Supreme Court New South Wales Medium Neutral Citation: Nicolina Clocchiatti v John Paul Pierobon & Ors; Estate of John Pierobon [2014] NSWSC 488 Hearing dates: 7 and 8 April 2014 Decision date: 08 April 2014 Jurisdiction: Equity Division - Probate List Before: White J Decision: Refer to paras [73] and [92] of judgment Catchwords: WILLS, PROBATE AND ADMINISTRATION - probate - validity of will - whether suspicious circumstances attend the execution of the will - whether the deceased knew and approved the contents of the will - whether grant of probate should instead be ordered for prior will - whether an order should be made under s 6 or s 8 of the Succession Act - whether costs should be paid out of the estate or no order as to costs - probate in solemn form of the will granted to the plaintiff - Succession Act 2006 (NSW) ss 6, 8 Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Fulton v Andrew (1875) LR 7HL 448 In Re Nixon deceased [1916] VLR 274 Fuller v Strum [2002] 2 All ER 87 Nock v Austin (1918) 25 CLR 519 Vernon v Watson [2002] NSWSC 600 at [2]-[9]). Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544 Mitchell v Gard (1863) 3 Sw & Tr 275; 164 ER 1280 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Gray v Hart (No 2) [2012] NSWSC 1562 Texts Cited: Mason and Handler, Succession Law and Practice New South Wales, LexisNexus Butterworths Category: Principal judgment Parties: Nicolina Clocchiatti (Plaintiff) John Paul Pierobon (1st Defendant) Richard Doyne Chadwick (2nd Defendant) Scalabrini Village Limited (3rd Defendant) Representation: Counsel: P Blackburn-Hart SC with D A Allen (Plaintiff) Submitting appearances (1st and 2nd Defendants) B J Burke (3rd Defendant) Solicitors: Mitry Lawyers (Plaintiff) Stockman & Evans (1st Defendant) Coleman Greig (2nd Defendant) Hicksons Lawyers (3rd Defendant) File Number(s): 2012/51116 Judgment 1HIS HONOUR: These proceedings concern the estate of John Pierobon who died on 19 November 2011 aged 84. The estimate made for probate purposes of the value of his estate is approximately $5.9 million. 2The deceased was unmarried. He had no children and no close family. The plaintiff, Mrs Nicolina Clocchiatti, seeks a grant of probate in solemn form of a document she claims is a will of the deceased made on 14 October 2011. Under that document, she is named as the executor of his estate and its sole beneficiary. 3The deceased had made a prior will on 24 October 2006. It named the second defendants, Messrs Richard Chadwick and Owen Nicol, both solicitors, as the executors of the will. 4Under the will of 24 October 2006, the deceased had left his estate to a cousin in Italy; another cousin, the first defendant, in Australia; and had left a 15 per cent share of his residuary estate to Mrs Clocchiatti; a 15 per cent share to his solicitor Mr Chadwick; and the balance, that is, 35 per cent of the residuary estate, to Scalabrini Village Limited ("Scalabrini Village"). 5Scalabrini Village seeks an order that there be a grant of probate in solemn form of the 2006 will to the executors named in it. Those executors have filed submitting appearances. They consent to a grant of probate, and have made the requisite affidavits if the 2006 will is to be admitted to probate. 6No issue arises as to the testamentary capacity of the deceased to make what appears to be a will on 14 October 2011. 7The document is in the handwriting of the plaintiff, Mrs Clocchiatti. It bears the date 14 October 2011 and reads as follows: "This is the last Will and Testament of me, John Pierobon, of [xx] Memorial Avenue, St Ives. I revoke all Wills and Testaments that I have written in the past. I appoint Nicolina (Nicole) Clocchiatti of ... Wahroonga as the executor and sole beneficiary of my entire estate and belongings. She deserves it. The reason being is that she has looked after me and all my needs more than a daughter would. I declare that I am of sound mind and now at peace." The document then bears what purports to be the signature of the deceased and the signature of two purported witnesses. 8In opposing a grant of probate in respect of this document, Scalabrini Village contends that suspicious circumstances attend the execution of the document, and that the court should not be satisfied that the deceased knew and approved of the contents of the document and intended it to operate as his will. 9The factors constituting suspicious circumstances are said to be: (a) that the document is in the plaintiff's handwriting; (b) one of the witnesses or purported witnesses is a friend of the plaintiff (a Mr Russell Shephard) whom the plaintiff took to the home of the deceased for the first time on 14 October 2011 when the document was prepared and signed; (c) the other witness is the plaintiff's daughter; (d) the purported will was made without the benefit of legal advice, whereas every will known to have been made by the deceased previously to this occasion was made with the advice and assistance of the deceased's solicitor; (e) the 2011 will is a substantial departure from the 2006 will; (f) the plaintiff who prepared the will, that is, who wrote it out, is the sole beneficiary and sole executor; (g) that the estate is valued at approximately $6 million; (h) that in discussion with the deceased's solicitor, Mr Chadwick, on 6 December 2011 in relation to the deceased's will, and the identification of beneficiaries of the estate, the plaintiff did not say that the deceased had made a will on 14 October 2011, and; (i) the first time the existence of a will dated 14 October 2011 was made known by the plaintiff to people other than the purported witnesses to it was on or about 16 December 2011 when her solicitor advised Mr Chadwick that, "We are instructed to put you on notice that there is a competing will made by the late John Pierobon on 14 October 2011." 10If a person writes or prepares a will for another under which he or she takes a benefit, this is a circumstance which will excite the suspicion of the court. The court needs to be satisfied that the will expresses the true will of the deceased, that is to say, the court needs to be satisfied that the deceased knew and approved of its contents. 11This will be particularly so if the gift is in favour of persons who have no special claim on the deceased's bounty (Fulton v Andrew (1875) LR 7HL 448 at 461, 469 471). 12It has been said that the onus is on such persons to show the "righteousness of the transaction" (Fulton v Andrew at 472; In Re Nixon deceased [1916] VLR 274 at 281). This does not mean the court can substitute its judgment for that of the testator as to what would be a proper disposition of the estate. What must be dispelled is any suspicion that the will maker did not understand what the will provided for, that is, did not know and approve of its contents (Fuller v Strum [2002] 2 All ER 87 at [33], [65] and [78]; Nock v Austin (1918) 25 CLR 519 at 524, 525, 528; Vernon v Watson [2002] NSWSC 600 at [2]-[9]). 13As Meagher JA said in Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 at [46] and [47]: "[46] Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In Thompson v Bella-Lewis [1997] 1 Qd R 429 McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, 'a circumstance must, to be accounted "suspicious", be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death'. See also McKinnon v Voigt [1998] 3 VR 543 at 562-563; Robertson v Smith [1998] 4 VR 165 at 173-174. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document: Barry v Butlin at 484-485; 1091; Cleare v Cleare at 658; Tyrrell v Painton at 157, 159; Nock v Austin at 528. [47] Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be 'the most satisfactory evidence' of actual knowledge of the contents of the will: Barry v Butlin at 484; 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VR 646 at 652. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose 'as heavy a burden as can be imagined'. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew at 472; Tyrrell v Painton at 160. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton at 157, 160; Nock v Austin at 523-524, 528; Fuller v Strum [2001] EWCA Civ 1879 ; [2002] 1 WLR 1097 at [33]; Dore v Billinghurst [2006] QCA 494 at [32], [42]." 14What may be needed to satisfy the court that, notwithstanding the existence of suspicious circumstances, the deceased did know and approve of the contents of the will, will vary according to the nature of the suspicion raised and the circumstances of the case. 15I accept that the principles concerning the effect of special circumstances apply in this case, and that the onus is on the plaintiff to establish that the deceased did know and approve of the document that he signed, (assuming that I accept that he did sign it) and that he intended it to operate as his will. 16The presumption of knowledge and approval otherwise arising from due execution is rebutted by the circumstances in which the document came to be prepared and signed, that is to say, by its having been prepared in the plaintiff's handwriting and signed in the absence of a lawyer whose services the deceased had used on prior occasions. 17However, suspicious circumstances must be appreciated in context. The deceased had no close family. His nearest relations were cousins. Mrs Clocchiatti had known the deceased, and he her, from her childhood. Her father and the deceased were friends. Both were market gardeners in the St Ives area. The deceased frequently visited Mrs Clocchiatti's family home. For the last ten years of the deceased's life, that is, from about 2001, Mrs Clocchiati spent considerable time and effort in caring for him and attending to his needs, as well as providing him with companionship and assistance in his affairs. 18She cleaned the deceased's house by way of a wholesale makeover, to put it in what she described as a liveable condition, and thereafter kept it clean. She cooked meals for the deceased. She bought him food. She bought him a new wardrobe of clothes. She took him to appointments with his doctor or doctors or hospital. She took him out on social occasions. She dealt with his accountant or assisted him in doing so. She was familiar with his financial affairs. She and the deceased carried on a business venture in common involving the growing of pine trees. The deceased named her as his next of kin when he was admitted to hospital. 19So although Mrs Clocchiatti was not a relative of the deceased, she was a natural object of his testamentary bounty. 20On 23 September 2005, the deceased had made a will in which he left his entire estate to Mrs Clocchiatti. The will was prepared by Mr Chadwick at the same time the deceased executed a power of attorney in favour of Mrs Clocchiatti and signed an instrument appointing her as his enduring guardian. 21At the time of that will, the deceased and Mrs Clocchiatti were contemplating that they might construct a new residence on some vacant land owned by the deceased using funds to be provided by Mrs Clocchiatti which would, it seems, provide some self contained quarters for them both. Ultimately, nothing came of that proposal. 22Mr Chadwick said that it was in the context of a discussion about that proposal that the deceased said to him words to the effect: "We have agreed that I will make a new will leaving everything to Nicolina and also sign papers appointing her my attorney and guardian." 23Counsel for Scalabrini Village submits that the 2005 will was made because the deceased then contemplated such an arrangement, under which the plaintiff would construct a house for him using her funds, and it was the failure of that proposal that explains why the deceased changed his will in 2006. 24That does not explicitly appear from Mr Chadwick's evidence. Mr Chadwick deposed that, in October 2006, the deceased simply told him that he was very unhappy with Mrs Clocchiatti. Initially, the deceased told Mr Chadwick that he did not want Mrs Clocchiatti to have any share of his estate. This was notwithstanding he was aware that his estate was worth several million dollars. 25Mr Chadwick pointed out to the deceased that Mrs Clocchiatti had been looking after him and was still keeping a regular eye on him, so that she should be left something. In the end, the deceased made the will on 24 October 2006 leaving her a 15 per cent share of the estate. 26Other reasons have been advanced by Mrs Clocchiatti which might explain the deceased's decision to make the changes to his will in 2006. The evidence does not permit any finding as to the particular motivation or motivations that prompted those changes, except it is clear that for some reason the deceased was at that time unhappy with Mrs Clocchiatti. 27I am satisfied that by 2011 those were no longer his feelings. The continued care and attention that was shown to him over the following five years provides an entirely plausible reason for the deceased's change in his testamentary intention. 28It is true that the deceased did not tell Mr Chadwick that he had changed his testamentary intentions. Mr Chadwick visited the deceased three or four times a year. But as I am satisfied the deceased did change those intentions, and meant to leave his estate to Mrs Clocchiatti, it is understandable that he might not have wanted to raise the matter with Mr Chadwick, his solicitor, when Mr Chadwick had been named as a beneficiary in the 2006 will. 29(I should add that, when the deceased told Mr Chadwick in 2006 that he was minded to make a gift to Mr Chadwick in his will, Mr Chadwick required that he obtain independent legal advice, which he did, and the will was prepared by another firm of lawyers. Nothing in the description of events should be thought to raise any adverse implication so far as Mr Chadwick is concerned.) 30The circumstances leading immediately up to the execution of the document on 14 October 2011 are as follows. On the previous day, Mrs Clocchiatti had taken the deceased to the hospital for some scans. She deposed that he said to her words to the effect: "Nicole, I must speak to you. Please come down with Veronica and bring someone else with you." 31It can be inferred from the events that followed that the deceased intended to make a will when the plaintiff arrived with two potential witnesses. In other words, the idea of making a new will was the deceased's, and not that of Mrs Clocchiatti. 32I accept Mrs Clocchiatti's evidence about this conversation. In doing so, I bear in mind that such evidence should be scrutinised very carefully to see whether it is true or untrue. Evidence advanced by an interested party in an estate as to conversations had with the deceased which cannot be corroborated, and which if accepted would be advantageous to that party's case, must be scrutinised carefully (Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544). 33On the following day, Mrs Clocchiatti's daughter, Ms Veronica Buttarello, and a family friend, Mr Russell Shepherd, were at Mrs Clocchiatti's house. Mr Shepherd had driven to Sydney from Bathurst, and was paying a quick visit to Mrs Clocchiatti to discuss another matter altogether. She asked him and her daughter to go with her to see someone at St Ives. Mr Shepherd had had no previous acquaintance with the deceased. 34Ms Buttarello and Mr Shepherd, as well as the plaintiff, gave evidence about their attendance on the deceased at the time the purported will was prepared and signed. To some extent there were differences in their recollections as to what was said on that occasion, but the substance of their evidence did not materially differ. 35In considering the evidence of Mr Russell and Ms Buttarello, I have also taken into account statements they prepared to be provided to the plaintiff's solicitor for the purpose of preparing an affidavit. The statements, which they prepared in their own words, are substantially reflected in the final affidavits. Their affidavits show no indication of having been massaged to advance the plaintiff's case. 36I accept that after some initial conversation the deceased, apparently by way of a change of topic, said he wanted Mrs Clocchiatti "to have everything." Her version of this initial statement was that the deceased said words to the effect: "I want you to hear this, Love. I want you to have everything. You've done everything for me. I wouldn't have made it without you. It's all yours, Love." 37Ms Buttarello's recollection is that the deceased, speaking to her mother, said words to the effect: "One day everything will be yours, Love. I want you to take care of everything, as you have always done." 38Mr Shepherd said that the deceased said: "I've thought about this and I want you to have everything, Love. You've been like a daughter to me. I want you to do the will right now." 39Mr Shepherd said that if the deceased wished to do that, that is to say, wished to make a will, he would need to put it in writing. Mrs Clocchiatti looked round the house for some paper, and found some pink paper. The deceased said: "This is what I want: I just want you to have everything I own." 40Mr Shepherd said it could not be put that way, and he would have to use proper words. Mrs Clocchiatti proposed the form of words. It was she who suggested the use of the word "executor" and her being named as the "sole beneficiary." 41Mrs Clocchiatti, I think with assistance from Mr Shepherd, composed the form of the words but did so aloud in the presence of the deceased. The document, when prepared, was read aloud to the deceased. He approved of it. It was also given to him to read, and he read it. 42In the course of this, Mrs Clocchiatti queried why the deceased was making a will. She said he had already made a will out to her. The deceased responded by saying, in what Ms Buttarello said was a bossy manner, words to the effect "Just write down what I tell you", or words to that effect. 43During the meeting Mrs Clocchiatti also asked if she should call a solicitor, but the deceased said no. He was firm that a solicitor not be called. After the deceased had read the document he said words to the effect that it was "good" or "very good". He signed it, and his signature was witnessed by Mr Shepherd and Ms Buttarello. 44According to Mr Shepherd, the deceased kept the document. Mr Shepherd said that after the document had been signed the deceased seemed calmer and happier. He said that the deceased seemed very relieved. Evidence to similar effect was given by Mrs Clocchiatti and Ms Buttarello. 45I accept this evidence. I accept that the deceased signed the document, as each of those witnesses deposed. There is no evidence (and there would be no proper basis for a finding) that the signature on the document that purports to be that of the deceased is not his signature. 46As would be expected, in the preparation of this case for hearing, the defendant had the opportunity to obtain handwriting evidence. It is not disputed that various extensions of time for the conduct of the matter were sought and obtained whilst the defendant considered obtaining an expert's report from a handwriting expert. No handwriting evidence has been adduced. In the face of the clear evidence as to execution of the document by the deceased, and in the absence of any contrary evidence, I am satisfied the deceased did sign the document. 47The document is not complex. Having been read out to the deceased and having been read by the deceased himself, he must have understood that, by that document, he was leaving his estate to Mrs Clocchiatti on his death. 48Counsel for Scalabrini Village submitted that it has not been established the deceased understood and intended that he was making a will which, if left unrevoked, would be effective on his death. Counsel pointed to evidence given by Mrs Clocchiatti that, in her mind, the document was just a pink piece of paper to which she attached no importance (T40). 49However, from Mrs Clocchiatti's perspective, the document did not achieve anything. At this time she was unaware the deceased had changed his 2005 will. She understood he had already left his estate to her by the will made in 2005. I think this is the real reason why the plaintiff did not profess to attach any importance to the will. 50But the deceased's perspective was quite different. I am satisfied he knew of the will made in 2006 and he wanted to change it again. I consider that he knew the document he was making was a will, which would be effective on his death in accordance with its terms if not revoked. 51Considerable attention has been given to a conversation between Mrs Clocchiatti and Mr Chadwick after the deceased's death. As I have said, the deceased died on 19 November 2011. The funeral was held on 28 November 2011. 52The defendant says that in a conversation between Mr Chadwick and Mrs Clocchiatti after the funeral, Mrs Clocchiatti made no mention of the fact that the deceased had made a new will. This, it was said, raises considerable doubt as to the genuineness of the document. For the reasons which will follow, I do not accept this characterisation of the conversation between Mrs Clocchiatti and Mr Chadwick. 53But even if the defendant's premise were made good, one would have to ask what follows from that? If Mrs Clocchiatti did not make reference to the will of 14 October 2011 in her discussion with Mr Chadwick in circumstances when that might have been expected to have been done, would it follow that the document was not genuine? 54To reach that conclusion, I would have to find that there was reason to think the deceased's signature might be a forgery, even if I could not come to a concluded view on that question, and I would have to disbelieve the evidence not only of the plaintiff and her daughter but also the evidence of Mr Shepherd, who had had no prior or subsequent acquaintance with the deceased. No motive was pointed to which could be sufficient to explain why Mr Shepherd might be prepared to perjure himself in support of such a fabricated claim. 55The evidence about the conversation between Mrs Clocchiatti and Mr Chadwick commenced with an affidavit sworn by her on 10 May 2012, in which she deposed that on 30 November 2011 Mr Chadwick called her and they had a talk on loud speaker. In that conversation she spoke to Mr Chadwick about things to be done by her as executor. He interrupted her and asked if she were aware there had been another will. She said no, and was shocked. Mr Chadwick then proceeded to tell her who were the beneficiaries under the 2006 will. Mr Chadwick, of course, was ignorant of the 2011 will. 56In her affidavit of 20 May 2012 (her first affidavit), Mrs Clocchiatti deposed that she said to Mr Chadwick words to the effect, "What about that thing that Johnny signed?" According to Mrs Clocchiatti's first affidavit, Mr Chadwick asked, "When did he sign it?". She replied, "I can't remember". He said, "But it wasn't a will, was it?" She answered, "I don't know." 57In response to that affidavit, Mr Chadwick made an affidavit on 5 October 2012 in which he deposed, amongst other things, that in the course of a conversation, which he also placed as being on or about 30 November 2011, he made known to Mrs Clocchiatti that the deceased had made a new will in 2006, that is to say, a new will after the September 2005 will. After telling Mrs Clocchiatti who were the beneficiaries under the 2006 will, and discussing the need to divide the estate, he deposed that Mrs Clocchiatti said words to the effect, "What if John gave me a note saying he left everything to me?" He deposed that he could not advise her in relation to such a note, and she should see her own solicitor. 58The inference from that evidence could well be that, at the time of the conversation, the deceased had not made a note. Mrs Clocchiatti responded to that affidavit on 11 February 2014 and said, in relation to Mr Chadwick's version of the conversation, it would be more accurate to say "What about that thing that Johnny signed, what if he gave me a note saying that he left everything to me?" and that Mr Chadwick then asked when it was signed, and also asked, "But it wasn't a will, was it?" to which she agreed. 59All of this evidence was given by both Mrs Clocchiatti and Mr Chadwick without the benefit of any contemporaneous note. They were endeavouring to recall a conversation that occurred between six months and 15 months previously. 60Later, Mr Chadwick found a file note dated 6 December 2011 of that very conversation. He deposed (and I accept this evidence) that he wrote the file note within an hour of the conclusion of the telephone conversation. He said that, to the best of his recollection, it was an accurate record of the substance of the parts of his conversation with Mrs Clocchiatti to which his previous affidavit had referred. Relevantly, his file note records that: "As she hadn't rung me, I rang her at home. - Asked her if she was aware that John had made a will in October 2006 [these words interpolated] (subsequent to will wholly in her favour dated 23/9/05) ... Said she had a note from John saying she would get everything - 'Is this of any use?' I said I couldn't advise in relation to 'a note' ... * Did not mention any subsequent will and seemed very upset in relation to will of 2006." 61This file note is the best evidence of the conversation which I think is more likely to have occurred on 6 December 2011 rather than 30 November 2011 as both witnesses had previously deposed to. It is true that Mrs Clocchiatti in the witness box doubted that the conversation took place on that day but nonetheless as the file note was made within an hour of the conversation I think that is when it did occur. 62It is significant that Mrs Clocchiatti did tell Mr Chadwick that she had what she called a note from the deceased saying that she would get everything. No document, other than the will of 14 October 2011, answers that description. 63Counsel for Scalabrini Village submitted that Mrs Clocchiatti had claimed that the note had been given to her by the deceased, whereas the deceased had kept the handwritten will of 14 October 2011. It is it true that in her affidavit of 11 February 2014 Mrs Clocchiatti had said it would be, "more accurate" to say, "What about that thing that Johnny signed, what if he gave a note to me saying that he left everything to me?" This was in response to Mr Chadwick's evidence that Mrs Clocchiatti had said, "What if John gave me a note saying he left everything to me?" In other words, the evidence about Mrs Clocchiatti having said that the deceased gave her a note started with Mr Chadwick's recollection of the conversation which Mrs Clocchiatti, more than year after the conversation took place, sought to correct in only a limited respect. But the file note which is the best evidence of the conversation does not refer to the deceased having given the note to her. In any event these are slight matters to raise against the genuineness of the document. 64Then the plaintiff's evidence was challenged by reason of discrepancies in her evidence as to the sequence of events postdating the deceased's funeral. The plaintiff was cross-examined about the time at which she gave instructions to her solicitor, the time at which she found the will of 14 October 2011 and the time at which she sought to collate medical evidence and obtain opinions as to the deceased's testamentary capacity. 65I accept that it is not possible to reconcile all of the plaintiff's evidence as to the sequence and timing of these events. I attribute that to the difficulties of the plaintiff's being able to recall accurately the exact timing of those events. The best evidence as to the timing of events is the contemporaneous records. According to a letter written by Mrs Clocchiatti's solicitor on 17 February 2012 her then instructions were that the will had been retrieved from the deceased's premises on 5 December 2011. That is consistent with Mr Chadwick's file note that on 6 December 2011 Mrs Clocchiatti said that, "She had a note from John saying she would get everything." 66The fact that Mrs Clocchiatti now does not agree with that sequence of events, now believing that she did not have the handwritten will at the time of her discussion with Mr Chadwick is not material. The confusion in the plaintiff's evidence as to the precise timing and sequence of events might well affect her reliability if questions of timing and sequence of events after the deceased's death were relevant, but they are not. There is otherwise overwhelming evidence as to the making of the will of the 14th October 2011 and of the deceased's knowledge and approval of that document. 67I will hear counsel in relation to whether I should make an order under s 6 or s 8. [Counsel addressed.] 68In her statement of claim the plaintiff initially sought a declaration pursuant to s 8 of the Succession Act 2006 that the hand written document dated 14 October 2011 is the last will of the deceased. She pleaded that Mr Shepherd and Mrs Buttarello subscribed their names to the will in the deceased's presence but did not attest to being present at the time the deceased executed the will. 69Section 6 of the Succession Act requires that for a will to be to be valid, amongst other things, at least two witnesses must attest and sign the will in the presence of the testator. Section 6(3) provides it is not essential for a will to have an attestation clause. This will does not have an attestation clause but that does not mean that it is invalid for non-compliance with s 6(1). Section 8 provides for the circumstances in which a document which has not been validly executed as the deceased's will can be admitted to probate. 70The notes to s 6 in Mason and Handler, Succession Law and Practice New South Wales, LexisNexus Butterworths at [6.5.10] state that where there is no attestation clause, or a clause is defective, the presumption of due execution still applies but the Court will require an affidavit of the attesting witness in the prescribed form. 71Subsection (6)(1)(c) requires the witness to attest as well as to sign the will. The meaning of "attestation" in the Oxford English dictionary includes the action of bearing witness, or the formal testimony or confirmation by a signature or oath et cetera. 72I think that the witnesses attested and signed the will on the 14th of October 2011 and that will should be admitted to probate pursuant to s 6 without any requirement for a declaration pursuant to s 8. 73For these reasons I order that: (1) Probate in solemn form of the will of the late John Pierobon of 85 Memorial Avenue, St Ives, New South Wales dated 14 October 2011 be granted to the plaintiff. (2) I remit the proceedings to the Registrar to complete the grant. (3) I order the cross-claim be dismissed. [Parties address on costs.] 74The remaining question concerns the defendants' costs. The first and second defendants have filed submitting appearances. They are entitled to their costs of doing so as a submitting defendant. 75The defence actively pursued was that of the third defendant, Scalabrini Village. The question is whether its costs should be paid out of the estate or whether there should be no order as to its costs. 76Rule 42.1 of the Uniform Civil Procedure Rules provides that subject to Part 42, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. In other words costs follow the event. 77It is nonetheless well established that principles applicable to the awarding of costs in probate litigation differ from those applicable in ordinary civil suits and in this case the successful plaintiff does not seek an order that Scalabrini Village pay her costs. 78The relevant principles were laid down as long ago as 1863 in Mitchell v Gard (1863) 3 Sw & Tr 275 at 277; 164 ER 1280 at 1281, and see Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 709. In Mitchell v Gard, principles were laid down for the express purpose of providing guidance in the face of conflicting issues of public policy: namely, the importance that doubtful wills not pass too easily into proof by reason of the cost of opposing them and, on the other hand, that parties not be tempted into a fruitless litigation by the knowledge that their costs will be defrayed out of the estate. 79The principle established was that if the fault that occasioned the litigation lies at the door of the testator, in other words, if the testator was the cause of the litigation, the costs of ascertaining his will should be defrayed out of the estate. On the other hand, if there are merely circumstances that require an enquiry to ascertain whether the will is that of a free and capable testator, an unsuccessful party who nonetheless acts reasonably in opposing the grant, should be left to bear his or her own costs. 80These principles can overlap. In Gray v Hart (No 2) [2012] NSWSC 1562 I said (at [19]): "However, it appears to me, consistently with the rationale of the principles in Mitchell v Gard, that where the categories do overlap, if the testator is properly seen as the cause of the litigation, the usual order is that costs be paid out of the estate. It is where the testator is not the cause of the litigation, but an investigation is reasonably called for, that there is usually no order as to the unsuccessful party's costs. Of course if there is no reasonable cause for investigation, that is, if the unsuccessful party has not acted reasonably, then he or she will pay the costs." 81In this case, I have accepted that there were suspicious circumstances that warranted the investigation as to whether or not the deceased knew and approved of the contents of the will. 82Those circumstances arose because the deceased asked Mrs Clocchiatti to attend with witnesses when he had in mind that a will would be prepared when she attended with the witnesses. The suspicious circumstances arose because it was Mrs Clocchiatti who was to benefit from the will, who prepared the form of words and wrote them on the document for the deceased's signature. 83The suspicious circumstances also arose because the deceased had used the services of a solicitor in the past and on this occasion he did not. 84All of those matters were satisfactorily explained and the suspicion dispelled. But the occasion for the suspicion arising was the way in which the deceased arranged for the will to be prepared. 85For the reasons which I gave in Gray v Hart (No 2), a broad approach has been taken as to whether the deceased, by his or her conduct, habits, modes of life, irrational actions or dealings with relatives or failures towards relatives, has been the cause of the litigation. In that case I found that the deceased was the cause of the litigation because the way she went about making her wills and keeping their terms secret was likely to lead to a later challenge. 86Similarly in this case I think that the deceased, although not by any means blameworthy, was the cause of the litigation by the way in which he arranged for the will to be prepared. 87I think it just that the proper costs incurred in the investigation as to whether the deceased knew and approved of the terms of the will should be borne by the estate and not by Scalabrini Village out of its own pocket. 88An issue was raised as to the extent of the defendant's costs and the reasonableness of them. This will be a matter for a costs assessor. The matter raised in this respect was the expense presumably incurred by Scalabrini Village in seeking to obtain a report of a handwriting expert. I can say for the guidance of the costs assessor that I see no reason to doubt that the expense of seeking a handwriting report could be reasonably incurred in the investigation as to the validity of the will. Indeed, it would be one of the first things that could be expected to be investigated in that respect. 89No report of a handwriting expert has been tendered and I understand that none has been served. I do not know the reasons for that. 90The plaintiff suggested in submissions that the reason for non-service might be that the report indicated that the signature of the deceased was genuine. I make no comment about that. I think it involves a degree of speculation. 91It will be a matter for a costs assessor to consider whether costs incurred after the receipt of an expert handwriting report, if indeed any such report was received, were reasonably incurred, having regard to the contents of such a report whatever they might be. 92I order that the costs of the first and second defendants on the ordinary basis as submitting defendants be paid out of the estate and the costs of the third defendant also be paid out of the estate. 93The plaintiff, who is entitled to the whole of the estate, does not seek any order for costs in relation to her own costs. 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: 29 April 2014