Re Haynes
[2018] VSC 778
•12 December 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2015 10791
IN THE MATTER of the will of ERIC LESLIE HAYNES, deceased
| NEVILLE ROBERT HAYNES | Plaintiff |
| v | |
| NEVILLE ROBERT HAYNES | Applicant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 12 December 2018 |
CASE MAY BE CITED AS: | Re Haynes |
MEDIUM NEUTRAL CITATION: | [2018] VSC 778 |
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WILLS AND ESTATES — Application for revocation of grant of probate — Purported later informal will — Where executor delayed in making application — Where executor failed to notify charity of legacy under probated will or informal will — Where estate administered under probated will, save for legacy to charity — Where insufficient evidence to establish validity of informal will.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff and Applicant | Russell Kennedy | |
| For Lort Smith Animal Hospital | HWL Ebsworth |
HER HONOUR:
Factual background
Eric Leslie Haynes (‘the deceased’) died on 2 April 2015, aged 92 years. The deceased’s wife and one son predeceased him. He was survived by his other five children. The deceased’s estate was valued for probate purposes at $1,009,897 comprising the family home and money in the bank.
The 2009 will
On 29 July 2015, probate of the deceased’s will dated 9 June 2009 (‘the 2009 will’) was granted to the applicant, a son of the deceased and the named executor in the 2009 will. Under the 2009 will, the deceased made some minor gifts of chattels to named individuals, bequeathed the sum of $100,000 to Lort Smith Animal Hospital (‘Lort Smith’) and left the residue of the estate to his six children as survive him and, if more than one, as tenants in common in equal shares, with a gift over to grandchildren if any child fails to survive him. The 2009 will was prepared by solicitors, Walsh Johnston & Co, and was witnessed by Mr Neil Johnston, solicitor, and Ms Luigia De Marchi, legal secretary.
On 10 October 2015, the family home, which was the principal asset of the estate was sold for the sum of $1,380,000. In November 2015, the applicant’s solicitor, Mr Johnston, transferred the estate funds comprising the net proceeds of sale of the family home plus $112,896 being the money in the bank, to the applicant. In February 2016, the applicant distributed the estate funds to the beneficiaries, save for the legacy to Lort Smith. At no time did the defendant inform Lort Smith of the legacy under the 2009 will.
In his affidavit sworn 14 June 2018, the applicant deposed that just before the deceased’s death, the deceased told him that he had reduced the legacy to Lort Smith as it ‘had been hounding him for money and he had been annoyed by their persistent contact’. The applicant also deposed that around the time he distributed the estate to his siblings, he was grieving for the death of his parents and sibling, found the administration of the estate difficult and it was very upsetting thinking about the ‘Lort Smith problem’. His reason for not notifying Lort Smith of their $100,000 legacy was because he ‘felt it was not what his father wanted’.
The 2013 informal will
The deceased also left a handwritten document completed by the deceased on a pro forma ‘will kit’ form dated 20 October 2013 (‘the 2013 informal will’). This document appoints the applicant as executor and trustee of the estate, bequeaths the sum of $10,000 to Lort Smith and directs that the residue of the estate be divided equally between his ‘immediate relatives’, listed in the will as the deceased’s wife and six children.
The applicant exhibited a black and white copy of the 2013 informal will to his affidavit sworn 7 February 2018. The applicant deposed that on 23 October 2013, shortly after the date of the 2013 informal will, the deceased delivered a letter to the applicant enclosing a copy of the 2013 informal will and informed the applicant that the original was deposited with Mr Johnston of Walsh Johnston & Co. The applicant also deposed that on 4 April 2015, which was two days after the deceased’s death, the original 2013 informal will was located at Mr Johnston’s office.
The 2013 informal will was signed by the deceased and two witnesses, however, the applicant deposed that the signature of one witness, and the rest of the document, including the deceased’s signature, is written in black ink and the signature of the other witness is written in blue ink. Accordingly, the 2013 informal will does not comply with the requirements of s 7(c) of the Wills Act 1997 as the witnesses were not in each other’s presence when they each executed the document.
The applicant also deposed that handwritten amendments were made to the will to reflect that the deceased’s wife died on 1 November 2013, which was shortly after the date of the will, and that one of the deceased’s sons had died, which occurred prior to the date of the 2013 informal will. It is unclear from the applicant’s affidavit whether the handwritten amendments were present on the original 2013 will, his copy of it, or both.
In a letter dated 2 December 2013, the deceased informed Lort Smith that he had changed his will and left $10,000 to Lort Smith. The deceased wrote that his reason for changing his will was as a result of the death of his wife and son and he complimented Lort Smith on doing a marvellous job.
In his application for a grant of the 2009 will, the applicant did not disclose the existence of the 2013 informal will. In this application for revocation, the applicant deposed that he was not advised that the 2013 informal will needed to be disclosed. In his affidavit sworn 7 February 2018, the applicant deposed:
I initially intended to probate the 2009 will and advertised accordingly. However, on discovering the 2013 [informal] will, I intended to apply for probate of the 2013 [informal] will and advertised my intentions to do so on 30 May 2015 [sic].[1]
[1]The application for a grant of representation of the 2013 informal will was in fact filed on 30 June 2015.
The applicant deposed that he did not propound the 2013 informal will because Mr Johnston advised him on an unspecified date that the 2013 informal will was not executed in accordance with the Wills Act 1997 and was invalid. The applicant deposed said he was ‘extremely upset’ by the news that the 2013 informal will was invalid as he believed that will better reflected the deceased’s intentions in relation to his estate. At no stage did the applicant inform Lort Smith of the legacy of $10,000 under the 2013 informal will. It is not clear from the applicant’s evidence whether Mr Johnston provided this advice before or after the application was made to propound the 2013 informal will.
Applicant retains solicitor to fix the Lort Smith ‘problem’
In February 2017, a year after the applicant distributed the estate to the residuary beneficiaries, the applicant approached Mr Darren Moses, solicitor, ‘to see if I could fix the Lort Smith problem’. Mr Moses advised him that a grant of letters of administration of the 2013 informal will could be obtained. The applicant told Mr Moses he was concerned that if he notified Lort Smith about the will they would then demand $100,000 from the estate. The applicant deposed that Mr Moses told him ‘not to contact Lort Smith or pay them anything’ and told him not to worry about the matter, that it was fixable. Subsequently, Mr Moses suffered a stroke and was unable to assist further due to ill health. The applicant did not retain another solicitor until much later.
Enquiries and action taken by Lort Smith
By letter dated 3 August 2017 to the applicant’s former solicitors, Walsh Johnston & Co, Lort Smith requested payment of the legacy. This letter was written after Ms Veronica Kochan, the Bequests Administrator of Lort Smith, conducted a search of the Public Records Office database on 24 July 2017. The deceased was a regular donor to Lort Smith and Ms Kochan had not heard from the deceased for some time. Ms Kochan’s search revealed the probate administration file under the deceased’s name and on inspection, disclosed that a grant of probate of the deceased’s 2009 will had been made in 2015 and that the deceased had bequeathed $100,000 to Lort Smith. Walsh Johnston & Co subsequently informed Lort Smith that it no longer acted for the applicant.
Ms Kochan deposed that the deceased was known to Lort Smith during his lifetime. On numerous occasions between 1996 and 2013, the deceased informed Lort Smith by letter that he intended to leave a gift to Lort Smith in his will and Ms Kochan exhibited those letters to her affidavit. Ms Kochan also exhibited copies of the deceased’s previous wills, all of which made very generous bequests to Lort Smith including, in some cases, gifts of the residue of the estate. Ms Kochan also exhibited a copy of the deceased’s letter dated 2 December 2013, in which he informed Lort Smith that he had changed his will and left $10,000 to Lort Smith.
On or around 9 August 2017, the applicant contacted Ms Kochan directly to inform her that he had received the letter from the his previous solicitors, Walsh Johnston & Co. He informed Ms Kochan that he had retained new solicitors, there was a ‘new will’, and Lort Smith’s demand for payment of the legacy would be passed on to his new solicitors. On 11 August 2017, Lort Smith sent a further demand for payment to the defendant directly.
On 13 November 2017, Lort Smith filed an originating motion (‘the Lort Smith proceeding’) seeking directions compelling the applicant to pay the legacy of $100,000 to Lort Smith under the 2009 will, to pay personally the interest on the legacy calculated at the amount of 8 per cent per annum from 29 July 2016 onwards and to pay personally Lort Smith’s costs of the proceeding on an indemnity basis.[2]
[2]Proceeding number S CI 2017 04584.
On 24 November 2017, the applicant retained Clohesy Legal as his solicitors and sought advice in relation to the administration of the estate and in relation to the Lort Smith proceeding. He deposed that this was when he was first advised that he could have applied for a grant of the 2013 informal will.
On 5 December 2017, orders were made that the applicant pay the amount of $125,000 into Court pending the outcome of the foreshadowed revocation application. On 21 December 2017, the applicant paid the specified amount into Court.
Applicant’s summons for revocation of the grant of the 2009 will
On 7 February 2018, the applicant issued a summons seeking revocation of the grant of probate of the 2009 will and a grant of the 2013 informal will, meaning in fact an application for a grant of probate of the 2013 informal will, pursuant to s 9 of the Wills Act 1997 (‘the revocation proceeding’).
On 9 February 2018, consent orders were made adjourning the Lort Smith proceeding on the basis that the outcome of the revocation proceeding would necessarily affect the outcome of Lort Smith proceeding, given the different legacies to Lort Smith under the 2009 will and the 2013 informal will. Lort Smith did not wish to be added as a defendant to the revocation proceeding in the interests of ensuring that costs are reasonable and proportionate, and in view of the existing Lort Smith proceeding. Lort Smith also stated that it would abide the decision of the Court. The Court determined that the affidavits filed in the Lort Smith proceeding also be affidavits in the probate proceeding. The Court also granted leave to Lort Smith to file submissions setting out grounds of objection to the revocation of the grant of the 2009 will. Lort Smith does not consent to the application for revocation of the grant of probate of the 2009 will.
On 7 March 2018, Lort Smith’s solicitors filed submissions and on 22 March 2018, the applicant’s solicitor filed submissions in reply.
On 14 June 2018, a notice of change of solicitors for the applicant was filed as a consequence of Russell Kennedy acquiring Clohesy Legal, with Mr Clohesy remaining the solicitor with the conduct of the proceedings for the applicant.
Applicable principles
The Court in its probate jurisdiction has the power to revoke a grant, with such power exercised at the discretion of the Court, having regard to all the relevant circumstances in the particular case.[3] The revocation of a grant of representation is equivalent to setting aside a court order.[4] The power to revoke a grant is not exercised as of course or of right.
[3]In the Will of Lamont (1881) 7 VLR (IP & M) 86; Re Goode (1890) 11 NSWR (Eq) 281; Re Gillard [1949] VLR 378; Re Egan [1963] VR 318; Re Gardiner [2016] VSC 541 (9 September 2016).
[4]In the Will of Lamont (1881) 7 VLR (I) 86, 93, 98 (Molesworth J). See also Cole v Paisley [2016] NSWSC 349 (4 April 2016) [53] (Lindsay J).
An applicant seeking to revoke a grant must show:
(a) standing to make such an application;
(b) a reasonable explanation for the delay in bringing the application; and
(c) a prima facie case to challenge the grant of probate or letters of administration.[5]
[5]See, eg, Offley v Best (1793) 1 Lev 186; (1793) 83 ER 361; Re Gillard [1949] VLR 378, 381; Edwards v Boyd (1958) 75 WN (NSW) 525; Re Egan [1963] VR 318, 320; Van Wyk v Albon [2011] VSC 120 (24 March 2011); Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [285]–[288], [310]; Re Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016) [53]; Re Watson [2017] VSC 322 (8 June 2017) [15].
Of these three requirements, the first is not in issue. The applicant is the named executor and a beneficiary under the 2013 informal document and has standing to make the application.
Delay in making the application is a relevant discretionary factor. Lapse of time is itself not a bar, however, it may be taken in conjunction with other circumstances. In some cases, where there is a later valid will, the power may be exercised almost automatically. In other cases, a real question as to whether lapse of time is a bar may arise that will be decided in light of all the circumstances.[6]
[6]See, for example, In the Will of Lamont (1881) 7 VLR (IP & M) 86; Re Gillard [1949] VLR 378.
Even where the Court finds that an applicant has established a prima facie case, the Court may nevertheless decline to order a full hearing of the application for revocation.[7] The power to revoke a grant of probate is a discretionary power[8] and consideration of all the circumstances may result in the Court declining to exercise its discretion, such as where an applicant does not have standing or has failed to adequately explain the delay.[9]
[7]Nicholson v Knaggs [2009] VSC 64 (27 February 2009) [79]; Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [292]–[293]; Re Goode (1890) 11 NSWR (Equity) 281, 285–7 (Darley CJ), 287–8 (Innes and Stephen JJ); Stanley v Stanley [2000] NSWSC 1133 (8 December 2000) [5]–[8], [33]–[34]; Richardson v Rearden [2006] NSWSC 1252 (17 November 2006) [16]–[21]; Tobin v Ezekiel (2012) 83 NSWLR 757, 761–2 [5]–[9] (Campbell JA).
[8]Nicholson v Knaggs [2009] VSC 64 (27 February 2009) [79], citing Bramston v Morris (Unreported, Supreme Court of New South Wales, Powell J, 20 August 1993) 20; Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [292]–[293].
[9]Rasheed v Rasheed (1999) 73 SASR 346, 354–5 [49]–[51] (Prior J), 355–7 [55]–[63] (Duggan J).
Where an applicant seeks to propound an informal will, the applicant bears the onus of establishing that a testator intended the document to be his or her will and that the testator had testamentary capacity at the relevant time. If any of these requirements are in doubt, then the Court cannot be satisfied that the deceased intended the document to be his will.[10]
[10]Re Stuckey [2014] VSC 221 (23 May 2014) [40]–[41]; Re Kelsall [2016] VSC 724 (30 November 2016) [17].
Consideration
Delay
The delay between the grant of probate being made and the filing of the summons for revocation was approximately two and a half years. The applicant’s initial reason for the delay was to blame the advice given to him by his solicitor, Mr Johnston, that the 2013 informal will was invalid. Prima facie, this reason appears inconsistent with the fact that on 30 June 2015, approximately one month after an application for a grant of probate of the 2009 will was made, Mr Johnston advertised for a grant of representation of the 2013 informal will on behalf of the applicant.
The applicant also deposed that he advertised his intentions with regards to the 2013 informal will on ‘discovering’ the will. This statement is inconsistent with the applicant’s other evidence that the deceased provided him with a copy of the 2013 informal will on 23 October 2013 and also informed him that the original will had been deposited with Mr Johnston of Walsh Johnston & Co. In the circumstances, the existence of the 2013 informal will was known by the applicant at all relevant times, including the location of the original will.
For reasons best known to applicant and not explained to the Court, the applicant elected to propound the 2009 will rather than the 2013 informal will. The Court does not have the benefit of an affidavit from Mr Johnston, and the applicant did not explain whether he had provided Mr Johnston with an opportunity to file an affidavit deposing to what advice, if any, Mr Johnston gave to the applicant.
When the applicant consulted Mr Moses in February 2017, he was told that a grant of letters of administration of the 2013 informal will could be obtained. Mr Moses subsequently became unwell and was not able assist the application further, or to give evidence in this proceeding. Notwithstanding Mr Moses advice and ill health, the applicant failed to retain another solicitor to seek to revoke the grant of the 2009 will and to apply for a grant of the 2013 informal will until Lort Smith commenced its proceeding in November 2017 for payment of the legacy. The applicant deposed that he was first advised by his new solicitor, presumably in late 2017 or early 2018, that he could apply for a grant of the 2013 informal will. This evidence is contradictory to the applicant’s evidence that Mr Johnston advertised on his behalf his intention to apply for a grant of the 2013 informal will, and his evidence that Mr Moses had advised him in February 2017 that this could be done. On balance, the applicant’s evidence establishes that he was well aware that he could apply for a grant of the 2013 informal will from at least February 2017 onwards, on the basis of Mr Moses’s advice, and likely from June 2016, based on the advertisement. The applicant’s evidence and submissions fail to provide an adequate or reasonable explanation for the delay.
Prima facie case for revocation of the grant of probate
Some evidence of the deceased’s intentions is before the Court, including that he informed Lort Smith by letter dated 2 December 2013 that he had changed his will, and his statement to the applicant that he had deposited the original document with his solicitor.
However, assuming Mr Johnston’s advice was given as deposed by the applicant, his application for a grant of the 2009 will contained the usual undertakings on oath, namely, that if the applicant obtained probate he would well and truly collect and administer the estate of the deceased according to law. Probate of the 2009 will was granted in July 2015 and, save for the legacy to Lort Smith, the applicant had distributed the estate by February 2016. In doing this, the applicant failed to comply with his undertakings given to the Court to administer the estate according to law. The legacy to Lort Smith instead was treated by the applicant as part of the residuary estate and distributed to himself and his surviving siblings as the residuary beneficiaries.
In addition, the applicant did not provide a copy of the 2009 will to Lort Smith, to which it was entitled as a beneficiary of the estate of the deceased. The applicant did not, in fact, inform Lort Smith that a grant of probate of the 2009 had been made and effectively concealed the will from Lort Smith, in breach of s 66 of the Administration and Probate Act 1958. Equally, the applicant did not inform Lort Smith of the 2013 informal will and only made his application to revoke the grant of the 2009 will when Lort Smith issued proceedings for payment of the legacy under the 2009 will.
The applicant’s explanations for failing to inform Lort Smith of the legacy under the 2009 will, namely, that he found the administration of the estate difficult and he felt that the legacy was not what his father wanted, are not an adequate explanation for his failure to administer the estate in accordance with the 2009 will and does not explain his failure to comply with his undertakings to the Court. On the applicant’s evidence, his failure was deliberate. He was well aware of what he describes as the ‘Lort Smith problem’, whether arising under the 2009 will or the 2013 informal will. The applicant knew that he had failed to comply with the terms of the 2009 will and that this failure needed to be addressed by him. After he distributed the estate in February 2016, he took steps to address this problem by contacting Mr Moses in February 2017 ‘to see if I could fix the Lort Smith problem’, that is, his failure to pay the legacy of $100,000 to Lort Smith and that he had distributed the estate to himself and his surviving siblings in February 2016.
The applicant exhibited draft documents in support of an application for the grant of the 2013 informal will. He deposed that the four remaining residuary beneficiaries consented to the application but did not provide formal written consents, saying he would be able to provide them in due course. There is no direct evidence before the Court that the beneficiaries consent to the application, or that they are aware of the application.
Apart from the applicant’s evidence, there is no evidence before the Court as to the deceased’s signature or the circumstances of the witnesses signatures, including being made in different coloured ink, and as to the testamentary capacity of the deceased. There are also other unknown factors, such as whether the handwritten changes on the 2013 informal will were made by the deceased, are present on the copy alone or also on the original document, and the deceased’s reasons for including his deceased son as a beneficiary when that son had died before the execution of the informal 2013 will. The copy of the 2013 informal will provided to the Court also reveals what appears to be faint writing behind the handwriting, which has not been explained by the applicant. As presently informed, the Court is not satisfied that the application for a grant of the 2013 informal will would be granted. In that event, the last valid will of the deceased will be the 2009 will.
Conclusions
The applicant has failed to provide an adequate or reasonable explanation for his delay in making his application for revocation of the grant of probate of the 2009 will. Delay alone is not usually a bar to seeking revocation of a grant. In rejecting an application for revocation, there are other features beyond mere delay, such as the applicant’s acquiescence in the grant of the 2009 will, his credibility, and the need to establish a prima facie case. As presented, the draft documents exhibited for the purpose of obtaining a grant of the 2013 informal will are insufficient for the purpose of propounding that document as an informal will.
The Court will provide further time for the applicant and Lort Smith to consider these reasons and the proceeding will be listed for further directions on 1 February 2019.
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