Re Estate of Wladyslaw Ratajczak deceased; Karwala v Skrzypczak [2005] NSWSC 502

New South Wales Supreme Court

CITATION : Re Estate of Wladyslaw Ratajczak deceased; Karwala v Skrzypczak [2005] NSWSC 502

HEARING DATE(S) : 23 May 2005

JUDGMENT DATE : 23 May 2005

Equity JURISDICTION : Probate List

JUDGMENT OF : Campbell J

DECISION : Parts of Statement of Claim struck out. Directions for further pleading given.

CATCHWORDS : SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - probate and letters of administration - pleading of probate actions - PROCEDURE - Supreme Court procedure - pleading - in probate action

LEGISLATION CITED : Supreme Court Rules 1970

CASES CITED : Re Estate of Paul Francis Hodges deceased; Shorter v Hodges (1988) 14 NSWLR 698

Maria Karwala - Plaintiff PARTIES : Jadwiga Skrzypczak - Defendant

FILE NUMBER(S) : SC 100898/03

I N Asuzu - Plaintiff COUNSEL : S Galitsky - Defendant

Unrepresented - Plaintiff SOLICITORS : G A Kinsey - Defendant

LOWER COURT JURISDICTION :

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

CAMPBELL J

MONDAY 23 MAY 2005

100898/03 MARIA KARWALA v JADWIGA SKZYPCZAK; THE ESTATE OF WLADYSLAW RATAJCZAK JUDGMENT 1 HIS HONOUR: In this matter an amended statement of claim was filed on 17 May 2005. While paragraphs 1 to 6 of that document plead facts which, if correct, may establish an entitlement of the plaintiff to apply for probate, the pleading in paragraphs 7 onwards does not make allegations of the facts which are necessary to be proved to enable the trial of this matter to proceed. It would be impossible to have a proper trial on the basis of that pleading. 2 Under Part 15 rule 26, there is a power in the Court to strike out a pleading which has a tendency to cause prejudice, embarrassment or delay in the proceedings or is otherwise an abuse of the process of the Court. Pursuant to that power I strike out paragraphs 7 to 13 and the prayers for relief. 3 It is appropriate at this stage to say something about what actually needs to be done to enable what appear to be the contentions which the parties wish to make in these proceedings to be advanced. The plaintiff, as I understand it, wishes to contend that a will of the deceased executed on 7 October 1961 is his last will. To enable that contention to be advanced, what she needs to do is to seek probate of that will. She needs to make, in her statement of claim, the allegations which are necessary for seeking a grant of the probate of it, and only those allegations. 4 The law concerning what matters need to be proved by a person who seeks a grant of probate is set out in the judgment of Powell JA in Re Estate of Paul Francis Hodges deceased; Shorter v Hodges (1988) 14 NSWLR 698. It is also conveniently summarised in Mason and Handler, Wills Probate and Administration Service New South Wales, at page 10,111 and following. At paragraph [6081] and following, there appear summaries of the provisions of the general law which are relevant to onus of proof, and precedents of pleadings. The provisions concerning onus of proof are the ones which define what are the allegations which a party who seeks a grant of the probate must prove, in his or her own case, to be able to make good that allegation. Thus, they define what the contents of the statement of claim need to be. 5 I gather that the defendant wishes to allege that the deceased executed later wills, in 1992 and 1995. I gather also that the plaintiff wishes to contest the validity of those wills, on the ground of the deceased's capacity, and possibly on other grounds as well. The way in which a contention like that is advanced in the proper preparation of a probate matter is by the defendant, in its defence to the plaintiff's statement of claim, denying that the 1961 will was the last will, asserting that there were other valid wills in 1995 and 1992, and by cross-claim seeking probate of the 1995 will, or in the alternative the 1992 will. If the plaintiff wishes to contest the validity of either of those wills, that is done by the reply and defence to the cross-claim. In that reply and defence to cross-claim, it would be for the plaintiff to challenge any of the essential elements of the cross-claimant's case which she wished to challenge, or to raise any matter of confession and avoidance concerning which someone opposing a grant of probate bears the onus of proof. 6 In a case seeking probate of a will, one of the matters which an applicant for probate must prove is that the will is the last will of a free and capable testator. In other words, the onus of proving capacity is on the proponent of the will. However, in the usual case that onus is satisfied by proving that the will is something which on its face makes sense and seems to be a sensible will for someone in the testator's situation to make, and was read over to or by the testator. If someone who opposes the grant of probate of a will wishes to contest capacity, it is for that person to make allegations which are sufficient to displace the presumption which would otherwise arise from the will making sense on its face and having been read to or by the testator. As well, if someone who opposes a grant of the probate wishes to allege that there are circumstances exciting suspicion, which that person wants to rely upon to allege that the Court ought not infer knowledge and approval of the will from proof of capacity and of the fact of due execution of the instrument, these circumstances would need to be pleaded. 7 The fundamental principle which is at work here, in requiring such matters to be pleaded, is the requirement in Part 15 rule 13 of the Supreme Court Rules, that a party pleading shall plead specifically any matter which if not pleaded specifically, might take the opposite party by surprise, or raises a matter of fact not arising out of the preceding pleading. 8 The matter is one which has had a long and unsatisfactory history. On the last occasion Windeyer J foreshadowed that he may well set the matter down for trial today. The state of the pleadings is such that it simply would not be possible to have a trial on the basis of the latest amended statement of claim, which I have struck out in large part. For that reason, I will direct a timetable which gives the parties an opportunity to get the matter into order. This is a timetable which, I record, contains time limits which have been proposed by the legal practitioners who will have responsibility for the respective steps of the timetable imposed on them. 9 I direct that a further amended statement of claim propounding the 1961 will be filed and served by 1 June 2005. I direct that a defence to the further amended statement of claim and cross-claim be filed and served by 15 June 2005. I direct that the plaintiff file a reply to the defence (if any) and a defence to the amended cross-claim by 24 June 2005. 10 I stand the matter over to the probate list on 4 July 2005. 11 The defendant seeks to have the Court order that she gets the costs of today's hearing. The basis for that application is that the matter was put in the list today for the purpose of taking a hearing date, and possibly also for the hearing of a notice of motion. The state of the matter was such that it was not possible to take a hearing date, and the notice of motion was not proceeded with. Thus, the defendant says, today has been wasted. The barrister appearing for the plaintiff says he has come into the matter comparatively recently and has been hampered in getting instructions because of a language communication problem. 12 The fact remains that it was the filing of an amended statement of claim which was unsatisfactory for the matter to proceed which was a substantial cause of the matter not being ready for taking a date today. The defendant has been put to expense, through the plaintiff not being ready. I order the plaintiff to pay the costs of today's appearance. **********