Trustee for the Salvation Army (NSW) Property Trust T-as the Salvation Army & Anor v Becker & Anor

[2007] HCATrans 699

[2007] HCATrans 699

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S351 of 2007

B e t w e e n -

TRUSTEE FOR THE SALVATION ARMY (NSW) PROPERTY TRUST TRADING AS THE SALVATION ARMY

First Applicant

THE AUSTRALIAN COUNCIL OF THE ROYAL FLYING DOCTORS SERVICE OF AUSTRALIA

Second Applicant

and

REGINALD ALFRED BECKER

First Respondent

PUBLIC TRUSTEE OF NEW SOUTH WALES

Second Respondent

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 NOVEMBER 2007, AT 10.21 AM

Copyright in the High Court of Australia

MR D.E. GRIEVE, QC:   May it please your Honour, I appear with MR C.J. BEVAN for the applicants.  (instructed by Mallesons Stephen Jaques)

MR L.J. ELLISON, SC:   If the Court pleases, I appear with my learned friend, MR W.J. WILCHER, for the first respondent.  (instructed by TressCox Lawyers)

HAYNE J:   There is, I believe, a submitting appearance on behalf of the second respondent, is there not, Mr Grieve? 

MR GRIEVE:   That is so, your Honour.

HAYNE J:   Yes, Mr Grieve.

MR GRIEVE:   As your Honours have read, about a month before the testatrix died her longest‑standing friend, Mrs Patricia Mawson, visited her and found her in a state of great distress.  Mrs Mawson said to her, “What’s wrong?  Why are you crying?”  Miss Wilson replied, “Sandra forced me to sign a will leaving her my home.  I did not want to do it.  I wanted to leave the will as it was”.  Mrs Mawson said, “What do you mean?  What did she do?”  Miss Wilson responded, “Sandra cried and told me that she and her children would be on the street if I did not leave the house to her.  What can I do?”

Mrs Mawson’s evidence was accepted by the primary judge as entirely truthful.  The essential question which arises in this application comes to this.  If, in order to prove a case of undue influence in probate, more compelling evidence than Mrs Mawson’s account is required, has that principle any remaining vitality?  The primary judge considered that the statements made by Miss Wilson to Mrs Mawson were of no significance whatever, preferring the tested evidence of the principal beneficiary, Sandra Abel, to that of the deceased.  He went so far as to conclude that the testatrix had fabricated the story which she had told to Mrs Mawson.  There was no rational basis for that finding.  It is altogether inconsistent with his finding that there existed a warm and affectionate relationship between the testatrix and Ms Abel. 

On the other hand, the evidence given by Ms Abel was flawed in a number of significant respects and was in conflict with a number of disinterested witnesses on matters of importance.  The primary judge had ample reason to disbelieve her denial of undue influence and, in our submission, should have done so.

In the Court of Appeal we argued that there was simply no proper basis upon which the primary judge disregarded the statements made by Miss Wilson to Mrs Mawson.  The Court of Appeal rejected our attack on the primary judge’s findings and concluded that the failure of that attack was virtually dispositive of the appeal.  It is significant that the Court of Appeal did not embrace the primary judge’s hypothesis that the testatrix had lied to Mrs Mawson.  It developed another hypothesis.  Mr Justice Ipp, with whom Justices Mason and McColl agreed, expressed the point thus, in paragraph 83 of application book 103:

The question that Miss Wilson posed to Mrs Mawson, namely, “[w]hat can I do?” was put in the present tense.  It is not apparent from the evidence whether Miss Wilson was putting a genuine question to Mrs Mawson or whether she was asking a rhetorical question to which she was not seeking an answer.  It may be that the words were meant to indicate an acceptance by Miss Wilson of what had occurred.  This would amount to a deliberate and independent decision by Miss Wilson.  The fact that Mrs Mawson did not testify that she (Mrs Mawson) responded to the question suggests that she did not think that it called for an answer and supports the inference that the question was rhetorical.

In our submission, that hypothesis also suffers from a very obvious flaw.  It ignores the undoubted fact that Miss Wilson was in a state of great distress at the time of her conversation with Mrs Mawson.  That fact was objectively established by the primary judge’s acceptance of Mrs Mawson’s account of the conversation and of the circumstances surrounding it was truthful. 

The idea advanced by the Court of Appeal that Miss Wilson expressed the question “What can I do?” no more than rhetorically ignores altogether the emotions which she obviously felt at the time of the conversation.  Moreover, there is simply no logical connection between the proposition the words “what can I do” were meant to indicate an acceptance by Miss Wilson of what had occurred and the proposition that this would amount to a deliberate and independent decision by Miss Wilson.

CRENNAN J:   May I inquire, Mr Grieve, what special leave question arises out of these matters, which we have read?

MR GRIEVE:   The question we submit is the question as posed in the written argument, and there are two, as to what one makes of evidence of this character in this context.  We say that both the primary judge’s approach and the Court of Appeal’s approach was flawed in the manner that we have indicated.  We submit that the conversation with Mrs Mawson was not a stand‑alone piece of evidence, it was within the context of a substantial body of evidence which raised legitimate doubts as to Miss Abel’s bona fides.

At the risk of stating the obvious, to constitute undue influence the conduct in question must first amount to coercion, including coercion of the mind, create imaginary terror such as to deprive the testatrix of her free agency.  That comes across from the longstanding authority of Boyse v Rossborough 6 HLC 1 at 50. Secondly, the conduct in question must amount to pressure of whatever character which overpowers the volition of the testatrix other than the mere persuasion. That comes from Hall v Hall LR 1 P & D 481 at 482.  Thirdly, the conduct must result in the testatrix doing that which she did not desire to do in the making of her last will.  That comes from Wingrove v Wingrove 9 PD 81 at 82, 83. So too in order for conduct to constitute fraud in probate the conduct must create false impressions in the mind of the testatrix which affect the exercise of her testamentary freedom as a free agent; Boyse 51.

As to undue influence, the statements made by the testatrix to Mrs Mawson plainly satisfy the requirements for undue influence enunciated in those longstanding authorities.  As to fraud, the testatrix was influenced by the representations made to her by Miss Abel both at the time of the making of the last will and over the preceding 12 months to the effect that she and her children who had had rent‑free occupation of the house for that same period would be left homeless upon Miss Wilson’s death unless the house were devised to Miss Abel.

Those representations, if made, were untrue.  The primary judge found there was no basis for making them because the principal beneficiary was not as a matter of fact impecunious.  That finding could not rationally affect the probability of the representations having been made.  It could only affect their truth, if made, because that finding established their falsity.  The Court of Appeal, by implication, rejected the applicant’s submissions in these terms.  As to whether or not these representations were in fact made to the testatrix, the only possible source of the information contained in the representations as to Miss Abel’s personal financial circumstances was Miss Abel herself who visited the testatrix at her nursing home at least weekly and took her on outings in her wheelchair.  No party’s case rested on the proposition that the testatrix had any reason to fabricate her representations to Mrs Mawson, but the trial judge found that she did so.

The first respondent’s case was that Miss Wilson had a close and affectionate relationship with Miss Abel.  For her to have fabricated such serious allegations against the latter would, in that light, have been quite perverse.  Of course, the converse of that case is available for consideration, namely, that throughout the time of their relationship Miss Wilson had little or no affection for Miss Abel and that, in reality, she meant every word she uttered to Mrs Mawson and was accurately repeating what Miss Abel had been telling her in the past 12 months and at the time when the will was

made.  Neither the primary judge nor the Court of Appeal so much as entertained the very real possibility, notwithstanding that there was a balance brought from a number of independent and disinterested witnesses.

In our submission, if the testatrix’s statements as to the exertion on undue influence upon her is properly considered to be worthless, or practically worthless, when balanced against the denials of any such influence by the primary beneficiary under the will in question, being the party said to have exerted the influence, then the law of undue influence in the context of probate must be regarded as moribund.  May it please your Honours.

HAYNE J:   Thank you, Mr Grieve.  We will not trouble you, Mr Ellison.

The conclusions reached in the courts below turn entirely upon the particular findings of fact made on the evidence adduced.  No contested point of principle would fall for consideration if special leave to appeal were to be granted.  It is not in the interests of justice generally or in the particular circumstances of this case that there should be a grant of special leave to appeal.  Special leave is accordingly refused.

MR ELLISON:   Your Honours, there was foreshadowed in our written submissions and I now make an application for a special costs order based – twofold.  There were indemnity costs orders made at trial and on appeal and following correspondence, which I would like to hand up, we seek another special costs order.  The Court Rules do not provide for offers of compromise.

HAYNE J:   What do you say we should do, Mr Grieve?   Should we look at these letters?

MR GRIEVE:   No, your Honour.  We submit that the ordinary order should be made.

HAYNE J:   But first should we look at these letters?

MR GRIEVE:   If you so desire, yes.

MR ELLISON:   They are very courteous letters.

HAYNE J:   Yes.  What do you say, Mr Grieve?

MR GRIEVE:   Nothing, your Honours.

HAYNE J:   What form of order is it precisely that you are seeking, Mr Ellison?

MR ELLISON:   That the applicants pay the costs of the first respondent and with regard to those costs on and after 21 August 2007 on the indemnity basis.

HAYNE J:   Sorry, what date is that?

MR ELLISON:   The letter is dated 21 August.  Whether it should be the date of the expiry of the letter is a matter – but usually it is taken from the date of the offer.

HAYNE J:   Yes, though they had, did they not, until 6 September to consider their position? 

The order is special leave is refused.  The applicant will pay the costs of the first respondent and those costs on and after 6 September 2007 are to be assessed as on an indemnity basis. 

The letter you handed up, Mr Ellison, should perhaps remain with the file.

AT 10.33 AM THE MATTER WAS CONCLUDED