HUGHES

[2021] WASC 157

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   HUGHES [2021] WASC 157

CORAM:   MASTER SANDERSON

HEARD:   ON THE PAPERS

DELIVERED          :   21 MAY 2021

FILE NO/S:   PRO 6794 of 2020

BETWEEN:   RODNEY CHARLES HUGHES

ANTHEA MAY METCALFE

Applying Executors

HAROLD CHARLES HUGHES

Non Applying Party

Catchwords:

Probate - Application for removal of caveat - Costs of caveat proceedings - Turns on own facts

Legislation:

Administration Act 1903 (WA)

Result:

Costs reserved

Category:    B

Representation:

Counsel:

Applying Executors	:	F A Robertson
Non Applying Party	:	In Person

Solicitors:

Applying Executors	:	Jackson McDonald
Non Applying Party	:	In Person

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

Hayden v Bond [2003] WASC 96

In the Will of Young (1968) 70 SR (NSW) 386

MASTER SANDERSON:

1. These reasons deal with the costs after the removal of a caveat.  On 26 March 2020, Acting Master Strk made relevantly the following orders:

   The executor/executors shall, within 21 days of the date of these orders, commence contentious proceedings to prove the last will made 30 November 2017 of the late Heather May Hughes in solemn form by issuing a writ against the caveator and proceeding in the ordinary manner.

2. The relevant background facts are as follows.

3. On 1 December 2020, the executors applied for a grant of probate of the will in common form.  On 3 December 2020, the caveator placed a probate caveat in relation to the estate of the deceased preventing the common form application from proceeding.  The grounds of the probate caveat were set out by the caveator in the alternative.  First, there were reasonable grounds to suspect that the deceased lacked testamentary capacity and that she did not know and approve the contents of the will.  Alternatively that the executors should be passed over by reason of conflicts of interest, unsuitability for office and a history of intermingling personal assets with trust assets.

4. By letter dated 17 December 2020, the executors' solicitors wrote to the caveator's solicitors providing documentation and information in response to the stated grounds of the probate caveat.  They asked that any residual concerns of the caveator be detailed within 7 days.  Failing a response, the solicitors indicated they would initiate a removal application.

5. By 2 February 2021, the executors' solicitors had not received a substantial response to their letter.  They commenced a removal application.  On 11 March 2021, in response to the removal application the caveator filed an affidavit in support of the continuation of her probate caveat.  Attached to that affidavit were various medical records in support of her concern about the validity of the will.  Upon review of those medical records, the executors accepted that some of the content thereof warranted further investigation.  On that basis they conceded that an application in solemn form was justified.

6. In the caveator's affidavit, the caveator also expressed concern that 'there are circumstances that exist that warrant further investigation by an independent administrator prior to any further consideration of the appointment of (the named executors) …'.  The affidavit goes on to allege 'financial abuse' by the named executors.  It is to be noted the executors reject these allegations and maintain there is nothing which disentitles either of them from making an application for a grant of probate.  The legal principles relating to probate caveats were not in dispute.  In Hayden v Bond,[1] Barker J set out the principles.  The test for determining whether a caveat should be removed is whether, on the  material before the court, the court considers that there are  circumstances that warrant some investigation before it should consider sealing a grant of probate in respect of the will.    The onus is on the caveator to provide some material to show that their opposition is based upon doubts genuinely entertained by them as to the validity of the will and that there are circumstances which a probate court might regard as warranting some investigation.[2]

   [1] Hayden v Bond [2003] WASC 96 [17].

   [2] Hayden v Bond [16], citing In the Will of Young (1968) 70 SR (NSW) 386, 392 (Walsh JA).

7. The threshold to maintain a probate caveat is a low one.  In this case, looking at the affidavit lodged by the caveator, it is clear that threshold had been met.  The concession by the executors was both proper and appropriate.  Although there was never any adjudication on the removal application, it must be said the application was not without substance and certainly was not doomed to fail.

8. On behalf of the caveator it was said that s 64 of the Administration Act 1903 (WA) provides that a person applying for probate may apply to have a probate caveat removed. The alternative to taking that step is seeking proof of the will in solemn form. The Act provides no guidance as to which approach is to be preferred in the prevailing circumstances.

9. In my view, in opting to seek removal of the caveat the executors acted reasonably.  True it is the medical evidence attached to the caveator's affidavit and her concerns were known to the executors prior to the application being made.  But, questions of testamentary capacity are notoriously difficult to determine.  Understandably, they may be affected by the subjective views of individuals.  It is difficult to suggest that, in taking one of the two alternatives offered under the Act, the executors behaved in a fashion which was unreasonable.

10. The executors filed a minute which effectively reserves the costs of the caveat proceedings until determination of the application for proof of the will in solemn form.  On the other hand, the caveator seeks payment of her costs by the executors personally.  I am satisfied the costs should be reserved until determination of the solemn form proceedings.  At that point, the merits or otherwise of the respective parties' position will be clear.  Accordingly there will be a costs order in terms of the minute provided by the executors.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

VV

Associate to Master Sanderson

21 MAY 2021