Hatsatouris v Hatsatouris

Judgment (16 paragraphs)

[1]

Judgment

The plaintiff, Susan Louisa Margaret Garratt, is the executor of the estate of the late Stanley Trafford Fry (the deceased).
The deceased was born on 22 July 1928 and died on 19 August 2013 aged 85 years. His last Will was made on 28 September 2012 (the Will). The value of the deceased's estate made up of real property, cash accounts, shares and securities is approximately $4.34 million.
The plaintiff seeks declarations that: (1) the deceased intended his copy of the Will with notations upon it to be a Codicil to his Will; and (2) the deceased intended that the document entitled "Guide" be a Codicil to his Will.
The plaintiff notified all the beneficiaries under the Will of these proceedings. Only two of the beneficiaries have appeared. Alison Gai Bentlin is the first defendant and her sister Karin Lee Bentlin is the second defendant. I will refer to the defendants by their first names for ease of reference and without intending any discourtesy.
The proceedings were heard on 27 April 2015 when Ms EA Cohen, of counsel, appeared for the plaintiff and Mr AL Hill, of counsel, appeared for the defendants. The parties were granted leave to file additional written submissions by 2 May 2015, the date upon which judgment was formally reserved.
The plaintiff's claim is made pursuant to s 8 of the Succession Act 2006 (NSW) which relevantly provides: 8. When may the Court dispense with the requirements for execution, alteration or revocation of wills? (1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will - if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will - if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will - if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will. (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to: (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).

BACKGROUND

The deceased was born in Western Australia. For the early part of his life he lived with his family in the small town of Quinninup in a remote part of Western Australia. The plaintiff's family lived nearby. It is apparent that the two families became quite close, with the plaintiff's father helping to rebuild the deceased's family home after a fire in 1954.
The deceased attended University but left before he completed his studies because of financial difficulties in the family. He described himself at one stage as a "retired haulier". I presume from this description that he performed some work in the trucking or hauling industry, the details of which are not in evidence.
The deceased moved to Sydney and in 1966 purchased his apartment in Randwick. He never married. It is clear that in the last twenty years of his life the deceased had numerous female acquaintances and companions with whom he socialised regularly at various clubs close to his home. Two of those companions were Alison and her sister Karin. He was apparently a keen tennis player and golfer until approximately six months before his death.
The plaintiff gave evidence that in December 1999 she visited Sydney for a couple of weeks and stayed with the deceased for a week. She claimed that during her visit the deceased said "you are in my will" which was something she claimed the deceased often said to her "over the years". She also claimed that he frequently said to her that had remembered her in his will and that he often said "I have a debt to your family not only because of the house being built, but because you have always been generous to me over the years". The plaintiff also claimed that whenever she did "something significant" for the deceased he would say to her that she would be "repaid when I expire". The plaintiff also claimed that the deceased said that he intended to leave his apartment to the Children's Hospital in Randwick for families from country areas to stay in whilst their sick children were in the hospital.
For 40 years until 2009 the deceased's solicitor was Mr Dan Downie. Alison was Mr Downie's secretary for many years and it was during the visits that the deceased made to Mr Downie's office that he met and struck up conversations with Alison. During one such conversation Alison informed the deceased that she was saving up to buy her own home. Subsequently the deceased suggested to her that she could move into his apartment as it was two bedrooms and she would not have to pay any rent. The deceased wrote to Alison in the following terms: I'd like to help you procure your own accommodation. Something in the ES would cost at least half a million dollars + - an expensive exercise. I have a two bed apartment in Randwick - would you consider coming over here to live - no rent and when I expire, I'll leave you the unit. It's freehold - no tax liability. I did not get around to explaining the proposal because I thought you felt this was "not the proper thing to do". This is certainly not a "shack up" proposition. Far from there being an ulterior motive, I do not relish the idea of being found in an advanced stage of decomposition, six months after the expiry date. And of course, I have always enjoyed your company, good cheer and lovely demeanour. Best wishes Stan I'm going over to WA next week - will see you when I get back.
This letter was written in January 2007. When Alison saw the deceased again some months later she informed him that she could not move into his apartment because she lived in a house with her sister and had a pet cat.
In 2007 the plaintiff moved to Sydney from Perth, and "caught up with" the deceased. Within a couple of months of the plaintiff arriving in Sydney, the deceased started visiting her regularly at her apartment in Broadway and they would have lunch together. Later in 2007 the plaintiff moved to Surry Hills and the deceased continued to visit her fortnightly or she would visit him at his Randwick apartment.
The plaintiff claimed that in 2008 the deceased asked her to help him with "sorting out his paperwork". She said that the deceased was always writing things, lists and what he referred to as "screeds". The plaintiff's evidence was that the deceased "constantly changed his mind as to how he wished shares etc to be disposed of on his death".
The plaintiff was aware that the deceased traded extensively in shares. She observed that the documents relating to his share trading were kept in shoe boxes and piles of paper all over his home. The plaintiff was also aware that the deceased did some of his share trading through a stockbroker with Macquarie Bank and also with Ord Minnett. The plaintiff said that she arranged the deceased's paper work into lever arch files in an attempt to bring some order to his apartment. She claimed that the deceased used to refer to her as his bookkeeper and secretary.
At Mr Downie's request the deceased had loaned him about $25,000. Alison had also loaned about $85,000 (in small amounts over the years) to Mr Downie. As at 2009 Alison was having difficulty in recovering her loan from Mr Downie. At this time she observed some documents on the photocopier that suggested that the deceased had loaned monies to Mr Downie and may be considering loaning further monies to him. Alison decided to warn the deceased not to lend Mr Downie any further monies. The deceased asked whether they could meet and discuss the situation. Alison agreed and they met at the Easts Leagues Club and discussed the matter for a couple of hours. The deceased asked Alison whether they could "catch up fortnightly for a meal and company". Alison agreed to this and they met on a fortnightly basis from March 2009 until the deceased's death in August 2013. In March 2010 when Easts Leagues Club closed down for renovations Alison and Karin started going with the deceased to the Bondi Junction RSL for a meal on a fortnightly basis. The deceased also spent Christmas 2010 in Newcastle with Alison's and Karin's family.
At one meeting in March 2011 at the Bondi Junction RSL at which Karin was not present, the deceased handed a copy of a Will to Alison and asked her to read it. Alison noticed that the deceased was giving his apartment to her and Karin on various conditions. Alison advised the deceased that she would inform Karin about these provisions.
In September 2011 Alison's father passed away suddenly. She did not see the deceased for approximately three months, although she did speak to him during that period. After the three month period they reinstated the fortnightly dinners.
In September 2012 when Alison met with the deceased he informed her that he was leaving her $150,000 "to cover the money you lost with Downie" and that he was also leaving her some shares in his Will. Alison asked the deceased about the apartment. He informed her that his doctor had advised him that if he had another stroke he may have to go into a home. Alison subsequently received a letter from the deceased posted on 12 September 2012 that included the following: Further to our telephone conversation, I eventually got you on mobile. I left you $150,000 in my will - to cover your loss with Downie. My doctor said, the next stroke I have, I will not get away as light as this one, and I should make provision to go into a home in case the worst happens. I told you our house was burned to the ground over 60 years ago and a carpenter friend built us a new one. I left the farm soon after it was completed and never went back for 20 years. Then I found the builder had not been paid for his labor I promised to foot the bill, but could not do so then, as I left the farm with nothing, but I would leave him my Woodside shares - Eventually George and Peg expired and left Susan (daughter) the shares - after a messy divorce she wanted payment for the house he had built over 60 years previously. I complied and now have to replace the house. In return she will look after me when I can no longer take care of myself. My father and brother are to blame for this obfuscation - George should have been paid for his labour, 60 years before at a then rate of pay - about £5 a week. Dad is dead and my brother is in a home with motor neurone disease (not contagious) - he has had to sell his house to stay there. Alison, regretfully, this is where we are, today - all was meant to be well. Hope to see you fortnightly, as before. Love, Stan.
The plaintiff did not have a "messy divorce". She gave evidence that the deceased said that the reason he said this was because he needed some "excuse" for Alison.
In March 2013 the plaintiff attended a seminar with the deceased conducted by Centric Wealth Advisors Ltd (Centric). In May 2013 the plaintiff attended a meeting with the deceased with two of the Centric advisors. At this meeting the deceased signed an agreement and paid for a statement of advice or financial plan.
In July 2013 the deceased instructed his brokers to restructure his share portfolio in part to provide him with a pension fund. The plaintiff said that the deceased placed his share portfolio and some monetary investments into the hands of Centric.

CONSIDERATION

One matter on which the parties are at issue is the date on which the Guide may have been written by the deceased. The plaintiff's counsel's final written submissions include the contention that "there is overwhelming evidence that the Guide was prepared between the date of the Will" (28 September 2012) and the date of the deceased's death (19 August 2013). The defendants contend that the Guide was probably written before the Will dated 28 September 2012. There is also the issue as to whether the Guide was written before or after the Screed.
The table prepared by the defendants' lawyers, a copy of which is attached to these reasons (with some additions and amendments), sets out a helpful comparison of the contents of the Guide, the Screed and each of the Wills in evidence.
Sometimes the contents of the Guide found their way into the deceased's Wills. At other times they did not.
The Guide included an entry for Marie G Evans at an address in Foster (sic) NSW with an entry for "1000 shares in Westpac banking Corp WBC". No such entry was made in any of the deceased's Wills that are in evidence. There was no entry in the Guide for Gay Evans. However the Screed included an entry for Gay Evans at the same Forster address with an entry for "1,000 Westpac Banking Corp shares". The 1998 Will included a gift of $50,000 to Marie Gabriel Evans at an address in Macquarie Fields. It may be that Marie G Evans and Gay Evans are the same person.
Each of the Wills of 23 June 2009 and 15 September 2009 provide for 1000 shares in Westpac for Gay Evans at an address in Tuncurry. The Will of 18 March 2011 provides for 1000 shares in Westpac for Gay Evans at the Forster address. If the Guide or the Screed were used to assist the deceased with the provisions of his Wills then it would appear that the entries relating to Marie G Evans in the Guide and Gay Evans in the Screed were probably written after 15 September 2009 but before 18 March 2011.
The Guide includes an entry for the plaintiff for "all shares in Woodside Petroleum WPL". Each of the deceased's Wills of 5 February 2009, 23 June 2009 and 15 September 2009 made provision for the plaintiff to receive the Woodside Petroleum shares. The entry in the deceased's Will for 18 March 2011 for the plaintiff was "5,000 shares in BHP Billiton Limited (BHP)". The deceased's tax returns for the years 2012 and 2013 show that the deceased did not then have any Woodside Petroleum shares. However they do record the BHP Billiton shares. The Inventory of Property annexed to the plaintiff's affidavit as executor sworn on 25 August 2014 includes the entry "Woodside - Ordinary 669 units, $38.70/unit 25,890.30".
The defendants relied upon the tax returns to submit that the deceased divested himself of the Woodside Petroleum shares prior to the returns and to contend that the Guide was written at a time prior to the returns. The force of this submission is weakened by the entry in the Inventory of Property about which the plaintiff was not cross-examined.
An entry in the Guide for Trish and Alex Broom is for "All shares in Austar". The ASX releases in evidence (Ex 1) show that Foxtel Management Pty Ltd acquired Austar in April 2012. Although there are no entries in any of the Wills referring to Austar shares, the defendants rely upon this entry in the Guide to submit that it must have been prepared prior to the acquisition of Austar by Foxtel in April 2012.
Another entry in the Guide in support of the conclusion that it was written well before the deceased's final Will is the plaintiff's address as a post office box in Western Australia. The evidence establishes that this address was last used by the plaintiff in 2007 (tr 13-14).
The Screed does not record any address for the plaintiff. On one view of the evidence, having regard to the lack of reference to an address for the plaintiff in the Screed, it may have been written after the Guide which recorded the post office box address in Western Australia.
The Screed contains a reference to The Fred Hollows Foundation with an entry for 1,000 shares in Westpac; all shares in Brambles; and all shares in MacMahon Holdings. The Will of 5 February 2009 records that The Fred Hollows Foundation is to have the Brambles shares and MacMahon shares. However it was the Will of 23 June 2009 that included each of the matters in the Screed. These bequests were repeated in the Wills of 15 September 2009 and 18 March 2011. In the final Will The Fred Hollows Foundation was given $50,000 cash with 5% of the shareholdings and balance of the estate. It would appear that if the Screed was a guide for the Will it was written at about the time of the Will of 5 February 2009. The Guide does not refer to The Fred Hollows Foundation.
The next entry in the Guide and the Screed that suggests that the Screed was written after the Guide is in respect of North Shore Heart Research Foundation (North Shore). The Guide recorded "all my units with Colonial First State Imputation Fund MIF" to North Shore. The Screed recorded "one half of my units with Colonial First State Imputation Fund" to North Shore. The Will of 5 February 2009 in the entry for North Shore included the Colonial First State Imputation Fund Managed Fund "equally with Prince of Wales Hospital". The Wills of 23 June 2009, 15 September 2009 and 18 March 2011 recorded the "remaining half of Units with Colonial First State MIF - Imputation Fund". The later Wills recorded what was in the Screed rather than in the Guide. The same sequence can be observed in the entries relating to Prince of Wales Hospital.
A further entry in the Guide in this regard relates to Vision Australia. The Guide recorded that Vision Australia was to receive "all of my shares in CFL Property Trust". The Screed recorded that Vision Australia was to receive "half my shares in Rio Tinto Mining". Each of the Wills up to 18 March 2011 provided that Vision Australia was to receive one half of the shares in Rio Tinto. There was no bequest in the Will to Vision Australia. This suggests that the Screed was written after the Guide. Alternatively the entries relating to Vision Australia in the Screed were written after the entries for Vision Australia in the Guide.
The entry in relation to Nicola White in the Guide was $50,000 cash. The entry in the Screed was $50,000 cash to Nicola White with Maxine Delaney (her sister). The Will of 5 February 2009 provided for $50,000 cash equally with Maxine White (later Delaney). It also provided for 5,000 shares in BHP Billiton to Nicola White. The Will of 23 June 2009 reduced the bequest to $30,000 but referred to it being equally with Maxine White. There was no provision in the Will for Nicola White or Maxine Delaney. The plaintiff relied upon affidavits from each of Ms White and Ms Delaney in which they outlined their friendship with the deceased after his relationship with their mother ceased in about the late 1970s. They gave evidence of statements the deceased made in relation to leaving something for them in his Will. It is true that he did provide for them in earlier Wills but not in his final Will. It appears from the entries in the Guide, the Screed and the Wills that the entries in the Screed were written after the entry in the Guide.
The first entry in relation to the plaintiff on the fourth page of the Guide is "All my shares in Woodside Petroleum". The second entry in relation to the plaintiff on the fifth page of the Guide is "I leave my home unit & contents - Unit 5 - 12 Victoria Street Randwick 2031 to the afore said". That entry is next to the plaintiff's name with no address recorded for her. There are also two entries in the Guide in relation to Les Thomson. The first entry is on the third page. It does not include any address and in the right hand column there is recorded "50,000 + any clothes - jackets pull overs shirts etc that fit". The second entry is on the fourth page. Underneath the name there is recorded what appears to be a telephone number but no address. The entry on the right hand side is "Fifty (with the numeral 100 struck through) Thousand Dollars + Any clothes - jackets - pull overs etc that would fit you". The Screed included the entry for the plaintiff in relation to the Woodside Petroleum shares but no entry in relation to the apartment. There were no entries in the Screed referring to Les Thomson. Les Thomson was not named in any of the deceased's Wills.
The plaintiff relied upon an affidavit of Mr Thomson affirmed on 22 August 2014. Mr Thomson was provided with a copy of the Guide and in respect of the entry referring to him said that he usually dressed quite well and the deceased always dressed shabbily. He regarded the entry in the Guide relating to himself as part of the deceased's "sense of humour". He also gave some evidence about his conversations with the deceased which included a claim that the deceased said that Alison had convinced him to leave the apartment to her and Karin rather than the Randwick Children's Hospital and that they were going to move in "rent free". The evidence does not support the truth of such a statement. Notwithstanding that Mr Thomson was not cross-examined, it is clear that the deceased was writing to Alison trying to convince her of the very thing that he apparently claimed to Mr Thomson that Alison had suggested. Mr Thomson also claimed that the deceased had said at some stage that the plaintiff "will get" the apartment. This evidence was very vague. There is no evidence of the circumstances or the precise time at which such a statement was made. However I will take it into account in determining the issues.
The plaintiff also relied upon the affidavit of Samya Bikhazi sworn on 13 April 2015. Ms Bikhazi met the deceased in approximately 1990 at the City Tattersalls Club where they each used to go to dance. They developed a friendship and would go dancing on Wednesday evenings. Ms Bikhazi gave evidence of the deceased's generosity towards herself and her sons. Ms Bikhazi said that when she resisted gifts of money from the deceased he advised her that he had put her in his Will and she would "get something then". Ms Bikhazi also said that in the last years prior to his death the deceased said to her that he had made a Will and left her 1,000 shares in a company of which she had not heard. The only entry in any of the documents relating to Ms Bikhazi is found in the Guide which records "All shares in Ocean Gold". The deceased did not at any stage make any provision for Ms Bikhazi in any of his Wills.
The plaintiff also relied upon the affidavit of Liana Francavilla sworn 5 May 2014. Ms Francavilla met the deceased in 2000 and thereafter had lunch with him every three or four weeks. During some of these meetings the deceased met and got to know Ms Francavilla's granddaughter, Lara. Ms Francavilla said that the deceased advised her that he had left his car to her in his Will to give to Lara because he was worried about Lara catching the train home late at night.
There was an entry in the Guide next to Ms Francavilla's name and address, "Any car I may own at expiration". There was no entry in the Screed in relation to the car. In his Wills of 23 June 2009, 15 September 2009 and 18 March 2011 the deceased left his car to Leslie Lisle. At no stage in any of the Wills did the deceased leave the car to Ms Francavilla. Ms Francavilla gave evidence that in July 2013, one month before his death, the deceased informed Ms Francavilla and Lara at a luncheon that he had handed in his driver's licence and wanted to give Lara the car. He then arranged for Lara to go to Randwick and collect the car.
Ms Francavilla also gave evidence about some of the discussions she had with the deceased about the plaintiff and about Alison. She said that the deceased expressed concern that leaving the apartment to Alison may be "too much" for one person. She also claimed that the deceased said that the only thing that worried him was that Alison had typed the Will and that she would think that he had gone back on his word. The fact is that the deceased changed solicitors in 2009 and Alison had no involvement with the preparation of the Will after that date. It was after that date that the deceased changed his Will to give the apartment to more than one person - to Alison and Karin.
Ms Francavilla gave no evidence about the deceased ever suggesting that he would give the apartment to the plaintiff. However she did give evidence that she said to the deceased that if anyone deserved the apartment it was the plaintiff.
The plaintiff also relied upon the affidavit of Sharon Knowles sworn on 8 April 2015. Ms Knowles is the daughter of Dawn Orchard who receives 2% of the deceased's shareholdings under the Will. Ms Knowles gave evidence that her mother was in a romantic relationship with the deceased and lived in his apartment at Randwick for about 3 years. Her unchallenged evidence was that on many occasions her mother advised her that the deceased had told her that he was leaving something to Ms Knowles in his Will.
The plaintiff also relied upon the affidavit of Dawn Orchard sworn on 9 April 2015. The evidence of Ms Orchard was that the deceased said to her that he was leaving something for her in the Will and that he was leaving something for her daughter, Ms Knowles. Although the Guide and the Screed includes reference to 1,000 shares in Westpac Bank for Ms Knowles there was provision for Ms Knowles in the Will of 5 February 2009 for "Remaining BHP Billiton Shares", and each of the Wills of 23 June 2009, 15 September 2009 and 18 March 2011 for "All my remaining shares in BHP Billiton Limited (BHP)".
The Guide and the Screed provide for 1,000 in Westpac Banking Corporation for Ms Orchard. Each of the Wills of 23 June 2009, 15 September 2009 and 18 March 2011 made that provision for Ms Orchard. As I have said in the final Will Ms Orchard receives 2% of the shareholdings and the balance of the estate.
There is in evidence a receipt from the Royal Randwick Fruit Market. Although it is very faded it is possible to see part of the date ("24 May 201..") but not the last numeral. Although the plaintiff claimed the receipt was dated 24 May 2013 I am not satisfied that this is so. On the front of the receipt in the deceased's handwriting are the words "The Smith family". There are also some figures in the deceased's handwriting. On the back of the receipt Les Thomson's name is written and crossed out and in its place are the letters "Mujibah". Next to that there is recorded the numeral "100" that is crossed out and in its place there then appears "50 thousand Dollars+ any clothes jackets pull overs etc would fit you". Also on the back of the receipt is the following entry: "Susan Garratt I leave my home unit & contents of unit 5 12 Victoria Street R'wick to the afore said mentioned". The entries on the back of this receipt are found on page 5 of the Guide.
There is another receipt from Royal Randwick Fruit Market in evidence as an annexure to the plaintiff's affidavit of 7 May 2014 filed on 13 May 2014. It has a handwritten note on its reverse side in what appears to be the deceased's handwriting in respect of the unsatisfactory borrowing arrangements both in respect of himself and Alison with Mr Downie. That receipt has the date, albeit faded, "28 Jan 2013". The note on the back of this receipt was in the following terms: "A solicitor borrowed $148,000 from his secretary and has since filed for bankruptcy. This is why I need to redeem these investments - the same solicitor borrowed $25,000 from me (before filing)".
There is also in evidence (Ex A) a letter from the Insolvency and Trustee Service of the Australian Government to the deceased dated 13 September 2012 with a list of creditors disclosed on Mr Downie's Statement of Affairs with notification that the date of Mr Downie's bankruptcy was 12 September 2012. In that creditors list Alison is listed at $150,000 and the deceased at $15,000.
This note on the back of this receipt dated 28 January 2013 suggests that at some time after that date the deceased was still concerned about the monies that had been borrowed by Mr Downie and not repaid. This is inconsistent with the plaintiff's evidence that Ms Green had recovered fifty per cent of the loan that the deceased had made to Mr Downie and also with the contents of the letter from the Insolvency and Trustee Service which indicated that his debt was then only $15,000.
There was no expert evidence or analysis of the receipts. However to the lay eye it would appear that the receipt relating to the entry regarding Mr Thomson and the plaintiff is an older receipt than that dated 28 January 2013. Logically it would appear that the date is somewhere between 24 May 2010 and 24 May 2012. As indicated earlier the deceased attended Ms Green to make his Will in September 2012. That does not mean that the deceased wrote the note on the Receipt at about the time he received it. However it is probable that he would have done so. If he did so, it was before he made his final Will.
The matters that are found on the faded receipt that is dated some time before June 2012 relating to Les Thomson and the plaintiff and also found in the Guide at no stage found their way into any of the deceased's Wills.
I am satisfied that it is probable that the deceased wrote things in the Guide from time to time. I am satisfied that it was commenced as early as 2009 and that the deceased probably added to it over time by additions, amendments and adjustments. I am also satisfied that it is probable that the Screed was written after the Guide, with reference to the Guide. That does not mean to say that some entries in the Guide were not written later than the Screed. The danger of making this logical analysis by comparison of what actually happened with various bequests in the Wills is that the vagaries of the approach that the deceased adopted in writing various notes, lists, the Screed and the Guide are not recognised or properly taken into account.
The fact that the deceased used the title "Guide" is of some significance. The plain meaning of that expression is "a thing that helps someone form an opinion or make a decision or calculation": The New Oxford Dictionary of English (1st ed 1998, Oxford University Press). The expression "Screed" has the plain meaning of "a long speech or piece of writing, typically one regarded as tedious": The New Oxford Dictionary of English (1st ed 1998, Oxford University Press). It may be that the deceased found it tedious making the new list, the Screed, from the Guide. However this is but speculation.
The plaintiff submitted that the words used on the back of the faded receipt that found their way into the Guide are words of "a testamentary nature". It was accepted that the Guide does not contain any specific words of revocation, but the plaintiff's case does not suggest that the deceased intended to revoke his Will of 28 September 2012. It was submitted that if the Guide were to be admitted to Probate the principles outlined by Young J in Estate of Francis Collins [2000] NSWSC 407 [5]-[7] would apply. In that case his Honour posed the question at [7] whether it could be "discerned whether the testator intended the informal document to completely revoke his former will, or merely to amend (partially revoke) it".
The plaintiff claimed that over the years, well prior to September 2012, the deceased had informed her that he had remembered her in his Will. It is obvious that the deceased felt very concerned for Alison having lost her savings by loaning the money to Mr Downie. Neither the Guide nor the Screed contained any entry in respect of Alison or Karin regarding the apartment. However each of the Wills, except the last Will, gave the apartment to Alison outright and in the second last Will as joint tenant with Karin.
In his Will, the deceased adjusted the position so that Alison and Karin received 4% of his shareholdings as joint tenants and Alison received $150,000. The plaintiff received $100,000 and 5% of his shareholdings. It is clear that the deceased addressed these percentages carefully with his solicitor to replicate his wishes.
The letter the deceased wrote to Alison in December 2012 does not record that he had decided to give the apartment to the plaintiff. Rather it advises that having regard to his doctor's advice he would have to "make provision to go into a home". The deceased did write that he would "have to replace the house" but does not say how this was to happen. There is a suggestion that it would be a monetary replacement by the use of the term "at a then rate of pay". I think the reasonable inference from the letter is that he was going to keep the house to sell it, as his brother sold his home, to enable him to go into a home. Even if that be wrong and the deceased was intending to convey that the plaintiff was to receive the apartment, this letter was written before the deceased attended upon Ms Green to make his final Will. Yet no such provision was made for the plaintiff.
I am satisfied that the entry in the Guide and the writing on the back of the faded receipt were made prior to September 2012.
Although it was submitted that it was the deceased's intention to give the apartment to the plaintiff, the deceased clearly decided to adjust his Will so that both the plaintiff and Alison received monetary gifts and the plaintiff received a greater proportion (5%) than that shared between Alison and Karin (4%).
The picture that emerges of the deceased from the evidence of both the plaintiff and her witnesses and the defendants is that he was a sociable and charming man who obviously found satisfaction in his share trading and in making lists and notations as to how his estate might be distributed on his death. I am satisfied that the deceased was a careful man who enjoyed the freedom of adjusting the matters in his Wills over the years to reflect what he wanted by way of distribution of his estate. It is clear from the evidence that he changed his mind from time to time. However it is also clear that when he made a decision as to how he wished to distribute his estate he attended upon a solicitor and executed a new Will.
The fact that the Guide was found in the blue sleeve of the red folder is a factor to be taken into account, having regard to the fact that the copy Will was also in the blue sleeve. However when the analysis of what is in the Screed and the Guide and the various Wills over the years is carried out, it is clear that there is no proper basis for concluding that the deceased intended the Guide to be operative as his Will. The deceased carefully ensured that when he wished any entries in the Guide (or the Screed) to be converted into a provision in his Will he attended upon a solicitor and executed a new Will.
The plaintiff submitted that the deceased did not appear to sign or date any documents or notes or letters that he sent. It was submitted that the alterations and deletions in the photocopy of the Will with notations should be read as a revocation of that part of the Will that has been crossed out.
The notes that the deceased wrote about the new Will, extracted earlier, refer to "adjusting it for obvious reasons". One of the adjustments in relation to the deceased's cousin, Ms Fry, may fall into such a category. There is no evidence that would support a finding that the deceased intended to revoke his provision of 4% of his shareholdings to Alison and Karin. I am not satisfied that the evidence establishes that the deceased intended the photocopy of his Will with notations to operate as his Will.
I am not satisfied that either the copy Will with notations or the Guide were brought into existence with the intention that either would be or operate as the deceased's Will.

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Judgment (16 paragraphs)

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