Citation: Newnham v Wakefield [2002] NSWSC 1152
Court: Supreme Court of NSW, Equity Division (Probate List)
Date: 2 December 2002
Judge(s): Windeyer J
Background
The plaintiff sought to have admitted to probate a copy of an informal will allegedly made by the deceased in April 2001. The original document had only one witness, the plaintiff herself, who was also the residuary beneficiary. The plaintiff claimed the original was partly destroyed when eaten by a dog.
The defendants, the deceased's niece and sister, both stood to benefit under an earlier 1995 will. They contested the plaintiff's claim, and when the matter first came before Palmer J in August 2002, defence counsel's opening indicated the defendants intended to advance a case that the plaintiff had fraudulently propounded a document the deceased had never actually signed. The plaintiff's counsel objected that fraud had not been expressly pleaded as required by the rules of court.
The matter was adjourned to allow the defendants to file an amended defence. That amended defence remained unsatisfactory, and the plaintiff moved to have certain paragraphs struck out or, alternatively, to obtain proper particulars.
Legal Issues
- Whether the defendants were required to plead particulars of fraud expressly, in circumstances where fraud was not a necessary component of either the cause of action or the defence.
- Whether the amended defence as filed adequately pleaded the real issue, being whether the deceased ever saw or signed the document propounded.
- Whether various paragraphs of the amended defence and the statement of claim were properly pleaded and should stand, be struck out, or be recast.
Decision
Windeyer J observed that both the statement of claim and the amended defence were poorly drafted, and that confusion had persisted on both sides throughout the litigation. His Honour noted that it is generally unnecessary for a plaintiff to plead that the deceased knew and approved of the contents of a will: execution is ordinarily sufficient evidence of knowledge and approval unless suspicion attaches to the document. However, where the document was prepared by the very person who stands to take a major benefit under it, the circumstances may more readily raise a question about the document's propriety.
On the fraud and forgery question, Windeyer J held that the real issue the defendants sought to raise was whether the deceased had signed the document at all, which amounts to a claim of forgery. His Honour accepted that, in modern practice, a plea of forgery requires not merely a denial of due execution but a specific positive statement to that effect. Although it was clear enough from the pleadings what the defendants intended, the amended defence still fell short of proper form.
Regarding the specific paragraphs of the amended defence, Windeyer J directed that paragraphs 2(b) and 2(c) be deleted, paragraph 2(d) be recast, and paragraph 3(d) be deleted. Paragraph 7 of the amended defence, which related only to forgery, was also to be deleted if the defendants did not allege that the deceased was unaware of the gift to the plaintiff, given their concession that the issue was solely whether she had signed at all.
His Honour noted it is not ordinarily the court's function to settle pleadings, but intervened given the obvious confusion and misunderstanding that had persisted across multiple hearings. Both parties were directed to file fresh pleadings within specified timeframes so the matter could finally proceed to hearing.
Orders Made
- The plaintiff to file an amended statement of claim within 14 days.
- The defendants to file a defence to the amended statement of claim within 14 days after service.
- Leave granted to the defendants to file a cross-claim seeking a grant of probate of the 1995 will, or in the alternative letters of administration with that will annexed.
- In the event a cross-claim is filed, a citation to be issued and served on the Guide Dogs Association of NSW and the ACT.
- No order as to costs on the notice of motion.
- Proceedings relisted before Windeyer J in the Probate List on 10 February 2003.
Key Takeaways
- A plaintiff in probate proceedings is not ordinarily required to plead that the deceased had capacity or knew and approved of the contents of the will: a presumption of capacity applies until the contrary is raised, and execution is generally sufficient evidence of knowledge and approval.
- Where the document propounded was prepared by the person taking a major benefit under it, the circumstances may more readily call the document's propriety into question, as established in Nock v Austin (1918) 25 CLR 519.
- A plea of forgery in modern probate practice requires a specific positive statement to that effect, not merely a denial of due execution.
- Where fraud is raised in substance by a defendant's conduct of the case but is not a necessary component of the defence, the absence of an express fraud pleading creates a procedural difficulty that courts will require to be resolved before the matter proceeds.
- The Supreme Court affirmed that it is not the court's function to settle parties' pleadings, though it will intervene in cases of clear and persistent confusion to ensure proceedings can move forward.
Legislation and Cases Referenced
Legislation
- Wills Probate and Administration Act 1898 (NSW), ss 7, 13, 18A
Cases
- Guardhouse v Blackburn (1866) LR 1 P & D 109
- Kenny v Wilson (1911) 11 SR NSW 460
- Nock v Austin (1918) 25 CLR 519
- Re Hodges, Shorter v Hodges (1988) 14 NSWLR 698
Other
- Mason and Handley, Wills Probate and Administration Service (New South Wales), at 6081