Reported Decision : 50 NSWLR 81 New South Wales Supreme Court CITATION : Miller v Miller; Estate Paul Lindo Miller [2000] NSWSC 767 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 111171/97 HEARING DATE(S) : 24/07/2000 JUDGMENT DATE : 2 August 2000 Julia Elizabeth Miller (P) PARTIES : John Paul Miller (D1) Madeline Rose Miller, Chloe Patricia Miller and Jack Paul Miller (D2) JUDGMENT OF : Young J P O'Loughlin (P) COUNSEL : M Willmott (D1) M Lilienthal (D2) Phillip J Rowland (P) SOLICITORS : Eric Butler (D1) Michael Clarke & Associates (D2) CATCHWORDS : SUCCESSION [106]- Application by attesting witness to take beneficially under will- How approached- Suspicion discharged on facts- Application granted. LEGISLATION CITED : Wills Probate and Administration Act, 1898, s 13 Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089 Campbell v Beaufoy (1859) Johns 320; 70 ER 445 Re Emanuel [1981] VR 113 Re Fenwick [1972] VR 646 Re Hodges (1988) 14 NSWLR 699 CASES CITED : Holdfast d Anstey v Dowsign (1746) 2 Strange 1255; 93 ER 1164 Re Horrocks [1939] P 198 Nock v Austin (1918) 25 CLR 519 In re Priest [1944] Ch 8 Re Royce's Will Trusts [1959] Ch 626 Whicker v Hume (1858) 7 HLC 124; 11 ER 50 Wyndham v Chetwynd (1757) 1 Wm Blacks 95; 96 ER 53 DECISION : See para 34 THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST YOUNG J WEDNESDAY 2 AUGUST 2000 111171/97 - MILLER v MILLER; ESTATE PAUL LINDO MILLER JUDGMENT 1 HIS HONOUR: The present case appears to be the first occasion when this Court has been called upon to consider the amendments made to s 13 of the Wills Probate and Administration Act, 1898 ("the Act") in 1989 in order to deal with beneficiaries witnessing wills. At the end of the oral hearing on 24 July 2000 I made appropriate orders, but considered that I should deliver detailed reasons at a later time. I now do so. The Facts 2 The basic facts are very simple. The plaintiff, Julia Elizabeth Miller, was the de facto wife of Paul Lindo Miller (the "deceased") who died on 27 February 1997. On 29 January 1996 the deceased, the plaintiff and some friends were at Cairns Airport shortly before the deceased and two friends were to fly to Papua New Guinea to walk the Kokoda Trail. There was talk the previous day and early that day about the deceased making his will. The parties purchased a will form at a newsagent in Cairns. As the luggage was being unloaded from the car to be checked into the aircraft, the plaintiff, at the deceased's direction, filled in the will form on the bonnet of the car. The plaintiff asked the deceased how he wished to leave his estate. The deceased said that the plaintiff was to take the whole estate. The plaintiff knew from previous conversations with the deceased whom he wished to have as his executors and she wrote their names in the appropriate place on the form. 3 The plaintiff also knew that the deceased wished to give $30,000 to his eldest son, John on John's 26th birthday. She said, "What about the money for Johnny?", to which the deceased replied, "I'll leave that to you". She thus made no provision for John in the will. 4 The deceased appeared to read the will and then signed it. At least two different pens were used to write on the document. The attesting witnesses to the will are the plaintiff and Mr Michael Cardiff. The witnesses have provided affidavits verifying their signatures and the signature of the deceased. 5 The will produced to the Court bears date 29 January 1996. By that will, the deceased purportedly left the whole of his estate to the plaintiff. The will appoints Stephen Clark and Graham Botham executors. Both executors have renounced their rights to probate under the will. Thus by her summons filed on 1 August 1997, the plaintiff seeks administration with the will annexed of the deceased's estate. 6 I should note here, in passing, that this case is an excellent example as to why the Court must always have the original will. The witnesses could not remember whether they all used the same pen or different pens. The original, though not the photocopies, show clearly that more than one pen was used. In many cases (though not this present case), such an occurrence can show that there is doubt as to whether there was due execution by the testator and the witnesses being present at the same time. The Proceedings 7 Doubts arose as to the plaintiff's entitlement to such a grant because she was an attesting witness to the will. The persons who would be entitled in distribution of the estate of the deceased on an intestacy are the plaintiff, and the four children of the deceased (three of whom are minors). Following requisitions from the Probate Office, citations were issued to the children who appeared. The oldest child, John Miller, who is 19 years old, is the first defendant in these proceedings. A tutor was appointed for the minor children, who are children of the deceased and the plaintiff, and they are treated as the second defendant. The children have refused consent under section 13(2)(b) of the Act and the plaintiff therefore seeks to have the validity of the will and the gift to her upheld under section 13(2)(c). 8 At the hearing, Mr O'Loughlin of counsel appeared for the plaintiff, Mr Willmott of counsel for the first defendant and Ms Lilienthal of counsel for the second defendant. 9 The plaintiff was cross-examined by the defendants' counsel. Mr Willmott was satisfied when he established that the plaintiff had in fact acknowledged a secret trust and had actually put aside $30,000 to be paid to the first defendant on his 26th birthday. Mr Willmott thereafter did not vigorously oppose the order sought. However, Ms Lilienthal, doubtless in her zeal for the rights of the minor children strongly opposed her clients' mother obtaining the estate under the will. She submitted that on the evidence, there was insufficient evidence to show that the deceased knew and approved of the contents of the will or that s 13 (2) (c) of the Act was satisfied. The applicable law 10 An initial question arose as to whether the NSW Act applied as the will was made in Queensland. This is a significant question as the Queensland law was not amended to liberalise the law as to gifts to attesting witnesses. However, after a little thought this became a non-issue, for two reasons. First, if the question was one of formal validity, the effect of s 32C of the Act would make NSW law applicable. Secondly, if the matter was one of essential validity, the matter is governed by the law of the domicile at the time of the testator's death as to movables, and by the lex situs as to immovables (Nygh, Conflicts of Law in Australia, 56h edition, Butterworths, Sydney, 1995, p571) and see Whicker v Hume (1858) 7 HLC 124; 11 ER 50 and Campbell v Beaufoy (1859) Johns 320; 70 ER 445. It is quite clear, however, that such matters are classified as "essential validity"; see In Re Priest [1944] Ch 8. In the present case, the deceased was domiciled in NSW at the time of his death and his assets (both movables and immovables) are also in NSW. The question of essential validity regarding the gift to his de facto wife is therefore to be determined according to NSW law. The Principal Question 11 Section 7(1) of the Act requires that the signature of the testator on a will is made in the presence of two or more witnesses present at the same time, or the signature is acknowledged by the testator in the presence of two or more witnesses present at the same time, and that at least two of those witnesses attest and sign the will in the presence of the testator. 12 So far as is relevant, section 13 of the Act provides - "13. (1) If any beneficial gift is given or made by will to a person (in this section called 'the interested witness') who attests the execution of the will or to the interested witnesses spouse, the gift is void so far only as it concerns the interested witnesses or the interested witnesses spouse or any person claiming under either of them, unless subsection (2) applies. (2) A beneficial gift given or made by will is not made void by this section if - (a) at least 2 persons who attest the execution of the will are not persons to whom any such gift is so given or made or the spouses of any such persons; or (b) all the persons who would benefit directly from the avoidance of the gift consent in writing to the distribution of the gift according to law (all those persons having capacity at law to do so); or (c) the Court is satisfied - (i) that the testator knew and approved of the gift; and (ii) that the gift was given or made freely and voluntarily by the testator." 13 The present section 13 was inserted into the Act in 1989, giving effect to the recommendations of the New South Wales Law Reform Commission (NSWLRC) in Chapter 8 of it's report "Wills - Execution and Revocation" (1986). Particularly, subsection 2(c) represents a major departure from the old law regarding interested witnesses. Historical Background 14 The previous section 13 of the Act provided - "(1) where any beneficial gift is given or made by will to a person who attests the execution of the will or to his spouse the gift shall be void only so far as concerns him or his spouse or any person claiming under either or them; but the person so attesting shall be admitted as a witness to prove the execution of the will or to prove the validity or invalidity of the will, notwithstanding the gift. (2) Subsection (1) does not apply to a gift in a will made by a person while he is a privileged testator. (3) In this section 'gift' includes a devise, legacy, estate, interest or appointment of or affecting any real or personal estate, but does not include a charge or direction for the payment of any debt." 15 This section was based on section 15 of the English Wills Act 1837. The rationale for that section came from the old evidence law regarding competency of witnesses. Section 5 of the Statute of Frauds 1677 provided that "all devises...shall be attested by three or four credible witnesses; or else they shall be utterly void and of no effect". "Credibility" was determined according to the rules of evidence, and until the mid-nineteenth century, evidence affected by interest was inadmissible. Thus, if a witness was "interested", for example by being a beneficiary under the will, then he or she was not a "credible witness" and his or her signature could render the will invalid: see Holdfast d Anstey v Dowsing (1746) 2 Strange 1255; 93 ER 1164. Up until that case, credibility was assessed at the time of application for grant, so that a witness could renounce a gift and so save the will; see Yale "Witnessing Wills and losing Legacies", (1984) 100 LQR 454. However, Anstey's case ruled that the true time for credibility then was the time of attestation. 16 This view as to the time when the witness must be disinterested has been followed ever since. Thus, in Re Royce's Will Trusts [1959] Ch 626, a gift was not affected where, at the time of witnessing the will, the witness was not beneficially entitled under it, but, by reason of later events, he was beneficially interested at the time of the grant. 17 The consequence of Anstey's case was that legislation was needed. This was drafted by Lord Hardwicke and became the Witnesses to Wills Act (UK) 1752. Professor Yale, in his article at p 454 et seq, sets out Lord Hardwicke's letter to the Lord Chancellor of Ireland explaining the measure and its necessity. In short, the 1752 Act enabled an interested witness to give evidence as to signatures on the will because any gift to that witness was invalidated. 18 The rules of evidence were reformed in the 19th century to remove the rule that a witness was incompetent to give evidence by reason of interest. However, after review of the law of wills by the Real Property Commissioners in 1833, it was decided to retain the provision that gifts to witnesses should be void. Thus, the provision remained in the Wills Act 1837 which basically re-enacted the 1752 Act (although it extended certain provisions). The rationale for keeping the rule was revised, and it was held that if a witness or witnesses spouse was allowed to take a benefit under a will, an opportunity for undue influence would arise. 19 It may be a little bold to state the law at this time so definitely. It is clear, as Professor Yale's article shows, that there were two schools of thought, one from the common lawyers and the other from Doctor's Commons where the probate law was administered. Further, the Statute of Frauds only applied to wills of land, not to testaments of personalty. Again, common lawyers such as Lord Mansfield preferred the Doctor's approach, see eg Wyndham v Chetwynd (1757) 1 Wm Blacks 95, 100; 96 ER 53, 55. However, what has been set out above is, I trust, a fairly simple summary of the prevailing view as to the history of s 13 of the Act. The 1989 Amendments 20 Although the NSWLRC therefore recommended in 1989 that the then current form of section 13 should be repealed, it considered that "the law of wills should retain a provision which will tend to protect testators by requiring interested witnesses to establish the propriety of their gift unless relieved by the written consents of the persons entitled to benefit from the avoidance of the gift" (p3 of the Report). The result was the present s13. Section 13(2)(c) 21 I now turn to consider section 13(2)(c) of the Act. Under this subsection, a gift to a person who attests the execution of a will is not void if the Court is satisfied that the testator knew and approved of the gift and gave or made it freely and voluntarily. Both these conditions must be satisfied. As far as my research and the research of counsel has gone, there have been no cases decided on the new section 13(2)(c). There are however some guiding principles. 22 In Victoria, the corresponding section allows the Supreme Court to nullify the effect of the interested witness rule vitiating a gift if the witness proves (a) that the witnesses entitlement was known to and approved by the testator (without the aid of any evidentiary presumption); and (b) that the provision was not included in the will by any undue influence. The Victorian provision was construed in Re Emanuel [1981] VR 113. Jenkinson, J, at page 118, approached the case as one where the beneficiary needed to allay the suspicion that was engendered by the circumstance of witnessing the will and that the Court in such circumstances needs to be vigilant and jealous in its scrutiny (see Barry v Butlin (1838) 2 Moo PC 480, 482-6; 12 ER 1089, 1090-2). However, at page 119, His Honour said that one must approach these cases sensibly, remembering that the degree of suspicion varies with the circumstances, and made the appropriate order for the witness to take his gift. 23 The NSW section deliberately does not refer to undue influence. In its report, the NSWLRC was of the view that a propriety test which was limited to undue influence, as it is in some jurisdictions, as that concept is understood in probate matters would give virtually no protection. This is due to the difficulty there is in proving a case of undue influence because there are no presumptions of influence in relation to will making. Because of this, the NSWLRC recommended that the beneficiary should have to satisfy the Court positively that the gift was made or given freely and voluntarily by the testator, which requires one to go further than merely negating undue influence. 24 Ms Lilienthal submitted that the Court needed to apply the "vigilant and jealous" test and that it had not been satisfied. 25 I consider that the general approach taken by the Victorian Court in Re Emanuel is a sound one to follow. Indeed, it follows the same route as a Court would follow if a will was prepared by the principal beneficiary; see Nock v Austin (1918) 25 CLR 519. One starts with suspicion. That suspicion may be deep or surface, depending on the circumstances. The onus is on the claimant to establish by proper evidence that the testator did indeed know that he or she was making a gift to the witness and that the gift was a free and voluntary one. 26 NSW law does not exclude from consideration the normal presumptions that apply when a court is considering whether or not to grant probate. Indeed the NSWLRC quite correctly expressly rejected that suggestion as making it impossible to prove knowledge and approval if a long period of time elapsed between execution and application for grant of probate. 27 The applicable presumptions are that due execution of a will is ordinarily sufficient to raise a presumption that the testator knew and approved of the contents of the will: Barry v Butlin (1838) 2 Moo PC 480, 12 ER 1089, Re Horrocks [1939] P 198 at 216, Re Hodges (1988) 14 NSWLR 699 at 705. That presumption is strengthened if it is shown that the will was read over to or by a capable testator: see Re Fenwick [1972] VR 646 and Re Hodges. 28 However, in this case, the evidence goes beyond the need for relying on the presumption. Although Ms Lilienthal established in her cross-examination that nobody could positively assert that the deceased had actually read the will, all the surrounding circumstances permit no other inference. The deceased and the plaintiff were writing on the will form while leaning on the bonnet of a car in a car park. Both attesting witnesses, and another person who was present when the will was signed, Mr Hodges, gave evidence to the fact that at the time the will was prepared and signed, the deceased was looking at the document, writing on it, calmly talking about it with his defacto wife and that he signed it. The deceased was 48 years old when the will was made, and no question was raised as to his capacity. The will was duly executed, and the probability is that the deceased did read the will before he signed it. 29 Thus, I am satisfied that the deceased knew and approved of the gift contained in the will. 30 The second limb of section 13(2)(c) requires that the will was made "freely and voluntarily". The NSWLRC pointed out that "We are indebted to the late Mr Justice Hutley for the formulation of the last mentioned requirement. We recognise that the second limb of the test almost certainly encompasses the first, but feel that it is appropriate that the two stages of the road to propriety should be clearly signposted." 31 I consider that the second limb really emphasises the requirement that the testator freely assented to the gift rather than raise any additional barrier to the success of a claim by a witness. If there is a further barrier, that barrier is not very high. 32 In the instant case, one starts with suspicion. However, it is a low degree of suspicion. There is no evidence to show that there was any disagreement between the plaintiff and the deceased as to the contents of the will. There appears to have been no disharmony or conflict between the plaintiff and the deceased. The deceased asked Mr Cardiff to be a witness together with the plaintiff. The evidence of the witnesses, together with the evidence of Mr Hodges who was present when the will was signed although not an attesting witness, indicates that there was nothing suspicious about the circumstances of execution of the will. There was no pressure being put on the deceased regarding the will. The will was just the sort of will that one would expect a man with a permanent de facto wife with two young children (the third was born subsequently) might make. 33 I am satisfied on the evidence that the gift to the plaintiff was made freely and voluntarily. 34 As I was satisfied as to the requirements of section 13(2)(c) of the Act I made the following orders on 24 July 2000 - (1) Order that administration with the will annexed of the estate of the late Paul Lindo Miller be granted to the plaintiff. (2) Refer the matter to the Registrar to complete the grant. (3) Make declaration 2(a) and 2(b) in the summons of 1 August 1997. (4) Order that the plaintiff pay the costs of the defendants. ****************** Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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