In the Estate of Masters (dec'd); Hill v Plummer, Plummer v Hill

Judgment 1HIS HONOUR: These proceedings concern the estate of Emily Puruto who died on 23 September 2009 aged 51. Her gross estate has been estimated at $25,921.14 and the net estate after funeral expenses is $16,150.64. 2On 7 February 2012 the principal Registrar made a declaration that the court is not satisfied that the deceased intended the document dated 10 September 2009 to form her will. The registrar was exercising power under Part 78 rule 5(1)(g1) of the Supreme Court Rules to make a declaration whether the court was satisfied under section 8 of the Succession Act. The registrar had power to make that declaration as the estate does not exceed $30,000. 3This is an application under rule 49.19 of the Uniform Civil Procedure Rules to review the registrar's decision. 4The plaintiff was the sister of the deceased. She seeks a declaration that a document signed by the deceased and dated 10 September 2009 entitled "- PERSONAL PROFILE - CONFIDENTIAL INFORMATION FOR WILL PREPARATION" forms the deceased's will. 5It appears that the deceased had five children born between 1975 and 1985. She was estranged from her husband. Her husband survived her, but he died on 27 March 2011. 6In 2000 the deceased assumed guardianship of a niece called Daijah Jontel Ahsin who had been born on 30 January 2000. She raised her niece as her own child. 7On 5 September 2009 the deceased's mother, Mrs Poitirere Ahsin, received a call from her brother, Mr Tangitamaine Tuaneiti, that her daughter had collapsed and had been taken to Westmead Hospital. Mrs Ahsin resides in Auckland. She travelled to Sydney on 9 September 2009. Her daughter was discharged from hospital but Mrs Ahsin was told that there was nothing that could be done for her at the time. 8Her daughter knew that she was terminally ill. After they returned home a conversation took place between them to the following effect: "6. After she returned home I asked her: 'What about the funeral?' (or words to that effect). 7. Emily said words to the following effect: 'Mum, don't worry about my expenses. It's all taken care of. But I want Daijah to have that money that is in the Bank.' 8. I said to Emily words to the following effect: 'Well you had better see that you have a Will, so everything is in place.' 9. Emily said words to the following effect: 'I don't have a Will'. I then spoke with my brother, Tangitamaine." 9Mr Tangitamaine Tuaineiti is a retired pastor of the Seventh Day Adventist Church. On 10 September 2009 he and Pastor Rodney Woods from that church arrived at the deceased's home and they saw her alone. Pastor Woods brought his laptop computer which incorporated a printer. He deposed: "6. The other persons, apart from Emily Puruto and Pastor Tuaineiti, then left the room. Emily was seated on the lounge. Emily was able to answer my questions with regard to her assets, liabilities and moral and legal obligations to her family as I put to her. Despite explaining to Emily the implications of the Succession Act 2006 (NSW) she was determined that Daijah become the sole beneficiary in the Estate as she was in the greatest need. I typed her instructions into my computer. The computer generated the document [entitled]: Personal Profile Confidential Information for Will Preparation - 10/09/2009." 10The document in question is a template obviously intended for the purpose of obtaining information or instructions from which a will can be prepared. So much is apparent from the heading of the document and also from its format. On the first page of the document there is provision for information to be inserted in respect of both "Principal" and "Spouse". 11Mrs Emily Puruto's details were inserted under the column "Principal". This included her name, telephone number, address, occupation and of her having been separated in 1996 from her husband. The next section of the document was headed "PRINCIPAL EXECUTOR/s". Under this heading Pastor Woods inserted the following: "I appoint as my Executor and Trustee and referred to as my Trustee: (1) My sister TEHOO TUAKE of [xxxx xxxxxx xxxxx], Otara, Aukland [sic], New Zealand, (secretarial supervisor). (2) sub my uncle TANGITAMAINE TUAINEITI of [xx xxxxxx xxxxxxx], Guildford, New South Wales, (retired minister of religion)." 12The next section was headed "SPOUSE'S EXECUTOR/s". Under that heading there appears the sentence "I appoint as my Executor and Trustee and referred to as my Trustee." Nothing further has been added. 13The next section is headed "CHILDREN". Here there were inserted the names and dates of birth of the deceased's five children. Also included was "Daijah (feeding child) daughter of brother" and her date of birth of 30 January 2000. Daijah was described as the deceased's daughter. 14The next section was headed "GUARDIANSHIP", but this was not completed. 15The next section was headed "ASSETS & LIABILITIES". This was completed as was a summary of net worth. The only assets referred to were bank accounts said to have a value of $30,000 and other assets being a motor vehicle of $2,000. 16There then followed a heading "INSTRUCTIONS FOR THE WILL". 17Immediately under that was another heading "DISPOSITION OF THE ESTATE". Underneath that there was inserted the following: "whole estate to my daughter DAIJAH JONTEL AHSIN. (has taken Daijah on as own daughter from birth)". 18The next heading was "FUNERAL INSTRUCTIONS". This was completed as follows: "Buried - SDA minister presiding". 19The next heading was "OTHER MATTERS", and after this on the last page of the document there was inserted the following paragraph in larger type: "Other children are all working. testator advised them that she would include them in estate if they stayed in school. They have not. Therefore she has left them out. I have explained to her her legal obligations in the context of the [S]uccession [A]ct NSW and that should another child of hers make a claim against her estate it is likely to be upheld in a court of law. She is still determined to have her Will drafted as she has stated to me. I advised her that I would need her to sign a document stating that these matters have been explained to her and that although with this understanding she is still wanting her will drafted with Daijah taking the whole estate. Daijah is of greatest financial need." 20There then followed in smaller type what I infer is a pre-formatted part of the document. It states: "Please incorporate the above Instructions in a Will which I understand will be prepared under the supervision of a solicitor. I understand also that: