Bannister v Perpetual Trustee Co Ltd; Estate of Mascot Zita Blake deceased [2008] NSWSC 1283 | Case summary

110753/07 - BANNISTER v PERPETUAL TRUSTEE COMPANY LIMITED; ESTATE OF MASCOT ZITA BLAKE DECEASED JUDGMENT 1 HIS HONOUR: These are proceedings for the plaintiff to obtain a grant of probate in solemn form of the will of the late Mascot Zita Blake which was made on 24 December 2002. Mrs Blake died on 14 May 2007. At the hearing today Mr B Townsend appeared for the plaintiff, Mr L Ellison SC and Mr L Ang appeared for the first defendant, and Mr P Kennedy, solicitor, who had filed a submitting appearance, appeared for the second defendant. 2 Were it not for a document of 15 February 2005, which the defendants say should be held to constitute Mrs Blake's last will pursuant to s 18A of the Wills, Probate and Administration Act 1898, there would be no doubt that probate should be granted of the 2002 will. However, the document of February 2005 at least purported to revoke the 2002 will. 3 The late Mrs Blake was divorced. She had one child, a son, Paul. Paul was an actor who suffered a horrendous accident which resulted in him becoming a quadriplegic and he lives in virtually a vegetative state. Paul received a large verdict which has been managed by the first defendant. Paul himself has one child, the second defendant, Dustin Blake, who is now 29 years of age. 4 The document of 15 February 2005 as presented to the court has two separate pieces of paper. On the larger piece of paper, a double sheet, the first page is numbered 1 on the obverse side and on the reverse side the page is numbered 2. It appears to have been torn from an A4 size exercise book. Pages 3 and 4 are blank, however, there is on page 3, that is the blank page, the impression of page 1 which shows that page 3 was directly under page 1 when the document was written. The separate and smaller sheet does not bear any impression of the writing on pages 1 or 2 and is a single sheet of paper which appears as if it may well have been taken from the same exercise book, but it was not written resting on the double sheet. I will call this page 5. Whether this separate sheet is part of the document or not might have been an awkward question, but it does not seem to me in the circumstances that it is one that I need to go into. 5 The document reads as follows:

MR JOHN HERBERT BANNISTER [line deleted] [line deleted] IN THE EVENT OF MY DEATH IS TO BE CONSIDERED FINANCIALLY FOR HAVING FAITHFULLY SERVED PAUL, MYSELF AND THE STAFF IN CASTLECRAG, [deleted] IN ADDITION TO WHICH HE LIASED WITH THE ARCHITECT (LEACH) AND SIMPLIFIED THE COMPLEXITIES OF MY UNDERSTANDING [deleted] PLANS ETC." 6 However, it is impossible to set out exactly how it appears in the handwritten original. For instance, where on page 5 two lines are crossed out, in the original before the crossing out they read: "MR JOHN HERBERT BANNISTER, DR DESERVES AND IS ENTITLED TO A FEE FOR HAVING FOR FAITHFULLY." 7 Section 18A of the Wills, Probate and Administration Act 1898 reads as follows: "[18A] Certain documents to constitute wills etc 18A. (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, 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 the person's will, an amendment of the person's will or the revocation of the person's will. (2) In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person." 8 It should be noted that s 18A has been repealed by Act No 80 of 2006 and replaced by s 8 of the Succession Act 2006, but it is the older section that applies to this case. 9 Section 18A, which was introduced in 1989, does effect some radical reforms to the then existing law as to wills. Up until then it was strictly necessary in every case to comply with the formal requirements of execution of a will which basically were, as in s 7, that the will is signed by the testator in the presence of two or more witnesses, in circumstances where the testator intended by the signature to give effect to the will. Section 18A allows a document which falls short of those requirements to qualify as: (a) a will of the deceased person; (b) an amendment of such a will; or (c) the revocation of such a will, if the court comes to the view that the deceased person intended the document to do that. 10 The section has been construed by courts on a number of occasions though there is little conflict in the various decisions. One of the early decisions is Re Masters (1994) 33 NSWLR 446 where the Court of Appeal made it clear that s 18A should be given a beneficial application. In Permanent Trustee Co Ltd v Milton (1995) 39 NSWLR 330 at 334, Hodgson J said that where a section 18A document operates as a will, then once the testator has evidenced the intention that that document operate as a will, "it is clear that it is not sufficient to deprive the document of effect that the testator forgets about the document or loses testamentary capacity." 11 So that once a testator evinces the intention, either at the time the testator makes the document or subsequently, that it is to operate as a will or revocation or an amendment under s 18A, then the document is not deprived of that effect by the testator afterwards forgetting about it. However, the fact that the testator does forget about it or acts inconsistently with it may assist the court to find that it was never intended to be a will in the first place. 12 The only other case that I will mention is my own decision in Aoun v Clark [2000] NSWSC 274 where I considered revocation and s 18A and the relation between ss 18A and 17 of the 1898 Act. I mention that because it is certainly not clear from a reading of s 17, which provides that a will can only be revoked in accordance with s 17 (subject to ss 15 and 15A) why there is no reference to s 18. It would seem, as I said in Aoun's case, that whilst s 17(3)(c) allows revocation by writing on the will itself, s 18A was meant to supplement that by saying that you could have an independent instrument which would have that effect. In view of the fact the section has now been repealed, there is probably little purpose in going further and certainly neither counsel submitted that s 17 prevents the court from finding that a document can operate under s 18A as a revocation. 13 The court must under s 18A be satisfied of certain things and that is that the document was intended by the deceased to constitute either a will or, in the present case, revocation. 14 Courts look at various guidelines when working out that matter. One guideline is where the document was found. In the instant case, it appears that the 2005 document was found with other important documents. Secondly, whether the testatrix ever referred to the document. I will revert to that. Thirdly, the habits of the testatrix, was she a person who would normally approach a solicitor for things like this or was she a person who would tend to do things on her own bat or with the advice of a relative. And, fourthly, the text of the document itself. Of course, there will be other cases where other factors will also impinge on it. 15 In the present case, there have been various innuendoes and insinuations about malpractice on perhaps both sides. However, the matters which were the subject of those innuendoes are so serious that fairly strong evidence would be required if they were to be pressed and it seems to me that there is just not the evidence available to substantiate any of them and, accordingly, I will disregard them. 16 As to the testatrix's acknowledgement of the document, the strongest the evidence appears to me to go is in paragraph 19 of the affidavit of Ms Marshall where she says that the testatrix phoned her on about 28 April 2007, that was about ten days before she died, and said that she had done a deal with the devil and that she thought that she was being overheard whenever she discussed things on the phone. She said: "I have done the wrong thing with a really important document, I was stupid doing it but I had to. I've written more paperwork and I've fixed it." Ms Marshall said: "Do you mean your will?" to which the testatrix replied: "It is not a safe line. We will talk when you come over next." However, there was no such occasion because the testatrix died. 17 There is some slight confirmation of the words "I've fixed it" in other evidence given by a Ms Garcia, who was one of the nurses, but, again, it does not really seem to me that either of those is very strong evidence on the particular point, though, of course, it is some evidence. 18 The document itself says that it is the last will and testament of the deceased, however, it hardly qualifies as a will because it neither appoints an executor, nor does it make any disposition of property. It also contains wishes such as, "I wish my son to be cared for", rather than setting out any firm arrangement. If the one page document is part of the whole document then it also shows that the testatrix was thinking about what property she had and what she should do with it. 19 In my view, it is more likely than not that the odd page is part of the document. It is written, it would seem to me, in the same pen and on paper from the same exercise book. Furthermore, the text on page 2 shows that the testatrix was still thinking about establishing a drama studio or such in her son's name, but she acknowledged that this had not yet come to fruition. It was still being negotiated and, indeed, other evidence shows that this thought had come to her from time to time from at least 2002, but had never come to fruition. Accordingly, it seems to me that the whole document was one where the testatrix was setting down her thoughts about what she would do rather than something which was to operate as a testamentary instrument. 20 It is clear from the authorities that ordinarily drafts or instructions to solicitors to prepare a will are not within s 18A because they are not intended by the testatrix to have immediate effect, but, as Hodgson J said in Milton's case, it does not disqualify if it is intended to be an interim testamentary document to take effect until a solicitor prepares a better one. 21 Speaking of solicitors, it is clear in this case that previous wills were made by the testatrix with the aid of a solicitor and this was acknowledged by her on the first page, which indicates that her previous wills were with two named solicitors and that further, she had spoken with a third solicitor about establishing a trust. It is, accordingly, unlikely that she would want her own writing to constitute a will. 22 Accordingly, in my view, the document cannot operate as a will and that there is not the intention there that the document constitute the deceased's will. 23 The next matter is whether it can operate to revoke. Certainly she says, "I wish to revoke all previous wills". Now, one could be semantically precise and say that that was not a statement of revocation, it is only a wish of what she wants to do and, indeed, that would fit in with the general intention that the thing was to operate as a recording of her thoughts. However, if one put that thought aside and said: "Well, here we have the words, 'revoke all previous wills' ", surely that should be enough. 24 However, revocation involves two elements, namely (1) a physical doing of something to satisfy s17 or s 18A; and (2) an intention. When one looks at the whole document one can see that primarily the testatrix was thinking that if this document was to operate, it was to operate as her last will and testament and that the revocation bit was only part of a whole. This marries in with the doctrine of dependent relative revocation, which is to the effect that if a testator revokes a will with the intention of setting up a new will, and the new will fails for some reason or other, then the revocation clause lapses or does not take effect. 25 It seems to me that either there is insufficient evidence to show that this was merely an indication that when the new will was set up the old will would be revoked or, alternatively, if technically it does operate as a revocation, the doctrine of dependent relative revocation applies. It follows then that I cannot give this document, which is DXO1, testamentary effect, either as a will or as an instrument of revocation, and thus the plaintiff is entitled to a grant of probate in solemn form of the will of 24 December 2002. 26 I refer the matter to the Registrar to complete the grant. 27 After giving these reasons, Mr Ellison has submitted that the proper order should merely be a grant of probate not in solemn form, however, in my view, in the light of s 63 of the Supreme Court Act 1970 and otherwise, the appropriate order is a grant in solemn form. 28 There is no doubt at all that the plaintiff is entitled to his costs out of the estate on the indemnity basis, however, I am glad that the plaintiff's counsel has given an undertaking to the first defendant to give three months' notice before he enforces that order by having to sell the house. 29 The question then is whether the first defendant is entitled to any costs. The rule is that in adversary proceedings, the person who is successful gets his costs and the person who is unsuccessful pays the costs. However, an exception, which is relevant in this sort of case, is that where the problem has been caused by the testator it is fair that the estate should bear all the costs of undoing the problem the testator caused. 30 It would seem from a surface look at the authorities that in s 18A cases if the testator has written the document which causes the problem, as is clear that the testatrix did in the instant case, and that the case is one which at least should not be struck out, that ordinarily the costs are paid out of the estate on the party and party basis. I think the instant case comes within that exception. Accordingly, the first defendant's costs should be paid out of the estate on the party and party basis and I suppose it follows that the second defendant's costs on a submitting basis should also come out of the estate.

Bannister v Perpetual Trustee Co Ltd; Estate of Mascot Zita Blake deceased

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Judgment (22 paragraphs)

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Cases Cited (4)