Re Przychodski
[2016] VSC 781
•15 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2016 10233
In the matter of the will of ANASTAZJA PRZYCHODSKI deceased
| DEREK PRZYCHODSKI | Plaintiff |
| v | |
| DANIEL PRZYCHODSKI | Caveator |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 November 2016 |
DATE OF RULING: | 15 December 2016 |
CASE MAY BE CITED AS: | Re Przychodski |
MEDIUM NEUTRAL CITATION: | [2016] VSC 781 |
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PROBATE — Where caveat objecting to grant of probate lodged with Registrar of Probates — Where caveator filed grounds of objection — Where caveator required to file particulars of grounds of objection — Whether caveator’s further amended grounds of objection establish a prima facie case — Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 — In re Smith (dec’d) [1951] VLR 368 — Moran v Place [1896] P 214 —Supreme Court (Administration and Probate) Rules 2014, r 8.08(a)(iii)
PRACTICE AND PROCEDURE — Summary judgment — Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 — Civil Procedure Act 2010, s 63
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms E L Coates | Jim McCarthy Lawyers |
| For the Caveator | Mr M McKenzie | Constable Connor & Co Pty Ltd |
HER HONOUR:
Background
Anastazja Przychodzki died on 12 January 2016, aged 78 years (‘the testatrix’). She was survived by her son (‘the plaintiff’) and the two children of her deceased daughter, one of whom is the caveator.
By her will dated 17 March 2005 (‘the will’) the testatrix appointed the plaintiff as her executor and trustee and left her estate to the plaintiff. Her estate comprised her property at 24 Tennyson Avenue, Clayton South valued at $1.2 million and $7,863 in her bank account.
The plaintiff filed an application for grant of probate of the will on 24 June 2016. The caveator objected to the grant on three grounds:
(a) the will was not executed in conformity with the Wills Act 1997 and was not intended by the deceased to be her will (‘ground 1’);
(b) the deceased lacked testamentary capacity shortly before and at the time of the execution of the will (‘ground 2’); and
(c) the testatrix acted under undue influence, the plaintiff being the person exercising that influence (‘ground 3’).
The caveator was required by the Court to file amended grounds of objection on three occasions. He filed amended grounds on 2 September 2016, further amended grounds on 19 September 2016 and further amended grounds on 8 November 2016.[1]
[1] Supreme Court (Administration and Probate) Rules 2014, r 8.08(a)(iii).
The November grounds of objection provide as follows:
1.The Caveator has standing to bring this application as he is a grandson of the testator.
2.The Caveator has standing because the sole beneficiary and executor of the Will exercised or is likely to have exercised undue influence on the testator to change her Will and as such is not a fit and proper person to administer the estate. Estate of Crane [2005] SASC 379; (2005) 93 SASR 198; Bowler v Bowler (Unreported, Supreme Court of NSW Probate Division, Young J, 7 June 1990); Uniting Church in Australia Property Trust (NSW) v Millane [2002] NSW SC I 070.
3.The testator made the Will dated 17 March 2005, one week after the death of her late husband. The testator was still suffering the effects of grief and was vulnerable to being influenced by others as to her proper course. She was approached by a clergyman shortly after the funeral and invited to change her will to benefit the church. She was then prevailed upon by the plaintiff to make the Will under consideration in his favour.
4.The testator had spoken of a previous Will where the Plaintiff, as her only surviving child and the Caveator and the Caveator's sister as grandchildren from her only deceased child, would be provided for.
5.The Plaintiff was named in the Will as the sole beneficiary and executor.
6.The Plaintiff conveyed the testator to the solicitor's office to make her Will after he overheard a member of the clergy of the testator's church request that she leave all of her property to the church in exchange for the church looking after her in her old age.
7.The testator made the Will and gave instructions in the presence of the Plaintiff.
8.The Plaintiff conveyed the testator to a solicitor who did not speak Polish, which limited the legal advice that she was able to receive. Union Fidelity Trustee Co v Gibson [1971] VR 573.
9.The Plaintiff purportedly translated the Will verbally into Polish for the testator.
10.The document of which the probate is being sought was not executed in conformity with the Wills Act 1997 as the lack of capacity to read English was not identified in the Will. Further the reading of the will to the deceased in Polish was not identified in the Will. Further the circumstances that this was done by the only beneficiary was not identified.
11.The testator believed that the Plaintiff, if he took under her Will, would distribute her Estate pursuant to her wishes, which she had not put in the Will.
12.The testator acted under undue influence, the Plaintiff being the person exercising that influence.
13.The Plaintiff bears the onus of proving that no undue influence was exercised. Westmelton (Vic) Pty Ltd v Archer and Schulman [1982] VR 305.
The November grounds of objection were substantially the same as the grounds filed on 2 and 19 September 2016 respectively, with the only changes being the deletion of part of a paragraph that alleged the caveator was a member of the deceased’s household for four and a half years and the deletion of a paragraph setting out a test for equitable undue influence.
The caveator has now had four opportunities to provide his grounds of objections. The difficulty in understanding the factual basis of the grounds of objections caused the plaintiff to file two affidavits to support her application for a grant of probate. These affidavits were filed in line with the overarching purpose of the Civil Procedure Act 2010 (’the CP Act’) to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.
The first affidavit was made after the 19 September grounds were filed. This affidavit was sworn by Naomi Kate Guyett on 14 October 2016. Ms Guyett was the solicitor who took instructions from the testatrix for her will, drew the will and was an attesting witness to the will. Notwithstanding this affidavit, the caveator did not amend or delete any of items 6, 7, 8, 9 or 10 in his November grounds.
The caveator filed his November grounds four days later than ordered by the Court and two days before the hearing. As the November grounds remained substantially unchanged, the plaintiff filed an affidavit sworn 10 November 2016 dealing with the specific allegations made by the caveator. The 10 November affidavit dealt with contentions that the testatrix’s abilities in the English language were poor, including her ability to communicate in English; the deceased’s testamentary capacity at the time of making her will; the reasons for the testatrix attending on a solicitor and making her will; and, that the plaintiff exercised undue influence over the testatrix to change her will.
At the hearing, the plaintiff submitted that the caveat had no real prospects of success and should be struck out pursuant to s 63 of the CP Act or r 23.03(2) of the Supreme Court (General Civil Procedure) Rules 2015 or the inherent jurisdiction of the Court.
Counsel for the caveator sought an adjournment in order that the caveator be able to file affidavits in response to the plaintiff’s affidavits. This application was refused. It would have been no surprise to the caveator that the application would be made in the circumstances of the multiple attempts to set out grounds of objections that remained substantially the same, notwithstanding the filing of Ms Guyett’s affidavit well before the filing of the November grounds. The caveator’s application for an adjournment misunderstands the fundamental obligation of a caveator to provide proper and adequate grounds to establish a prima facie case before proceeding further in challenging a will.[2]
[2]See, eg, Offley v Best [1793] EngR 778; (1667) 83 ER 361; In re Gillard [1949] VicLawRp 67; [1949] VLR 378, 381; Edwards v Boyd (1958) 75 WN (NSW) 525; Re Egan [1963] VicRp 46; [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]; Swalwell v Swalwell (Needham J, unreported, 15 July 1988) cited in Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [310]; Estate Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016) [53].
Summary judgment under the CP Act
Pursuant to s 63(1) of the CP Act, the Court may give summary judgment in a civil proceeding if satisfied that a claim has no real prospect of success. In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, Warren CJ and Nettle JA (as his Honour then was) explained the meaning of the phrase ‘no real prospect of success’ as follows:
... the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success; that the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.[3]
[3]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 39 [29] (‘Lysaght’).
In Mandie v Memart Nominees Pty Ltd, the Court of Appeal referred to various authorities and canvassed the different language used in those authorities to explain what the test ‘no real prospect of success’ means as it appears in s 63 of the CP Act.[4] In short, the concept has been said to apply to claims that are ‘fanciful’,[5] ‘futile’[6] or ‘unarguable’.[7] Those descriptions were treated as being synonymous with the ‘no real prospect’ test, and with each other, by the Court of Appeal in Mandie.[8]
[4]Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 (5 February 2016) [43]–[47] (Kyrou, Ferguson and McLeish JJA) (‘Mandie’).
[5]Lysaght (2013) 42 VR 27, 39 [29].
[6]Utility Services Corporation Ltd v SPI Electricity Pty Ltd [2012] VSCA 158; (2012) 35 VR 628, 641 [48] (Dixon AJA).
[7]Ibid 629 [1] (Bongiorno JA), 630 [8] (Beach AJA).
[8]Mandie [2016] VSCA 4 (5 February 2016) [47].
Principles governing the provision of proper and adequate grounds for caveats
The Court in its probate jurisdiction has an inquisitorial role that requires a greater supervision and control of proceedings than adversarial common law proceedings.[9] The primary function of the Court in exercising its probate jurisdiction is to make grants of representation. Caveats act as a mechanism for notice from the Court to a party interested in an estate that an application for a grant of representation has been made in respect of a deceased estate.
[9]See, eg, Re Fuld [1965] P 405, 409F–411B; Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [264] (Lindsay J).
The caveat procedure exists to ensure that estates are administered in an orderly manner and that any issues arising before a grant of representation is made can be investigated and dealt with by the Court. This ensures that any grant gives effect to the final valid testamentary wishes of the deceased or the intestacy provisions and title to any real or personal property owned by the deceased at the date of their death passes in accordance with these wishes or provisions. All participants in a proceeding must be mindful that the purpose of the probate jurisdiction is ensuring that the testamentary intentions of a deceased person are carried out and the beneficiaries receive what is due to them.[10]
[10]In the Goods of William Loveday [1900] P 154, 155–156. Applied in In the Goods of Galbraith [1951] P 422. See also, Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295, 337; Estate Wight: Wight v Robinson [2013] NSWSC 1229 (30 August 2013) [17]–[20]; Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [211]; Estate Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016) [52].
Upon receiving notice from the Court that an application for a grant of representation has been made, a caveator must file particulars to establish not only that he or she has standing to lodge the caveat, but also a prima facie case before the application can proceed to contest.
In order to establish standing in a proceeding relating to a deceased estate, a person must be able to show that his or her rights will, or may, be affected by the outcome of the proceeding.[11] Standing is usually established by the caveator having a beneficial interest in the deceased’s final will or under the penultimate will or the intestacy provisions where there is no penultimate will.
[11]Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [212]–[216].
In order to establish a prima facie case, a caveator must provide a sufficient factual basis for the grounds of objection relied on by him or her.[12]
[12]Moran v Place [1896] P 214, 216-17 (Kay RJ) cited in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [242].
The purpose of the grounds of objection is to establish a caveator’s standing and set out a sufficient factual basis for any grounds of objection. This will define the questions for trial, to enable the propounder of the last will to understand the case put against the making of a grant with precision and particularity and 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, as has happened three times in this proceeding. Where the particulars are ambiguous, obscure or inadequate the particulars may be struck out.[13] In default of particulars that fail to 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.
[13]In re Smith (dec’d) [1951] VLR 368.
At all times, litigants must also be mindful of the overarching purpose of the CP Act and their overarching obligations set out in the CPA.
Consideration
The caveator’s November grounds are unclear in three aspects; the first is the caveator’s standing; the second is whether he has a sufficient factual basis to raise a prima facie case for his three grounds of objection; and the third is whether he relies on the three grounds alleged by him or just some type of undue influence, with the November grounds of objection referring only to allegations of equitable undue influence.
The standing of the caveator
The caveator asserts that he has standing on three grounds: in item 1 of his grounds ‘as a grandson of the testatrix’; in item 2 on the basis that the plaintiff ‘exercised or is likely to have exercised undue influence’ on the testatrix and in item 4 on the basis that the testatrix had spoken of a previous will where the caveator and his sister would be provided for by the testatrix.
The plaintiff has searched and not found a penultimate will. This removes item 4 of the grounds as a basis for asserting the caveator’s standing. There being no evidence of the testatrix having executed a previous will, the caveator has standing if the tetatrix’s will can be successfully challenged as her estate would be distributed in accordance with the intestacy provisions under the Administration and Probate Act 1958.[14] As a grandchild of the deceased, the caveator would be entitled to a share of the deceased’s estate on intestacy and would have a beneficial interest in the estate of the deceased.
Has the caveator established a prima facie case?
[14]Administration and Probate Act 1958, s 52.
The next question to determine is whether the caveator has established a prima facie case by his grounds of objection, that is, whether the caveator has established a sufficient factual basis to raise at least a prima facie case for each of the three grounds of objection relied on by him.
The caveator conceded that the allegation in item 2 that the plaintiff was not a fit and proper person to administer the estate was not an allegation that he could rely on for the purposes of challenging the will.
Item 5 alleging that the plaintiff was named in the will as the sole beneficiary and executor are not allegations that establish a prima facie case.
The remaining items will be considered in order of the three grounds originally set out by the caveator in his caveat.
Ground 1 - whether the will was not executed in conformity with the Wills Act 1997 and was not intended by the deceased to be her will
The first part of ground 1 is that the will was not executed in conformity with the Wills Act 1997. The relevant provisions concerning the execution of a will are contained in ss 7 and 8 of the Wills Act 1997. Those provisions provide for a will to be in writing, signed by the testatrix in the presence of at least two witnesses present at the same time who also sign the will is the presence of the testatrix but not necessarily in the presence of each other. These provisions have been complied with as the will is in writing, signed by the testatrix in the joint presence of the two witnesses and each other.
There are grounds set out in item 10 of the November grounds that may be relevant to the execution of the will. Item 10 asserts that the testatrix’s lack of capacity to read English was not identified in the will, the reading of the will to the deceased in Polish was not identified in the will and the circumstances that the reading of the will in Polish to the testatrix was done only by the plaintiff and this was not identified in the will.
In respect of these allegations, Ms Guyatt deposed that she believed that the testatrix was an existing client of her firm, giving the reasons for her belief. Her affidavit set out in detail her dealings with the testatrix in relation to the taking of instructions from the testatrix for her will and the signing of the will, having recourse to her notes of her meetings with the testatrix.
Ms Guyatt deposed that before meeting with a client who wanted to make a will, it was her practice for the client to complete a ‘client information sheet’ before meeting with the client. This was done in the case of the testatrix where she completed the client sheet in the reception area of the solicitor’s office. Ms Guyatt identified the handwriting on the client sheet to be the handwriting of the testatrix. Ms Guyatt then reviewed and discussed the information on the client sheet with the testatrix, with Ms Guyatt also making her own notes on the client sheet.
Ms Guyatt deposed that she was able to converse with the testatrix in English with no difficulties and that she would not have continued with the meeting if she had not been able to understand the testatrix’s instructions or that the testatrix did not understand her line of questioning to her. Ms Guyatt deposed that she was able to converse in English with the testatrix and if she had encountered any difficulty she would have stopped the meeting and arranged for an independent interpreter to be present so that she would continue the meeting. Corroborating Ms Guyatt’s evidence, the plaintiff deposed as to the details of the testatrix’s ability to speak and communicate in English. He deposed that as the caveator did not speak Polish the testatrix communicated with him in English and did so successfully over the years.
Ms Guyatt deposed that the plaintiff was present during the discussions with the testatrix because the testatrix stated that she wanted him at the meeting. Ms Guyatt deposed that the plaintiff did not make any suggestions to his mother as to the disposition of her estate and that, based on his conduct at the meeting, the plaintiff did not appear to Ms Guyatt to be influencing his mother in any way. The testatrix also asked Ms Guyatt to telephone the plaintiff when she had prepared the will.
Ms Guyatt also deposed as to the circumstances of the signing of the will on 17 March 2005. The will was read to the testatrix in English and Polish by the plaintiff in the presence of Ms Guyatt. Ms Guyatt then satisfied herself that the testatrix knew and approved of the contents of the will by reading over and summarising the provisions of the will to her, in particular, Ms Guyatt focussed on the distribution of the estate with the testatrix as she considered that the testatrix’s instructions were ‘not the norm’. Ms Guyatt’s file notes recorded that she clarified this with the testatrix before the will was executed by the testatrix. Ms Guyatt satisfied herself that the attestation clause of the will was as for a standard will as the testatrix knew and approved of her will.
The plaintiff as the propounder of the will has the benefit of the presumption of validity. Ms Guyatt’s evidence supports that presumption. The caveator’s assertions made in the first part of item 10 of the November grounds of objection fails to establish a sufficient factual basis to establish a prima facie case.
The second part of ground 1 is that the will was not intended by the testatrix to be her will. It is not clear what is asserted by the caveator in the November grounds to support this part of ground 1. A possibility might be item 11 which asserts that the testatrix believed that the plaintiff, if he took under her will, would distribute her estate pursuant to her wishes, which she had not put in her will. These assertions do not establish a prima facie case.
Accordingly, ground 1 should be struck out.
Ground 2 - whether the testatrix lacked capacity shortly before and at the time of the execution of her will
The approach to determine a lack of testamentary capacity is summarised in Veall v Veall.[15] The will sought to be propounded by the plaintiff is valid on its face. The plaintiff as the propounder has the benefit of the presumption that the deceased had testamentary capacity.[16] The classic statement as to the legal test for testamentary capacity is stated in Banks v Goodfellow:
It is essential to the exercise of [a testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.[17]
[15][2015] VSCA 60 (16 April 2015) [168]–[171] (Santamaria JA).
[16]Gornall v Masen (1887) 12 PD 142; Palin v Ponting [1930] P 185, 188.
[17](1870) LR 5 QB 549, 565.
Whilst the caveator’s caveat alleged that the testatrix lacked testamentary capacity, the November grounds did not contain any basis to support that allegation.
The plaintiff deposed in some detail as to the testatrix’s testamentary capacity at the relevant times. The plaintiff’s evidence alone cannot verify testamentary capacity as he is an interested person under the will. There is further evidence supporting the testamentary capacity of the testatrix apart from that of the plaintiff. The death certificate of the testatrix evidences that she died of a heart condition and Ms Guyatt deposed in detail that she satisfied herself that the testatrix had testamentary capacity at the relevant times.[18]
[18] Affidavit of Naomi Kate Guyett sworn 14 October 2016 [12], [13], [25].
The caveator also has the evidentiary burden to point to circumstances that raise a suspicion that the deceased lacked testamentary capacity so as to require an investigation of the will. To that extent, the caveator asserts that the testatrix was suffering the effects of grief as her will was made one week after the death of her husband. This assertion was made in the context of her vulnerability to being influenced by others ‘as to her proper course’. To the extent that this might be said to be an allegation that the testatrix somehow lacked testamentary capacity, it has no basis in law or fact.
There is not a sufficient factual basis asserted by the caveator in the November grounds to establish a prima facie case that the testatrix lacked testamentary capacity at the relevant times.
Accordingly, ground 2 should be struck out.
The possibility that the caveator may be asserting that the testatrix did not know and approve of her will
Although the caveator’s grounds did not contain any basis to support the allegation made under grounds 1 and 2 of his caveat, consideration should be given as to whether the caveator may be asserting that the testatrix did not know and approve of her will when he asserts that her will was not intended by her to be her will or that she lacked testamentary capacity at the relevant time.
This is because the caveator asserts in the November grounds that the testatrix lacked the capacity to read English. Although the November grounds allege that this gives rise to the will not being executed in conformity with the Wills Act 1997, it is possible this might be an allegation that the testatrix did not know and approve the contents of her will.
Testamentary capacity and knowledge and approval are separate and distinct concepts. Any assertion by a caveator that a will was executed in suspicious circumstances is, in reality, an assertion of lack of knowledge and approval, an assertion that goes beyond lack of testamentary capacity.[19] It is the testatrix’s understanding that is decisive in determining whether she knew and approved the contents of her will.
[19]Veall v Veall [2015] VSCA 6 (16 April 2015) [173] (Santamaria JA) citing Hoff v Atherton [2005] WTLR 99.
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.[20]
[20](1924) 34 CLR 558, 528 or 570–2 (citations omitted).
The testatrix’s ability to speak and communicate in English was deposed to by both the plaintiff and Ms Guyatt. Ms Guyatt is independent and a solicitor whereas the plaintiff is interested as the beneficiary of the estate. Ms Guyett was able to converse with the testatrix in English and detailed the reasons for her being satisfied that the testatrix knew and approved the contents of her will.[21]
[21]Affidavit of Naomi Kate Guyett sworn 14 October 2016 [10], [20], [24], [25].
To the extent that the caveator might be alleging that the deceased did not know and approve of her will, the grounds do not contain any basis to for a prima facie case for such an allegation.
Ground 3 – whether the testatrix acted under undue influence, the plaintiff being the person exercising that influence
Of the caveator’s grounds of objection, the primary allegation appears in item 2 to be an allegation that the plaintiff ‘exercised or is likely to have exercised undue influence’ on the testatrix to change her will.
The caveator asserts that the plaintiff bears the onus of proving that no undue influence was exercised, relying on Westmelton (Vic) Pty Ltd v Archer and Schulman.[22]This decision deals with an allegation that the appellant was under the influence of the respondent solicitors by virtue of the confidence that exists in a solicitor-client relationship. In that case, the client was not given the opportunity to obtain independent advice before the solicitor contracted with the client to receive a percentage of corporate profits via shareholdings in the client company in exchange for reduced legal fees. Initially counsel for the caveator informed the Court that he did not rely on the decision. After the luncheon adjournment, counsel informed the Court that he did rely on it to support an allegation of testamentary undue influence. This was because the testatrix may have been in a position of reliance, dependence and vulnerability in connection with the conduct of the plaintiff such that a relationship of confidence arose to ensure arms-length transactions. Counsel stated this would mean there would be a suspicion arising that undue influence had come into play, which would reverse the onus of proof. To the extent that these submissions might raise an allegation of some sort of equitable undue influence on the part of the plaintiff, it must be dismissed. An allegation of equitable undue influence does not come within the concept of testamentary undue influence.[23]
[22][1982] VR 305 (‘Westmelton’).
[23] Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457, 474–5; Boyce v Bunce [2015] NSWSC 1924 (17 December 2015) [33]–[34], [42]–[43] (Lindsay J). Lindsay J discussed the differences between the probate and the equity jurisdictions in respect of undue influence: Boyce v Bunce [2015] NSWSC 1924 (17 December 2015) [44]–[60]. Notably, the Victorian Law Reform Commission’s report dated 15 October 2013 did not recommend that the equitable principles should be applied in the probate jurisdiction but recommended that the issue should be kept under review for further consideration in the future.
For a will to be admitted to probate, it must have been the free will of a testator. A will that has been the subject of undue influence, within the meaning recognised in the probate jurisdiction of the Court, is invalid.[24] An essential component of an allegation of testamentary undue influence is an allegation of fraudulent conduct. Although the assessment of whether there has been an inappropriate degree of influence is a nuanced one, for there to be testamentary undue influence in the eye of the law there must be coercion.[25]
[24]See Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457, 474–5.
[25]See, eg, Boyse v Rossborough (1857) 6 HLC 1, 49; [1854] EngR 252; 10 ER 1192, 1211; Wingrove v Wingrove (1885) LR 11 PD 81, 82-83; Bailey v Bailey(1924) 34 CLR 558; Winter v Crichton (1991) 23 NSWLR 116, 121–122.
The party alleging undue influence must show that the circumstances attending the execution of a will are inconsistent with the will having been obtained other than by undue influence. Particulars in grounds of objections alleging undue influence that are consistent only with the opportunity to influence a testator or testatrix are insufficient. Undue influence will not be presumed.[26] For a caveator to allege testamentary undue influence in the exercise of the probate jurisdiction of the Court, the grounds of objection must contain particulars of actual coercion of the testatrix. Where testamentary undue influence is alleged, it is well established that the onus of proof lies on the party making the allegation.[27] For the caveator to allege a reversal of the burden of proof in a testamentary undue influence case is plainly without any legal basis.
[26]Re Montalto [2016] VSCA 240 [32] (citations omitted).
[27]See, eg, Boyce v Bunce [2015] NSWSC 1924 (17 December 2015) [56]; Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 1365 [63]–[64]; Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 at 121D; Hall v Hall (1868) LR 1 P&D 481; Parfitt v Lawless (1872) LR 2 P&D 462, 468–470.
The caveator alleges in the November grounds that because the will was made one week after the death of her husband, the testatrix was ‘vulnerable to being influenced by others as to her proper course’ and that she was ‘prevailed upon by the plaintiff’. He also alleges that the ‘testatrix acted under undue influence, the plaintiff being the person exercising that influence’ and that because the plaintiff is the ‘sole beneficiary and executor of the will exercised or is likely to have exercised undue influence on the testator to change the will’. He alleges that at an unspecified time the testatrix spoke of a previous will under which the plaintiff, the caveator and his sister would be provided for by her testatrix. He alleges that shortly after her husband’s funeral the testatrix was approached by a clergyman to leave her estate to the church, that the plaintiff prevailed upon her to make her will in his favour although there are no specific allegations as to how the plaintiff prevailed upon her other than to make a will in his favour.
No previous will of the testatrix that has been located by the plaintiff. The testatrix made her will more than ten years before she died. The reference to an unnamed clergyman and what he might have said to the testatrix shortly after the funeral of her husband does not have a basis that can be addressed in any meaningful way, nor can it support an allegation of testamentary undue influence by the plaintiff. The testatrix had more than ten years to decide on her testamentary dispositions. She retained her own solicitor to make her will. She made no changes to her will in that period of time. None of these grounds alleged by the caveator assert coercion by the plaintiff and none of them, either separately to combined, are capable of sustaining an allegation of testamentary undue influence by the plaintiff on the testatrix.
Further, there is no basis in the grounds for even a reasonable suspicion of testamentary undue influence beyond the plaintiff’s presence with Ms Guyett when the testatrix gave instructions for her will. Ms Guyett’s deposed that she was satisfied that although the plaintiff was present with the testatrix, he was not influencing her in the preparation of her will and that the deceased was free of influence, giving reasons for her satisfaction.[28] The plaintiff deposed that he did not interfere in the will making process, that his mother requested him to drive her to Ms Guyatt’s office[29] and denies influencing his mother to make a will in his favour.[30]
[28]Affidavit of Naomi Kate Guyett sworn 14 October 2016 [16], [21], [25].
[29]Affidavit of the plaintiff sworn 10 November 2016 [17]-[18].
[30]Ibid [19], [23].
The November grounds of objection contain no particulars of coercion by the plaintiff over the testatrix and fail to establish a prima facie case of testamentary undue influence by the plaintiff.
Conclusions
The caveator has been given substantial latitude to file proper grounds of objection, having had four attempts to do so. He has failed to provide a sufficient factual basis for the grounds of objection and has failed to establish a prima facie case. Accordingly, I am satisfied the plaintiff’s caveat has no real prospects of success and should be struck out.
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