Breckenridge, Deceased, Re [1974] PGSC 3; [1974] PNGLR 90 (11 July 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 90 - Breckenridge, Deceased, Re

[1974] PNGLR 90

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

RE BRECKENRIDGE DECEASED

Port Moresby

Williams J

10 June 1974

11 July 1974

WILLS - Probate - Lost will - Oral evidence - Standard of proof required.

WILLS - Probate - Costs - Lost will - Costs of propounding earlier will - Reasonableness - Costs as between solicitor and client.

Where a person seeks to propound a lost will by oral evidence, the standard of proof required is the civil one; the court must feel an actual persuasion of a fact before it can be found; a fact must be made out to the reasonable satisfaction having regard to the seriousness of what is alleged, any inherent unlikelihood of its occurrence or existence and the gravity of the consequence flowing from the finding. Reasonable satisfaction should not be produced by inexact proof, indefinite testimony or indirect inferences.

Tests in Re Plunkett deceased[1965] VicRp 16; , [1965] V.R. 118 and Brigginshaw v. Brigginshaw [1938] HCA 34; (1938), 60 C.L.R. 336 adopted and applied.

In seeking to propound an earlier will (when the later will is lost and is proved by oral evidence) the executor thereunder, acting in a reasonable manner is entitled to costs as between solicitor or client out of the estate.

Hearing of Order Nisi

The deceased Georgina Olive Breckenridge died in Port Moresby in December, 1971. Application for a grant of probate of a will dated 14th May, 1966, was made by the attorney of the executrix appointed thereunder. The widower of the deceased lodged a caveat contending that the deceased executed a later will dated 10th December, 1968, which will was not produced. Upon the matter coming on for hearing an order nisi for the grant of probate of the will dated 14th May, 1966, was made and proceeded with.

Counsel

J. A. Griffin, for the applicant for probate.

E. A. Francis, for the caveator.

Cur. adv. vult.

11 July 1974

WILLIAMS J: The abovenamed Georgina Olive Breckenridge died in Port Moresby on a date unknown in December, 1971. Application is made for a grant of probate of a will dated 14th May, 1966, by the attorney of the executrix appointed thereunder. A caveat has been lodged by Bruce Oldrey Breckenridge, the widower of the deceased. It is the contention of the caveator that the deceased executed a later will dated 10th December, 1968, which contained a clause expressly revoking the will the subject of the application for a grant of probate. It should here be observed that the latter will has not been produced.

Upon the matter coming on for hearing I made an order nisi for the grant of probate of the will dated 14th May, 1966 and, with the consent of counsel who appeared for the parties, the order nisi was made returnable instanter and the hearing on the order nisi then proceeded.

It was submitted by Mr. Griffin who appeared for the applicant for probate of the will dated 14th May, 1966, that the onus of proof that that will had been revoked lay upon the party setting up the revocation (Williams on Wills 3rd ed. p. 102). Mr. Francis, who appeared for the caveator, accepted that the onus lay upon his client although an issue arose between the parties as to the nature and extent of that onus.

A number of authorities were cited by counsel. In Cutto v. Gilbert[cviii]¹ a testator executed a will in 1825 which was found uncancelled at the time of his death in 1853. In 1852 he executed another testamentary paper the contents of which were wholly unknown except the circumstances of the paper commencing with the words “This is the last will and Testament” and this instrument was not forthcoming at the date of the testator’s death. Dr. Lushington speaking for the Judicial Committee of the Privy Council at p. 251 said:

“The fact first to be proved is the execution of some subsequent testamentary paper; and we here think it right to observe, that we are of the opinion that where the revocation of an existing will is sought to be established by the proof of the execution of a subsequent will not appearing and where there is no draft or instruction in writing when such fact is to be proved by oral evidence only such evidence ought to be most clear and satisfactory; for we concur in the opinion which has been expressed by very learned persons that to revoke an existing will by parol evidence alone that another will has been executed is, though the law may admit of it, a course of proceeding not unattended with danger, and consequently, that such oral evidence ought to be stringent and conclusive.”

The passage cited has been adopted in a number of subsequent cases.

In Woodward v. Goulstone[cix]² the Court of Appeal considered a matter in which it had been sought to propound a lost will upon parol evidence alone. At p. 475 Lord Herschell after making reference to the fallibility of human memory said:

“I think, therefore, that in order to support a will propounded, when it is proved by parol evidence only, that evidence ought to be of extreme cogency and such as to satisfy one beyond all reasonable doubt that there is really before one substantially the testamentary intentions of the testator.”

The view of Lord Herschell has been adopted and applied in a number of cases.

In re Wippermann[cx]³ was another case in which it was sought to propound a lost will by oral evidence, and in which the standard of proof in matters of this nature was considered. Pearce J. in declining to accept the passage quoted from Lord Herschell’s speech in Woodward v. Goulstone[cxi]⁴ stated that no other authority had been cited to show that the standard of proof required in the reconstruction of a lost will by parol evidence differs from that in other cases and went on to express the view that the standard of proof in such a case was the ordinary standard in civil cases, namely a reasonable balance of probabilities. It seems, however, that a number of cases in which the view expressed by Lord Herschell in Woodward v. Goulstone[cxii]⁵ was adopted and applied were not cited and from which it is plain that a high standard of proof in these cases has consistently been applied.

In Re Plunkett deceased[cxiii]⁶ Smith J. reviewed the authorities relating to proof in matters of this nature and expressed the view that it was open to doubt whether Lord Herschell and those, who in later cases, adopted the expression “reasonable doubt” intended to lay down that the criminal onus must be satisfied and that it seemed more probable that they were merely seeking to express in emphatic language the principle laid down in Cutto v. Gilbert[cxiv]⁷ that the evidence should be closely scrutinized and convincing proof required. His Honour went on to express the view that the onus is a civil one and then applied the standard expounded by Dixon J. (as he then was) in Brigginshaw v. Brigginshaw[cxv]⁸. With respect I agree in the view expressed by Smith J. and propose to apply in this case the Brigginshaw v. Brigginshaw[cxvi]⁹ standard that is that the court must feel an actual persuasion of a fact before it can be found, that a fact must be made out to the reasonable satisfaction having regard to the seriousness of what is alleged, any inherent unlikelihood of its occurrence or existence and the gravity of the consequence flowing from the finding. Reasonable satisfaction should not be produced “by inexact proofs, indefinite testimony or indirect inferences.”

I turn now to the question of the evidence adduced at the hearing, which took the form of evidence on affidavit and oral evidence.

The caveator in an affidavit sworn on 27th May, 1974, deposed that he was the widower of the deceased and that some time in the year 1968 both the deceased and himself executed wills in reciprocal terms. He stated that to the best of his recollection and belief these wills were typed by a Mrs. Godfrey who was a friend of the deceased and upon completion of the typing they were signed by the deceased and himself in the presence of two witnesses. The signed wills were then handed to the deceased. He annexed to his affidavit a carbon copy of his own will. He further deposed that to the best of his knowledge, information and belief the wills were then deposited by the deceased for custody with the Australia and New Zealand Bank, Port Moresby branch. He also stated that from information received following the death of the deceased the wills were withdrawn from the bank by the deceased on the 22nd February, 1969, and were subsequently deposited by her with the Bank of New South Wales, Port Moresby and later withdrawn by her from that bank. He also stated that he had diligently searched amongst the personal effects of the deceased at the former matrimonial home and caused inquiries to be made of members of the family and amongst friends but had been unable to find the will made by her in 1968 or the will which was executed by him at the same time.

The caveator also gave oral evidence in which he said that he recalled an occasion on the 10th December, 1968, when the deceased and himself made wills. He stated that they had been prepared by a Mrs. Jack Godfrey, who at the time worked in the office of the Public Curator, Port Moresby. In his own will he bequeathed everything to the deceased and she in turn bequeathed all her property to him. He also stated that within a few days before giving his evidence he found the original of his own will, which he produced, and said that on the same day before the same witnesses the deceased a will in the same terms except that he was the beneficiary thereunder. His own will and that of the deceased were both witnessed on the same occasion by Mr. and Mrs. John Ellis. He stated that the deceased and himself went together to see Mrs. Godfrey and gave her the necessary instructions for the preparation of the wills and that after they had been typed Mrs. Godfrey handed them to the deceased and himself. They then took them to the residence of Mr. and Mrs. Ellis who witnessed them. In cross-examination he stated that a discussion had taken place between the deceased and himself when it was agreed that they should make wills in reciprocal terms and that this led to the giving of instructions to Mrs. Godfrey for the preparation of the wills. He was unable to offer any explanation as to why the deceased should have taken possession of the two wills after their execution in the presence of Mr. and Mrs. Ellis. He stated that he had found his own will only a few days before in a port at his home, but could offer no explanation as to how it came to be there, although he was sure that he had not put it there himself. He stated that the deceased had committed suicide but that the matrimonial relationship between them up to the time of her death had been good. He also stated that after the wills had been made in 1968 the deceased and himself went to the Australia and New Zealand Bank to deposit them and could offer no explanation why he had sworn in his affidavit that the wills had been taken to the bank by the deceased. It might here be interpolated that there was other evidence in the case which shows that an envelope marked “Last Will and Testament of Georgina Olive Breckenridge” was deposited with the Australia and New Zealand Bank, Port Moresby on the 7th March, 1968, a period of nearly nine months before the alleged execution of the wills in December 1968. The caveator could offer no explanation of this. He stated that the wills had been prepared by Mrs. Godfrey not in her official capacity as a member of the staff of the Public Curator but on a personal basis as a friend of the deceased. He further stated that after giving instructions to Mrs. Godfrey the deceased had a message from Mrs. Godfrey to say that the wills had been prepared whereupon the deceased and himself went to the Public Curator’s Office and picked them up from Mrs. Godfrey.

Mrs. Godfrey gave oral evidence. She said that she was a close friend of the deceased. Whilst working in the Public Curator’s Office in 1968 she had been requested to prepare wills for the deceased and the caveator. She received these instructions from the deceased at the Port Moresby Bowling Club. She prepared the wills at the office of the Public Curator and handed them to the deceased at the Port Moresby Bowling Club. She was shown the will executed on 10th December, 1968, by the caveator. She said that this will was prepared by her and at the same time she prepared a will for the deceased in identical terms except for the substitution of names. It is to be noted that the will produced by the caveator contains a clause revoking all former wills and testamentary dispositions.

An affidavit sworn on 30th May, 1974, by Mr. and Mrs. Ellis was filed and read in support of the caveator’s case. In this Mr. and Mrs. Ellis deposed that, in late 1968 or early 1969, they received a visit at their home from the deceased and the caveator each of whom executed a will which was witnessed by Mr. and Mrs. Ellis. They further deposed that to the best of their respective recollections and beliefs the documents which were signed in their presence by the deceased and the caveator were identical with or similar to a document produced and shown to them. This document is a carbon copy of the will of the caveator.

Mr. and Mrs. Ellis were each called to give oral evidence. Mr. Ellis identified the carbon copy as the will executed by the caveator in the presence of his wife and himself. He also said that the will executed on the said occasion by the deceased was similar in appearance. In cross-examination he stated that he did not read the wills at the time of execution nor were they read out to him. The evidence of Mrs. Ellis was to the same effect. She added that in conversation with the deceased prior to the time of execution of the wills the deceased had expressed an intention to make a will in favour of her husband.

[Reference was then made to certain correspondence with the banks.]

The will dated 14th May, 1966, of which a grant of probate is sought devised the whole of the property of the testatrix to Susanne Denise Austin and Patricia Gale Austin described as nieces of the testatrix and appointed her sister Onah Mary Austin executrix. Upon the evidence of Mrs. Godfrey the will prepared by her for the deceased in 1968 contained a revocation clause, appointed the Public Curator of Papua New Guinea executor and bequeathed the whole of the estate to the caveator provided that he survived his wife for thirty days. In the event of his predeceasing his wife or not surviving her for a period of thirty days the whole estate passed to a daughter of the caveator by a previous marriage. The deceased and the caveator married on 30th October, 1964.

Upon a consideration of the whole of the evidence there is much that is left unexplained. The whereabouts of the will said to have been executed by the deceased in 1968 remains a mystery. The evidence contained in the letters from the two banks does nothing to throw light on the matter although it should be said that the banks were answering a specific inquiry as to the deposit and removal of a will or wills early in 1969. There are also many inconsistencies in the evidence, particularly as between the evidence of the caveator and that of Mrs. Godfrey.

I am disposed to attach very little weight to much of the evidence of the caveator. I do not say that he was a dishonest witness; rather I think that his memory of events is vague and confused and that he was endeavouring to reconstruct events from a very imperfect recollection of them.

Mrs. Godfrey was very definite that she prepared wills in 1968 for the deceased and the caveator. She was also definite regarding the terms of those wills. She was apparently a close friend of the deceased and does not appear to have any interest in the disposition of the estate of the deceased. I accept her evidence that in 1968 she prepared a will for the deceased which revoked earlier wills or testamentary dispositions, appointed the Public Curator as executor and bequeathed her estate to the caveator subject to the survival proviso already mentioned.

I turn to the evidence of Mr. and Mrs. Ellis. They appear to be friends of long standing of both the deceased and the caveator. I see no reason why they should falsely state that they were the attesting witnesses to two wills on 10th December, 1968. They were quite definite in their evidence and appeared to me to have a clear recollection of the event. I accept their evidence that they witnessed the execution of a will by the deceased on 10th December, 1968.

There is no direct evidence that this will was necessarily the will prepared by Mrs. Godfrey except perhaps some evidence that the will executed by the deceased was similar in appearance. Upon the evidence, however, I think the inference may properly be drawn that it was the same will. To infer otherwise would, it seems to me, involve the proposition that the deceased, having procured the preparation of the two wills by Mrs. Godfrey (one of which, exhibit “1”, is clearly that witnessed by Mr. and Mrs. Ellis) had another will prepared through some other agency before visiting Mr. and Mrs. Ellis to have the wills witnessed. This, upon the evidence, is not, in my view, an inference reasonably open.

I conclude therefore that the deceased executed a will on 10th December, 1968, which revoked the will of 14th May, 1966.

I turn now to the question of costs. The general principle relating to costs in proceedings of this nature is that an executor is prima facie justified in propounding a will and generally entitled to his costs out of the estate. He may, however, be refused his costs or condemned in costs if it is shown that he must have known that he was propounding a document which could not be supported. He is not obliged to propound a will and may by unreasonable conduct not only disentitle himself to costs but make himself liable to pay the costs of a successful party. (See Halsbury’s Laws of England, 3rd ed., Vol. 16 p. 209). In this case it is to my mind clear that, in seeking to propound through her attorney the 1966 will the executrix appointed thereunder acted in a perfectly reasonable manner. Evidence which, in my view, was of prime importance in this case was that of Mrs. Godfrey in the absence of which the caveator could not have succeeded. On the affidavit evidence filed prior to the hearing Mrs. Godfrey was not shown to have been the person who drafted the 1968 wills but only as the person who had typed these. No affidavit by Mrs. Godfrey was filed and the exact nature and extent of her evidence became apparent only after she had been called to give oral evidence during the course of the hearing. In all the circumstances I do not see how the action of the executrix of the 1966 will in seeking to propound is open to criticism. I think therefore that she should have her costs as between solicitor and client out of the estate.

Order nisi to be discharged. Applicant to be paid her costs as between solicitor and client from the estate.

Solicitors for the applicant: McCubbery, Train, Love & Thomas.

Solicitors for the caveator: Francis & Francis.

R>

[cix](1886) 11 App. Cas. 469.

[cx][1955] P.59.

[cxi](1886) 11 App. Cas. 469.

[cxii](1886) 11 App. Cas. 469.

[cxiii][1965] V.R. 118.

[cxiv](1854) 14 E.R. 247.

[cxv](1938) 60 C.L.R. 336.

[cxvi](1938) 60 C.L.R. 336.

[cxvii][1971-72] P. & N.G.L.R. 393, at p. 395.