In 2018, the Supreme Court considered a claim by a surviving (ex) husband on the estate of a deceased former wife. The husband claimed that when he and his wife separated in 1992, he did not seek a property settlement in reliance on a representation by his wife that she would leave the former matrimonial home to him in her Will. The husband claimed he had contributed to mortgage repayments and was otherwise an ‘eligible person’ within the meaning of the Succession Act (although this claim was brought out of time). By the time of the proceedings the house had been sold and the proceeds were being held in an account pending the outcome of the litigation.
The claim was wholly unsuccessful. Amongst other reasons that was because the husband’s claim could not be corroborated through any documentary evidence and rested entirely on his own oral evidence. The only person capable of contradicting his account of conversations was his late wife, who was obviously not able to give evidence. Although the Court considered there was a “barely sufficient basis” to allow him to make a claim for provision out of time, it held the husband’s substantive claim failed. The Court accepted that the husband had health issues and somewhat difficult financial circumstances but considered he was in no worse position that the people otherwise entitled to the benefit of his late wife’s Will
The relevant point for this note is that the husband’s affidavit evidence was interpreted from Serbian into English, by the husband’s bilingual solicitor. The Court did not suggest any impropriety by the solicitor and indeed acknowledged the solicitor had probably been trying to minimise the cost to his client that would otherwise have flowed from using an independent and accredited interpreter. Nonetheless the Court suggested bilingual solicitors ought not take on the role of interpreter.
The Court noted that interpreting is itself a specialised and highly skilled occupation and it referred to research suggesting that accredited interpreters were objectively better than bilingual individuals, who were untrained. Secondly, it pointed out that a solicitor who adopts the role of interpreter might find himself or herself converted into a witness in the litigation, particularly if there is any contention over the accuracy of the interpretation. There could be allegations of conscious or unconscious bias.
These comments, although made in the specific context of a solicitor as interpreter; have equal force to other non-accredited interpreters, such as a friend or family members. It is understandable that people involved in litigation, which is itself often expensive, would wish to minimise costs where possible. However that might end up being a “false economy” if evidence given on affidavit, using a non-accredited interpreter, is ultimately challenged at hearing. The case may help to explain why your solicitor might insist on an accredited interpreter, even if s/he is apparently fluent in your language; or even if you believe your friend or family member can do the job at no cost. Rogic v Samaan [2018] NSWSC 1464
