Re Kohout; Rubinstein v D'Aquino
[2018] VSC 686
•12 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2018 11192
IN THE MATTER of the will of YVONNE HILDA KOHOUT, deceased
| SONJA RUBINSTEIN (in the will called SONJA RUBENSTEIN) | Plaintiff |
| v | |
| MICHELLE ANN D’AQUINO | Caveator |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 November 2018 |
DATE OF JUDGMENT: | 12 November 2018 |
CASE MAY BE CITED AS: | Re Kohout; Rubinstein v D’Aquino |
MEDIUM NEUTRAL CITATION: | [2018] VSC 686 |
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PROBATE — Where caveator objects to grant of probate on the ground of lack of knowledge and approval — Whether particulars of lack of knowledge and approval establish a prima facie case — Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 — Bailey v Bailey (1924) 34 CLR 558 — Tobin v Ezekiel (2012) NSWLR 757.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms U Stanisich of counsel for the plaintiff | Williams Winter |
| For the Caveator | Mr J W McCoy of counsel for the caveator | McKean Park |
HER HONOUR:
Introduction
The deceased died on 28 April 2018 aged 89 years. The deceased had no children. The deceased’s last will is dated 7 December 2007. Under the last will, the plaintiff is named as the executor and beneficiary of the estate. The plaintiff is the daughter of the deceased’s friend, Joseph Rubinstein, and had a close relationship with the deceased.
The deceased’s penultimate will is dated 28 April 1998. Under the penultimate will, the caveator is named as the executor and beneficiary of the estate of the deceased. The caveator is the deceased’s niece.
There is a dispute between the plaintiff and the caveator as to the status of the relationship between the deceased and Mr Rubinstein. The plaintiff says that they were in a domestic relationship and the caveator claims that Mr Rubinstein was just a friend of the deceased. There is no dispute that at the date of the last will, the deceased and Mr Rubinstein had known each other for at least 20 years.
By originating motion filed 9 July 2018, the plaintiff seeks a grant of probate of the last will. The caveator objects to the plaintiff’s application on the ground that circumstances exist that give rise to a suspicion that the deceased did not know and approve of the contents of the last will.
The particulars filed 24 October 2018 may be summarised as follows:
(a) At the time the deceased executed her last will, the deceased was distressed as a result of the death of her sister-in-law on 17 July 2007 and the ongoing suffering of her brother who was in hospital undergoing treatment for cancer and she had overwhelming angst regarding death and illness;
(b) Four days before making the last will, the deceased had an argument with the caveator;
(c) On 7 December 2007, the deceased was visited at her home by two law clerks from the law practice, Reith & Berry. Her usual solicitor, Mr David Ludscombe, who had prepared the deceased’s penultimate will, was away at that time. The deceased executed the last will on 7 December 2007 despite her solicitor not being present and no solicitor witnessed her signature;
(d) The urgency in executing the will cannot be explained other than by the deceased’s vulnerability and fragility given the recent death of her sister-in-law and the looming death of her brother. Otherwise, there is no good reason for not waiting for her usual solicitor and the fact that she proceeded to execute her will gives rise to a suspicion that she did not fully appreciate the significance of her actions and did not properly approve of the contents of her will;
(e) The attendance notes of the law clerk support an inference that the deceased did not properly understand the contents and effect of the last will, as they:
(i) record that the falling out with the caveator was on her mind as was the ill health of her brother, and therefore support a further inference that the deceased was in a vulnerable state of mind;
(ii) give inaccurate advice regarding the distribution of the estate should the plaintiff predecease her and this raises doubt about the competency of the advice regarding the will and its effect;
(iii) do not refer to the plaintiff as having any sort of familial relationship with the deceased and refer to Mr Rubinstein as nothing more than a friend, meaning the deceased left her estate to the daughter of a friend;
(f) The deceased’s signature only appears on the second page of the will and not the first page, which contains the dispositive provisions in the will. This, in combination with the other factors, raises a suspicion that the deceased did not read over the will before signing the second page and there is a suspicion that she did not know and approve of the contents of her will;
(g) The last will leaves the estate to the plaintiff whereas the penultimate will leaves the estate to the caveator. This is a dramatic variation of the deceased’s previous testamentary intentions without explanation or forewarning, which raises a suspicion that the deceased did not fully comprehend the significance of her actions and therefore did not know and approve of the last will.
Applicable principles
Where a caveator disputes the validity of the last will of a deceased, he or she must establish standing to object to the grant and file grounds of objection with particulars that provide a sufficient factual basis to raise at least a prima facie case of the grounds of objection relied on by him or her.[1]
[1]Moran v Place [1896] P 214, 216–17 (Kay RJ) cited in Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [242].
The caveator has standing as she is the beneficiary under the penultimate will.
The purpose of the particulars and the grounds of objection is to define the questions for trial, to enable the propounder of the last will to understand the case put against making a grant with precision and particularity and so as to avoid surprise at the trial. Where the particulars of objection are imprecise, vague or inadequate, the Court may order that further particulars be provided within a certain time. Where the particulars are ambiguous, obscure or inadequate the particulars may be struck out.[2] In default of particulars that provide a sufficient factual basis for the grounds of objection, the Court will order that the caveat cease to be of effect. If there is a proper basis for the caveat, orders would be made joining the caveator as a defendant in the proceeding and directions made for the trial of the proceeding.
[2]In re Smith (dec’d) [1951] VLR 368.
The caveator alleges that the last will was executed in circumstances that raise a suspicion the deceased did not know and approve of the contents of the last will.[3] It is a testator’s understanding that is decisive in determining whether a testator knew and approved of the contents of her will.[4]
[3]See generally Veall v Veall (2015) 46 VR 123, 175–8 [173]–[178] (Santamaria JA) citing Hoff v Atherton [2005] WTLR 99.
[4]Ibid 178 [179].
In Bailey v Bailey, Isaacs J, with whom Gavan Duffy and Rich JJ concurred, provided a summary of the principles to be drawn from the leading cases on the question of knowledge and approval as follows:
(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents.
(2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.
(3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate.
(4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will.
(5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification.
(6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus.
(7) The doctrine that suspicion must be cleared away does not create ‘a screen’ behind which fraud or dishonesty may be relied on without distinctly charging it.[5]
[5](1924) 34 CLR 558, 570–1.
More recently, in Tobin v Ezekiel, Meagher JA stated:
Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be “the most satisfactory evidence” of actual knowledge of the contents of the will ...What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example, in Wintle v Nye ... the relevant circumstances were described ... as being such as to impose “as heavy a burden as can be imagined”. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction ... That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator ...[6]
[6](2012) 83 NSWLR 757, 771 [47] (citations omitted).
Consideration
The deceased’s testamentary intentions in her last will are very different from her intentions under her penultimate will. This change was made four days after an argument between the deceased and the caveator. After that falling out with the caveator, the deceased no longer wanted to provide for the caveator in her will.
The deceased retained the same solicitors who prepared her penultimate will. Her instructions were to change her penultimate will and the explanation for the change is recorded in the attendance notes. The attendance notes show that instructions were taken from the deceased the day before the will was executed. They include the note that ‘Niece never been financially dependent want to remove her from will due to family upset’. The notes are clear that the deceased’s testamentary intentions were to change her will as a result of the falling out and that she wanted to do that as soon as possible.
Contrary to the caveator’s position, this change to the deceased’s testamentary intentions was made with an explanation. The caveator also alleges that the change was made without ‘forewarning’, however, the deceased had no obligation to warn the caveator that she intended to change her will. The explanation for the change does not raise any suspicion that the deceased did not fully or properly comprehend the significance of her actions or the effect of the will.
The last will is entirely explicable as a result of the falling out with the caveator. The fact that the deceased provided instructions for her new will within four days of the falling out points to the significance of the falling to her and her wish to change her testamentary intentions more or less immediately. The caveator could not expect to be the natural object of the deceased’s bounty as the deceased did not owe any responsibility to include her as a beneficiary in her will. The reasons for changing her will and excluding the caveator are rational.
The caveator alleges that the deceased’s usual solicitor was away at the time the will was executed on 7 December 2007. There is no evidence that Mr Luscombe was away at the time. To the contrary, it was Mr Luscombe who signed the attendance notes relied on by the caveator. The facts that Mr Luscombe was not present when the deceased executed her will or that no solicitor witnessed her signature are not causes for suspicion. The last will was witnessed by two law clerks. The requirements for the execution of a will, pursuant to s 7 of the Wills Act 1997, were complied with in respect of the last will. Notably, the penultimate will relied on by the caveator was also witnessed by two law clerks and there is no evidence that Mr Luscombe was present at that time.
The deceased’s testamentary intentions were clearly expressed and her will was simple in form. The dispositive provisions are contained on the first page and the signing clauses are on the second page. The fact that the deceased’s signature is not on the first page of the will does not raise a suspicion that the will was not read over or not read closely before it was signed. Where a will is executed in accordance with the Wills Act1997 it is presumed to be a valid will.
The caveator alleges that the deceased received inaccurate legal advice regarding the distribution of her estate upon executing the will. The attendance notes record a discussion that there is no executor if the plaintiff dies. Pursuant to s 17 of the Administration and Probate Act 1958, the plaintiff’s executor would become the executor of the estate of the deceased if the plaintiff were to die after proving the will. The notes record that if the plaintiff died before the deceased, the deceased would change her will. The deceased was therefore aware of the changes that would be required if the plaintiff died first and was properly advised.
The caveator contends that because the deceased’s sister-in-law had died and her brother was terminally ill, the deceased was vulnerable and fragile and relies on this as a reason for the deceased executing the will as a matter of urgency. It is not entirely clear why this is a suspicious circumstance. If it is relevant at all, it provides an understandable reason for the deceased ensuring her testamentary intentions were updated and in order. To the extent that it is alleged that the deceased had an overwhelming angst or anxiety regarding death and illness, this anxiety did not prevent her from making her penultimate will, and if relevant to the making of her last will, only contextualises her wish to update her will without delay in light of the falling out with the caveator.
Conclusion
The particulars of the caveator’s grounds of objection do not provide a sufficient factual basis to establish a prima facie case that circumstances exist which give rise to a suspicion the deceased did not know and approve of the contents of the last will.
Accordingly, the Court orders that the caveat be struck out.
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