Background
This case concerned the validity of a deceased’s will that was executed in 2009 (the Will). The deceased was survived by her six children and the Will, among other things, appointed two of her children (the Respondents) as executors and trustees of the estate as well as leaving them a property as tenants in common (the Property).
Following the deceased’s death, three sets of proceedings were brought and determined together (the primary decision). Of relevance are the Probate Proceedings and Trust Proceedings.
The Probate Proceedings were brought by one of the deceased’s children (the Appellant) who alleged the deceased lacked testamentary capacity at the time the Will was executed and did not know and approve of the Will’s contents. The Respondents contended the deceased possessed testamentary capacity at least until she entered a nursing home in 2017.
The Trust Proceedings were brought by the Respondents who sought a declaration the Property was held on trust by the estate for them or alternatively a family provision order.
In respect of the Probate Proceedings, evidence regarding the deceased’s capacity was given by various witnesses, including the Respondents, the solicitor who drafted and witnessed the Will in 2009 (the Solicitor), the Appellant, two of the deceased’s treating doctors, and two jointly appointed medical experts.
Many of the primary judge’s findings were expressly predicated upon his view of the credibility of the witnesses and their recollections having regard to the surrounding circumstances and their demeanour in the witness box. The primary judge ultimately took a less favourable view as to the credit of the Appellant’s witnesses.
The Appellant argued the Solicitor’s involvement in drafting the Will and subsequent representation of the Respondents at the beginning of the contested proceedings gave rise to “…a basis to infer… [the Solicitor’s] duty to his clients, combined with his personal interest in rebuffing a perceived attack on his professionalism, clouded his objectivity when deposing to the deceased’s capacity.”
The primary judge conceded the Solicitor should have ceased to act earlier than he did and should have more carefully considered his position once it became clear he was going to be a material witness. Nonetheless, his Honour rejected the Appellant’s submission on the basis the Solicitor presented as an honest and reliable witness whose role after the commencement of the proceedings had not prejudiced the administration of justice or resulted in a miscarriage of justice, particularly having regard to his very limited involvement in the preparation of the witness evidence.
The primary judge held the Will was valid, dismissed the Probate Proceedings and upheld the crossclaim brought by the Respondents. The Appellant subsequently appealed the whole of the primary decision.
Issues on Appeal
The Appellant submitted the primary judge erred by, inter alia:
- Finding the deceased had testamentary capacity and knew and approved of the contents of the Will;
- Failing to give appropriate weight to the evidence provided by the experts and witnesses;
- Failing to find the involvement of the Solicitor in representing the Respondents in the primary proceedings materially compromised the reliability of the evidence given by the Respondents and their witnesses; and
- Finding that before the Solicitor’s conduct could be a relevant factor in the assessment of the evidence, the Appellant was required to demonstrate the Solicitor’s conduct had “prejudiced the administration of justice” or “resulted in a miscarriage of justice”.
The appeal decision
Upon thoroughly reviewing all the evidence, factoring in the limited successful factual challenges and the primary judge’s advantages in his assessments of the credibility of the witnesses, the appeal was dismissed.
Further detail of the informative aspects of the judgment are outlined below.
The Solicitor’s evidence
The Appellant unsuccessfully challenged various factual findings of the primary judge regarding the Solicitor’s evidence as to his meetings with the deceased in relation to the Will and the instructions the deceased gave.
- File notes
The Court of Appeal highlighted that of particular significance was the fact that in 2014, when the deceased was brought to the Solicitor to execute a new will, the Solicitor refused to do so based on his assessment the deceased lacked capacity at that time. That conversation was recorded in a file note.
The Court of Appeal noted that no such file note was made in 2009. As such, a strong inference arises that, had the Solicitor who had 35 years of experience, formed a similar view at that time, he would similarly have declined to take instructions from the deceased.
- Usual practice
The Solicitor submitted evidence as to his usual practice which was relied upon by the primary judge in forming his conclusions. The Court of Appeal reiterated “…a solicitor’s evidence may, depending on the circumstances, have considerable weight where the solicitor does not have a specific recollection of a will being signed but gives evidence of his or her usual practice”.2
- Affidavits
The Court of Appeal accepted the Respondents’ submission there should be no adverse credit finding against the Solicitor because of his inability to recall the exact words he used over 10 years ago, noting “…a detailed purported recollection of the exact words used at such a temporal remove would tend against common experience and attract a measure of judicial scepticism”.3
The Solicitor’s involvement
The Court of Appeal held the primary judge’s use of the phrases “prejudiced the administration of justice” and “miscarriage of justice” merely indicated it was open for the Court to infer the Solicitor’s objectivity was clouded. The use of those phrases should not be read as requiring the Solicitor’s conduct to have satisfied that threshold before it could constitute a relevant factor in the assessment of the reliability of the evidence.
Considering it was open for the primary judge to conclude the Solicitor’s objectivity when deposing as to the deceased’s capacity was not clouded and his Honour had a distinct advantage over the Court of Appeal in making that assessment, grounds 3 and 4 (outlined above) of the appeal were rejected.
Drafting affidavit evidence of conversations
The Court of Appeal also turned their mind to the appropriate manner of drafting conversations in affidavit evidence. The usual practice in NSW is to use direct speech prefaced by a phrase such as “words to the following effect” when recounting past conversations of which a witness recalls only the gist and not the exact words. That practice was recently criticised by way of obiter in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd (Kane)4 in which it was suggested the presentation of evidence in that form is “ethically wrong”.
The following consensus and judicial guidance regarding the practice can be extrapolated from the judgements of Bell CJ, White JA and Kirk JA:
- When affidavit evidence is given in direct speech but prefaced by “words to the effect” or some like expression, a witness is not providing or purporting to provide a verbatim recollection of a conversation and should not be penalised for giving evidence in such a form;
- Insofar as a witness recalls actual words used the witness should state those words in direct speech; and
- Insofar as the witness recalls only the substance of what was said, they can elect to give that evidence in the form of direct speech prefaced by a statement that it reflects only the substance, effect or gist of what was said, or they can set it out in indirect speech.
The Court of Appeal emphasised the objective is to capture the best recollection of the witness with a level of detail appropriate and relevant in light of the issues in contention. It is crucial the evidence is conveyed in a manner that is not misleading and meaningfully captures the witness’ recollection in a way they have expressed and can explain.5
Conclusion
The decision in Wild v Meduri provides a reminder to legal professionals of the importance of maintaining meticulous file notes and promptly withdrawing from conflicted matters to avoid potential credibility challenges to evidence. It also clarifies best practices for drafting conversations in affidavit evidence. Adherence to these practices safeguard both a client’s interests and a legal professional’s practice and reputation.
1 [2024] NSWCA 230.
2 Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [54]-[55].
3 Wild v Meduri [2024] NSWCA 230 at [243].
4 Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381.
5 See Wild v Meduri [2024] NSWCA 230 [243]-[254] (Bell CJ), [334]-[357] (Kirk JA), [282]-[332] (White JA).
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