Estate of John James Dunn; Anderson v Scrivener [2002] NSWSC 900 | Case summary

Donald Anderson executor and trustee house and contents to John Scrivener motor vehicle to Kerry Yuile legacy of $10,000 to Donald Anderson in lieu of commission residue: 20 percent to the Sister Superior of the Missionary Sisters of St Peter Claver for religious charitable purposes chosen by her; 80 percent to Donald Anderson to be used by him for restoration and repairs of the Holy Cross Church, South Kincumber 6 The two documents which were found after the Testator's death, which give rise to the present litigation, are documents written in the Testator's own handwriting. The first of them ("the 30 August 2001 letter") is as follows: "30 August 2001 Dear Marie & Don In case you have any trouble with my finances if I decide to join Mon I have $250,000 invested term deposit with St George plus $100,000 with NAB term deposit also with NAB almost $50,000 in a savings A/C - I think MARK FRAZER would give you any information you will need - I am also thinking again of changing my Will - I have not been the best health wise & have had one phone call from him, almost one month ago (HIM - I mean my nephew John Scrivener) & I have never been invited to their new or old home. (Jack) J Dunn" 7 The text of the second of those documents ("the Alteration to my Will document") is as follows: "Alteration to my Will" 100,000 to John Scrivener 100,000 to Kerry + my car 20,000 to Don Anderson THE REMAINDER of MY ESTATE in cash to go to DON ANDERSON FOR RESTORATION of HOLY CROSS CATHOLIC CHURCH AT STH KINCUMBER AFTER THIS HOUSE IS SOLD FOR which my most recent offer was $600,000. THE PROCEEDS from ST GEORGE NAB & the SALE of MY HOUSE AFTER ALL DEBTS & GIFTS HAVE BEEN FINALISED IS TO GO TO DON ANDERSON & TO BE USED FOR RESTORATION OF HOLY CROSS CATHOLIC CHURCH AT STH KINCUMBER. J Dunn" 8 The first knowledge which Mr Scrivener had of the Testator's testamentary intentions, was in August 1993. At that time the Testator said to him "I'm going to leave the house to you because I want it to stay in the family". A few days later, Mr Scrivener received in the mail a copy of the Testator's Will of 23 August 1993. That Will was a will which was typed, and had been drafted by a solicitor. It had the formatting, and language, appropriate to a will drafted by a solicitor. I set out the Will so that the reader can see the formality, and formatting, that I am referring to. " THIS IS THE LAST WILL AND TESTAMENT of me JOHN JAMES DUNN of 14 Pretty Beach Road, Pretty Beach in the State of New South Wales, Retired Fisherman. 1. I HEREBY REVOKE all former Wills and Testamentary dispositions heretobefore made by me AND DECLARE this to be my last Will and Testament. 2. I APPOINT as Executor and Trustee of this my Will JOHN SCRIVENER of "Pine Oaks" 7 Poole Road, Kellyville (hereinafter referred to as "my Trustee"). 3. I GIVE DEVISE AND BEQUEATH the real property owned by me at the date of my death together with the furniture and contents contained therein to my nephew JOHN SCRIVENER for his use and benefit absolutely. 4. I GIVE the motor vehicle I own at the time of my death to HENRY FRANK BELTON for his use and benefit absolutely. 5. I GIVE DEVISE AND BEQUEATH the rest and residue of my estate unto my Trustee UPON TRUST to sell call in collect and convert into money such part or parts thereof as shall not consist of money with power in his absolute discretion to postpone such sale calling in collection and conversion and after payment thereout of the proceeds of such sale calling in collection and conversion of my just debts funeral and testamentary expenses to stand possessed of the rest and residue of such moneys UPON TRUST as follows: a) to pay Twenty Five Percentum (25%) to the Roman Catholic Parish Priest of Kincumber for the time being to be applied by him for such religious or charitable purposes as he in his discretion may determine; b) to pay Twenty Five Percentum (25%) to the Sister Superior for the time being of the Missionary Sisters of St Peter Claver of 154 Cotham Road, Kew in the State of Victoria to be applied by her for such religious or charitable purposes as she in her discretion may determine; c) to pay Fifteen Percentum (15%) to my sister-in-law MARGARET DUNN of 65 Winifred Avenue, Umina; d) to pay Five Thousand Dollars ($5,000.00) to HENRY FRANK BELTON; e) to pay the remainder to my nephew JOHN SCRIVENER . IN WITNESS WHEREOF I have hereunto set my hand to this my last will and testament at Woy Woy the 25th day of August One thousand nine hundred and ninety three. SIGNED by the Testator as and for his last Will and Testament in the presence of us both present at the same time and we at his request in his presence and in the presence of each other have hereunto subscribed our names as attesting witnesses:" 9 The Will was witnessed by a solicitor, and a secretary. The copy of the Will which the Testator sent to Mr Scrivener, had a handwritten note on it, as follows: "John, The original of this will is held by STEELE & WALKER 103 BLACKWALL RD WOY WOY 043 421111 2256 The power of attorney is also held by them & can be collected by you on the showing of a letter from the doctor attending me that I am unable to manage my affairs. Jack The originals of my investments are in my desk & copies & tax returns are held by MARK FRAZER & ASS of 90 TUMBI RD WAMBERAL 2260. PHONE 043 853030" 10 In about 1995 the Testator said to Mr Scrivener: "I need to change a name in my will. Don't worry I am not changing anything else. The house is still yours. Bloody solicitors! You know they want me to pay $50 to change one name!" 11 In February 1996 the Testator gave a Power of Attorney to Donald and Marie Anderson. 12 Each of the Testator's Wills of 11 December 1997, 13 October 1999 and 25 October 2000 was drafted by a solicitor, and had a comparable degree of formality to the 1993 Will. For all four of the Wills which the Testator executed, he went to the same firm of solicitors - though that firm changed its name from "Steele & Walker" to "Peninsula Law". 13 Promptly after executing each of the Wills of 11 December 1997, 13 October 1999 and 25 October 2000 the Testator gave a copy of the Will to Mr Anderson. In relation to none of those Wills, however, did he discuss with Mr Anderson his intention to change the Will before he had actually changed it. The originals of each of the Wills were kept by the firm of solicitors which had drafted them. 14 Around October 1998 Kerry Yuile began doing casual work for the Testator, as a cleaner. She cleaned his home each fortnight, spending 2-3 hours there. Part of that time was spent talking, rather than working, as the Testator appeared to enjoy having company. She also called in from time to time between these fortnightly visits, for a cup of coffee and a talk. In about mid 2000, the Testator had a slight stroke. He could not carry out as much physical activity as before. From that time, Ms Yuile mowed his lawns from time to time, and helped him hang out bed sheets which he had washed. In the period after the stroke, the Testator complained to Ms Yuile on a few occasions, that Mr Scrivener had not contacted him, or had not returned calls. 15 In late 2000, the Deceased said to Ms Yuile, "Do you know a good lawyer? I want to change some stuff in my Will." She recommended him to the firm he had previously used. A few days later, he showed her a copy of his Will, and pointed out that he was leaving his car to her. 16 In the course of 2001, there were five or six occasions when Mr Scrivener called the Testator, and the Testator would say, "It's about time you called". On these occasions, Mr Scrivener reminded the Testator that he had called two or three days earlier, and the Testator would say words to the effect of "Oh that's right, I forgot". 17 On 1 July 2001, the Testator called Mr Scrivener, and a conversation to the following effect took place: "JD: "A real estate agent contacted me and said that if I wanted to sell my home I have had an offer of $600,000 for it." JS: "You're kidding. It's not worth that much." JD: "That's what I've just been offered." JS: "It's a terrific offer. What are you going to do?" JD: "I told her the only reason I would sell my home is if I couldn't walk or drive the car. Besides I have left the house to my nephew and he can do with it whatever he wants."" 18 For this telephone conversation, as for some other telephone conversations between Mr Scrivener and the Testator which I will later mention, there is confirmatory evidence of the date of a telephone call between the two of them, in an itemised telephone bill for the Testator's phone service. 19 On 23 August 2001, there was another telephone conversation between the Testator and Mr Scrivener. That conversation was about the Testator's health, with no discussion of the Testator's Will. 20 On 31 August 2001, Mr Scrivener called the Testator. The Testator was gasping for breath. The conversation was: "JS: "How are you feeling?" JD: "Not as well as I have been." JS: "I can hear that you are having a problem with your breathing." JD: "It's about time I had a lie down." JS: "I won't keep this long, I just wanted to see how you are going. Have you taken your medicine? You go and have a lay down and I'll contact you later on.""

That was the last occasion they spoke. 23 On 14 September 2001, Ms Yuile was at the Testator's house, performing her regular cleaning. Her regular cleaning routine included wiping down a sideboard in the dining area. On that day, the 30 August 2001 letter and the "Alterations to my Will" document were not on the sideboard. 24 Ms Yuile also called briefly at the Testator's home on 16 September 2001. She had no occasion to look at the sideboard on that day. Ms Yuile spoke to the Deceased by telephone on Monday, 17 September 2001 when he said, "I am going to Church tomorrow to pray for the people from the World Trade Centre". (I take judicial notice of the fact that it was on 11 September 2001 that two planes were flown into the World Trade Centre in New York, killing many people.) 25 On none of these occasions when Ms Yuile and the Testator spoke in September 2001 did he say anything to her about his Will. 26 Ms Yuile rang the Testator's number several times on the evening of 18 September, and on the morning of 19 September 2001, but there was no answer. She became concerned, went to his home, looked in, and saw the Testator on the floor. She let herself in with a key that the Testator had given her, found no signs of life in the Testator, and telephoned an ambulance. The Testator had died at the dining table whilst having breakfast. The Testator's death certificate shows one of the causes of death as being a myocardial infarction, and the duration of last illness as "immediate". 27 Mr Anderson came to hear of the Testator's death, on 19 September, and went to the Testator's home. He and Ms Yuile waited outside the home for the police to complete their investigation of the scene of the death. When the police had satisfied themselves, and when the Testator's body had been removed, Mr Anderson and Ms Yuile went into the house. Mr Anderson began searching for the Testator's papers, while Ms Yuile started to clean. In the course of cleaning, Ms Yuile saw what she took to be a piece of paper under a coffee cup on the built-in sideboard next to the dining room table. The paper was folded, but she could see the words "Alteration to my Will" on it. She drew Mr Anderson's attention to the paper, and gave it to him. She did not read the document, and indeed did not see a complete copy of it until she was served with papers concerning this present litigation. 28 In fact, the paper which Ms Yuile had found consisted of two sheets of paper, the 30 August 2001 letter and the "Alteration to my Will" document. They were placed so that the "Alteration to my Will" document lay on top of the 30 August 2001 letter. The two pages, still one on top of the other, had then been folded. There was a fold about two-thirds of the way down the pages, which caused the bottom one third of the writing on the "Alteration to my Will" document to be placed against the middle one-third of the writing on the "Alteration to my Will" document. There was also a fold about one-third of the way down the pages, which caused the back of the top one-third of the 30 August 2001 letter to rest against the back of the middle one-third of the 30 August 2001 letter. As the two pages were so folded, that meant that the part of the "Alteration to my Will" document running down to just below the line reading "20,000 to Don Anderson" was visible. 29 The documents, as tendered, have another fold in them. That fold runs in the direction of the length of the page. It was made after the papers had already been folded into thirds, in the way I have described. It had the effect of causing part of the bottom one-third of the 30 August 2001 letter to be folded back on itself. This fold was about one-quarter of the way across the width of the page, as one goes from its left hand side. After that fold had been made, most of the word "Alteration" in the line "Alteration to my Will", and each of the numbers on the three lines below, was visible on the back of the wad of paper as so folded. As so folded, the two pages would fit comfortably into an ordinary sized envelope. The evidence is not clear whether the papers were actually folded along the lengthwise fold at the time that Ms Yuile found them. There was no envelope near the folded papers on the sideboard. 30 Also in the Testator's dining room, on the opposite side of the room to the sideboard and maybe 20 or 30 feet away from it, the Testator had a desk. There were two drawers in the desk, containing bills, accounts, and other such business-type documents. By contrast, the items on the sideboard were (apart from a smoke detector which sat there) ornamental things. 31 The Testator had a concertina file, in which he stored business-type things. There was no copy of the Testator's Will in that concertina file. 32 The 30 August 2001 letter and the "Alteration to my Will" document have been examined by a document examiner. He has established that the "Alteration to my Will" document was written on a page which lay in a pad below the page on which the 30 August 2001 letter was written. This is established by indentations, in the form of the writing of the 30 August 2001 letter, appearing on the page on which the "Alteration to my Will" document is written. Further, there are places where those indentations intersect with the writing of the "Alteration to my Will" document. At those points of intersection, in a significant number of cases, no ink appears. This phenomenon arises because, as the pen traces out the writing of the "Alteration to my Will" document, when it comes to an indentation in the page arising from the trace of what had been written on the page above it, it does not leave ink in that indentation. Thus, the "Alteration to my Will" document was written after the 30 August 2001 letter was written. 33 The document examiner could find no basis for believing that the signatures on the 30 August 2001 letter and the "Alteration to my Will" document were not those of the Testator, nor that the writing in the text of those documents was not the writing of the Testator. The Statutory Provisions 34 Section 18A of the Wills, Probate and Administration Act 1898 provides: "(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute the person's will, an amendment of the person's will or the revocation of the person's will. (2) In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person." 35 In Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56] Powell JA (with whom Priestley and Stein JJA agreed) said: "… the questions arising on applications raising a question as to the applicability of s18A are essentially questions of fact, the particular questions of fact to be answered being: (a) was there a document b) did that document purport to embody the testamentary intentions of the relevant Deceased? (c) did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will?" 36 In the present case, no one contends that the letter of 30 August 2001 should be admitted to probate. The question for decision is whether, as well as the Testator's Will of 25 October 2000, the "Alteration to my Will" document should be admitted to probate. There is no dispute that that document satisfies the first two of the tests identified by Powell JA in Hatsatouris. The question for decision is whether it satisfies the third of those tests. 37 The "Alteration to my Will" document is conceded to satisfy the second requirement for section 18A (namely, that it purport to embody the testamentary intentions of the Deceased) on the basis that there are no words in it which make clear that it is merely precatory. However there are some aspects of the document which at least raise a doubt about whether it was intended to have immediate effect as an alteration to the Testator's Will. The heading "Alteration to my Will" is one which would be appropriate to an alteration which was intended to become effective then and there, but would also be appropriate to an alteration which the Testator intended to make later. The words, "for which my most recent offer was $600,000" are not themselves testamentary. However, in a document which clearly contemplates that the house will be sold, and the estate (apart from the car) divided in the form of cash, it would not be inappropriate for a testator to pass on to an executor, in a document which was otherwise testamentary, information about the possible market price of the house. 38 Of more serious concern is that, if one ignores for the moment the words "for which my most recent offer was $600,000", the final two paragraphs of the document express almost identical concepts in different words. There were some assets which the Testator had, which would fit within the words "the remainder of my estate in cash", which would not fit within the words "the proceeds from St George NAB & the sale of my house after all debts and gifts have been finalised", but they are fairly small in value. Further, the last paragraph deals with the need for the Testator's debts to be paid while the second last paragraph does not - but again, these debts were comparatively small in value. I am left with the suspicion that the last two paragraphs may have each been attempts at drafting a residuary clause, and that the Testator had not made up his mind between them. Against that, however, is the fact that the Testator has signed the document, an action which is very often an expression of being satisfied with the contents of a document. 39 The letter of 30 August 2001 shows that, at that date, the Testator was "thinking again of changing my will". That set of words can only mean that, as at 30 August 2001, the Testator had not arrived at a fixed intention to change his Will. The evidence does not let one conclude how long it was after he wrote the 30 August 2001 letter that the Testator wrote the "Alteration to my Will" document. It could have been any time from immediately after the 30 August 2001 letter was written, to immediately before the Testator died. That the "Alteration to my Will" document was written in the same writing pad as the letter of 30 August 2001, and on the next sheet, raises a real possibility that the "Alteration to my Will" document was the Testator doing his thinking on paper. It could, equally, though, be the case that the "Alteration to my Will" document was the product of the Testator's thinking about changing his Will. 40 The letter of 30 August 2001 gives two reasons why the Testator had been thinking of changing his Will - his poor state of health, and having received insufficient attention from Mr Scrivener. The next day, 31 August, Mr Scrivener rang him. Mr Scrivener also spoke to him on the telephone on 8 September 2001. The very fact of those telephone calls could remove, or at least qualify, one of the reasons which the Testator had, on 30 August 2001, for thinking of changing his Will. 41 Further, the content of those telephone conversations casts serious doubt on whether, at any time, the Testator had resolved to adopt the "Alteration to my Will" document as one of his testamentary documents. The Testator had, in the past, not been secretive about his testamentary dispositions. If he had regarded himself as having changed his Will, by the "Alteration to my Will" document, it is uncharacteristic for him not to have told anyone that he had done so. While he might have had some reticence about telling Mr Scrivener that Mr Scrivener's share had been substantially cut down, there was no occasion for similar reticence about telling Ms Yuile that the disposition in her favour had substantially increased, nor any similar occasion for reticence about telling Mr Anderson that the disposition in his favour had substantially increased. Yet he did not do so. 42 The conversation between the Testator and Mr Scrivener on 8 September was one where the Testator himself raised the topic of the house and its value, and where he reiterated that he had, on a previous occasion, said to a real estate agent, "I have no intention of selling my house. I have left it to my nephew and it is his to do with as he wants." Counsel for Ms Yuile points out, correctly, that this statement on the Testator's part is a recounting of what he had said, in an earlier conversation, with the real estate agent, rather than a statement of the Testator's present intention. Even so, it would be seriously misleading for the Testator to recount that earlier conversation with the real estate agent to Mr Scrivener on 8 September, if the Testator had, by 8 September, changed his mind about leaving the house to Mr Scrivener. Experience in probate litigation and Family Provision Act litigation teaches that it is not uncommon for testators to mislead potential beneficiaries about the benefits they will receive under a testator's will - but I have some hesitation in concluding, in the present case, without any corroborative evidence, that the Testator was misleading Mr Scrivener about his testamentary intentions concerning the house on 8 September 2001. 43 The Testator's previous will-making habits are relevant here also. All his previous Wills had been formal wills, drafted by a solicitor. He went to a solicitor to draft a will even though he was, at least at one time, of the view that his solicitor charged too much for altering a will. There is no reason to believe that the Testator either knew, or suspected, that it was possible to make a will with anything other than full formality. 44 Further, the Testator had, in relation to each of his previous four Wills, ensured that the Executor named in it received a copy of the Will promptly after execution. That did not happen in relation to the "Alteration to my Will" document. This is of particular importance given that 18 days passed between the date of the 30 August letter and the date of the Testator's death. 45 The fact that the 30 August letter was, itself, not posted or in some other way sent to Mr and Mrs Anderson, over this period of in excess of two weeks, raises the possibility that he was having second thoughts about even sending that letter. The manner of its folding, together with the "Alteration to my Will" document, and folded in a way suitable for placing in an envelope, yet not actually placed in an envelope, increases this possibility. 46 The manner in which the two pieces of paper were placed on the sideboard, where Ms Yuile found them, also needs examination. If, at the time the Testator placed them there, he knew or feared that he was in imminent danger of dying, his act of placing them there, under a cup, could be seen as a way of putting them in a place where they would be likely to be discovered after his death, and where some attention was drawn to them. It is the sort of action which could be taken by someone who wanted the documents to come to the attention of people, but who knew that he did not have time to deliver them by some more conventional means. 47 The problem in applying this hypothesis is that it is not possible to know whether it was in that frame of mind that the Testator placed the documents on the sideboard under the cup. He had seen Ms Yuile for some time on 14 September when she came to clean; he had seen Ms Yuile more briefly again on 16 September; he had spoken to Ms Yuile on the telephone on 17 September, and stated an intention to go out, to go to Church. He died on 18 September, from a heart attack, while having breakfast. I cannot conclude it is more likely than not that, at the time he placed the documents where they were eventually found, he had an imminent expectation of death. 48 If he placed the documents where they were found at a time when he had no imminent expectation of death, their being placed there is equally consistent with his intending to deliver them, and with his intending to give them further thought. 49 Before a document can be admitted to probate under section 18A the Court must be "satisfied that the deceased person intended the document to constitute the person's will, an amendment of the person's will or a revocation of the person's will". 50 In In the Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446, at 462 Mahoney JA said: "Secondly, s 18A should, as I have indicated, be given a beneficial application. There are, in the history of this branch of the law, many cases in which the intention of the deceased has not been able to be given effect. That is an evil which should be remedied as far as may be. It may be understood why the legislature decided not to give testamentary effect merely to any statement of testamentary wishes, however casually stated and even if it was not contemplated that legal results would follow. The consequences of that, as far as concerns proof and otherwise, can well be imagined. But the benefits of the change should not be withheld by requiring too rigid a manner of proof that what was put in a document should have legal effect. If a document is on its face such as contemplates legal effect, ordinarily it should be given effect unless - as in this case - there are contexts or circumstances that lead to the contrary conclusion." 51 While Mahoney JA dissented in the result in that case, his Honour's exposition of the law was not disagreed in by the majority, and does not seem to me to be different in principle to those propositions of law which the majority articulated. 52 The expression "if a document is on its face such as contemplates legal effect", in the last sentence I have quoted from Mahoney JA, is one which has some difficulty of application. That expression would clearly apply to a document which said "this is my new will" or "this is what I want to have happen to my property after I die": one can accept that such a document is one which, on its face, contemplates legal effect. However, I do not accept that the "Alteration to my Will" document is one which, on its face, contemplates that it will, of itself, be part of the documents which govern the disposition of the Testator's property after his death. The "Alteration to my Will" document is just as consistent, on its face, with the document being one which sets out alterations which the Deceased wished to make, or was thinking of making, to his Will, but which was not itself intended to be the document governing disposition of property after his death. Even taking into account, so far as they can be in the present case, the principles stated by Mahoney JA, I am not satisfied that the "Alteration to my Will" document is one which the Testator intended, in itself and without more action on his part, to operate as his Will, or as an amendment to his Will. Costs 53 The principles concerning payment of costs in probate matters are set out by Powell J in Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 709, as follows: "Costs are, of course, in the discretion of the court, but that discretion, being a judicial, and not an unfettered, one must be exercised in accordance with established principle. The general principle to be applied in adversary litigation is that costs follow the event, those costs being taxed on a party and party basis. However, over the years, a number of exceptions to this general rule have come to be recognised. In the field of probate litigation, two such exceptions have come to be recognised, they being: 1. where the testator has, or those interested in residue have, been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate; 2. if the circumstances led reasonably to an investigation in regard to the document propounded, the costs may be left to be borne by those who respectively incurred them: see, eg Mitchell and Mitchell v Gard and Kingwell (1863) 3 Sw & Tr 278; 164 ER 1280; Orton v Smith [1907] P 122; Kenny v Wilson; In the Estate of Holtam; Gillett v Rogers (1913) 108 LT 732. To these exceptions to the general principle should, perhaps, be added the principle that, although a legal personal representative may be entitled to recover from a party to litigation costs only on a party and party basis, he, as a fiduciary, retains the right to an indemnity from the estate, and, thus, may have recourse to the estate for any difference between his costs on a trustee basis and the costs recovered from a party." 54 In the present case, the substantial cause of the litigation has been the doubt occasioned by the manner in which the Testator left his testamentary papers. It is not a case where the Testator's intentions were

Estate of John James Dunn; Anderson v Scrivener

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