Estate Kouvakas; Lucas v Konakas

Supreme Court of NSW|2015-10-19|Before: Lindsay J

Plaintiffs: L Byrne Defendant: J Brown

Plaintiff: Southern Waters Legal Defendant: Koffels Pty Ltd File Number(s): 2014/158084

Judgment - Ex Tempore (REVISED)

Before the Court are two competing applications for a grant of representation relating to the estate of Victor Yee who died, at his Chatswood home, between 28 and 29 May 2013, aged 43 years.
At the time of his death the deceased was married to, but estranged from, the defendant. She is one applicant for a grant. The second, competing application is that of the first plaintiff, supported by the second plaintiff, siblings of the deceased.

FAMILY RELATIONSHIPS

The deceased and the defendant married, in Thailand, on 24 March 2011. There were no children of the marriage. Indeed, the deceased died without issue.
He died by suicide.
Apart from the defendant, he was survived by five siblings (all adults), only three of whom have an actual interest in his deceased estate: Mary Chebbo (the first plaintiff); George Yee (the second plaintiff); and Janet Vallely. The other two siblings (Edward Yee and Margaret Yee) support the plaintiffs' application that a grant be made in favour of the first plaintiff. The parents of the deceased and his siblings predeceased him.
All persons interested in the making of a grant of representation (including, particularly, those with an interest potentially adverse to the making of a grant as sought by the plaintiffs and the defendant) having been given notice of the proceedings, and a fair opportunity to participate in them, the Court is in a position, upon determination of the proceedings, to make a grant in solemn form: Osborne v Smith (1960) 105 CLR 153 at 158-159; Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [236]-[283].

TESTAMENTARY INSTRUMENTS : THE FIRST, TYPED; THE SECOND, HANDWRITTEN

The deceased left behind two testamentary instruments, the proper construction and characterisation of which (the parties are agreed) is determinative of the competing applications for a grant of representation.
The first instrument, in time, is a typewritten "will" dated 21 February 2013 (so described) drawn by a solicitor. The second instrument, in time, is a handwritten "will" dated 1 May 2013 (also so described) ostensibly prepared by the deceased himself without professional assistance.

THE TYPED INSTRUMENT

In substance, so far as presently material, the typed document (dated 21 February 2013): 1. appointed the second plaintiff or, in the alternative, the first plaintiff as executor and trustee; 2. acknowledged an indebtedness to the second plaintiff in the sum of $200,000; 3. gave a conditional gift of $50,000 to the defendant; and 4. named the second plaintiff as the sole beneficiary of the deceased's residuary estate.
In terms, the instrument contemplated the possibility that the deceased and the defendant might have children together; but, beyond noting that fact, the provisions relating to prospective children have no operative effect in the light of subsequent events.
The terms upon which the deceased made provision for the defendant in clause 8(c) of the typed instrument, by way of a conditional gift, require specific notice. By clause 8(c) the deceased expressed an intention "[to] give to my wife, if the marriage has not broken down at the time (the definition of broken down shall mean separated for at least 14 days) the sum of $50,000 provided she survive me and if not this gift shall form part of the rest and residue of my estate".

THE HANDWRITTEN INSTRUMENT

The handwritten instrument (dated "1/5/13") was headed "Will of Victor Yee". It comprised five unnumbered paragraphs which, for convenience of analysis, I here number consecutively as set out hereunder: "(1) I hereby revoke all former wills and testamentary dispositions previously made by me and declare this to be my last will and testament. (2) This house of [a domestic address at Chatswood] I give all with contents to my brother George Yee and Mary Yee (Chebbo), Janet Yee (Velleley) as of today. (3) My wife Darunee Jarat is not a wife, even though we legally married, she was here to take all my money and assets, from Day 1. (4) She cheated and lyed about herself and why she stayed in Thailand also before she left 15 April 2013 when we found evidence of her still communicating with Vinnie. (5) I therefore need only this inherited house from my parents Kai Gee Yee and Low Kuei Oay given back to my brother and sisters."
This instrument was witnessed by the first plaintiff, her husband (Kaled Chebbo) and a third person (Camille Allam). The fact that the first plaintiff was both a witness to, and beneficiary under, the handwritten "will" constitutes no impediment to the validity of the document because two other witnesses (neither being an "interested witness") also witnessed the deceased's execution of the document: Succession Act 2006 NSW, section 10(3)(a).

PARAMETERS OF THE PARTIES' DISPUTE

The parties are agreed that, viewed independently of each other, each of the typewritten instrument and the handwritten instrument constitutes a will duly executed in accordance with section 6 of the Succession Act.
Differences between the parties are driven by the facts that: 1. paragraph 1 of the handwritten instrument purports to "revoke" all former wills and to declare that the handwritten instrument is the deceased's "last will and testament". 2. paragraphs 2 and 5 of the handwritten instrument do not unequivocally dispose of the whole of the deceased's estate. 3. if the effect of the handwritten instrument was to "revoke" the typewritten instrument in the sense of depriving it of any testamentary effect, there would be a partial intestacy (involving property, leaving aside any superannuation entitlements, with a gross value of the order of about $400,000 and a net value of about $200,000) in favour of the defendant, as the deceased's widow: Succession Act, sections 101, 104 and 111. 4. paragraphs 3 and 4 of the handwritten instrument are ostensibly inconsistent with any intention to make provision for the defendant beyond that for which clause 8(c) of the typewritten instrument conditionally provides; and 5. but for the terms in which paragraph 1 of the handwritten instrument is expressed, the two instruments could be seen as standing together, the handwritten instrument bearing the character of a codicil to the typewritten instrument, with the second plaintiff named as the deceased's residuary beneficiary.

ANALYSIS

I approach the construction of the deceased's expressions of testamentary intention (focussing particularly on the handwritten instrument) with the principles enunciated by Isaacs J in Fell v Fell (1922) 31CLR 268 at 273-276 in mind.
The language of the handwritten document is awkward in a number of respects but, principally, it seems to me, in its exact reproduction (in paragraph 1) of a standard form of revocation clause found (as clause 1) in the typewritten instrument, coupled with provisions that can be seen as both an incomplete appropriation of the deceased's estate and inconsistent with any intention to die, in any respect, intestate.
I do not accept the plaintiffs' primary contention that paragraph 2 of the handwritten instrument is expressed in terms capable of being fairly read as disposing of the whole of the deceased's estate. It does no more than give the deceased's house and contents to the plaintiffs and their sister Janet.
However, reading the handwritten instrument as a whole and in the context of the typewritten instrument, I accept the plaintiffs' alternative submission that the handwritten instrument is to be read, in substance, as a codicil to the earlier, typed will.
That is because: 1. the operative terms of the handwritten instrument are capable of standing with those set out in the typed instrument - primarily, they gift the deceased's house and contents to three siblings by way of a specific gift, rather than allowing it to pass to the second plaintiff as part of the residuary estate. 2. paragraphs 3 and 4 of the handwritten instrument are objectively inconsistent with any intention to confer a benefit on the defendant, by will or partial intestacy, save insofar as they may remain able to be read with clause 8(c) of the typewritten instrument. 3. the reference in paragraph 4 of the handwritten instrument to a departure for Thailand by the defendant on 15 April 2013 ties in with both the 14-day separation period for which clause 8(c) of the typewritten instrument provides and the date of the handwritten instrument. 4. the interconnectedness between these time perspectives, which naturally form part of the context of the handwritten instrument, explains the deceased's otherwise obscure use of the expression "as of today" in paragraph 2 of the handwritten document. 5. although the questions presently before the Court do not include a determination whether the gift for which clause 8(c) of the typed instrument provides must be taken, in fact, to have failed because of a "separation" for at least 14 days, I infer from the declarations made in paragraphs 3 and 4 of the handwritten document that the deceased prepared that document in the subjective belief that "separation" had occurred. 6. although the disavowals in paragraphs 3 and 4 of the handwritten document do not, in terms, confirm the operative terms of the typed document, they do explain an implicit connection between the two instruments. 7. that interconnectedness is consistent with the absence in the handwritten instrument of any nomination of an executor, relying upon the continuing operation of the typed instrument in that respect. 8. reading the handwritten instrument as a whole, and in the context of the typed instrument, I take paragraph 1 of the handwritten instrument as a formal expression by a layman of an intention to make a testamentary instrument designed to prevail over the typed instrument to the extent of any inconsistency in operative terms. 9. in the context of the present case, I do not read the "revocation clause" in paragraph 1 of the handwritten instrument as expressive of an intention to deprive the typed instrument completely of testamentary effect. 10. whether, and to what extent, a testamentary instrument revokes an earlier testamentary instrument depends on the intention of the maker as ascertained from the later instrument and all surrounding circumstances: In the Will of Page [1969] 1 NSWR 471 at 474-475 and 477; (1969) 90 WN (NSW) (Pt 1) 6 at 10-11 and 14; Re Barker [1995] 2 VR 439 at 445-448; Singh v Singh [2008] NSWSC 715 at [31]-[35]; Schneider v Sydney Jewish Museum Inc [2008] NSWSC 1331 at [106]-[110]; Fawcett v Crompton [2010] NSWSC 219 at [23]-[26].
In my opinion, the handwritten instrument (though expressed to be a "will") was intended by the deceased to take effect, and takes effect, as a codicil to the typed instrument. In expressing that opinion I expressly forbear from a determination whether the gift for which clause 8(c) of the typed instrument provides has, in fact, failed.
Paragraphs 3 and 4 of the handwritten instrument may, as I have suggested, explain in part the provenance of the handwritten document. They do not, in my opinion, go so far as to displace any entitlement the defendant might otherwise, upon an objective investigation of the facts, have under clause 8(c) of the typed instrument.
If there is any dispute about the question whether the deceased's conditional gift of $50,000 has failed in accordance with its terms, that dispute can be determined as an incident of the defendant's application (in proceedings numbered 2014/338217) for Family Provision relief.
In substance, the testamentary intention of the deceased as manifested in the typed instrument, amended by the handwritten instrument, was as follows: 1. the second plaintiff or, in the alternative, the first plaintiff was appointed executor and trustee. 2. the deceased acknowledged an indebtedness to the second plaintiff in the sum of $200,000. 3. the deceased's house and contents were to pass to the plaintiffs and their sister, Janet. 4. the defendant was expressed to be the recipient of a legacy of $50,000, subject to a condition (which may have rendered the gift inoperative). 5. the second plaintiff was named as beneficiary of the deceased's residuary estate.
In substance, the parties before the Court agree that, by his support for the first plaintiff's application for a grant, the second plaintiff has renounced, and is entitled to renounce, probate in favour of the first plaintiff. Absent a compelling reason to do otherwise, the Court can, and should, act upon that agreement.

PROPOSED ORDERS

Subject to any submissions as to the form of the relief to be granted, or as to costs, I propose to make orders to the following effect: 1. Order that the will of the deceased dated 21 February 2013, as amended by the second, third, fourth and fifth paragraphs of the document of the deceased styled "Will of Victor Yee" and dated 1 May 2013 (together "the Will") be admitted to Probate in solemn form. 2. Order that Letters of Administration with the Will annexed be granted to the first plaintiff. 3. Order that the proceedings be referred to the Registrar for completion of the grant. 4. Order that the costs of the parties be paid out of the estate of the deceased on the indemnity basis.

ORDERS (AFTER HEARING SUBMISSIONS ON PROPOSED ORDERS)

There is no dispute that all the parties should get their costs out of the estate.
It is appropriate that each party have costs on the indemnity basis.
These proceedings have been determined without fuss and in circumstances in which it was necessary for there to be a resolution of questions as a precondition for determination of what might ultimately prove to be the real dispute: namely, the defendant's claim for Family Provision relief.
Accordingly, I make the four orders that I have foreshadowed, including the order for costs to be paid on the indemnity basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 October 2015

At a glance

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Judgment (12 paragraphs)

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Cases Cited (6)