Aoun v Clark

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

JUDGMENT 1 HIS HONOUR: The question before the court is whether or not the late Edmund Harold Leslie Rowe, who died on 25 March 1998, died testate or intestate. 2 On 23 November 1997 Mr Rowe called at the Principal's office at St Catherine's College in Queen Street, Singleton. He attended in a wheelchair and said that he wished to execute his will. The Principal called in his administrative assistant, Mary Ryan, and both the Principal and Ms Ryan witnessed the will in the usual way. 3 On 2 December 1997, that is just over a week later, Cashman & Partners, solicitors, received from Mavis Rennie, the fund raising manager of a charity, Greenpeace Australia Limited, that original will on which Mr Rowe, or somebody else, had, with a thick black marker pen, struck out various clauses and words from clauses of the will and had also added in words in typewriting. I should note that the original will has a back sheet bearing the name Turner Freeman, solicitors, but no evidence has been produced as to the circumstances of how it was drafted. 4 Cashman & Partners, through a solicitor who has now left the firm and has been overseas for the last couple of years and who did not give evidence, assumed that the letter from Greenpeace and the altered will were instructions to prepare a new will. On 13 March 1998 they sent a re-drafted will in accordance with what had been submitted to them to the defendant Mr Clark, a close personal friend of Mr Rowe, who was the executor named therein. The solicitors sent their account to Greenpeace. 5 Mr Clark gave evidence that Mr Rowe's wife died in 1996 and that he suggested to Mr Rowe that he should make a new will. In 1997 Mr Rowe said to Mr Clark that he would approach solicitors to make a new will. 6 Although Mr Clark may not have known it, we now know that through Turner Freeman Mr Rowe made a will on 23 November 1997 naming Mr Clark as executor. 7 However, Mr Clark says in January 1998 he asked the deceased, "Have you made your will yet Ted?" to which Mr Rowe replied "No, I still haven't made a will. The solicitors have not sent me back my will, they have been mucking me around." Mr Clark said "If you are having trouble I will send you a standard will form and get something finalised." Mr Clark then bought a will form from a law stationer and sent that form to the deceased. During the first or second week of February 1998, during a conversation with the deceased, the deceased said to Mr Clark words to the effect "I still haven't made out my will" though he acknowledged receipt of the form. 8 This is rather odd because the evidence suggests that not only had Mr Rowe seen solicitors and had a will drawn up, but he had also had it executed at the college in Singleton and then he had made alterations to it and sent it to Greenpeace. I would think that it is more likely than not that Mr Clark, not knowing the full facts, has imperfectly remembered the conversation, and what Mr Rowe was really saying to him was that he did not have an operative will because he had asked the solicitors to draw up a new will, via Greenpeace, that had not yet come back to him. Perhaps Mr Rowe just did not want to discuss his private affairs with Mr Clark at that time. 9 The affidavit of Mr Clark also does not seem to mention the draft will which he would have got somewhere in mid-March. However, the deceased died on 25 March so there was probably little time to do anything. 10 In these circumstances a number of possibilities present themselves, viz:

the will has been wholly revoked under s 17 of the Wills Probate and Administration Act 1898 (the "Act");

the will has been wholly revoked under s 18A of the Act;

there has been a revocation of some gifts in the 1997 will;

there has been a dependent relative revocation; or

the document submitted to Cashman & Partners should be admitted to probate under s 18A of the Act. 11 I should note that for practical purposes the result probably matters very little as orders under the Family Provision Act may well nullify what Mr Rowe did. However, this may not be the case and, in any event, the parties are entitled to a decision on the formal aspects of the case. I will deal with the possibilities in turn.

Should the 1997 will stand? 12 The evidence is that when Mr Rowe attended at the college at Singleton in November 1997 he intended to make the will drawn by Turner Freeman, and that he did make it in front of the Principal and Ms Ryan. Alterations had been made to the will. Thus under s 18 of the Act, as the alterations had not been properly witnessed in accordance with the Act, they would not be valid "except so far as the words or effect of the will before such alteration are not apparent". 13 It would seem to me that I can read most of what has been crossed out by a thick black marker pen, so probably the whole of the will as it was originally executed is apparent within the meaning of section 18. 14 The cases seem to suggest that if a person can read the words by inspecting the document by natural means, such as holding up the paper to the light or using a magnifying glass, one can hold that the words are apparent. As I am sitting virtually in the position of a jury, certainly what I personally can read by natural means is apparent: see Townley v Watson (1844) 3 Curt 761; 163 ER 893; Ffinch v Combe [1894] P 191 and Re Itter [1950] P 130. Thus, unless there has been revocation, the will should stand.

Revocation under s 17 of the Act 15 Under the law before s 18A was introduced into the Act, a will could be revoked in three ways, vide s 17 of the Act. Under section 17(3) a will may be revoked:

(a) by writing declaring an intention to revoke, duly executed;

(b) by some physical act such as burning or tearing or otherwise destroying the will; or

(c) by some writing on the will or dealing with the will with the intention of revoking the will, manifested by the state of the will. 16 There has been no formal act under (a), nor destruction under (b); thus I need only examine (c). 17 Section 17(3)(c) was an amendment made to the Act in 1989. The court must be satisfied from the state of the will that there has been a revocation. Thus, it seems to me that there is no scope for considering the evidence dehors the will of intention to revoke. 18 The principal problem with the s 17(3)(c) case here is that the evidence is rather lacking as to who did the crossing out on the will. All we know is that the document was transmitted by Greenpeace to Cashman & Partners, but there is probably insufficient evidence to be satisfied that what was done was done by the testator or in his presence. Thus I do not actually need to consider whether the effect of the alterations as judged by the state of the will show an intention to revoke. 19 I should note that apart from cases where there was an instrument revoking the will, a mere intention, even very strongly held, that a document should no longer operate as a will, is insufficient; see for instance Doe d Reed v Harris (1837) 6 Ad & E 209; 112 ER 79 and Cheese v Lovejoy (1877) 2 PD 251. Thus, under s 17 there would have been no revocation.

Revocation under s 18A 20 So far as is relevant, s 18A(1) provides that:

"A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will."

21 Although primarily directed at the making of wills, it can be seen that the section also applies to revocations. It clearly cannot apply where there is physical destruction of a will under s 17(3)(b), as under s 18A one must have a document. Section 18A covers an informal document which, apart from matters of form would come within s 17(3)(a). I do not see how s 18A can supplement section 17(3)(c). Indeed s 18A and s 17(3)(c) to some extent cover the same ground, that is, to remedy the problem that occurred in cases such as Re Whitehead (1882) 3 LR (NSW) Eq 21, where the testator writes "cancelled" over a will without due execution. 22 The question is thus whether what was done here constitutes an informal revocation under this head. 23 Despite research, counsel have not found any case in which the section has been applied to revocations. Hodgson J considered the matter in dicta in Permanent Trustee Co Ltd v Milton (1995) 39 NSWLR 300, 334-5. Apart from this, two unreported decisions (my decision in Re Poole 26 April 1996 and the decision of Simos J in Re Gibson 18 May 1998) do actually mention the section in relation to revocation, but do not go anywhere near solving the present problem. 24 Revocation under s 17(3)(a) may come about by an instrument other than one which uses the words "I hereby revoke my will of ...". As Mr Harris for the plaintiff put in argument, if there had been a document in which the testator had put a big black cross against the vital pages of the will and had it properly witnessed in accordance with the Act, that would have been a document which would be revoked under s 17(3)(a). 25 It follows that a document which contains sufficient indications of an intention to revoke can be a revocation under s 18A if the document in all the circumstances is an informal document intending revocation. 26 Under s 18A(2) the court may have regard to extrinsic evidence relating to the manner of execution and testamentary intention of the deceased, including statements made by the deceased. 27 The evidence of Mr Clark suggests that the testator formed the view (though he must have known that he had made a will on 23 November 1997) that he had no valid will and was waiting for the solicitor to draw up a new will. This shows that the document proffered to Cashman & Partners through Greenpeace was not only instructions for a new will, but was intended by the deceased to also be an informal document intending to revoke the previous will. The deceased's words showed that, even though he had recently made a will, he preferred to die intestate.

Was there merely a revocation of some gifts? 28 As the only relevant revocation is pursuant to s 18A, there must be complete revocation or none; see Permanent Trustee Co Ltd v Milton, supra at p 235. This question can thus be quickly answered "No".

Dependent relative revocation 29 The next question is whether the doctrine of dependent relative revocation applies. That is a doctrine which says when a person revokes a will intending to set up a new will, then one should assume that the revocation is only conditional upon the new will coming into effect and if it does not come into effect then even though the old will appears to be revoked it still remains in force. However, dependent relative revocation is a doctrine which again depends on intention and it seems to me in the instant case the evidence shows that the testator would have rather died intestate then die under the provision of the will which he was seeking to set aside. 30 I hesitate a little in making this statement as when considering this question I do not have the advantage of the evidence only admissible under s 18A(2). However, even under the general law, the court has fair latitude in this class of case to look to the general surrounding circumstances and extrinsic evidence; see for example Methuen v Methuen (1817) 2 Phill Ecc 416, 426; 161 ER 1186, 1189; Re Zimmer (1924) 40 TLR 502 and Re Lilley [1953] VLR 98.

Should probate be granted under s 18A of the amended will?

31 For the reasons I have already given, the document sent via Greenpeace to the solicitors was never recognised by the deceased as his will. It was no more than a revocation of the will and instructions for a new will. 32 Essentially then the declaration must be that the testator died intestate. 33 I make orders 1, 2 and 3 in the further amended statement of claim. The costs of both parties on the indemnity basis to be paid out of the estate. oOo

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