Newnham v Wakefield [2002] NSWSC 1152

New South Wales Supreme Court

CITATION : Newnham v Wakefield [2002] NSWSC 1152 revised - 03/12/2002 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 113462 of 2001 HEARING DATE(S) : 25 November 2002 JUDGMENT DATE : 2 December 2002

Phyllis Margaret Newnham (Plaintiff) PARTIES : Jean Wakefield (First Defendant) Phyllis Johnson (Second Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Miss J M Sandford (Plaintiff) Ms S Foda (Defendants SOLICITORS : Judith Sutton & Associates (Plaintiff) Hilton King Solicitors (Defendants) CATCHWORDS : SUCCESSION - WILLS PROBATE AND ADMINISTRATION - pleadings - whether the defendant is required to plead particulars of fraud where fraud is not a necessary component of the cause of action or the defence LEGISLATION CITED : Wills Probate and Administration Act 1898 s13 Guardhouse v Blackburn (1866) LR 1 P & D 109 Kenny v Wilson (1911) 11 SR NSW 460 CASES CITED : Nock v Austin (1918) 25 CLR 519 Re Hodges, Shorter v Hodges (1988) 14 NSWLR 698 Mason and Handley Wills Probate and Administration Service (New South Wales) 6081 DECISION : See paragraph 19

- 9 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

WINDEYER J

MONDAY 2 DECEMBER 2002

113462/01 PHYLLIS MARGARET NEWNHAM V JEAN WAKEFIELD & ANOR IN THE ESTATE OF FLORENCE EVELYN MATHER JUDGMENT 1 This judgment deals with a notice of motion of the plaintiff seeking orders that certain paragraphs of the amended defence be struck out or, in the alternative, that the defendants provide particulars requested by letter on 19 September 2002. Background 2 It is necessary to give some background as the action has had a difficult history and as far as I can determine is still not under control. The plaintiff in the proceedings seeks to have admitted to probate a copy of an informal will. It is alleged by the plaintiff that the original document was witnessed by one person only, namely the plaintiff. The plaintiff's claim is that the original document was partly destroyed when eaten by a dog. 3 As the plaintiff's claim is that the document propounded was witnessed by her, and she is the residuary beneficiary, s13(2)(c) of the Wills Probate and Administration Act 1898 becomes relevant. The necessary notices have been served. There is evidence that the deceased made a will on 1 December 1995, appointing the Public Trustee as executor. Mrs Johnston, the deceased's sister, took a legacy of $10,000 under that will. The deceased's niece, Jean Wakefield, who is the first defendant, took the residue. The RSPCA took a legacy of $20,000 under that will, but received a much greater benefit under the propounded document. 4 There is no cross-claim for probate of the 1995 document. There is no doubt that the defendants have an interest in contesting the plaintiff's claim but it would be desirable for them to cross-claim seeking a grant to the Public Trustee of the 1995 document. The Public Trustee has been given the necessary notice of the s18A claim, but has not filed an appearance. The Guide Dogs Association of New South Wales and the A.C.T., would need to be cited if such a cross-claim were filed. 5 The action was originally fixed for hearing before Palmer J on 8 August 2002. The defence, dated 7 March 2002, was not a good pleading, but unfortunately neither was the statement of claim. 6 Paragraphs 2, 3 and 4 of the statement of claim are as follows: 2. On 3 April 2001 the Deceased, being of sound mind, memory and understanding, signed a document ["the Document"] identical in form to the document annexed hereto in the presence of the plaintiff, and the plaintiff attested and subscribed the Document in the presence of the Deceased. 3. On 23 April 2001 the Document was partially mutilated. Particulars On 23 April 2001 a dog known as Daisey destroyed and consumed part of the document. 4. The Deceased knew and approved of the contents of the Document and intended that it constitute her will. Particulars (a) On 16 March 2001 the Deceased expressed an intention to revoke her prior will (b) On 30 March 201 the Deceased gave to the plaintiff instructions to prepare a will (c) On 2 April 2001 the plaintiff prepared the Document in accordance with the instructions given by the Deceased (d) On 3 April 2001 the Deceased read over and signed the Document in the presence of the plaintiff. 7 It is not correct for a plaintiff to allege sound mind, memory and understanding of a deceased person. There is a presumption of capacity until the contrary is alleged and some basis laid for that allegation. It is not usually necessary to allege knowledge and approval, as unless suspicion attaches to the document propounded, execution is sufficient evidence of knowledge and approval unless challenged: Guardhouse v Blackburn (1866) LR 1 P & D 109; Re Hodges, Shorter v Hodges (1988) 14 NSWLR 698 at 705; although in a case such as this where the document propounded was prepared by the person taking a major benefit under it the righteousness of the document may more easily be brought into question: Nock v Austin (1918) 25 CLR 519 at 528. There is, I consider, no reason why similar presumptions should not apply to s18A documents. I am conscious that the allegation of knowledge and approval is part of the precedent found in Mason and Handley Wills Probate and Administration Service (New South Wales) at 6081. Nevertheless I point out as I have on other occasions that in ordinary circumstances it is not necessary for a plaintiff to plead that the deceased knew and approved of the contents of the will and that such an allegation of fact met by a non-admission has the tendency to raise an issue when that is not really intended. The defence may put that in issue if there is a basis for so doing. It is, of course, necessary in s18A matters, to establish that the deceased intended the document to constitute her will. 8 Paragraph 2 of the defence as originally filed was as follows: 2. The defendants do not admit the allegations contained in paragraphs 2, 3 and 4 of the Statement of Claim. So as to avoid surprise, the defendants note that they specifically do not admit the Deceased executed the Document. 9 This, on its face, raised issues by non-admission of capacity and knowledge and approval. That was probably unintended. The real issue the defendants seek to raise, apart from the s18A issue, is whether the deceased saw the original document at all and if she did, whether she signed it. That is the point of the second sentence of paragraph 2 of the defence. Paragraph 3 of the defence was in response to an allegation that because the s18A requirements were satisfied the document became the will of the deceased. Paragraph 3 of the defence was accordingly as follows: 3. In relation to the allegations contained in paragraph 5 of the Statement of Claim:- (a) The defendants deny the allegations; (b) The defendants note that the facts pleaded in paragraph 2 of the Statement of Claim disclose that (on the plaintiff's case) the document in question was witnessed by only one person; (c) The defendants note that, therefore, the allegations contained in paragraph 5 are consistent with the provisions of s.7 of the Wills Probate and Administration Act 1898 (NSW) ( "the Act" ); (d) The defendants reserve the right to move for summary judgment in relation to the said allegations. 10 The purpose of a pleaded defence is to admit, not admit or deny facts alleged in the statement of claim and to plead other facts which, if proved, will constitute a defence to the plaintiff's claim. It is not a pleading to "note" matters nor to reserve a right to move for summary judgment. 11 This was the state of the proceedings on 8 August 2002 when the case was opened before Palmer J, who sought to establish, by opening statements from counsel for both sides, the issues for determination. What happened then appears from the following paragraphs of a judgment of His Honour on that day. 2. It appeared from Mr Smark's opening that the Defendants' case raised an issue of whether a serious fraud had been committed by the Plaintiff in propounding a document as a copy of a Will which had not been executed at all to the Plaintiff's knowledge.