Re Janette Eleanor Counsel;
[2016] WASC 47
•16 FEBRUARY 2016
RE JANETTE ELEANOR COUNSEL; EX PARTE THE PUBLIC TRUSTEE [2016] WASC 47
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 47 | |
| Case No: | PRO:6506/2015 | ON THE PAPERS | |
| Coram: | REGISTRAR C BOYLE | 16/02/16 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Applicant given leave to withdraw affidavits | ||
| B | |||
| PDF Version |
| Parties: | THE PUBLIC TRUSTEE |
Catchwords: | Deceased estate Will Application for probate Suggestion of invalidity Whether applicant has duty to court to disclose contradicting evidence |
Legislation: | Non-contentious Probate Rules 1967 (WA), r 8 Rules of the Supreme Court 1971 (WA), O 37 r 6, O 37 r 7 Wills Act 1970 (WA), s 8 |
Case References: | Bull v Fulton (1942) 166 CLR 295 Crosby v Noton (1867) 36 LJ (P&M) 55 In the Goods of George Dennis [1899] P 191 In the Goods of Mary Bootle, Heaton v Whalley (1901) 84 LT 571 In the Goods of Quick; Quick v Quick [1899] P 187 Morton v Thorpe (1863) 3 Sw&Tr 179; 164 ER 1242 Timbury v Coffee (1941) 66 CLR 277 Western Australian Executor Trustee Co v Holmes [1961] WAR 144 Wheatley v Edgar [2003] WASC 118 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
THE PUBLIC TRUSTEE
Applicant
Catchwords:
Deceased estate - Will - Application for probate - Suggestion of invalidity - Whether applicant has duty to court to disclose contradicting evidence
Legislation:
Non-contentious Probate Rules 1967 (WA), r 8
Rules of the Supreme Court 1971 (WA), O 37 r 6, O 37 r 7
Wills Act 1970 (WA), s 8
Result:
Applicant given leave to withdraw affidavits
Category: B
Representation:
Counsel:
Applicant : No appearance
Solicitors:
Applicant : Public Trustee
Case(s) referred to in judgment(s):
Bull v Fulton (1942) 166 CLR 295
Crosby v Noton (1867) 36 LJ (P&M) 55
In the Goods of George Dennis [1899] P 191
In the Goods of Mary Bootle, Heaton v Whalley (1901) 84 LT 571
In the Goods of Quick; Quick v Quick [1899] P 187
Morton v Thorpe (1863) 3 Sw&Tr 179; 164 ER 1242
Timbury v Coffee (1941) 66 CLR 277
Western Australian Executor Trustee Co v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118
- REGISTRAR C BOYLE:
The reasons for these reasons
1 Where there is a suggestion that an apparently valid will is invalid, what evidence needs to be adduced on an application for proof of that will? Need the applicant disclose that suggestion?
2 The applicant Public Trustee has filed the usual affidavit in support of this application for probate and also a number of other affidavits described below. When requisitioned as to why those had been filed, the Trustee replied by letter reading, in part:
Ms Counsel's sister alleged that the will dated 22 October 2003 was not valid. She said that Patricia Fryer had exercised undue influence over Ms Counsel and that there was a later will.
3 In those circumstances, the Public Trustee 'respectfully considered it appropriate to apprise the Court of the evidence on which it relied'.
4 The letter went on to request that written reasons for decision be provided. As practitioners apart from those in the office of the Public Trustee may have to make similar decisions, I publish these reasons.
The deceased and the will sought to be proved
5 Janette Eleanor Counsel died on 16 February 2014. She was 71 years of age. She died at the Shenton Park Quadriplegic Centre. She had been a long-term resident of the Centre. The cause of death was multiple sclerosis. She had never married and had no children.
6 The will is dated 22 October 2003. It was prepared by the Public Trustee and is in a common (and commendably concise) form used by that office. On its face it is rational, disposes of the entire estate, and was executed in conformity with s 8 of the Wills Act 1970 (WA). It gives the entire estate to 'my friend Patricia Fryer if she survives me'. Ms Fryer did survive the deceased.
7 It puts matters in context to know that Ms Fryer was for a time an enrolled nurse at the Quadriplegic Centre, and closely involved in caring for the deceased.
The evidence
8 There is, as indicated already, the usual affidavit in support sworn by a duly authorised legal officer. That deposes to the matters required by r 8 of the Non-contentious Probate Rules 1967 (WA) and otherwise. It would, by itself, allow a grant to be made.
9 Apart from that, there were seven other affidavits filed. It is sufficient to describe them only briefly:
i) Helen Chambers is the sister of the deceased and the author of the assertions noted by the Trustee. Her affidavit is almost entirely hearsay. It contains nothing that would be admissible on the question of undue influence, but much that is patently inadmissible and should never have found its way into an affidavit: see Rules of the Supreme Court 1971 (WA) O 37 r 6 and 7. On the question of whether there was a later will, Ms Chambers equivocates - while insinuating that there was one - but eventually acknowledges having written to the Trustee that to her knowledge there was no later will.
ii) Murray Blanchard is a real estate agent and Justice of the Peace. He identifies himself as one of the subscribing witnesses to the 2003 will. Not surprisingly after so long, apart from identifying his signature, he can do no more than give evidence of the practice he 'strictly adhered to' in such matters.
iii) Veanne Chambers is the daughter-in-law of Helen Chambers. She relates an occasion in about August 2013 when she visited the deceased and saw a copy of a will that she now accepts must have been that of 22 October 2003, although she first recollected the terms differently. She swears that the deceased expressed dissatisfaction with the gifts of the will and a desire to make a new one. Ms Chambers conveyed this desire to a member of the Centre staff.
iv) Alexander Platts is the Resident Services Officer at the Quadriplegic Centre to whom Ms Chambers conveyed that message. He recollects discussions with the deceased in 2013 concerning her desire to change her will, and recounts that he left a message with the Public Trustee about that. His daily log makes no mention of any further steps to give effect to that intention.
v) Christopher Baldwin was the Director of Nursing at the Quadriplegic Centre. He recalls the deceased, Helen Chambers, and Patricia Fryer. He did not have any discussions with the deceased about her will. He denies discussing with Helen Chambers the reason why Patricia Fryer was asked to leave the Centre.
vi) Linda Margaret Emerson is the current Director of Nursing at the Centre. She swears that it was she who invited Patricia Fryer to resign, for a reason 'that had absolutely nothing to do with Jan's will or the wills of any other resident at the Quad Centre'.
vii) Warner Anton Quarles is a medical practitioner who was involved in the care of the deceased. He describes her condition and its deterioration over a number of years. He expresses the opinion, properly grounded in his observations, that at September 2003 the deceased had testamentary capacity.
The executor's role
10 The institute executor of a will must first decide whether to accept or renounce the appointment. Next (or perhaps even before deciding to accept or renounce), the executor who elects not to renounce must decide whether to prove the will.
11 Assuming a will is formally valid, there are probably only four good reasons not to prove it:
(a) there may be a later valid will;
(b) the will may have been revoked by operation of law, as on marriage or divorce;
(c) the estate may be such that there is no reason to obtain probate or no point in doing so;
(d) the will, although apparently valid and the last such, may be rendered invalid by some vitiating circumstance. It may be that the deceased lacked testamentary capacity at the date of the will, or that its execution had been secured by undue influence or duress. (That list is not intended to be exhaustive).
12 It is the responsibility and must be the choice of the executor whether to seek to prove a will. If the choice is to pursue proof, what evidence needs to be adduced?
13 As is so often the case, a convenient first source of authority on practice in probate matters is the reasons of E M Heenan J in Wheatley v Edgar [2003] WASC 118. At [20] - [21], his Honour put it this way:
20. … The proper role of the executor and of the court in such situations was considered by Sholl J in Re Levy deceased [No 2] (1957) VLR 662 at 665 where his Honour said:
'That indicates that the common case in which the executor was wont to make an application for proof in solemn form, after he had obtained a grant in common form, was the case in which he had reason to anticipate some question being raised as to the validity of the will and desired to have the protection which a grant in solemn form would give him. In such cases it was nevertheless the practice to grant probate in solemn form on proof of the due execution only, at all events if there was no opposition. That seems clearly enough to indicate that the executor was not, in the view of the Prerogative Court, or, after 1857, the Probate Court, bound to call before the Court of his own motion all available evidence, both favourable to and adverse to the will of which he obtained a grant in common form. The duty of such a person, after all, must be a duty to propound the instrument which the testator has appointed him to propound, if he puts it forward at all. He cannot owe any duty to take legal proceedings to destroy the instrument from which alone he takes his title, and that was pointed out in case of In the Goods of Chamberlain (1867), LR 1 P&D at 316, to which reference was made in Re Levy deceased [1953] VLR 652 at 655. Such an executor has, of course, no duty to put forward an instrument if he is satisfied that it ought not to be put forward. But once he does put it forward, he is entitled, in my opinion, to put it forward with only such evidence, available to him, as is in its favour.'
21. Sholl J went on to say:-
'Nor is it the duty of the Court to make its own investigation of all the facts when an application is made to it for a grant of probate in solemn form. There is, so far as I can see, no ground for saying that on such an application the Court comes under any duty, statutory or otherwise, to satisfy itself, by any form of independent investigation, of the validity of the will for which probate is sought.'
- See also the line of cases on the principle set out in Morton v Thorpe (1863) 3 Sw&Tr 179; 164 ER 1242; [1861] - [1873] All ER Rep 1536, including Crosby v Noton (1867) 36 LJ (P&M) 55; In the Goods of Quick; Quick v Quick [1899] P 187; In the Goods of George Dennis [1899] P 191; and In the Goods of Mary Bootle, Heaton v Whalley (1901) 84 LT 571.
14 If even in contentious proceedings there is no obligation for the propounding party to lead evidence tending against admission, a fortiori the same principle applies to a non-contentious application.
15 If the choice is to prove a will, then the executor need only put before the court the evidence that is sufficient to prove it and supports its proof.
16 That is because a non-contentious application for probate of a will or for letters of administration is made ex parte. There is no contradictor. A non-contentious application is not a proceeding inter partes, where opposing bodies of evidence are tested and measured by cross-examination and submissions and one is accepted and the other rejected. The evidence is by affidavit. It is untested by cross-examination. The question for the court is whether the evidence adduced is sufficient to make the grant sought. If there is inconsistent evidence, there is no way in which the court can choose which to accept and which to reject, save by finding that evidence on affidavit, although untested, is so inherently improbable that it should be rejected.
17 The risk to a non-contentious applicant of adducing contradicting evidence is that the application may fail because the court is unable to reject contradicting evidence that would not have been found convincing upon being tested at trial.
18 If a non-contentious application fails for that reason, it represents no positive finding. If a non-contentious application for proof of the only known will of a deceased is refused, that is not a finding that the deceased died intestate: all it says is that the application failed.
19 That leads to the third choice an executor must make, that of the mode of proof of the will. If the evidence is not clear, but on balance the executor - properly advised - believes it is his duty to prove the will, then, it is his prerogative at least, and it may be his obligation, to seek a grant in solemn form. In a contentious action, any party with a relevant interest has standing to oppose a grant. The evidence will be tested. The resulting decree is one that has a character analogous to a judgment in rem, and is revocable only in limited circumstances: Wheatley v Edgar [18].
20 But in the first instance, it must be the obligation of the executor to form a judgment about whether to prove a will and in what form. It is the executor who must weigh up any objections that the deceased lacked capacity, or was unduly influenced, or that the will was a forgery. Having made that judgment, the executor must back it by making an application and adducing the evidence in support.
21 It is not appropriate for an executor to make an application that equivocates or dithers, in effect saying to the court, 'It is one thing or the other: you tell me'. It is not the function of the court on a non-contentious application to provide an advisory opinion, or to relieve the executor of burdens that are his. It is not for the court to review the totality of the evidence and endorse or not endorse the judgment of the executor as to whether the objections have merit.
Disposition
22 In this case the will is such as to attract the presumptions of testamentary capacity, knowledge and approval, and due execution: Timbury v Coffee (1941) 66 CLR 277; Bull v Fulton (1942) 166 CLR 295; Western Australian Executor Trustee Co v Holmes [1961] WAR 144. The evidence needed to prove the validity of the will is therefore very limited, and the bulk of the supporting affidavit in such cases is devoted to other procedural requirements.
23 The view implicit in the Public Trustee's letter explaining why seven other affidavits have been lodged is that any suggestion of invalidity needs to be brought to the attention of the court and all evidence touching on it (whether leaning one way or another) must be disclosed. As the examination of the law above shows, that view is mistaken. In fact, not only is it not necessary to disclose that evidence, it is positively inappropriate to do so. The risk has been explained.
24 In those circumstances, I believe that before determining the application I should invite the applicant to apply to withdraw and uplift from the file some or all of the seven identified affidavits. That should be done within ten working days after publication of these reasons. I will then determine the application by reference to the evidence that remains.
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