Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Battenberg v Phillips [2020] NSWCA 249 Hearing dates: 26 August 2020 Date of orders: 9 October 2020 Decision date: 09 October 2020 Before: Macfarlan JA at [1]; Meagher JA at [2]; Emmett AJA at [3] Decision: Order that: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondents on the ordinary basis. 3. The costs of the respondents on the indemnity basis be paid out of the Estate of Blanch Minnie Condon, except to the extent that the respondents recover costs from the appellant. Catchwords: SUCCESSION — Contested probate — Lack of knowledge and approval — Suspicious circumstances — Actual knowledge — Reading will aloud before execution — Sufficiency of evidence Cases Cited: Re Fenwick [1972] VR 646 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Category: Principal judgment Parties: Andrew Battenberg (Appellant) Bruce Keith Phillips (First Respondent) Robyn Ruth Price (Second Respondent) Representation: Counsel: D Allen (Appellant) C Harris SC (Respondents) Solicitors: Russo & Partners Pty Ltd (Appellant) Diamond Conway Lawyers (Respondents) File Number(s): 2020/62409 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Probate List Citation: [2020] NSWSC 19 Date of Decision: 30 January 2020 Before: Henry J File Number(s): 2017/33495 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] A woman died of an illness at the age of 86 in 2018 (the Testatrix). By a will made in 2016 (the 2016 Will), the Testatrix appointed the two respondents as her executors. The grant of probate of the 2016 Will was opposed by the Testatrix's nephew, the appellant, being the adopted son of the Testatrix's late brother. Before the Testatrix executed the 2016 Will, her earlier will made a legacy of $50,000 to the appellant. The 2016 Will removed the $50,000 legacy and provided that the residue of the estate be distributed equally between the respondents. By statement of claim, the appellant challenged the grant of probate, against which the respondents filed a cross-claim seeking orders that probate in solemn form be granted to them in respect of the 2016 Will. The statement of claim was dismissed by consent, but the appellant maintained his defence to the cross-claim. The relevant ground relied upon by the appellant was that the executors had failed to positively establish that the Testatrix knew and approved of the contents of the 2016 Will which was necessary because suspicious circumstances attended the execution of the 2016 Will. The complaint centred upon whether or not the Testatrix had read aloud the 2016 Will at the time of execution. A judge of the Equity Division ordered probate of the 2016 Will be granted in solemn form, finding that there was evidence that the Testatrix gave instructions for the preparation of the 2016 Will and that she read it over before executing it. Thus, there was satisfactory evidence that the Testatrix had actual knowledge of the 2016 Will. The appellant appealed claiming that the primary judge erred in making those findings and ought to have held that the totality of the evidence did not prove that the Testatrix knew and approved of the contents of the 2016 Will. The Court, dismissing the appeal (Macfarlan JA at [1], Meagher JA at [2], Emmett AJA at [34]), held: 1. The appeal turned upon a review of the circumstances in which the Testatrix instructed her solicitor and whether she read the 2016 Will aloud before executing it: [7]–[27]. 2. The primary judge did not err as the evidence firmly supported her Honour's conclusion that the Testatrix knew and approved of the contents of the 2016 Will: [28]–[33]. 3. The matters raised by the appellant disclosed no basis for concluding that the Testatrix did not read the 2016 Will aloud: [32]–[33]. Judgment 1. MACFARLAN JA: I agree with Emmett AJA. 2. MEAGHER JA: I agree with Emmett AJA. 3. EMMETT AJA: Introduction This appeal is concerned with a will made on 22 November 2016 (the 2016 Will) by the late Ms Minnie Blanche Condon (also known as Blanche Minnie Condon) (the Testatrix), who died on 13 December 2016 aged 86. By the 2016 Will, the Testatrix appointed the respondents, Mr Bruce Phillips and Ms Robyn Price (the Executors) as executors and trustees. The grant of probate of the 2016 Will was opposed by the appellant, Mr Andrew Battenberg, who is also known as Andrew Lee (the Appellant). 1. By cross-claim filed on 16 August 2017 in proceedings in which the Appellant sought relief concerning the 2016 Will based on an "irrevocable agreement" made in May 2006, the Executors applied for probate of the 2016 Will. The Appellant abandoned the claim based upon the irrevocable agreement, but the grant of probate was opposed by the Appellant in his amended defence to the cross-claim on the ground that, when the Testatrix placed her signature on the 2016 Will, she was not of sound dispositive mind, memory and/or understanding and, in the alternative, on the ground that the Testatrix did not know and approve the contents of the 2016 Will. If suspicious circumstances attend the execution of a will, those propounding that will must establish positively that the testator or testatrix knew and approved the content of the will. [1] 2. In his amended defence to the Executors' cross-claim filed on 28 February 2019, the Appellant particularised numerous alleged suspicious circumstances attending the execution of the 2016 Will by the Testatrix, of which the following eleven were pressed at hearing: 1. the 2016 Will was not prepared by the longstanding solicitor of the Testatrix but by Mr Aaron O'Rourke, who was a complete stranger to the Testatrix; 2. the Testatrix did not approach, ask or organise for Mr O'Rourke to attend upon her to take instructions for the drafting of a will and the introduction of the Testatrix to Mr O'Rourke was by Ms Robyn Price, one of the Executors, who is a beneficiary under the 2016 Will; 3. Ms Price was at the time acting as the carer of the Testatrix; 4. Ms Price organised the attendance with some urgency and prevailed upon Mr O'Rourke, contrary to his usual practice, to attend upon the Testatrix at her home; 5. immediately upon Mr O'Rourke being introduced, the Testatrix handed to Mr O'Rourke a will made by the Testatrix on 18 July 1997 (the 1997 Will), indicating that that was her last will; 6. at no time did Mr O'Rourke ask the Testatrix to identify herself and to verify that identification with a document such as a driver licence or a passport; 7. at no time did Mr O'Rourke seek to ascertain whether the Testatrix was oriented to time, place and person; 8. Mr O'Rourke refrained from making full and comprehensive notes of his interaction with the Testatrix; 9. Mr O'Rourke took instructions in the presence of and directly from Ms Price; 10. part of those instructions was that her long standing solicitor had retired when in fact he had not retired; 11. the Testatrix believed she kept important documents, including the 1997 Will, which she believed to have been her last, under her cat's bed. 1. On 30 January 2020, for reasons published on that day, a judge in the Equity Division (the primary judge) ordered that probate of the 2016 Will be granted to the Executors in solemn form and directed that the proceedings be referred to the Registrar to complete the grant of probate. By notice of appeal filed on 21 April 2020, the Appellant has appealed from these orders made by the primary judge. The grounds of appeal are that the primary judge: * erred in finding that the Executors had discharged the onus of proving that the Testatrix knew and approved the contents of 2016 Will; and * ought to have held that on the totality of the evidence the Executors had not proved that the Testatrix knew and approved the contents of the 2016 Will. The Execution of the Will 1. The question in the appeal turned on the circumstances in which the Testatrix gave instructions to Mr O'Rourke for the preparation of a new will. The evidence-in-chief before the primary judge on that question was given by affidavit. In his affidavit sworn on 2 November 2017, Mr O'Rourke said that, on the morning of 10 November 2016, he visited the Testatrix at her home and was greeted at the door by Ms Price, who took him inside and introduced him to the Testatrix. He said that the Testatrix said words to the following effect: "I want to do a new [w]ill. I have been meaning to do it for some time. Here is a copy of my existing [w]ill. I have marked up the changes that I want to make." 1. Mr O'Rourke said that the Testatrix then handed him a copy of the 1997 Will and he observed that the document had been marked up with annotations. Mr O'Rourke said that he then read through every line of the marked-up document with the Testatrix and that, as they did so, he personally handwrote his own notes in certain places. A copy of the document as marked up by the Testatrix and by Mr O'Rourke was in evidence before the primary judge. The Testatrix wrote in black and Mr O'Rourke wrote in blue. 2. In the appeal, the Appellant relied on certain changes made to cl 3 of the 1997 Will. The preamble to cl 3 was as follows: (emphasis original) "I GIVE, DEVISE AND BEQUEATH the rest and residue of my estate … UPON TRUST to sell, call in and convert the same into money … and out of the proceeds of such calling in, sale and conversion to pay my debts, funeral and testamentary expenses of every very kind and stand possessed of the same for the following: …" Sixteen legacies were then specified in cll 3(a) to 3(p). Clauses 3(q) and 3(r) then provided as follows (q) to the Royal Society for the Prevention of Cruelty to Animals, New South Wales, for the use and purposes of the said Society one half of the balance of my estate then remaining and the receipt of the Treasurer of the said Society shall be sufficient discharge to my Executor; (r) to the Stroke Recovery Association Inc. for its general purpose, the remaining one-half of my estate and I direct that the receipt of the Honorary Treasurer or Secretary of the Association shall be sufficient discharge to my Executor." 1. On the copy of the 1997 Will handed to Mr O'Rourke, the Testatrix had written above sub-cl (q) "200,000" and had ruled through the words "one half of the balance". Above sub-cl (r) the Testatrix had written "$20,000". She had not ruled through any part of sub-cl (r). Mr O'Rourke wrote underneath sub-cl (r) the words "remainder Robyn/Bruce". 2. In his affidavit, Mr O'Rourke said that, in relation to cl 3(q), the Testatrix said words to the following effect: "I want to give a gift to the RSPCA because I love cats. In fact, I used to show case them. I actually keep my [w]ill and all my important documents underneath the cat's bed." Mr O'Rourke said that, after an exchange about the wisdom of keeping documents under the cat's bed, the Testatrix and he had a conversation to the following effect: "O'Rourke: How do you want the residue of your estate to be distributed? Testatrix: I want the residue of my estate to go equally between Robyn and Bruce." Mr O'Rourke said that he then made the note underneath cl 3(r). 1. The Appellant draws attention to the fact that, whereas the words "one half of the balance" were ruled through in cl 3(q), the words "the remaining one half of my estate" remained intact in cl 3(r). The Appellant contends that that indicates some ambiguity in relation to the instructions given by the Testatrix to Mr O'Rourke. He contends that it is possible that the Testatrix intended that there be a legacy of $20,000 to the Stroke Recovery Association Inc as well as a gift of the remaining one half of her estate. 2. There is no substance in that contention. In the light of the evidence given by Mr O'Rourke in his affidavit concerning the circumstances in which the 2016 Will was actually executed, as set out above, it is quite clear that the Testatrix indicated that she did not wish any part of the residue to go to the Royal Society or the Stroke Recovery Association, but wanted one half to go to each of the Executors. 3. In his affidavit, Mr O'Rourke said that, on 22 November 2016, he went back to the Testatrix's house with the proposed new will and an appointment by the Testatrix of the Executors as enduring guardians. Mr O'Rourke was accompanied by his wife, Mrs Sally O'Rourke, who works part time at his firm and was to act as a second witness for the execution of the proposed will by the Testatrix. Ms Price was also present at the time. 4. Mr O'Rourke said that, when he pulled out the proposed new will, the Testatrix took it from him and put it on the table. He said that the Testatrix then read every single line of the proposed will out loud. After doing so, the Testatrix said words to the following effect: "That's a relief. I'm glad that [the Appellant] isn't in the [w]ill anymore." That was a reference to cl 3(c) of the 1997 Will, which gave a legacy of $50,000 to the Appellant in the following terms: (emphasis original) "(c) to my nephew ANDREW CHARLES ROBERT LEE – FIFTY THOUSAND DOLLARS ($50,000);" On the copy of the 1997 Will given by the Testatrix to Mr O'Rourke, the Testatrix had ruled through "DOLLARS ($50,000)" and wrote "Delete" in the margin against cl 3(c), and immediately under that annotation, Mr O'Rourke had written "no gift". 1. Mr O'Rourke said that after the signing of the document, the Testatrix said that she would like to keep it with her for safe keeping. Mr O'Rourke then handed the original of the 2016 Will to the Testatrix. 2. Mrs O'Rourke swore an affidavit on 29 September 2017 saying that her signature and Mr O'Rourke's signature were on the 2016 Will. She also said that, prior to the signing of the 2016 Will, the Testatrix, by hand, altered the spelling of the name of one of the legatees from "Maranda" to "Miranda". She said that she, Mr O'Rourke and the Testatrix each initialled that change in the margin. The Appellant points to the fact that Mrs O'Rourke did not say in her affidavit that the Testatrix read the 2016 Will out aloud. 3. Ms Price swore an affidavit on 12 April 2019, in which she said that, on 22 November 2016, she went to the home of the Testatrix at about 10.30 am and that, at about 11.30 am, Mr O'Rourke arrived with his wife. Ms Price said that Mr O'Rourke took a form of will out from his papers and said to the Testatrix: "I want you to make sure this will reflects all of the changes you wanted made to your will." Ms Price said that the Testatrix then read through the 2016 Will and that the only issue she raised when reading through the 2016 Will was that there was a minor spelling error in the name of one of the legatees. 1. Mr O'Rourke gave oral evidence and was cross-examined. He was asked whether it came to his attention that there was some conflict or inconsistency in the instructions that he had obtained from the Testatrix because cl 3(r) was inconsistent with his handwritten notation "remainder Robyn/Bruce". Mr O'Rourke did not accept that proposition and said that the Testatrix told him that she wanted to leave $20,000 to the Stroke Recovery Association. He agreed that one could give a specific gift of money and a gift of residue to the same legatee in a will but would not agree that there was inconsistency with the Testatrix saying I want to leave $20,000 and half of the residue to the Stroke Recovery Association, saying that that was not what the Testatrix told him she wanted to do. 2. It was then suggested to Mr O'Rourke that he did not go through the proposed will with the Testatrix. His response was "I most definitely did". He said: "I came in with the will, we sat down, I pulled the will out to read through it with her. She took it from me and we were sitting together and she read out every single - every single part of the will. And even picked up a typo." It was then put to Mr O'Rourke that, assuming the Testatrix read out every word in the document, he did not go through it with her and explain it to her. His response was "yes I did". He was then asked whether he would agree that he could not satisfy himself that the Testatrix understood the gifts she was making in her will by the mere fact that she read the document aloud. Mr O'Rourke's response was: "I'm completely convinced that she knew what was in her will". Mr O'Rourke's attention was then directed to cl 3 of the 2016 Will and he was asked the following question: "Can you read out in exactly the same manner, as best you can, as [the Testatrix] did, can you do that, please? Mr O'Rourke, can you please do it?" 1. Mr O'Rourke's response was as follows: "Yep. Well she probably – I don't know how she read it out, she just read it out." Mr O'Rourke was asked whether the Testatrix was softly spoken. His response was "but forceful". When asked again whether the Testatrix was softly spoken, Mr O'Rourke's response was "not particularly, that I recall." The cross-examiner then said to Mr O'Rourke that his attention had been directed to the wrong document. He was then taken to the correct document and asked to read out cl 3 of the 2016 Will and asked: "Could you read out cl 3 this time as if [the Testatrix] was reading it out". Mr O'Rourke's response was: "'I give to' - I don't know how she read it out." 1. The Appellant relies heavily on those responses from Mr O'Rourke and contends that the fact that he responded that he did not know how the Testatrix read out the will indicates that some doubt should be attached to his evidence that the Testatrix in fact read the will out aloud. However, significantly, it was not suggested to Mr O'Rourke that he was not telling the truth or that he was mistaken in his evidence that the Testatrix read the 2016 Will out aloud. It is also significant that counsel for the Appellant, on the hearing of the appeal, accepted that, if the Court accepts that the Testatrix read the 2016 Will, the appeal must fail. 2. The reliance by the Appellant on Mr O'Rourke's failure to read out the document, as the Testatrix read it out, is misconceived. It is not apparent whether Mr O'Rourke was being asked to read in a voice like the Testatrix and it is quite clear that he did not understand the question that he was asked. All he could have done in response was simply to read the words of the document and it is difficult to know how the primary judge would have been assisted by Mr O'Rourke simply reading the words of the document. 3. Another factor that firmly supports the conclusion by the primary judge that the Testatrix knew and approved of the contents of the 2016 Will is the evidence as to her attitude towards the Appellant. Mr O'Rourke, in his affidavit, said that the Testatrix told him, when he asked about the Appellant receiving a gift, that she did not want the Appellant to receive any gift and wanted him out of her will and did not want the Executors to have to deal with him. In addition, after the Testatrix had read through the proposed new will, her only comment, according to Mr O'Rourke, was to say: "That's a relief. I am glad that Andrew isn't in the [w]ill anymore." 1. In cross-examination, Mr O'Rourke confirmed that the Testatrix said that she did not want to leave the Appellant anything in her will and that the main purpose of making a new will was "to take him out". Mr O'Rourke said that the Testatrix told him that the Appellant was not a trustworthy person and did not want the Executors to have anything to do with him. Mr O'Rourke agreed that the Testatrix's most pressing problem or desire on 22 November 2016 was to exclude the Appellant from her will. 2. Ms Jill Rowston provided physiotherapy treatment to the Testatrix. Ms Rowston visited the Testatrix twice a week in her last five or six years and over the years they became good friends. In her affidavit of 15 November 2018, Ms Rowston said that in various conversations the Testatrix mentioned the Appellant as the adopted son of her brother and sister-in-law. Ms Rowston said that, on several occasions, the Testatrix said that: "My brother left his wife and children in a good financial position when he passed away. Andrew has gone through all of that money." 1. She told Ms Rowston that she did not trust the Appellant. Ms Rowston also said that in mid-2016, the Testatrix told her that she was going to see a lawyer to change her will and that she did not want the Appellant in her will. Ms Rowston confirmed in cross-examination that the Testatrix told her that she wanted to change her will to leave the Appellant out of her will. The Testatrix Knew and Approved the Will 1. Where due attestation of a will is proven, there is a presumption of knowledge and approval, on the part of the testator or testatrix, of the contents of the will at the time of execution. However, that presumption may be displaced by circumstances that relate to the preparation or execution of the will or its intrinsic terms, which create a well-grounded suspicion or doubt as to whether the will expressed the mind of the testator or testatrix. Once the presumption is displaced, the proponent of the will must approve affirmatively that the testator or testatrix knew and approved of the contents of the will. 2. In assessing whether the Testatrix knew and approved of the contents of the 2016 Will, it is significant that she observed that there was no gift to the Appellant. The 2016 Will contained 16 legacies of varying amounts and it is clear that the Testatrix read and comprehended that detail. There is no reason to doubt that she also understood the final gift in cl 3 as comprising the remainder of her estate to the Executors equally as tenants-in-common. 3. The Appellant argued that it was significant that, in his evidence-in-chief, Mr O'Rourke did not give any evidence concerning cl 3 of the 1997 Will and gave no evidence of having explained to the Testatrix what a gift of residue meant and that Mr O'Rourke left the first meeting with the Testatrix without clarifying her instructions concerning cl 3(r) and the asserted ambiguity. The Appellant pointed out in his submissions that Mr O'Rourke was asked about cl 3(r) and responded that the Testatrix told him that she wanted to leave $20,000 to the Stroke Recovery Association. However, Mr O'Rourke did not go on to say anything about the wishes of the Testatrix in relation to the residue and the Stroke Recovery Association. 4. On the other hand, Mr O'Rourke gave oral evidence that he explained what residue meant and his evidence-in-chief that the Testatrix told him that she wanted the residue to be split equally between the Executors was not challenged in cross-examination. Further, he was challenged in cross-examination as to whether he ought not to have taken instructions while Ms Price was present. 5. The primary judge observed that where a will has been read by or to a deceased, the presumption that the testator knew and approved of the will is a very strong one and can be rebutted only by the clearest evidence. Her Honour considered that the matters relied upon by the Appellant could not, in her view, be described as clear rebuttal evidence. [2] Her Honour accepted that there was evidence that the Testatrix gave instructions for the 2016 Will and that it was read over by her before she executed it on 22 November 2016. Her Honour concluded that that was the most satisfactory evidence of actual knowledge of the 2016 Will. [3] 6. The Appellant asserts that there was insufficient evidence to support the conclusion that the Testatrix read the entire document before signing it and that there is doubt concerning her intentions in relation to the Stroke Recovery Association. I do not consider that there is any basis for concluding that the Testatrix did not read the whole of the 2016 Will out aloud. The evidence before the primary judge clearly justified a firm conclusion that the Testatrix knew and approved of the contents of the 2016 Will. Conclusion 1. It follows that the appeal must be dismissed. The appellant should be ordered to pay the costs of the Executors on the ordinary basis. The costs of the Executors on the indemnity basis should be paid out of the estate of the Testatrix, except to the extent that the Executors recover costs from the appellant. ********** Endnotes 1. Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [46] (Meagher JA; Basten and Campbell JJA agreeing). 2. See Re Fenwick [1972] VR 646 at 651. 3. See Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [47] (Meagher JA, Basten and Campbell JJA agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2020