The Estate of Robyn Alice May Linworth

1. [1]

   These reasons concern the estate of Robyn Alice May Linworth (the deceased), who died on 9 August 2020, leaving a duly executed, and professionally drawn, Will, made on 18 October 2017 (the 2017 Will) and a duly executed, and professionally drawn, Codicil, made on 18 April 2018 (the 2018 Codicil). There are said to be other earlier Wills of the deceased to which reference will be made later in these reasons.

2. [2]

   The instituted executors named in the 2017 Will are Graham Bennett (described in the Will as “my partner”), Alicia Bennett (described in the Will as “my partner’s daughter”) and Jeffrey Leslie Garrett (described in the Will as “my solicitor”). There was no change to the executors made by the 2018 Codicil.

3. [3]

   For convenience, I shall refer to applicants in the proceedings to which I shall refer by his, or her, first name.

Proceedings 2020/357703

1. [4]

   On 18 January 2021, Jeffrey filed a Summons for Probate in which he sought Probate of the 2017 Will and of the 2018 Codicil. The order did not seek to reserve leave to Graham and Alicia, as the other executors who had not renounced to come in and apply for probate at some future date. These proceedings bear the Court number 2020/357703.

2. [5]

   Notice of Jeffrey’s application was published on the New South Wales on-line registry website on 17 December 2020.

3. [6]

   In answer to a requisition issued on 2 February 2021 from the Principal Registrar, the solicitors acting for Jeffrey filed an affidavit of service of a notice of intended application for probate of the Will and Codicil under Supreme Court Rules Pt 78 r 17(2), of Martin Rory Mallon sworn 14 January 2021, which stated that:

4. [7]

   Under cover of letter dated 12 February 2021, solicitors acting for Sue Evelyn Bromley (the caveator) forwarded to the Registry a caveat in proceedings 2020/357703 which stated:

5. [8]

   On 16 February 2021, the solicitors acting for Jeffrey wrote to the solicitors acting for the caveator raising a number of matters relating to the caveat and pointing out the need for her to provide a basis for the caveat having been filed. Amongst other things, the letter stated:

6. [9]

   There is no evidence of a response to this letter from the caveator’s solicitors.

7. [10]

   A notice of motion was filed by Jeffrey on 23 February 2021 seeking an order that the caveator’s caveat cease to be in force.

8. [11]

   The notice of motion, filed by Jeffrey, was first returnable in the Succession List on 1 March 2021. On that date, the caveator was represented by counsel. As she had not served any evidence, the Court made directions that she serve any evidence in opposition to the notice of motion by 4:00 p.m. on 5 March 2021. Costs were reserved and the notice of motion was adjourned until 15 March 2021.

9. [12]

   The legal representatives were referred to my decision in Estate of Theresa Katalinic; Vea & Katalinic v Katalinic [2020] NSWSC 805 (“Katalinic”), in which I had written, with reference to a proceeding to have a caveat cease to be in force, at [68]:

10. [13]

    Despite the direction made, the caveator’s evidence was not served until the morning of the 15 March 2021. The Court ordered that she pay the applicants’ costs and disbursements of the further adjournment, being a specified gross sum instead of assessed costs, agreed in the sum of $250 (including GST). The matter was then stood over until 29 March 2021 to allow the solicitors for Jeffery to consider the evidence that had been served on behalf of the caveator.

11. [14]

    On 29 March 2021, I made directions for submissions to be served with a copy thereof to be delivered to the Court, in hard and soft copy, and listed the notice of motion for hearing on 31 March 2021.

12. [15]

    The parties complied with the directions made for the filing of the submissions and the matter was heard on that day. The hearing was of about 2 hours duration.

13. [16]

    To complete the narrative of these proceedings, it is to be noted that on 24 February 2021, Graham and Alicia electronically filed a caveat in proceedings 2020/357703 which stated:

14. [17]

    It is not necessary to further refer to the caveat filed on behalf of Graham and Alicia as they, and Jeffery, are endeavouring to come to a practical resolution as to the grant of administration of each of the 2017 Will and the 2018 Codicil.

Proceedings 2020/361773

1. [18]

   On 18 February 2021, Graham and Alicia filed a Summons for Probate in which they sought Probate of the 2017 Will and the 2018 Codicil “reserving leave to Jeffrey to come in and apply for probate at some future date, pursuant to section 41 of the Probate and Administration Act 1898”. These proceedings bear the Court number 2020/361773.

2. [19]

   Under cover of letter dated 12 February 2021, solicitors acting for the caveator forwarded to the Registry a caveat in these proceedings, which stated:

3. [20]

   Graham and Alicia filed a notice of motion on 11 March 2021 seeking, principally, an order that the caveat “cease to have effect”. They also sought that the notice of motion be heard with Jeffrey’s notice of motion and that the evidence in one be evidence in the other.

4. [21]

   This notice of motion was first returnable in the Succession List on 15 March 2021. On that date, the caveator was represented by counsel. Without objection, the matter was stood over to 29 March 2021.

5. [22]

   On 29 March 2021, I made the same directions for submissions to be served and delivered to the Court and listed the notice of motion for hearing on 31 March 2021.

6. [23]

   The parties complied with the directions made for the filing of the submissions in this matter also.

7. [24]

   These reasons deal with both notices of motion filed in these proceedings.

Some matters concerning the caveats

1. [25]

   Part 78 rule 66 of the Supreme Court Rules, relevantly provides that a person who claims to have an interest in an estate may file a caveat in respect of any grant of probate or administration, being made in respect of the estate. The caveat must state fully the nature of the interest claimed by the caveator and an address for service. A copy of the caveat must be served on the applicant for probate or administration within seven days of the lodging of the caveat:

2. [26]

   A caveat takes effect when it is filed and, unless the Court otherwise orders, lapses after 6 months. The Court may extend the duration of a caveat: Supreme Court Rules, Pt 78 r 69. In this case, neither of the caveator’s caveats has expired.

3. [27]

   The caveat filed, in each matter, on behalf of the caveator, is what has been described as a caveat requiring proof in solemn form. This type of caveat is filed under Supreme Court Rules Pt 78, r 68.

4. [28]

   This type of caveat is, as the rule provides, one limited to where there is a “challenge [to] an alleged will on the ground that the will has not been duly executed”: Supreme Court Rules 1970 (NSW), Pt 78, r 68(1)(b).

5. [29]

   The long-standing practice of this Court is that a caveator seeking only proof in solemn form is limited to putting due execution in issue, and to cross examining the attesting witnesses in respect of that issue. The caveator is not entitled to raise other issues such as a lack of testamentary capacity, undue influence and fraud: Azzopardi v Smart (The Estate of Alice Ann Smart) (1992) 27 NSWLR 232 at 236D-238F; The Public Trustee v Mullane; Estate of Mullane (Supreme Court (NSW), Powell J, 12 June 1992, unrep) at 5. Such a caveat “does not confer on the Caveator some form of roving commission entitling him, even in the absence of evidence, to raise any, and every, ground of invalidity which may take his fancy”: Gurr v Harris, Re; Estate of Simmons (Supreme Court (NSW), Powell J, 18 September 1992, unrep) at 5.

6. [30]

   In an affidavit sworn on 30 March 2021, Mr S Petrovski, the caveator’s solicitor, stated that he had been “instructed to file a Caveat to prevent a grant on the basis that the deceased lacked testamentary capacity in respect of in [sic] particular Codicil and other documents and potentially other Wills executed” and that “I may have lodged the wrong Caveat and … I should have lodged a general Caveat”.

7. [31]

   It is clear that the caveator’s solicitor filed, and served, the wrong form of caveat as there was no dispute as to the formal validity of the 2017 Will or the 2018 Codicil.

8. [32]

   What is described as a “general caveat” is the appropriate form of caveat to raise a ground of invalidity of a will or codicil, other than because of a want of due execution. A general caveat is one filed under Supreme Court Rules, Pt 78, r 66.

9. [33]

   At the commencement of the hearing of the notices of motion, the applicants confirmed that they did not seek to raise, as an issue, the fact of the wrong caveat having been filed. Sensibly, and commendably, the legal representatives were prepared to proceed upon the basis that the caveat, in each case, filed by the caveator, should be treated as a general caveat.

10. [34]

    In addition, the Court enquired of the legal representatives of the different applicants whether any agreement had been reached regarding who would seek Probate of the 2017 Will and the 2018 Codicil whatever the result of the notices of motion. This matter was raised by the Court, even though it was not submitted, on behalf of the caveator, that the applications for probate would have to proceed by way of pleadings in circumstances where there was a dispute as to whom a grant of representation in respect of an estate should be made.

11. [35]

    The Court was informed, without objection, that the applicants on the notices of motion, who are all executors named in the 2017 Will, were in discussions and that it was anticipated that agreement would be able to be reached. The Court suggested that if agreement were reached, the caveator and the Court should be informed, so that, whatever the result of the notices of motion, the appropriate orders could be made. This can be done when these reasons are delivered.

12. [36]

    The hearing of the notices of motion proceeded remotely using Microsoft Teams, with each of the legal representatives being seen, and with each able to see the Court. Neither party sought to cross examine the deponent of any affidavit relied upon by the other.

The Law

1. [37]

   There was no dispute about the legal principles that should be considered. As stated, I have referred to some of the principles in Katalinic.

2. [38]

   Part 78 r 71 of the Supreme Court Rules, relevantly, provides:

3. [39]

   In this case, as the proceedings for a grant of Probate had been commenced, albeit by the executors separately, the matter proceeded, in each case, by way of notice of motion.

4. [40]

   It is clear from the rule referred to, that a caveator, relevantly, must show that:

5. [41]

   The onus is on the caveator to establish both elements to the satisfaction of the Court. Mere speculation will not suffice and a caveat should not be filed in the hope that some evidence on which it could properly be supported in court might turn up.

6. [42]

   In relation to (a), whilst the Supreme Court Rules provide that “a person” may lodge a caveat, probate litigation is conveniently called “interest litigation”. The purpose of requiring a caveator to have a relevant “interest” is to exclude meddlers and to reduce the risk of the estate facing the financial burden of unnecessary, and inappropriate, litigation, perhaps, by someone with limited, or no, funds available to meet any costs order that is made.

7. [43]

   In Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [49] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ), a unanimous High Court stated that a person will have a sufficient interest if she or he has a right which will be affected by the grant and that “[i]t is also legally erroneous to conclude that rights of low monetary value cannot amount to a legal interest”.

8. [44]

   The applicants made reference to Poulos v Pellicer; In the Estate of Culina [2004] NSWSC 504, in which Windeyer J had stated, at [15]:

9. [45]

   Although the caveator asserted in each caveat that the penultimate Will of the deceased is one made in 2010, the evidence reveals that the deceased's penultimate Will was made by her on 23 May 2016 (the 2016 Will). The caveator is a beneficiary named in that Will.

10. [46]

    The caveator does not dispute the validity of the 2016 Will. Nor do any of the applicants, but they assert that the 2016 Will was revoked by the 2017 Will and the 2018 Codicil.

11. [47]

    In this case, it was accepted by the legal representatives of the applicants that the caveator has an interest, being one under an earlier Will of the deceased, if the 2017 Will and 2018 Codicil is successfully challenged.

12. [48]

    In relation to the matter referred to in (b), the requirement has been referred to differently in the cases. For example, in Weinstock v Beck in the Estate of Weinstock [2007] NSWSC 193, Windeyer J wrote:

13. [49]

    A similar view was expressed by Bergin CJ in Eq in Konstantinou v Mazitelli [2010] NSWSC 576 at [19], where she referred to the necessity “to be satisfied that there is something that would cast doubt upon the validity of the will that is propounded”.

14. [50]

    In Peterson v Spartalis (Supreme Court (NSW), Hodgson J, 7 April 1995, unrep), Hodgson J , at 13, considered the question in the terms posed by the then rule (that is whether there is some matter occasioning doubt) and added that the general approach is the same as cases where the question posed was whether a prima facie case as to invalidity has been shown.

15. [51]

    In Nobarani v Mariconte, at [45], it was said that what was necessary to establish was “that [the caveator] had a prima facie case of a ground of invalidity upon which he relied”.

16. [52]

    In Katalinic, I described what would be required to be established as “there are circumstances that warrant investigation as would reasonably require the matter to proceed as a fully contested suit before the Court should consider making a grant of probate in respect of the will (a doubt as to whether the grant of probate or administration should be made)”.

17. [53]

    Ultimately, as the rule provides, the Court needs to be satisfied that there is “a doubt as to whether the grant of probate or administration should be made”.

18. [54]

    No attempt should be made to define, or explain, the word “doubt”. The word is self-explanatory. However, it is to be noted that there is no qualitative, or quantitative, word of limitation preceding “doubt”, setting the degree of the strength, or quality, (such as reasonable, or real, or substantive) of the “doubt”. Yet, common sense suggests that the doubt that is required should be more than fanciful, unreal, illusory, capricious, frivolous or conjectural.

19. [55]

    There is no way of measuring the doubt reached in any scientific fashion. What is simply required is a process of evaluation of all the available evidence in order to determine whether the Court is satisfied that there is a doubt as to whether a grant of probate should be made.

20. [56]

    As was written in Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 by Basten JA at [47] (albeit in the context of a final hearing):

21. [57]

    The hearing of the Summons, or notice of motion, to determine the question whether the caveat should cease to be in force, generally, will not be the appropriate forum for resolving genuinely disputed factual issues. Nor does the Court determine whether the evidence, in isolation or taken together, justifies an inference of testamentary incapacity. Instead, the question is simply whether the caveator’s evidence, if true, calls for further investigation, in this case, as to the testamentary capacity of the deceased. If so, resolution of the question of a lack of testamentary capacity is one for determination at a final hearing.

Background Facts

1. [58]

   I have taken the following facts from the affidavits as I consider that there is unlikely to be any substantial dispute about them:

The deceased’s Wills

1. [59]

   I have referred to the last two testamentary instruments of the deceased. She also left the 2016 Will, a Will dated 5 June 2012, a Will dated 18 April 2012 and the Will relied upon by the caveator, being a Will dated 3 March 2010. Clearly, as was accepted, the 2010 Will was not the penultimate Will of the deceased.

2. [60]

   A copy of each of the Wills of the deceased referred to, as well as a copy of the 2018 Codicil is in evidence. Each appears to have been duly executed. A reading of these Wills reveals that the deceased gave consideration to those people who appear to have had a claim on her bounty, including the persons named in the 2017 Will, albeit that the provision made for each may have changed over time. There appears to be a degree of continuity and consistency in the deceased’s testamentary intentions.

3. [61]

   Importantly, in Clause 3 of the 2018 Codicil, the deceased in all other respects confirmed the 2017 Will.

The facts relied upon by the caveator

1. [62]

   I shall refer to the caveator’s affidavit sworn 12 March 2021 in which the following facts, so far as are relevant, and apparently limited to events before each of the 2017 Will and 2018 Codicil was executed, are asserted as admitted into evidence:

2. [63]

   Rightly, the applicants submitted that the caveator’s evidence was vague and unspecific as to time. Had that been all of the evidence upon which the caveator relied, I would have concluded that it failed to satisfy me that there was a doubt as to whether the grant of probate should be made. However, that is not all of the evidence upon which the caveator relied.

The Medical Evidence

1. [64]

   The Death Certificate of the deceased, the Informant shown thereon being Graham, notes as the “Cause of Death and Duration of last illness”:

2. [65]

   A certificate of death issued by the Registrar of Births, Deaths and Marriages in New South Wales is admissible in legal proceedings as evidence of the entry to which the certificate relates, and the facts recorded in the entry: Births, Deaths and Marriages Registration Act 1955 (NSW), s 49(2).

3. [66]

   The 2017 Will and the 2018 Codicil are within the stated period of 4 years in relation to cerbrovascular disease.

4. [67]

   The caveator also relied upon an email dated 4 November 2020 from Dr Adrian Smith, who practises at Kingscliff Beach Medical. He was the general practitioner upon whom the deceased attended. The email is in the following terms:

5. [68]

   With no criticism intended, the contents of the email are somewhat abbreviated. The email says nothing about how the conditions which are noted affected the deceased’s capacity to make a Will or Codicil (or indeed, whether they did).

6. [69]

   Annexed to an affidavit sworn 29 March 2021 of Mr M Fraser, the solicitor for Jeffrey, is a copy of the Progress Notes from Kingscliff Beach Medical. Counsel for the caveator pointed to the following notes:

7. [70]

   The applicants, in each matter, relied upon a copy of a report dated 9 April 2018 of Dr Mohammed Khateeb, a Geriatrician and General Physician, that was annexed to an affidavit of Ms L J McPherson, solicitor, sworn 23 February 2021, which was a few days before the 2018 Codicil was executed. The report, which was addressed to Attwood Marshall Lawyers, the solicitors for Graham and Alicia, stated:

8. [71]

   This report not only deals with the conditions from which the deceased suffered, but also deals with her capacity to make a will. It is unlikely that the caveator will be able to challenge what occurred at the consultation with Dr Khateeb, and the author’s record thereof, although she may be able to challenge, in cross-examination, some of the opinions expressed in the report. In any event, the purpose for which the medical opinion was sought, and the context in which the medical assessment took place, are matters that may properly be explored, and examined, at a hearing.

9. [72]

   As was rightly pointed out by counsel for the caveator, medical evidence as to the medical condition of a deceased may be highly relevant, and, sometimes, may directly support, or deny, capacity in the deceased. But, ultimately, the determination of testamentary capacity is one made by the Court. This is a practical question which does not depend solely upon medical evidence but is to be determined holistically, by reference to all of the facts established in the case.

Determination

1. [73]

   I note that the 2017 Will and the 2018 Codicil are the last testamentary documents and that there is no dispute about the validity of the 2016 Will (other than its revocation by the 2017 Will).

2. [74]

   The evidence of the caveator herself, read in the proceedings, in my view, is of little weight. I accept the submission made that, for the most part, her evidence about conversations with the deceased were not time specific, were quite general and were somewhat vague. None of her evidence suggested irrationality in the deceased. Indeed, some of her evidence, arguably, demonstrates the deceased’s insight into the conditions from which she was then suffering.

3. [75]

   However, reading all of the evidence, results in me being satisfied that there is a doubt about the deceased’s condition which warrants investigation going to the validity of the 2017 Will and the 2018 Codicil on the basis of a lack of testamentary capacity.

4. [76]

   In particular, I note:

5. [77]

   Whilst the form of each testamentary document suggests that the deceased had the benefit of legal advice, there is currently no evidence about the circumstances in which the 2017 Will and the 2018 Codicil came to be prepared and executed. Although this is not a matter, necessarily, going to the issue of “doubt”, there is no evidence, given by the solicitor who drafted the 2017 Will and the 2018 Codicil. She, or he, presumably, would be able to give evidence of what had occurred when the deceased gave instructions for each of the relevant testamentary documents and when she executed each of them. This is relevant in light of what Dr Khateeb had written quoted above.

6. [78]

   Similarly, each of the attesting witnesses of the 2017 Will and the 2018 Codicil, who may have observed the deceased’s condition, at the relevant times, had not sworn an affidavit that was read on either notice of motion (and, therefore, was not able to be cross-examined).

7. [79]

   In the circumstances, I am satisfied that the matter will need to proceed by pleadings. I would, however, wish to make it clear that the conclusion reached should not lead the caveator to be unduly optimistic about her ultimate prospects of success. Nor should she think that she will, necessarily, be entitled to her costs out of the estate even if she loses the substantive case. It is important to reinforce that the practice of the Court in a case seeking a caveat cease to be in force is not to decide the ultimate issue as to the validity of the will or codicil. Naturally, I have not undertaken such an exercise, and being satisfied that a doubt exists should not be taken to imply any judgment as to how the doubt is likely to be resolved at a final hearing. I am simply satisfied, based upon the current state of the evidence, that the caveator has established, that the testamentary capacity of the deceased should be investigated.

8. [80]

   It should be understood that the Court has not formed any view of either party’s ultimate prospects of success. What has been stated is simply to ensure a caveator does not conclude that success in defending proceedings to have a caveat cease to be in force will automatically result in a costs order, no matter what the result of the case, after the evidence is complete and the final hearing concludes.

9. [81]

   In this regard, the principal effect of having any succession matter proceed to a final hearing, or until the matter is otherwise resolved, will be to delay a grant of probate and the due administration of the deceased’s estate.

10. [82]

    As I shall not order that the caveat cease to be in force, in respect of the application, the Court will give such directions as appear best adapted for the just, quick and cheap determination of proceedings on the application to be made.

11. [83]

    On the question of costs of the two notices of motion, counsel for the caveator tendered a copy of an email dated 31 March 2021 sent to the legal representative of each of the applicants (Ex C1). The email was in the following terms:

12. [84]

    It was submitted that had each of the applicants accepted this open offer, the costs of the hearing of the notices of motion would have been avoided.

13. [85]

    It is true that, had the offer been accepted, the hearing which, ultimately, took 2 hours, would have been avoided. However, I do not think that the making of the offer, and its rejection, should result in the applicants having to pay the caveator’s costs of the notices of motion.

14. [86]

    My reasons for coming to this conclusion are:

15. [87]

    In my view, the costs of the notice of motion should be the parties’ costs in the cause. Apart from anything else, some of the evidence relied upon is likely to be relied upon at a hearing. Furthermore, for the reasons set out, on balance, I am not persuaded that it was unreasonable of each applicant to reject the offer and to pursue their, or his application.

16. [88]

    I shall provide a copy of these reasons to the legal representatives involved in each notice of motion. The parties should confer upon the form of orders to be made and the directions that appear best adapted for the just, quick and cheap determination of proceedings on the application for the grant of Probate. They should provide short minutes of order, in hard and soft copy, for the Court’s consideration, by 4:00 p.m. on 21 April 2021. The matter is adjourned until 10 May 2021 for orders and directions as to continuation of the proceedings by pleadings to be made.