Bond v Digney [1992] QSC 90

TRANSCRIPT OF PROCEEDINGS State Rep:ming Bureau, 4th Floor, The Law Courts . George Street, BRJSBANE. 0. 4000 Tel. (Oi) 22i.4360 (Copyright in this transcript is vested in the Cro'illil. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) IN THE SUPREME COURT OF QUEENSLAND CIVIL. JURISDICTION AMBROSE J No 1999 of 1991 VALDA JEAN BOND Plaintiff and LORRAINE HAZEL DIGNEY Defendant BRISBANE .. DATE 10/3/92 JUDGMENT · 1 -- 1 of 13 -- _--., 100392 JUDGMENT HIS HONOUR: In this case I have come to a conclusion upon the close of.the evidence. It is not a long case and the issues are not very complicated. I propose without reserving my judgment to give judgment now. 10 10 The plaintiff and the defendant are two sisters and their mother died on 21 May 1990. She was then seventy-two years of age. She had made a will back on 16 March 1984 appointing her two daughters to be her executrixes, and 20 under the will the younger daughter, who is the defendant in 20 this case, Lorraine Digney, took the mother's realty, and the elder daughter, Valda Jean Bond, took the residue. The evidence suggests that the value of the reality is about 30 $150,000 and the value of the rest of the estate is between 30 $30,000 and $40,000. At the time the testatrix made her will she was 66 years of age. It is clear on the material that she had suffered from various health problems. I accept that although she suffered from pain and discomfort, 40 she was not seriously incapacitated at least to the extent 40 that her incapacity might have effect upon her testamentary capacity or her understanding of what she was doing. The plaintiff's case is that the will made on 16 March 1984 50 ought be pronounced against, and she asserts in her pleading 50 that if it is pronounced against, then she ought share in her mother's estate with the defendant upon an administration of the estate under which she and the defendant would take equal shares. Her case is based 60 Govt. Printer. Old. 2 -- 2 of 13 -- 100392 JUDGMENT Succession Act of 1981 to 1983. In essence, her case is that her mother'swillof which the defendant was seeking a grant of probate in common form before this action was instituted, had not been signed by the deceased at the end 10 of it or acknowledged by the deceased in the presence of the 10 two witnesses. When one looks at s.9 of the Succession Act, it is provided that, "A will to be valid must be signed at the end of it by the testator and acknowleged by him in the presence of two witnesses present at the same time and the 20 witnesses must attest as witnesses in the presence of the 20 testator." It is the plaintiff's case that that requirement was not complied with in the present case. The plaintiff relies upon one witness to support her case and that is her Aunt Leila Hicks. 30 30 The case is a little unusual. The onus, of course, is on the person propounding a will in solemn form to prove that it is the last will. In this case, however, the plaintiff didn't propound the will. She asserted that it was not a 40 proper will; not a valid will. It was the defendant to the 40 counterclaim who propounded the will asserting that s.9 had !been properly complied with. I should state at the outset, therefore, in spite of the unusual course in which the trial took, I adopt the view that the onus is on the defendant in so this case to show that the will was a proper will, in all the circumstances, and that probate ought to be granted to her. I do not take the view that there was any onus upon the plaintiff in this case to ,prove that it was not a will executed in compliance with s.9 of the Succession Act. I Govt. Printer, Old. 3 50 -- 3 of 13 -- 10 100392 JUDGMENT evidence that was placed before me, but I indicate that, at the outset, I take the view that the onus was not on the plaintiff to disprove the validity of the will; it was on the defendant to prove its val:idity. Leila Hicks was one of the witnesses to the alleged will. The other~~itness was her husband, Selwyn Hicks. After the two of them apparently had signed the will form or the will document, there was, if not a dissolution of the marriage, w certainly a separation. They were living apart apparently at the time of·~:fi.fmot the death of the testatrix, 1 thenthe time the application for probate in solemn form had been made; because Selwyn Hicks prepared an affidavit which he executed on 21 January ~991 concerning the due execution 10 20 30 of the will. That affidavit was :duly filed in theCourt shortly after 30 its execution and, of course, itwasasthe result of the plaintiff's action in this case that the common form application came to a .halt pending the determination of the issue raised in the plaintiffs application to have declared 40 that the will was not a valid will executed in compliance of 4 o the Succession Act. The plaintiff relies upon Leila Hicks, and I will refer to her evidence shortly. The defendant on the other hand 50 relies upon the evidence of one of the daughters, the daughter Lorraine Hazel Digney and her husband, as to the circumstances in which the will in issue was executed. The defendant also relies upon Mr Lowes, who was the solicitor who took instructions for the will from the testatrix and 60 Govt. Printer. Old. 4 50 60 -- 4 of 13 -- 100392 JUDGMENT affidavit of Selwyn Hicks, of course, to which I have already referred. There is no issue between the parties to this action that it was Mr Selwyn Hicks who did in fact execute the affidavit as to the du~ execution which wa3 filed in this Co~rt in ~ts probate jurisdiction in support of 10 the common form of ,application for probate on 29 January 1991. I do not propose at this stage to analyse in great detail the evidence of Mrs Leila Hicks. Stated briefly, it is her 20 evidence that the testatrix sat on a couch in another room, at 20 the time she and her husband attested what appears t.o be the will propounded by the defendant_ for probate, at a table. Her evidence is that she put her signature and occupation and address on a will form when the 30 document was folded over so that she didn't know that it was 30 a will. She said that, and she folded over a copy of the will to indicate just how it was folded at the time she applied her signature. She says that she signed the will I form, the document first, not understanding that it was a 4 o will and that later her husband, also, she thought, signed 40 it and at the time she was talking to the testatrix who was sitting on the couch in another room. Strangely she says she raised with her husband on the way home after the signing of the will the question why he had put JP after his so name. How she would know he put JP after his name if she didn't so witnes him signing remains unexplained to me. However, t):lat ,is what she said. It is her evidencet therefore, and the plaintiff relies upon it, that certainly the testatrix did not sign the document in her presence, because she says when 60 be went into the room containing the table on which the 60 Govt. Printer, Old. 5 -- 5 of 13 -- 10 100392 will was awaiting her signature, the t~statrix was sitting over on the lounge chaii in another room and the will was so folded up that she could not examine it closely and she didn't know it was a will, although at some stage, apparently, she asked the testatrix whether it was a will and the testatrix said it wasn't; thatitwas. some sort of finance document. The defendant Lorraine Digney, who was the beneficiary under the testatrixes will, gave evidence to contradict Leila Hicks and she also called her husband to 20 contradict Mrs Hicts ~nd to support, in essence, her version of the events leading to the execution and attestation of the will. 30 40 50 60 Govt. Printer. Old. 6 10 20 30 40 50 60 -- 6 of 13 -- 100392 JUDGMENT There is a great deal of material in the evidence of Mrs Hicks which to my mind, in any event, sitting on the Bench listening to her evidence and trying to appraise her reliability, casts very severe doubts upon her reliability. She is an old lady. It is clear that she is not expected to 10 10 live long. She has had a great deal of ill health and she made it very clear in the course of her evi~nce that ~ she was sorry she had ever been asked to attest ·the will. She obviously thought that probably -the defendant had been guilty of some trickery 20 20 in procuring the signature of the testatrix to the v~ll form. She adverted to the fact that the defendant had worked in a solicitor's office and it is clear from what she said in the evidence she gave that she regretted very much indeed having been talked into witnessing a ~11, the 30 30 contents of which apparently subjected her to blame. She said at one stage, "Why do they have to pick on me so that they could lay all this blame on me now?" She seemed to think that she was somehow to blame for the unequal distribution of the testatrix's assets between her <tO two daughters. I found much of the evidence of Mrs Hicks vague and self-contradictory and I don't propose to go through it all. A cursory examination of the transcript of her evidence will show contradictory statements and statements that reflect actversely upon her reliability. 50 50 It seems that clearly she is of the view that the testatrix ought to have divided her estate equally between her two I --~6~0--r--------------------------------------------~------~----~----------~ 60 daughters. She clearly suspected that the testatrix did not know she was signing a 'vill when she applied her signature - Govt. Printer, Old. 7. -- 7 of 13 -- 10 20 30 -+0 50 100392 JUDGMEJ>TT to Exhibit 2 in the action. She made it clear that she suspected that the w.ill was a fabrication and I inferred that she suspected that the defendant had been involved in its fabrication because she had experience working in a solicitor's office. One of the most compelling points in my view against the reliability of the evidence of Mrs Hicks are the folds contained on Exhibit 2, which is the w.ill form executed by the testatrix and attested by Mrs Hicks and her husband on 16 March 1984. To my mind a careful examination of the will form indicates that it would have been impossible for the \•:111 to be folded up the way Mrs Hicks folded up Exhibit l, the photostat copy, to demonstrate how it had been folded. The fold marks left on Exhibit 1 are absolutely inconsistent with the fold marks left o.n the ~-Jill the way Mrs Hicks demonstrated it had been folded, and moreover, more importantly perhaps, the fold marks on Exhibit 2 indicate clearly that the attestation clause asserting that ~t was a will and that it had been signed by the testatrix in the presence of Mr and Mrs Hicks was clearly in the view of whoever happened to be signing the attestation clause at the time those signatures were appended. In my view it is clear beyond argument. It is clear beyond argument because Mrs Hicks said that the w.ill was folded over and left on the table,and itwas flat for her to sign. I suppose by stretching one's imagination one could imagine that the paper could have been folded Dver, and held in place by somebody, just above the place for a s.ignature without the folds appearing in Exhibit 2 as they do. It couldn't - 1~ovt Printqr, ()lrl 8 10 20 30 50 60 -- 8 of 13 -- 100392 JUDGMENT possibly have happened that the Will was folded up and left on the table for her to sign in a condition - which Exhibit 1 indicates .. it was in according to her evidence. In my view this simply highlights the unreliability of this poor old lady who, as I said before, has really had a very bad trot 10 10 over the last five or ten years and whosE. unreliability, in my view, is attributable not merely to what has been said to her since the death of the testatrix, but also having regard to her state of health and the effect it has had upon her memory. 20 20 There is a good deal of evidence called from handwriting ·~- experts as to the person who wrote the date of the v?ill, "16th of March", which--appears arove'"'th~- attestation c~ause and just above the signature of the testatrix. If in the writing of one of the three 30 30 -lO 50 persons whose wrib.ng clearly appears on the r.vill, t-.ha::: is the· testatrix, Mr Hicks and Mrs Hicks, it· seems clearly to have been written by Mr Hicks. It could, I suppose, have been written by somebody else altogether, but I just find that it would be quite improbable' for that to be. so. The will was ·sent a day or two befo::ce its execution by tl:).e .sqli.ci,tor who prepared itinMr Lowes' office, and somebody filled.it in on 16 March; the date the "16th of March" on the back sheet of the will seems clearly to have been written by the testatrix. I am satisfied that of the three persons who put pen to paper on 16 March 1984, the person who wrote in the date, "16th of March", was Mr S Hicks and the. fact that he wrote that in makes it even more improbable that the nature of the document was hidden from Mr Hicks or Mrs Hicks when they attested the will. ' 40 50 --~6~0--r-----------------------------------------------------------------------____j 60 - Govt. Printer, Old. 9 -- 9 of 13 -- 100392 JUDGMENT As well as the unreliability and, really unacceptability of the evidence of Leila Hicks, we have the affidavit of her husband to which I have referred. This was signed in front of a New South Wales solicitor £or the usual iO , \ 10 purpose of providing evidence as to due execution in support of the application for probate in common form. He had a look at the ~opy of the will. It was certified and it was made an exhibit to his affidavit, and he said that some date prior to 16 March both he and his wife received a 20 20 telephone call from the testatrix, not from anybody else. He said that the call came from the testatrix requesting that they attend at her house at 153 Verney Road to witness a will. He said he couldn't recall the exact day or date and so on, and one wouldn't expect him to, but he did say 30 30 that the signature of himself and his wife appearing on the VJill were in his handwriting and the handwriting of his wife and he swore that the signature of the testatrix was subscribed after the attestation clause, which I suppose is not strictly correct - but the signature ~0 40 subscribed on the Will is that of the testatrix. He said that her signature was well known to him and his wife, but more importantly he said it was put there in their presence. He said that to the best of his belief and memory the testatrix put her signature to her w.ill in his presence and in 50 50 the p:j:'esence of his wife both of whom had been ·specifically requested to attend at her·dwelling house at Verney Road for that very purpose. view, that evidence, with the evidence of the 60 Printer. Old. -- 10 of 13 -- ' ' 10 20 100392 JUDGMENT defendant Lorraine Digney and her husband, provides the strongest evidence to support the presumption of due execution. I have been referred to a number of authorities relating to due execution and I will only refer to them for the purpose of completion. I have been referred to the contents of a text book on execution of Wills, 'Wills and Intestacy in Australia and New Zealand' by Hardingham Neave and Ford 2nd Ed. I referred to the extract that appears at paragraphs 211 to 221, but in particular paragraph 220. I was referred also to decision of Mr Justice Sholl in Bladen (1952) VLR 82 pg 83, 84 and 87. I approach the point in this case in this way: I take into 10 20 30 30 50 account the presumption of due execution that is dealt with in those cases_. I do not regard it as placing any onus upon the plaintiff in this case to displace it by calling evidence from Mrs Hicks. I simply take it into account when I look at the evidence of Mrs Hicks and the evidence of Mr and Mrs Digney. It. seems to me that one can properly do that keeping in mind particularly the affidavit evidence of Mr Hicks that was admitted under s 92 of the Evidence Act. It is his· s t-a·temen t sworn on oath and he is now deceased. In my view it is consistent with the evidence of the Digneys who were in the.house at the time of the execution of the Will. It is quite inconsistent with the evidence of Leila Hicks who was one of the attesting witnesses. · Govt. Pr::-.:_, ::-.:.: 11 i 40 50 60 -- 11 of 13 -- 100392 JUDGMENT The conclusion to which I have come is that the plaintiff has failed to show or to prove that the 'vvill in question was not duly executed by the testatrix. More important, however, and in my view, in accordance with the proper rule as to onus of proof, I am satisfied that the defendant has 10 10 shown by affirmative evidence that the testamentary instrument executed by her mother on 16 March 1994 was e.:x<=>~"'llted in . accordance with the provisions of s 9 of the Succession Act. It is not pleaded that the testatrix lacked testamentary 20 20 capacity or that there is anything else, any fraud or anything of that sort. There is no evidence to that effect and I need give no consideration further to that aspect of the case. 30 30 I am satisfied on the evidence that the will, which is Exhibit 2 in this action, was executed 0y the testatrix in accordance with the requirements of s 9 of the Succession ' Act. For what ~t tis T·Jortl1 .. having regard to the way the case has been conducted, I am also satisfied on the uncontradicted · -!0 I -TO evidence tha·::: a+: the time of execution the testatrix had the requ:i.si.te testamentary capacity. I pronounce in favour of the 1r1ill of the deceased which was executed on 16 March 1984, which is Exhibit 2 in the action. 50 50 I order that subject to the normal requirements of the Registrar, that probate of that testamentary disposition be granted to the defendant who has already applied for probate in common form. 60 . Govt. Printer, Old. 12 -- 12 of 13 -- 10 20 30 50 60 100392 JUDGMENT I order the plaintiff pay the defendant's costs of and incidental tor the action to be taxed. 13 10 20 30 i 50 60 -- 13 of 13 --