Mackay v Mackay - [2023] WASC 241

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MACKAY -v- MACKAY [2023] WASC 241
CORAM:   MASTER SANDERSON
HEARD:   9 & 18 MAY 2023
DELIVERED          :   29 JUNE 2023
FILE NO/S:   CIV 1273 of 2023
BETWEEN:   MARK LEWIS MACKAY
Plaintiff
AND
JULIE GRACE MACKAY
First Defendant
ROBERT GEORGE O'BRIEN
Second Defendant
JULIE GRACE MACKAY
Plaintiff by counterclaim
MARK LEWIS MACKAY
Defendant by counterclaim

Catchwords:

Probate - Application for probate of will in solemn form - Turn on own facts

Legislation:

Nil

Result:

Probate in solemn form granted

Category: B

Representation:

Counsel:

Plaintiff	:	J J Hockley
First Defendant	:	T O Coyle
Second Defendant	:	No appearance
Plaintiff by counterclaim	:	T O Coyle
Defendant by counterclaim	:	J J Hockley

Solicitors:

Plaintiff	:	Peter May McAuliffe Legal (Busselton)
First Defendant	:	Solomon Hollett Lawyers
Second Defendant	:	In Person
Plaintiff by counterclaim	:	Solomon Hollett Lawyers
Defendant by counterclaim	:	Peter May McAuliffe Legal (Busselton)

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

Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1

MASTER SANDERSON:

By this action the plaintiff seeks to prove a will in solemn form. The need to take this action arises from the irretrievable breakdown in relations between the plaintiff and the first defendant. The relevant facts can be summarised as follows.
The plaintiff and the first defendant are brother and sister. They are two of the four children of Arthur Lewis Mackay (the deceased). The deceased's wife, Maureen Mackay, predeceased him by 17 hours. The plaintiff together with the first defendant and the second defendant were made executors of the first and only will of the deceased. That will is dated 13 January 2017.
Applications for probate were filed by the plaintiff and the first defendant. Registrar Griffin wrote to the parties indicating that nothing would happen for one month unless one of the parties proceeded to take legal action before the month lapsed. The plaintiff then issued these proceedings. The orders sought in the statement of claim were relevantly the following:
1.An order that the court pronounce the force and validity of the 2017 will of the late Arthur Lewis Mackay dated 13 January 2017.
2.The court direct the probate registrar to issue a grant of probate in solemn form to the plaintiff.
3.The costs of and incidental to this application be paid from the estate of the deceased on an indemnity basis.
On 4 May 2023, the plaintiff filed a minute of orders which embodied the orders sought in the statement of claim. As an alternative, the plaintiff sought an order that there be a grant of probate in common form. No amendment has been made to the statement of claim but I have proceeded on the basis that if the plaintiff sought to amend the prayer for relief it would be uncontroversial.
The first defendant filed a notice of appearance but the second defendant did not. The time limit for filing a defence by the first defendant ran out without the defence being filed. The plaintiff then moved to seek orders by communicating with the registrar. The plaintiff also filed an affidavit of scripts setting out the fact that the deceased only made one will in his lifetime, namely the will dated 13 January 2017. The plaintiff also filed an affidavit of attesting witnesses from a lawyer, one of the two witnesses to the will. Copies of these documents were served on the first and second defendants when the plaintiff learned the second defendant had either engaged or at least obtained advice from the legal firm Solomon Hollett.
The plaintiff has filed a certified copy of the original will and an additional copy with the Supreme Court. The plaintiff is of the understanding the second defendant filed the original will with her application for probate. The will was drafted by Clement & Co Lawyers. It is typed and it is regular on its face. It is signed at the foot of each of the four pages and at the end by the testator. There are two witnesses, each of whom have signed each page. One of the witnesses is an experienced lawyer and the other was, it seems, a receptionist at the law firm. There is nothing at all on the face of the will which suggests it is in any way irregular.
The leading case in Western Australia on the grant of probate in solemn form is the decision of EM Heenan J in Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1. The following two paragraphs of that decision are relevant for present purposes:
22That 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 their '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.'
…
24In 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.
On the face of it then the plaintiff is entitled to the relief sought in the statement of claim. The matter was referred to me for the purposes of determining whether the orders ought be made. The matter came on for hearing on 9 May 2023 and the first defendant appeared by counsel. Counsel acknowledged that the defence was out of time. He sought leave to file a defence and counterclaim and, at least by implication, to have the matter proceed as a defended action. After hearing argument, I ordered the first defendant send a draft defence and counterclaim to the plaintiff. In fact, a defence and counterclaim was filed. For the purposes of these reasons, I will assume that it was open to the first defendant to file the defence and counterclaim. That does not preclude in any way the possibility of the plaintiff seeking to strike out the defence and counterclaim as a document filed without leave.
Looking at the defence of the first defendant it is difficult to know on what basis the plaintiff's claim is opposed. As I understand the pleading the first defendant says because there has been a breakdown in the relationship between the plaintiff and the first defendant it is not appropriate for the plaintiff to be granted probate. There is no pleading to the effect the will was not properly executed or is in any other way not a valid testamentary disposition. There is no plea that the deceased did not have capacity when the will was signed. There is no allegation the will was signed under duress. In short, there is no pleaded basis upon which a grant of probate could be refused.
Before dealing with the matters pleaded in the counterclaim I should say that in in my opinion it is not open to a party to bring a counterclaim in a suit for grant of probate in solemn form. There is no doubt it is open to a party who is the defendant to an application to raise matters which might lead to the suit being dismissed. But it is illogical if the plaintiff is successful to then in some way qualify the plaintiff's entitlement to the grant. It may be a defendant has other rights which could be ventilated in a separate suit. On that basis alone I am satisfied the first defendant's position is not arguable.
Even leaving that practical difficulty to one side there could not in this case be an order granting the first defendant the relief she seeks. Essentially what is alleged against the plaintiff is questionable dealings by the plaintiff with the deceased's estate. I will not set out these complaints. What the first defendant seeks is an order that an independent third party be installed as the executor of the deceased's will. There is no basis upon which such an order could be made. Or perhaps put more correctly, there is no basis upon which such an order could be made in these proceedings. Whether it can be made in other proceedings is open to question. But there is no basis for such an order here and the counterclaim must necessarily fail.
For these reasons I will make orders in terms of paragraphs 1, 2 and 3 of the prayer for relief in the statement of claim.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CM
Associate
29 JUNE 2023