the latter.
In this jurisdiction, deponents are not regularly cross-examined on affidavits (albeit I accept that this is a trial). Further, and perhaps more pertinently, because the matter has been ordered to proceed on an undefended basis, there was never going to be cross-examination on any of the affidavits filed.
In any event, I see no difficulty with admitting those paragraphs which the plaintiff wishes to read in circumstances where that course has been identified (through the plaintiff's submissions) to the defendant and there is no objection to that occurring.
Further, the two affidavits of the defendant have been before the Court in full and there is no risk that the Court will be left with a misleading impression by the reading of the nominated paragraphs by the plaintiff.

Facts found

Unless otherwise indicated, the following facts do not appear to have been conditions in these proceedings.
Adrian Robert Howe (Deceased) was born on 31 January 1965 and died at home on 23 April 2022.
The Deceased was married to the plaintiff's mother (Ms Dowson) on 11 November 1989.
The plaintiff is the only child of the Deceased and Ms Dowson's marriage.
The Deceased and Ms Dowson had separated by 3 June 2008. The Deceased and Ms Dowson were divorced on 24 May 2018.
On 3 June 2008, the Deceased made a will (2008 Will) which named the plaintiff as executor. The plaintiff is therefore a proper plaintiff.
The 2008 Will was prepared for the Deceased by a firm of solicitors, Rattigan Kearney & Bochat.
The 2008 Will was expressed to have been made in contemplation of the end of the marriage of the Deceased and Ms Dowson.
There does not appear to have ever been an issue between the parties that the 2008 Will was duly made by the Deceased.
By cl 1 of the 2008 Will, the Deceased revoked all previous wills and testamentary dispositions.
The 2008 Will gave the whole of the estate to the plaintiff.
The plaintiff only has a photocopy of the 2008 Will. He obtained that from the firm which had prepared it for his father, the Deceased.
At the time of the Deceased's death the defendant contends (and this is contentious) that she and the Deceased were, and had been for more than two years, in a de facto relationship.
On about 9 February 2023, the defendant lodged a caveat under r 33 of the Non-Contentious Probate Rules 1967 (WA) over the Deceased's estate. She asserted:
1.a de facto relationship with the Deceased to have commenced in about 2011;
2.on Christmas day 2019, she and the Deceased became engaged; and
3.that she and the Deceased had planned a wedding ceremony.
The original of the 2008 Will cannot be found.
There was evidence before the Court as to the searches which had been made for the original 2008 Will. I accept that all reasonable and proper enquiries and searches have been made.
Thus, it appears that the 2008 Will is presently lost.
Further, the plaintiff deposes that at no point did the Deceased do or say anything to his (the plaintiff's) observation which gave him reason to think that the Deceased intended to destroy or revoke the 2008 Will.
There is some evidence that the Deceased, at about the time he nominated the defendant as a 100% beneficiary of his superannuation fund, was contemplating changing his will. However, the statement (evidence contained at [28] of the defendant's affidavit dated 16 October 2023) made to the defendant is also probative of the Deceased's understanding that he had a binding will - ie. one which was not revoked or destroyed. I infer that was the 2008 Will.
The Court must be satisfied of the following five matters to make a grant of probate of a lost will:
1.there actually was a will;
2.the will revoked all previous wills;
3.the propounder of the will has overcome the presumption that when a will is not produced it has been destroyed with the intention of revocation;
4.there must be evidence of the terms of the will; and
5.there must be evidence of due execution of the will.
See the summary provided by Acting Master McDonald (as she then was) in Nurse v Morfitt [2024] WASC 96 [27] (citations omitted).
The only point of possible contention in this case is the third matter.
I find the following matters, which are not in dispute:
1.there was a will in the terms of the 2008 Will, which is now held in photocopy by the plaintiff;
2.the 2008 Will revoked all previous wills;
3.by the fact of its existence, its terms are evidenced; and
4.it appears to have been duly executed.
Where a will is traced into the possession of a testator and cannot be found on her/his death, there is a presumption that the testator destroyed the will with the intention of revoking the will: See Nurse[30].
There is a question as to whether the 2008 Will has been traced in the sense that it was used in Nurse and the other cases. In any event, I have proceeded on that basis for the purposes of these reasons.
The onus of rebutting the presumption of revocation is on the person applying to the Court for proof of a copy of the original will. Here, that is clearly the plaintiff: Nurse [28] (citations omitted).
The standard of proof is on the balance of probabilities: Nurse [28] (citations omitted). The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved. Even where the presumption may be weak, the Court must still be satisfied that it has been displaced - ie the Court must feel an actual persuasion that the Deceased did not destroy the will with the intention to revoke it: Nurse [34] (citations omitted).
The Court of Appeal in Larussa v Anna Carr as administratrix of the estate of The Late Giuseppe Larussa [2018] WASCA 127 [131] (Murphy & Beech JJA & Allanson J) stated:
In our opinion, the position is correctly stated in The Estate of Ralston, where Hodgson J relied on the principle, established in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, that the ordinary standard of proof on the balance of probabilities applies, but the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to be proved. Even where the presumption may be weak, the court must still be satisfied that it has been displaced - that is, in this case, the court must feel an actual persuasion that the deceased did not destroy the will with the intention to revoke it. (citations omitted)
In my view, there is evidence that the plaintiff can properly rely on to rebut the presumption of revocation. I find the plaintiff's evidence goes some way to establishing that, as does the statement the Deceased made to the defendant to which she deposes to in [28] of her first affidavit.
I am actually persuaded that the Deceased did not intend, by the time of his death, to revoke the 2008 Will.
While it is not determinative, the fact that there has been an agreement between the plaintiff and the defendant, and the defendant does not oppose the orders sought, and the fact that the plaintiff has read part of the defendant's evidence in this matter, gives me confidence in the conclusion I have reached as to my level of satisfaction.
I will make Orders accordingly.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
14 MAY 2024