Borthwick v Mitchell - [2017] NSWSC 1145 - NSWSC 2017 case summary — Zoe

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Borthwick v Mitchell

[2017] NSWSC 1145

Supreme Court of NSW|2017-06-08|Before: Ward CJ

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2017-06-08

Before

Ward CJ

Catchwords

12 ER 1089 Bird v Perpetual Executors & Trustees Association of Australia Ltd (1946) 73 CLR 140 Briginshaw v Briginshaw (1938) 60 CLR 336
[1938] HCA 34 In the Estate of Beech, deceased [1923] P 46 In the Estate of Knibbs, deceased
Flay v Trueman [1962] 1 WLR 852 In the Estate of Masters (Deceased)
Hill v Plummer

Source

Original judgment source is linked above.

Catchwords

12 ER 1089 Bird v Perpetual Executors & Trustees Association of Australia Ltd (1946) 73 CLR 140 Briginshaw v Briginshaw (1938) 60 CLR 336[1938] HCA 34 In the Estate of Beech, deceased [1923] P 46 In the Estate of Knibbs, deceasedFlay v Trueman [1962] 1 WLR 852 In the Estate of Masters (Deceased)Hill v PlummerPlummer v Hill (1994) 33 NSWLR 446 Miller v Miller (2000) 50 NSWLR 81[2000] NSWSC 767 National Australia Trustees Ltd v FazeyThe Estate of Nancy Elaine Lees, Late of Strathfield [2011] NSWSC 559 Newman v BrinkgreveEstate of Verzijden [2013] NSWSC 371 NSW Trustee and Guardian v HalseyEstate of Von Skala [2012] NSWSC 872 Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330 Re Application of BrownEstate of Springfield (1991) 23 NSWLR 535 Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107 Russell v Scott (1936) 55 CLR 440[1936] HCA 34 Tobin v Ezekiel (2012) 83 NSWLR 757

Judgment (17 paragraphs)

[1]

[3]

Background

Much of the following is drawn from the evidence of Ms Borthwick, whose truthfulness was not questioned by the defendants (see T 19.22), though the defendants nevertheless emphasise that it is a serious matter even accepting Ms Borthwick's evidence to draw the requisite inference, from the making of the notes by Ms Borthwick, that the deceased intended the notebook entries to be his will. Reference is also made, in what follows, to other parts of the evidence adduced in the plaintiffs' case. (The evidence filed on behalf of the defendants was relied upon only for the application for administration on intestacy in the event that the application for a grant of probate in respect of the alleged informal will were to be unsuccessful.)
The deceased had been a family friend of the Borthwick family, being particularly close to Ms Borthwick's aunt and uncle, when each of the plaintiffs were children. Both first came to know him in that context. Rose and her first husband divorced in about 1998. In 2001, Rose moved to the deceased's farm to live with him and from about that time Ms Borthwick treated him as her father. Mr Jamieson also deposed that the deceased became "like part of the family" (affidavit of Mr Jamieson sworn 1 December 2016 at [21]). Both Mr Jamieson and Ms Borthwick called the deceased "Dad" and were in regular contact over the years with the deceased and Rose.
In around 2006 or 2007, the deceased was diagnosed with prostate cancer. He married Rose in November 2008. Rose died in 2011. Ms Borthwick continued to maintain contact with the deceased after Rose's death and helped him with cleaning and cooking at the farm. Mr Jamieson, who lives in Queensland, also remained in contact with the deceased after Rose's death and, for a period of about 12 months when Mr Jamieson moved back to the Monaro area, he spent time with the deceased doing work on the deceased's farm and saw him every week.
Ms Borthwick has deposed that after Rose's death the deceased spent more time around the house and it was her observation that the deceased had lost motivation to do the farm work (affidavit of Ms Borthwick sworn 1 December 2016 at [42]). She says that she and Mr Jamieson were concerned about this and she deposes that they did their best to make sure that the animals were looked after.

[4]

Deterioration of the deceased's health in January 2015 and his admission to Cooma Hospital on 2 August 2015

In January 2015, the deceased's health started to deteriorate. Ms Borthwick took him to Canberra for an eye appointment on 12 January 2015, at which time the deceased was admitted to Canberra hospital for a period of 12 days. During that period Ms Borthwick drove a round trip of about 230km from Canberra to the farm every other day to feed the deceased's farm animals. Mr Jamieson has deposed that from the time the deceased went to Canberra hospital he seemed to be a bit weak and was not as active on the farm.
After the deceased returned to the farm from his admission to Canberra hospital in 2015, Ms Borthwick drove him to Canberra for two or three appointments every month. She recalled that she was present during one appointment in February 2015 when the oncologist (Dr Pranavan) said words to the deceased to the effect "If you leave your cancer untreated you could be dead in six months" (affidavit of Ms Borthwick sworn 1 December 2016 at [48]).
On 2 August 2015, the deceased was admitted to Cooma Hospital. Ms Borthwick received a telephone call that afternoon telling her that the deceased was in hospital and that he had asked that she be called. She visited him at the hospital from about 4.30pm until 7.30pm that day. She visited him again on the morning of 3 August 2015 before going to the deceased's farm to feed the animals. She returned to the hospital at about 1.30pm and the deceased asked her to buy some fruit for him. She went to buy the fruit when the nurses came to take the deceased for a scan. On her return to the hospital she saw the deceased's doctor (Dr Timothy Rumball) in the car park. He told her that "This is very serious. If it is what I think it is, it is very serious. If he does leave here he will need care" (affidavit of Ms Borthwick sworn 1 December 2016 at [56]). Ms Borthwick asked Dr Rumball if he had told the deceased that and he informed Ms Borthwick that he had.
Dr Rumball affirmed an affidavit on 29 November 2016 in which he deposed to the deceased's medical condition on 2/3 August 2015 and exhibited the hospital notes of his admission. He deposed (at [7]-[8]) that he had told the deceased that his condition was serious and corroborated Ms Borthwick's account of the conversation with her in the hospital car park.

[5]

The deceased's blue notebook

After her conversation with Dr Rumball, Ms Borthwick went to see the deceased in the ward. She has deposed that, after an attempt by the deceased to go for a walk when he became "very shaky" and told her he felt "weak as a kitten", they went back to the ward and waited for the doctor. She has deposed that there was then a conversation, while she was sitting right next to the deceased's bed, in which the deceased said to her: "Mate, I stuffed up. I haven't redone my will since mum died" (see affidavit of Ms Borthwick sworn 1 December 2016 at [61]). Ms Borthwick said that she was "pretty cross" and there was then a conversation to the following effect: … I said: "So what you want the fucking government to get it all?" George said: "No mate I don't. But I didn't do it." I then said: "Is there anyone you want to call in your family?" George said: "Yes, Heather and Ken in Cowra. The number's on the wall or in mum's pink book in my bag."
At [62], Ms Borthwick goes on to depose: George then said: "There is a notebook in my bag, I want you to write this down." I said: "Okay". The bag was on the floor right next to me. I reached down without getting up and got the notebook and pen. I put the blue notebook on the bed table in front of us and I wrote: "Family to call Heather and Ken Edwards number in mums [sic] pink book" This is what George had told me before he asked me to get his notebook.
And then (at [63]) that: I then wrote down what George said to me in the blue notebook under the heading "Dad's wishes" while he spoke to me. He said: "Uncle Peter is to get the Ford ute as it was our wish for him to have it. All the family knows that's what we wanted." "The baby yellow dozer (mum's one) and one big yellow dozer to Uncle Peter. He will know what one I mean." "You and Rinsie can keep or sell everything whatever you want but if selling stuff Uncle Peter is to have first offer on the red truck and the trailer."
Ms Borthwick says that she was crying when she was writing but was trying to hold herself together. After she had finished writing she put the blue notebook in the deceased's overnight bag. At [65], she deposed that: George said to me words to the effect of: "If we're still here tomorrow, we'll get the solicitor to come up. If we're in Canberra, I'll get you to get a will kit and bring it to the hospital."
Ms Borthwick says that they then had a conversation about her work "whether I would be able to get the time off work if he had to go to Canberra" ([66]).

[6]

Events later in the afternoon/early evening of 3 August 2015

The hospital notes record that at about 3.38pm the deceased asked if he could have some water and he was told that he could. However, Ms Borthwick says that he did not drink any water.
Ms Borthwick says that the doctor came back later, when it "was dusk" (affidavit of Ms Borthwick sworn 1 December 2016 at [67]). (As will be seen, that is consistent with Dr Rumball's account.) Ms Borthwick said that Dr Rumball said that they needed to talk together in a private room and that she and Dr Rumball moved the deceased to the lounge area where the doctor explained what was going on. She deposed (at [68]) that Dr Rumball said: Your body is shutting down. Everything has gone wrong at once. You have a mass in the small intestine. Potassium and sodium levels are not right.
Ms Borthwick said there was some discussion about whether to move the deceased to Canberra for surgery or to keep him in Cooma to stabilise some of his other problems (which she said occurred after the notes were dictated to her by the deceased) and that at the end of that conversation the deceased said "Let's do it, I'll go to Canberra". (Pausing there, if the chronology of events given by Ms Borthwick is correct then either the deceased was told at some earlier stage that there was a possibility that he might be transferred to Canberra - perhaps in the earlier conversation to which Ms Borthwick was not a party in which Dr Rumball had told him his condition was serious - or else he must have assumed it was a possibility, since Ms Borthwick's account of the conversation at the time of the making of the notes includes reference by the deceased to the possibility of going to Canberra hospital but that decision was not made until the later discussion with Dr Rumball in the private room.)
As adverted to earlier, Dr Rumball corroborates Ms Borthwick's account of the discussion with the deceased and Ms Borthwick in a private room. He says this was after he had received a CT report confirming the existence of a large bowel obstruction, sometime between 4.55pm and 6.41pm on 3 August 2015. Dr Rumball did not recall any nurse being required to assist the deceased to walk to the room (and says that if that had been necessary a wheelchair would have been used to prevent the risk of a fall). Dr Rumball deposes (at [10] of his affidavit) that at one stage in the discussion the deceased asked him to come with him to Canberra (for surgical treatment of the obstruction), which is consistent with Ms Borthwick's account that the deceased had agreed to the proposed surgery to take place in Canberra. Dr Rumball left the hospital at about 7pm, at which time he said the deceased remained in the ward. That is consistent with the hospital notes made by Dr Rumball at about 6.41pm that day.
Ms Borthwick has deposed that after Dr Rumball left she and the deceased went back to the ward. Ms Borthwick deposes that it was a bit later, after the deceased had complained that the nurse had not come with his morphine, and the deceased had said he needed to go to the toilet, that the deceased stood up, that the deceased vomited all over her, and that the deceased looked like he had some kind of seizure and was not responsive to her. She called for help and says that, after the doctor and nurses came and started working on the deceased, the doctor told her "There is no coming back from this, you know that don't you?" (affidavit of Ms Borthwick sworn 1 December 2016 at [75]). The deceased was moved to a room by himself where he died about ten or fifteen minutes later. Ms Borthwick's account of this is consistent with the relatively contemporaneous conversation with Mr Jamieson the following day.
Dr Rumball's evidence was that he was called back to the hospital at about 7.20pm and that when he arrived the deceased was unconscious. He arranged to have the deceased moved to another room and says that the deceased died shortly after his return to the hospital. He could not recall any significant discussion with the deceased about the gravity of his condition until mid-afternoon on 3 August 2015. He also said that although the condition was very serious he did not expect the deceased to die that night.
There was evidence of a contemporaneous reference by Ms Borthwick to the making of the notes, namely, a discussion between Ms Borthwick and a store manager who employed her during 2015, Ms Nicole Wakeling. Ms Wakeling deposed that Ms Borthwick had rung her from the hospital at about 7.30pm that night, saying that the deceased had "had a fit or seizure of something" but it was under control and that they had sent her outside to have a cigarette (affidavit of Ms Wakeling sworn 30 November 2016 at [6]). Ms Borthwick told her "I don't know if he is going to last much longer. He made me write stuff down" and that "He made me write down stuff like who was having what" (see [7]).
Mr Jamieson gave evidence that the day after the deceased died his sister told him that (affidavit of Mr Jamieson sworn 1 December 2016 at [41]): Dad was telling me stuff and I was writing it down. Then he wanted to go to the toilet but he had some kind of seizure and he collapsed. I got stuff on me. I got him back to the bed and that's how he went.
Accordingly, the essential aspects of Ms Borthwick's account of events at the hospital in the afternoon and early evening of 2/3 August 2015 are corroborated by the accounts given by various others of contemporaneous discussions (and in the case of Dr Rumball of his recollection of events).

[7]

The hospital notes

The hospital notes, to which I have already referred, were in evidence (Exhibit A). They are consistent with Ms Borthwick's account of events. The triage form entered on 2 August 2015 at 1.22pm records that the deceased presented with lower back pain and was pale and tachycardic; that he had metastatic prostate cancer diagnosed in 2006 and a prostatectomy in that year. The progress notes recorded as at 1.24pm record that Dr Rumball was "contacted - for IV morphine 2.5mg in increments until pain free" and that this would be reviewed at 3pm; as at 1.54pm that a telephone order for administration of morphine was obtained from Dr Rumball; and as at 3.38pm that the staff requested the deceased "to drink bottle water" and that they would "get him to walk around". Dr Rumball's evidence was that he expected that the instruction for the deceased to drink water and walk around was "done possibly under my oversight - distant oversight - but per instruction" and he agreed that this was at a point where he was confident that the deceased could undertake the task of drinking a bottle of water without the need for an intravenous drip (see T 17.34-39).
A progress note authored by Dr Rumball refers to an urgent review at 3.15pm at which time a report was awaited in respect of an urgent CT scan that had been taken. The next progress note authored by Dr Rumball was recorded at 6.41pm. By then the CT and blood results had been obtained and the note records that there was a "[l]ong discussion with Colin and step-daughter re treatment options". Those treatment options were for the surgical treatment of a large bowel obstruction (not possible at Cooma Hospital), with "very difficult recovery given worsening renal impairment, hyponatraemia, and ? sepsis" or for palliative treatment at Cooma Hospital. The note recorded that "they are unclear of best thing to do" and reported that Dr Rumball was waiting for a general physician to call back and that he would review the patient at that stage. In his evidence, as noted above, Dr Rumball recalled that the deceased had asked if he would accompany him to Canberra (at [10] of his affidavit).
A progress note recorded by a registered nurse at 7.54pm then noted that at 7.05pm the patient's daughter had called out for help and the patient "was found lying half of [sic; scil off] the bed, vomiting" and that he was unresponsive when laid back on the bed. Dr Rumball's progress note of 8.59pm recorded that at 7.20pm he was called back to the hospital urgently after the patient collapsed; that at 7.55pm respirations ceased and there was no cardiac output; and that the situation had been explained to the stepdaughter who was present throughout.

[8]

Events after the deceased's death

After the deceased's death, Ms Borthwick took his personal effects (including the notebook) in his overnight bag home with her. (For the defendants it is noted that there is no suggestion that the deceased had asked her to place the notebook into his overnight bag.) She contacted solicitors two or three days after the deceased's death but did not mention the notes that she had taken at the hospital at the time. She said that she did not think the notes were of any use as they were her notes and the deceased had not signed them; and said that she was most concerned at the time about obtaining access to the deceased's bank accounts so they could hire shearers to shear and crutch the sheep.
In re-examination, Ms Borthwick said that the thought did not cross her mind to ask the deceased to sign the notes because she did not think he was going to die that night or not long after; that she did not understand anything about the significance of the signature on wills; and that she did not have a will (T 11).
Sometime over the next couple of weeks Ms Borthwick told her solicitor, in response to something that had been said by her solicitor which she cannot now recall, that "Dad told me to write his wishes down in his notebook, and I have the notebook" (affidavit of Ms Borthwick sworn 1 December 2016 at [85]). Ms Emma Schlachter, the solicitor consulted by Ms Borthwick, corroborated the account given by Ms Borthwick as to how the notes came to be disclosed to her (see [13]-[17] of her affidavit affirmed 30 November 2016). Ms Schlachter then sought advice from Counsel as to the status of the notes for testamentary purposes.
The original notebook was in evidence at the hearing. Ms Borthwick readily accepted that the words "Dad's wishes" at the top of the relevant entries were words that she had written but which had not been dictated to her by the deceased (T 10.7-10.13). She also accepted that the deceased did not ask to have a look at the notes before it was placed back in the bag (T 10.26).

[12]

Statutory provisions

Section 6 of the Succession Act concerns the formalities required for a valid will. Relevantly, it provides that: (1) A will is not valid unless: (a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and (b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and (c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other). (2) The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will. (3) It is not essential for a will to have an attestation clause. …
Section 8 of the Succession Act sets out the circumstances in which a court may dispense with the requirements for the execution, alteration or revocation of wills. The section applies to wills in respect of persons who die on or after 1 March 2008. It provides, relevantly, as follows: (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 … … (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). …
The plaintiffs emphasise that s 8 of the Succession Act is a beneficial or remedial provision and should be liberally construed so as to give the most complete remedy which its phraseology permits. Such an approach is consistent with the approach indicated by Kirby P, as his Honour then was, in relation to the predecessor to s 8 in In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446 (at 451-452). His Honour there said (at 452) that: A too stringent requirement of proof that a propounded document, otherwise clearly embodying the testamentary intentions of a deceased person, constituted his or her will would undo the reform proposed by the Law Reform Commission and accepted by parliament. Courts would continue to squirm at the results where the testamentary wishes of the deceased are sufficiently disclosed but cannot be given effect to because they fall short, in the court's conception, of constituting the deceased's will. To adopt such a stringent approach is, in my respectful view, to permit the conceptions about the formalities required for a will, which preceded and explained the enactment of s 18A of the Act, to rule us from the statutory grave.
The plaintiffs thus submit that the Court should not be alert in placing a restricted construction upon the terms of s 8. That said, recognition that the provision be given a beneficial application "should not be taken to mean … that the statutory formalities enshrined in the [Succession Act] are to be unduly relegated in importance (Newman v Brinkgreve; Estate of Verzijden [2013] NSWSC 371 at [85] (Hallen J)).
The predecessor to s 8 of the Succession Act (namely, s 18A of the Wills, Probate and Administration Act 1898 (NSW)) was in slightly different terms from those of s 8 (but see Yazbek v Yazbek [2012] NSWSC 594 and the cases cited therein, in which Slattery J considered (at [77]) that there was no substantive difference between the respective provisions).
Section 10 of the Succession Act provides as follows: (1) This section applies if a beneficial disposition is given or made by will to a person (the interested witness) who attests the execution of the will. (2) The beneficial disposition is void to the extent that it concerns the interested witness or a person claiming under the interested witness. (3) A beneficial disposition is not void under subsection (2) if: (a) at least 2 of the people who attested the execution of the will are not interested witnesses, or (b) all the persons who would benefit directly from the avoidance of the disposition consent in writing to the distribution of the disposition under the will and have the capacity to give that consent, or (c) the Court is satisfied that the testator knew and approved of the disposition and it was given or made freely and voluntarily by the testator. …
As noted above, the amended statement of claim sought a declaration as to the Court's satisfaction of the matters outlined in s 10(3)(c). It was submitted for the plaintiffs that if the Court were to find that Ms Borthwick was an honest and reliable witness, then the Court should find that the words emanated from the testator and it was submitted that, in those circumstances, the Court could be satisfied that the testator "knew and approved of the disposition and that it was given or made freely and voluntarily by the testator" (s 10(3)(c)) (see T 32). It was submitted that if the Court were minded to confer a grant in respect of the notes, it could also give relief under s 10(3).
The plaintiffs accept that the dispensing power conferred by s 8 of the Succession Act does not, in itself, involve the exercise of a discretion by the court. Rather, if the requisite factual findings are made then, pursuant to s 8(2), the document in question forms the will of the deceased.
What must be established for the purposes of s 8(1) is that there is a document that has not been executed in accordance with Pt 2.1 of the Succession Act as a will (which is clearly the case here and is not disputed by the defendants) and that the document purports to state the testamentary intentions of a deceased person. What must then be established (s 8(2)) is that the document was intended by the deceased to constitute his or her will.
In relation to the enquiry to be made under s 8(2), s 8(3) permits evidence as to the manner in which the document was executed and the actual testamentary intentions of the deceased person (including his statements). Sub-section 8(4) permits the court to consider any other factor on the question whether the deceased intended the document in question to form his will.

[13]

Plaintiffs' submissions

The plaintiffs accept that the plaintiffs bear the onus of proving on the balance of probabilities the matters required by s 8 (Newman at [87]) and that, insofar as the notes constitute a significant departure from the requirements of s 6 of the Succession Act, it will be necessary for there to be a careful assessment of the evidence. The plaintiffs also accept that, in circumstances where Ms Borthwick is an interested witness, it is appropriate that in assessing whether the civil standard of proof is satisfied regard should be had to Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (the plaintiffs referring to Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [48] and s 142 of the Evidence Act 1995 (NSW)).
The plaintiffs submit that, at the stage of determining whether the notes purport to state the testamentary intentions of a deceased person for the purposes of s 8(1), the Court is not required to establish the provenance of the notes; rather, that there is an evaluative task to be undertaken as to the intent of the notes. They submit that in the present case, there can be no doubt that the notes purport to state relevant testamentary intentions.
The plaintiffs thus identify the real issue in this case as being whether s 8(2) is satisfied, namely that the deceased intended the notes to form his will. It is submitted that it is at this stage that the provenance of the notes should be considered and that, if their authenticity is accepted, then the question is as to the deceased's intent in having the notes transcribed by Ms Borthwick. In that regard, the plaintiffs submit that s 8(2) does not require the deceased to have intended to have a document created which conforms with "some notional objective standard of a will" (written submissions at [14]).
The plaintiffs place emphasis on the following matters as supporting the conclusion that the deceased intended the notes to constitute his will. First, that the notes themselves are broadly dispositive and not confined to the interests of the plaintiffs. Second, the evidence of Ms Borthwick as to the context in which the notes were created (including her chastisement of the deceased when he disclosed that he had not updated his will after Rose's death), which they maintain is compelling. Third, that the circumstances in which the notes were created were grave and that the gravity of the deceased's medical situation had been made known to him. It is submitted that this, together with his knowledge that he had not prepared a new will and the time of evening, were compelling reasons for the deceased to try and address his failure to put his affairs in order. Fourth, the consistency between the notes and the earlier stated testamentary intentions of the deceased. Fifth, that the notes are consistent with the undiminished natural love and affection between the deceased and the plaintiffs, which it is said provides an answer to any question of either there being suspicious circumstances or as to Ms Borthwick being an interested witness. In that regard, the fact that Ms Borthwick did not take the notes to the deceased's solicitors when she first made contact with them to discuss the deceased's affairs and only produced them after a chance comment by the solicitor is also relied upon as pointing against any suspicion as to their creation.
It is submitted that the lack of a signature by the deceased on the notes is not a countervailing factor affecting their provenance, considering the evidence that the deceased was a simple man not very experienced in legal dealings (reference being made to an affidavit sworn 1 December 2016 by Ms June McPhie, a family friend of the deceased who knew him in both professional and personal capacities; T 29) and the context in which the notes were created. The plaintiffs also point to the evidence that the deceased habitually carried with him and used notebooks such as the notebook in which the notes were transcribed. Further, they point to the circumspection demonstrated by the deceased in response to enquiry from friends and family about his will in contrast to his direction to Ms Borthwick to write down his instructions; and rely on this as demonstrating both the deceased's wish to publish his instructions and to entrust those instructions to Ms Borthwick.
The plaintiffs submit that there are only two relevant competing inferences (if, as they say is the case, the possibility that the notes simply recorded the "casual musings" or ruminations of the deceased is excluded), namely that the notes were created as a record of instructions either to be given to a solicitor or incorporated into a "will kit", or that the notes were intended to form the will of the deceased, at least until a more formal will could be arranged.
The plaintiffs argue against the first of those competing inferences on the basis that there is no reason why "notes" would have had any perceived utility (whether to convey instructions to a solicitor or for copying into a will kit by Ms Borthwick) since verbal instructions to Ms Borthwick would have sufficed for either purpose. They also submit that any concern held by the deceased that he may lose consciousness or capacity (though they accept there is no evidence supporting such a belief being held by the deceased) could only support an inference that the notes were to be used in their own right, given that, on that counterfactual, the deceased would have been incapable of signing anything.
The plaintiffs accept that there is evidence to support a finding that the deceased had knowledge of the significance of formalising his will (either by engaging a solicitor or purchasing a will kit) but submit that there is no evidence, and no available inference, that the deceased knew the actual requirements for a formal will, let alone that there is a dispensing power or how it has been applied.
It is thus submitted that the more likely inference is that the notes were intended by the deceased to form a stopgap will to take immediate effect and to be used, if required, until he could formalise his will.

[14]

Defendants' submissions

The defendants accept that the notes (excluding the words "Dad's wishes") constitute a document and that the document has not been executed as a will. However, they take issue with the proposition that the document purports to state the testamentary intentions of the deceased person within the meaning of s 8(1)(a) of the Succession Act. On such a task they contend that only the document in question is to be considered (the wide range of factors referred to in s 8(3) not being relevant to this exercise).
The defendants refer to the statement by Mahoney JA (agreeing with Kirby P and Priestley JA as to whether one of the documents was intended to be the will of the deceased) to the effect that the document in question must state the deceased's intentions as to how, voluntarily, his property is to pass or be disposed of after his death (Masters at 455; applied in Yazbek v Yazbek at [83] (Slattery J)).
Thus the defendants argue that the purported intent of a document is testamentary if and only if it provides for the voluntary transmission on death of an interest which, up to the moment of death, belongs absolutely and indefeasibly to the deceased (referring to Russell v Scott (1936) 55 CLR 440; [1936] HCA 34 (Dixon and Evatt JJ)) and say that a disposition which does not require the death of the donor for its consummation is not testamentary (referring to Russell v Scott at 448 (Starke J)). In particular, they note that a document is not testamentary if it takes effect immediately upon its execution, even though the enjoyment of the benefits conferred thereby are postponed until after the donor's death (referring to Bird v Perpetual Executors & Trustees Association of Australia Ltd (1946) 73 CLR 140 at 145 (Starke J); 146 (Dixon J, as his Honour then was)).
In the present case, they argue that there is nothing in the words of the document to the effect that the document is only to take effect on the death of the deceased. They submit that on its face this document is an authority immediately to dispose of the deceased's chattels irrespective of his death; i.e., that it is inter vivos and not testamentary in operation. They further argue that it is unclear as to whether or not the document "goes to anything other than to the deceased's chattels" (written submissions at [16]).
In particular, they argue that: the words "Uncle peter to get ford ute ..." speaks of an event to occur in the future but not one that is contingent on the death of the deceased; the timing of the gift of the baby yellow dozer and one big yellow dozer "to uncle Peter" can be either in the present or at any time in the future and again not contingent on the death of the deceased; and that the reference to "everything" is framed in terms of a present authority such that Ms Borthwick and Mr Jamieson "can keep or sell" everything (subject to a right of first refusal to Uncle Peter).
Reliance is placed on the absence of phrases such as "my will", "on my death", and "give, devise and bequeath". It is submitted that words of the kind "to get", "to" and "can keep or sell" of their nature do not take effect only upon death.
Hence it is submitted that the first requirement under s 8(1)(a) is not satisfied.
As to the requirement under s 8(2), that the document be intended by the deceased to be his will, it is submitted that the reference in s 8(3)(a) to the manner in which the document was executed indicates an underlying expectation that the deceased will have in some way physically marked his or her assent to the will. While they accept that some form of execution of the document is not an essential requirement of s 8, they maintain that the absence of any form of execution, or even an attempt at execution, or acknowledgment by the deceased, is a relevant factor.
As to the evidence of the deceased's testamentary intentions, it is submitted that the evidence as to the deceased's relationship with Rose and the plaintiffs does not, of itself, bear on the question whether or not this document was intended by the deceased to be his will and that the fact that the reference in the notes to the plaintiffs getting "everything" may be consistent with the deceased's earlier stated intentions (depending upon what the deceased intended "everything" to be) is insufficient to permit the conclusion that these notes were intended to be the will of the deceased.
It is submitted that Ms Borthwick's evidence as to how the document came into existence amounts to no more than that the dictation by the deceased was preliminary to a formal will being prepared and executed. Reliance is placed on the evidence (at [62]-[65] of Ms Borthwick's affidavit of 1 December 2016) that the deceased's instructions were that she was to arrange for a solicitor to attend on the deceased or to acquire a will kit and bring it to the hospital as leading to the conclusion that the deceased's intention was that a will would be made the next day and that he would execute it as advised by a solicitor or in accordance with any directions in the yet-to-be purchased will kit. The defendants attach significance to the fact that the deceased did not ask Ms Borthwick to read back to him what she had written, did not ask to read it himself, and did not offer to sign or initial or mark it in any way.
It is submitted that the evidence that the deceased intended that a solicitor would prepare his will or that he would follow any instructions in a will kit is consistent with the general view in the community that to make a will a person ordinarily instructs a solicitor. Reliance is placed (as consistent with the proposition that this is the view in the community) on the evidence of Mr Peter Jamieson (affidavit sworn 1 December 2016 at [17]) that had Mr Peter Jamieson known that the deceased had not "fixed his will up" Mr Peter Jamieson would have taken him to the solicitors himself.
The defendants argue that the following evidence is relevant to the intention of the deceased in dictating the notes: that the deceased had made a will on 28 February 2006 which will was engrossed by a solicitor (suggesting, it is said, that the deceased knew that the role of solicitors included that of preparing wills); that the deceased had signed the will of 28 February 2006 (indicating that he was aware that a will could be made by attaching his signature to it); and that the will of 28 February 2006 was witnessed by a solicitor and clerk (indicating that he was aware that the execution of a will be made in the presence of two persons who also sign the will). They note that the will of the deceased dated 28 February 2006 revoked previous wills and testamentary dispositions and appointed an executor. They submit that the inference to be drawn is that the deceased is likely to have expected that all or, at least some, of those basic steps would be taken in order to make a new will.
The defendants point to the evidence of the plaintiffs as to their respective enquiries of the deceased as to whether he had made a new will (referring to [7] of the statement of claim). In that regard they note that there is nothing to suggest that the conversation to which Ms Borthwick deposed at [42] or the conversation to which Mr Rinsie Jamieson deposed at [34]-[35] occurred on or after 3 August 2015, such that the deceased was endorsing the notebook entries as his will. (Pausing there, no such submission is made by the plaintiffs.) They make a similar submission as to the evidence given by Mr Peter Jamieson (at [16] and [17] of his affidavit).
Thus the defendants submit that there is insufficient evidence to support a finding that the words the entries recorded in the notebook were ever intended by the deceased to be his will.

[15]

Determination

It is conceded, as is obvious, that the notes in question constitute a document and that they were not executed as a formal will. Section 8(1)(b) of the Succession Act is clearly satisfied.
I accept the evidence of Ms Borthwick that the notes were dictated to her by the deceased and as to the circumstances in which that happened. Apart from the fact that Ms Borthwick presented as an honest witness (described by Counsel for the defendants (at T 19.27) as being as "up and down as you could possibly get"), her account of what happened during the course of the afternoon and early evening was not embellished and was corroborated by Dr Rumball. Similarly, her account of making notes at the deceased's request was the subject of contemporaneous reference that evening in her telephone conversation with Ms Wakeling and the following day to Mr Jamieson. Moreover, the way Ms Borthwick dealt with the notes (by placing them in the deceased's overnight bag and not immediately drawing them to the attention of her solicitor) belies any suggestion that she had concocted or fabricated the deceased's instructions to her for the purpose of benefiting from his estate (once it is accepted that there was a contemporaneous reference to the making of the notes). The provenance of the notes is established to my satisfaction.
As to whether the notes purport to state the testamentary intentions of the deceased (Succession Act, s 8(1)(a)), it is clear on the face of the notes (excluding the heading placed above the notes) that they are instructions as to the disposal of particular assets and of "everything" else. That is what is conveyed or expressed by the notes, and hence their tenor or import. The nub of the defendants' submissions as to why these notes should not be found to satisfy the requirement under s 8(1)(a) (i.e., as to why they do not purport to state the testamentary intentions of the deceased) is that there is no reference to anything in the notes evincing an intention that they were to take effect only on death - for example, there is no reference to a "will" or "executor" and no terminology consistent with that commonly found in testamentary documents.
The defendants emphasise that the purport of the notes is to be determined in isolation and hence the intentions of the deceased at the time of dictating the notes are not relevant. However, the context in which the notes came to be made (as opposed to the intent with which they were made) is in my opinion also relevant to a determination as to the purport (or import) of the notes (i.e., as to whether or not they purport to effect a testamentary disposition).
Having regard to that context, there is no doubt in my mind that the notes purport to be of testamentary effect. They were dictated at a time when it had been impressed upon the deceased that his condition was serious. Dr Rumball gave evidence as to the matters from which he concluded that the deceased understood the gravity of his situation when it was explained to him at some time around 2pm that afternoon, and I accept that evidence. The dictation occurred following the conversation with Ms Borthwick (in frank and down-to-earth terms) in which the deceased acknowledged that he had "stuffed up" in failing to update his will and had been chastised for this by Ms Borthwick (who appears to have been under the misapprehension that in those circumstances the estate would go to the government). And the notes were dictated by a farmer who it is not suggested was particularly sophisticated or knowledgeable in estate matters (and hence not likely to speak in the terminology used by probate lawyers).
In that context, the instructions recorded in the notes (effectively to dispose of everything the deceased owned) can only sensibly be read as an instruction as to what was to be done after the deceased's death. It is hardly likely that someone (even a gravely ill man, as the deceased was by then) would dictate notes to effect an immediate inter vivos disposition of everything he owned or to authorise it all to be given away in his lifetime, since that would mean that, if he did survive, he would be or potentially be left destitute (at least without arranging for how he was to be cared for until his death if he were to survive his present grave illness). The absence of a reference to land does not tell against such a conclusion. The substantial asset in the deceased's estate was his farm. A reference to the giving away of particular farm vehicles and then the instruction that the plaintiffs could keep or sell everything else speaks of a disposition of the whole of the estate, including the land.
In those circumstances, I am satisfied that the sensible reading of the notes, in the context in which they were made, is that they purport to state the testamentary intentions of the deceased.
I turn now to the requirement under s 8(2) that the Court be satisfied that the deceased intended the relevant document (here, the notes) to be his will. It has been recognised that this is usually the most difficult question - and one to be determined with great care (see National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees, Late of Strathfield [2011] NSWSC 559 at [18] Windeyer AJ).
In Fazey, his Honour observed (at [18]) that … Many people write out proposals for their wills on pieces of paper headed "will" but often these are no more than present thoughts not testamentary intentions and certainly not intended to be wills.
In that case, his Honour considered that the document there in question was written as a list of instructions to the deceased's solicitor for the preparation of a new will, the deceased being familiar with wills as she had made one before. The question then addressed was whether the effect of a subsequent statement by the deceased (to the effect that she had made the person to whom she was speaking one of her executors and that he must do as she asked and carry out her wishes) converted a document containing last wishes to be given to her solicitor for his further attention into a document intended to be a will. On the facts, his Honour was satisfied that the deceased intended the document to be her will. His Honour said the following (at [20]): … The question really is whether, after the Deceased was told she had not long to live, she intended the page of instructions to be her will. I have taken into account the fact the document is not signed although at the end of the Deceased may not have been able to sign [sic]. I have come to the conclusion when she said "In my bag there is a notebook stating my wishes which must be carried out. This cannot be contested", she did at that stage have that intention and I so find. It follows that the informal document should be admitted to probate.
Earlier, in Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, Powell J, as his Honour then was, said (albeit in relation to the predecessor legislation) that: … while every case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of [the Wills, Probate and Administration Act 1898 (NSW)], the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will. … … Where … the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased, was, in truth, no more than "instructions", or a note of "instructions", for a will … I would, I believe, find it very difficult, indeed, to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will.
In that case, his Honour concluded on the evidence that the propounded document was no more than one person's notes as to his understanding of what it was that the deceased, at the relevant time, wished to have included in a formal will later to be executed. They were said to be "instructions" (Brown at 544).
In the present case, the deceased did not sign or mark the notes in any way nor, as noted above, did the deceased ask to look at the notes or have them read back to him before they were placed back in the bag (T 10.26). Nevertheless this is not necessarily determinative. As Powell J clearly acknowledged in Brown, and as Fazey illustrates, each case must depend upon its facts. Brown does not preclude the possibility, as a matter of principle, that notes recording the dictated instructions of a gravely ill person may satisfy the requirement set out in s 8(2)(a); rather, it illustrates one way in which establishing the deceased's intentions for the purposes of s 8(2)(a), as a matter of fact, may be difficult.
It has been said that the focus of s 8(2)(a) is on "the actual testamentary intention of the deceased so far as it relates to the particular document in question" (Newman at [95] (Hallen J)). One is to consider whether the deceased intended the document to have "present operation as a will" (NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872 at [15] (White J, as his Honour then was)).
In the present case, there is no doubt that by the time the deceased dictated the notes he was aware that his condition was very serious. He had had some previous experience in relation to the making of a will and therefore may be assumed to have known (had he turned his mind to the question) that something more formal than the oral dictation of his testamentary instructions would or might be required for the purposes of making a valid will. The reference, in his conversation with Ms Borthwick, to the steps to be taken the following day (either to arrange for a solicitor or to obtain a will kit) certainly indicate that the deceased had in mind formalising the instructions he had given to Ms Borthwick.
However, taking into account the context in which the notes were dictated, I am comfortably satisfied that the deceased intended this to be his "stopgap" will, pending the formalisation of his testamentary dispositions into, and execution by him of, a proper will but one nevertheless to have dispositive effect up until such time as a formal will was validly executed. One reason for this conclusion is that had the notes simply been intended as instructions for the purpose of the preparation of a will the following day there would have been no need for anything to be dictated. The deceased could simply have instructed Ms Borthwick to arrange for a solicitor to attend on him in hospital (if he had been moved to Canberra by then) or to obtain a will kit (if he remained in Cooma Hospital) the following day. There would have been no need (and no urgency) for the notes to be dictated there and then.
As to the relevant context, I note that the "degree of closeness in time of death to the preparation of the document" is a relevant consideration (Newman at [108]). In this regard, as already noted, the evidence is that the deceased understood the seriousness of his condition. It can safely be inferred from this and the broader context that he intended the notes to record his testamentary intentions and, notwithstanding the absence of an explicit remark as in Fazey, to be conclusive should later circumstances not permit further action on his part. In relation to "one big yellow dozer", he apparently contemplated the possibility that he would not himself be able to identify precisely which one he meant (stating that Uncle Peter would "know what one I mean").
The present case can in my opinion be distinguished from the situation adverted to by Hodgson J (as his Honour then was) in Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330 at 335. There, his Honour considered that the manifested intention was to have a document as a stopgap until a formally executed will was executed but found that, in circumstances where the deceased subsequently had ample time and opportunity to make a formal will and failed to take advantage of that opportunity to do so, then the relevant intention would not satisfy the requirements of the predecessor provision to s 8 (see 335). In the present case the deceased did not have any such opportunity.
Though not displaying "hysteria or any overt emotional release" on receipt of the advice from Dr Rumball, the deceased appeared to Dr Rumball to be "shaken" and Dr Rumball was satisfied that the deceased understood his level of concern (affidavit of Dr Rumball at [14]). The evidence points to an atmosphere in which the deceased was acutely aware of the significant deterioration of his condition. This context is an important (but, again, not necessarily determinative) factor to consider when ascertaining the intentions of the deceased vis-à-vis the notes which he directed Ms Borthwick to take (after his admission that he had "stuffed up" and her chastisement of him). The deceased was described as "ordered and rational" by Dr Rumball, who deposes to having observed him closely to try and gauge both his comprehension and his emotional response (affidavit of Dr Rumball at [13]-[14]).
I do not regard the present case as one in which the deceased caused certain intentions to be recorded as mere "proposals" for a will or as "no more than present thoughts" (Fazey at [18]). This conclusion is supported by the generally imperative language of the notes.
The fact that the notes were not signed by the deceased, coupled with the fact that he did not seek to confirm their content, is explicable given the circumstances in which they were made and having regard to the relationship of trust between the deceased and Ms Borthwick.
Having due regard to the gravity of the contention that the deceased intended these unsigned and unsighted notes to be his will (Evidence Act, s 140(2)(c)), I nevertheless have concluded that the inference to be drawn on the evidence is that it was the deceased's intention at the time the notes were dictated that those notes would take immediate effect as a record of his testamentary intentions (in other words as a stopgap will), in order to rectify the mistake he had made in not earlier having updated his (no longer dispositive) will, notwithstanding that the deceased also envisioned the possibility of having his testamentary intentions expressed anew the following day by use of a will-kit or with the assistance of a solicitor.
In short, the present case is not one in which the instructions were imparted "as a matter of information or interest"; rather, the instructions were a "statement of the deceased's wishes for the disposition of his property after his death … [and] intended by him to convey to [his] audience a request, explicit or implicit, to see that his wishes are acted on" (In the Estate of Knibbs, deceased; Flay v Trueman [1962] 1 WLR 852, 855-856 quoting In the Estate of Beech, deceased [1923] P 46 at 57; cited approvingly by Hallen J in Newman at [99]).
I do not rely on the consistency between the notes and the earlier expressed testamentary intentions when reaching the conclusions expressed above. Rather, I rely on that consistency (among the other things to which I have earlier referred, including in particular the lack of embellishment on the part of Ms Borthwick and the plausibility of her account of the conversation) as dispelling any suspicion arising from the fact that Ms Borthwick, who prepared the notes, is a principal beneficiary under the will as so propounded.
In that regard, I have concluded that Ms Borthwick has satisfied the onus referred to in Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107 that is cast upon her, as an interested witness, to allay the suspicions of the court similar to the onus borne by the principal beneficiary of a will prepared by the beneficiary (see Miller v Miller (2000) 50 NSWLR 81; [2000] NSWSC 767 at [22]-[31], citing Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089, considered in Tobin v Ezekiel at [43]-[55]).
Finally, there was no issue as to the appropriateness of the costs orders sought in the amended statement of claim in favour of the plaintiffs. It is also appropriate that the defendants' costs be borne out of the estate on that basis, they being necessary parties to the proceedings and having acted, so far as I can tell, responsibly and reasonably as the necessary contradictors (albeit interested parties) to the application by the plaintiffs. The plaintiffs did not demur from such a course (T 38).

Borthwick v Mitchell

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