Astridge v Pepper

Astridge v Pepper - [2009] WASC 193 - WASC 2009 case summary — Zoe

[109]

A few days after this conversation, John brought Jack to my home, and then left.

I asked Jack words to the effect of, 'What is this all about?'

Jack told me that he wanted me to help him draw up a new will, and wanted me to be the executor of that will.

I told him that I had no idea how to draft a legal will, and I would not have any idea of where to start.

Jack laughed and said words to the effect of, 'You work in an office. You will be able to work out what to do'.

I replied with words to the effect of, 'I will find out what I need to do and let you know'.

Jack also asked how much it would cost to transfer the Orchard directly to John whilst Jack was still alive. I told him that I did not know, but that I would do my best to find out.

A few days later, I noticed that there was a will kit available to examine at my place of employment (the Chittering Shire). I took the will kit home and read it, and also copied the precedent will ('the Precedent Will') which was contained in the kit on to a file on my computer.

I also telephoned the Department of Land Administration ('DOLA') and asked them how much it would cost to transfer a property such as the Orchard to John whilst Jack was still alive. DOLA provided me with an estimated cost, including stamp duty, transfer fees etc, which cost I cannot now recall.

On 8 July 2005, I picked up Jack from the Farm and brought him back to my home.

I asked Jack whether he had a previous will, to which he replied that he did. I asked whether he wanted to check it to see whether there was anything in the previous will that he wanted to include in the new will. Jack said 'no', and then told me that:

(a) his previous will gave everything to Kate;

(b) he wasn't sure what the position was now that Kate had died;

(c) he presumed his entire estate went to David, but he wasn't sure;

(d) he wanted to make sure that when he died, John (who he referred to as 'Johnny') was given the Orchard and that Kim Baker (the third defendant) also received some money.

I told Jack what DOLA had told me about the cost of transferring the Orchard while he was still alive. Jack laughed and said there was no way he was going to pay that amount to transfer the Orchard.

I said words to the effect that, 'John and I could pay it if that was the only issue'. Jack replied with words to the effect of, 'No way, I am not going to make Johnny pay that amount. If I leave it to him, he won't have to pay anything.'

I told Jack that I didn't feel comfortable drawing up the will, because I didn't really know what I was doing and I had no legal training.

I offered to drive Jack to a lawyer to have the will drawn up. Jack refused, saying that he refused to pay someone any amount of money for what he considered a simple document.

I suggested to Jack that it would be better if there was another executor as well as myself. I asked whether he could think of anyone he might like to have as another executor.

Jack thought about it for a while, and then suggested Margaret Jane Righton ('Jane', the fourth defendant), who is a home carer who had been helping Jack for some time, and whom he said that he trusted.

I phoned Jane and explained that Jack wanted me to draft him a new will, and wanted me to be an executor. I asked her whether she would be prepared to be a joint executor, and she agreed.

After this phone call, Jack confirmed to me that he wanted to give the Orchard to John, $2,000 to Kim Baker and the rest of his estate to David.

I asked Jack what he thought David would think of him leaving the Orchard to John. Jack replied with words to the effect of, 'What would he care? All he cares about is the junk he collects. He has the rest of the land to do what he likes with.'

I went to my computer and amended the Precedent Will, so that it was in the form that was eventually signed (exhibit 3, [18] - [38]).

[112]

So we've got one mistake that you knew Kate Fisher had died in August 2005 but you put into your affidavit at paragraph 16 evidence that she dies in approximately April 2005. You're saying that was a mistake?---It was.

If we go to the second portion of this at paragraph 28(b) exhibit 3 you say Jack Fisher told you he wasn't sure what the position was now that Kate had died. Why did you include that in your instructions to your solicitors and your affidavit, exhibit 3?---I don't know.

Was it the case that as of 1 August 2007 you were certain that that is what he had told you?---Sorry?

As of August 2007 you were quite clear that on 8 August 2005 Jack Fisher told you that he wasn't sure what the position was now that Kate had died?---I'm not sure why I put that in there. It was a mistake. I don't know why I had said that because we clearly were aware of the situation because he talked about it and he knew that her name was on one of the titles which I believe was the Como property.

So you're saying that Jack Fisher told you something different from he wasn't sure of the position now that Kate had died?---Not so much as told me but we did discuss it at the time and he knew that she would be taken care of.

When you say you discussed it, what was it?---We discussed the fact that he knew that if something happened to him that she would be taken care of.

When you say you discussed it at the time, this was on which occasion?---This would have been when he told me what contents he wanted in the will.

Well, when was that?---The week before the will was executed.

So Jack Fisher told you the week before the will was executed what he wanted in the will?---Correct.

This was all in your home, was it?---Correct.

So when you say in your affidavit, exhibit 3, at paragraphs 28 onwards that Jack told you on 8 July 2005 what he wanted in the will, that's not correct, in fact he told you all of that - gave you that information the week before?---I am aware of the events that happened and I know exactly when he told me what he wanted in the will. I thought that he had told me and I typed the will up on the same day but I remember distinctly that we had a meeting the week before and at that meeting he told me what he wanted in the will.

So your affidavit, exhibit 3, is not correct when it includes evidence that Jack Fisher gave you instructions for the will on 8 July 2005?---I thought at the time that it was all done on the same day.

But you realise now that you were wrong?---I know that we discussed on the 2nd and as to the exact times and the dates that I typed it up, it was within that time frame but I can't be specific with the exact date.

So just let me get this straight then, Ms Kay, your evidence now is that you had a meeting with Jack Fisher on 2 July 2005. Is that right?---Yes (ts 52 - 53).

[115]

If we just take things in order. As I understand your evidence now, you are not in a position to say whether Jack Fisher at any time prior to 8 July 2005 told you he, prior to the execution of this will, had a will that bequeathed his entire estate to his wife Kate?---He did advise me he did have a will, yes.

Yes, but you are not in a position to say that he told you that that existing will left his entire estate to his wife Kate?---I thought at the time that he did say that he had left it to Kate.

But your evidence now is that you are not in a position on oath to say that he did tell you that?---No. I suppose not, no.

So why did you include it in that affidavit of scripts, exhibit 2?---Because at the time when I asked Jack if he had a current will, I thought at the time that he had said that Katie had been left everything in the will. I hadn't seen the will so I was not to question otherwise.

But 'at the time', you mean at the time you swore this affidavit exhibit 2?---Basically, yes.

You thought that he had said that to you?---From memory I thought that's what he had said, yes.

But now you say that you cannot say on oath that he did say that to you?---I thought at the time that that's what he had said.

Just answer the question please. You can't say now on oath that he did say that to you?---No.

Just take the second part of paragraph 2(b) of exhibit 2. Jack Fisher told you in late June or early July 2005 that his wife Kate had died in approximately April 2005. He didn't tell you that, did he?---Well, as I've already said, I don't know why that's in there. I made a mistake.

But it appears in exhibit 2 and it appears in exhibit 3 also, doesn't it?---I believe so.

So you swore to that twice, didn't you?---Without checking, the actual month that she died, yes.

You're not very careful with what you put on oath, are you, Ms Kay?---I believe that I am. That was an honest - I admitted I made an honest mistake. I said August. I should have said April. I had no reason to check what month that she had actually died.

You've corrected your earlier evidence in your affidavits about when Kate Fisher died. That's one thing. You've corrected whether Jack Fisher told you on 8 July 2005 that his wife was dead. You've corrected that Jack Fisher told you on 8 July 2005 that his existing will left his entire estate to his wife. You've corrected all of those three things, have you not?---Yes (ts 60 - 62).

[131]

In drawing the will - I withdraw that. You said a moment ago that you didn't need to get out the copy of the lease because Jack Fisher had given you the CTs?---He had.

So you looked at the CTs, did you?---At some stage, yes. I did.

Are you quite certain of that?---Positive.

What did you derive from your looking at the CTs?---I was aware that lot 2, as we call it, the front orchard, is a portion of land that's on one of the titles and doesn't include actually the back part of the orchard because of the school and the way it's situated, and the diagram - how it's described on the actual title.

So you've got the description of the land that was in issue from the CTs?---For the will, yes.

You're quite sure of that?---Yes. I am.

If I can show you a copy of exhibit 1 and, your Honour, if I can just provide a copy of this. Perhaps not. Exhibit 1.

SIMMONDS J: Yes.

MacMILLAN, DR: There are no deletions from it.

SIMMONDS J: So we'll need to give the witness a copy of exhibit 1, exhibit 1 itself, and we're drawing the attention of the witness to

MacMILLAN, DR: If you could have a look at page 3 of exhibit 1, Ms Kay. You have that?---Yes.

If you look at paragraph 11 you depose there, and your evidence is, 'I do not specifically recall whether Jack and I looked at the CTs at any time or whether I looked at them when I prepared Jack's will.' You said a moment ago in your evidence that you are quite certain that you looked at the CTs and you derived the description of the property - that's the description in the will of the property - from the CTs. Do you remember saying that?---I do.

Do you agree with me that your evidence today is different from your evidence as it appears in paragraph 11 of exhibit 1?---But in paragraph 11 I

Just answer the question, please?---I do.

Can you explain why your evidence is different?---Because at the time I didn't recall whether I did look at the CTs but I do know now that I did.

Just correct me if I am wrong. You swore exhibit 1 on 1 December 2007. Correct? The date is on the front page if you want to check it?---Yes, that's correct.

You swore an earlier affidavit which as I recall is exhibit 3 on 1 August 2007. Do you remember that affidavit?---I assume so. I don't have that affidavit in front of me.

It's been before you this morning?---Yes.

You saw it this morning only moments ago. Correct?---Yes, correct.

Now, when you swore exhibit 1 on 5 December 07 you corrected a number of mistakes in exhibit 3, your affidavit of 1 August that year. Correct?---Correct.

You added specifically your evidence in paragraph 11 about whether you looked at the CTs or not. Is that right?

---I believe so.

Now, when you swore these affidavits or when these affidavits were drawn for you and prior to your swearing them did your solicitors explain to you the significance of an affidavit?---Yes, they did.

Did they tell you that you ought to be most careful prior to swearing the affidavit to ensure that its contents were as was put to you today true and correct?---Yes, they did.

They told you that, did they?---Yes.

They told you that before you swore the affidavit on 1 August, that's exhibit 3?---Yes.

They told you that before you swore the affidavit on 5 December, that's exhibit 1?---Yes.

So you were very careful with exhibit 1 to ensure that its contents were correct, weren't you?---At the time, yes.

At the time you swore that affidavit you were absolutely clear that you had not looked at the CTs or obtained the description of the property from the CTs?---Like I say, I don't recall.

You were clear when you swore this affidavit?---When I swore the affidavit, yes.

You swore that on oath?---Yes.

Your evidence now on oath is different?---No, it's not.

Well, it is, Ms Kay, your evidence now is that you did look at the CTs and you did derive the description of the property in the will from the CTs?---But point 11 says, 'I do not specifically recall whether I looked at it,' but then it says, 'I must have looked at the CTs to obtain the information.' So the first part of the paragraph says that I didn't but then the second part says, 'I don't know how I found out, Jack either told me or I must have looked at the CTs.' So I'm not denying in point 11 that I didn't look at the CTs.

You're saying that when you swore exhibit 1 you couldn't remember whether you looked at the CTs and you're now saying that you can remember?---But it says here I must have looked at the CTs and I do remember having the CTs with me (ts 25- 28).

[137]

Do you have a clear recollection of the events in June and July 2005 that led up to the execution of this will?---The actual preparing of the will? Yes.

You've told his Honour that you prepared the will perhaps between 2 July and 8 July that year, whereas in exhibit 3 you swore that you prepared it in front of Jack Fisher on 8 July, didn't you?---I believed at the time that - like I say, I'm not 100 per cent with the dates, but I know the events that happened and

The point is, Ms Kay, that when you swore exhibit 3, you went on oath that that was the case and now you're saying that that's not the case?---No, I believed at the time that that's what - I did the will on that day.

So wouldn't it be fair to say that you don't have a clear recollection of the events that led up to the execution of this will?---The events, yes. The days and the times, no.

So you have a clear recollection of the events, do you?

---I have a clear recollection of what I did and how I did it, yes.

Then presumably you have a clear recollection of whether Jack Fisher was present when you composed that will or not?---I took the details off him. He may not have been - he wouldn't have been present in the room because my computer is not in the same room. He could very well have been present in the lounge room where he was seated, but he wouldn't have - there's definitely no way he would have been present when I actually typed the will.

So he wasn't actually in the room. Was he in the house?

---Yes, he was.

You've said earlier that you weren't sure whether you composed this will on your own somewhere between 2 July and 8 July or whether you composed it on 2 July?---That's correct. I don't know whether I did it on the - I thought at the time I did it on the 8th when he was there, but obviously I did it on the 2nd after he had given me the details of what he wanted.

You said earlier in your evidence that perhaps you'd composed the will sometime between 2 and 8 July?---It was on one of the days that he visited. I believe a Saturday.

So are you saying that he paid you yet a further visit between the 2nd and the 8th - - - ?---No, I'm not.

Is your evidence earlier that this will could have been composed between 7 and 8 July are wrong?---Is wrong, did you say? Excuse me. Can you repeat the question?

Your evidence earlier was that you may have composed the will on your own between 2 and 8 July. You couldn't say when?---I wouldn't say between. It either had to be the 2nd or the 8th. They are both Saturdays, I believe, and it was either on the first Saturday, the 2nd, or the second Saturday, the 8th. I thought at the time it was the 8th, but it was definitely on one of those Saturdays.

So your evidence now is that Jack Fisher was in your home at the time you composed the will?---The time I composed it, as in writing it down? Yes.

The time you - - - ?---Physically typed it? Physically typed it, he may have been in the lounge room. I don't recall.

Let's just get this straight. You say that he was in your home when you wrote it down, that is when you took the notes on the piece of paper?---Correct.

But the occasion when you typed the will into the computer, you can't say whether Jack Fisher was in your home at that time or not?---Correct.

So you don't have a clear recollection of the events either, do you?---No (ts 62 - 63).

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