Telfer v Telfer [2011] NSWSC 1163

Supreme Court New South Wales

Medium Neutral Citation: Telfer v Telfer [2011] NSWSC 1163 Hearing dates: Monday, 19 September 2011 Decision date: 19 September 2011 Jurisdiction: Equity Division Before: White J Decision: Refer to paras [17]-[23] and [26] of judgment. Catchwords: SUCCESSION - probate - caveat - whether there is some matter occasioning doubt as to whether the grant ought to be made - no question of principle Category: Interlocutory applications Parties: Neil Ronald Telfer (Plaintiff) Carolyn Telfer (Defendant) Representation: M K Rollinson (Plaintiff) R Kako (Defendant) Barrak Lawyers (Plaintiff) Whitehead Cooper Williams (Defendant) File Number(s): 2011/283114

Judgment 1HIS HONOUR : On 11 July 2011 the defendant lodged in the Registry a caveat demanding that no grant be made in the estate of Lyall Vincent Telfer, who died on 14 May 2011, without prior notice to her. The interest she claimed in the estate was simply described as her being the deceased's widow. The plaintiff has been named as the executor of the deceased's estate in a document described as a will dated 21 June 2010, and a document described as a codicil dated 17 February 2011. The plaintiff applies pursuant to Pt 78 r 69 of the Supreme Court Rules 1970 for an order that the caveat cease to be in force. Under Pt 78 r 69(4) the Court may order that the caveat cease to be in force if it considers the evidence does not show that the caveator has an interest in the estate or a reasonable prospect of establishing such an interest, and if the evidence does not show some matter occasioning doubt as to whether the grant ought to be made. There is no doubt that the defendant has an interest in the estate. In the will of 21 June 2010, she is the sole residuary beneficiary and was devised the deceased's residence in [xxxxxxx xxxx], Northmead. 2In the codicil of 17 February 2011, the gift of the Northmead property was deleted. In substitution for the gift of residue to the defendant, the deceased left the residue of the estate in equal shares to the defendant and one of his sons, Mark. The defendant was the deceased's second wife. 3No doubt has been demonstrated in the evidence in respect of the validity of the will dated 21 June 2010, but there is evidence raising doubt as to the validity of the codicil. 4It appears from a report of an aged care assessment team at Westmead Hospital that the deceased was admitted to Westmead Hospital on 2 January 2011 with various serious illnesses. It is not necessary to refer to them with any specificity. The report of the aged care assessment team stated that he developed hallucinations and body tremors, but by 16 February these had ceased, although the deceased continued to suffer from ongoing pain. The report also stated that the deceased's cognition was impaired, but he was able to communicate when he was in pain. Other notes record that on the day of assessment the deceased was drowsy, but rouseable and unable adequately to answer questions. 5The document to be propounded as a codicil is said to have been made the following day. A comparison of the signatures on the will of 21 June 2010 and a later enduring power of attorney and appointment of an enduring guardian, both apparently signed on 28 February 2011, show marked differences in the signature of the deceased from the signature appearing on the codicil. 6The codicil contains a statement that the witnesses to it had noted that a condition called amyloidosis had caused deterioration in the deceased's signature. That may well be so, but the differences in the signature are such as to raise doubts as to the due execution of the document. If the signature is that of the deceased, it is very much more shaky than the signatures which are apparently those of the deceased in July 2010 and 28 February 2011. That, in turn, would raise a question as to the physical state of the deceased at the time the codicil was signed. 7The codicil is said to have been witnessed by the executor and a person who I understand is the executor's wife. The defendant submits that if the codicil was not duly executed, the purported witnessing of the codicil would raise questions as to the suitability of the plaintiff to be appointed as executor of the will. 8There are serious questions to be tried in relation to these matters and I will give directions pursuant to Pt 78 r 69(6) with a view to the issues concerning the validity of the codicil being determined as quickly and cheaply as they can be. 9The solicitor for the plaintiff contends that these questions are academic and that no costs should be spent on investigating them. The reason for that submission is that, according to the plaintiff's solicitor, the liabilities of the estate substantially exceed the value of the assets of the estate. 10On 26 July 2010, the deceased entered into a deed with the defendant under which she agreed to refinance debts secured over the deceased's Northmead property. The deceased undertook to sell that property within 12 months and to apply the proceeds, first, in repayment of the debt which would be due to the defendant. The plaintiff's solicitor deposes that the deceased exchanged a contract for sale of the property for the sum of $500,000. He produces the front page of the contract signed by the purchaser. The purchaser was named as the deceased's son, Mark. The contract price was $500,000. The copy of the contract signed by the deceased as vendor, or by someone on his behalf under a power of attorney, has not been produced. The plaintiff's solicitor acted for both vendor and purchaser, and I can assume the contracts were exchanged as deposed to. 11The deceased executed an enduring power of attorney in favour of the defendant on 28 February 2011, according to the defendant's solicitor. At the time that power of attorney was signed, the defendant says she had concerns about the deceased's capacity. Her solicitor stated that the plaintiff had said to her prior to the power of attorney being signed words to the effect that " Lyall has lost his mind. You had better organise for him to give you a power of attorney quickly. You may need someone to deal with some of his business affairs up here ". 12A question could well arise as to the validity of the contract. There is no evidence before me as to the value of the Northmead property either as at March this year or at present. 13The plaintiff's solicitor says that the liabilities of the deceased, of which he is presently aware total some $694,000, this includes an amount of in excess of $196,000 said to have been owed by the deceased to his son, Mark, described as " Unpaid Employee Entitlements ". There was no evidence as to how this debt arose, and nothing from which the court could determine whether the claimed debt was owed. The defendant's solicitor has asserted that the plaintiff earlier this year had rejected such a claim. 14On the state of this evidence, where there is uncertainty as to the value of the deceased's assets and as to the amount of the deceased's liabilities, it cannot be said that the question of the validity of the codicil is of no practical significance. 15For these reasons, I refuse the relief sought in paragraph 1 of the summons. I direct that the plaintiff file and serve a statement of claim seeking probate in solemn form of the will and the codicil if probate is to be sought of those documents, and that the statement of claim be filed and served by 4 October 2011. I direct that the defendant file and serve a defence to the statement of claim and any cross-claim by 25 October 2011. 16I see no reason to delay the making of the orders that require the production of original documents to be submitted to the document examiner. The defendant acknowledges that she will pay the cost of the document examiner. I am satisfied that it is appropriate that the codicil and other relevant documents be provided for forensic examination. I give leave to the defendant to adduce expert evidence from Mr Chris Anderson of Chris Anderson & Co Pty Limited. I make the following directions to facilitate that course. 17I order that by 21 September 2011 the defendant's solicitor produce to the plaintiff's solicitor such of the following original documents as are in the defendant's solicitor's possession, namely: a)the original will dated 21 June 2010; b)original codicil dated 17 February 2011; c)the original deed between the deceased and the defendant dated 26 July 2010; and d)the original of the contract for sale of the property at [xx xxxxxxx xxxx], Northmead signed by the deceased, or any person on the deceased's behalf if that contract was not signed by the deceased. The other documents sought by Mr Anderson should be in the possession of the defendant or her solicitor. 18I order that the defendant's solicitor keep the original of such documents that are produced to him by the plaintiff's solicitor in his safe custody except to deliver the same to, and receive the same back from, Mr Anderson. 19I direct that forthwith upon such documents being returned by Mr Anderson to the defendant's solicitor that they be returned by him to the plaintiff's solicitor. 20Mr Anderson has also sought medical records relating to the deceased. These would plainly be relevant both to the forensic examination to be undertaken by Mr Anderson and to issues concerning the deceased's testamentary capacity. I give leave to the defendant to issue a subpoena to Westmead Hospital for the production of medical records relating to the deceased. 21Mr Anderson also seeks production of any other business records such as banking records relating to the deceased. I direct that if the plaintiff has any such original records in his possession containing signatures of the deceased in 2011, that the plaintiff provide such documents as soon as practicable to the defendant's solicitor for production to Mr Anderson. I also give leave to the parties to issue a subpoena to the deceased's bank or banks for the production of documents of the kind described by Mr Anderson in his letter of 15 September 2011. 22I stand the matter over to the Registrar's list on 31 October 2011. I direct that the report of Mr Anderson be served on the plaintiff by 20 October 2011. I give the parties liberty to restore the matter to the Registrar's list on three business days' notice. 23I give leave to the parties to issue a subpoena to any nursing home to which the deceased was admitted to in 2011 for the production of their records. [Parties addressed on costs.] 24The defendant seeks her costs of the hearing today. The plaintiff submits that the costs of today's hearing should be costs in the proceedings on the basis it was not until very recently, that is to say after the receipt of the affidavit of the defendant's solicitor, Mr Williams, which was affirmed on 15 September 2011, and receipt of the report of the Westmead Aged Care Assessment Team, that the plaintiff had the necessary materials to assess the basis upon which the defendant contended that she had an interest in the estate that supported the continuance of the caveat. Counsel for the plaintiff also submitted that the caveat had failed to disclose adequately the interest that the plaintiff claimed under the testamentary instruments. I do not think there is anything in the last point. Although the caveat should have stated the defendant's interest expressly, there could be no doubt what the interest was. 25In other circumstances, the other matters raised by the defendant may well have warranted a different costs order. However, whilst the plaintiff's solicitor has accused the defendant's solicitor of unnecessarily increasing costs by pursuing an unnecessarily adversarial approach, it seems to me from reading the correspondence, that has been exactly the course taken by the plaintiff's solicitor. The plaintiff's solicitor has refused to produce the copy of the contract signed by the vendor or someone on his behalf, and has refused to consent to the production of hospital records. There can be no proper reason that I can see why that consent should have been withheld given that production would be to the deceased's wife and her solicitors. 26In all the circumstances, I think costs should follow the event. I order that the plaintiff pay the defendant's costs of the application for the relief claimed in the summons. 27Exhibit 1 should remain with the file. 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: 28 September 2011