Ackerley v Felton

Judgment 1These reasons concern the question as to whether a note found in the shirt pocket of the late Kevin Ackerley shortly after he died on 5 June 2007 should be admitted to probate as an informal will under s 18A of the Probate and Administration Act 1898. For convenience, and without intending any disrespect, I will refer to the deceased as "Kevin" and to other members of his family and his associates by their first names. 2There are a number of pieces of litigation involving the parties to the present proceedings. These include three applications under the Family Provision Act 1982. However, all I am to decide in the present proceedings is the question of the informal will and whether the plaintiff should be appointed cum testamento annexo minore aetate of Kevin's estate. 3I heard the proceedings on 1 November 2012. Mr S J Chapple of counsel appeared for the plaintiff, Darren (Kevin's younger brother), and Mr D W Elliott, of counsel, appeared for the defendant, Charlene. 4Kevin lived in the Lismore district in a house owned by Charlene who claims that she was Kevin's de facto wife at the time of his death. This is disputed by Darren. 5The paper found in Kevin's pocket at his death was torn from a pocket sized notebook and read as follows: "My will Kevin J Ackerley (sgd) K J Ackerley 4.6.2007 Will Everything coes to My Granson Coory Gate 'Becky's Boy No Service, to be put in ground, Charlene is not to go Nor Ryan I've got a shed at Wallmurrry in my name privet service Darren and Kym not to come 2 accounts at St george to go to Corrye Beck No 0407 xxxxxxx St Georges account my name And correy name My land in North Lismore to go to Correy + Murwillumbah land to go to Coorey Lot 46 xxxx Rd ¼ share Good by, Kevin Ackerley (Sgd) K J Ackerley" 6The deceased had a daughter Rebekkah (Becky). Becky is the mother of Corey Gates, who was born on 23 May 2002 and is now 10 years old. Kym is the deceased's sister. Ryan is Charlene's son. 7The relationship between Kevin and Charlene was not a smooth one. According to Charlene's Centrelink records, she was in a de facto relationship for seven months in 1995, separated in September 1995, but re-entered a de facto relationship in August 2004 until February 2005 and resumed de facto status in October 2006. 8It is a tad difficult to work out how Kevin spent the last two days of his life. 9On 4 June 2007, Kevin was living in North Lismore with Charlene and Charlene's father and son. 10According to Charlene's statement to the police to be tendered to the Coroner, on 4 June 2007, Kevin told her that he was depressed because he had forgotten Corey's birthday and that Becky had not brought Corey round to see him. She wrote: "Kevin was a bit mad about me not helping him on the computer with his spelling. I left the house to visit my sister because I told Kevin I didn't want to argue". 11However, Senior Constable Brooke Devine in her report wrote: On the morning of Monday the 4th June 2007 the nok (= next of kin, ie Charlene) and the deceased were involved in a verbal argument. The nok informed police that this argument involved their relationship and the possibility of the deceased undergoing a medical procedure in efforts to improve their relationship. The nok declined to specify the type of medical procedure. During the argument, the nok informed the deceased that undergoing the surgery would not guarantee that they would stay together. At this time, the deceased and nok argued further, with the deceased informing the nok that he would pack his bags and move out of the house. He also stated that he did not want to live any more, and had nothing to live for. The nok informed police that it is not unusual for the deceased to verbalise his intention to kill himself. She states that the deceased often makes similar threats without following through with them. The nok left the house about 10.00am in an attempt to calm down and have the deceased calm down. She visited her sister, a short distance away, and then returned to the house about 10:30am." 12The statements are consistent that, on Charlene's return to the house, Kevin was sitting at the kitchen table drinking wine. He said: "What does it matter anyway? I'll probably be dead in two hours anyway." Charlene says that she thought this was just one of his moods as he had said the same sort of thing previously. She again left the house and saw her sister (Dawn). 13Charlene and Dawn returned to the house about half an hour later. Kevin was affected by alcohol, he said he wanted to lie down. Charlene and Dawn said they thought he would sleep it off as had happened previously. Kevin went to his bedroom, fully clothed and went to sleep. 14Charlene says that during the afternoon, Kat, a friend of Kevin's called and spoke to him. Charlene says that Kat told her that Kevin felt sad about his relationship with Becky and Corey and that he loved Charlene. 15What happened after then is even more unclear. It would seem that Kevin, who had been on drugs earlier in his life, took too much of a drug and that is what caused his death. The police found a fresh needle mark on his arm after his death. However, it is unclear whether that in fact happened, or, of it did, Kevin intended to suicide or not. 16The women listened at his door from time to time. There was evidence that Charlene or Dawn heard him snoring about 8 pm and heard him breathing at 7 am on 5 June. When he was checked at 10 am, he was dead. 17Charlene was cross examined. Strangely, she answered "I can't remember" to almost all the significant questions. She was asked whether the medical procedure was "rhinoplasty or a nose job." The answer was "I can't remember". 18However, from the cross examination, it would appear that Kevin had packed his bags preparatory to leaving the house two days earlier and the bags had not been unpacked. She agreed that she and Kevin both thought that the reason why Becky and Corey had not visited the deceased was because Charlene would be at the house. 19Constable Devine's statement is more likely to be the accurate account of what happened that morning as she would have no reason to write what she did except that Charlene gave her the information recorded. The repeated "I can't remember" to the incident of the last 24 hours of the life of the man she claims was her de facto husband reinforces this approach. However, even if the argument was about the non visiting by Becky and Corey, Kevin would have been having negative feelings towards Charlene. 20I now need to turn to consideration of legal principles. 21As Kevin died before the relevant part of the Succession Act 2005 took effect, the case must be assessed under s 18A of the Probate and Administration Act 1898. 22That section provides in subs (1): A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person... if the court is satisfied that the deceased person intended the document to constitute the person's will ... 23In the Court of Appeal in The Estate of Masters; Re Hill v Plummer (1994) 33 NSWLR 446 (at 449) Kirby P held that in order to satisfy the requirements of s 18A of the Probate and Administration Act 1898 it must be shown: (1) The purported will must be in documentary form; (2) It must embody the testamentary intentions of the deceased; (3) Although the document has not been executed in accordance with statutory formality, it must nonetheless constitute "a will of the deceased person". 24In the instant case, prima facie, these three criteria appear to be satisfied. However, it is in contest: (a) whether Kevin really intended the document to be his will; (b) whether Kevin was of sound mind, memory and understanding at the time he executed the document. I will deal with each of these contentions in turn.