Tobin and Anor v Ezekiel and Anor

[2013] HCATrans 61

[2013] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S295 of 2012

B e t w e e n -

EVELYN TOBIN

First Applicant

CLARA EZEKIEL

Second Applicant

and

MORRIS EZEKIEL

First Respondent

ALBERT EZEKIEL

Second Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 2013, AT 10.43 AM

Copyright in the High Court of Australia

MR J.P. GORMLY, SC:   If the Court pleases, I appear for the applicant with my learned friend, MS K.A. EDWARDS.  (instructed by T.D. Kelly & Co)

MR T.S. HALE, SC:   If the Court please, I appear for the respondents with my learned friend, MR J.S. TOBIN.  (instructed by Diamond Conway Lawyers)

HAYNE J:   Yes, Mr Gormly.

MR GORMLY:   Your Honours, the suspicious circumstances rule in probate is the best tool that a court has independent of the parties to ensure that a will it is going to be asked to pronounce on is regular.  In this case, we would submit, and there is a case for saying that it happens generally, the suspicious circumstances rule is being treated as an inter partes issue, and in this case we say that the Court of Appeal decided the issue not in accordance with the rule which required that the court be satisfied that there was no suspicion, that is, a discharge of the suspicion, but rather on the balance of probabilities deciding, in effect, on a featherweight the issue of whether they thought that there was knowledge and approval.

They left untouched the question of whether the will was suspicious in the preparation period, that there was suspicion in the preparation period, but the question of knowledge and approval was decided in the execution period.  It is our submission that if the suspicious circumstances rule is a rule that belongs to the court and not to the parties then the court cannot ultimately decide the question of suspicion merely by deciding whether or not there is knowledge and approval.

HAYNE J:   Sorry, I do not think I quite follow that proposition.  What is its content?

MR GORMLY:   The content, your Honour, is that while a party who suspects something amiss with a will may draw it to the attention of a court, the court can do it of its own accord, and has done in the past.  The suspicion that arises needs to be discharged so that the court can be satisfied that a will that it is being asked to propound is one about which the community or the court’s record would be clear.  It is not merely a question of deciding on balance, it is a question of whether the will, even before the parties start with such defences as they might want to raise, is a satisfactorily will.

Now, in this case the trial judge found that there was extensive act of dishonesty in the preparation period, and it is in the preparation period that there is the formation of both intent and approval.  If there is doubt in that period mere execution of the will ‑ in this case, some three weeks later ‑ even where there is shown to be knowledge, cannot satisfy the doubt that occurred in the formation period because the two would have to be related.  A testator merely saying at the time of execution, that is what I want, cannot sufficiently explain why the testator wanted to do that.

Now, a will, your Honours, is quite different from a contract, the court is always concerned with a will, not merely that it has been executed, but that it has been executed with the willing intent of the testator or testatrix, it is a completely different situation.  If there is any suspicion or any doubt that the will that has been executed does not reflect the true intention of the person who signs the will, then the will would be rejected.  That is the rule, the will would be rejected unless that suspicion is discharged and unless the court can be satisfied that there is both knowledge and approval.

BELL J:   Is this a proposition that involves some gloss, as it were, on the statement of the principle in Nock v Austin, (1918) 25 CLR 519 at 528?

MR GORMLY:   Yes.  Your Honour, that decision is still the leading case in Australia.  I do not seek to vary it, or to suggest that it is wrong, but ‑ ‑ ‑

BELL J:   Well, can I just get you to identify where in the analysis of the Court of Appeal there was some flaw in the application of the statement of the principle in Nock v Austin to the facts of this case?

MR GORMLY:   Yes, your Honour.  In appeal book 93, paragraph 64 – I am sorry, may I start the previous page, in 92 ‑ at paragraph 59 the Court of Appeal acknowledges the lies and deception that was used in the preparation period, and they continue that acknowledgement in paragraph 62 on page 93.  In paragraph 64, and we say that this is the critical paragraph, the court proceeds to weigh up the question of what occurred at the time of execution on the balance as though the suspicion about the preparation period had never occurred.  From 64 through to 67 the Court of Appeal analyses what occurred at execution and does not return to the question of the dishonesty in the preparation period and simply addresses the question of the balance based on the facts of execution.

HAYNE J:   Well, can I take it in stages?  Paragraph 64 accurately records the principle as stated in Nock v Austin at page 528, I think:

the Court be affirmatively satisfied that Lily knew the contents of the Will and appreciated the effect of what she was doing.

Is that right?

MR GORMLY:   Yes.

HAYNE J:   Well, then we go, no doubt, as to capacity, that point is elaborated in 65, medical evidence.  Paragraph 66 through to 67, culminating in 67, before signing the will the testatrix had a draft for about three weeks, it was read out aloud, apparently read by her, its effect is explained, opportunity to ask and she then says it is okay.  What more can the court do?

MR GORMLY:   Because, your Honour, there are two problems with that.  Firstly, the rule requires not merely what is in section 64 ‑ paragraph 64 ‑ but also that there be a discharge of the suspicion; that is, the propounders of the will must arrive at the court on its request or requisition and explain the suspicion that has arisen, and it is not enough, we would submit, to treat the issue of knowledge and approval as an inter partes issue, the court still needs that explained because the court does not know why this testatrix signed this will or why she said, yes, this is what I want.

BELL J:   There are many things the court may not know, but what the court is required by the test to consider is affirmative proof by clear and satisfactory proofs that the testator knew and approved the contents of the document, and that, so it would seem, having regard to the matters to which the Court of Appeal referred at paragraph 65 to 67, is what it did.

MR GORMLY:   Your Honour, when the court receives a will, before there is any litigation and there is, in effect, an administrative application for probate in common form, the court will ordinarily assume that the will is regular.  The court itself has an interest in ensuring that the will is not going to be in some way considered defective or considered suspicious.  It may well be that on the balance of probabilities one can determine knowledge and approval, but that is not the issue that we say arises here, the Court of Appeal has done that exercise, but the test is not about balance of probability, onus of proof or determining whether or not there was knowledge and approval, it is also about discharging the suspicion.  If they do not do that, they hand the will over to a propounder who has been found to be dishonest and lied on evidence and give them the office of executorship and require of them in due course the accounts of an executor to be sworn.

Now, we say that that part of the rule, the discharge of suspicion, is an integral and essential part of the operation of the suspicious circumstances rule.  May I say, your Honours, that this rule, the reason that we are here, causes great difficulty.  In 1995 in Canada, Justice Sopinka described the rule in Sandra Vout v Earl Hay, [1995] 2 SCR 876, on appeal from the Court of Appeal for Ontario, as perplexing. The Court of Appeal in this matter referred to that comment and agreed with it. In the Canadian decision the first instance judge, applying what appears to be a relatively straightforward rule, found for the will, was overturned by the Court of Appeal and that in turn was overturned in the Supreme Court of Canada.

Much the same thing has occurred in this case; that is, an experienced trial judge, who is also the probate judge, finds, after finding that there is this dishonesty in the preparation period, no ground for suspicion.  The Court of Appeal finds that there was suspicion, but then approaches the ultimate issues as though the suspicious behaviour did not matter.  Now, Justice Isaacs in 1918, in a single page of the decision in Nock v Austin, sets out the principles; he, at page 528, referred specifically to the:

burden of removing the suspicion by proving affirmatively by clear and satisfactory proof –

May I say that Justice Isaacs is the only judge in a long history of the statements of this rule who uses the word “by” in that place.  Generally speaking, in the English authorities that underpin this decision, it is seen as two tasks; that is, that the suspicion must be discharged for the court’s comfort and conscience, nothing to do with party issues or onus, as the court has its own concern when it declares a will, but in addition it then calls on the propounder in the absence of any assumption that would otherwise benefit the propounder to prove independently and, we would submit, separately ‑ unlike what the Court of Appeal did here ‑ both knowledge and approval.

It unquestionably established knowledge in this case; the will was read to the testatrix.  We say that approval was not touched by the Court of Appeal’s analysis and was assumed in much the same way as one would approach the question, as though the assumption still existed.  The telltale sign for that is that the Court of Appeal started by referring to capacity.  What the Court of Appeal in effect did was to re‑erect the assumption that exists before suspicion occurs.  It has, we would submit, ignored the suspicion and then proceeded to analyse those issues without reference to the dishonesty.

HAYNE J:   Was testamentary capacity in issue?

MR GORMLY:   It had been, but it was rejected and we did not appeal on that question.

HAYNE J:   So, when the Court of Appeal came to consider it capacity was no longer on the table?

MR GORMLY:   No, it was not.  Not only was it no longer on the table, but it could not be relevant to the question of assessing approval if it was not on the table.  Approval is a completely different task.  It is a very difficult rule and it has traditionally been a rule available for the court, but the problems of trying to address concerns in a will are, we would submit, converting what was the court’s protection into a cause of action ‑ probably of advantage to the parties ‑ but it diverts the court, we would submit, from treating this rule as one for its benefit rather than for a party benefit.  Parties, of course, derive a benefit from it in any event.

Now, your Honours, when Justice Isaacs, in his second principle at 528, talked about or referred to and described the second principle as:

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 –

we submit that he did not mean by that that the issue converts into a party issue where one fights over whether or not there is sufficient evidence of knowledge and approval.

We submit that he was not endeavouring to differ from the prior English authorities where four things occur if there is suspicion.  Firstly, that there must be a discharge of the suspicion; secondly, knowledge must be established independent of any assumption; thirdly, approval must be established, that is, the will must be comprehensively proven; and, finally, that the will is one which can sit on the court’s record as a will over which parties may then endeavour to bring their own inter partes defences to attack it.

HAYNE J:   Do you say that Canadian principle has developed differently?

MR GORMLY:   Yes, it has, your Honour.  In Canada the question that caused so much problem in this case has been endorsed; that is, that it is appropriate, according to Justice Sopinka, to ask the question, suspicion of what?

HAYNE J:   I had more in mind what his Lordship said at page 889 of Vout v Hay, where his Lordship analysed the matter simply as a burden of proof.

MR GORMLY:   Yes, well, in a sense what happened in that case was similar to what occurred in the Court of Appeal in this case.  So, we would submit that when both describe the application of the principle as perplexing that what they are doing is acknowledging in some way that the way they are addressing this rule is causing difficulties as, of course, it must.  Suspicion can never be a subject about which the question is asked,

suspicion of what, because it does not take the parties anywhere or the court anywhere than jumping to a conclusion, or the expression of what they speculate might have occurred.

It can never be a correct question to ask.  It was certainly addressed by me in this case and it continued to cause difficulty because that led to the question of whether suspicion relates to the defences.  The interplay of the defences and the suspicious circumstances rule, we would submit, requires attention by this Court because it has not looked at this subject since 1918, it did so then in one page, and there are issues that arise on a regular basis in this field which Justice Isaacs’ decision do not assist with and, in particular, the question of how exactly the suspicious circumstances rule is to play out as between the parties and the court.  Those are my submissions.

HAYNE J:   Thank you, Mr Gormly.  We need not trouble you, Mr Hale.

The principles to be applied in determining the claim for revocation of probate were identified by this Court in Nock v Austin (1918) 25 CLR 519. The applicants would not enjoy sufficient prospects of disturbing the Court of Appeal’s orders to warrant a grant of special leave to appeal. Special leave is refused with costs.

AT 11.04 AM THE MATTER WAS CONCLUDED