Page v King Re Estate of Reuben [2001] NSWSC 983

New South Wales Supreme Court

CITATION : Page v King Re Estate of Reuben [2001] NSWSC 983 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 106630 of 2000 HEARING DATE(S) : 6 August 2001 JUDGMENT DATE : 6 August 2001

Geoffrey Francis Page (Plaintiff) Alan Grenville King (First Defendant) PARTIES : Kenneth Victor King (Second Defendant) Suella Lesley Clayton (Third Defendant) John Stuart Mair (Fourth Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr J B Whittle SC with him Mr B J Burke (Plaintiff) Mr P Hallen SC (Defendants) SOLICITORS : Mason Lawyers (Plaintiff) Teece Hodgson Ward (Defendants) DECISION : See paragraphs 19 to 24

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IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

MONDAY 6 AUGUST 2001

106630/00 GEOFFREY FRANCIS PAGE v ALLAN GREVILLE KING & ORS RE ESTATE OF REUBEN

JUDGMENT

1 HIS HONOUR: In this matter it has been agreed that Probate should be granted of a will dated 8 September 1977 of the deceased Florence Catherine Reuben who died on 27 November 1998 and that a will purported to have been made by the deceased on 7 May 1992 should not be admitted to Probate. 2 3 The plaintiff, Mr Page, by Statement of Claim filed on 7 September 1999 sought a Grant of Probate in Solemn Form of the later will. 4 5 By Amended Defence filed on 15 May 2000 by the defendant Mr King, the defendants put in issue due execution and claimed want of knowledge and approval, and also claimed that the testatrix did not have testamentary capacity at the time the later will was made. 6 7 By cross-claim, the first defendant sought Probate of the earlier will. 8 9 While I consider that a defence of forgery can be raised under a denial of due execution, it is fair to say that it is not an appropriate pleading unless the basis of the denial is set out. It is, in my view, quite inappropriate to deny due execution and then to claim forgery without making that perfectly clear in the defence. Nevertheless, there can be no doubt that at least by the end of last year the plaintiff was well aware that an allegation was being made that the deceased did not sign the document which the plaintiff propounds for Probate. He, of course, has given evidence on affidavit that she did and there are affidavits of two attesting witnesses, which I should say are not particularly strong but which would nevertheless give some support to the authenticity of the document. 10 11 It has been put to me that I should assume in the absence of expert evidence in response to the expert evidence of the cross-claimant, that it is more probable than not that the second will is a forgery. However, I do not think that case could be said to have been made out for the purpose of the only question which is before me, being the question of costs. 12 13 By Notice of Motion the plaintiff has sought to discontinue his claim but seeks an order that his costs be paid out of the estate. As it is accepted now that a Grant of Probate will be made of the earlier will but in common form and that the proceedings under the Statement of Claim should be dismissed, it is agreed that there is really no purpose in proceeding with the Notice of Motion because precisely the same issue as to costs would arise either on the Notice of Motion or on the orders which I am asked to make by consent. 14 15 The question then is whether or not Mr Page should have an order for his costs out of the estate or perhaps that the parties should pay their own costs or as sought by the defendant/cross-claimant that an order be made that Mr Page pay the costs of the proceedings. 16 17 Mr Page decided to discontinue having obtained medical evidence which made it more likely than not that it would be found that the deceased lacked testamentary capacity when the 1992 will was made. 18 19 It should be pointed out that at that stage he was aware that a guardianship order had been made in respect of the deceased and at the time the will was made she was living in his house for a short stay. 20 21 It is put that on that basis either Mr Page should have realised that it was unlikely it would be found that the deceased had testamentary capacity or that at least at an earlier stage he should have obtained some medical evidence as to this fact so that he could satisfy himself whether or not it was appropriate that the proceedings should be brought claiming Probate of the later will. 22 23 On the other hand, his counsel says that even if an application had not been made for Probate of the later will, the cross-claimant would have been required to bring that will to the attention of the Court and there would have had to have been at least some limited determination as to whether or not that will was a valid will. Having said that, unless somebody sought to uphold the later will, it would be unlikely that the Court would have come to the conclusion that it was valid. 24 25 Costs in probate matters are always difficult. One should not discourage applicants from bringing before the Court wills as to which there may be some doubt as to validity if they are at total risk as to costs in bringing the matter forward. Thus, it is generally said that if the problem has been brought about by a testatrix herself then an executor named in the problem will should not have to bear the costs of putting forward that will which result from the action of the testatrix making the will. 26 27 On the other hand, there needs to be some limit to this and plaintiffs ought not to be allowed to think that as an executor named in the will they can put forward a will without being at any risk as to costs and perhaps without the necessity of obtaining some indemnity from the beneficiaries who would benefit under the will in question. 28 29 It seems to me that in this case where there was so much doubt about the validity of the will that fault cannot be placed at the feet of the testatrix. 30 31 On the other hand, I do not think that it is a matter where it would be appropriate to make an order that Mr Page pay the costs of the defendant and the cross-claimant. 32 33 Balancing the matters I have referred to, it seems to me that this is one of the cases which fall in the middle and that the appropriate order would be that there be no order as to costs and the parties pay their own costs. 34 35 So far as the cross-claimant Mr King is concerned, he should have an order that the costs of the cross-claim be paid out of the estate of the deceased. 36 37 I order that subject to the requirements of the rules, and the satisfaction of the Registrar, Probate in Common Form of the will dated 8 September 1977 of Florence Catherine Reuben, deceased, be granted to Allan Greville King, executor named therein. 38 39 Order the Statement of Claim be dismissed. 40 41 No order as to costs as to the plaintiff, cross-defendant and the second, third and fourth defendants. 42 43 Order that the costs of the first defendant/ cross-claimant be paid out of the estate of the deceased on the indemnity basis. 44 45 The exhibits other than Exhibit 1 can be returned. 46 Notice of Motion filed on 18 July 2001 be dismissed with no order as to costs. **********