Bell v Crewes

Judgment 1HIS HONOUR: These proceedings concern the estate of Bruce William Crewes who died on 17 October 2009 aged 69. 2The principal question is whether an unsigned will that had been prepared for the deceased should be admitted to probate pursuant to s 8 of the Succession Act 2006. If the document is not admitted to probate, there is a question as to whether probate should be granted of a will duly executed by the deceased and dated 9 July 2004. The original of that will came into the possession of the deceased, but could not be located after his death. 3Section 8 of the Succession Act relevantly provides: " 8 When may the Court dispense with the requirements for execution, alteration or revocation of wills? (cf WPA 18A) (1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will-if the Court is satisfied that the person intended it to form his or her will, or ... (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to: (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2). ... " 4The deceased left an estate valued for probate purposes at approximately $3 million. The estate included an interest the deceased held in a property in Mosman. He held an interest in the property as a tenant-in-common with his wife. He held a nine-elevenths share in the estate. His wife holds the remaining two-elevenths share. 5By his 2004 will, the deceased appointed his wife, the present plaintiff, and Mr Robert Littlejohn as his executors, after making various pecuniary and specific legacies. 6He gave a one-eleventh share of the Mosman property to his wife, granted a life estate to his wife over the remaining eight-elevenths share in the Mosman property; directed that the remainder interest be held as to a 60 per cent share for his son Anthony, and as to a 40 per cent share for his son Peter; made detailed gifts of certain personal chattels; and left the residue of his estate as to a 55 per cent share to his wife, and as to the remaining 45 per cent share to his sons in unequal proportions. 7The plaintiff deposed that, during early to mid 2009, the deceased raised with her his desire to review the terms of his 2004 will. Following an overseas holiday, the deceased said to the plaintiff words to the effect, " we must change our wills when we get home. " 8The plaintiff is a solicitor by profession. The deceased gave her specific instructions as to changes he wished to make to his 2004 will. As a result of those instructions, the plaintiff prepared a new will. 9The structure of the new will was similar to the 2004 will, but there were specific changes to individual bequests. The changes included the deceased leaving three-elevenths shares in the Mosman property to his wife, and leaving his remaining six-elevenths shares on trust for his wife for her life, and thereafter to his sons Anthony and Peter, in the proportion of 70 per cent and 30 per cent. 10There are other changes, including changes to the residuary gift. All of the residue was to pass to the plaintiff if she survived the deceased for 28 days. 11The plaintiff gave evidence that she and the deceased also discussed changes to be made to the plaintiff's will to, as she put it, " mirror each other's requirements ". 12The plaintiff prepared a new will for herself in which she gave her shares in the Mosman property to her husband for his life, and after his death, on remainder for certain of her relatives. Likewise, the will that she prepared provided for her residuary estate to be given to her husband if he survived her for the requisite period, but otherwise on trust for certain of her relatives. 13The plaintiff in her oral evidence said that she and the deceased had discussions about the execution of the documents. She said that although she could not remember the detail of those conversations, " Certainly we would have been executing them together. " 14The plaintiff gave evidence that, after she had prepared the new will for the deceased, some time in the week between 4 and 11 October 2009, he said to her words to the effect, " I have read the new will - that's what we want - that's it. " She said to the deceased words to the effect, " We will need to have it signed ." He said, " Yes ." 15The deceased died suddenly on 17 October 2009 without having executed the new will. 16Mr Knowles, counsel who appeared for the plaintiff, submitted that the deceased expressly and unequivocally adopted the unsigned will by his words, " I have read the new will - that's what we want - that's it ." 17The evidence given by the plaintiff as to the deceased's intentions must be scrutinized with care, given that the deceased is not able to give evidence, and her interest in the proceeding. Having done so, I have concluded that I ought to accept it. 18However, I do not accept that the words used by the deceased indicate that it was his intention that the new will should be operative as his will from the time that he spoke the words, " that's what we want - that's it. " 19Those words indicate that the deceased was happy that the document prepared by the plaintiff accurately expressed his testamentary intentions. Nonetheless, it is clear that both he and the plaintiff understood that the will would need to be signed, and he acknowledged the necessity for its signature. 20Moreover, the appropriate inference is that the deceased intended to execute his will at the same time as the plaintiff executed her new will. It is to be inferred that he intended that the document would constitute his will from the time he signed it, which was intended to be the same time that his wife signed. 21It is not probable, and I do not think there is evidence that would justify a conclusion, that he intended the document to be operative prior to signature, as the parties intended to make wills whose provisions mirrored each other. It is not probable the deceased would have intended that his will be operative before his wife's new will was operative. 22The question is, whether the deceased intended the document " to form his ... will " within the meaning of s 8(2)(a) of the Succession Act . 23Section 8 replaces s 18A of the Wills, Probate and Administration Act 1898. The sections are in a similar form, except that s 18A required the court to be satisfied that the deceased intended the document to " constitute " the person's will, rather than to " form " his or her will. However, those words are synonymous, and the same principles apply to the construction of s 8 as applied to the construction of s 18A of the Probate and Administration Act ( Mahlo v Hehir [2011] QSC 243 at [39]; In the Estate of O'Dell [2010] NSWSC 678 at [30]). 24In The Application of Kencalo; In the Estate of Buharoff (Supreme Court of New South Wales, Powell J, 23 October 1991, unreported) Powell J dealt with an application, that a draft will be admitted to probate pursuant to s 18A of the Probate and Administration Act 1988. The draft had been prepared by a solicitor. It had been approved by the deceased, and arrangements had been made for the deceased to attend on the solicitor, to execute not the document with which he was provided, but an engrossed will. She died before that could be done. 25Powell J held that the draft will could not be admitted probate. His Honour said: " ... before the jurisdiction conferred upon the Court by s18A of the Act may be exercised: 1. there must be a document; 2. that document must purport to embody the testamentary intentions of the relevant Deceased; 3 . the evidence - whether it be the form, or contents of the document itself, or evidence as to the circumstances in which the document came into being - must be such as to satisfy the Court that, either at the time of the document being brought into being, [ ] the relevant deceased, by some act, or words, demonstrated that it was his, or her, then intention that the document in question should, without more, operate as his, or her, Will. " I assume that the words " or subsequently " should be understood as being inserted in the place I have sought to indicate. 26As Mr Knowles in the course of his able submissions correctly submitted, the applicant for probate in that case failed because the deceased did not intend the draft document to be her will, but rather, an engrossed copy of the document that she intended to execute. 27In the present case, it was submitted that I should infer that the deceased intended to execute the very document that he had read and approved. 28I accept that there is this point of factual distinction. Nonetheless, the passage which I have quoted and which has been frequently applied does require that, to be admitted to probate, the deceased must have intended that the document in question should " without more " operate as his or her will. That intention, I think, need not necessarily exist at the time the document is brought into being, but it must exist some time before death. 29The principle that the deceased should intend that the document should have an immediate operation as the deceased's will has been repeated on numerous occasions and is binding on me. Thus in Hatsatouris v Hatsatouris [2001] NSWCA 408, Powell JA (as his Honour had become) with whom Stein JA agreed, said (at [56]): " It is, and has long been, my view that the questions arising on applications raising a question as to the applicability of s18A are essentially questions of fact, the particular questions of fact to be answered being: (a) was there a document, (b) did that document purport to embody the testamentary intentions of the relevant Deceased? (c) did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will? (see, for example, The Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray Powell J, 19 June 1992 (unreported)). " (Emphasis in original.) 30The same principle was expressed in slightly different words in In The Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446. Mahoney JA said (at 454-455): " Every document which a person prepares or executes is, in the sense here relevant, intended by him to be something: it may, for example, be intended to be a letter, a personal memorandum, a draft of something to be prepared later or a presently operative document. The section requires, of course, that the document to which it refers be of the latter kind. It must be intended that the document be presently operative and be operative as a 'will' . There are, in the present context, several things which are relevant in that regard. First, the document must state the deceased's 'testamentary intentions ' , that is, his wishes or intentions as to how, voluntarily, his property is to pass or be disposed of after his death. A will may, of course, do other things: it may, for example, appoint a legal personal representative, exercise a special power, appoint a guardian or the like: see Halsbury's Laws of England , par 202. But it is the disposition of the deceased's property voluntarily after his death which is, for present purposes, the relevant characteristic of a will. Secondly, it is a characteristic of a will, in the sense to which I shall refer, that it does not operate to bind the deceased during his lifetime. I mean by this that it is of the nature of a will that the deceased may, during his lifetime, freely dispose of property which has been dealt with by his will and that, during his lifetime, he may revoke or change the will that he has made. The significance of these matters has been referred to in, for example, Russell v Scott (1936) 55 CLR 440 at 448, 454; Kauter v Hilton (1953) 90 CLR 86. Neither of these matters is, I think in issue in the present appeal. The third matter is of greater significance in the present case. Section 18A(1) requires not merely that the document propounded 'embody the testamentary intentions of ' the deceased but also that the deceased 'intended the document to constitute his ... will ' . 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 will, like, for example, a contract, a deed, and a sale, is, as it has been said, 'an act in the law ' . It is something to which the law attaches the legal consequences of that kind of transaction: see Salmond and Williams , Principles of the Law of Contracts , 2nd ed (1945) at 4 et seq, citing Salmond, Jurisprudence , 7th ed (1924) at 360. Ordinarily, a transaction will or will not be an act in the law of the particular kind according to whether it was of the relevant form or nature and was intended to operate as such. Thus, a document which is in form a will will not operate as such if it is, for example, a draft or 'a trial run,' not intended to have a present operation. 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. " (Emphasis added.) 31Mahoney JA dissented on the facts, but his Honour's reasons were consistent with that of the other members of the court (see Kirby P at 452 and Priestley JA at 469). His Honour's statement of principle has also been frequently cited (see, for example, Polyak Estate; Amy v Permanent Trustee [1999] NSWSC 862 at [13].) 32I do not consider that the observations of Basten JA in Costa v The Public Trustee of NSW [2008] NSWCA 223 at [110] are intended to cast doubt on the accuracy of his Honour's reasons. 33In Oreski v Ikac [2008] WASCA 220, Newnes AJA with whom Martin CJ and McLure JA agreed, said (at [52]-[55]): "[52] In Hatsatouris v Hatsatouris [2001] NSWCA 408 [56], Powell JA (with whom Priestley and Stein JJA agreed) identified three questions of fact that arise under the New South Wales equivalent to s 34, those questions being: