lost wills, informal wills, and failed bequests … · 8/16/2016 · 1 lost wills, informal wills,...
TRANSCRIPT
1
LOST WILLS, INFORMAL WILLS, and FAILED BEQUESTS
CPD Paper for Eastern Solicitors Law Association,
Tuesday, 16 August 2016
Andrew Cassidy
Victorian Bar
CLE address at Eastern Law Association 16 August 2016
This paper covers three topics, somewhat interconnected: lost wills, informal wills (including costs in
informal wills applications), and a note on failed bequests.
I will recap general principles, many of which will be familiar to you, and review the implications of
some recent decisions in each area.
BACKGROUND
1. Provisions of the Act
WILLS ACT 1997 - SECT 7
How should a will be executed?
(1) A will is not valid unless—
(a) it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and
(b) the signature is made with the testator's intention of executing a will, whether or not the signature appears at the foot of the will; and
2
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other.
(2) A statement in a will that the will has been executed in accordance with this section is not necessary for the will to be valid.
(3) Where a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section.
(4) Where a power is conferred on a person to make an appointment by a will that is to be executed in some particular manner or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in that manner or with that solemnity.
The ameliorating provision:
Section 9, which is in the following terms, empowers the Court to dispense with the formal
requirements;
WILLS ACT 1997 - SECT 9 (introduced in May 1998)
When may the Court dispense with requirements for execution or revocation?
(1) The Supreme Court may admit to probate as the will of a deceased person—
(a) a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b) a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act—
if the Court is satisfied that that person intended the document to be his or her will.
(2) The Supreme Court may refuse to admit a will to probate which the testator has purported to revoke by some writing, where the writing has not been executed in the manner in which a will is required to be executed by this Act, if the Court is satisfied that the testator intended to revoke the will by that writing.
(3) In making a decision under subsection (1) or (2) the Court may have regard to—
(a) any evidence relating to the manner in which the document was executed; and
(b) any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
(4) This section applies to a document whether it came into existence within or outside the State.
3
(5) The Registrar may exercise the powers of the Court under this section—
(a) where the Court has authorised the Registrar to exercise the Court's powers under this section; and
(b) where—
(i) all persons who would be affected by a decision under this section so consent; or
(ii) if consent is not given, the value of the estate does not exceed the limit set for the purposes of this section by the Court.
(6) In this section "document" has the same meaning as in the Interpretation of Legislation Act 1984 .
PART I: LOST WILLS
2. Enactment of informal wills provisions in Victoria and other States caused the traditional
formulation of the test for admission of a lost will (see for example in Curley v Duff 1985
NSWLR 716, per Young J) to be modified. The formulation used by Campbell J in Cahill v Rhodes [2002] NSWSC 561 (10 July 2002) of the matters to be established has been adopted in Victoria courts. It is as follows:
First, it must be established that there actually was a will, or a document purporting
to embody the testamentary intentions of a deceased person;
Second, it must be shown that that document revoked all previous wills;
Third, the presumption that when a will is not produced it has been destroyed must
be overcome;
Fourth, there must be evidence of its terms; and
Fifth, there must be either evidence of due execution or that the deceased person
intended the document to constitute his or her will."
Cahill v Rhodes [2002] NSWSC 561 at [55]
4
3. The Honourable Justice Tom Gray of the Supreme Court of South Australia, in a paper
delivered in July 2012 to the Society of Trust and Estate Practitioners, enumerated the
following matters;
1. That the original will existed.
2. That the original will was duly executed, or, if the original will does not meet the
formalities required by legislation, that it satisfies the legislative requirements
allowing it, as an informal will, to be admitted to probate.
3. That there is evidence of the terms of the original will.
4. That the copy will is an accurate and complete copy of the original will.
5. That thorough searches have been conducted to find the original will, including
publishing advertisements regarding the missing original will.
6. That the original will revoked all pre-existing wills.
7. The circumstances surrounding the absence of the original will.
8. That all persons prejudiced by the application, if it is granted, have consented
to the application and are sui juris.
9. That the presumption of revocation does not arise or has been rebutted.
However, His Honour noted that a propounding party need not exhaustively prove all of
these considerations. Which of them must be established will depend on the
circumstances of the case.
The third element in Cahill v Rhodes - rebutting the presumption
4. Rebutting the presumption of destruction animo revocandi may be difficult. It requires
careful consideration when advising a client contemplating an application in respect of a lost
will, and can be a focus of argument for those resisting such applications.
5. The matters litigated in Cahill v Rhodes provide a good illustration. Cahill v Rhodes
concerned a deceased who, at a time when he intended to marry a Mrs Rhodes, made a
formal will naming her sole beneficiary. In the event, the deceased and Mrs Rhodes lived
together for a time, but then separated. The deceased was a soldier. After the date of the
will in favour of Mrs Rhodes, he told several people (including his army superior and an army
friend) that he had made a new will in which he named his sister as executrix and his mother
as sole beneficiary. The new will could not be found on his death.
5
6. Campbell J was satisfied on the evidence of the first two requirements – that the will naming
his sister executrix and mother sole beneficiary, referred to in statements of the deceased to
his army acquaintances had existed, and that it revoked prior wills (based on the strength of
the evidence that a new will had been made, the terms of which were inconsistent with the
terms of the previous will).
7. However, the propounder of the lost final will in Cahill v Rhodes failed to rebut the
presumption of destruction animo revocandi. The court found that the presumption
applied, and not only that it had not been rebutted, but that the evidence in fact
reinforced it. Evidence held to have reinforced the presumption included that the
deceased had expressed doubts about the appropriateness of the final will after he had
made it, and did not regard his separation from Ms Rhodes as final. Such uncertainties
were clearly not of assistance given that the propounder had to overcome the
presumption that the final will had been destroyed by the deceased with the intention of
revoking it. The upshot was that the final (lost) will was effective to revoke the prior will,
but that the final (lost) will was itself presumed to have been revoked, resulting in
intestacy. Letters of administration in intestacy were granted.
8. Though the applicable principles can be clearly stated, analysis of the facts of decided cases
reveals a high level of complexity in applying, weighing and balancing those principles. This
sometimes leads to different results in cases which have some central factual
circumstances in common. The whole of the factual matrix must be borne in mind. Any
survey of the cases thus requires engagement with thickets of extracted facts. The
foundation is to have a good working grasp of the principles.
9. As mentioned above, in Cahill v Rhodes no copy of the missing will had been found, that it
had existed having been established only by statements of the deceased to various
persons as to the making of the will, and as to its terms. A statement of the requirements
appropriate to a case in which a copy of the missing will was extant is to be found in In the
Estate of Hall (deceased) (2011) SASC 117. In Estate of Hall the matters to be established
by the propounder were stated as follows:
- that the original will existed; - that the original will was duly executed; or, if the original will does not fulfil
the formalities required by legislation, that it satisfies the legislative requirements allowing it, as an informal will, to be admitted to probate;
- that there is evidence of the terms of the original will; - that the copy will is an accurate and complete copy of the original will; - that thorough searches have been conducted to find the original will,
including publishing advertisements regarding the missing original will; - that the original will revoked all pre-existing wills; - the circumstances surrounding the absence of the original will;
6
- that all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris; and
- that the presumption of revocation does not arise or has been rebutted.
A more detailed consideration of Estate of Hall commences at paragraph 47 of this paper.
More about the presumption
10. The basis for the presumption was stated by Parke B in Welch v Phillips as follows;
“….. it is highly reasonable to suppose that an instrument of such importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or elsewhere he resides, it is on a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary”.
Welch v Phillips 1863 Eng R 1157
11. As an aside, the common law rule that a will may be revoked by destroying it with the intention to revoke is incorporated unchanged into the provisions of section 12 (2) of the Wills Act 1997 (which deals with the ways in which a will can be revoked).
s. 12 (2) (f) by the testator, or some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it; or
The presumption applies when the will was last known to be in the possession of the deceased
and is not forthcoming on death.
12. Campbell J noted in Cahill v Rhodes, and the point has been reinforced many times since (for example in Moschoudis, considered below) that it is not the law that the presumption applies only where there is material demonstrating a probability of destruction. Rather, the applicant always bears the onus of rebutting the presumption in cases where the will is lost. An argument that the absence of evidence positively pointing to the testator in fact destroying the will animo revocandi in a particular case is in itself sufficient to overcome the presumption will not be accepted.
The standard of proof applicable when rebutting the presumption
7
13. It has been said that the evidence to rebut the presumption should be “clear and convincing”.
In the estate of Ralston, unreported, 12 Sept 1996 NSWSC, per Hodgson J.
14. “…..what is required is that the party bearing the onus of proof must be sufficiently diligent in calling available evidence, because the court will not be prepared to act on material which it considers inadequate….” Cahill v Rhodes, per Campbell J.
15. The well-known statement by Dixon J. in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, has been cited with approval in lost wills cases:
But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue had been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[
Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the Tribunal of fact that the adultery alleged was committed, it should so find. at [368 – 369]
The Briginshaw principle applies both to the finding of facts proven by direct evidence, and to the finding of facts by a process of inference.
Did the deceased lack capacity at any time after making the lost will?
16. The presumption of destruction animo revocandi is a potentially significant obstacle. The task of rebuttal enmeshes one in the Briginshaw principle, in a context - articulation of the testamentary wishes of the deceased – treated with great seriousness by the Court. The practitioner considering a lost will case should therefore pose the question: is there any means of arguing that the presumption does not apply?
8
17. The answer is: “sometimes”. Where the deceased came to lack capacity after the date of making a will and the will was not found after the deceased’s death, the presumption is that the deceased destroyed the will whilst he lacked testamentary capacity, and therefore lacked capacity to revoke. In such a case the onus is on the party opposing the grant to show that the will was destroyed at a time when the deceased had capacity.
18. Authorities – lost capacity changes the presumption:
Sprigge v Sprigge 1868 LR 1 608
The testator was a surgeon who immediately after his marriage made a will in favour of his
wife. Five years later he “became of unsound mind”, and two years after that he was confined
in an insane asylum. He died the following year. The will, which had been in the custody of the
testator after it was executed, was not found after his death. The terms of the will were proved
by a copy. There was no evidence of actual destruction of the will. The testator’s children
pleaded revocation. As the testator was for a considerable period after execution of his will
insane, Sir J P Wilde said (at page 610):
The short proposition is, that the burden of shewing that the revocation was done not after
the testator became insane, but when he was of sound mind, is cast on those who set up the
revocation. In this case there was no evidence to shew when it was done. Therefore those
who sought to set up a revocation failed in establishing the facts on which the presumption
of revocation would rest.
The onus fell on those asserting revocation of the lost will to show that the will was destroyed
when the testator was capable. That onus could not be discharged, and thus the presumption
of destruction animo revocandi did not apply.
Estate of Yule 1965 105 Solicitor’s Journal 317
Will made in 1950. Will initially kept at the testator’s bank. In 1957 there were signs of memory
loss in the testator. In 1958, unbeknown to others, the testator removed the will from the
bank. The testator became incapable by 1961. He died 1963. The will was not found. The Court
held that it should consider what is the most probable explanation for the absence of the will at
the time of death. Having regard to the business-like nature of the deceased, that there had
been no deterioration of in his relations with the beneficiaries, and that the deceased had
intended that his property would be disposed of under his will, the most probable explanation
was that the will had been destroyed by mistake. The Court stated that if it had decided the
case on the presumption, it would have reached the same result.
19. Was the will last in the possession of the deceased? If not, does the presumption apply?
Authorities:
9
Blasutto v Fantin; Estate of Maria Delfina Blasutto [2000] NSWSC 258 (27 March 2000) (Young
J).
The testator engaged a solicitor to draw a will. The will was drawn and executed. The
original was held at the solicitor’s office, and a copy provided to the testator. The solicitor
was in a law partnership which was subsequently dissolved. At dissolution of the
partnership the clients of the practice were notified and many attended and collected their
documents. On the death of testatrix neither the solicitor who had drawn the will nor her
former law partner held the original will, nor was the will amongst the testatrix’s papers
and documents on her death. The copy will was found, but not the original. The records of
the former legal practice did not show which clients had collected their documents and
which had not. There was no indication that the testatrix had collected her will. The testatrix
had mentioned to her son a number of times that her will was with her solicitor. Enquiries of
other solicitors after the whereabouts of the will did not result in the will being located. The
propounder of the lost will stood to gain an amount of money less than $200.00, the will
providing that the remainder of the estate go to the testator’s granddaughter.
For the propounder it was argued that on the balance of probabilities the will was not last in
the possession of the testator, but in the possession of the solicitors, and that it was
somehow mislaid. Young J considered the significance of whether the will had been shown
to have been last in the possession of the testator at paragraphs 10 to 12 of the judgment:
[10] Mr Warren for the plaintiff says that one never gets to the presumption in this case because the evidence shows that on the balance of probabilities the will was not last seen in the hands of the testatrix at all, but in the hands of the solicitors, and the probabilities are that when the solicitors' partnership was terminated the will somehow or other was mislaid.
[11] However, another inference could be that the will did find its way into the custody of the testatrix and had been inadvertently destroyed. One would not have thought it had been deliberately destroyed if the copy was kept: cf Patten v Poulton (1858) 1 Sw & Tr 55: 164 ER 626. See also Finch v Finch (1867) LR 1 P & D 371.
[12] I think this is right. Further, I think that the balance of the evidence does show that the will was not last seen in the testatrix's possession, and so it would be inappropriate to apply the presumption. However, even if the presumption were applied, it seems to me that the balance of the circumstances in this case show that the testatrix did not revoke this will…..
10
20. In Blasutto the lost will was admitted to probate. It is to be noted that there was no
contradictor in Blasutto, the Court therefore did not have the advantage of argument, and
the force of the decision can therefore be considered to be less than it might otherwise
have been. Never the less, Blasutto is an authority upholding an argument that the
threshold for application of the presumption did not exist, and in which the presumption
accordingly was held not to apply.
21. Rebutting the presumption- the third requirement in Cahill v Rhodes
The rules governing the Court’s inquiry when the presumption is sought to be rebutted were stated in Whitely v Clune (No 2); Estate of Brett Whitely NSWSC Powell J Unrep 13 May 1993 at BC 27 and are as follows:
1. although, where a Will is traced into the possession of the testator and is not forthcoming on his death, there is a presumption that he destroyed it animo revocandi, the presumption may be rebutted;
2. the strength of the presumption depends upon the character of the testator's custody over it (Sugden v Lord St Leonards (1876) LR 1 PD 154; Allan v Morrison [1900] AC 604; McCauley v McCauley (1910) 10 CLR 434);
3. where the Will makes a careful, and complete, disposition of the testator's property, and there are no other circumstances to point to a probable destruction, animo revocandi, by the testator, the presumption is so slight that it may be said not to exist (Sugden v Lord St Leonards (supra); Finch v Finch (1867) LR 1 P and D 371);
4. where a Will is lost or destroyed, and the presumption of destruction, animo revocandi, either, does not arise, or, is rebutted, its contents may be proved by parol evidence. The "rules" laid down in Sugden v Lord St Leonards (supra) are as follows: -
a. the contents of any lost instrument, including a will, may be proved by secondary evidence;
b. written and oral declarations of a testator made before, or after, the execution of the will are admissible as secondary evidence of its contents;
c. the evidence of a single witness, although interested, is admissible to prove the contents if his veracity and credibility are unimpeached;
d. Probate may be granted of so much of the contents as may be proved, even though proof is not available of the entirely.
It should, however, be noted that, at least insofar as (b) and (d) are concerned, Sugden v Lord St Leonards (supra), although not overruled, has not escaped criticism (Woodward v Goulstone (supra); Atkinson v Morris [1897] P 40) so that it is improbable that the "rules" will be extended.
11
22. In Cahill v Rhodes [2002] NSWSC 561, Campbell J enumerated some factors considered by the courts under the rubric “the character of the testator’s custody” of the will. These included:
i) the physical arrangements of the testator for security of the will
ii) who knew of the location of the will
iii) who had access to the will
iv) the extent to which the testator had taken care in looking after the will
Matters which have been considered in deciding whether the presumption is rebutted.
23. "All the facts of the case must be considered, and amongst them the nature of
the provisions of the will itself is very material."
McCauley v McCauley (1910) 10 CLR 434, at 438), per Griffith, C.J;
24. The nature of the provisions of the will itself is very material because where the will makes a careful and complete disposition of the estate and there are no other circumstances pointing to probable destruction, the presumption that it was destroyed by the deceased with the intention of revoking it becomes so slight as not to exist. See Sugden v Lord St Leonards (1876) LR 1 PD 154 and McCauley.
25. In Sugden Sir James Hannen expressed the matter thus:
"... it is obvious that the question whether or no the testator revoked this instrument must depend to a considerable degree upon what conclusion I may arrive at as to the contents of the instrument itself. It is obvious that where a will, shewn to have been in the custody of a testator, is missing at the time of his death, the question whether it is probable that he destroyed it must depend largely upon what was contained in the instrument. Was it one arrived at after mature deliberation; did it deal with the interests of the whole of his family, carefully arranging the dispositions which he would make in favour of the several members of it, or was it the hasty expression of a passing dissatisfaction with some one or more of them? These are questions naturally having the strongest possible bearing upon the ultimate question
12
which I may have to determine, namely, whether or not the testator himself destroyed this instrument."
26. Matters considered by the courts in cases concerned with rebuttal of the presumption
include:
- Whether the will makes a complete and careful disposition of property
- That there had been no change of testamentary intention stated after the will was
made
- Knowledge of will making requirements / intention to have a will / intention not to
die intestate
- Habits in relation to keeping prior wills
- That there had been no change in circumstances from the time of the will.
- No statement of deceased to the effect that he wanted to change the will or was not
happy with his will.
- Whether the evidence supports an explanation for why the will is missing other than
destruction animo revocandi.
27. “Declarations of the deceased either as to goodwill toward the parties benefited by the will and of adherence to it, or on the contrary of dissatisfaction and change of mind respecting them are relevant circumstances commonly relied upon in determining the issue, as is the content of the will itself and whether it was the sort of will that a careful testator would have made with regard to the complete disposition of his property;”
Blasutto-v-Fantin; [2000] NSWSC 258 at [9]
Proof of execution or proof that brings the document within section 9 - the fifth element in
Cahill v Rhodes -
28. Recall that section 9 (3) of the Wills Act (Victoria) (there are comparable but not identical
provisions in other States) provides that in deciding whether to admit an informal
document the court may have regard to
(a) any evidence relating to the manner in which the document was executed; and
(b) any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
13
29. Payten v Perpetual Trustee Company [2005] NSWSC 345 (15 April 2005) illustrates a difference between the Victorian and New South Wales provisions, thus providing a helpful reminder that propositions from interstate authorities, whilst of general assistance, should be read carefully to identify the extent to which differences in the applicable legislative provisions effected the result.
“To a substantial degree, the plaintiff in the present case relies on evidence of
statements by the testator, Ms Payten. Under the older case law, statements
made by a person after the alleged execution of the will by him or her were not
admissible as evidence of such execution: for example, Gair v Bowers, 9 CLR at 521
per Griffith CJ, 526 per O'Connor J, and 530 per Higgins J, in each case citing
Atkinson v Morris [1897] P 40. However, as Hodgson J pointed out in In the Estate
of Ralston (Supreme Court of New South Wales, 2 September 1996, unreported;
BC9604329), that has been affected by two statutory changes. The first is the
enactment of s 18A(2) of the Act, which authorises the court to have regard to any
evidence relating to the manner of execution or testamentary intentions of the
deceased, including evidence of statements made by the deceased, in forming its
view as to whether a document not executed in accordance with the formal
requirements of the Act embodied the testamentary intentions of the deceased.
The second is the hearsay provisions of Evidence Act, and especially ss 63 and 64.
Hodgson J said (BC9604329 at 7):
"It is clear that those two provisions mean that generally the hearsay rule no
longer makes declarations by a deceased person concerning execution of a will
inadmissible to prove due execution."”
30. The New South Wales section goes further than the Victorian Act, by permitting
the court to consider “any evidence relating to the manner of execution….”.
31. This expressly overrides the common law proposition– that parole evidence of statements
of the deceased were not admissible as evidence of execution of a will, as tending to
contravene the Statutory requirements for valid execution of a will.
Barkwell v Barkwell C A 1927 91
32. The Victorian Act by section 9 permits the court in informal will applications to consider “any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator”. Section 9 of the Victorian Act might well be the destination for lost will applications where formal execution cannot be established.
Recent decision in missing will cases
14
33. I now consider some recent and relatively recent decisions in lost wills applications.
Re Moschoudis [2016] VSC 139 (8 April 2016) (McMillan J).
Moschoudis is a decision of Justice McMillan, in which Her Honour found against
propounders of a missing will.
The facts in Moschoudis
34. Moschoudis concerned an application by the named executor of a missing will on the
basis that the will was lost rather than revoked. The presumption applied, and so the
propounder was required to rebut the presumption to succeed. The sons of the deceased
sought letters of administration on intestacy, their case being that the will had been
destroyed, though as a matter of procedure they were in the position of being able to
merely rely on the presumption.
35. The propounder, who was the deceased’s nephew, filed a caveat in the intestacy
application. The deceased’s sons then made application for summary judgment under
section 63 of the Civil Procedure Act, on the basis that the propounder’s case had no
reasonable prospect of success. Put differently, the application effectively said that the
propounder of the lost will had no reasonable prospect of rebutting the presumption of
destruction animo revocandi, leading to the conclusion that the proceeding must be
summarily dismissed.
36. Arguments and matters relied on by the propounder as rebutting the presumption in
Moschoudis
- That the deceased was meticulous in his record keeping, for example having kept
ten years of taxation and like records, and kept a copy of the will, leading to the
conclusion that it was unlikely the deceased had destroyed the original of the will
- It was unlikely in the circumstances that the deceased would have destroyed the will
and then done nothing towards having a new will prepared
- The court should not be satisfied that the letter from the deceased’s solicitor
enclosing the original will was in the deceased’s possession when he died (this
submission was held by the court to be a veiled argument that the deceased’s sons
might have destroyed the will)
- That the deceased remained on good terms with his nephew, that the will made a
complete disposition of his property, and there were no circumstances pointing to
probable destruction
37. The countervailing considerations in Moschoudis
In holding that there was no realistic prospect of success on the part of the propounder and
summarily dismissing the proceeding, the court held:
15
- Given the care the deceased had clearly taken in relation to his documents, it was
unlikely that the will was lost. Clearly enough that left open that the will might have
been destroyed by the deceased – in which respect the facts were held to reinforce
the presumption rather than rebut it.
- The letter from the deceased’s solicitor enclosing the original will established the
foundation for application of the presumption - namely that the will was last in the
possession of the deceased.
- There was evidence from the solicitor that the deceased had contacted him after
receiving the original will, requesting preparation of a new will (thought the
evidence did not reveal that a new will had in fact been prepared).
- In circumstances where the deceased had received the original will and thereafter
instructed a solicitor that he wanted to make a new will, and copy of the will was
held but the original was not, the presumption had not been rebutted
- There was no evidence available to support an inference that the deceased’s son
had destroyed the will
- The fact that the will had been made urgently at a time when the deceased was
about to undergo a medical procedure, had subsequently taken possession of the
will and instructed a solicitor that he wished a new will to be prepared, supported
the inference of destruction animo revocandi, rather than rebutting it.
- That the deceased was careful in keeping documents in his home though the will
was not amongst them further supported the presumption.
38. Mirror Wills:
In Di Gregorio & Anor v Di Gregorio [2007] VSC 156 (18 May 2007), Hansen J considered an application concerning a lost will where the evidence was that husband and wife had made “mirror wills”, that of the husband being lost by the time of his death, whilst the wife’s will remained extant. The Court was, on the evidence, prepared to draw the inference that the husband’s will was indeed a mirror of the wife’s will, and held that the presumption was rebutted.
39. In the Estate of Phyllis May Engelhardt (deceased) 2010 SASC 196
Facts in Engelhardt:
- The deceased made a formal will and subsequently a formal codicil.
- Due execution and capacity were proved.
- The will had initially been retained by the deceased’s solicitors, then subsequently
the deceased had written requesting the original will, which was sent to her. The
deceased had signed an acknowledgement of receipt of the original will.
- After the death of the deceased the original codicil was located, but the original will
was not.
- Thorough searches were made and advertisement published.
16
- The applicants had been given a document by the deceased which she intimated
was the will, but when after her death the applicants lodged it they were informed
by the Registrar that the document was in fact a copy.
- When handed the document by the deceased it was stapled to the original codicil.
- The deceased had made no statement to the effect that she wanted to change her
bequests, and had suffered no loss of capacity.
- The deceased had kept her documents in a concertina file, and no one other than
the deceased had access to the file without permission of the deceased.
- The Court found that the presumption applied, as the evidence was clear that the
will was last in the possession of the deceased. The deceased was meticulous in
keeping her records. The court noted that the will had been prepared by a solicitor
and constituted a complete disposition of the deceased’s property. The Court held it
improbable that the deceased intended to die intestate,
- The court held that the evidence suggested it was unlikely the deceased had
destroyed the will with the intention of revoking it. It held that the circumstances
suggested that the deceased had stapled the copy will to the codicil believing it to be
the original, and that the original was probably lost or misplaced.
The presumption was held to have been rebutted, and the will was admitted.
40. Jack Hamilton Gerard (deceased) 2007 SASC 362
Facts in Gerard:
- A will and a codicil were made and formally executed during the same year. On the
death of the deceased the original codicil was located, but not the original will.
- There was no evidence of any statement suggesting a desire to change the will or
codicil. On the contrary, the deceased after the codicil had been executed made
statements that he was pleased with the provisions of the will and codicil, that the
matter was concluded, and that he did not see any need to revise them. He said the
will and codicil were in his study and that he would put them in the safe in the study.
- The deceased’s financial advisor testified that the deceased would have told him had
he intended to change his will or codicil, but that he did not.
- The Deceased’s personal assistant gave evidence that the deceased expressed to her
his relief at the state of his will and that he could die peacefully.
- There was evidence of others who knew the deceased’s habits well to the effect that
they did not believe he would have destroyed the will in order to revoke it.
- It was the practice of the deceased to require numerous drafts of wills and codicils
from his solicitors and to note changes on originals, copies and on note paper. He
retained drafts at his residence in a safe or in his brief case.
- The original will and codicil had been forwarded to the deceased by his solicitors,
and the letter enclosing the testamentary document was found amongst the
deceased’s papers.
- The presumption therefore applied and had to be rebutted if a grant were to be
made.
17
The court applied the test as set out in Cahill v Rhodes.
Evidence in support of rebuttal in Gerard:
- The evidence showed the deceased destroyed wills and codicils, originals and copies
from time to time knowing them to be revoked by later documents.
- The Applicants posited that the deceased may have accidentally destroyed the will
when culling documents in this way.
- The will and codicil made a careful and full disposition of all property
- The deceased had expressed himself happy with the will and codicil and did not
envisage any need to revise.
- The deceased was found on the evidence to have been unwilling to die intestate
In the circumstances the court found it more probable that the will had been lost than
that it was destroyed animo revocandi, and the presumption was accordingly rebutted
and the lost will admitted.
41. Payten v Perpetual Trustee Company [2005] NSWSC 345 (15 April 2005)
The significance of Payten is that a grant was made despite the extraordinarily scant
evidence of the 2003 will. Not only was there no copy of the 2003 will, there was only the
barest outline of what were said to have been some of its provisions. Notwithstanding
this, the court ordered that a reconstruction be made of so much of the terms of the 2003
will as were shown by the evidence, and ordered that it be admitted to probate.
Facts in Payten:
- The deceased, who had never married and had no children, made a formal will in
2002 the effect of which was that her nephew received $100,000, her nieces
received certain items of jewellery, and the residue was left to a Mrs Dibb, described
in the will as a friend of the deceased. The estate was of more than $1.4 million
value.
- The will had been completed in hand on a stationer’s form, however it was proved
to have been duly executed.
- The Plaintiff was the brother of the deceased, who would have taken on intestacy.
Notwithstanding that he would have been the sole beneficiary on intestacy, his
application was for a grant in respect of a will or document embodying the
deceased’s testamentary intentions said to have been made in 2003. No 2003 will
was found, nor was any photocopy or like secondary documentary evidence.
- Prior to the Plaintiff’s brother’s application, a grant had been made in respect of the
2002 will, the executor being Perpetual Trustee Company.
- The brother in propounding a lost will of which there was no documentary evidence,
under which his own benefit would be less than on intestacy, established a store of
18
credit which was added to during the trial. The way in which the Statement of Claim
in the proceeding dealt with the “New Will Document” (as it was referred to) was
set out in the judgment as follows:
[5] The statement of claim pleaded terms of the new will document;
(a) express terms that:
(i) "reduced" provision was given by Ms Payten to Ms Dibb than had been
given to her by the March 2002 Will, and that the "reduced" provision may
have constituted the property at Shelly Beach; and
(ii) a "large" sum of money was given by Ms Payten to Edith Graham, who
looked after her before her death; and
(b) an implied term that the March 2002 Will was revoked.
[6] According to the Statement of Claim, the dispositions made by the New Will
Document are either completely uncertain, or uncertain except as to a gift of the
Shelly Beach property to Ms Dibb. Therefore, the plaintiff pleads, Ms Payten
either died intestate, or died intestate as to her property with the exception of
the disposition of the Shelly Beach property. The statement of claim seeks orders
revoking the grant of probate of the March 2002 Will, declarations and orders
recognising the effect of the New Will Document, and a limited grant of letters of
administration to the plaintiff of the New Will Document as in substance and
effect the revocation of the March 2002 Will or the revocation of that instrument
except as to a gift to Ms Dibb of the Shelly Beach property.
43. Evidence in Payten
- Mrs Dibb and Mrs Graham were both personal care workers connected with
agencies who, at various times, undertook care of the deceased.
- Mrs Dibb’s evidence was striking. She first said that the deceased made
payments to her from time to time of such sum as she felt like - between $3,000
and $10,000 each two to three months. Later in her evidence Mrs Dibb
described these amounts as gifts, saying that there was no payment, but that
they had acted out of love for each other. Mrs Dibb gave evidence that a
cheque for $30,000 from the deceased to her was because she, Mrs Dibb, had
paid almost all the expenses on a holiday they took together, and that the
deceased was always giving her money. As to a $5,000 cheque to her from the
deceased, she said it had been cancelled because the amount was wrong. Bank
records showed however that it had been dishonoured as a forgery.
- Mrs Dibb’s evidence was replete with contradictory accounts of transactions on
the deceased’s bank account in favour of Mrs Dibb.
19
- Mrs Graham gave evidence of conversations with the deceased in which the
deceased said that Mrs Dibb had obtained her cheque book and forged cheques
including the cheque for $30,000.
- The Plaintiff gave evidence that the deceased had authorised him to transact her
cheque account because she did not want Mrs Dibb having access to it.
- The Plaintiff had at the deceased’s request retrieved the deceased’s will from the
bank and delivered it to her. The deceased then asked him to obtain a will form.
He was unable to do so. The deceased the told him she would do so herself.
- The deceased phoned Perpetual and stated that she wished to change her will.
In the event the necessary appointment was not made with Perpetual.
- The deceased had conversations with family members and Mrs Graham. In
conversation with family members, statements such as the following were
made:
"You and the family will be very happy with the terms of my new will.
There will be significant moneys and some houses coming to the
family. I have left some money for Edith [Graham] as well because she
has been a good friend for me."
and
"I've written a new will" She said her aunt told her that Vera [Dibb]
would be given Shelly Beach, and that someone else whose name
Joanne could not fully hear (a woman whose name began with the
letter "E") [Mrs Graham’s Christian name was Edith] would be given
the Port Douglas property. According to Joanne Payten's affidavit, Ms
Payten continued, "Kirribilli is to stay in the family, Warwick will be
pleased about that, you girls will receive a little bit of money".
- Mrs Dibb testified that during a visit with the deceased to the Plaintiff’s house the
Plaintiff gave the deceased the will. The Plaintiff denied this.
- Mrs Dibb gave evidence that she had at the deceased’s request brought the 2002
will to the deceased from the deceased’s filing cabinet to where she was in the
bedroom. The 2002 will was in the deceased’s house at her death.
- Immediately she was notified of the death in hospital of the deceased, Mrs Dibb
went to the deceased’s house. She said this was to remove her personal things. She
denied searching for a will.
- Mrs Graham testified that after the death of the deceased Mrs Dibb had told her
that she had seen the deceased’s will, and that Mrs Dibb had been left the Shelly
Beach house, and Mrs Graham a large amount of money.
20
Note that the 2002 will made no bequest to Mrs Graham.
44. The court in Payten applied the five Cahill v Rhodes factors. The case was unusually
dependent on evidence of oral statements by the testator. As to this, the Court cited with
approval the observations of Hodgson J in the Estate of Ralston (see extract appended to
paragraph 29 of this paper), then continued as follows:
[89] According to the Evidence Act, s 140, in a civil proceeding such as the present one,
the court must find the case of a party proved it is satisfied that the case has been
proved on the balance of probabilities. The section requires the court to take into
account the nature of the cause of action, the nature of the subject-matter of the
proceeding, and the gravity of the matters alleged. Reference is often made to the
proposition, derived from Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336,
that when applying the civil standard of proof to a case that may involve questions of
fraud, the court must have a "comfortable satisfaction" that the case has been
established before finding for the plaintiff. But in Pedler v Richardson (Supreme Court of
New South Wales, 16 October 1997, unreported; BC9705263), a lost will case, Young J
observed (BC 9705263 at 10-11), that "caution must always be had against picking up
glosses and tags and one must look to see what the actual principle in Briginshaw and
later cases is". He concluded that the most that could be said was that the trial judge
should be conscious of the gravity of the allegations made on both sides when reaching
his or her conclusion, while ultimately it remains incumbent on the judge determine the
issue by reference to the balance of probabilities.
45. Findings in Payten
The court made findings on the elements of the Cahill v Rhodes test as follows:
a) Was there another will? On the basis of the statement by Mrs Dibb to Mrs Graham
against interest that she had seen a will in which there was a large bequest to Mrs
Graham, corroborated by the statements of the deceased to family members an Mrs
Graham, the court held on the balance of probabilities that there was a will which post -
dated the 2002 will.
b) Did the 2003 will revoke the 2002 will? The evidence was described by the court as
“skimpy”. The dispositions in the will the subject of the relevant conversations were
inconsistent with the 2002 will. The court held that such inconsistency was sufficiently
established to satisfy the rule of Isaacs J in Gair v Bowers. Under the s 17 of the [New
South Wales] Act, a will may be revoked by a later will, and this may occur even if the
later will has been lost, as Cahill v Rhodes shows. But the revocation of a will that has
been duly executed is not established by the execution of a subsequent will that has not
been found, unless the later will is clearly proved to have contained an express
revocation of the earlier will, or dispositions inconsistent with those in the earlier will:
21
Gair v Bowers [1909] HCA 57; (1909) 9 CLR 510, especially at 529-530 per Isaacs J, citing
Nawab Sahib Mirza v Mussammat Umda Khaanam (1892) LR 19 Ind App 83, at 89 per
Lord Macnaghten.
c) The presumption of revocation (ie. the presumption that the reason the 2003 will could
not be found was because the testator had destroyed it intending it to be revoked)
[106] In the present case, I am not in a position to know whether Ms Payten, by her new
will, made "a careful and complete disposition" of her property, because the evidence of
the dispositions is incomplete. However, in my view there is reasonably strong evidence
to rebut the presumption of revocation of the new will. The evidence indicates that Ms
Payten decided to reduce Ms Dibb's share of the estate because of the cheques, that is,
because of some experience that, I infer, included her experience with respect to the
cheque that was returned unpaid by the Bank on 26 September 2002. The fact that she
did not immediately act after that experience is partly explained by the evidence that
she remained fond of Ms Dibb. It may also be explained because, in September 2002,
she was not as ill as she subsequently became. It appears from the evidence that Ms
Payten decided to do something about making a new will only when she came out of
hospital on 9 April. It is plausible that her illness would have provoked her to do
something about her testamentary intentions, which included giving Ms Dibb a lesser
share of her estate.
[107] There is nothing to indicate that she had any subsequent change of heart. Indeed,
her conversation with Ms Graham during her visit occurred only about a week before
she died. My conclusion is that the presumption of revocation of the new will has been
rebutted in this case.
d) Terms of new will
[108] I have summarised the evidence of the terms of Mrs Payten's new will under
heading (2) Revocation of the March 2002 Will. Plainly the evidence falls well short of
establishing the complete contents of the new will. Indeed, with one exception, all the
terms, including the terms relating to the Kirribilli unit and gifts of money, are much too
vague and uncertain to be the subject of any grant of probate or other recognition.
[109] However, there is one term which seems to me, on the balance of probabilities, to
have been established. This is the term that the Shelly Beach house was given by the
new will to Ms Dibb. This term emerges from Ms Graham's evidence of what Ms Dibb
said to her in their telephone conversation after Ms Payten died, when Ms Dibb told her
that she had seen the will. It is also supported by Ms Dibb's oral account of her
conversation with Ms Payten during Ms Payten's visit, not long before she died. And it is
supported by the evidence of Joanne Payten, in her account of her telephone
22
conversation with Ms Payten about a month before she died.
e) Due Execution. The Court held based on the testamentary documents provision (ie. the
equivalent of section 9 of the Victorian Act) that the document had been proved,
whether or not formally executed
f) Orders.
The appropriate course, as suggested by the observations of Young J in Pedler v
Richardson, quoted above, is to revoke the grant of probate of the March 2002 Will
and to grant letters of administration cta, annexing the best reconstruction of the
partial terms of the will that can be made in light of my findings.
46. That is, the result in Payten was that there be a reconstruction of the will as best could be
done on the findings, and thereafter those parts of the 2002 will not inconsistent with the
judge’s findings, together with the reconstructed terms from the lost 2003 will, would be
the subject of a grant.
47. Lisa Karen Hall (deceased) 2011 SASC 117
Lost will - presumption rebutted
Facts in Hall.
- The deceased duly executed a will on 18 December 2009. Her solicitor photocopied the will and handed the original to the deceased. The deceased died on 9 June 2010.
- Despite thorough searches, the will could not be found. - An application was made for a grant of probate of a copy of the missing will. The
Registrar of Probates referred the matter to the Court for consideration as an explanation of how the will had become lost was not apparent from the evidence then before the Court. The Judge had the propounding solicitor appear before him and subsequently provide further evidence as to the nature of the custody that the deceased had over the will and the dealings with the deceased’s personal effects and papers following her death.
- One affidavit which provided particular assistance was that of one of the named executors, Ms Brennan. Brennan gave evidence that she had agreed to act as an executor of the deceased’s will after having learned that the deceased’s condition was terminal. In January 2009, Brennan discussed aspects of the will with the deceased and the deceased clearly indicated to Brennan that she was happy with the contents of her will. In March 2010, the deceased again informed Brennan that she was ‘happy with it’ and did not want to make any changes. About four weeks before the deceased’s death, the deceased told Brennan about a notebook that contained information about the intended beneficiaries of her property and her wishes as to the arrangements for her funeral. She told Brennan that ‘everything you will need to know is in the book’.
- The deceased made a similar statement to her parents regarding the notebook. Following the deceased’s death, her parents searched her property for the will. In particular, they searched a room that contained boxes of paper and records. The
23
deceased’s parents destroyed documents that they believed to be redundant, resulting in most of the documents being destroyed. Further, there was a filing cabinet in the room that was said to have contained the deceased’s more important documents, and some of the folders in that filing cabinet had been disturbed. There was little evidence of who had disturbed the documents, but one explanation open on the evidence was that a friend of the deceased who had stayed at the deceased’s house had dealt with them.
48. The presumption rebutted in Hall.
For the following reasons, Gray J took the view that the presumption of revocation had been
rebutted:
First, the deceased’s will made a careful disposition of her property and precise and specific bequests had been made.
Second, it was plain that the deceased’s will of 18 December 2009 was in substantially similar terms to the ‘wishes’ section of her notebook. This demonstrated that at least four weeks before her death – when she made statements about the notebook to Brennan – the deceased was content with the terms of her will.
Third, only days before the deceased’s death she thanked Brennan for her assurances that the deceased’s testamentary wishes would be carried out. These factors militated against the conclusion that the deceased destroyed her will with the intention of revoking it.
49. The Judge in Hall considered the most likely explanation for the missing will was that it was inadvertently discarded by the deceased’s parents when they were sorting through the deceased’s documents. As earlier mentioned, it was also possible, on the evidence, that a friend of the deceased had dealt with the documents. It is important to recall that the destruction of a will by someone other than the testator without the knowledge and consent of the testator does not revoke the will. The will was admitted to probate.
50. A note in passing: presumption of due execution of will / admission of informal
document.
- Where a will is formal on its face, the presumption of due execution applies.
- Where the will is executed but has an irregular attestation clause leading to the
conclusion the testator did not know the requirements of the Act, the presumption
still applies, but with less force
Vinnicombe v Butler (1864) 3 Sw. & Tr. 580
24
- An unsigned document is potentially admissible as an informal will. However, the
greater the departure from the formal execution requirements, the more difficult to
satisfy the Statutory test for admission of informal documents
Will of Lobato: Shields v Caratazzolo 1991 6 WAR 1
Part II:
Recent decisions in informal wills, lost / informal wills, and costs.
51. Re Hancock; Rennie v The Whippet Association of Victoria Inc [2016] VSC 496 (24 August 2016) (McMillan J).
The Supreme Court in Victoria gave judgment within a week after my address to the Eastern Solicitors Law
Association in a case which has potential significance in informal wills cases. The following outline was
inserted subsequent to the giving of this paper on 16 August 2016.
Facts in Hancock
52. In Hancock the testator made a formal will in 2009 naming the Plaintiff as Executor and
giving his estate to the Whippet Association. In 2015 he saw his solicitor and gave
instructions for a new will. The instructions were to the effect that the Plaintiff was to be
Executor, and the estate was to be divided between six persons, of whom the Executor
was one. The instructions were committed to writing and the testator signed the written
instructions, the solicitor also signing as witness to his signature.
53. McMillan J observed that as section 9 was a remedial provision it was to be given abroad
interpretation, however this is tempered by the proposition that the legislature did not
unduly relegate the importance of the formalities for a valid will. (at [11]), This
formulation shows the tension between the relieving provisions of section 9, and the
desire of the Courts not to be seen to be relegating the importance of the formalities of
section 7.
54. McMillan J approved the observation of Harper J in Re Becroft [2009] VSC 481 that statements of a testator are admissible as evidence of his or her intentions:
In determining whether the deceased intended the document to have testamentary effect, the court is not restricted to the document itself but may have regard, in addition, to evidence of what the deceased did and said. Evidence of subsequent statements by the deceased is admissible for the purposes of establishing a testamentary intention.
25
55. Hancock hinged on whether the testator had intended the instructions to be effective,
without more, and without reservation, as his will, or whether there remained doubt
about whether they were in a preliminary document, after the bringing into existence of
which there remained a period within which the testator would finalise his testamentary
intentions.
56. McMillan J adopted the following passage from Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) the NSW Court of Appeal
It would be necessary for a court to be satisfied that the deceased possessed the relevant intention, ‘either, at the time of the subject document being brought into being, or, at some later time’ A will that has not been validly executed but satisfies the requirements of s 9 of the Act could still in theory be refused probate where the testator lacked testamentary capacity, did not know and approve of the will, or was affected by undue influence in making the will. If the deceased lacked the capacity to make a will, then the Court could not be satisfied that the deceased intended the document to be his or her will. If the deceased did not know and approve of the document, then the Court could not be satisfied that the deceased intended the document to be his or her will.
Note the interconnection between proof of capacity and proceedings under section 9.
57. The Court then examined in very close detail the sequence of events around the giving of
instruction for the will, the making of the written instructions document, and subsequent
conversations with the testator.
58. The testator had been informed by the solicitor when the instructions document was
being prepared that they should sign it so that if he were to die before the formal will was
prepared the signed instructions document could take effect as his will. The testator said
that he thought this was a good idea.
59. There were slight differences between the instructions document and the matters
mentioned by the testator in his subsequent phone conversations with the solicitor.
60. A draft will was prepared but not signed before the testator died. The court observed that
there is a distinction between an intention to make a will and an intention that a
particular document take effect as a will.
26
61. The court observed that the testator had first provided a note to the solicitor setting out
how property was to be distributed, but that the written instructions did not fully accord
with the note. The court observed that the executor was not listed on the page setting out
the residuary beneficiaries, but that mention was made elsewhere in the written
instructions that he was to be a residuary “beneficiary as well”.
62. The Court observed that the testator had not finalised his wishes in respect of disposal of
his body at the time he gave his instructions to the solicitor.
63. There was evidence that a number of appointments had been made for the testator after
his draft will was prepared, but that the testator did not in the event attend any of them.
No explanation was given for this, and the Court observed that one possible explanation
might be that the testator had not finally settled his wishes.
64. The court declined to admit the informal will, holding that as the standard for admission
of an informal will does not allow inexact proofs, indefinite testimony, or indirect
inferences, in the circumstances the informal will would not be admitted.
65. This was a very strict application of the principles, especially where the deceased had
expressly stated that he considered it a good idea that the instructions document was
signed so that it would take effect if he died before the formal will was completed. It could
be considered that the signature of the deceased combined with his express statement
would be powerful evidence making out the requirements of section 9. The court however
adopted a stricter view, going into detailed analysis of the sequence, omissions, and
inconsistencies between various documents and conversations, and concluding that the
necessary clarity and exactness were lacking.
66. The decision in Hancock applied a very exacting standard for section 9 applications. An
appeal is pending.
67. Robinson v Jones [2015] VSC 222 (1 June 2015) (McMillan J) – (informal / lost will).
The facts in Robinson v Jones:
- The deceased made a formal will, then had a draft of a further will prepared
approximately nine months later.
- There was evidence from the solicitor who prepared the will and the subsequent
document that he had written to the deceased enclosing a copy of the formal will
with a draft of a new will, and that the deceased on receipt of the letter and
enclosures and told the solicitor that the draft will was in the form he wanted
- The formal will and the draft will were substantially the same, except that a bequest
to a Mrs Jones in the formal will was not included in the draft will, that share under
the draft will going to a charity and a relative of Mrs Jones.
27
- The deceased committed suicide a week after the phone call to his solicitor. He left a
suicide note directed to Mrs Jones in which he wrote, amongst other things, “so
much for loyalty”, and “I was coming good till you gave me the flick”
68. The Court in Robinson v Jones held:
That the evidence did not establish that the deceased had capacity during the last week
of his life. [133] (The draft not complying with the formal requirements, the
presumptions of due execution and capacity did not apply, and thus these were matters
the propounder was required to establish to the satisfaction of the Court). The result was
that the application under section 9 that the informal document be admitted failed. In
determining whether capacity had been established the Court adopted the classic test
for capacity from Banks v Goodfellow 1870 L R 5 QB 549, the elements of which are
that the testator must:
Understand the nature of the act and its effects
Understand the extent of property he is disposing of
Comprehend and appreciate the claims to which he ought to give effect
Suffer no disorder of the mind poisoned his affections or perverted his sense of
right or prevented the exercise of his natural faculties - that no insane delusion
shall influence his will in disposing of his property and bring about a disposal of
it which, if the mind had been sound would not have been made
69. The court also adopted the observations of Habersberger J in Fast v Rockman 2013 VSC 18
(7 February 2013) on the significance, in applications relating to informal documents, of
knowledge on the part of the deceased of the requirements for a valid will:
The deceased’s awareness of the formalities of a valid will may bear on the court’s
assessment of whether he intended the document to be a will. Where the deceased is
aware of the requirements and had an appointment to complete the will, failure to do so
tends to point against the conclusion that he intended the document to be a will. Where
there is a lack of awareness of the formal requirements the court may more easily
conclude that he intended the document to be a will. Where the deceased does not sign
the document because of a conscious decision not to, the court is unlikely to admit the
document
70. The Court adopted the observation that awareness of the requirements for a formal will is
only one of the circumstances the court will consider in what is ultimately a question of
fact as to whether the requisite intention existed. See Rockman [112 – 113]
28
71. The Court in Robinson v Jones also approved the rule in Hatsouris v Hatsouris [2001]
NSWSC 408 that it is necessary that the court be satisfied that the deceased had the
relevant intention either at the time the document was produced or at some later time.
72. The deceased in Robinson v Jones, having knowledge that wills are required to be
executed, would be unlikely to consider that telling his solicitor that the draft will was in
the form he wanted was sufficient and capable of creating a new will [112].
73. There was no evidence that the deceased intended to sign the draft will - no appointment
had been made for this purpose [110]. It was not a case where he failed to sign because of
some intervening event.
74. The deceased was a person known to have talked about changing his will without the
changes he mentioned necessarily eventuating [115]
Robinson v Jones post script: costs
75. In dealing with the costs of the proceeding in Robinson v Jones, the Court had regard to
the Civil Procedure Act 2010 (Vic), section 24 of which is in the following terms:
Overarching obligation to ensure costs are reasonable and proportionate
A person to whom the overarching obligations apply must use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to—
(a) the complexity or importance of the issues in dispute; and
(b) the amount in dispute
76. The Civil Procedure Act provisions call for some difficult and perhaps fine judgments to be
made in lost will / informal will cases. In lost will cases for example an applicant is required
to have made all reasonable searches and enquiries, and the cases contain may
statements to the effect that the court will not be prepared to make an order on materials
which it considers are deficient or incomplete. Reasonable minds may differ on what
constitutes reasonable searches and enquiries in a given case. If the court takes the view
that work beyond what was reasonable was done, there may well be a costs penalty. On
the other hand, if insufficient enquiries are made to make out the matters necessary for a
proper foundation in a lost or informal will case, the application may not get off the
ground. These may be exacting decisions for the practitioner to make.
29
77. Re Rosaro [2013] VSC 531 (4 October 2013) McMillan J. (informal will)
The facts in Rosaro
- Rosaro was another case in which the court did not have the benefit of argument, there being no contradictor.
- The deceased, whose estate was of approximately $181,000 value, had made a document in the form of a Statutory Declaration which bore two signatures.
- In the document the deceased expressed herself with the formulation: “I wish”, and stated her wishes pertaining to her funeral, payment of expenses of her funeral, and payment of residue to an institution in Italy identified in the evidence as a University.
- The named executrix was a friend of the deceased and testified that the deceased had asked for her consent to be executrix, which she had given, but that there had been no further discussion about a will.
- An attendance note of State Trustees on the deceased in a nursing home disclosed that the deceased had been informed of the problems with the document, told of the consequences of not making another will, but that the deceased was insistent that she did not want to make another will and was not bothered by the question of who her estate would go to after her death.
- The deceased had a brother who was next of kin who did not participate in the proceeding.
78. The Court in Rosaro adopted the Briginshaw principle on standard of proof, then in applying the provisions of section 9 adopted Habersberger J in Fast v Rockman, in the following terms:
[38] In Fast v Rockman,[12] Habersberger J set out the history of the expression ‘without more’, used in the authorities, and explained what these words were intended to mean. At [114] he said that the words ‘without more’ had been mentioned only to emphasise that, for an informal will to be valid:
the court must be satisfied that the deceased really did intend the terms of the document — ‘without any alteration or reservation’ — to be the manner in which his or her property was to be disposed of upon his or her death.
Habersberger J then stated:
I accept that a deceased’s awareness of the formalities required for a will may bear on a court’s assessment as to whether he or she intended an informal document to [be] his or her will. Where a deceased is aware of those formalities and had an opportunity for the will to be executed in conformity with those requirements but failed to do so, that failure tends to point against the conclusion that the deceased intended the document to be his or her will. Conversely, a lack of full familiarity or awareness with those formalities may allow a court more readily to infer that the deceased intended the informal document to have legal effect according to its terms after his or her death. Further, if a deceased had failed to sign a will or comply with the formalities not by virtue of inadvertence or ‘act of God’ beyond his or her control,
30
but as a result of a conscious decision not to do so, including a reluctance to do so, the court is likely to decline to admit the document to probate.
In many cases where wills that do not comply with statutory formalities are sought to be admitted to probate, the would be testator, especially where a solicitor had been engaged to prepare one, is likely to have been aware that the document in question had to be executed in accordance with those formalities to have legal effect. But this, in my opinion, is only one of the factual circumstances which a court will take into account in assessing what ultimately is a question of fact as to whether the requisite intention existed. at [112 – 113]
79. Decision in Rosaro:
Justice McMillan in Rosaro held:
- That there was no evidence of the circumstances of the document coming into existence. The document appeared to have been filled in by a person other than the signatory, as the writing in the form and the writing of the signature were markedly different. The signature of the witness was illegible, and there were no particulars of the witness’s name or address. The court therefore held that the signature on the document was not verified by the signature of the witness.
- Never the less concluded that, in view of the discussion of the document in the nursing home, and the responses given by the deceased, the signature on the statutory declaration was that of the deceased.
- That because the deceased was informed of the difficulties with the document yet chose not to do anything about them, despite the fact that the document was signed, tended to point against the conclusion that the document was intended to be a will. Applying the Briginshaw principle, held not established that she intended the document to be her will.
- Justice McMillan in Rosaro gave specific attention to the law that the requisite intention for a Section 9 application need not exist at the time the document is brought into existence, and in so doing referred to the judgment of White J in Bell v Crewes as follows:
In Bell v Crewes [2011] NSWSC 1159 (16 September 2011), White J considered the section in New South Wales equivalent to s 9. In dealing with the meaning of the intention of the deceased, he said ‘[t]hat intention, I think, need not necessarily exist at the time the document is brought into being, but it must exist some time before death’. [51]
80. In considering whether that intention arose at some time after the document was signed, the court relied on the file notes of the visit in which it was recorded that the deceased was not bothered where her estate went after her death and did not care what happened to her estate upon her death, that the problems were explained to her several times, that she appeared to understand and was not troubled and stated that she did not want to make another will.
81. These circumstances not being persuasive that the deceased intended the document to be her will, in the absence of evidence showing that at some other time the deceased did evince that intention, the application failed.
31
82. Costs in a missing will case - Re Veall [2016] VSC 232 (13 May 2016) McMillan J (on the papers).
The facts in Veall
- There was a 2010 will, in respect of which the testator was found (by the Court of
Appeal) to have lacked capacity and not to have understood or adopted the will.
- An earlier 2010 will was lost.
- A 2009 will was extant and complied with the formalities.
- After the Court of Appeal decision there was need to consider which of the previous
wills should then be admitted to probate to enable the estate to be administered.
- Initially it was indicated that the lost 2010 will would be propounded.
- However there was an exchange of correspondence attempting to narrow the
issues, in which it was pointed out, inter alia, that the earlier 2010 will was
sufficiently close in time to the will already found to have been made without
capacity that there would likely again be a finding of lack of capacity, and further
that the presumption of revocation would apply.
- The Plaintiff never the less issued proceedings seeking to propound the lost 2010
will, alternatively the 2009 will.
- After proceedings including directions orders, the Plaintiff then informed the Court
that he no longer intended to propound the earlier 2010 will.
- The parties applied that their costs to that date be paid from the estate.
83. The Court in Veall then considered the modern position as to costs in such applications, in terms which provide guidance for practitioners in formulating advice in proposed lost wills applications. The following passages from the judgment are apposite (footnotes omitted):
[22] The general rule applied is that costs should follow the event unless there is adequate reason for a contrary order. Although the prima facie rule is that costs follow the event, where the litigation concerns probate, the costs are usually paid out of the estate where it has been caused, or contributed to, by the way in which a testator made his or her testamentary intentions known or, alternatively, by those interested in the residue or where circumstances reasonably call for an investigation.[ Hall v Carney (No 2) [2012] SASCFC 105 (17 September 2012) [8]–[12] (Gray J). ] Where the testator is not the cause of the litigation, but an investigation is reasonably called for, there is either no order as to the unsuccessful party’s costs or costs are paid out of the estate. For there to be reasonable grounds for an investigation, it must be established that when proceedings were commenced, all proper steps were taken to inform the challenger as to the facts of the case and, having done so, the challenger has been led reasonably to the bona fide belief that there was good ground for impeaching a will.[ Davies v Gregory (1873) LR 3 P & D 28 (Sir James Hannen).] If there is no reasonable cause for investigation, that is, if the unsuccessful party has not acted reasonably, then he or she will pay the costs.[ Gray v Hart [No 2] [2012] NSWSC 1562 (11 December 2012) [19] (White J); ]
[23] The usual rules relating to probate litigation are founded on the public interest in ensuring that doubtful wills are not lightly admitted to proof by reason of the cost of
32
opposing them and the importance of parties entering into ‘fruitless litigation’ on the basis that their costs will be paid by others. In recent times, this traditional approach has been questioned on the basis of a counterveiling (sic) public interest of the need to ensure that litigation not be encouraged, particularly where the litigation is, in truth, adversarial litigation between disunited family members battling for their perceived true inheritance, together with the concerns now more frequently expressed for the proportionality of costs in litigation. Where the litigation is adversarial, it is common for the Court to apply the usual rule as to costs and order that the unsuccessful party pay the other party’s costs.
84. The decision in Veall
The Court held:
- That matters had to be considered against the previous proceedings including the
appeal, the large sums of costs incurred in those proceedings, and the matters
adjudicated in those proceedings.
- That the Plaintiff should have made the concessions at the time of the exchange of
correspondence, before post - appeal proceedings were issued, and further that the
costs incurred were disproportional to the issues in dispute.
- Accordingly the proceedings were not caused by the testator.
- The Plaintiff was ordered personally to pay the Defendant’s costs, no order was
made as to the Plaintiff’s own costs, in respect of which he is not entitled to an order
against the estate.
85. Rowe v Storer No 2 2013 VSC 635 McMillan J - (costs)
In Rowe v Storrer McMillan J undertakes a survey of principles applicable to costs orders
in probate matters. For solicitors seeking a general overview of costs principles this is
worth examination in some detail (footnotes omitted):
[6] In relation to probate litigation, two exceptions to the ‘usual order’ were set out by Sir J P Wilde in Mitchell v Gard:
First, if the cause of litigation takes its origin in the fault of the testator or those interested in the residue, the costs may properly be paid out of the estate; secondly, if there be sufficient and reasonable grounds, looking to the knowledge and means of knowledge of the opposing party to question either the execution of the will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent.
[7] In explaining the reason for these principles, Sir J P Wilde said:
It is of high public importance that doubtful wills should not pass easily into proof by reason of the cost of opposing them. It is of equal importance that parties should not be tempted into a fruitless litigation by the knowledge that their costs will be defrayed by others.
33
[8] These general rules were repeated in modified form by Powell J in Re Hodges (1988) 14 NSWLR 698, 709; some 125 years later, and remain the key principles for assessing whether, in exercising its discretion, the Court should decline to apply the ‘usual order’ in probate litigation.
One further point should be made. The manner in which these principles have been applied in many cases has not always been described with a great deal of clarity. In a large part, this results from the nature of orders as to costs, which are often dealt with only briefly following reasons for judgment. However, the confusion also results from the significant degree of overlap between circumstances in which the testator is properly seen as the cause of the litigation, and circumstances that reasonably call for an investigation. In this respect, whilst bearing in mind the discretion of the Court in respect of costs, I adopt the words of White J in Gray v Hart [No 2], where His Honour said:
Where the categories do overlap, if the testator is properly seen as the cause of the litigation, the usual order is that costs be paid out of the estate. It is where the testator is not the cause of the litigation, but an investigation is reasonably called for, that there is usually no order as to the unsuccessful party’s costs. Of course if there is no reasonable cause for investigation, that is, if the unsuccessful party has not acted reasonably, then he or she will pay the costs.
I adopt the words of White J in Gray v Hart [No 2] [2012] NSWSC 1562 (11 December 2012) where His Honour said:
Where the categories do overlap, if the testator is properly seen as the cause of the litigation, the usual order is that costs be paid out of the estate. It is where the testator is not the cause of the litigation, but an investigation is reasonably called for, that there is usually no order as to the unsuccessful party’s costs. Of course if there is no reasonable cause for investigation, that is, if the unsuccessful party has not acted reasonably, then he or she will pay the costs.
[11] There have been a number of decisions, primarily in the Supreme Court of New South Wales in its probate jurisdiction, considering the appropriate orders as to costs where an application for an informal will has been unsuccessful. As can be seen, in each instance the appropriate order will turn of the facts of that particular case:
(a) In Re Morgan, [1999] NSWSC 357 (21 April 1999).Young J held that a charity that had opportunistically sought probate of a document that ‘really had little chance of succeeding’ should bear its own costs.
(b) In Public Trustee v New South Wales Cancer Council, [2002] NSWSC 220 (15 March 2002). Einstein J held that, where the litigation had been necessitated by the conduct of the deceased, and ‘there [had] clearly on the findings been an arguable case’, the unsuccessful defendant’s costs should be paid out of the estate.
(c) In Macey v Finch, [2002] NSWSC 933 (30 September 2002).Young CJ in Eq accepted the submission that the purported will would necessarily have been disclosed to the Court, and ruled on by the Court, irrespective of the conduct of the unsuccessful defendant, and that in the circumstances they ought to have their costs paid out of the estate.
34
(d) In Anderson v Scrivenor, [2002] NSWSC 900 (17 October 2002).Campbell J held that the substantial cause of the litigation was the state in which the deceased had ‘left his testamentary papers’, and that the unsuccessful defendant’s costs should paid out of the estate.
(e) The Western Australian Court of Appeal in Oreski v Ikac [2008] WASCA 220 (31 October 2008).upheld the decision of the primary judge that the appellant had acted unreasonably in continuing to pursue the case after certain key facts emerged, and that as a result she should bear her own costs.
(f) In Bell v Crewes, [2011] NSWSC 1159 (16 September 2011) White J followed the approach of Young CJ in Eq in Macey v Finch, holding that owing to unsettled authorities and the fact that the court would in any case have had to rule on the document, the unsuccessful plaintiff was entitled to have her costs paid out of the estate.
86. Decision in Rowe v Storrer: - The court held that the litigation was not the fault of the deceased. The deceased
had made statements to persons to the effect that she intended to benefit the Plaintiff. However, she had opportunity to sign a will to that effect and did not.
- Held that the requisite intention had not been proved. - There is no obligation to propound an informal will. - The law in relation to informal wills very clearly requires evidence, on the balance of
probabilities, that the deceased intended the particular propounded document to be her final will.
- The court found that there was no evidence of such an intention, and the Plaintiff, who had all of the evidence that ultimately came before the Court available to her, was in a position to assess this from the outset. [21]
- The plaintiff made the decision to proceed, propounding a document for which she would be the substantial beneficiary, in full knowledge of the circumstances outlined. [24]
- The Plaintiff was held to have been unreasonable in rejecting a Calderbank offer. - As the Defendant did not seek costs against the Plaintiff, the Court ordered the
Plaintiff to bear its own costs. It appears implicit at [29] that if the defendant had
sought costs against the Plaintiff, the court would have made such an order.
Part III: Failed bequests
87. Since the decision of the High Court in Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159 it has been clear that in principle a solicitor retained by a testator to prepare a will may owe a duty not only to the testator’s estate, but also to a beneficiary whose
35
intended benefit under a will fails by reason of negligence of the solicitor. The High Court has recently considered whether the principle should extend to failure of a solicitor to advise a testator on the means by which the estate might have been protected against potential testator’s family maintenance claims. (Badenach
v Calvert [2016] HCA 18 (11 May 2016)). I therefore conclude my remarks this evening with a short survey of general principles, a look at the significance of Badenach v Calvert, and some reflections on how practitioners should guard against falling foul of the Hill v Van Erp principle.
88. Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159. In Hill v Van Erp the solicitor failed to ensure that the testator’s wife, the intended beneficiary, did not witness the will. The effect of the testator’s wife witnessing the will was that the will was invalid.
89. A problem which has occupied the courts in these cases is the potential for the law to
provide claims to two different parties for the same loss. Commonly the problem presents as the possibility that by providing a remedy to the disappointed beneficiary there may then be a claim by the estate and the disappointed beneficiary for the same loss, exposing the negligent solicitor to double claims.
The Hill v Van Erp principle and land in joint proprietorship -Carr-Glynn v Frearsons (A Firm) [1999]
Ch 326
90. In Carr- Glynn v Frearsons the testator attended her solicitors and gave instructions that she wanted to make a will in which she would leave a half interest in her rural property “Homelands” to her niece. The testator had previously been the sole proprietor of the land, but for some years down to and including the time she consulted her solicitors about her will she had been registered as one of two joint proprietors, the other being her nephew. The note taken by the solicitor on consulting the testator to take instructions for her will read: “Mrs N now has only a ½ share in Homelands and wants to leave it to niece Helen…..”
91. The solicitor’s note therefore made express reference to the intended objective of the gift. In particular, the solicitor’s note made clear that the intended beneficiary was to have a half share of the land, “Homelands”, not other property of the testator, (which substantially consisted of money in a bank account).
92. The solicitor in Carr-Glynn wrote to the testator after preparing the draft will and stated that the property appeared to be held in joint names, stating that there are “two forms of joint ownership” one of which would leave her free to dispose of the half interest, the other of which would have the effect that the land passed automatically to the survivor on her death. The solicitor further stated that if the testator wanted the solicitor to check the deeds to the property, the solicitor would prepare an appropriate form of authority for the client to sign, enabling her to inspect the deeds.
36
93. Despite this, and without any reply to the matters raised in the letter, the will was subsequently signed apparently without further advertence to the question of the effect of the tenure of the land.
94. The solicitor subsequently sent to the testator a letter enclosing a copy of the will as executed, but not making further reference to the matter of checking tenure of the land.
95. The testator died, and her interest in the land passed to the surviving proprietor by survivorship. The intended beneficiary received nothing.
96. The negligence claimed against the solicitor in Carr-Glynn was that she invited the testatrix to execute the will at a time when neither she nor the testatrix knew whether or not the gift of the half interest would be effective, in circumstances where the solicitor could have immediately and cheaply ended the joint tenancy by a notice of severance. [It should be noted that there is no procedure in Victoria for terminating a joint tenancy equivalent to English notice of severance procedure].
97. Rather than simply serving a notice of severance, which under English law would have effective to change proprietorship to tenancy in common whether the other joint proprietor wanted to end the joint tenancy or not, the solicitor’s proposal was that the testatrix authorise her to ask the other joint proprietor (the nephew) to consent to access being given to the deeds which were held by the bank. The court found that this approach would have entailed delay, especially if the other joint proprietor sensed that something was afoot and did not cooperate. By contrast, service of notice of severance would have had immediate effect and achieved certainty.
98. Even though the solicitor did advise that the effect of the land title was not known for certain and could be checked, the court in Carr- Glynn held that by in failing to advise that a notice of severance should be given straight away to the other proprietor of the land, the solicitor was negligent.
99. The court then considered whether a remedy should lie to the disappointed beneficiary. It was observed that if the testator’s wishes had been effectuated the half interest in the land would have formed part of the estate, whereas by survivorship the deceased’s interest went directly to the other proprietor, never forming part of the deceased estate. The deceased estate therefore had an action against the solicitors for that loss.
100. The problem with the existence of a right on the part of the deceased estate against the solicitors was that, as the land had passed by survivorship, the liability of the solicitors was in damages, that is, money. However, money damages in the hands of the deceased estate would not flow to the disappointed beneficiary but to the residuary beneficiaries. (the disappointed beneficiary was to benefit from a specific disposition of an interest in “Homeland”, nothing else). The disappointed beneficiary did not share in residue. Thus any remedy of the estate against the solicitors would have given a windfall to the residuary beneficiaries, but would not have made good the loss caused by the solicitor’s negligence.
37
101. The court in Carr- Glynn considered the English case of White v Jones [1995] AC 207. In that case the loss was occasioned by the delay of the solicitor in preparing the will, the testator dying before the will was executed, with the result that the intended beneficiary did not receive the benefit. In that case, the estate did not have a remedy, because the property formed part of the estate in any event, the question being which will took effect, hence who was entitled to receive the property. In White v Jones the court extended the remedy to the disappointed beneficiary.
102. It is accepted in Australia that the law may impose a duty on solicitors to disappointed beneficiaries. The duty is based on the notion of a special relationship between the solicitor drafting the will and the intended beneficiary. However particular aspects of the “extension” of duty to persons other than those who would conventionally be entitled to a remedy have resulted in a cautious examination by the courts of the implications of the “extended” duty in each case.
103. Lord Justice Chadwick in Carr-Glynn held that the reasoning supported by the majority in White v Jones was that the law extends a remedy to the disappointed beneficiary in circumstances where otherwise no remedy would exist for either the estate or the beneficiary. He further held that failure to ensure that an effective notice of severance was given was the cause of the failure of the gift, and that it was appropriate to extend the White v Jones principle so that the intended beneficiary had a remedy against the solicitors.
104. Problems of invalidity of a will flowing from defects in execution, the issue in Hill v Van Erp, might now be addressed by an application under section 9 of the Wills Act. However, despite there being no simple “notice of severance” procedure to sever joint interests in land in Victoria, a will which purports to make a devise of the interest in land of a testator registered as a joint proprietor in Victoria may well give rise to liability on the part of the solicitor to the disappointed beneficiary. The answer is, if there is any doubt about tenure of the land the subject of an intended devise, firstly obtain a title search, and, if the land is held under a joint tenancy, to advise and take instructions as to the most effective means of severing the joint tenancy in the circumstances of the case.
Badenach
105. I now turn to the matter of proof of loss dealt with by the High Court in Badenach v Calvert [2016] HCA 18 (11 May 2016). In Badenach the solicitor was instructed by the testator, Mr Doddridge, to prepare a will under which the whole estate was to pass to Mr Calvert, a person to whom the testator was not related but whom he treated as his son.
106. The testator had previously been married, and had a daughter by that marriage with whom he had no contact and for whom he made no provision in the will.
107. The daughter made a successful claim against her father’s deceased estate under the testator’s family maintenance provisions. As a result, the estate was effectively
38
diminished, making the testator’s intentions as regarded Mr Calvert impossible to fulfil. There was not enough left.
108. Mr Calvert sued the solicitor alleging breach of duty of care in failing to advise the testator about the prospect of a testator’s family maintenance application being made by the daughter, and failing to advise the testator of the measures available to him to protect his estate against such a claim.
109. In particular Mr Calvert alleged that the solicitor was negligent in failing to advise the testator that he could have protected against such measures by transferring the real estate into joint proprietorship between the testator and Mr Calvert, or by making inter vivos transfers of the real estate to Mr Calvert.
110. The solicitor appealed to the High Court against the decision that he was liable. The solicitor succeeded in the High Court, so that Mr Calvert’s action against the solicitor ultimately failed.
111. At [29] in Badenach the High Court observed that the possible courses of action open to the testator had the solicitor investigated the daughter’s circumstances and advised on the prospect of a testator’s family maintenance claim included: a) making some provision for the daughter in the will, b) divesting property so that there was no property in the estate against
which a testator’s family maintenance claim could succeed, and c) doing nothing.
The Court observed further that the fact that the disappointed beneficiary had an incentive to dissuade the testator from some of these courses distinguished the case from the fact situation of Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159. In Hill v Van Erp the interests of the testator and the beneficiary were relevantly identical, that is, they both wanted a gift of property to the intended beneficiary to be effected upon the death of the testator. By contrast the Plaintiff’s case in Badenach bore implications that the testator should have, or at least should have contemplated, reducing his property interests during his lifetime, or altering his will to benefit his daughter.
112. In Badenach it could not be known how the testator would have responded to advice from the solicitor about the prospect of a testator’s family maintenance claim, because the solicitor had never raised the matter. Hence the case was not put on the basis that the testator would have taken all steps to protect against such a claim. Instead it was put on basis of loss of opportunity / chance.
113. The High Court in Badenach held that “loss of chance” misstates the nature of a tortious claim. Loss must be proven to the requisite standard. The Plaintiff must prove that there was a substantial prospect of a beneficial outcome had the client in fact been advised.
114. The High Court in Badenach held [ at 40] that the Plaintiff was required to adduce evidence of what would have been done if the opportunity to do something to protect
39
his estate from a potential claim by his daughter was afforded. In particular, what had to be proved was that there was a substantial prospect that the testator would have undertaken the inter vivos transactions to defeat a testator’s family maintenance claim. In fact there was no evidence of what would have been done, and as the subject never arose. The solicitor not having advised about the subject, the absence of such evidence is not surprising.
115. A further observation was added in Badenach, namely that the duty the subject of the Badenach case was not coincident with the narrower duty in Hill v Van Erp. In Badenach the duty was to advise the testator about his future estate. Hill v Van Erp concerned simply giving effect to a testamentary intention. If the testator in Badenach had been advised as the disappointed beneficiary claimed he should have been, namely to transfer the property to Mr Calvert during his lifetime, and had acted on that advice, there would have been no need for the claimant to have been named in the will at all. This was held to have the result that the duty owed by a solicitor to a disappointed beneficiary was not owed to Mr Calvert on those facts, as any loss suffered on that analysis did not flow from negligence in preparing a will.
Implications of Badenach v Calvert in practice
116. As mentioned, the solicitor succeeded on appeal to the High Court against a finding of liability below. Despite this ultimate success, the decision suggests solicitors could potentially be liable in relation to claims by disappointed beneficiaries where a testator’s family maintenance claim has denuded the estate. Practitioners should, if the subject of protection from testator’s family maintenance claims is relevant, ensure that appropriate advice is provided, and that notes of the testator’s approach to the matter are made. If a testator seeks advice on the issue, or the instructions of a testator to his or her solicitor call for the provision of such advice, appropriate advice must be given, particular to the circumstances of the testator. It is easily foreseeable that a testator might make statements to persons such as, for example, friends or family members about the things he or she would be prepared to do to protect his or her estate from testator’s family maintenance claims. If a practical means were available to protect against a testator’s family maintenance claim, either substantially or completely, the testator’s preparedness to act in that regard could be proved, and the solicitor failed to adequately advise, there is in principle nothing to prevent a successful claim. Notionally the claim would be for loss of what would have come to the beneficiary under the will had adequate advice been given about protection from a potential testator’s family maintenance claim.
117. Practitioners should therefore give careful consideration to the issue of potential testator’s family maintenance claims when drawing a will in those cases where such a claim might arise. Matters for consideration in such a case might include: a) The nature and extent of the estate, b) The basis of any potential claim on the estate (to the extent that this is known), c) The practical means available to protect against any such claim, and
40
d) The steps (if any) which the testator is prepared to take in order to protect against any such claim, and the extent to which such steps would afford protection of the estate against such a claim.
Andrew Cassidy
Isaacs Chambers
16 August 2016
(revised November 2016)