Supreme Court New South Wales Medium Neutral Citation: I L Pardey & Ors v A W Pardey [2017] NSWSC 1413 Hearing dates: 10 and 11 October 2017 Decision date: 17 October 2017 Jurisdiction: Equity - Probate List Before: Black J Decision: The Court grants probate of the Will dated 10 June 1998, but not the Codicil dated 29 June 2011, in solemn form to the Plaintiffs and notes the parties' agreement as to the resolution of the proceedings. Catchwords: SUCCESSION — Wills, probate and administration — Probate and letters of administration – claim for grant of probate in solemn form – whether will duly executed – whether codicil with no operative effect should be admitted to probate Legislation Cited: - Probate and Administration Act 1898 (NSW), s 41 Cases Cited: - Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 - The Estate of John David Madzay (Powell J, unreported, 25 October 1991) - The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934 Category: Principal judgment Parties: Ian Leslie Pardey (First Plaintiff) Sarah Jane Ellis (Second Plaintiff) Andrew William Pardey (Third Plaintiff) Arthur William Pardey (Defendant) Representation: Counsel: J E Thomson (Plaintiffs/Cross-Defendants) J Willmott SC/G Birtles (Defendant/Cross-Claimant) Solicitors: Michael C Smith (Plaintiffs/Cross-Defendants) Teece Hodgson & Ward (Defendant/Cross-Claimant) File Number(s): 2015/300593 Judgment 1. By Summons for Probate dated 27 November 2015, the Plaintiffs, Mr Ian Pardey, Ms Sarah Ellis and Mr Andrew Pardey originally sought a grant of probate in solemn form of the Will dated 10 June 1998 ("Will") of the late Mrs Adele Pardey (also known as Bobbie Pardey) ("deceased") and a Codicil to that Will dated 29 June 2011 ("2011 Codicil"), on the basis that leave be reserved to the Defendant, Mr Arthur Pardey, to come in and prove the Will and 2011 Codicil. The Plaintiffs are the children of the deceased and are three executors under the Will and the Defendant, Mr Arthur Pardey, is the husband of the deceased and a fourth executor under the Will. In the event, neither the Plaintiffs nor the Defendant pressed the application for a grant of probate in respect of the 2011 Codicil. 2. The Plaintiffs subsequently filed a Statement of Claim dated 9 March 2016 seeking an order, under s 41 of the Probate and Administration Act 1898 (NSW) that subject to compliance with the rules of the Court, probate of the Will, or alternatively of the Will and of the 2011 Codicil be granted to the Plaintiffs, reserving leave to the Defendant to come in and prove the Will at a future date. A declaration and other orders were also sought. 3. By a First Cross-Claim filed on 22 March 2016, the Defendant sought an order that Probate in solemn form of the Will and Codicil be granted to him and the Plaintiffs, or alternatively to him reserving leave to the Plaintiffs to come in and prove the Will and Codicil at a future date. An issue also arose between the parties as to the extent of the assets that were within the deceased's estate. 4. The parties reached agreement, in the course of the hearing, as to orders that should be made to resolve all issues in the proceedings. The proposed orders provide (in paragraph 1) for the grant of probate in solemn form of the Will, but not the 2011 Codicil, to the Plaintiffs, on the basis that the Defendant renounces probate and (in paragraphs 4 and 5) for costs. The Court is also asked to note (in paragraph 6) that the evidence filed in the proceedings included certain financial statements and tax returns and to note (in paragraph 7) the terms of an agreement reached between the parties. 5. The Plaintiffs read an affidavit of an attesting witness to the Will, Ms Meredith which recorded that the deceased signed the Will in the presence of the late Mr Robert Heyblok, a solicitor, and Ms Meredith, who attested the Will in the deceased's presence and in each other's presence. The Plaintiffs also read several paragraphs of the affidavit of executors dated 26–27 November 2015, and undertook to bring in a revised schedule of assets within seven days. That affidavit confirmed that they were not aware of any circumstances that raised doubt as to their entitlement to a grant of probate of the Will of the deceased and indicated their reservations as to whether the 2011 Codicil should be admitted to probate. Mr Arthur Pardey has in turn filed in Court a Renunciation of Probate as contemplated by the agreement between the parties. 6. I am satisfied that I can make an order in the form of paragraph 1 agreed between the parties, which provides for the grant of probate in solemn form of the Will. In order to obtain a grant of probate in solemn form, the party propounding the relevant will must call at least one of the attesting witnesses to prove due execution and Ms Meredith's affidavit proves that matter in respect of the Will. The applicable principles in respect of such a grant were summarised by Powell J (as his Honour then was) in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 704–706 as follows (omitting citations): "I take the principles of law to be borne in mind, and, if relevant, to be applied, in a case such as this, to be as follows: 1 The onus of proving that a document is the will of the alleged testator lies on the party propounding it; if that is not established the court is bound to pronounce against the document; 2 This onus means the burden of establishing the issue; it continues during the whole case, and must be determined upon the balance of the whole of the evidence; 3 The proponent's duty is, in the first place, discharged by establishing a prima facie case; 4 A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the court judicially that the will propounded is the last will of a free and capable testator; 5 The first step in establishing a prima facie case is proof that the will was duly executed, that is to say: (a) that it was signed by the testator, or by some person in his presence and by his direction; (b) that such signature be at the foot or end of the will; (c) that such signature be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; (d) that such witnesses attest and subscribe the will in the presence of the testator; … 9 Unless suspicion attaches to the document propounded, the testator's execution of it is sufficient evidence of his knowledge and approval; 10 Facts which may well cause suspicion to attach to a document include: (a) that the person who prepared, or procured the execution of, the document receives a benefit under it; (b) that the testator was enfeebled, illiterate or blind when he executed the document; … 11 Where there is no question of fraud, the fact that a will has been read over to, or by, a capable testator is, as a general rule, conclusive evidence that he knew and approved of its contents; 12 The locus classicus for the test of whether or not a person has testamentary capacity is the judgment of Cockburn CJ in Banks v Goodfellow [(1870) LR 5 QB 549 at 565] in which case His Lordship said: "It is essential to the exercise of such a power (scil, testamentary power) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about it a disposal of it, if the mind had been sound, would not have been made."" 1. That summary of the relevant principles was approved, and other relevant case law comprehensively reviewed, by Hallen J in The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934. I am satisfied of the formal matters necessary for the grant of probate in solemn form. A prima facie case is established that the Will was duly executed, in the respects noted above, and the deceased's execution of it is sufficient evidence of her knowledge and approval of it. No question of lack of capacity arises in respect of the deceased, as at the date of the Will, although a question as to capacity had arisen in respect of the 2011 Codicil. 2. I am satisfied that, as is common ground between Counsel, it is not appropriate that the 2011 Codicil be admitted to probate, where it would have no operative effect. The parties refer to the practice reflected in the judgment of Powell J in The Estate of John David Madzay (unreported, 25 October 1991) that a document which, in the events that have happened, is inoperative will not be admitted to probate. Clause 1 of the 2011 Codicil, which would delete and substitute cl 3 of the Will, would have no operative effect beyond what is already provided in cl 3 of the Will, where Mr Arthur Pardey has survived the deceased and would take her management share in Western Agricultural Company Pty Limited under cl 3 of the Will. The additional words introduced by the 2011 Codicil would only apply if Mr Arthur Pardey had not, contrary to the fact, survived the deceased. Clause 3A of the Will (which would be added by cl 2 of the 2011 Codicil) would have no operative effect if, on its true construction, it operated only if Mr Arthur Pardey did not survive the deceased. It is common ground between the parties that that is the case. That construction of the clause is reinforced by the fact that the clause could not take effect if the relevant property passed to Mr Arthur Pardey on survivorship on the deceased's death or if, in the alternative, the property was held in the partnership, the course it contemplated could not be implemented if that property was sold and likely also could not be implemented without Mr Arthur Pardey's support if it were retained. Clause 3D recorded a disposition which had already been made by the deceased and had no operative effect. 3. I am satisfied that the order as to costs contemplated by paragraph 4 of the Short Minutes of Order may properly be made, and that Mr Arthur Pardey may be left to bear his own costs of the proceedings in accordance with the parties' agreement. I otherwise note the matters recorded in paragraphs 6 and 7 of the Short Minutes of Order, including the matters agreed between the parties as stated in paragraph 7. ********** 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: 02 November 2017