Alexander Costa & anor v The Public Trustee in the Estate of Robert Costa aka Wayne Geary Coaster

Supreme Court of NSW|2007-11-05|Before: Windeyer J

CITATION : Alexander Costa & anor v The Public Trustee in the Estate of Robert Costa aka Wayne Geary Coaster [2007] NSWSC 1271

JURISDICTION : Equity Division Probate List

DECISION : Claim under s18A of the Wills, Probate and Administration Act 1898 dismissed.

LEGISLATION CITED : Wills, Probate and Admistration Act 1898 s18A

Hatsatouris v Hatsatouris [2001] NSWCA 408 CASES CITED : Polyak Estate Amy v Permanent Trustee [1999] NSWSC 862 Re Estate of Master; Hill v Plummer (1994) 33 NSWLR 446

Alexander Costa (First Plaintiff) PARTIES : Doreen Leonie Costa (Second Plaintiff) The Public Trustee (Defendant)

COUNSEL : M J Heath (Plaintiffs) No Appearance (Defendants)

SOLICITORS : Charlestown Law Firm (Plaintiffs) No Appearance (Defendants)

1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

104938/07 ALEXANDER COSTA & ANOR V THE PUBLIC TRUSTEE IN THE ESTATE OF ROBERT COSTA ALSO KNOWN AS WAYNE GEARY COASTER JUDGMENT 1 The question at issue is whether a document written by the deceased, Robert Costa (also known as Wayne Geary Coaster), should be declared pursuant to s18A of the Wills, Probate and Administration Act 1898 to be a will of the deceased. I will refer to the deceased as Robert Costa as that conforms to the record, although there is in evidence a copy of a Deed Poll evidencing a change of name. Facts 2 Robert Costa died some time between 20 July 2006 and 25 July 2006. The reason for the uncertainty about the date of death is that he was last seen alive on the first date and was found dead in his home on the second date. 3 The deceased had made a will dated 12 September 1995 under which he appointed the Public Trustee executor and gave the whole of his estate to his friend, Noel Walter Schultz, if he survived, and if not to the deceased's nephew Liam Parkinson. 4 Noel Schultz had been a friend of the deceased and lived with him at Gillieston Heights from 1991 to 1999. There was apparently a falling out for some reason and Schultz was required to leave, after which Mrs Costa collected his belongings and placed them in storage. 5 It has not been possible to locate Mr Schultz but there is no reason to think he is dead. Efforts were made to serve him with notice of the proceedings but he has not been found. 6 The evidence establishes that the Coroner dispensed with an inquest into the death of the deceased and determined the cause of death was hanging. It is not suggested that any person other than the deceased was involved and it therefore follows that his death resulted from suicide. 7 The deceased was found by his sister on 25 July 2006. He was living alone in his home at 14 Beckett Street, Gillieston Heights. His mother says that on 30 July she went to her son's home. She looked in the bedroom. She saw a stack of books and papers beside the bed. On top of the stack was a photo album and on top of that was a ballpoint pen. She said that going back to his school days the deceased kept references, school reports and achievement awards in the photo album. She saw a sheet of paper sticking out. It was the handwritten document now propounded. That document appears and reads as follows: "MUM AND DAD I THINK I M DYING PLEASE LOOK AFTER ALL MY GOOD WRITING. THERE MIGHT BE SOME MORE IN THE DRAWER TAKE CARE OF 'EM I WANT YOU TO HAVE MY HOUSE"

8 The handwriting is that of the deceased. The evidence is clear that "Mum and Dad" refers to the plaintiffs. In her affidavit sworn 26 July 2007, Mrs Costa, one of the plaintiffs and the deceased's mother, said, "Robert was fond of writing down compositions, poems and his thoughts. He saved most of what he wrote. He often called what he had written his 'good writing'." 9 On the evidence the only asset of the deceased of value was his house, 14 Beckett Street, Gillieston Heights. I should state that I have some difficulty with the evidence of assets. There must have been some contents in the house, but perhaps they had no value. 10 The deceased suffered from schizophrenia. He had various hospital admissions as a result and was admitted to the Maitland Mental Health Unit from 24 May 2006 to 9 June 2006 when he was discharged on a community treatment order. However, there is nothing to suggest he was not fully aware of what he was doing when he wrote the document propounded. 11 For the requirements of s18A to be satisfied there must be (i) a document; (ii) which purports to embody the testamentary intentions of the deceased; and (iii) which the deceased intended without more to constitute his will (Hatsatouris v Hatsatouris [2001] NSWCA 408 which really only states what the legislation requires). All the cases on the section and its equivalent in other states depend upon their own facts. 12 This is a somewhat difficult case not made easier through the absence of a contradictor. The Solicitor to the Public Trustee in a letter to the plaintiffs' solicitors said: The Public Trustee would not enter an appearance and act as contradictor without funds and he would require the plaintiffs to pay $5,000 and an indemnity against further costs before taking part. 13 The court cannot force a defendant to appear but it is fair to say that had the Public Trustee appeared as a contradictor it would have been of considerable assistance to the court, and it is at least likely that had he appeared the costs of the Public Trustee would have been ordered to be paid out of the estate. It seems extraordinary to ask the plaintiffs to fund the costs of the Public Trustee as defendant in circumstances where, unless there was no likelihood the s18A application would fail, the Public Trustee was and remains the executor of a will, which will be admitted to probate if the s18A claim fails, and as such has a responsibility to the beneficiaries under that will. 14 There is a document. It does embody the wishes of the deceased as to who should get his house on his death. It is more likely than not that it was written in the last hours of the deceased's life. According to the evidence, he had nothing to give except his writings, which he valued, and his house. He stated what he wanted to happen to them. 15 The question to decide is whether the deceased intended the document to operate as his will. The facts going to support a positive finding are the place where the document was located and the fact it was made at a time when death was imminent. The facts against this are that the wording is precatory and not dispositive; that as the deceased had made a valid will in 1995 he knew the requirements for a valid will; that there is no signature on the document; and the way in which the writing runs down the paper indicating it was expressing emotions and not legal intentions. 16 It could be said that the deceased might not have thought there could be any difference between saying "I want you have my home" and "I give my home to you". It could also be said that a man about to take his life is unlikely to bring to mind the requirements for execution of a will and, in any event, he would not have been able to arrange execution. This last matter does not of course deal with the problem of the absence of his signature. 17 Although the facts are very simple, and the evidence is confined to the facts I have stated, I reserved the decision as I have found this a difficult and of course sad case where, for obvious reasons, the court would like to find for the document. Although his was a dissenting judgment Mahoney JA in Re Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446 said at p455: For the section to operate, the Court must be satisfied that the intention was that the document operate, in the sense to which I shall refer, as an actual act in the law.

There is, in principle, a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will … A person may set down in writing what are his testamentary intentions but not intend that the document be operative as a will. This may occur, for example, in informal circumstances, in a letter or a diary or the like. What is to be determined in respect of a document propounded under s 18A is whether, assuming it to embody the testamentary intentions of the deceased, it was intended by the deceased as his testamentary act in the law, that is, to have present operation as a will. 18 In principle and with respect that must be correct. The majority judgments were not to the contrary. It was accepted as correct in Polyak Estate Amy v Permanent Trustee [1999] NSWSC 862. 19 After careful consideration I consider that the document propounded is in the nature of a suicide note expressing wishes and requests and not a document intended to operate as a testamentary instrument. Its form and wording lead to that conclusion. It follows that I am not satisfied the requirements of s18A are made out. Orders

That service of notice of the proceedings on Noel William Schultz be dispensed with.

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