McGrath v Cherry

[2012] NSWSC 569

Supreme Court

New South Wales

Medium Neutral Citation:	McGrath v Cherry; Estate of Latimer [2012] NSWSC 569
Hearing dates:	Monday, 21 May 2012
Decision date:	21 May 2012
Jurisdiction:	Equity Division - Probate List
Before:	White J
Decision:	Refer to paras [11] and [21] of judgment.
Catchwords:	WILLS, PROBATE AND ADMINISTRATION - probate - application for grant of probate in solemn form - defendant previously raised queries as to deceased state of health at time of execution of will - alleged plaintiff exerted improper influence over deceased at time of execution of will - no appearance from defendant - no evidence presented to cast doubt on evidence that will was duly executed WILLS, PROBATE AND ADMINISTRATION - probate - grant of probate - costs - where costs of litigation caused by testator, executor or person interested - caveat lodged by interested party demanding no grant be made without prior notice - effect of knowledge or insufficient inquiry - obligations of caveator - costs
Cases Cited:	In the will of Elizabeth O'Driscoll (1929) 29 SR (NSW) 559 Azzopardi v Smart (1992) 27 NSWLR 232
Category:	Principal judgment
Parties:	Patrick McGrath (Plaintiff) Rae Lesley Esma Cherry (Defendant)
Representation:	Counsel: M Lawson (Plaintiff) Solicitors: Southern Waters Legal (Plaintiff)
File Number(s):	2012/29674

Judgment

1. HIS HONOUR: These proceedings concern the estate of Raymond Albert Latimer, who died on 24 September 2010 aged 85.

1. The plaintiff seeks a grant of probate in solemn form of a will made on 3 June 2009. By that will the deceased revoked prior wills and appointed the plaintiff, whom he described as his grandson, as his executor and trustee. He gave to a Ms Shirley Standen, whom he described as his friend, the right to live in this property in Mowbray Street, Sylvania during her life on certain conditions. The only substantial asset of the estate, which is a small one, is the deceased's interest as a tenant in common of that property.

1. In the events that happened he left the residue of his estate to the plaintiff.

1. The deceased was survived by his daughter, Rae Lesley Esma Cherry, who claimed to be entitled to the estate on intestacy. She is resident in the United States.

1. On 11 April 2011, through her solicitor Mr McGowan, of De Groots Wills & Estate Lawyers, she caused a caveat to be lodged demanding that there be no grant made in the estate without prior notice to her. The caveat was extended on 24 October 2011. The caveat has now expired.

1. These proceedings were commenced by a statement of claim on 30 January 2012. The plaintiff seeks a grant of probate in solemn form in respect of the will of 3 June 2009. Mr McGowan of De Groots refused to accept service of the statement of claim. He stated that his firm did not have instructions to accept service of the proceedings and his instructions were limited to obtaining information and documents as outlined in earlier correspondence.

1. On 27 February 2012 the Registrar ordered that in lieu of personal service on the defendant, service could be affected on De Groots. Service has been effected in accordance with that order. The statement of claim named Ms Cherry as defendant. No appearance has been filed and there has been no appearance for her today.

1. In email correspondence the defendant has raised queries as to the deceased's state of health at or about the time the will was made and has asserted that the plaintiff exerted improper influence over the deceased at the time of execution of the will.

1. The will in question was prepared by a solicitor, Mr Simon Bennett of Willis & Bowring Solicitors. He gives evidence as to the receipt of the instructions for the making of the will, and the enquiries he made as to the extent of the deceased's assets, the deceased's reasons for the gifts made by the will, and his reasons for the exclusion of the defendant from it.

1. The will was duly executed, and is apparently the will of a competent testator. There is nothing to rebut that inference apart from the assertions or queries raised by the defendant in her email correspondence. An ACAT assessment was carried out which, although not conclusive, is consistent with the deceased's having had testamentary capacity. I am satisfied from the evidence of Mr Bennett that he did.

1. The defendant has not chosen to appear in the proceedings. There is nothing to cast any real doubt on the evidence given by Mr Bennett. For these reasons I make the following declaration and orders:

1. Declare that the duly executed document dated 3 June 2009 and headed "Last will and testament of Raymond Albert Latimer" signed by the testator and two witnesses is the last will and testament of the late Raymond Albert Latimer (deceased).

2. Order that probate in solemn form of the deceased's will dated 3 June 2009 be granted to the plaintiff.

3. Remit the proceedings to the Registrar to complete the grant.

4. Refer the application that an administration bond or security be dispensed with to determination by the registrar.

5. Order that the plaintiff's costs be paid out of the estate on an indemnity basis.

1. I will reserve the question as to whether a costs order should be made against the defendant. If, as was proposed during the course of argument, counsel wishes to refer me to any authority on that question, then a note should be sent to my associate within the next seven days.

[Submissions as to costs were later made in writing by counsel for the plaintiff.]

1. In these proceedings I made an order that probate of the deceased's will be granted in solemn form. The proceedings were brought by way of statement of claim seeking a grant of probate in solemn form because of the caveat filed by the defendant (Supreme Court Rules Pt 78, r 70). I made an order that the plaintiff is entitled to recover his costs out of the estate on the indemnity basis and reserved the question as to what, if any, order for costs should be made against the defendant.

1. An order for substituted service was made against the defendant at the office of her solicitor in Sydney. It is not clear under the Rules whether an order for substituted service was necessary. A caveat is required to state an address for service (Part 78, r 61(2)). The caveat did not expressly specify such an address, but I would infer it was at the address of the caveator's solicitor who signed the caveat on her behalf and stated his address. The purpose of requiring an address for service would be to enable service at that address of an application for an order that a caveat cease to be in force under Pt 78, r 69 or a statement of claim that may be required under Pt 78, r 70.

1. However, I have heard no argument on this question. Whether or not the order for substituted service was necessary, the defendant was properly served in accordance with the order so made. The defendant did not enter an appearance. The application for the grant of probate in solemn form was necessary because of the defendant's lodgement of the caveat.

1. The plaintiff sought an order for costs against the defendant that would indemnify the plaintiff (or the estate) in respect of the costs of the proceedings. That is, the plaintiff seeks an indemnity costs order against the defendant.

1. In In the will of Elizabeth O'Driscoll (1929) 29 SR (NSW) 559 Harvey CJ in Eq said (at 561):

"A person who files a caveat before making full enquiries has to make up his mind when he is doing so that he will pay the costs of the caveat if he is not in a position to carry it further when an application is made for an order absolute. That is a position which should be clearly understood by people that they are not lightly to put on a caveat to put parties to expense and delay without substantial grounds, and if they do without having probed the matter fully they must be prepared to pay any costs occasioned by that caveat should they be unable to carry it on beyond the order absolute."

1. I agree with the submission of counsel for the plaintiff that in the present case the defendant does not appear to have made any inquiries as to the testamentary capacity of the deceased. Because she held a suspicion she filed a caveat and then sought to cast on the executor named in the will the burden of proving the deceased's testamentary capacity, notwithstanding that the will was duly executed and that she was not prepared to adduce any evidence to cast doubt on that capacity. I agree with the submission of counsel for the plaintiff that the caveator took the view that it was enough for her to raise an allegation. In Azzopardi v Smart (1992) 27 NSWLR 232 Powell J said (at 238) that:

"If one seeks to raise a ground of invalidity other than want of due execution, one is required to file ... a general caveat, and, further, one is required, on the return of a summons for an order that the caveat cease to be in force, to be in a position then to tender evidence raising at least a prima facie case of the ground of invalidity relied upon, in default of which the order will be made with costs against the caveator."

1. By reason of her lodgement of the caveat, the defendant was properly joined as a party to the proceedings. She did not adduce any evidence to cast doubt on the validity of the will. The fact that she did not appear is not a reason for not ordering that the defendant pay the additional costs of the proceedings occasioned by her caveat.

1. However, if no caveat had been lodged, some costs would have been incurred by the executor in obtaining a grant of probate in common form.

1. In my view the appropriate order is neither an order that the defendant pay the whole of the costs of the proceedings on the indemnity basis, nor on the ordinary basis. Rather the appropriate order is that the defendant pay the difference between the costs of the proceedings as agreed or assessed on the indemnity basis and the costs that would have been incurred had the application been for a grant of probate in common form. I so order.

Decision last updated: 28 May 2012