Currell v Baldock; Estate of Currell

Judgment 1HIS HONOUR: These proceedings concern the estate of Mrs Beryl Gwen Currell who died on 10 March 2010 aged 78. The deceased had four children, Lynette, Joy, Debra and Tanya. The present application raises first, the question of which of several documents should be admitted to probate as constituting the will of the deceased. Two of the documents in question, namely, the last two documents, are not executed in accordance with the requirements of s 6 of the Succession Act 2006. The question is whether either or both should be admitted to probate pursuant to s 8 of the Succession Act. 2The documents are all in the hand of the deceased and they contain handwritten amendments. A question arises as to whether those amendments constitute alterations to the will of the deceased. 3On the determination of which of the documents constituted a will of the deceased, the question then arises as to the extent to which prior wills have been revoked. 4The decision on those questions will determine what documents should be admitted to probate. 5A separate issue arises in relation to the last of the documents involving a question of construction of a gift to the first plaintiff, Tanya Currell. 6Although it was not the practice for questions of construction of a will to be decided at the same time as the question as to what documents should be admitted to probate, there is no objection to that course. To do so in the present case is consistent with the requirement that so far as possible all matters in issue should be determined in the one proceeding. 7The estate is a modest one. The deceased died owning a property in [xxxxxxx xxxx], Tamworth which, for probate purposes, has been appraised as having a value of $315,000. The deceased owned two accounts with the St George Bank: one a term deposit account to the value of $64,500; and the other a savings account containing a little over $43,000. The deceased otherwise owned shares to the value of $4,720, a motor vehicle and furniture, furnishings and personal effects. In total, the estate was estimated to have a net value of a little under $430,000. 8The earliest of the instruments is a will dated 5 April 2004. It appears to have been executed in accordance with the requirements of the Wills, Probate and Administration Act 1898. It was signed by the deceased whose signature is apparently attested to by two witnesses. I need not dwell on that document because it was revoked by a later will dated 14 April 2007. It is sufficient to note that in the 2004 will the deceased left a legacy of $10 to her three elder daughters, Lynette, Joy and Debra, and described this sum as being the least amount possible that they might be paid to stop them contesting her will. 9The deceased made a later will on 14 April 2007. It is also signed by the deceased at the foot of each of the two pages of the will and her signature is attested to by two witnesses. There is no issue as to its validity. The will of 14 April 2007 revoked all former wills and testamentary dispositions. The deceased appointed as her "Exectrices" (sic) a Mrs Egan, a solicitor Mr O'Halloran, and her daughter Tanya. It relevantly provided: "Subject to the payment of any Debts, I leave - $10 (ea) to three of my children." [The children were then named.] 10The deceased then set out her reasons for leaving three of her daughters legacies of only $10. 11The will then provided: "To my daughter Tanya I leave my Holden Astra car. I will leave an account at the St George Bank for her. The furniture and contents of my home I give to (Will to) Patricia Forsyth [address given] for the loving care she has given me". 12The deceased at some point crossed out the name of Patricia Forsyth and the address and the reference to her reasons for making that gift. It is not clear whether this deletion was on the document as it was originally signed, but I infer it was not because the crossing out is not initialled. However, nothing turns on this. If the deletion were made later, it was an effective informal alteration to the will. 13The will then continues: "After my debts are paid (if any) I give any money I have to the Heart Foundation New South Wales Division Strawberry Hills 2012, New South Wales and St Vincents Hospital Sydney. My home is to be sold, also 2 mowers. The proceeds is [sic] to be divided equally between ...". 14The word "equally" is crossed out and the crossing out was initialled by the deceased. 15The will then continues: "Heart Foundation - New South Wales - 70% St Vincents Hospital - Sydney - 30%. They have saved my life twice". 16I infer that the alteration from a division of proceeds equally to a division in a ratio of 70 per cent and 30 per cent was made at the time the will was signed, but, again, that does not matter. 17It is clear from the deceased's initialling of the alteration that even if as originally executed, the will provided for the proceeds to be divided equally, she subsequently must have altered the will and her alteration will be an effective informal alteration pursuant to s 8 of the Succession Act. However, looking at the physical formatting of the document and the words which follow and the pen that was used, I infer that at the time the document was signed it provided for a division of proceeds between the two charities in the ratio of 70 per cent and 30 per cent. 18For the reasons which will follow, questions arise as to the proper construction of the gift of "any money I have" to those charities. A question also arises as to the effect of the sentence "I will leave an account at the St George Bank for [Tanya]". 19The last two handwritten documents which are in issue are a document described as "The Last Will and Testament" of the deceased which is in her hand and which bears a date 20 January 2010. This is the most complete of all of the instruments. It is unsigned but the deceased's initials appear against a correction to the spelling of one of the words. 20The other document is a document also described as "The Last Will and Testament" of the deceased. It is dated 19 February 2010. The deceased has again initialled the document where it contains an interpolation, but otherwise she has not signed it. The document has been signed by two persons who were called in to be attesting witnesses and is dated 19 February 2010. The circumstances relating to the preparation of these two documents are as follows. 21The deceased's sister Jean Stobie visited the deceased on 20 January 2010. Prior to that time she had found her sister writing her will, or attempting to do so, and on prior occasions the deceased said to Mrs Stobie words to the effect that "I can't work it out". 22 On 20 January, the deceased handed Mrs Stobie the document which she had then written out which consists of three pages of handwriting. When she handed the document to Mrs Stobie, the deceased said to her "This is my Will". Later that day, the deceased said to Mrs Stobie "I'm glad that's done". 23The deceased also spoke to a friend at about this time, a Mrs Shirley McMillan. Mrs McMillan deposed that in the period before 20 January 2010, the deceased continued to discuss with her the effect of a document she had wanted to create as her will. She discussed how the estate might be left. 24Mrs McMillan deposed that about a month before 19 February 2010, she recalls the deceased saying to her, when sitting at the dining table with a document in front of her, which she assumed was her will "I've done it". This is the same language which the deceased used in referring to the document when speaking with Mrs Stobie. Mrs McMillan says, however, that she was aware that an appointment had been made for the deceased to see a solicitor with a view to discussing her will. In the same conversation as that in which the deceased said "I've done it", she also said words to the effect of "I've got it right this time". Mrs McMillan said to the deceased "Well, you can take it to your Solicitor and check it over with him to make sure it's OK". 25Given Mrs McMillan's evidence that at the time the document was prepared by the deceased it was proposed that she would see a solicitor with a view to discussing her will, I do not infer from the deceased's words "I've done it" that the deceased intended that the document she had prepared would have immediate effect as her will. In the context that it was proposed to see a solicitor, those words are more consistent with the deceased's conveying that she had done what she needed to do in order to complete the document that, subject to seeing her solicitor, she intended would take effect as her will. 26There is no necessary inconsistency between a person making a will and intending it to be immediately operative as such, and also intending to see a solicitor with a view to discussing its contents or even its validity. But I think it more likely that the deceased did not intend at that time the document to operate as her will. This would explain why the document was not signed by her at the time and why she did not ask Mrs Stobie and Mrs McMillan to witness the document as she subsequently did on 19 February. 27It is clear from the two earlier wills of 2004 and 2007 that the deceased understood that a will should be signed and attested by two witnesses. 28Section 8 of the Succession Act provides: "8 When may the Court dispense with the requirements for execution, alteration or revocation of wills? (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 (b) an alteration to the deceased person's will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will-if the Court is satisfied that the person intended it to be a full or partial revocation of 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). (5) This section applies to a document whether it came into existence within or outside the State." 29The document dated 20 January 2010 is expressed to be the last will and testament of the deceased and clearly sets out testamentary intentions. It does so more completely than any of the other documents. However, for a document not executed in accordance with s 6 to be admitted as the will of the deceased, the Court must be satisfied that the deceased intended that the document should, without more, on her part operate as her will (Hatsatouris v Hatsatouris [2001] NSWCA 408; In the Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446; and Bell v Crewes [2011] NSWSC 1159). 30I am not satisfied that the deceased at 20 January, or subsequently, intended that the document bearing that date was to operate without more on her part as her will. 31On 19 February, the deceased visited a solicitor. Mrs Stobie drove her to the offices of RJ O'Halloran & Co in Tamworth. No-one from that firm has given evidence. Mrs Stobie did not attend her sister at the conference with the solicitor. After the conference the deceased told Mrs Stobie words to the effect: "I was advised to go home, sign it, have it witnessed and bring it back and I was given a bit of paper with instructions on it as to how to complete my Will." 32The piece of paper which she showed to Mrs Stobie was evidently prepared by the solicitor. It is in handwriting and says: "Reason why