McCANN V McCANN [2011] NSWSC 1544

Supreme CourtNew South Wales

Medium Neutral Citation

McCann v McCann [2011] NSWSC 1544

Hearing Dates

Wednesday, 16 November 2011

Decision Date

16/11/2011

Jurisdiction

Equity Division

Before

White J

Decision

Counsel to bring in short minutes of order in accordance with these reasons.

Catchwords

SUCCESSION - probate - caveat - where deceased died intestate - serious question to be tried as to parentage of next of kin - triable issue as to whether a document expressing testamentary intentions should be admitted as an informal will - application for order that caveat cease to remain in force refused - Status of Children Act 1996, s 26 - parentage testing procedure to be carried out to assist in determination of parentage of child

Legislation Cited

Succession Act 2006
Status of Children Act 1996

Cases Cited

Secretary, Department of Health and Community Services v JWB & SMB (Marion's case) [1992] HCA 15; (1992) 175 CLR 218

Category

Interlocutory applications

Parties

Ranita McCann (Plaintiff in 2010 proceedings; 1st Defendant in 2011 proceedings)
Janet McCann (Defendant in 2010 proceedings; Plaintiff in 2011 proceedings)
David Griffith (2nd Defendant in 2011 proceedings)

Representation

David Griffiths Lawyers (Ranita McCann)
N/a (Janet McCann)

Plaintiff - J Heazlewood
Defendant - P Nagle

File Number(s)

2010/390283; 2011/344986

JUDGMENT

1HIS HONOUR: These proceedings concern the estate of Michael Robert McCann who died between 18 and 21 August 2010. Applications in the two proceedings have been heard together.

2In proceeding 2010/390283 Ranita McCann seeks a grant of letters of administration of the deceased's estate to her. She contends that she is the deceased's daughter and entitled to his estate on intestacy.

3The plaintiff in proceeding 2011/344986 is the deceased's sister, Janet McCann. She seeks an order that she be appointed as administrator of the deceased's estate, or in the alternative declarations that the deceased left a formal will by which he left his estate to her and his brothers in equal shares.

4On 3 December 2010 Janet McCann filed a caveat demanding that no grant or reseal be made in the estate without notice to her. The interest she claimed in the caveat was as sister of the deceased. She also contended that:

" ...

2. I have at least a $20,000 bequeathed interest plus other possessions and documents improperly removed from the deceased's house without proper legal authority or informing Michael's family by the present application to become Administrator of the Estate.

3. I have reason to believe that my late brother Michael's Will's [sic] computer, other documents and monies have been improperly removed from his home ...

...

5. I have reason to believe that the 'next of kin' or present applicant to become administrator of the estate is not the actual only 'next of kin' [sic]."

5A further caveat was lodged on 2 June 2011 which had an additional paragraph to the effect that it is alleged that Ranita McCann has knowingly understated the value of the estate.

6The first of the applications before me today is a notice of motion filed for Ranita McCann in proceeding 2010/390283. She seeks an order that the caveat lodged on 2 June 2011 cease to be in force (the earlier caveat having lapsed). She also seeks an order that the plaintiff be appointed administrator of the personal estate of the deceased " pending the disposal of the proceedings ". A further order is sought in relation to taking or continuing proceedings in the District Court, but no submissions have been made to me today about that matter.

7The second application is brought by Janet McCann. She seeks a wide range of relief. The orders pressed at the hearing today are that Ranita McCann be required to undergo a DNA test to establish whether she is the natural biological daughter of the deceased and that she provide within two weeks the deceased's computer that had been taken by her for forensic testing. An order was also sought that she provide what has been called an " original note " of the deceased for forensic testing. This is a reference to a document that has been produced, albeit belatedly, by Ranita McCann which might arguably be said to contain the deceased's testamentary wishes. Other orders sought in that notice of motion have not been the subject of any detailed submissions, and I will deal with them in due course if required.

8The application that the caveat cease to be in force is made in accordance with Pt 78 r 69 of the Supreme Court Rules 1970. Under r 69(4) the court may order that the caveat cease to be in force if it considers that the evidence does not show that the caveator has an interest in the estate or has a reasonable prospect of establishing such an interest, and if there is some matter occasioning doubt as to whether the grant ought to be made.

9If Ranita McCann is the daughter of the deceased, then she is entitled to the estate on an intestacy. Questions which might still arise are whether a will of the deceased might yet be found, if not, whether probate of a lost will might be granted, or whether an informal document apparently in the handwriting of the deceased and dated 1 August 2010 should be declared to be the deceased's will.

10Janet McCann puts all of those matters in issue. She deposes that in about July 2010, after the deceased had been on a trip with Ranita McCann, the deceased said to her that " It's flipped my head back 17 years agon and I can't stop thinking about it all again, Vanessa and that Ballantyne ". " Vanessa " is Ranita McCann's mother. " Ballantyne " is a man to whom Vanessa was married, I was told, in 1993.

11Counsel for Ranita McCann says that there is no prima facie case and, as I would understand it, no serious question to be tried, that Ranita McCann is not the deceased's daughter. Ranita McCann was born on 23 July 1990. The birth certificate names the deceased as her father and there is a presumption of paternity. But the presumption is capable of being rebutted. The birth certificate also states that both the mother and the father were informants of the birth. However, it also shows that the mother and the father did not live together at the time of the birth or when the information for the birth certificate was provided. Ranita McCann's mother's address was given as an address in Bermagui, NSW. The deceased's address was stated to be a place in Kirribilli.

12In an application made in the Family Court in March 1993, Ranita McCann's mother deposed that she and the deceased commenced a de facto relationship on 16 December 1991. That is, 18 months after the birth. That relationship, assuming it was properly described as a de facto relationship, must have been of short duration as Ranita McCann's mother married Mr Ballantyne in 1993.

13I think that there is an issue to be tried as to paternity. If it is ultimately found that the deceased was not Ranita McCann's father then clearly Janet McCann has standing to maintain the caveat and to object to the grant to Ranita McCann. Even if it is established that the deceased was Ranita McCann's father, there are still issues that will need to be decided before it can be decided that a grant of letters of administration should be made to Ranita McCann.

14The first such issue is whether it should be found that the deceased left a will.

15Janet McCann deposes that the deceased told her that he had made a will. She also deposes to being told in early August 2010 by the deceased that he had changed his will.

16Ranita McCann also gave evidence of a conversation that took place in the presence of her and Judy Norris (who I understand to be her maternal aunt) to the effect that the deceased told Mrs Norris, as a result of an inquiry she made, something to the effect that he had a will.

17Ranita McCann's solicitor is Mr David Griffiths. On being advised the deceased lived in the Warriewood area, he wrote to solicitors in that area as well as to the NSW Trustee and Guardian and Perpetual Trustee inquiring about wills. He received responses from those firms and entities to the effect that they did not hold any documents on behalf of the deceased. He also wrote to ten further solicitors in the Mona Vale area making the same inquiry and has received replies from six solicitors stating they do not have any will for the deceased. I infer he has not received replies from the other four.

18It does not appear that advertisements have been placed, for example, in the Law Society Journal, as to whether they might have a will for the deceased.

19A few days after the deceased's death, Ranita McCann, in the company of Mr and Mrs Norris, searched the deceased's house. They took away a large box of what appeared to be important documents, but, according to Ranita McCann, did not locate a will. She did find an informal document dated 1 August 2010 to which I will refer in a moment. A computer was also removed, and according to Ranita McCann it has been examined and no electronic copy of a will or draft of a will is stored on it. However, the computer has not been examined by Janet McCann or those representing her. I think there still remains a question to be investigated as to whether the deceased died leaving a will.

20Moreover, it is possible, for example, by further examination of the computer, that investigations will reveal either a draft of a will or instructions for a will from which the terms of the will that the deceased has apparently said he had made, could be ascertained. This is a further reason as to why an order should not be made that the caveat cease to be in force.

21Finally, there is the informal document dated 1 August 2010. There is some substance in the submissions made by counsel for Ranita McCann, to the effect that the document does not appear to be a testamentary instrument. It is unsigned. It's language is far from clear and it may well be held to be no more than a draft note of possible instructions for the making of a will. However, there is a triable issue as to whether the document should be admitted as an informal will. It certainly appears to express testamentary intentions. Whether it was intended to operate as a will will be a question of fact that can only be decided at a final hearing.

22It is unlikely that that question would be decided simply from an examination of the document itself. For example, the evidence given by Janet McCann, if accepted, that the deceased told her in early August that he had changed his will would be relevant to that question.

23Accordingly, I think that the application for the grant of letters of administration in common form to the plaintiff should proceed, not in that form, but as an application for grant of letters of administration in solemn form. Either the plaintiff or Janet McCann by way of cross-claim would be expected, if all issues are to be determined, to seek an order under s 8 of the Succession Act 2006 declaring that the document forms the deceased's will.

24I will therefore refuse the order sought that the caveat cease to remain in force.

25The next substantive issue is whether I should order that Ranita McCann undergo a DNA test to establish whether she is the daughter of the deceased.

26Section 26 of the Status of Children Act 1996 provides that the court may make an order requiring that parentage testing procedures be carried out for the purpose of obtaining information to assist in determining the parentage of a child. Under s 26(4) the court must consider and determine any objection made by a party to the proceedings on account of medical, religious or other grounds, and if it determines that an objection is valid, take that objection into account in deciding whether to make the order.

27For the reasons I have given I am satisfied that there is an issue to be determined as to paternity. In her oral evidence Ranita McCann said in substance that she did not object to such testing being carried out, provided that those seeking the tests paid for it. Janet McCann has indicated that she is prepared to pay for the tests at least in the first instance.

28Counsel for Ranita McCann raised a further objection based on the importance to which the common law accords a person's right to control what is to be done to his or her body, that is to say, the importance accorded to a person's bodily integrity (see for exampleSecretary, Department of Health and Community Services v JWB & SMB (Marion's case) [1992] HCA 15; (1992) 175 CLR 218 at 233-234.)

29Section 26 of the Status of Children Act empowers the making of orders for the carrying out of parentage testing procedures and to that extent, it interferes with a person's right to protect his or her bodily integrity. Nonetheless, that right is a matter which is to be taken into account in determining whether the discretion for which s 26 provides should be exercised in favour of making a parentage testing order.

30In this case, however, that consideration is of perhaps smaller account, given that it is not an objection that Ranita McCann herself raised, and there is no suggestion that the type of test that would be administered would be a serious intrusion on her person (unless every such test could be so considered).

31There is another consideration. That is the importance of the case being decided on the best available evidence. Whilst there was no expert evidence before me on this application as to what degree of probability a DNA test could achieve in either proving or disproving paternity given that no sample could be taken from the deceased. Nonetheless, such testing could be of significant probative value. I was told that the deceased's father, that is, Ranita McCann's putative grandfather, is alive and would be willing to provide a DNA sample for comparison purposes. In my view an order ought to be made under s 26.

32I take into account s 29 of the Act that provides that if a person who is 18 years or more of age contravenes a parentage testing order, that is to say, an order under s 27, or an associated order, the person is not liable to any penalty in relation to the contravention.

33Subsection 29(2) provides that the court may draw such inference as appears is just in such circumstances. It is not profitable to speculate how s 29 might operate, because I do not apprehend that there will be any real reason to doubt that a parentage testing order would be complied with, particularly given Ranita McCann's evidence that she does not object to undergoing such testing, provided that the costs were paid.

34The next question is whether the computer which has been seized should be provided for inspection. I think there is no doubt that it should be. At the moment no grant of administration has been made. Given the current absence of a will and presumption of paternity, Ranita McCann may be the presumptive administrator of the estate. If letters of administration are granted to her, her title to the deceased's assets will date back to the time of his death. At the moment, she does not have title to the assets. They are taken to be vested in the NSW Trustee. That is not a reason for interfering with Ranita McCann's possession of the assets, except insofar that is necessary for the conduct of these proceedings. But it is necessary for the proper conduct of these proceedings that the documents and the computer that were removed from the deceased's house, to the extent that they still exist, should be available for inspection by Janet McCann or her siblings. In any event, I would make an order under the rules for inspection of the computer as being necessary for the proper conduct of these proceedings.

35So far as the informal testamentary document is concerned, the original of that document is on the court file as an annexure to Ms McCann's affidavit of 19 May 2011. At the moment, I can see no good purpose that would be served by submitting that document for examination by a handwriting expert. It is highly improbable that this document would have been in the hand of anyone other than the deceased and I do not understand that to have been suggested. It was found amongst his possessions and it would not appear to be in anyone's interests to contend that the document is in the hand of anyone other than the deceased. I can see no other conceivable purpose in subjecting that document to forensic examination. The costs of that course are not warranted.

36There may be further issues arising from the orders sought in either notice of motion that I have not yet dealt with. They have not been covered by submissions. For example, in her notice of motion of 4 October 2011, Ranita McCann sought orders appointing her administrator " pending the disposal of the proceedings ". She also sought power to take or to continue proceedings in the District Court. I have no heard no argument about those orders.

37Likewise, Janet McCann sought additional orders, including orders that Ranita McCann and her solicitor be restrained from disposing of the assets of the deceased. They have no power to dispose of the assets of the deceased and I am not sure whether any such order is pressed. Again, I have not heard submissions in relation to those matters.

38I will hear counsel as to whether there are any other of the orders which will be pressed. I will then stand the matter over to a convenient time in order for counsel to bring in short minutes of order in accordance with these reasons. The short minutes of order in relation to DNA testing will need to make specific provision for how, where, and by whom the testing is to be carried out, and what precisely Ranita McCann should be required to do.

39The orders should require that the testing be carried out in the manner prescribed by the regulations made under the Status of Children Act and make provision for the production of a report in accordance with those regulations.

[Counsel addressed.]

40In proceeding 2010/390283, I will order that the plaintiff pay the defendant's costs of and incidental to the plaintiff's notice of motion dated 4 October 2011 and the defendant's notice of motion filed on 8 November 2011 and likewise I will order that in proceedings 2011/344986 the defendant to that proceedings pay the plaintiff's costs of the plaintiff's notice of motion.

41I will order that the costs as agreed or assessed on the ordinary basis be payable in due course out of the estate.

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