Hawkes v Wilkie

Factual background 1Florence Elsie Smith (the deceased) died on 30 January 2011 at the age of 94. Her estate consists largely of cash which, including the amount in dispute in this case, totals approximately $950,000. 2By her will made on 4 February 2009, the deceased appointed Ms Jennifer Hawkes, the first plaintiff, and Ms Carol Franz, the second plaintiff, as her executors. The deceased gave each of her executors the sum of $2,000 in place of commission. The will made provision for the deceased's husband. However, he died on 26 August 2010. In those circumstances, under the terms of the will, the deceased left the sum of $2,000 to each of Ms Hawkes, Mr Warren Garwood (the fifth defendant) and Mr Graham Garwood (the sixth defendant) and the sum of $5,000 to each of Ms Suzanne Merritt (the third defendant) and Mr John Fisher-Smith (the fourth defendant). The remainder of the deceased's estate is to be divided equally between her nieces, Ms Vilma Wilkie (the first defendant) and Ms Loralee Stotts (the second defendant). Ms Merritt and Mr Fisher-Smith are the children of the deceased's husband. Ms Hawkes and Messrs Warren and Graham Garwood are siblings. They lived next door to the deceased and were close friends of hers over many years. 3At the same time as the deceased made her will, she appointed Ms Hawkes and Ms Franz her attorneys and, on 28 July 2009, her enduring guardians. 4The deceased became unwell in February 2010 and was admitted to hospital for approximately 17 weeks. She and her husband were then admitted to the Miranda Aged Care Facility. The deceased's home in Cronulla, in which the deceased had lived for much of her life, was sold for approximately $970,000 in order to pay the aged care facility's bond and fees. 5On 22 January 2011, Ms Hawkes visited the deceased at the Miranda nursing home. During the course of that visit, Ms Hawkes discussed with the deceased what the deceased wanted done with various items of personal property which were then stored at Ms Hawkes' home. Following that discussion, Ms Hawkes asked the deceased whether she was happy with her will. Ms Hawkes gives the following account of the conversation in cross-examination: I had gone into the nursing home that day and I have got numerous items of Elsie's at home which were from the sale of the house and I just wanted to make sure that [sic] I was going to do - asked her what she wanted me to do with those items because I have got quite a few items at home, and then I asked her was she happy with her will. She said "No". I said "Do you want to make a new will?" She said "No". I asked her what she wanted to do. She said "I want to give you $50,000 each". I asked her "Who"? She said she wanted to give it to Graham, Warren, Jennifer, John and Suzanne. And she said to me "Take it out of my bank account and keep it". I said "You don't have $300,000 or $250,000 in cash in your bank account, you have it in term deposit". And she said "Well, take it from that". I said "If I take it from that, then there is $50,000 left over". And she said "Use it is for my funeral, whatever, and the rest for Vilma and Loralee". 6Ms Hawkes was not comfortable with drawing such a large sum from the deceased's term deposits. Consequently, she spoke to Ms Franz about the conversation she had had with the deceased. 7Ms Franz was in New Zealand at the time. She gives evidence (in cross-examination) that following the conversation she had with Ms Hawkes, she rang the deceased on or about 26 January 2011 and had a conversation with her to the following effect: Obviously I first asked how she was and then I said to her "Jenny has spoken to me about what you want to do. You tell me Elsie what you want to do with this money?" And then she said "Well I want" - she agreed it was the $300,000 to be taken out, then she said "That is to be divided amongst Suzanne and John and Jenny and your [sic] two brothers, and there is another $50,000, use whatever you need for the funeral and expenses and if there is anything else that comes up and the rest is to go to Loralee and Vilma". It is unclear whether the reference to "your" rather than "her" is a transcription error or an error made by Ms Franz or by the deceased. However, Ms Franz was not questioned about the reference to "your two brothers". In those circumstances, in my opinion, it is likely to have been a transcription error. I do not think it is evidence that the deceased was confused about the relationship between the intended beneficiaries of the proposed trust or to whom she was speaking. 8Following her conversation with the deceased, Ms Franz reported back to Ms Hawkes in which she said that the deceased had confirmed to her the instructions she had given to Ms Hawkes. 9Ms Hawkes then withdrew the amount of $300,000 from the deceased's bank and deposited it into her own bank account. The deceased died before the amount held by Ms Hawkes could be distributed. 10Following the deceased's death, Ms Hawkes used approximately $7,000 to pay the deceased's funeral expenses and has retained an amount of $3,000 to pay for the deceased's headstone. The balance of the $300,000 has been paid into the trust account for the deceased's estate.