Smith v Hayler: Estate of Alan Oakley Smith

[1999] NSWSC 1282

CITATION:	Smith v Hayler: Estate of Alan Oakley Smith [1999] NSWSC 1282
CURRENT JURISDICTION:	Probate
FILE NUMBER(S):	112133/99
HEARING DATE(S):	17/12/1999
JUDGMENT DATE:	17 December 1999
PARTIES :	Ian Macquarie Smith and Malcolm Alan Smith (Plaintiff) Mark Hayler (Defendant)
JUDGMENT OF:	Santow J

COUNSEL :	J B Whittle, SC (Plaintiff) B Hayward (Sol.) (Defendant)
SOLICITORS:	Bruce & Stewart (Plaintiff) B Hayward & Co (Defendant)
CATCHWORDS:	WILLS — Blind elderly testator but with testamentary capacity — No attestation or other sufficient basis for assuming changed Will read to him — Complex change as would have required to be read to testator for it to be sufficiently established that he knew and approved the Will — Shifting onus where suspicion cast on Will — Not within problematic notion of compromise as evidence sufficient to lead to setting aside later Will and admitting earlier one.
CASES CITED:	Pates v Craig (Santow J, 28 August 1995, unreported)
DECISION:	Previous but not last Will admitted to probate.

REVISED — 23 December, 1999
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN PROBATE

SANTOW J

No. 112133/99
IAN MACQUARIE SMITH and MALCOLM ALAN SMITH
Plaintiff
MARK HAYLER
Defendant
JUDGMENT — ex tempore

17 December 1999 1    I give brief reasons for the orders I have just made in relation to granting of Probate of the late Alan Oakley Smith’s 1995 Will. These reasons deal with why I have not made orders granting probate to the 1998 Will, each of such wills as being identified in the Plaintiffs’ Summons and the short Minutes of Order. 2    The principal difference between the two Wills is that the second 1998 Will in clause 9 provides a different disposition of one-third of residue. Instead of that disposition going absolutely to the deceased’s son Malcolm, he being one of two sons who have earlier received one-third each in the 1995 Will, that disposition is to the two grandchildren of the deceased (Malcolm’s two sons). This is under a clause of some complexity. That complexity bears upon the basis for rejecting the 1998 Will as one where I am not satisfied that the deceased "knew and approved" it, as required for validity, where the deceased at the time of 1998 Will was blind. 3    The arrangement in the 1998 Will, drawn by a solicitor of great competence Miss Jean Hill, is expressed in these terms:

“(c) To set aside one third of my residuary estate in a Testamentary Trust for my grandsons LACHLAN SMITH and GRAHAM SMITH AND I APPOINT as Trustees of this Testamentary Trust the persons who are the partners of the firm Hill Thomson and Sullivan, Solicitors of 13/9 Hunter Street, Sydney at the date of my death AND I DECLARE that such Trustees may be employed or act and shall be entitled to charge and be paid all professional or other charges for any act done by him or his firm in connection with the Trust AND I DIRECT that the assets of this Trust or the balance then remaining shall be distributed to my said grandsons in equal shares on the younger grandson attaining the age of forty years AND I FURTHER DIRECT that until such final distribution the Trustees shall in their absolute discretion have the power to apply for the benefit of either beneficiary so much of the income from the contingent share of each beneficiary and up to one-half of the capital of such contingent share towards the needs in life of each such beneficiary.”

4    The complexity to which I have earlier referred, though capable of resolution as a matter of interpretation (as distinct from knowledge and approval) according to principles applicable to wills and their interpretation include:

(i) were the grandchildren to have the right under principles of Saunders v Vautier , to terminate the trust earlier, and

(ii) what would happen if one grandchild say, were to die before distribution — would it go to the other, or to the grandchild’s children, or on an intestacy.

There is no suggestion that those complexities were ever taken up with the testator and clarified.

5    I should note for completeness that the remaining two-thirds go as to one-third to the deceased’s de facto wife and as to the other one-third to the deceased’s other son, Ian, this being the case both with the 1995 and 1998 Wills. 6    Added to that is the crucial fact that the deceased though not lacking testamentary capacity or mental acumen, despite his advanced age (93 for the 1998 Will), was essentially blind resulting from a deterioration which took place over some three years. That blindness did not affect his 1995 Will as it had yet to become serious enough to do so. But it is evident from the signature on the two Wills that the deterioration substantially occurred between them. 7    On the evidence, the deceased had telephoned Miss Hill with his instructions. She had prepared the Will intending to give effect to those instructions but she was not an attesting witness to the 1998 Will. There is no evidence that the 1998 Will was read over to the deceased such as would establish that, being blind, he nonetheless knew and approved of its contents, as required by Pt 78 r16 SCR and by the law obtaining to the validity of wills. Nor does the attestation conform to that recommended by the late the Hon. Francis Hutley in “Australian Wills Precedents" (Butterworths, 1974) at 84 (and see earlier at 81-83) which confirms that the will was read to the testator. 8    The nearest there is to any evidence supportive of the validity of the 1998 Will is the affidavit of a friend Aileen Collins, paras 6 and 7 of which read as follows, but they fall well short of confirming he knew and approved the 1998 Will, with the complexities I have earlier described. Those unresolved complexities, never clarified as in a process of reading back the will or otherwise, make it intrinsically unlikely that the deceased, intelligent and with full acumen as he may well still have been despite his frailty, could have “known and approved” the essentials of the change to clause 9. The position might have been otherwise with a quite simple change; this was not.

“I recall the evening of 16th September 1998. John Forsyth and I visited the deceased and Trude at Lakemba for dinner. During the evening, the deceased asked if we could witness his will. He then produced a document which I observed was headed “This is the Last Will and Testament of me Alan Oakley Smith” and he proceeded to sign this document on each page. John Forsyth and myself then signed each page of the document.
I do not recall any specific discussion as to the contents of the will except that I recall the deceased saying words to the effect of ‘Not everyone will be pleased with this new will but it is what I want’.”

9    The principles pertaining to knowledge and approval of a will are conveniently set out in my judgement in Pates v Craig (Santow J, 28 August 1995, unreported) at 6:

“6. If a testamentary instrument is to constitute the last will and testament of its maker, the Court must be satisfied that maker knew of its contents and approved of their purport at the time of execution. The onus lies on the party propounding the document to show that it was the subject of the testator's knowledge and approval. However, unless suspicion attaches to the document propounded, the testator's due execution of it is sufficient evidence of his or her knowledge and approval: Re Hodges (supra); Guardhouse v. Blackburn (1866) LR 1 P & D 109.

7. Where facts are proved which raise a suspicion that the will does not express the intention of the deceased, knowledge and approval will not be presumed from the fact of due execution. Rather the propounder of the will has the burden of removing the suspicion by proving affirmatively that the deceased knew and approved of the contents of the document. Some only of the circumstances which may cause suspicion to attach to a document include, relevantly:

(a) The circumstance that the person who prepared, or procured the execution of, the document receives a benefit under it is one which should generally arouse suspicion and call for vigilant examination of the evidence as to the deceased's appreciation and approval of the contents of the will: Re Hodges at 705; Barry v. Butlin (1838) 12 ER 1089; Nock v. Austin (1918) 25 CLR 519 at 528; Public Trustee v. McKeon (1917) 17 SR(NSW) 157.
(b) Where the alleged testator was enfeebled, illiterate or blind when he executed the document, it must be shown by affidavit that the will was read over to the deceased before its execution, or that the deceased otherwise was aware of the contents of the testamentary document: Tyrrell v. Painton [1894] P151; Kenny v. Wilson (1911) 11 SR(NSW) 460 at 469; 28 WN(NSW) 124.

8. Where there is no question of fraud, the fact that a will has been read over to or by a capable testator affords a strong presumption that he or she knew and approved of its contents: Re Hodges at 705; Guardhouse v. Blackburn (1866) LR 1 P & D 109; Fulton v. Andrew (1875) LR 7 HL 448; Gregson v. Taylor [1917] P 256.

10    Applying those principles to the present case, the propounder of the testamentary instrument, in circumstances where, as here because of blindness, suspicion attaches to the document propounded, has the evidentiary onus of dispelling the suspicion. That, in the case of a blind testator, requires evidence that the Will was read over to the deceased before its execution or that the deceased was otherwise aware of the contents. The intrinsic complexity of the change (see para 4 above) coupled with the absence of any evidence that the Will was ever read over or otherwise discussed after it had been drafted, renders it unlikely that he was sufficiently aware of its contents for the Court to be satisfied that the Will was known and approved by the deceased. 11    In the present case, the solicitors for Mr Mark Hayler, who is one of the three executors and who is the effective contradictor, has properly chosen neither to consent nor oppose the orders sought by the Plaintiffs being the other two executors who are the two sons of the deceased. The two grandchildren of the deceased who stand to benefit by the 1998 Will in comparison to the 1995 Will have been independently advised and have declined to put any matters in opposition to such order as the Court may make. 12    Counsel for these Plaintiffs has properly and fairly set out the evidence bearing upon whether the orders sought should be made. Based simply upon that evidence and without resort to any problematic notion of compromise which would have analogised the Defendant’s not opposing position to one of consent and would have assumed testamentary validity could properly be the subject of compromise, I am satisfied that the 1998 Will should not be admitted to probate. It is not then in doubt that the 1995 Will should be admitted to probate. 13    It remains for me to express my appreciation to the legal advisers and to the members of the family who have dealt with the matter sensitively and with a conscientious concern for ensuring that the matter is dealt with properly in accordance with testamentary requirements. **********

Last Modified: 12/23/1999