Ross v Gordon
[2019] ACTSC 48
•4 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of Olga Hart; Ross v Gordon |
Citation: | [2019] ACTSC 48 |
Hearing Date: | 22 February 2019 |
DecisionDate: | 4 March 2019 |
Before: | McWilliam AsJ |
Decision: | See [78] |
Catchwords: | SUCCESSION – Application to set aside caveat on probate – whether possible undue influence claim – where no doubt that grant of probate has been established – caveat set aside PRACTICE AND PROCEDURE – DISCOVERY AND INTERROGATORIES – application for discovery to identify right to claim relief – where no tangible basis for an action based on undue influence established – where documents requested not capable of shedding light on other possible claims being considered – application dismissed |
Legislation Cited: | Court Procedure Rules 2006 (ACT) rr 3069, 651 Domestic Relationships Act 1994 (ACT) s 17 Family Provision Act 1969 (ACT) |
Cases Cited: | Boyse v Rossborough (1857) 10 ER 1192 Bridgewater v Leahy (1998) 194 CLR 457 Winter v Crichton (1991) 23 NSWLR 116 |
Parties: | James Young Ross (Plaintiff in SC 519 of 2018; Respondent in PRO 865 of 2018) Donna Maree Gordon (Applicant in PRO 865 of 2018; First Defendant and Second Defendant, as trustee for the Olga Hart Trust, in SC 519 of 2018) |
Representation: | Counsel W. Sharwood (Applicant in PRO 865 of 2018; First and Second Defendants in SC 519 of 2018) T. Crispin (Respondent in PRO 865 of 2018; Plaintiff in SC 519 of 2018) |
| Solicitors Sharman Robertson (Applicant in PRO 865 of 2018; First and Second Defendants in SC 519 of 2018) Ray Swift Moutrage & Associates (Defendant in PRO 865 of 2018; Plaintiff in SC 519 of 2018) | |
File Numbers: | PRO 865 of 2018; SC 519 of 2018 |
McWilliam ASJ
Two applications are before the Court following the death of Olga Hart (the deceased) on 30 September 2018, who had executed a will on 5 September 2018 (the Will). The same individuals are parties to both matters. Mr James Young Ross is the former de-facto partner of the deceased and a beneficiary under the Will. He alleges that the deceased’s daughter, Ms Donna Maree Gordon, exercised undue influence over the deceased leading up to the formulation and signing of the Will. On 16 October 2018, he lodged a caveat number CAV 13 of 2018 (Caveat) in respect of the grant of probate to Ms Gordon.
Relief sought
By application in proceeding dated 4 December 2018 in PRO 865 of 2018 (the probate proceeding), Ms Gordon seeks an order that the Caveat be set aside plus costs.
By originating application dated 15 November 2018 in SC 519 of 2018 (the discovery proceeding), Mr Ross seeks an order pursuant to rule 651 of the Court Procedure Rules 2006 (ACT) (Rules) for preliminary discovery of certain documents relating to the Olga Hart Trust (the Trust) and the estate. Mr Ross also seeks an injunction against Ms Gordon, restraining her from depositing cheques issued to the Trust by the deceased before she died, plus costs.
Evidence
Ms Gordon relies upon affidavits affirmed by her on 4 December 2018 and 22 January 2019 respectively in the probate proceeding and the discovery proceeding.
She also relies first, on an affidavit of the former solicitor engaged by the deceased to act for her in relation to settling her affairs before she died, Mr Terence Michael Dwyer, sworn 4 December 2018. Secondly, she relies on an affidavit sworn on 4 December 2018 by Mrs Deborah Dwyer, lawyer and consultant to the legal practice conducted by Mr Dwyer, who is her husband. Mrs Dwyer was present through the interviews conducted by Mr Dwyer and the deceased and generally corroborated the contents of Mr Dwyer’s affidavit.
Mr Ross relies upon affidavits affirmed by him on 11 November 2018 and 15 February 2019 in the discovery proceeding and the probate proceeding respectively.
In considering both applications I have also listened to audio recordings, marked Exhibit TMD 1, which were annexed to the affidavit of Mr Dwyer. These recordings capture the deceased discussing the terms of the Will and the Trust with her legal representatives on 29 August 2019. I have also considered the contents of a written file note signed by the deceased on 29 August 2018 (Annexure B to the affidavit of Mr Dwyer). This file note was discussed in the audio recordings.
After judgment in this matter was reserved, and indeed, after the parties were notified that the matters had been listed for judgment, Mr Ross’ legal representatives sought to unilaterally provide further material by email to my chambers on 1 March 2019. In circumstances where no consent was sought nor given and the legal representatives did not otherwise have the leave of the Court, the communication was inappropriate and contrary to the well-established protocol for communications with chambers: see Tugrul v Tarrants Financial Consultants Pty Ltd (in liq) (No 2) [2013] NSWSC 1971 at [19]-[22]. I have not considered the email or associated attachments as part of these reasons.
As both matters were heard together and were somewhat interlinked, the totality of the evidence before the Court has been taken into account in reaching conclusions on each application.
Background
10. The following background is taken from the affidavit evidence, including the audio recordings, with none of the deponents cross-examined. It is set out for the purposes of providing the context to the present applications and is not to be taken as considered findings of fact for the purpose of any substantive proceedings in the future.
11. The deceased, a divorcee, is survived by: Ms Gordon, the deceased’s daughter and only child; Ms Grace Ashley Gordon, the deceased’s granddaughter; Mr Will Ian Gordon, the deceased’s grandson; Mr Warren John Law, the deceased’s nephew; Mr Victor Shkolar, the deceased’s brother; and, Mr Evan Gordon, the deceased’s son-in-law.
12. Mr Ross was in a de facto relationship with the deceased from 1987 to late 2003. During their relationship both the deceased and Mr Ross lived at her property in Chapman, ACT (Chapman property), while Mr Ross rented out his property in Stirling, ACT.
13. The relationship ended in late 2003. According to the deceased, she was tired of financially supporting Mr Ross. Extensive financial support was provided to Mr Ross by the deceased during the period in which they co-habited, which included (amongst other non-specified expenses):
(a)All expenses relating to the running of the Chapman property;
(b)Paying for Mr Ross to undertake a three to four year apprenticeship; and
(c)A three month overseas holiday to the value of $40,000 to $50,000.
14. During his relationship with the deceased, Mr Ross sold his Stirling Property. Once the relationship ended Mr Ross moved in with his mother in Queanbeyan, New South Wales. Mr Ross’ mother then died, leaving Mr Ross her estate, which included the Queanbeyan residence.
15. Between 2003 and the death of the deceased, Mr Ross and the deceased kept in contact, mainly via phone. During this period the deceased continued to provide significant financial assistance to Mr Ross, as well as pay him for odd-jobs he did around the Chapman property.
16. In February 2018, the deceased was diagnosed with stage IV lung cancer. To assist Ms Gordon with the deceased’s care, Mr Ross moved back in to the Chapman property.
17. In August 2018 the deceased was diagnosed with terminal brain cancer. Between 7 August 2018 and 28 August 2018, the deceased, with the assistance of Ms Gordon, sought to update her will to ensure that her affairs were in order.
18. On 28 August 2018 Ms Gordon contacted Mr Dwyer for legal advice on the preparation and witnessing of a new will document for the deceased.
19. On 29 August 2018, Ms Gordon drove the deceased to Mr Dwyer’s office, where, without Ms Gordon being present, Mr and Mrs Dwyer had a conference with the deceased.
20. On 5 September 2018, Ms Gordon again drove the deceased to Mr Dwyer’s office. After escorting the deceased to Mr Dwyer’s office, Ms Gordon left the deceased with Mr Dwyer and this was when she signed the Will and Trust documents.
21. The deceased died on 30 September 2018.
Principles relevant to an application for preliminary discovery
The Court’s power
22. Rule 651 of the Rules is set out in the following terms (notes omitted):
R 651 Discovery to identify right to claim relief
(1)This rule applies if –
(a) a person (the applicant) has, or may have, a cause of action against someone (the potential defendant); and
(b) either –
(i) the applicant, after making reasonable inquiries, cannot obtain sufficient to decide whether to start a proceeding in the court against the potential defendant for the cause of action; or
(ii) the following provisions apply:
(A)the applicant is a party to a proceeding in the court;
(B)the potential defendant is not a party to the proceeding;
(C)the applicant, after making reasonable inquiries, cannot obtain sufficient information to decide whether to make a claim for relief in the proceeding against the potential defendant for the cause of action;
(D)the claim for relief could properly have been made in the proceeding against the potential defendant if the potential defendant were a party; and
(c) the applicant has reasonable grounds for believing that the potential defendant has or has had possession of a document or thing that can assist in deciding whether to start the proceeding, or make the claim for relief, against the potential defendant; and
(d) inspection of the document or thing by the applicant would help in making that decision.
(2)If subrule (1)(b)(i) applies, the applicant may apply to the court by originating application for an order under this rule (and, if relevant, an order under rule 715 (inspection, detention, custody and preservation of property – orders etc)) against the potential defendant.
(3)If subrule (1)(b)(ii) applies, the applicant may apply to the court for an order under this rule (and, if relevant, an order under rule 715) against the potential defendant.
…
(4)The application must be supported by an affidavit stating the facts on which the applicant relies, and stating the kinds of documents or things in relation to which the application is made.
…
(5)The court may order the potential defendant to produce the document or thing to the applicant.
(6)An order under the rule in relation to any document or thing held by a corporation may be addressed to any appropriate officer or former officer of the corporation.
23. Relevantly, in the decision of Hall v The Commonwealth of Australia [2018] ACTSC 79 (Hall) Elkaim J stated at [10]:
Rule 651 refers to “a cause of action” (emphasis added), not an open enquiry as to whether any cause of action might exist. The purpose of preliminary discovery is to discover material to support a possible cause of action, not to hopefully discover if any, as yet identified, cause of action might exist. It is true that the plaintiff does not have to show a prima facie case on a cause of action, but, in my view, it must identify what that cause of action might be.
24. Importantly, there must be some tangible backing, or objective foundation, that takes the existence of the cause of action beyond a mere allegation, suspicion or assertion: Waller v Waller [2009] WASCA 61 at [75]; cited in Minerva (Aus) Pty Ltd v Suburban Land Agency [2018] ACTSSC at [25] and in Hall at [18].
Onus of proof
25. The plaintiff (in this case, Mr Ross) bears the onus to satisfy the Court that, after having made reasonable enquiries, he was unable to obtain sufficient information to decide whether or not to commence proceedings against any or all of the defendants: Morton & Ors v Nylex & Anor [2007] NSWC 562 at [33]; cited in Hall at [22].
26. Whether reasonable inquiries have been made is a question of fact, to be considered in all the circumstances of the case, including the relationship between the plaintiff and the potential defendant/s: Steffen v ANZ Banking Group Ltd [2009] NSWSC 666 at [15].
The question of relevance
27. In determining whether the documents that have been sought are relevant, it is necessary to consider whether they will be relevant to any decision as to whether to commence proceedings: St George Bank v Rabo Australia Ltd [2004] FCA 1360; 211 ALR 147 at [26].
28. The preliminary discovery procedure is not designed to secure for a prospective plaintiff all the documents and other information that would be discoverable if a proceeding were commenced against the defendant: SmithKlineBeecham v Alphapharm [2001] FCA 271 at [19].
29. Regard should be had to the extraordinary nature of the relief sought and the cautious approach courts must take when considering making an order against a party not yet involved in litigation: Elmarazeey v The Law Society of the Australian Capital Territory [2006] ACTSC 124; 205 FLR 445 at [18], cited in Hall at [7].
Principles applicable to applications to set aside a caveat against the grant of probate
30. Sub-r 3069(4) of the Rules, states as follows:
(4)The court may set aside the caveat if it considers that the evidence does not –
(a) show that the caveator has an interest in the estate or a reasonable prospect of establishing an interest; or
(b) raise doubt about whether the grant of representation should be made.
Onus and standard of proof with respect to the maintenance of the caveat
31. When an application to set aside a caveat is brought before a Court, the onus of proof lies with the caveator to prove that the claim to an interest made by the caveat raises a serious question to be tried: White (as Trustee of the Estate of Olle) v Guyatt [2010] VSC 141 per Osborn J at [6]. This is also clear from a plain reading of sub-r 3069(4) of the Rules.
32. In this jurisdiction, In the Estate of Rushton [2015] ACTSC 342, Mossop J decided to similar effect. At [13] of Mossop J’s reasons, he set out a series of propositions taken from Bailey v Bailey (1924) 34 CLR 558. They included the proposition that once the proponent of a will (in this case Ms Gordon) establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, the onus lies on the party impeaching the will to show that it ought not be admitted to proof.
33. Here, the only doubt Mr Ross raises with respect to the grant of representation is that of a potential undue influence claim. It is therefore unnecessary for the Court to consider whether those other elements that must be met to establish the existence of a valid will – such as testamentary capacity and knowledge as to the content of the will – have been met: Carr v Homersham [2018] NSWCA 65 at [46]–[47].
The claim for undue influence
34. It is necessary to have some understanding of the nature of the claim being considered by Mr Ross to assess whether the allegations being investigated by Mr Ross as a possible claim have any tangible backing.
35. A significant evidentiary hurdle exists for those who seek to contest the validity of a will on the basis of undue influence. As with the maintenance of a caveat, the onus of proving undue influence sits with the party alleging the exercise of such influence over the testator (Mr Ross in this case): Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [270] (Petrovski).
36. The standard of proof that must be met by Mr Ross is as set out in Brown v Guss [2014] VSC 251 per McMillan J at [393]:
…The party alleging undue influence must show that the circumstances attending to the execution of the will are inconsistent with the will having been obtained other than by undue influence. The standard to which they must show the circumstances are so is on the balance of probabilities. If all they are able to provide is that undue influence and a lack thereof are equally likely, they have not proved their case. They must instead show that on balance, the hypothesis that the testator has been unduly influenced must be more likely than the contrary.
37. See also Brereton J in Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWC 81 at [43].
Establishing undue influence in a probate context
38. Undue influence in a probate context is to be distinguished from the equitable doctrine of undue influence: Bridgewater v Leahy (1998) 194 CLR 457 at 475. In probate matters, the question is whether there was coercion rather than mere influence; that is, conduct that overbears the will of the testator/testatrix, so that he/she makes the will without intending and desiring the disposition made thereby. The circumstances must be such that the disposition is not regarded as the free and voluntary act of the testatrix: Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 (Salvation Army) per Ipp JA (with whom Mason P and McColl JA agreed) at [62]-[63]. See also Petrovski at [263] citing Boyse v Rossborough (1857) 10 ER 1192 at 1192; Craig v Lamoureux [1920] AC 349 at 357 (Lamoureux).
39. The distinction between coercion, mere influence and persuasion has been explored in cases such as Salvation Army; Miller v Jones [1999] NSWCA 467; and Winter v Crichton (1991) 23 NSWLR 116 at 122. At its core, a coercive act is one that overburdens the free judgment of the testator. Additionally, the physical and mental state of the testator at the time the alleged coercion took place should be considered.
40. It is only when the will of a person who becomes a testator is coerced into doing that which he or she does not desire to do, that undue influence will exist: Wingrove v Wingrove (1885) 11 PD 81 at 82 per Sir James Hannen P, who went on to state further at 83:
…it is not sufficient to establish that a person has the power to unduly overbear the will of the testator. It is also necessary to prove that in the particular case, that power was exercised and that it was by means of the exercise of that power that the will, such as it is, has been produced.
41. This might logically be thought of as a form of causal connection. In determining whether the coercion alleged led to the testatrix (in this case) acting contrary to her intentions, the statement of Viscount Haldane in Lamoureux at 357, relied upon by Ipp JA in Salvation Army at [76], is of assistance:
…Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express the testator’s mind, but which really does not express his mind, but something else which he did not really mean.
Issues for resolution
42. Applying the above rules and principles to the applications before the Court, in the probate proceeding, if there is evidence of a prima facie valid will, then Mr Ross, who already has an interest in the estate as a named beneficiary, has to establish that there is a doubt about whether the grant of representation should be made.
43. In the discovery proceeding, Mr Ross has to establish:
1. That he has a tangible backing for a claim of undue influence or any other claim;
2. That he has made reasonable enquiries seeking to obtain sufficient information but without success; and
3. That the documentation sought has capacity to shed further light on the potential undue influence claim or any other claim he may wish to bring.
Consideration
44. Having read and listened to the totality of the evidence, it is clear that there is a prima facie case of sound mind, memory and understanding with reference to the Will. Further, Mr Ross has not discharged the onus in respect of either the probate proceeding, in raising a doubt about the grant of representation, or in the discovery proceedings, in terms of establishing a tangible backing for a claim of undue influence.
The audio recordings
45. As set out above, the deceased attended upon her solicitor a number of times, without Ms Gordon present at the conferences. For an abundance of caution, a witness unrelated to the deceased was present during the conferences.
46. The Court was fortunate, through the foresight of the deceased’s legal representative, to have a clear recording of the deceased’s meetings with her solicitor. That meant that the Court had the deceased’s intentions and explanations through her own voice, and the evidence is telling.
47. During the first conference, the solicitor took care to ask the deceased what she wanted her solicitor to do. The deceased said that she wanted the solicitor to make a will to meet her wishes. The solicitor also stated his intention that they take their time and not rush the deceased in any way.
48. The solicitor explained to the deceased:
What we’ve got to satisfy ourselves of, is that you know exactly what you are doing with your will and what we do is what you want. We don’t care what Donna wants. We don’t care what Jim wants. And that’s why we wanted to talk to you alone, to get exactly your views and what your feelings are about all of this.
49. In these audio recordings, the deceased presents as a lucid individual with an excellent ability to recall events in detail over many years, clear and decisive intentions as to the distribution of her estate, and an ability to provide cogent reasons for these decisions. Those intentions are undoubtedly reflected in the terms of the present Will before the Court.
50. The deceased was plainly aware that the recordings were being made with a view to being used in any legal proceedings that may be instituted after her death (such as those that have come to pass). Indeed, in the audio recordings she indicated that she was also obtaining medical evidence from her doctor testifying to her capacity so that no one could argue she was in any way incapacitated at the time she executed the Will. Her consciousness of that potential issue is reflected in her comments on two occasions that ‘I am sane’.
51. I interpolate that such medical evidence was also before the Court on this application, with her family doctor of 14 years preparing and signing a letter post an examination of the deceased, stating that the deceased was competent to make financial and health decisions. The document was signed on 3 September 2018, two days before the deceased executed the Will.
52. During one of the recorded conferences, the solicitor drew the deceased’s attention to a file note written by Ms Gordon setting out things that had happened between the deceased and Mr Ross. The contents of the file note were read to the deceased and she confirmed the truth of what had been written, both orally and then by signing the document.
53. Parts of the recording that shed light on the core issues in question include:
(a)The deceased instructed the solicitor that she intended to gift $200,000 to Mr Ross, This was a change from the $300,000 she had previously told him she would give him. She also wanted to gift him some furniture that she knew he liked.
(b)The deceased explained in detail why she had decided to reduce the figure. She made statements to the following effect –
(i)That the deceased had given Mr Ross a bank account and deposited $40,000 into it (which Ms Gordon did not know about) and had also paid for a number of personal purchases made by him.
(ii)Mr Ross took her dinner set without her permission and lied to her about it when she confronted him.
(iii)Mr Ross treated occupational therapists who had come to the deceased’s home to assist her with modifying her residence poorly.
(iv)Mr Ross hid her expensive power tools under the house, rather than leaving them hanging up in the garage which they had done for years, in the deceased’s view, with an intention of later taking them from her.
(v)Mr Ross took some of her photo albums without her permission.
(c)She was unhappy that Mr Ross had been telling nurses that they had been together for 35 years when in fact that was not true. She felt he had changed and had become greedy and she was presently only allowing him to stay in her house to be kind to him because he did not have a job.
(d)The deceased said that she did love Mr Ross now but not as a lover or a de- facto partner. She felt sorry for Mr Ross and believed that $200,000 was a sufficient figure to allow Mr Ross to live comfortably for the 2 or 3 years before he was able to receive a pension.
(e)The deceased felt that Mr Ross was attempting to control things and influence her. She gave a number examples. She believed that Mr Ross had listened in on conversations she was having with her daughter behind closed doors. She used to switch off a monitor which appears to have enabled people to listen to her conversations when they were not in the room. However Mr Ross would come into the room and turn it back on. She recalled Mr Ross had wanted an earlier will the deceased made given to him on a USB stick so that he could amend it. He said he wanted to change how the nephew of the deceased received his inheritance, and requested that he be in control of that inheritance and give it to the nephew as required. The deceased said no; she wanted the nephew to be able to spend the gift however he wished.
54. The deceased expressly rejected the notion that Ms Gordon had any undue influence over her decisions, saying:
He is annoyed, because he reckons Donna is controlling my mind. She’s not. I’ve never had a daughter…or seen a daughter give me showers, massage me every morning, look after me so much, take me out. Without her I would not have been motivated. I reckon I would have been dead.
55. The deceased confirmed her intention that Ms Gordon was to be the executor and that she wanted to give her daughter and her grandchildren most of the estate.
56. A final matter relevant to the present issues is how the deceased came to write two cheques giving $1.2 million to the Olga Hart Trust before she died. It is clear from the recording that the idea came from her solicitor, who advised her to write the cheques and give them to Ms Gordon as one of the beneficiaries under the trust (and now the trustee of the Olga Hart Trust, pursuant to a trust deed that was also in evidence). Ms Gordon could then present them as a creditor of the estate. The deceased understood that this would bankrupt her estate as a result.
57. The unchallenged evidence of the solicitor was that he advised the deceased that because the estate would be bankrupt upon her death, she would be relying on her daughter honouring a payment of $200,000 to Mr Ross following her death. It can be inferred that the deceased trusted her daughter to do this, as the cheques were written and given to Ms Gordon before the deceased died.
Conclusions drawn from the evidence
58. From the evidence just recited, there is no basis to suggest any undue influence in respect of the relationship between Ms Gordon and the deceased, as that term is understood in a probate context. Nor is there any evidence to raise a doubt about the establishment of the Trust or any payments to it being in some way the product of undue influence exercised by Ms Gordon over the deceased.
59. The deceased had independent legal advice and made her own choices as to how to arrange her affairs after careful consideration. It is clear that Mr Ross had a belief about Ms Gordon’s influence over the deceased before the deceased died, that the deceased was aware of that belief, and that the deceased expressly rejected such a claim. She was very concerned to prevent Mr Ross taking costly legal proceedings after her death and took steps to deliberately bankrupt her estate upon her death, which she believed would be sufficient to remove any enticement for him to do so.
60. Having read the affidavit evidence of Mr Ross admitted on the applications, there is nothing to suggest even a possibility that anything untoward occurred at the time that the deceased consulted her solicitor for advice and to provide instructions, or that the recording of the deceased’s express intentions was anything other than a reflection of the clear intentions of a person of sound and independent mind.
61. For this reason, I am not satisfied that there is any doubt about whether the grant of representation should be made.
62. I am also not satisfied that Mr Ross’ concern about undue influence has any tangible backing, particularly when the cause of action in probate is properly understood on the principles set out above. The evidence rises no higher than an allegation or suspicion on the part of Mr Ross.
63. Even if I was wrong in that respect, the documents sought do not have the capacity to shed further light on a potential undue influence claim.
64. The first document sought was the Trust Deed for the Trust, which is in evidence and therefore in the possession of Mr Ross. Were it necessary to do so, I indicated that it would be appropriate to release Mr Ross from any implied Harman undertaking.
65. The second category of documents sought was for all financial records for the Trust from the date it was established to the present date. Financial records of a trust do not have the capacity to objectively assist Mr Ross to decide whether there is a claim for undue influence in respect of the Will.
66. Even if the claim being considered is for undue influence in equity, I am unpersuaded that financial records such as bank statements could advance the consideration of such a claim in any way. They might be documents that were discoverable if a claim for undue influence in respect of the Trust was brought (depending on how such a claim was pleaded), but as stated above, that is not the test.
67. The third category of documents sought was for all financial records for the estate of the deceased, from the establishment of the Trust to date. This is a curious category of documents to request on a preliminary discovery application, given that accounts of the estate could have only arisen upon the death of the deceased, at a time when no undue influence over the deceased was possible.
68. The fourth category of documents sought was for all cheques payable to the Trust from Olga Hart. For the reasons already given, copies of cheques do not have the capacity to assist Mr Ross whether to bring a claim for undue influence in respect of the drawing of those cheques against Ms Gordon in a personal capacity or as trustee of the Olga Hart Trust.
Other potential claims
69. Mr Ross identified two other potential causes of action that he was considering bringing, the first being under the Domestic Relationships Act 1994 (ACT) and the second under the Family Provision Act 1969 (ACT).
70. I am not satisfied there is any objective foundation for a claim under the former statute. There was no articulation other than a bare assertion that Mr Ross might bring such a claim. Although s 17 of the said statute permits proceedings to be continued by or against the legal personal representative of the deceased party, that does not assist Mr Ross because he had not yet commenced any proceedings against the deceased. The further significant hurdle to such a claim is the two year time limit from the conclusion of the relationship, it having expired in approximately 2003.
71. A claim under the Family Provision Act 1969 has some objective foundation (once probate is granted), given that the evidence established at a prima facie level that Mr Ross was a former de facto partner of the deceased and was gifted money under the Will, which gift may fail on the evidence led by the parties.
72. The only category of documents sought that could touch upon this cause of action are the financial records for the estate, but exercising the caution referred to above, I have not been persuaded that such documents had the capacity to shed any further light on whether Mr Ross ought commence proceedings in the following circumstances. First, he has access to Ms Gordon’s affidavit, which contains the inventory of the property of the estate of the deceased which discloses the financial position of the estate. Second, he has a copy of the Will so as to be able to assess whether adequate provision has been made. Third, he knows the history of his own relationship with the deceased and his own personal circumstances. It is by no means clear to me what Mr Ross hoped to achieve in requesting the financial records of the estate. Rather, the request appears to be fishing for some other cause of action against the estate, rather than providing information to enable Mr Ross to decide whether to bring a claim for family provision.
Injunction
73. I indicated during the hearing that it would be premature for cheques that had been written by the deceased and given to Ms Gordon to be presented before a grant of probate had been made and Mr Ross had the opportunity to make a claim for family provision.
74. However, having considered all of the evidence and the capacity in which Ms Gordon received the cheques, not as the named executor of the Will or a beneficiary under it, but as the trustee of the Trust, there does not seem to be a lawful basis to prevent Ms Gordon from presenting the cheques.
75. Any claim for family provision could only be made against the estate net of its liabilities. The cheques simply form part of those liabilities. Given my findings in relation to the allegations of undue influence above, there are no serious issues to be tried to found the grant of an injunction against Ms Gordon.
Conclusion and orders
76. For the above reasons, the caveat against the grant of probate should be set aside and I am not satisfied there is any basis for ordering preliminary discovery or granting injunctive relief.
77. I consider it appropriate to make the usual order as to costs, being that costs follow the event. However, I will stay the order for 7 days, to allow any party wishing to apply for a variation of the order with respect to costs to make such application.
78. The orders of the Court will be:
1. The caveat dated 16 October 2018 number CAV 13 of 2018 against the grant of probate to Ms Donna Maree Gordon is set aside.
2. Proceedings SC 519 of 2018 are dismissed.
3. James Young Ross is to pay the costs of proceedings SC 519 of 2018 and of the application in proceeding PRO 865 of 2018 dated 4 December 2018.
4.
Order 3 is stayed for 7 days.
I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam
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