Pearse v Michael
[2002] WASC 135
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PEARSE -v- MICHAEL & ANOR [2002] WASC 135
CORAM: WHEELER J
HEARD: 16 MAY 2002
DELIVERED : 4 JUNE 2002
FILE NO/S: CIV 2702 of 2001
BETWEEN: BARBARA PEARSE
Plaintiff
AND
DIANE KENNEDY MICHAEL
HELEN KENNEDY DUANE
Defendants
Catchwords:
Wills - Probate - Caveat - Summons for removal - Application to set aside summons - Turns on own facts
Legislation:
Administration Act, s 64
Non-Contentious Probate Rules, r 33
Result:
Plaintiff's application allowed
Category: B
Representation:
Counsel:
Plaintiff: Mr H N H Christie
Defendants: Mr M G Clay
Solicitors:
Plaintiff: Christie Strbac
Defendants: Martin de Haas
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Del Borrello v Friedman and Lurie (A Firm) & Anor [2001] WASCA 348
Doe dem Wentworth; Ainslie v Collins [1831] NSWSC 50
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896
Re Maddocks (1891) WN (NSW) 32
Re Poland, unreported; SCt of WA (Master Seaman); Library No 6795 ; 22 July 1987
Re Tompson; Rhoden v Wicking [1947) VLR 60
Re Young (1968) 70 SR (NSW) 386
WHEELER J: These proceedings involve an originating summons issued 2 November 2001 by which the plaintiff, the executrix of the deceased William Pearse, seeks the removal of a caveat lodged by the defendants against an application for probate of the will of the deceased. There is also a defendants' chamber summons dated 19 December 2001 seeking the setting aside of the originating summons for failure to comply with s 64 of the Administration Act 1903 and certain of the rules. It seems to me that this latter application was overtaken by the orders of Justice Miller made 16 January 2002. His Honour ordered the defendants to depose on affidavit to the basis upon which the caveats should be maintained, gave the parties liberty thereafter to seek a special appointment for determination of the originating summons, and ordered certain amendments to the originating summons. The practical effect of those orders seems to me to be that the matter is proceeding as though it were an interlocutory application in the probate matter with appropriate directions made for its disposition by way of special appointment.
There seems to be no real dispute of principle between the parties. The question is whether the caveats are vexatious. That test is not a high one, but there must be some material which throws doubt on the will being taken at face value and which therefore justifies requiring the plaintiff to go to the expense and delay of proving the will by way of probate action.
There seem to be three reasons advanced by the defendants for suggesting that the will should not be taken at face value. The first relates to a typographical error; the second relates to something which one of the defendants deposes was said by the deceased; and the third relates to what I might call the logic of the internal structure of the will. The first of those matters can, I think, be briefly disposed of. It is undisputed that the deceased's address was Unit 12, 66 Mill Point Road, South Perth. At two places in the will, the deceased's address is given as "Unit 12, 166 Mill Point Road, South Perth". It is argued that this demonstrates that the deceased could not have carefully reviewed his will. I should note that even establishing that the deceased did not carefully review the written document does not logically lead to an inference that he cannot (or even may not) have known and approved of its contents. However, leaving aside this matter, it seems to me that a failure to notice a typographical error of this type is not in any way inconsistent with a careful review of the operative parts of the will. It further seems to me that the error is such that one cannot even assume that it went unnoticed by the deceased; it is entirely probable that a lay person would not consider a typographical error of this type could have any effect on the validity or effect of the will.
In order to understand the other two matters relied upon by the defendants, it is necessary briefly to set out the terms of the will. The deceased appointed his wife Barbara Pearse (who was not, it appears, the mother of the defendants) to be his executrix and trustee and further declared that the expression "my Trustee" in the will was to mean and include the executrix or executor and trustee or trustees, whether original, additional or substituted. Clauses 2 and 3 provided as follows:
"2.I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate whatsoever and wheresoever situate unto my Trustee UPON TRUST to sell call in and convert into money the same or all such parts thereof as shall not consist of money or investments of the nature hereinafter authorised (with power in the discretion of my Trustee to postpone such sale calling in and conversion for such period or periods as my Trustee shall think fit) and with and out of the moneys arising from such sale calling in and conversion and out of my ready moneys with recourse if considered necessary to any of such investments as aforesaid to pay my funeral and testamentary expenses and just debts and all probate and estate duties on the whole of my estate and to invest the residue of such moneys in or upon any investments for the time being authorised by law for the investment of trust funds with power in the discretion of my Trustee to vary or transpose such investments from time to time and to stand possessed of such moneys and the investments for the time being representing the same and all such portions of my residuary estate as shall for the time being remain unconverted upon the following trusts:
(a)for my wife the said BARBARA PEARSE absolutely provided that she survives me for a period of TWENTY‑EIGHT (28) days;
(b)and subject thereto that in the event that my said wife fails to survive me then to such one or more of my daughters HELEN KENNEDY DUANE and DIANE KENNEDY MICHAEL as shall survive me for a period of TWENTY‑EIGHT (28) days and if more than one as tenants in common in equal shares and provided and I declare that if any of my children shall die before attaining an interest in my estate leaving a child or children her surviving who shall survive me and who shall have attained or shall live to attain the age of TWENTY FIVE (25) years then such grandchild or grandchildren of mine shall take and if more than one equally between them the share of and in my estate which his her or their parent respectively would have taken if she had lived to attain a vested interest.
3.I say that by reason of my having made ample provision for my sons MICHAEL FRANCIS KENNEDY PEARSE and GORDON COLIN KENNEDY PEARSE during my lifetime that I do not intend to make any provision for them in this my will."
The remainder of the will is not the subject of any submission.
The affidavit of Diane Kennedy Michael sworn 11 April 2002 deposes that she is the daughter of the deceased and that:
"My father told my sister, brothers and me that he would and had provided for my sister and me by his will. During my father's life, he had provided substantial farming lands and interests to my brothers, but had made limited provision for my sister and me."
Whatever may have been said by the deceased is otherwise unparticularised; that is, there is no indication as to when the deceased may have said anything along these lines, what words may have been used, or what indication the deceased may have given as to the nature of the provision. I note from the Death Certificate exhibited to the plaintiff's affidavit, that at the date of the deceased's death Diane Michael was 57 years of age. The will had been made some four years previously, when she was 53. Diane Michael's siblings are of similar ages. In those circumstances, the fact that the deceased may have at some unspecified time or times have indicated that he would make provision or had made provision of some type for his daughters cannot be considered capable of giving rise to an inference that he did not know, understand and approve the contents of a will having a different effect. I should note that it was faintly suggested that the deceased may not have known and understood the contents of his will because at the time of its execution he was 86 years of age and, according to Diane Michael, "was of poor health and suffered from chronic renal failure". However, there is no indication in the affidavits of any infirmity of mind.
Finally, three things are said about the logic and structure of the will itself. It is suggested that there is a want of logic in the deceased having specifically explained why he had made no provision for his sons, while failing to mention why he had not made provision for his daughters. It was suggested that one might infer from this that he considered that he was making provision by will for his daughters. I do not accept that submission. In the event of his wife's death, the deceased was making provision for his daughters, although the gift to them was contingent upon the death of his wife within the period provided by the will. In those circumstances, it seems to me that one might well expect a testator to explain why provision, even of that contingent kind, was being made only for some of the testator's children. However, it is most unlikely that a testator would find it necessary to explain why he had chosen to make provision for his wife rather than for his mature adult children.
It is also suggested that the powers of the trustee contained in cl 2 are excessive and unnecessary if all that the deceased contemplated was a gift of the entirety of his estate to his wife. However, there was a contingent gift to his daughters and to his grandchildren, if any. In the event of the gift to the wife failing, and a substituted trustee being required to hold the estate on trust not only for his daughters but potentially for his grandchildren, then one can see that the powers of postponement and investment and the like might well be required.
Finally, it is suggested that grammatically the first line of par 2(b) makes no sense unless the word "that" is omitted and the word "or" substituted. It is submitted that the effect of such a change would be to convert the gift to the deceased's wife into a gift of a life interest only, with a gift over of the remainder either subject to that life interest or in the event of the deceased's wife predeceasing him, to the deceased's daughters. I reject that submission. The words "and subject thereto" clearly indicate that the gift to the daughters is subject to the gift already made to the wife; that is, that it only takes effect if that gift to the wife fails. The words "that in the event my said wife fails to survive me" effectively say the same thing; that is, they make it clear that the gift to the daughters takes effect only in the event that the deceased's wife fails to survive him. There is repetition or redundancy, rather than inconsistency. There is a great deal of redundancy elsewhere in the will, as is common in such documents. For example, after the words "the whole of my real and personal estate", one wonders what the word "whatsoever" can possibly add. Similarly, one wonders what the power to "sell" the estate is, if not a power to "convert into money". Examples could be multiplied. In my view, the repetition serves to emphasise, rather than to detract from the deceased's clear intention. The use of the word "absolutely" in the gift to his wife reinforces this view.
It follows from the reasons I have expressed above, that there is no basis upon which the caveats can be maintained. Although they may well have been motivated, therefore, by some misreading of the will or by some understanding of the deceased's intention contrary to that contained in the will, and therefore may in that sense have been lodged in good faith, they must be regarded as "vexatious" for the purpose of this application. I would therefore order that the caveats lodged by Diane Kennedy Michael and Helen Kennedy Duane be removed, and that the defendants pay the costs of the application.
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