HATSATOURIS & ORS. v. HATSATOURIS [2001] NSWCA 408

COUNSEL : P.W. Taylor SC and Ms. K.E. Burke (Appellants) I.G. Harrison SC and W.G. Hodgekiss (Respondent) SOLICITORS : Nicholas G. Papas & Co. (Appellants) Phillip Parbury & Associates (Respondent) CATCHWORDS : Wills Probate and Administration - Testamentary instruments - Informal document intended to operate as a codicil to existing will - Time at which intention to be determined - Effect of subsequent change in intention D LEGISLATION CITED : Wills Probate and Administration Act 1898 ss. 17,18A In the Goods of Beetson (1848) 6 NC 13 In the Estate of Masters (deceased); Hill v. Plummer; Plummer v. Hill (1994) 33 NSWLR 446 CASES CITED: Permanent Trustee Co. Limited v. Milton (1995) 39 NSWLR 330 The Public Trustee v. Commins; The Estate of Gwendolyn Myrtle Wray, Powell J 16 June 1992 (unreported) Thorne v. Rooke (1841) 2 Curt. 798; 163 ER 589 Estate of Wilson (1991) 24 NSWLR 334 DECISION : Appeal dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40284/01 ED 11836/98 PRIESTLEY JA POWELL JA STEIN JA

Judgment 1 PRIESTLEY JA: I have had the benefit of reading in draft Powell JA's reasons for judgment. I agree with his reasons for interpreting s 18A of the Wills Probate and Administration Act 1898 (as amended) in the way that he does relevantly to the present case; that is, to the effect that among the situations to which s 18A(1) applies is the situation where a subsequently deceased person intended that a particular document, in existence at the time of the manifestation of that person's intention, should, without more on that person's part, operate as that person's will. 2 In terms of this case, this means that the condition for application of s 18A(1) to the document signed by the now deceased Mr G.E. Hatsatouris on 16 December 1997 in the circumstances narrated by Powell JA, is the satisfaction of the court that when the deceased signed the document he intended it to constitute an amendment of his then existing will. 3 On the indisputable facts in this case the deceased had exactly the intention of which s 18A(1) speaks at the time he signed the document. Foster AJ was satisfied that that intention then existed and I do not think that satisfaction can be challenged in the appeal. It follows that Foster AJ's decision was correct. 4 I agree with Powell JA that the appeal should be dismissed with costs. 5 POWELL JA: The Appellants, to whom, together with the Respondent, Probate in common form of the Will dated 20 July 1995 and two Codicils dated respectively 7 February 1997 and 20 May 1997 of George Evangelos Hatsatouris ("the Deceased") was granted by Mr. Registrar Finlay on 7 July 1998, appeal from a Judgment delivered by Foster AJ on 30 March 2001, pursuant to which Judgment there were, on 9 April 2001, made the following (inter alia) orders: "1. The plaintiff together with the four defendants as executors of the Will of the late George Evangelos Hatsatouris apply for a separate and supplemental grant of probate of the codicil of the late George Evangelos Hatsatouris dated 16 December 1997. 2. Grant a separate supplemental probate of the Codicil of the late George Evangelos Hatsatouris dated 16 December 1997. 3. Require that the original probate granted to the plaintiff and the four defendant executors on 7 July 1998 by the Probate Division of this court be brought into Court for the purpose of being bound together with a supplemental probate prior to the latter document being delivered to the executors." (As to the circumstances in which a supplemental grant of Probate of a Codicil will be made see Thorne v. Rooke (1841) 2 Curt 799; 163 ER 589 ; In the Goods of Beetson (1848) 6 NC 13 ; Estate of Wilson (1991) 24 NSWLR 334 .) 6 The Appellants and the Respondent are the five children of the marriage of the Deceased and his wife Anna, who died in March 1995, leaving a Will, the Executors of which were the Deceased and the First Appellant, pursuant to which Will the Deceased, in the events which happened, was the universal devisee and legatee. Of the property which passed to the Deceased pursuant to the Will of his late wife one need note only a cottage property known as 82 Onslow Street, Rose Bay ("the Rose Bay property"). 7 The first named Appellant ("Angelo") is the eldest of the children, having been born on 15 December 1942. Following the completion of his secondary education, Angelo attended the University of Sydney where he graduated in Arts and Law subsequently being admitted as a solicitor. In the Affidavit which he swore in the proceedings in February 2000, Angelo deposed (inter alia): "I am a solicitor in my own practice in Maroubra Junction. I have been in practice for over 30 years. I am married to my wife Despina and we have three sons aged 23, 21 and 15." (For reasons which will shortly become apparent, I record, here, that despite the fact that, at the time of the filing of the application for a Grant of Probate, Angelo had been in practice as a solicitor for some 30 years, and despite the form of paragraph 2 of the Affidavit of Executor prepared by him in support of the application for a Grant of Probate (Blue AB 32), at trial Angelo asserted (Black AB 83) that, at the time, he was not aware of the existence of s.18A of the Wills Probate and Administration Act 1898 ("the Act"), and that it was not until August 1998 when he received a letter from the Respondent's solicitor that he became aware of the existence of the provisions of that section.) 8 The Second Appellant ("Maria") is the second eldest of the children, having been born on 7 June 1994. In the Affidavit sworn by Angelo to which I have earlier referred, he deposed (inter alia): "Maria married Emanuel Alexiou in 1965 and has four grown up children. She is a licensed real estate agent and registered valuer having completed courses after her children completed their education. Her husband is a butcher who has since sold his business and has two problem knees. For the past few years, she has been the main provider of the family." 9 The Third Appellant ("Irene") is the third eldest of the children, having been born on 30 December 1946. In the Affidavit sworn by Angelo to which I have earlier referred, he deposed (inter alia): "Irene is a qualified pharmacist living in Adelaide. She married Jack Antonas in 1974 and has four children, two boys and two girls. The two boys are twins and have just completed their last year at school. One of her daughters is at university, and the other one has completed a university course and is self employed." 10 The Fourth Appellant ("Helen") is the fourth eldest of the children, having been born on 8 August 1949. In the Affidavit sworn by Angelo to which I have earlier referred, he deposed (inter alia): "Helen is a qualified primary school teacher teaching at Double Bay Primary School. She is married to Geoff Purcell and has two adult children." 11 The Respondent ("Julia") is the youngest of the children, having been born on 13 June 1952. In the Affidavit sworn by Angelo to which I have earlier referred, he deposed (inter alia); "Julia has one dependent child and has been separated from her husband since December 1997. She is a teacher at Clovelly High School. Her son James is approximately 5 years of age." (Other material which was before Foster AJ at trial indicated that the Respondent did not marry until January 1990, at which time she was 37 years of age. Some material would suggest, first, that the Deceased and his late wife did not approve of the marriage, that Julia's husband - from whom she has since been divorced - was improvident and that, from the start, the marriage was an unstable one.) 12 Although, for many years, the Deceased, his parents and other relatives lived in Port Macquarie where the family acquired various properties upon which they conducted a number of businesses, it would seem that, after the Deceased's marriage, he, with his wife and, following their birth, each of the children, lived in Taree where the family home was situated at Pulteney Street, Taree. However, in 1967, by which time Maria had married and each of Angelo and Irene had moved to live in Sydney during the course of their university studies which, in all probability had by that time completed, the Deceased had arranged for the purchase in his wife's name of the Rose Bay property, his intention, so it seems, being to move to live in Sydney and keep the family together, using that property as a family home. 13 In 1976, following a division between them of the assets which the Deceased and his brother had acquired in Port Macquarie and Taree, there was established, on the instructions of the Deceased, a discretionary trust, apparently known as the George Evangelos Hatsatouris Family Trust, the trustee of which was a company known as Mandraki Pty. Limited ("Mandraki"), to which company there were transferred the commercial properties - some 16 lock-up shops, an upstairs restaurant and upstairs offices - which had been distributed to the Deceased following the partition. Mandraki is a company, the registered office of which is located in the premises in which Angelo carries on his practice - the two directors of Mandraki after its incorporation were the Deceased and Angelo. 14 When the trust was first established, Mandraki or other the trustee for the time being, was enabled, until the vesting day - which, in the events which have happened will be 21 September 2016 - to distribute the income to such of the beneficiaries - who include the Deceased's children - to the exclusion of other beneficiaries, and in such shares, as it might from time to time determine and, on the vesting day, was required to pay and transfer the income and capital in its absolute discretion to all or any of the beneficiaries as were then living as it might in its absolute discretion determine. By Deed made 22 April 1983, the trust deed was amended so as to enable the trustee prior to the vesting day to stand possessed of the trust fund as to capital for the beneficiaries or any one or more of them to the exclusion of the other or others of them and in such shares and proportions as the trustee in its discretion might from time to time determine. The materials which are before the Court do not reveal in what manner income and capital has up till now been dealt with. 15 Although the materials which are before the Court do not make the matter entirely clear, it would seem more probable than not that, after the acquisition of the Rose Bay property, the Deceased and his wife moved to live there and that, for the most part, they continued to live there until the death of the Deceased's wife in 1995, those of the children other than Julia, who were not married, living there until their respective marriages, and Julia and, after her marriage, her husband and, after his birth, their son, continuing to live there until December 1997 when Julia's husband left. 16 It would seem that although, for a time, remaining in the Rose Bay property, the Deceased later returned to live in his property in Pulteney Street, Taree. 17 The materials which are before the Court make it tolerably plain that, at the time of his late wife's death, the Deceased was, and that he continued thereafter to be, concerned as to Julia's financial position and, in particular, as to the fact that she, her husband and son, were living in the Rose Bay property and had no home of their own. That this was so is made clear by the fact that, on a number of occasions after his late wife's death, the Deceased told one or other of the children, other than Julia, that it was his wish that Julia have the Rose Bay property. It is equally clear that such expressions of his wishes or intentions provoked the opposition of the four elder children. 18 The Will made by the Deceased in July 1995 appears to have been made by him following a discussion with his daughter Helen prior to his return to Taree after treatment in Sydney for what appears to have been prostate and bowel cancer. 19 That Will provided for Julia to have a right of residence in the Rose Bay property similar to that for which provision had been made in the Will of the Deceased's late wife in the event that the Deceased had predeceased her and for the property to be sold upon Julia giving up her right of residence or upon her death, the proceeds being shared equally between the children or their children, for the property at Pulteney Street, Taree to pass to Mandraki as trustee of the Hatsatouris Family Trust and for the rest and residue of his estate to be divided equally between his five children as tenants in common in equal shares. 20 In December 1996, and again in March 1997, the Deceased, when in Adelaide spoke to Irene of his wish to leave the Rose Bay property to Julia, Irene, on each occasion, as it seems to me, making clear her opposition to the Deceased's doing so. Thus, on the occasion in March 1997, Irene said (Blue AB 88): "Dad, but you can't be the one to leave her a house and give her half a million dollars above everyone else. You know it has to come out of her share of the estate." 21 This notwithstanding, it appears clear enough (Blue AB 76) that in about August 1997, the Deceased had his solicitor, Mr. S.W. Davies of Taree, prepare a Codicil leaving the Rose Bay property to Julia absolutely (Blue AB 78). 22 It would appear that it was at about this time when the Deceased was admitted to the Mayo Hospital in Taree after contracting pneumonia. In early September 1997, while the Deceased was still in the Mayo Hospital, Angelo visited the Deceased. While he was there the following conversation occurred (Blue AB 109): DECEASED: "I have been thinking about Julia's position and about giving Rose Bay to her." ANGELO: "I think you are asking for trouble. Do you want to divide the family?" DECEASED: "No." ANGELO: "Leave everything the way it is. Julia already has the house for her life. If you give it to her absolutely, the others will be upset, there'll be a court case and the family will never be the same." DECEASED: "You're not serious?" ANGELO: "Yes." DECEASED: "Who's going to do this?" ANGELO: "It doesn't matter. The rest of the family will not like it and there will be trouble. What you are thinking of doing is not fair." DECEASED: "Yes, I know." ANGELO: "I do not believe anyone will mind if you let Julia stay in the house on the same terms as in Mum's Will." 23 According to Mr. Davies, on 10 September 1997 he, on the Deceased's instructions, and in the Deceased's presence, destroyed the Codicil which had been executed in August 1997. 24 According to Angelo (Blue AB 109), at about the time he had his conversation with the Deceased, the Deceased executed a Power of Attorney appointing Angelo and Maria to be his attorneys - that Power of Attorney (Blue AB 129-130), which was an enduring Power of Attorney, appears to have been registered - one assumes, by Angelo, or a member of his staff - in the General Registry of Deeds on 11 September 1997 as Book 4178 No. 109. 25 It would seem that it was at about this time when the Deceased was diagnosed as suffering from a recurrence of his earlier cancer and, on 23 September 1997, he was admitted to the Sacred Heart Hospice at Darlinghurst where he remained until the beginning of December 1997 when he appears to have been admitted to Lulworth House, the nursing home attached to St. Luke's Hospital, Potts Point. 26 On 7 October 1997, while he was in the Sacred Heart Hospice, the Deceased telephoned Mr. Davies in Taree and gave him instructions to prepare a Codicil "to leave Rose Bay property absolutely to Julie" (Blue AB 79). Having prepared a Codicil to that effect ("the third Codicil") Mr. Davies, as he had been requested to do, forwarded it to the Deceased under cover of a letter addressed to the Deceased at the Rose Bay property. That letter was as follows (Blue AB 80): " RE: THIRD CODICIL TO YOUR WILL PROVIDING FOR RESIDENTIAL PROPERTY KNOWN AS 82 ONSLOW STREET, ROSE BAY BEING LEFT TO YOUR DAUGHTER, JULIA FLEETWOOD ABSOLUTELY We refer to the writer's telephone conversation with you on Tuesday 7 October 1997 and now as instructed by you, enclose third Codicil for your consideration. Subject to your approval, we would be pleased if you would sign the third Codicil where indicated in the presence of two adult witnesses who are present at the time that you sign the document and then each witness should sign the document where indicated in the presence of the other witness as well as yourself then print his or her full name, address and occupation where indicated. Would you please ensure that all signing is done with the same pen and in addition, please ensure that the witnesses are completely independent, i.e. that they are not beneficiaries under your Will and/or Codicil or related to any such beneficiary. Once the document has been signed, we should be pleased if same could also be dated and then returned to us for checking prior to filing in our strong room. If you have any queries, please do not hesitate to contact us." 27 After the letter had been received at Onslow Street, Julia took it unopened together with other correspondence and papers which she held on the Deceased's behalf, to the Hospice where the Deceased opened it. When he did so he told Julia that it was his Will and that he wanted to leave her the house (Blue AB 7) but, when she said that she wished him to be very sure about that, he told her to put the Codicil in his brief case in which she was accustomed to keep his papers. 28 According to Angelo (Blue AB 110-111), in very early December - a date which appears to be wrong as it is suggested that the conversation took place while the Deceased was still in the Sacred Heart Hospice - he had a conversation which was, in part, as follows: DECEASED; 'I am worried about Julia because of what she is going through with Paul. I want to give her the Rose Bay house." ANGELO: "Why do you keep bringing this up? What's driving this?" DECEASED: "I want to help her, she doesn't have a house." ANGELO: "She'll have enough money to buy herself something nice once Rose Bay is sold and the proceeds divided between us. That house does not have a lot of happy memories for many of us and it would be the best for it to go." … DECEASED: "You're not going to help me." ANGELO: "I told you before, do you want the family to be fighting in court?" DECEASED: "No." ANGELO: "Then do what you are suggesting and that's precisely what's going to happen." DECEASED: "Well if that's the case, I can't help her the way I would like to." ANGELO: "Not if you want to avoid a court case." DECEASED: "I don't want that". 29 According to Julia (Blue AB 8), the Deceased was anxious to obtain witnesses in order to sign his Will and, on one occasion, after his nephew Dennis Paltos, a solicitor, had visited him at the Hospice, the Deceased suggested that Julia ring Mr. Paltos. According to Julia, she then spoke to Mr. Paltos and asked him to go to see her father. 30 On an occasion, which, clearly enough, was shortly after this, Angelo visited the Deceased in the Hospice at a time when Mr. Paltos was there. According to Angelo (Blue AB 111), on that occasion the following (inter alia) occurred: DECEASED: "He won't help me either." ANGELO: "What do you mean?" DECEASED: "About what we discussed." 31 According to Julia (Blue AB 9-11), on 7 December 1997, when she visited the Deceased at Lulworth House and told him that her husband had left the Rose Bay property, the following (inter alia) conversation occurred: DECEASED: "You're better off without him. You would have ended up with nothing. I'm going to have to make sure that you are secure. You need a place to live for you and the boy. I want to leave you the house at Rose Bay." JULIA: "The others are not going to like that Dad. You know that." DECEASED: "Why can't I do what I want with it, it's mine." JULIA: "I know that but they see things differently." following which, after dictating his reasons for wanting to leave Julia the house, the conversation continued: JULIA: "… I don't know any Solicitors do you want me to find a Solicitor and get them to come and see you and then it is just between you and them." DECEASED: "Yes." JULIA: "Are you happy with that, is that what you really want me to do." DECEASED: "Yes." 32 On 11 December 1997, Julia, having made inquiries and having been referred to Mr. Michael Chalmers, a partner in the firm of Chalmers Marx, solicitors, of Bondi Junction, went to see him. When she did so, Julia said to Mr. Chalmers (Blue AB 11): "I'm Julia Hatsatouris. I'm here on behalf of my father who is in a nursing home. I want you to go and see him because he has a Will and he needs witnesses. Here are some notes that my father dictated to me. As to why he is doing what he's doing, when you go there, I want you to make absolutely sure it's what he wants to do and that he understands what he is doing." Then, after she had given Mr. Chalmers the Deceased's then address and some detail as to the Deceased's assets, the interview continued: "CHALMERS: This could create problems with the family. JULIA: Will you find out if that's what my father really wants to do. If he decides he doesn't want to do it then just send an account." CHALMERS: Would you please organise another witness to go with me." 33 Later, after having informed the Deceased of what she had done, Julia arranged for one John Cooney, who lived next to the Rose Bay property, to attend as a witness. Thereafter, on the following Monday, the Deceased told Julia to bring in his briefcase with the Codicil. 34 Meantime, according to Mr. Chalmers "after checking the provisions of the Family Provision Act", he rearranged the statement which Julia had given to him and had it engrossed. As engrossed, the document was as follows (Blue AB 38): " STATEMENT OF GEORGE HATSATOURIS I, George Hatsatouris, currently residing at Lulworth House, St. Vincent's Hospital (sic) hereby document why I have left my property at 82 Onslow Street, Rose Bay in the State of New South Wales solely to my daughter, Julia Hatsatouris (Fleetwood) and not equally to all my children including Angelo Hatsatouris, Maria Alexiou, Irene Antonas and Helen Purcell and I ask these reasons to be considered in any judicial challenge by any person to this determination of mine made and recorded in my third codicil dated 16 December 1997. 1. All of my other children have their own home, other than Julia Hatsatouris. 2. All my other children are securely married. 3. Julia Hatsatouris is a sole parent with a son of pre-school age who still has to have a full education. The majority of my other grandchildren have or almost have completed their secondary education. 4. Julia Hatsatouris has been the main carer of my wife (until her death) and myself over the years and has looked after our personal hygiene and cleanliness. 5. Julia Hatsatouris has had to go through a divorce and needs, like my other children, the security of her own home. …………………………….. GEORGE HATSATOURIS" 35 In an Affidavit (Blue AB 39-50) sworn by him, Mr. Chalmers deposed (inter alia): "5. In accordance with the arrangement, I went to St Lukes Hospital on 16 December 1997 where I saw George Evangelos Hatsatouris (now Deceased). I went in and met John Cooney the neighbour. I said to George Hatsatouris 'I am Michael Chalmers, a solicitor, and I understand you want to have the Codicil signed. I have not seen the Codicil have you got it?'. He had a pile of papers on a trolley and he went through the papers and pulled out the Codicil. I had a look at it." 36 The form of Codicil was as follows (Blue AB 43): " THIS IS A THIRD CODICIL TO THE LAST WILL AND TESTAMENT of me GEORGE EVANGELOS HATSATOURIS of 59 Pulteney Street, Taree in the State of New South Wales, Company Director which said Will and said Codicils are dated respectively 20th day of July, One thousand nine hundred and ninety five, 7th day of February, One thousand nine hundred and ninety seven and 20th day of May, One thousand nine hundred and ninety seven. 1. I GIVE DEVISE AND BEQUEATH my residential property known as 82 Onslow Street, Rose bay to my daughter JULIA FLEETWOOD for her own use and benefit absolutely. 2. I CONFIRM in all other respects my said Will and said Codicils previously referred to. IN WITNESS whereof I have hereunto set my hand and signed my name to this my third Codicil this day of One thousand nine hundred and ninety-seven. SIGNED by the said GEORGE EVANGELOS HATSATOURIS as and for a Third Codicil to his last Will and Testament in the presence of us both being present at the same time who at his request and his sight and presence of each other have hereunder set out hands and seals ………………" 37 In his Affidavit, Mr. Chalmers continued: "6. I then said to Mr. Hatsatouris 'Would you read through the Statement and tell me if it is correct'. He read the Statement and said 'Yes, I want Julia to have the house'. I then had a conversation with him in a general nature such as 'How is the nursing home'. 7. I read the Statement to him in the presence of Mr. Cooney. I believe there was another bed in the room but there was no-one present apart from myself, Mr. Cooney and the Deceased. After I read the Statement aloud to him he said 'Yes, that's what I want for Julia'. The Statement and the Codicil to the Will are annexed to this Affidavit and marked 'A'. I said to him 'Do you know what this document means? It is a statement that you dictated to Julia but I have changed it a little'. And he said 'Yes'. The Statement was then signed by myself, Mr. Cooney and the Deceased. At that time, a person who identified herself as the Matron came into the room and said 'Stop having that document signed. The Hospital might be liable if it is signed on premises by a patient'. She had placed herself between myself and Mr. Hatsatouris and said 'Come outside to discuss this'." (Although, in his Affidavit, Mr. Chalmers referred only to the Deceased having signed the Statement, both in an earlier Affidavit which he had sworn (Black AB 20) and his oral evidence at trial (Black AB 15), Mr. Chalmers deposed to the Deceased having signed the Codicil and having placed his initials opposite the handwritten date "16th December". As the result of the intervention of the Matron and the fact that the Matron took the signed and witnessed Statement and the signed Codicil, Mr. Chalmers and Mr. Cooney were unable formally to witness the Codicil.) 38 In his Affidavit, Mr. Chalmers continued: "8. We went to a reception area down the corridor from Mr. Hatsatouris' room when the Matron said to me in the presence of Mr. Cooney 'He has dementia and I am under orders of the family for him not to sign any legal document and that I won't have the hospital responsible for him signing any documents'. I said 'I have spoken to him and he seems to understand what he is doing'. She replied 'I will not allow you to see him'. I remember asking for the return of the documents the Matron had taken and obtaining from her a card giving her details. At this time Mr. Cooney seemed to be upset and left. The Matron told me 'Please leave the Hospital'. I said 'I want to tell Mr. Hatsatouris what is happening'. I went back to the room and once again the Matron put herself between Mr. Hatsatouris and myself and would not let me speak directly to him. She spoke to Mr. Hatsatouris and said 'He is leaving'. There was a person in the room whom I believed to be a daughter of George Hatsatouris. The Matron told me to leave and I was escorted from the premises." 39 It is not without point to note, here, that, notwithstanding the Matron's assertion that the Deceased was suffering from dementia, and notwithstanding that, in the Defence which was filed on their behalf, the Appellants denied (inter alia) that the Codicil "was the last Will of a free and capable testator", not only do the medical records produced by Lulworth House not provide any evidence of the Deceased having suffered dementia, but we were informed on the hearing of the appeal (T.15) that the Deceased's testamentary capacity was not an issue at trial. 40 Although a significant part of the evidence tendered at trial related to conversations said to have taken place on and after 16 December 1997 between the Deceased and one or more of his children, the object sought to be achieved by the tender of that evidence seemingly being to establish, either, that the Deceased never intended the form of Codicil signed by him on 16 December 1997 to be a Codicil to his Will, or, that, at some time after 16 December 1997, the Deceased changed his mind so that that form of Codicil in some way ceased to be a testamentary instrument, for reasons which will later become apparent, I do no consider that it is necessary to recount that evidence in detail. However, a short reference to some of those matters should be made. Thus: (a) according to Helen: (i) when she visited the Deceased in the early evening of 16 December 1997, the Deceased said to her " I was going to sign something. Kay came in and stopped the men and said they shouldn't be here" and, when a little later she asked the Deceased, " Did you sign anything?" he replied " No "; (ii) when, on the following day, she again visited the Deceased he said to her " I'm going to leave things as they are. After what happened yesterday I don't want to change anything ";

(b) in an Affidavit sworn by her, Maria deposed (inter alia): "I visited Dad at Lulworth House during early evening of 17 December 1997. Dad was visibly upset about something. He said to me words to the following effect: 'These men came yesterday and asked me to sign a document giving Rose Bay to Julia. I think I might have signed it, but I'm not sure. Kay (the director) asked them to leave and then Helen arrived. I am very confused. I didn't want anything like this to happen. I want to make sure that whatever I might have signed is cancelled.' I replied: 'Do you want to speak to Spencer (Spencer Davies, Dad's solicitor in Taree) to make sure everything is the way you want it to be?' He said 'Yes'. I immediately telephoned Mr. Davies on my mobile phone: I then passed the phone to Dad after introducing myself to Mr. Davies. I heard Dad say words to the following effect to Mr. Davies. Dad: 'I think I signed some papers yesterday that some solicitor brought to me. The children aren't happy. I don't want them fighting' At that point, Julia walked into the room. Her first words were to the following effect: 'Who is Dad talking to?' I said: 'Be quiet' She said: 'Tell me who he's talking to!' While Julia was talking to me, I heard Dad say to Spencer Davies words to the following effect: 'Can you send me something so that I can cancel it just in case I signed it. The children are not happy, I don't want them fighting. I haven't gone yet. We have to leave things the way they are.' Dad then passed the phone to me and I said good-bye to Mr. Davies and hung up. A conversation then took place with words to the following effect: Julia said: 'Dad how could you use me like this? Why did you put me in this position?' Dad said: 'I didn't ask you to do anything. I just don't want you to fight.' Julia said: 'You're so cruel. John Cooney is very upset and I think the family should apologise to him. It's time you stopped playing games.' Dad said: 'I'm not playing games. I just want everything to stay the way it is.' Julia left soon after very angry and upset."

(c) in an Affidavit sworn by him, Mr. Davies deposed to having received a telephone call from the Deceased on 17 December 1997 in the course of which the Deceased said to him " I want you to send down to me a document to revoke the third Codicil which I believe I signed the say before providing for Rose Bay property to be left to Julia absolutely. My address is Lulworth House, St. Luke's Complex, 73 Roslyn Gardens, Kings Cross." 41 On the following day, Mr. Davies forwarded to the Deceased, addressed to him at Lulworth House, a letter in the following terms: "RE: FOURTH CODICIL TO YOUR WILL REVOKING PROVISION FOR RESIDENTIAL PROPERTY KNOWN AS 82 ONSLOW STREET, ROSE BAY TO BE LEFT TO YOUR DAUGHTER, JULIA FLEETWOOD ABSOLUTELY. We refer to the writer's telephone conversation with you last evening and now as instructed by you enclose Fourth Codicil for your consideration. Subject to your approval, we should be pleased if you would sign the Fourth Codicil where indicated in the presence of two adult witnesses who are present at the time that you signed the document and then each witness should sign the document where indicated in the presence of the other witness as well as yourself then print his or her full name, address and occupation where indicated. Would you please ensure that all signing is done with the same pen and in addition, please ensure that the witnesses are completely independent, i.e. they are not beneficiaries under your Will and/or Codicils or related to any such beneficiary. Once the document has been signed, we should be pleased if same could also be dated and then returned to us for checking prior to filing in our strong room. If you have any queries, please do not hesitate to contact us." The form of Codicil enclosed with that letter was as follows: "THIS IS A FOURTH CODICIL TO THE LAST WILL AND TESTAMENT of me GEORGE EVANGELOS HATSATOURIS of 59 Pulteney Street, Taree in the State of New South Wales, Company Director, which said Will and said Codicils are dated respectively 20th day of July, One thousand nine hundred and ninety-five (Will) 7th day of February, One thousand nine hundred and ninety-seven, (First Codicil), 20th day of May, One thousand nine hundred and ninety-seven (Second Codicil), and on or about 16th day of December, One thousand nine hundred and ninety-seven (Third Codicil). 1. WHEREAS by my last mentioned Third Codicil referred to immediately above I gave devised and bequeathed my residential property known as 82 Onslow Street, Rose Bay to my daughter Julia Fleetwood for own use and benefit absolutely AND WHEREAS I wish to revoke the said Third Codicil and the said provision for my said daughter consequently I HEREBY REVOKE the said Third Codicil and the said provision for my said daughter JULIA FLEETWOOD. 2. I CONFIRM in all other respects my said Will and the said First and Second Codicils." 42 In his Judgment (RAB 35) Foster AJ recorded (inter alia): "47. … This Codicil was never executed by the Deceased. Indeed, it was never proffered to him for execution. The envelope containing it was not delivered to him personally at Lulworth House. It was held on arrival and later given into the custody of Maria. This occurred at approximately the middle of January 1998. Maria then took the letter to her father's room and opened it in his presence. She asked her father what he wanted her to do with them (sic). Her father replied, 'Just put it in my drawer'. There was then mention of a discussion which was to take place, regarding the Deceased's permanent placement in Lulworth House. Maria suggested that discussion of the fourth Codicil could be deferred until then and that, in the meantime, she had better take it and the accompanying documents with her. The Deceased agreed. 48. There was discussion between Maria and Angelo as to what should be done about the fourth Codicil. Angelo suggested that nothing need to done until the documents arrived from Mr. Chalmers and it became clear whether their father had or had not signed anything. In the meantime there was no need to bother the Deceased, whose health was obviously deteriorating." 43 Meantime, on 18 December 1997, Mr. Chalmers had written to the Deceased a letter - which was misaddressed - in the following terms (Blue AB 46-47): "RE: STATEMENT & THIRD CODICIL TO YOUR WILL I refer to a document I prepared on your behalf, addressing why you had wanted to make the change in your third Codicil to your Will, leaving the property at 82 Onslow Street, Rose Bay solely to your daughter, Julia Fleetwood. On Tuesday, 16 December 1997, I attended to see you and note that I was stopped by the nurse in charge and although wanting to discuss the matter with you, I was asked to leave the premises which I did. I enclose the Codicil prepared by your solicitors and a Statement prepared by myself. Given the attitude of the hospital and I assume, the rest of your family, I think it would be more prudent for you to choose your own solicitor, a person who is not chosen by Julia and who is chosen by you, to come and see you to sign the Codicil and the additional Statement. The reason for this is that although I see myself as acting for you, others might allege that I am acting for your daughter, Julia and therefore, feel that I am not being completely independent. Due to the fact that there may be this perception in this matter, I suggest that you contact an independent solicitor who has not been chosen by Julia, to advise you in relation to the Codicil and the Statement. If you have any inquiries please do not hesitate to contact me." 44 When that letter was eventually returned to him by Australia Post, Mr. Chalmers, on 27 February 1998, wrote a further letter - on this occasion correctly addressed - to the Deceased in identical terms. Enclosed with that letter was the original signed Third Codicil and a copy of the Statement unsigned and unwitnessed. However, the letter was not received at Lulworth House until 4 March 1998, the date of the Deceased's death. After the Deceased's death that evening, Angelo took possession of the letter and the accompanying documents. 45 On 19 March 1998, Mr. Davies forwarded to Angelo's firm the originals of the Will and First and Second Codicils which had been executed by the Deceased and copies of "undated and unexecuted Third Codicil" and "undated and unexecuted Fourth Codicil". 46 As I have previously recorded, the Summons for Probate and the Affidavit of Executor was prepared by Angelo, whose firm was recorded as acting for the Executors. According to Julia (Blue AB 2) "(the Affidavit of Executor) was signed on the advice of my brother who said to me on a number of occasions: 'The Third Codicil and Statement do not mean anything. They are not worth the paper they are written on'." Although, in the Affidavit which he swore, Angelo did not put that statement in issue, in the course of his oral evidence (Black AB 82-83) he said that he could not recall using those words but, rather, he said that the Codicil had not been validly executed - it was in that context when he gave the evidence to which I have earlier (para. 3 (above)) referred that, at that time, he was not aware of the provisions of s.18A of the Wills Probate and Administration Act 1899. 47 Foster AJ's Judgment would tend to indicate that there were two issues tendered on behalf of the Appellants at trial, they being: (a) that it had not been established that the Deceased intended the Third Codicil, in the absence of proper attestation, to be a Codicil to his Will; and

(b) that, even if it had, subsequent events established that the Deceased had changed his mind, it following that the Third Codicil ceased to operate as a testamentary instrument.

That this was so appears from the following passages in his Honour's Judgment (RAB 43-46): "63. On behalf of the defendants it is submitted that s. 18A does not apply to the signing by the Deceased of the third Codicil document. The submission is based upon evidence indicating that the Deceased was aware that a testamentary document such as a Will or Codicil required signature in the presence of two witnesses, who should also sign the document in his presence. His prior experience with the making of Wills and Codicils, together with the letter of instruction from his solicitor would have informed him that attestation by two witnesses was a normal requirement for the making of a valid Will or Codicil. Accordingly, it is submitted, the Deceased could not have intended that the third Codicil be his Will, in the absence of proper attestation. … 67. The remaining issues can be subsumed under the defendant's proposition that the Deceased's 'intention' in s. 18A is an ambulatory concept. This is said to result, inter alia, from the permission accorded by ss. 18A(2) for the Court to have regard to a wide range of evidence relating to the testamentary intention of the Deceased, including statements made by him or her. It is asserted that the testamentary intention, contemplated by s.18A, is not to be confined to the time of execution of the purported testamentary document. An intention manifested at that time can cease to exist, with the result that from the time of such cesser, the section no longer applies and the document loses its testamentary status. Put another way, a person who has brought into existence a s.18A document, by having executed it with the necessary testamentary intention, can subsequently deprive it of its testamentary significance by simply changing his or her mind as to its constituting his or her will or codicil. Such change f mind, it is said, can be effective notwithstanding a failure to comply with the requirements of the Act relating to the amendment or revocation of testamentary instruments." 48 Foster AJ rejected each such submission, as the following passages from his Judgment demonstrate: "64 …I am satisfied that, at the time he signed the document, the Deceased fully intended that it should constitute an amendment to his Will. All of the extrinsic evidence points to his having that intention up to the instant when completion of formalities was taken out of the hands of himself and the witnesses. … … 68. … A s.18A will, leaving aside the effect of ss. 15 and 15A of the Act, can be revoked only in the manner contemplated by s.17 or by a revocatory document contemplated by s.18A. 69. In my view, once the Third Codicil came into effect, pursuant to s.18A, by the Deceased's execution of its animo testandi, it could not be revoked except by the execution by the Deceased of the fourth Codicil in compliance with the formalities required by s. 7 of the Act or by his executing it in a manner which would bring s.18A into operation. As neither of these events occurred before his death, I am satisfied that the Third Codicil took effect when he died." 49 Those conclusions notwithstanding, his Honour added: "71 If I be wrong in this view of the law I would, nevertheless reach the same conclusion in this case, on the facts. For reasons that I have already advanced I have decided, on the balance of probabilities, that the Deceased did not depart from his intention of devising the Rose Bay home to Julia. …" 50 The Written Submissions which were filed on behalf of the Appellants commenced as follows (Orange Book 3-4): " Introduction 1. The appellants have two principal contentions. These are: 1.1. that after 17 December 1997 their father did not intend his will to take effect as if it had been amended by the document he signed on 16 December 1997, and 1.2 consequently, the document signed on 16 December 1997 could not be admitted to probate under s.18A of the Wills Probate and Administration Act 1898 (the Act). 2. The appellants' first contention embraces all the Grounds of Appeal other than Grounds 8 and 9.3. - ' the factual grounds '. 3. The appellants' second contention embraces Grounds 8 and 9.3 - ' the point of law ground '." 51 Grounds 8 and 9.3 in the Notice of Appeal were as follows (RAB 51-52): "8. The trial judge erred in holding that a document which, as at 16 December 1997, would have satisfied the requirements of s. 18A of the Wills Probate and Administration Act 1898: 8.1 should be admitted to probate notwithstanding that at the date of death the Deceased no longer intended that the document should constitute an amendment of the Deceased's will; 8.2 could only be 'revoked' by the execution of a later document which either complied with s. 7 or satisfied s.18A of the Wills Probate and Administration Act 1898. 9. The trial judge should have held that: … 9.3 as at the date of his death the Deceased did not intend the third codicil should constitute an amendment to his will." 52 Although I would have thought that the first question to be decided was the "point of law" question, the substantial part of the Appellants' Written Submissions was directed to "the factual grounds" and, on the hearing of the appeal, the Appellants' counsel devoted what can only be described as an inordinate amount of time directed to "the factual grounds" and gave little more than a passing mention to the "point of law". 53 Despite the fact that the form in which "the point of law" was stated in the introduction to the Appellants' Submissions, which submissions seemed to proceed on the basis that, on 16 December 1997, the Third Codicil became, by virtue of the provisions of s.18A of the Act, "an amendment to (the Deceased's) Will", the oral submissions, such as they were, which submissions I regret to say I found difficult, in the extreme, to follow, seemed to proceed on two alternative bases, they being: (a) that, because - so it was submitted - an informal document did not become a testamentary instrument until a Court declared itself satisfied that it was intended to be so, it was open to the Court to have regard to everything that was said and done by the relevant Deceased up to the time of his or her death and, thus, the time for determining the relevant intention was the date of the Deceased's death;

(b) that even if the relevant intention was to be determined at some earlier date, and even if it were determined that the relevant intention existed at that earlier date, the document would cease to be a testamentary instrument if, after that earlier date, the relevant Deceased changed his or her mind. 54 In my view neither of the ways in which the "point of law" has been formulated should be accepted. 55 It is convenient first, to set out the relevant portions of ss. 17, 18A of the Act, which are as follows: "17 … (2) A will may be revoked by another will. (3) A will may be revoked (a) by some writing declaring an intention to revoke the will and executed in the manner in which a will is required to be executed by s.7; (b) if the will is in writing, by burning, tearing or destruction otherwise of the will by the testator or by some person in the testator's presence and by the testator's direction, with the intention of revoking the will; or (c) by some writing on the will, or by any dealing with the will, by the testator or by some person in the presence of the testator and by the testator's direction, if the Court is satisfied from the state of the will that the writing was made or the dealing was done with the intention of revoking the will. … 18A(1) A document purporting to embody the testamentary intentions 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's person." 56 It is, and has long been, my view that the questions arising on applications raising a question as to the applicability of s.18A 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?

(see, for example, The Public Trustee v. Commins; The Estate of Gwendolyn Myrtle Wray Powell J, 19 June 1992 (unreported) ). 57 The relevant fact being whether the relevant Deceased intended that the document in question operated as a testamentary instrument, and not whether the Court is satisfied that that was the intention of the relevant Deceased, it follows, in my view, that the document operates as a testamentary instrument as and from the date when the relevant intention existed and not from the date upon which the Court determines that the relevant intention existed. 58 This does not mean that, in seeking to determine if and when the relevant intention existed, the Court is restricted in its search for intention to some particular of time. On the contrary: as I wrote in The Public Trustee v. Commins; The Estate of Gwendolyn Myrtle Wray supra: "If I have appreciated his submissions aright, Mr. Neal did not appear to dissent from the views which I have thus expressed. Rather, his submission, as I have noted it, was to the effect that, whatever may have earlier been the Deceased's intention in the matter, upon their proper analysis, the discussion, and the events, of 3 September 1991 demonstrated that it was the Deceased's then intention, either: 1. that the document which she then signed should constitute her Will, or, at least, a partial revocation of the Will made in February 1991; or 2. that the document should operate as such provisionally pending the execution of a formal Will to the like effect. If it were possible, and legitimate, to treat the conversation, and events, of 3 September 1991 in isolation from what had preceded, and what was to follow, the conversation, and events, of that day, there would, I believe, be much to be said for Mr. Neal's submissions. It seems to me, however, that it is not possible, or legitimate, to treat that conversation, and those events, in isolation. Since the critical question is, what was the Deceased's intention at the time she placed her signature on what is, after all, no more than a note as to the manner in which she wished her Will to be changed, it seems to me that what is required is an approach similar to that which is called for when the Court is called upon to determine whether an informal document was intended to constitute, or record, but a limited consensus or concluded agreement - in such cases it is not only legitimate, but almost inescapable, that one should have regard to the totality of events in order to determine what was the party's intention (see, for example, Hussey v. Horne-Payne (1879) LR 4 App Cas 311; Howard Smith and Co Limited v. Varawa (1907) 5 CLR 68; Masters v. Cameron (1954) 91 CLR 353; Allen v. Carbone (1975) 132 CLR 528; Australian Broadcasting Corporation v. XIVth Commonwealth Games Limited (1988) NSWLR 540). If this be, as I believe to be the case (the Judgment of Needham AJ in The Estate of James Phillips 9 September 1990 (unreported) is to the like effect), the correct approach to be taken to such questions as that with which I am now concerned to deal, then, so it seems to me, the document signed by the Deceased on 3 September 1991 is revealed has having been intended to be no more than a note of the instructions which the Deceased wished to have incorporated in a new Will which she would later execute in the conventional way." 59 However, while it is legitimate to have regard to statements made, and actions taken, by the relevant Deceased, after the relevant document has been brought into being or signed, in determining whether or not at the time when the document was brought into being or signed, the relevant Deceased had the relevant intention, once it be held that the relevant Deceased had the relevant intention recourse cannot be had to subsequent statements or events - unless they fall within the provisions of s.17 of the Act - to deprive the relevant document of its status as a testamentary instrument. To the extent to which the Judgment of Hodgson J (as he then was) in Permanent Trustee Co. Limited v. Milton (1995) 39 NSWLR 330, 334G-335C suggests otherwise, I disagree. 60 An attempt was made to pray in aid the decision of Kirby P (as he then was) in In the Estate of Masters (Deceased); Hill v. Plummer; Plummer v. Hill (1994) 33 NSWLR 446 at 452 where his Honour said: "Yet by the requirement that the document which, by definition embodies the testamentary intentions of a Deceased person, should be described as constituting 'his or her will' the legislature plainly drew a distinction between those documents of testamentary intentions which constituted the Deceased's Will and those which did not. I regard the distinction thus made as one between a generalised homily as to the testamentary intentions (such as Powell J thought the letter to Ms Plummer involved) and a document which, although falling short on formalities sufficiently evidences that by it the Deceased intended to govern the disposition of his or her properly (sic) after death. Often it will be difficult to tell into which category a propounded document falls. Section 18A(2) of the Act permits extrinsic evidence to given which may sometimes help. But in this case, as in most, that evidence will contain elements pointing in conflicting directions. The conflict will quite often reflect the not unfamiliar ambivalence of the Deceased, when contemplating death. This ambivalence is borne of the tension between the psychological disinclination of many perfectly rational human beings to contemplate their own death (especially perhaps when it is impending) and the rational appreciation of the same persons of the need to provide for the disposition of property when the unwanted occurs. Section 18A(1) of the Act permits courts to recognise this ambivalence." 61 This passage, in my view, provides no support whatsoever for the Appellants' submission in this respect; all it does, in my view, is to reflect the view which I have earlier recorded as to the proper approach to be taken to the evidence which is tendered on the issue of intention. 62 It follows, in my view, that the "point of law" raised by the Appellants fails. 63 In my view, Foster AJ was thoroughly justified in the finding of fact which he made as to the Deceased's intention at the time he placed his signature upon the Third Codicil, it following that, at that time, the Third Codicil became a testamentary instrument which could be revoked only in one or other of the ways provided for by s.17 of the Act. 64 This being so, it is unnecessary to devote any time to the tedious submissions that were advanced in respect of "the factual grounds" and I do not propose to do so. 65 In the circumstances, the order for grant of Supplemental Probate which was made by Foster AJ was soundly based, it following that the appeal should be dismissed with costs. 66 STEIN JA: I agree with Powell JA.

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