Debbie Anne Oates v Hubertus Peter Breuer

Judgment 1These proceedings relate to the estate of the late Tammy Maree Breuer, late of Kingsgrove, who died on 25 February 2011 at St George Private Hospital aged 51 after suffering recurring cancers. The plaintiff is one of the sisters of the deceased and sues in solemn form for probate of a document of 21 September 2010, which the plaintiff claims was the deceased's last will and testament. The plaintiff's evidence shows that the will document was executed in the presence of two witnesses, who were hospital staff in the reception area of the Cancer Clinic at St George Private Hospital. The evidence of the attesting witnesses has not been challenged and shows that the document was executed in due form by the deceased as her will in their presence, attested and signed. 2A primary difficulty is that the plaintiff is unable to produce that document and claims that it is lost but that its terms can be proved exactly by an electronic copy and she seeks probate of the copy. I regard it as clear that the document put forward in the Statement of Claim and produced with the plaintiff's affidavit is an electronic copy of the document, which, according to her evidence, was signed by the deceased and the witnesses. This was challenged in submissions but without an evidentiary basis. 3The defendant is the husband and widower of the deceased and he raises a number of issues in his Defence and Cross-Claim. He denies that the deceased executed the document and also denies that she executed it as her will and claims also that at that time she signed it she was not of sound mind, memory and understanding. He puts forward matters which he says show that execution of the document took place in suspicious circumstances. One is that the plaintiff is a sister of the deceased and the solicitor who prepared the document was her husband. Another is that the deceased was at the time the document was signed suffering from a terminal illness and heavily medicated. He also alleges that the will was revoked by being destroyed by the deceased. 4Some of these positions are put in several alternatives. He claims grant of administration to himself on the basis of intestacy. If the deceased was intestate, the defendant's entitlement to administration would be plain. He also claims Family Provision under the Succession Act 2006 (NSW) s 57. 5The will document contains in clause 8 a gift to the plaintiff of "all moneys on deposit in my name". There was money in the deceased's name with ING which contained $265,601.82 when she died. I have no doubt that this falls under clause 8. 6By clause 9 she gave a pearl to the plaintiff. She gave a number of other small gifts, which are unlikely to be of significant value in the context of the litigation, worth perhaps several thousand dollars, to other relatives. 7There were gifts to her father of some show cattle, apparently two Lowline breed beasts, and show equipment which were held on her father's rural property near Dubbo. There were gifts of diamond earrings to a niece, computer and photographic equipment and a diamond pin to another niece, an old Morris Minor convertible to a nephew and a Canon camera to her mother. 8By clause 13 she gave the residue of her estate to her husband. However, it is unlikely that anything of value or anything at all will pass to him as residue. It is possible that a Holden motor car, which he values at $14,000, was owned by her and passes as part of the residue but this remains in doubt and it might have been his. 9Clause 12, and I leave out the title descriptions, said: "I give my interests in all real property, including... Werri Beach and...Kingsgrove to Debbie Anne Oates." 10The Werri Beach property is a beach house, built perhaps in 1964 by her father and purchased by the deceased and her husband from her father in 1995. They obtained a mortgage to pay part of the price and the defendant paid the last $2,704.70 of the mortgage debt in May 2011. 11The Kingsgrove property is a town house which the deceased and her husband purchased in 2009 and paid for fully with funds from the sale of the house in Hurstville which they had owned and lived in for many years. In the will document Kingsgrove is given as her address. 12Clause 12 does not have effect because the deceased owned joint tenancies with her husband and sole ownership passed to her husband on her death. He is now the registered proprietor of each property and probate litigation cannot affect their ownership. 13It is plain on the evidence, and I find, that the lost document was duly executed and attested in appropriate form for a will. The plaintiff bears the onus of proof of all issues in support of grant of probate including showing that the deceased when signing the document intended it to be her will. To put this another way, showing that the deceased knew and approved of the contents of the will and intended it to operate as her testament. The plaintiff also bears the onus of showing that the testator was of sound mind, memory and understanding at that time. On this issue the defence refers to her being heavily medicated. 14A number of circumstances of this case show that there is a need for care, indeed vigilance, before accepting the plaintiff's case. At the same time the onus of proof is the ordinary civil standard, on the balance of probabilities. 15The need for vigilance in cases of classes into which this case falls has often been recognised by Courts. Counsel referred me extensively to observations in the High Court in Nock v Austin (1918) 25 CLR 519, which expound the subject. A more recent appellate exposition is found in the decision of the Court of Appeal in Blundell v Curvers [1999] NSWCA 421. 16A number of circumstances of this case show that there is a need for care and vigilance before accepting the plaintiff's case. The claim is in substance a claim by the plaintiff for a remedy which will work considerably to her own economic advantage and it is a claim against the deceased's estate where her evidence cannot readily be answered. These are grounds for vigilance. Then too, preparation and execution of the document took place without the knowledge or involvement in any way of her husband, the defendant, notwithstanding that, there was, as I find elsewhere, a good relationship between them. Vigilance is also suggested by the part taken by the plaintiff, a major beneficiary, in having the will document prepared and executed and also by the fact that it was her husband who acted as the deceased's solicitor in taking instructions for the will and in preparing the document. 17Many things connected with the will document appear to have been in the plaintiff's hands in one way or another. 18The circumstances in which, according to the plaintiff's case, she is unable to produce the original document with the signatures are these. According to her evidence she was present, quite close to the deceased and the witnesses, when the document was signed. On that occasion the deceased gave the document to the plaintiff and asked her to give it to Mr Eric Oates. The plaintiff took the document and returned to her work place, which she had left in the middle of the working day so as to be with her sister when she attended the Cancer Clinic, a week or so after she had been discharged from a fortnight in hospital. The plaintiff put the document in a clear plastic envelope and within a few days at the weekend she took it to Mr Eric Oates at his home and gave it to him. 19In the ordinary and proper course he should have taken it to his practice office or placed it in the will file or, better, placed in the will safe. His evidence is that the document remained on a television table at his home for several days and then he placed it in a Spirax notebook and took it with him to his office. He is unable to say clearly what happened to it after that. 20These events must have happened late in September 2010 and, according to his evidence, he did not advert again to where the document was until soon after the deceased died in February 2011. Meanwhile there had been changes in his practice arrangements. He and his then professional partner ended their partnership with effect on 28 January 2011 and destroyed many old papers and files and he set up his own practice as Oates Legal. 21After the deceased died he looked for the will file and the will and made very extensive searches in his office and in his papers. It took him some days to come to the realisation and accept that he had lost the document. I am satisfied from his evidence that he has made extensive searches for the original document and that it cannot now be found. The possibility can be seen that it was destroyed or otherwise put out of reach in the re-arrangement of practice papers and destruction of old files. Whatever actually happened to it, the will document is not now available. Its contents can be proved altogether clearly from electronic records except that the signatures cannot be reproduced. 22Before Mr Oates accepted that the will was lost he left some enquiries for a copy unanswered. I put this down to natural reluctance and not to any sinister motivation. 23The defendant contended that it should be concluded that the document was revoked by the deceased. This conclusion is sometimes appropriate when a testamentary paper is shown to have last been in the possession or control of the testator and cannot be found after his death. There is no support in the evidence or in the circumstances for a conclusion that the deceased can have revoked the document by destroying it, as on any view of the facts it left her hands and was not under her control at any later time. I reject the contention that there was a revocation. 24The evidence given by the plaintiff herself and Mr Eric Oates, if accepted, proves in a fairly complete way that the deceased gave instructions which were carried out by the terms of the will, saw and approved the terms of the will, read it through and then signed it. Mr Eric Oates became involved because of information conveyed to him by the plaintiff that the deceased wished him to prepare her will. This was not his first involvement as solicitor in her affairs. He acted for her in several earlier matters, some relating to her interests alone and also some in which she had a common interest with her husband. He was not, as it were, brought into her affairs solely in connection with making this will. His evidence shows events in which he first communicated with her and made arrangements to see her and sent her some information, then went to see her in hospital and obtained her instructions. 25His affidavit evidence about these events was not very full and he was cross-examined quite extensively. When both are taken together his evidence shows that he followed an ordinary business-like course when he established what the deceased wished to do with respect to her will, gave her appropriate advice in relation to doing so, prepared first an outline, then later after seeing her and obtaining her instructions prepared the draft will. At a late stage in preparation she had a computer and he had email communication with her. He gave her careful and reasonably full advice about what she could do and about how she should execute the will. 26I approach his evidence with awareness of the need for vigilance and of the circumstances which require vigilance and the availability of possible adverse interpretations of his conduct. So too, there are possible adverse interpretations of the plaintiff's conduct. As I saw Mr Eric Oates and heard him giving evidence in which he was tested rather closely I formed a favourable impression of his evidence and of his sincerity. He spoke carefully and made appropriate corrections and concessions. 27What was suggested against him was not fully or completely articulated in the form of questions in cross-examination but, as I understood it, the suggestion was to the effect that he was engaged in a project of seeking advantage for the plaintiff or possibly a project of seeking advantage indirectly for himself through the plaintiff and that he did not act sincerely in the interests of and in accordance with the wishes of the deceased; or the suggestion may have been, conformable with the well known requirement for vigilant examination by the Court, that it remained unclear whether or not he had misbehaved in those ways, so that the Court could not make confident positive findings supporting the plaintiff's case. 28I did not see in the evidence of Mr Oates or in his conduct any indications that he was pursuing improper objectives or acting otherwise than loyally in the interests of the deceased as his client. As his evidence would show, and I accept it, he did not put forward or advocate particular dispositions to the deceased. After speaking with her he sent an outline of what the will could provide; then went to see her and obtained her instructions and drafted a will which accorded with her instructions. His evidence would show, and I accept it, that he did not originate the project of giving the money on deposit to the plaintiff and that he did not originate the strange project explored in detail in evidence of giving a half interest in the two properties to the plaintiff. 29According to his evidence, the deceased explained her thinking on this subject to the effect that it was her wish that the Werri Beach property should be available for her own relatives to use for holidays, as they had from time to time over many years, that she would wish that property to pass to the plaintiff and that she wanted to seek an arrangement with her husband under which he would agree to give up the Werri Beach property to the plaintiff and receive the half share in the town house so as fully to be its owner. She also told Mr Oates that she had not got or had not yet got her husband to agree. Her husband's own evidence makes it plain that he did not and would not agree. 30Mr Eric Oates prepared forms of transfers on severance, one for each property, and arranged for the plaintiff to give these to the deceased for execution, but she did not sign them, did not take the project of severance of title to completion and did not communicate with Mr Eric Oates about that project any further. She spoke to the plaintiff to the effect that she was seeking to make and had not been able to make an arrangement with her husband about this; that is, she did not carry the project through. There was nothing for clause 12 to operate on and the registered title stayed in joint ownership and passed to her husband when she died. 31Overall I reject any interpretation of the evidence and of the facts in which the plaintiff or Eric Oates worked or worked together to persuade the deceased about the form of her bequests or her decision to make them, in respect of the money on deposit, or clause 12, or in any other way. 32I see no reason to find that Mr Eric Oates was actually pursuing personal advantage or advantage for the plaintiff or acting in a partisan way so as to depart from his duty to his client. If he had been motivated in such a way, he is unlikely to have left the matter of executing the transfers on severance uncompleted. If that was what he was doing he probably would have brought the project back to the deceased but, quite otherwise, he left the documents which he had prepared for her to consider and take any further action, which she did not ever do. He knew there had to be some arrangement with the defendant before the severance project went ahead. The arrangement was in his client's hands and he left it there. Making the will and seeking rearrangement of title was in my finding the deceased's project and no one else's. Nobody persuaded her, overbore her or influenced her. 33As I have stated, the onus of showing sound mind, memory and understanding rests on the plaintiff. It is striking, however, that there is no positive evidence of any unsoundness of mind, memory or understanding. The manner in which the deceased dealt with Mr Eric Oates and gave him instructions, then considered and decided what to do after having his advice showed that she fully adverted to who the people were who had claims on her bounty, and all of them, as far as can be seen, were actually mentioned in the will document and received a disposition. The terms of the will also show that she had an appropriate grasp of the assets which she had available for disposition. 34Mr Oates explained joint tenancy and she obtained an appropriate grasp of it. She gave thought and attention to her dispositions and sought to make some arrangement with her husband without achieving the arrangement she had in mind, then did not take the severance project any further. All this is quite rational. 35The cruel illnesses which she suffered for more than 10 years are in their nature not likely to have had any impact on her mental or intellectual capacity. True they involved severe pain and discomfort and were probably treated with painkilling medication. She first gave instructions when she was in hospital after a recurrence of earlier illness. When she signed the will she was attending the Cancer Clinic for treatment. It is probably true that she then had the benefit of painkilling medication. 36A number of circumstances show that she was mentally acute. Her behaviour in obtaining execution of the will document by staff at the clinic shows that she adverted fully to what was involved in executing her will. She communicated clearly with Mr Eric Oates. She made arrangements to obtain computer equipment and she used it for email communications. She was involved in affairs relating to her cattle on her father's property and to showing the cattle, which she had done over some years with prize winning success, and there were arrangements in hand for her cattle to be shown at the Royal Easter Show 2011. These arrangements were carried through after her death. 37There was no evidence of any strange behaviour, memory loss, irrational ideas or eccentric projects and no evidence of any medical treatment or any condition which may have affected her thinking processes. All her behaviour of which evidence speaks was ordinary, normal conduct. In my opinion it is altogether clear, and I find, that she was of sound mind, memory and understanding when she gave instructions and also when she executed the will document. 38Her behaviour on that occasion shows that she clearly knew the contents of the document and intended it to operate as her will. I see no reason for not accepting the evidence of the plaintiff to the effect that when she met the deceased at the Cancer Clinic she gave her the document, told her that it was a will and saw her read it. Anybody who looked or even glanced at the document could not fail to see from the emphasised words in its heading that it was a will. After reading it through, the deceased went and spoke to staff and asked for staff to witness the execution of the will. That she did this is shown by the unchallenged evidence of the attesting witnesses as well as by the evidence of the plaintiff. She then signed the will document in their presence and saw that they attested her signature. It is not possible to suppose that she could have behaved in these ways unless she knew and understood the contents of the document and intended it to be her testament. 39I do not regard the will as inofficious, that is, as making inappropriate dispositions which do not have regard to natural and ordinary claims of persons close to her. There would have been strange aspects if clause 12 had taken effect but at the time of her death she had not effected severance. I add the observation that she could have effected severance without her husband's concurrence. 40An effect of the will, its main impact, was that one significant asset, the ING deposit, was directed away from her husband, who would have received it if there had been no will, and given to her sister. The deceased had very good relationships with her own close relatives including her father and her sister; with others too but particularly her elder sister. Her concern for her own relatives is shown by a number of minor dispositions and by her consideration of whether she could make the Werri Beach house available for family members in the future. 41Mr Eric Oates as a solicitor was somewhat unguarded in accepting and acting on instructions to prepare a will in the interests of his wife. He would have been in serious professional difficulty if he had prepared a will in his own interests. However, his and her personal circumstances and relationship were such and are such that their interests are not to be identified in the way which is often appropriate for married persons. They live separately and have for years and they have an agreed property settlement, although not approved by the Family Court of Australia. Their circumstances have been like this for a significant number of years. In my finding his conduct was in no way less than loyal to his client and to her wishes and interests. 42If this were not right it is highly likely that signs of the activity would have been dealt with in evidence, especially in relation to the project of severing the joint tenancy. In my finding the deceased was in control of her own mind and wishes and originated all the dispositions that are found in the will document. 43I have carefully considered the possibility that both the plaintiff and Mr Oates, or either of them, worked on her in some inappropriate way to influence her dispositions and I regard it as plain after consideration that they did not behave in any such way. 44In the circumstances the plaintiff should succeed and should be granted probate of the lost will, or, rather, of the terms of the lost will as shown by the document annexed to the statement of claim. The orders should provide for the probate to be recalled if the original document is ever brought into Court. 45I turn to consider the Family Provision claim made by the plaintiff. Of course he is an eligible person. He is 57 years of age and has been employed by Qantas for 37 years and his classification is Senior Airline Service Co-ordinator. For many years his employment involved manual labour handling bags. He incurred a severe shoulder injury at work and as a result he has undergone several major surgical procedures and has spent time on workers' compensation and much time on light duties. This has limited his earnings. The outcome of his surgery has not been good. 46Dr Gibbs, a sports physician, who has been treating him for five years, has given a report with some history and has described his condition thus: "He has never fully recovered from this last operation to his right shoulder. He has permanent damage and will never regain normal range of motion or strength. Fortunately he was able to keep his employment at Qantas and finalise his workers' compensation claim when he was transferred to a permanent part time position. 47In summary Bart is now 57 years of age. The injuries he has sustained over his time as a baggage handler will gradually deteriorate further over the next 5-10 years. He will never be able to work in a full-time position as a baggage handler again. His capacity to do the lifting he still has to do in his part-time role may also diminish as his injuries deteriorate in the coming years." 48His earnings are limited, indeed quite modest, for reasons shown by his medical condition. He said himself that his health is reasonable for his age but this cheerful view must be understood with the medical report. He expects to continue his employment for about four and a half years before retiring. He has a superannuation fund with a balance of $319,836. He has no dependants and is free from debt over the two properties. He estimates their values as $505,000 for the town house and about $590,000 for the beach house. I would call these kerbside valuations but they are reasonably reliable general indications of value. All in all he has real estate assets worth about $1,100,000 and has a superannuation fund of his own. He has some other assets including two motor vehicles, or possibly his own and the deceased's motor vehicle. His savings and cash in various accounts balanced against one which is in debt total $2,874.49. He does not have significant savings or other investments. He is long on real property and short on income and cash assets. 49The part of the estate out of which significant provision could be ordered is the ING deposit. Evidence of solicitors conducting proceedings estimates costs totalling about $101,000. 50The cross-claimant's outgoings week by week exceed his modest income. The outgoings include $130 per week to re-pay a personal loan for costs relating to litigation. His work is secure. He is well supplied with resources for his retirement, which can be expected to take place in four years or so. He has expressed a wish and put forward as a need that he should spend about $100,000 on renovations to the house at Werri Beach, which is old and in poor condition and was never more than a very modest beach house. He contemplates living there after retirement. 51The plaintiff's counsel commented, and it is correct, that after retirement, or even earlier, he will be in a position to sell one or other of the properties. Much of what was put forward in this cross-claim related to what I classify as reasonable expectation that he would receive the fund of money which the deceased had accumulated. The source of this fund was early surrender of her life insurance because of her terminal illness. The cross-claimant feels deeply, and expressed his views, that it was inappropriate that many expenses relating to the deceased's medical treatment and other matters had been drawn out of a joint account to which he had contributed and not out of the money which the deceased held separately in her own name. 52There were elements of over-statement and inaccuracy, some quite marked, in what he put forward to support this observation. The details are not in my view particularly important. It is true that joint assets were run down and her own assets were not and I see that he is appropriately disappointed having regard to there having been a long and good marital relationship to which he contributed a great deal from his earnings, not that he was the sole contributor. He was disappointed severely in a reasonable expectation which he held but it is not to expectations like these that the test in s 57 is directed. It is not the function of the Court to see that everything comes out just and fair in the abstract. 53In deciding the first question under s 57 I have regard to his resources and his needs. He had a very good relationship with the deceased in good years but also in severely adverse times. She also had a good relationship with other relatives and while she shared her home with her husband she also, particularly in later years, spent much time at her father's property in Dubbo where she had activities and interests in rural life. She had good reason and had strong interests which drew her to live at her father's property in Dubbo for significant periods and good reasons to be at her home in Kingsgrove at times. 54I bear in mind that the cross-claimant, as was appropriate, made large contributions to their shared affairs over many years when there were mortgages and other obligations and contributed his earning capacity to their shared life. For many of these years the deceased was in employment but in the last years of her life she did not have significant earnings or earning capacity. 55The cross-claimant has no ability for keeping accounts and very little ability for explaining financial dealings. He left the figures to her. Assertions which he made in evidence about financial dealings were shown under cross-examination to be simply wrong or inconsistent with other aspects of his evidence but this is not a reflection of dishonesty or wrong conduct. What they reflect is his limited ability for financial affairs. He was not on the evidence anything short of a loyal and dutiful and supportive husband and this continued in the presence of severe trials and adversity. The claims of his employment restricted the attention which he could give while at the same time her wishes took her to live for considerable periods with her father in Dubbo and pursue her interests there. This too was part of their shared life as he attended Dubbo and even took some part in the rural activities there in the limited time available having regard to requirements for his employment. 56I see nothing adverse to him in his conduct or in the state of the marital relationship. The deceased had other help and support as well. This is something to rejoice in. 57The asset position of the cross-defendant is part of the context in which to address the first question under s 57 whether the cross-claimant has been left without adequate provision for his proper maintenance and advancement in life. Neither of the parties is wealthy and the plaintiff is not a person in need. A modest provision for the defendant would not significantly injure her economic position. This too is not a basis on which I should act. 58My conclusion after this review is that it should not be found that he has been left without adequate provision for his proper maintenance or advancement in life. 59Orders: (1) I declare that the document a copy of which is annexed to the Statement of Claim and marked A shows the terms of a lost document which was the last will and testament of the late Tammy Maree Breuer deceased. (2) I order that probate in solemn form of the last will and testament of Tammy Maree Breuer deceased according to the terms of the document annexed to the Statement of Claim, the original will having been lost, be granted to the plaintiff; and that the probate have effect until the original or a more authentic copy thereof shall be brought into the Probate Registry of this Court. (3) I dismiss the Cross-Claim with costs. 60The ordinary outcome with respect to costs unless displaced by some appropriate discretionary consideration is that costs follow the event of litigation. The plaintiff has asked that costs be ordered on the indemnity basis and has produced an offer of compromise of 28 October 2011. In relation to hearing to commence on 3 November 2011 this offer was made extremely late. Counsel has pointed out that little of the defendant/cross-claimant's evidence was forthcoming until very late. While I regret the lost opportunity of this offer of compromise, I do not see failing to accept it as the kind of conduct which leads to an indemnity costs order. 61With respect to the Cross-Claim for Family Provision, I see nothing to displace the ordinary outcome that costs follow the event and that failure of the claim brings with it liability for costs. It does not seem to me that this was a borderline cases with respect to Family Provision. 62With respect to the probate litigation and the issues raised in the Statement of Claim and the defence and also in the Cross-Claim for Letters of Administration, the ordinary rule is the same. It is displaced perhaps more often in probate than in other cases where some conduct or disposition by the testator brought about the litigation. 63I do not see any such element here. Counsel has made observations adverse to the solicitor who lost the will. That was a most unfortunate event and a solicitor's nightmare, but the consequences are not to be visited on the plaintiff as the solicitor was not her agent. In any event as often happens in an age of electronic records proof of what was in the document was very clearly available, the missing link being readiness to accept what the plaintiff and Mr Eric Oates said about the document, it being very clear from the evidence of the attesting witnesses that there really had been a will document somewhere at some time. 64The defendant had every right to explore what might have been the outcome of the appropriate care and vigilance which the Court is to apply to the evidence of the plaintiff and Mr Oates, but he does so in my judgment on the ordinary risks that attend litigation. I see nothing in the nature of misconduct which should be attributed to the plaintiff herself or could be said to have brought about the need for a contest. 65I have already made an order dealing with the costs of the Cross-Claim which I will not vary. (4) I order that the defendant pay the plaintiff's costs of proceedings on the Statement of Claim.