Wheatley v Edgar

The applicants for the proof in solemn form of a will of the deceased, have applied by summons in chambers for a discontinuance of the action and for a grant of probate pursuant to RSC O 73 r 18 as a result of a compromise reached between the parties to the contentious proceedings. The important question of procedure which, therefore, arises is whether a grant of probate can or should be made in these circumstances and if so whether it should be a grant in common form or in solemn form of law. There are associated minor issues of whether or not the court should approve the proposed compromise on behalf of the second named second defendant who is yet to attain the age of majority, and whether the court should dispense with the requirement for obtaining independent counsel's opinion on whether the proposed compromise is in the interests of the infant second defendant.

The court considered the principles which apply to such proceedings and decided that for there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the will, or by any other party to that suit, whether joined or cited, of the formal validity of the will, on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time. In this regard the propounder may take advantage of the rule that a will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding. If there is evidence to the contrary it is for the propounder to establish affirmatively that the testator was of sound mind: Western Australian Trustee Executor Agency Co Ltd v Holmes [1961] WAR 144. Nevertheless, there must be proof at least to this extent on the civil standard to justify a grant in solemn form.

Consistently with these principles the court considered that a grant of probate in common form could be made upon the discontinuance, by leave of the court, of proceedings for proof in solemn form where, upon examination, the opposition to the grant discloses only an interest insufficient to entitle the objector to oppose a grant; or where no appearance has been entered and the party commencing proceedings does not desire to proceed to obtain a grant in solemn form – see Mortimer on Probate Law and Practice (1911) at 543-544. By contrast, even where there is the consent or compromise of the parties, but there remain doubts, for example, about the adequacy of the testator's capacity, I am inclined to the view that a grant in common form should not be made and, instead, the action should be listed for a short hearing on the application for proof in solemn form pursuant to O 73 r 19 when, presumably, the party propounding the will will be able to adduce evidence at least of due execution by a person of an age competent to make a valid will.

Accordingly, the court considered that, notwithstanding the agreement of the first defendant to abandon opposition to the proof of the testament of 31 October 2000 as the last valid will of her deceased mother, and her readiness to discontinue her counterclaim seeking proof of the will of 5 August 1991, no grant of probate should be made by the court at this stage merely on the consent of the parties. The proper course to follow, was that the Court should, on the application of the first defendant make an order for the discontinuance of the first defendant's counterclaim and then grant leave to set down the plaintiffs' action for trial for proof of the 31 October 2000 will in solemn form. If the parties seek them directions may be granted allowing proof of due execution of that will by one or other of the attesting witnesses and the identity and the death of the deceased leaving property within the jurisdiction, by affidavit although it might turn out to be simpler and more economical for oral evidence of these matters to be given in the ordinary way. Then, the plaintiff can assume the onus of proving the will on evidence in open court where, should they choose to do so, any of the defendants may cross-examine a witness and where evidence is to be led at the discretion of the propounding executors as explained in Re Levy [No 2] (supra).

On the second named second defendant's chamber summons seeking an order dispensing for the need for independent counsel's opinion in support of an application for approval in the proposed compromise under RSC O 70 r10, the court considered that the proposed compromise, namely the abandonment by the first defendant of her challenge to the validity of that will and of her counterclaim to propound the will of 5 August 1991, under which she was the sole residuary beneficiary, did not detract from the interests of either of the second defendants under the will which was now to proceed to proof. Therefore, the court was disposed to dispense with the necessity for obtaining counsel's opinion and to approve the proposed compromise, subject to eventual proof of the will being propounded, to the extent that it affected the interests of Samuel Edgar.

Accordingly, the orders to be made on the two chamber summonses before the Court were as follows:

(a) on the plaintiff's summons for an order for discontinuance of the action and other relief:

(i) an order for the discontinuance of the first defendant's counterclaim by which she seeks to propound for proof an alleged will of the deceased made 5 August 1999;

(ii) the application for the appointment of an additional protective trustee under cl 3 of the will of the deceased of 31 October 2000 be dismissed, but without prejudice to any party to bring or renew such an application in other proceedings in the event of a grant of probate of the will of 21 October 2000 later being made;

(iii) leave be granted for the plaintiffs' action for proof in solemn form of the alleged will of the deceased of 31 October 2000 to be set down for trial, without further directions and as a short cause either on evidence by affidavit or by witnesses in open court as the plaintiffs may elect;and

(b) on the second named second defendant's chamber summons seeking an order dispensing for the need for independent counsel's opinion in support of an application for approval in the proposed compromise under RSC O 70 r10:

(i) subject to the alleged will of the deceased Hazel Louisa Lawrance made 31 October 2000 being admitted to probate as propounded in this action, the Court approves the compromise by which the counterclaim is discontinued and the first defendant abandons her defence to the claim for proof of the deceased's will of 31 October 2000; and

(ii) any need for the opinion of an independent counsel supporting the proposed compromise of the discontinuance of the first defendant's counterclaim and the abandonment of her defence in the action, as far as it affects the second named second defendant, be dispensed with.