Wilson v Severin - [2005] WASC 153

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WILSON & ORS -v- SEVERIN & ORS [2005] WASC 153

CORAM: MASTER SANDERSON

HEARD: 8 JUNE 2005

DELIVERED : 7 JULY 2005

FILE NO/S: CIV 1888 of 2004

BETWEEN: DAVID BRIAN WILSON
JULIE MICHELLE ALLEN
DANIEL MATTHEW WILSON
Plaintiffs
AND
EILEEN SEVERIN
First Defendant
FRANCIS KEITH AUGUST
JEANNETTE MONICA AUGUST
Second Defendants

Catchwords:

Probate - Application to strike out action on basis plaintiffs have no interest in action

Legislation:

Rules of the Supreme Court1971 (WA), O 16

Result:

Action struck out

Category: B

Representation:

Counsel:

Plaintiffs:     Ms F E Johnson
First Defendant             :     Mr A P Hershowitz
Second Defendants       :     No appearance

Solicitors:

Plaintiffs:     Butcher Paull & Calder
First Defendant             :     Angus Tibbits Solicitors
Second Defendants       :     No appearance

Case(s) referred to in judgment(s):

Baskcomb v Harrison [1849] 163 ER 1262
In re Devoy; Fitzgerald & Pender v Fitzgerald (1943) St R Qd 137
Mohan v Broughton [1900] P 56
Williams v Evans [1911] P 175

Case(s) also cited:

Allen v Kroll-Simmul [2005] NSWSC 453
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Hughes v Public Trustee, unreported; Court of Appeal NSW; 19 August 1980

MASTER SANDERSON: This is the first defendant's application to dismiss the plaintiffs' action. The first defendant says that the plaintiffs do not have standing to bring these proceedings. It may have been preferable for the first defendant to apply for judgment under O 16 of the Rules of the Supreme Court1971 (WA). But whatever procedural route is taken, the question remains the same - can the plaintiff maintain this action?
The facts are not in dispute. The deceased died on 7 March 2003. He left a Will dated 5 March 2003. That Will has been admitted to probate and the second defendants are the executors of the Will. The plaintiffs are the three natural children of the deceased. The first defendant is the de facto widow of the deceased.
By their action, the plaintiffs seek to have the probate of the Will of 5 March 2003 revoked and they seek a decree "pronouncing against the force and validity of the alleged Will". There are two grounds upon which they seek this order. First, they say that the Will was not duly executed. It is unnecessary to go into detail as to precisely what is involved in this claim. It is sufficient if I say that the plaintiffs alleged that the Will was not duly witnessed. The plaintiffs also say that, at the time of the making of the alleged Will, the deceased was not of sound mind, memory and understanding. They say that he was in pain and discomfort, that he was heavily sedated and that he was not able to talk coherently.
For the purposes of this application, it is not necessary for me to consider at all the merits of the plaintiffs' claim. In opposition to the application, the plaintiffs filed an affidavit of the second‑named plaintiff sworn 14 June 2005. Annexed to that affidavit is a statement of one June Lyon. Ms Lyon is one of the persons who appears as a witness to the Will. Without going to her evidence in detail, she casts doubt on whether or not she actually witnessed the Will and if she did, whether the deceased knew that he was making a new Will. Also annexed to that affidavit is a copy of hospital notes which I assume were prepared by the nursing staff treating the deceased. Again, without going into detail, it is apparent that the deceased was in some discomfort and was receiving heavy doses of medication on 3 March 2005 when he allegedly made the Will.
For the purposes of this application, it can be assumed that the plaintiffs will make out their case. That is to say, an assumption must be made that there is sufficient evidence to establish that, when he purported to make the Will of 3 March 2005, the deceased did not have testamentary capacity. Alternatively, it is to be assumed that the Will was not properly executed and witnessed. Of course, these are matters which are assumed only for the purposes of this application. If the matter were ever to get to trial, it would be for the Judge to determine the validity or otherwise of the deceased's Will. However, for the purposes of this application, all counsel, and in particular counsel for the first defendant, was prepared to assume that, for one reason or another, the deceased's Will of which probate has been granted is invalid, with the consequence that the Court would order that probate be revoked and pronounce against the force and validity of the Will.
If such an order were to be made, then an earlier Will of the deceased made 28 September 1974 would form the basis upon which his estate would be distributed. A copy of this Will appears as annexure B to the affidavit of the first defendant sworn 24 May 2005. There is no dispute as to the validity of this document as a testamentary instrument. In other words, it was not suggested by anyone, and in particular the plaintiffs, that if the 2003 Will was revoked, probate of the 1974 Will would not be granted. It is also conceded by the plaintiffs that there is not in existence any other document which might be a Will of the deceased. (During the course of the proceedings, it has been suggested from time to time by counsel for the plaintiffs who appeared at various status conferences that there might be what has been referred to as a "third Will". Further investigation has revealed that there is no such document. The plaintiffs now do not argue to the contrary.)
In his 1974 Will, the deceased leaves all of his estate, both real and personal "to my wife Leoni Diane Wilson". In the event that his wife predeceased him, then certain persons were appointed trustees and directions were given as to the disposition of his estate. It is common ground that Leoni Diane Wilson did not predecease the deceased. So, if the deceased's estate were distributed pursuant to the provisions of the 1974 Will, Leoni Diane Wilson would take everything. In other words, the consequences of the plaintiffs' action would be to deprive them as well as the first defendant of the benefit they enjoy under the present Will.
The first question which arises in a case such as this is whether it is now open to the plaintiffs to contest the Will at all. After all, they did not lodge a caveat against the grant of probate. Rather, they stood by while probate was granted to the second defendant. Having stood by and done nothing, can they now apply to revoke the grant of probate?
There is limited authority on this question. In Williams v Evans [1911] P 175, Horridge J concluded that a beneficiary under a Will who had himself applied for probate of a Will and whose application was successful was not precluded from seeking to have the probate revoked. His Honour concluded that no estoppel was raised and in circumstances where the estate had not been distributed, the doctrine of laches did not apply. However, it may be that that decision should be confined to its facts. In Mohan v Broughton [1900] P 56, Gorrel‑Barnes J suggested that a party who "neglects" to contest a Will may, in circumstances where the estate has been distributed, not be in a position to reopen the probate.
In this case, there is no explanation as to why steps were not taken by the plaintiffs to prevent probate of the Will being granted. In my view, that was a serious omission on their part. Nonetheless, the outcome of this application does not turn on whether or not the plaintiffs' conduct amounts to laches.
In my view, the plaintiffs do not have a sufficient interest in this litigation to enable them to challenge the Will. This, I think, is made plain by the decision of the Full Court of the Supreme Court of Queensland in the decision of In re Devoy; Fitzgerald & Pender v Fitzgerald (1943) St R Qd 137. In that case, the plaintiff sought to challenge the Will of the deceased. She was a beneficiary of the estate. If probate of the Will had been revoked, there was no question but that probate of an earlier Will would have been granted. The plaintiff took exactly the same interest under the earlier Will as she did pursuant to the Will which was challenged. She was held not to have a sufficient interest in the litigation to allow her to proceed.
The decision itself is much concerned with the form of the probate rules then applying in the State of Queensland. The state of the common law governing who could bring a probate action was not seriously in dispute. Philp J, with whom other members of the Court agreed, put the position as follows (at 143 ‑ 144):
"Now, it is conceded that according to the law relating to probate subsisting before 1895 in Queensland no person, whether he were next of kin to the deceased or not, could oppose a grant of probate of a will unless he had some interest to protect; that is to say, that no person could force an executor to bring an action to prove a will in solemn form and oppose the grant of probate unless he could show that such a grant would affect some interest of his own. It is conceded that a person who merely had an interest or pretended interest in the estate could not, merely upon showing such an interest or pretended interest, oppose a will: he must have been able to show that the grant of probate would affect some interest of his. It is also conceded that the law provided that no person could intervene in a probate action merely because he was interested in the estate: he must have shown that he was interested in the cause. These principles are based on deep‑rooted policy, because it is contrary to the interest of the State that persons having nothing to gain thereby should be permitted to institute or intervene in litigation, and courts are not established to enable parties to litigate matters in which they have no interest affecting their liberty, rights or property."
Curiously, in the headnote, reference is made to an old English decision of Baskcomb v Harrison [1849] 163 ER 1262, as supporting the proposition outlined by Philp J. However, the decision is not actually mentioned in any of the judgments. In a brief judgment, Sir Herbert Jenner Fust, put the position this way (at 121):
"I cannot accede to the proposition that a next of kin has a right to oppose any paper he may think fit; some interest, however remote, is necessary."
At one level at least, the plaintiffs in this matter have an interest in the Will. They take under the present Will, but would not take under the earlier Will. But that, in my view, is not enough. It is not open to them to maintain this action. They do not have a sufficient interest in the litigation to allow them to do so. Accordingly, the action should be struck out and judgment ought be entered for the defendants.
I will hear the parties as to the precise form of orders and as to costs.