Miller v Jones [1999] NSWCA 467

New South Wales Court of Appeal CITATION : Miller v Jones [1999] NSWCA 467 FILE NUMBER(S) : CA 40645/96 HEARING DATE(S) : 02/12/99 JUDGMENT DATE : 17 December 1999

Damon Charles Miller PARTIES : Charles Harold Miller Jeanette Marilyn Jones Eva Emma May Jones JUDGMENT OF : Meagher JA at 1; Beazley JA at 2; Fitzgerald JA at 36

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 116913/95 LOWER COURT JUDICIAL OFFICER : Brownie J

COUNSEL : Appellant: C A Vindin Respondent: M S Willmot SOLICITORS : Appellant: Carroll & Knudsen Respondent: Packer & Austin CATCHWORDS : Will; Document purporting to be Will; Admission of fresh evidence; Undue influence ACTS CITED : Wills Probate and Administration Act 1898 (NSW) CASES CITED: Nock v Austin (1918) 25 CLR 519 Hall v Hall (1868) LR 1 P & D 481 DECISION : Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40645/96 PD 116913/95

MEAGHER JA BEAZLEY JA FITZGERALD JA

Friday, 17 December 1999

CHARLES HAROLD MILLER & ANOR v JEANETTE MARILYN JONES & ANOR

FACTS

A dispute arose between the executors/beneficiaries appointed or named under a Will dated 3 June 1994 and those under a document dated 1 July 1994. The trial judge found that the latter document was a forgery, the propounders of which have appealed and seek to have it recognised as an informal Will under the Wills, Probate and Administration Act 1898 (NSW).

The appellants also sought leave to adduce fresh evidence as a ground for a new trial. The appellants' witness appeared before the Court and was cross-examined.

The appellants further sought to set aside the Will dated 3 June 1994 on the ground of undue influence.

HELD

per Beazley JA (Meagher JA and Fitzgerald JA agreeing)

(i) There were numerous inconsistencies in the witnesses evidence and it was not believable. As such, it would not change the result of a trial and the Court should not admit the evidence.

(ii) For a finding of undue influence to be made the court must be satisfied that the Will was the result of the overbearing of the testator's will. Steps were taken to ensure the instruction came from the testator. The respondents discharged the onus they bore to show the instruction came from the testator and the Will dated 3 June was the free exercise of the testator's benefaction.

per Fitzgerald JA

(i) There was no basis for any suggestion of error by the trial judge in his Honour's rejection of the appellant's assertion that the Will dated 3 June 1994 was procured under undue influence.

ORDERS

Appeal dismissed with costs THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40645/96 PD 116913/95

MEAGHER JA BEAZLEY JA FITZGERALD JA

Friday, 17 December 1999

CHARLES HAROLD MILLER & ANOR v JEANETTE MARILYN JONES & ANOR

JUDGMENT

1 MEAGHER JA: I agree with Beazley JA. 2 BEAZLEY JA: This case involved a dispute between the executors/beneficiaries appointed or named under a Will of the deceased dated 3 June 1994 and those under a document dated 1 July 1994, which its propounders seek to have recognised as an informal Will under s 18A of the Wills Probate and Administration Act 1898 (NSW). 3 The trial judge found that the document dated 1 July 1994 was a forgery. The effect of the orders made by his Honour will enable probate to be granted of the Will of 3 June 1994. The propounders of the document of 1 July 1994 have appealed against his Honour's orders. They also seek leave to adduce fresh evidence as a ground for a new trial. Pursuant to orders made by Mason P the matter was listed before the Court for determination of whether the fresh evidence should be admitted. During the course of hearing that application, the Court directed that the parties file written submissions in relation to the ground of undue influence.

The Fresh Evidence 4 The appellants seek to adduce evidence from Peter Paul Viscardi. Mr Viscardi has run a number of restaurant businesses over a period of twenty years. He has known the first appellant, who was a patron of at least one of Mr Viscardi's restaurants, for about twelve years. The extent of patronage was not clear on the evidence, although it does not seem to have been extensive, and is probably not relevant. However, as a result of that connection, Mr Viscardi retained the first appellant to do some printing work for him, through his printing company Galloping Press. He says printing work was done in 1987, 1992 and 1993. This evidence was put forward by way of background. The critical period was July 1994. 5 Mr Viscardi said that on 1 July 1994 he wanted to revise the prices in the menus as it was the new financial year and he also needed a new supply of business cards. He said on that date he telephoned the appellants' business and asked to speak to one or both of the appellants. He was told they had "gone to 45 Leichhardt Street Leichhardt". He was given no information about that address, or why the appellants had gone there or how long they would be there. 6 So extraordinarily unarmed with any relevant information, Mr Viscardi decided to go to the address in Leichhardt. As it turned out, the address was the home of the testator. Mr Viscardi did not know the testator but gave evidence that when he arrived at the premises, which was a cold wintry day, he observed two elderly men on the front verandah, one in a wheelchair and one standing with a walking device. Prior to swearing his affidavit, he identified the man in the wheelchair as the testator. The other man fitted the description of Mr Manning, the witness to the document of 1 July 1994. 7 Mr Viscardi said that he went into the premises and spoke to the two men as to the whereabouts of the appellants. He was told that they would be there shortly. Notwithstanding the presence of this stranger, the two elderly gentlemen apparently decided to continue with the alleged business of their meeting - the execution and witnessing of the 1 July document. Mr Viscardi said he observed them undertake that task. He said he also observed that the document was addressed to the first appellant and he gave details of the conversation between the two men as they executed the document. 8 The appellants submitted there were two aspects of Mr Viscardi's evidence which supported its likely cogency. Firstly, he said he made a diary entry in his restaurant diary as he made the telephone call to Galloping Press before deciding to go to Leichhardt. Secondly he commented on the spelling of the word 'dependent'.

Diary Entry 9 Mr Viscardi annexed the diary entry to his affidavit. It was the third and last entry on the page under a heading "TO DO Am". The first two entries related to food and serviettes. The relevant entry read: "3) Printing (Menus) Rang for Charlie and Damon - Ph 558 1466 GONE to 45 Leichhardt St Leichhardt." 10 This entry has a number of unusual features. It was written in the past tense. Other entries in the diary were written in the present tense. It was also under a "TO DO" column which would indicate that in the normal course it would be written in the present tense. It was also strange as to why Mr Viscardi would write down the telephone number in the diary as he was speaking. He said he had the telephone number in and got it from his teledex. It served no purpose to write it in his diary. 11 Mr Viscardi was cross-examined extensively about the diary entry, the urgency with which he required the menus and business cards, and what he did about the printing given that he did not meet the appellants at the Leichhardt Street premises as he had hoped to do. 12 He said that having left 45 Leichhardt Street, Leichhardt after about ten minutes, he did not try to contact the appellant as he was "in a hurry to speak to the printers and I thought well I'm really wasting my time in Leichhardt so I might as well get it done locally". He went to Snap Printing at Alexander Street Crows Nest the following Monday, 4 July. 13 He said he made the diary entry as he was speaking on the telephone; that he made the entry so his head waiter would know where he was; and also to remind himself that he needed the printing done; and that by writing it down he would not forget the address. 14 He said he took nothing with him to Leichhardt, as Galloping Press held artwork in relation to the business cards and he wanted to vary the design of the menu slightly so that new arrangements would have to take place. He said that, not having found the appellants at Leichhardt and not having left any message for them there, he returned to his business at Crows Nest and decided, on the following Monday, to order the printing work through a local printer. 15 Mr Viscardi was emphatic that he had decided on 30 June to contact Damon Miller on 1 July; that he had done so on the morning in question; that he had not contacted and not planned to contact Damon Miller after 1 July and that having missed them at Leichhardt he decided to have his printing done elsewhere. 16 If Mr Viscardi's story is suspended at that point, it must be commented that it is an extraordinary one - that someone in urgent need of printing work would go to an unfamiliar address at Leichhardt in the hope of meeting the printers but without taking the menus which required a variation to the price and some re-design. One really has to ask - how was Mr Viscardi going to give instructions as to the price changes and re-design without having any documentation to show the printers and without the printers having their own material in front of them? Because the story is inherently incredible, it has to be scrutinised with particular care. 17 During the course of his cross-examination, Mr Viscardi's complete diary was tendered. It revealed an entry on 4 July as follows: "Ring Damon re menus, no artwork." 18 When shown this entry and asked to read it to the Court, there was a considerable and critical pause, until Mr Viscardi was prompted by Fitzgerald JA with the question "Is it difficult to read?". He was asked when he wrote the entry. He said he did not know. He said he possibly did not write it on 4 July. He then said: "I could have written it, your Honour, previously when I thought about a feasible date to speak to the printers in relation to the printing of the menu and I didn't think I required any artwork at the time." 19 Mr Viscardi said he did not ring Damon Miller on 4 July . His evidence was: "Q. Why then have you got an entry, 'ring Damon re menus'? A. I must have written it previously, sir, and then I went to see him instead on 1 July. … Q. Why would you not follow him through on Monday, 4 July if you hadn't been able to get a response from him on the previous Friday?" 20 He replied: "A. If I may explain to this Court, what might have happened is earlier on 1 July, when I decided to get the menus revised, I thought a more suitable date would have been 4 July to contact the printers. However, for no reason I rang him on 1 July instead." 21 His evidence continued: "I wrote the word, 'no artwork' for the specific reason which I believed that no artwork would be necessary or -- FITZGERALD JA: You told me the opposite when I asked you questions a moment ago. You told me that you proposed the revision of the menus in relation to both artwork and prices? A. Yes, your Honour. FITZGERALD JA: Which is true? A. Well, the business card -- FITZGERALD JA: No, the menus? A. Well, some time when you print new menus, you don't need to buy new artwork. You use -- FITZGERALD JA: You have the words, 'no artwork' in the context of menus in your entry on 4 July? A. Yes, your Worship. FITZGERALD JA: You have said recently to [counsel for the respondent] that that indicates that you did not intend any change to the artwork. Is that correct? A. Yes, your Honour, probably when I wrote that note, as far as I can recollect, maybe at that point of time I didn't want to change the artwork but when I spoke to Galloping Press on 1 July, by then I had made up my mind to change the artwork, your Worship." 22 I found this evidence to be totally unconvincing. Having been 'caught out' on a diary entry which he had clearly forgotten, and which was contrary to his earlier evidence, his ex post facto witness box rationalisation demonstrated, in my view, that his evidence should not be accepted.

Spelling of the Word 'Dependent' 23 In his affidavit, Mr Viscardi said he had been asked about the correctness of the word 'dependent' in the 1 July document. He said he looked at the spelling in the document whilst he was at Leichhardt and said he thought it was wrong. Having queried the spelling and being told it was wrong, neither the testator nor the other gentleman sought to correct it. More importantly, when asked about the spelling in the witness box, Mr Viscardi spelt the word as it was spelt in the document. 24 There were other inconsistencies in Mr Viscardi's evidence. The above were simply the major ones. In my opinion, Mr Viscardi's evidence was not believable. Not being believable, it would not change the result of the trial. Accordingly, I am of the opinion that the Court should not admit the evidence.

Undue Influence 25 The appellants also sought to set aside the Will dated 3 June 1994 on the ground of undue influence. They rely upon the following matters: · the testator was nearly one hundred years old when he made his will and was infirm, and that "cast a thick veil over him but not an unpierceable one"; · the major beneficiaries under the Will (Jeanette Jones and Eva Jones) were not only present when the solicitor was taking instructions, but were interfering; · the solicitor, Mr Austin, did not and should have obtained a medical opinion as to the testator's testamentary capacity; · those matters, taken with the evidence as a whole, demonstrated that the testator had been coerced into changing his Will because his desires were overborne by the respondents. 26 It was submitted that with an aged, infirm testator, very little pressure was required to establish the requisite amount of coercion to invalidate a Will. 27 I am prepared to approach this matter on the basis that the presence of the respondents, who are beneficiaries under the Will, at the time instructions were being taken was sufficient to excite suspicion as to whether it was the free expression of testamentary intention by the testator. The respondents therefore bore the onus of proving that the testator knew and approved the contents of the Will: Nock v Austin (1918) 25 CLR 519 at 528. 28 For a finding of undue influence to be made, the Court must be satisfied that the Will was the result of the overbearing of the testator's will. However, appeals to sentiments of affection do not, of themselves, constitute undue influence. As Sir James Wilde explained in Hall v Hall (1868) LR 1 P & D 481 at 482: "… a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else's." 29 In my opinion, the respondents discharged the onus they bore to demonstrate the Will 3 June was the free exercise of the testator's benefaction. Mr Austin's evidence was clear: he was concerned about the interference from the family members present, so he took steps which he considered appropriate and sufficient to ensure his instruction came from the testator. He said: ""… when it became apparent to me that the whole family wanted to instruct me about granddad's will and that included the rest present, … who… were, as it were, chiming in … From that moment, I thought it necessary to ensure that my instructions came directly from the testator … And I considered tossing them all out and having him to myself. However, he was so infirm and our communication was so stilted that I thought it better in the interests of really understanding what his wishes were not to try and exclude everybody else from the room." 30 He also satisfied himself that the testator was: "communicating and that I was gleaning the contents of his mind and not receiving his instructions from third parties" 31 And that: "I was concerned that I was making a will, I was reducing a provision for the two grandchildren who weren't - who didn't live with him and I wanted to satisfy myself and posterity that I was getting the instructions from the horse's mouth and so far as I could in the circumstances where I saw him, that he was expressing his own wishes to me." 32 He also said that he thought the family's wishes were "more extreme" that is, more strongly against provision for the first appellant and his sister than were the testator's. He had "the impression Eva junior and senior had no interest in seeing Damon get anything" but that he "was able to distinguish their views from those of … the testator". 33 The respondent's also called the testator's general practitioner who had attended him for twelve years prior to his death. He said that in the few years prior to his death he was frail and housebound and unable to get to the front door unassisted. His health was deteriorating from the effects of prostate cancer and secondary anaemia. He attended him only when requested and only had need to attend him in 1994 in February and November. 34 In my opinion, this evidence together with that of Mr Austin's is sufficient to satisfy the onus which the respondents bore. 35 Accordingly, the appeal should be dismissed with costs. 36 FITZGERALD JA: I agree with the orders proposed by Beazley JA, and with her Honour's reasons. 37 I add only that, although the trial judge noted that the appellants "led no direct evidence in support of [the] allegation [of undue influence] but attempted to establish it by cross-examination of the [respondents'] witnesses", his Honour "carefully and suspiciously" scrutinised the circumstances before rejecting the appellants' assertion that the Will of 3 June 1994 was procured by undue influence. There is no basis for any suggestion of error by his Honour. ****************

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