In the Estate of the late Ronald Robert Irvine; Evans v Gibbs

Supreme Court of NSW|2015-04-15|Before: Stevenson J

Solicitors: Peter Evans & Associates (Plaintiff) Patey & Murphy Solicitors (Defendant) File Number(s): SC 2013/380073

Introduction

These proceedings concern the estate of the late Ronald Robert Irvine ("the deceased").
The deceased died on 11 December 2013 at the age of 67 years. The deceased never married and had no children.
The deceased was born right handed. However, in 1985 he suffered severe injuries in a work place accident, losing his right arm, left leg and right leg below the knee.
On 1 February 1994 the deceased made a will ("the 1994 Will").
At some time during 2012, the deceased wrote over five pages in a red covered notebook. The issue in these proceedings is whether, for the purposes of s 8 of the Succession Act 2006 (NSW), the deceased intended what he wrote in his red notebook to also be his will, thus revoking the 1994 Will. I will refer to the five pages as the "Informal Will".

The Informal Will

The Informal Will was in the handwriting of the deceased and constitutes the second to sixth pages of writing the red notebook.
Those pages read: "Will of Ronald Robert Irvine All the little bells, letter openers I-Mac computer I leave to my sister Margaret Gibbs The decorative knives, I-pad, I-pod, videos and books that are wanted I leave to Sarah Ingham my great niece. The Argo I leave to my brother in law Graham Gibbs Rosehill and Kanya are to be sold The .300 Winchester Magnum Rifle with all relevant equipment (loading dies, cases, primers and projectiles) I leave to Ross Taylor of the Tamworth Peel Valley Rifle Club. The Berreta Modle [sic] 87 target pistol I leave to Tamworth Pistol Club plus all .22 rimfire ammunition. All other firearms to be sold through Tamworth Firearms. The procedds [sic: proceeds] of all sales are to be divided equally between my sisters [sic] four daughters except for $100.000 to be set up in a trust fund for Sarah Ingham until she is the age of 30 years. $100.000 also to my sister Margaret Gibbs Rosehill is currently for sale at $375.000 which I do not want to reduce. Kanya needs some maintenance before being sold and it should bring $375.000 to $400.000. If Margaret wants the lawnmower and chainsaw, brushcutter etc she can have them also. I know it is a big ask but I wish for Margaret to be executor. What is in the house (Kanya) and Grandma's I leave to you all to sort out what you want. Note: firearm equipment means loading dies. See Jim Woods at Tamworth Firearms about removal of ammunition and firearms etc. I know I leave a mess for you which I am sorry. You will also have to cancel credit card, internet which can be done by phone or email on the I-Mac which needs 30 days notice email password XXXX My saving and pension account is the Greater Mercantile Building Society Tamworth Branch."
The note is in the handwriting of the deceased but not signed by him.
On the first page of the red notebook are notes over nine lines which appear to record a "standard pistol score" the deceased achieved on 26 February 2012 (the terms of the Informal Will suggest the deceased had an interest in target shooting) and what appears to be a reference to an appointment with a Dr Colin Tang for radiation therapy at the "Mater" on "Thurs 2nd 3 pm". I discuss this below at [50].
The only other writing in the red notebook appears on the second page after the Informal Will (evidently a doctor's name and telephone number) and on the last four pages (comprising some diagrams that the deceased made evidently related to a weaving hobby he enjoyed, and a reference to "Myst Tower" and a date in 1984, about which there is no explanation in the evidence). The remaining several hundred pages in the red notebook are blank.
It is common ground that the Informal Will postdates the 1994 Will. It refers to the "Argo" (an all-terrain eight wheel vehicle) which the deceased purchased in 2000.
An inventory of property annexed to one of Mr Evans's affidavits as executor shows that the deceased had the following property when he died: "Description Estimated or Known Value Real Estate Lot 291 in DP 755335 - Known as 'Kanya' 795 Barry Road Hanging Rock $330,000.00 Lot 271 in DP 755335 - Known as 'Rosehill' 1020 Barry Road Hanging Rock $220,000.00 Investments MLC Navigator Retirement Plan $72,030.90 Gun Collection - value not known estimated $10,000.00 Moneys on Deposit Greater Building Society Account Number 713767832 $11,137.77 Motor Vehicle Mercedes Benz Vito $80,000.00 Interest in Deceased Persons Estate Estate of the Late Doris Jean Gibbs (approx.) $175,000.00 TOTAL: $898,168.67"

At the date of his death, the deceased had sundry debtors in the sum of $4,778.76.
It is common ground that if the Informal Will takes effect as the deceased's last will, it does not purport to dispose of all of the deceased's assets. The result is that the residue of the deceased's estate would pass on intestacy to Mrs Gibbs (as the deceased's sole surviving sibling) as to half, and to the three children of the deceased's late brother, Colin, as to the balance (1/6th each). Mr Townsend did not suggest that this fact, alone, was a factor relevant to the question of whether the deceased intended the Informal Will to be his will.
In those circumstances, the persons entitled to share in the deceased's estate under the Informal Will would, in the events that have happened, be as follows: Name Share Ross Taylor .300 Winchester magnum rifle and related equipment Tamworth Pistol Club Beretta model 87 target pistol and all .22 rimfire ammunition Margaret Ann Gibbs (sister) iMac Computer, $100,000 from proceeds of sale of realty, lawnmower, chainsaw, brush cutter, ½ residue (on intestacy) Sarah Ingham (great-niece) Decorative knives, iPad, iPod, videos and books, $100,000 from proceeds of sale of realty. Graham Gibbs (brother in law) Argo Susan Gibbs (niece) 25% proceeds of sale of realty (after deduction of $200,000) Louise Gibbs (niece) 25% proceeds of sale of realty (after deduction of $200,000) Michelle Gibbs (niece) 25% proceeds of sale of realty (after deduction of $200,000) Nerida Sharp (in the Will called Nerida Gibbs) (niece) 255 proceeds of sale of realty (after deduction of $200,000) Nicole Milgate (niece) 1/6th residue (on intestacy) Simone Irvine (niece) 1/6th residue (on intestacy) Kirsten Nelson (in the Will called Kirsten Irvine) (niece) 1/6th residue (on intestacy)

Section 8 of the Succession Act and its interpretation

Section 8 of the Succession Act is, relevantly, in the following terms: "(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… (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). (5) This section applies to a document whether it came into existence within or outside the State."
In Estate of Masters; Hill v Plumber (1994) 33 NSWLR 446, the Court of Appeal dealt with the predecessor to s 8 of the Succession Act (s 18A of the Wills, Probate and Administration Act 1898 (NSW)). It is common ground that there is no material difference between the wording of the two sections.
Kirby P said the section "clearly requires" that three characteristics be demonstrated "by a propounded document which otherwise lacks the necessary formalities of a will", namely: "(i) It must be in documentary form; (ii) It must embody the testamentary intentions of the deceased; and (iii) Although the document has not been executed in accordance with the statutory formality, it must nonetheless constitute 'a will of the deceased person'." (at 449)
Kirby P said that the distinction to be drawn was: "…between a generalised homily as to testamentary intentions…and a document which, although falling short on formalities, sufficiently evidences the fact that by it the deceased intended to govern the disposition of his or her properly after death." (at 452)
Priestley JA said at 466: "Powell J [the trial judge] stated that in the application of this section the questions arising are essentially questions of fact, the particular questions of fact being whether there is a document, whether that document purports to record the testamentary intentions of the deceased and whether it was the intention of the deceased that the document should operate as his or her will. This seems to me to be an appropriate way of understanding the section."
In Hatsatouris v Hatsatouris [2001] NSWCA 408, Powell JA (with whom Priestley and Stein JJA agreed) said at [56] (repeating a view he had expressed many times as a trial judge): "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?" (emphasis in original)
Recently, doubt has been expressed as to whether Powell JA's statement that it must be shown that the deceased intended that the document in question, "without more", be his or her will adds anything material to the language used in s 8(2)(a) of the Succession Act: for example Hallen J in Estate of Floris Verzijden; Newman v Brinkgreve [2013] NSWSC 371 at [95] and Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 at [260]), and Lindsay J in Estate Moran; Teasel v Hooke [2014] NSWSC 1839 at [28].
In the latter case, Lindsay J said at [28]: "What [the words in s 8(2)(a)] do is direct attention to a consideration of whether the particular document was intended to operate as a will: to have present operation as such, not to serve merely as a draft, diary note or the like."
I agree with those observations. The relevant enquiry is whether the deceased intended that the document in question itself, and not some later iteration of it then within the contemplation of the deceased, would "form" (that is to say "be") the deceased's will.

This case - the first two requirements

It is common ground that the first two of the requirements identified by Kirby P and Powell JA are satisfied.
There is a document. The document plainly purports to embody the deceased's testamentary intentions. Its opening words are "Will of Ronald Robert Irvine". It uses the expression "I leave" in connection with specific bequests (for example, "the Argo I leave to my brother in law Graham Gibbs"; the "Rifle with all relevant equipment…I leave to Ross Taylor"). It gives directions as to the disposition of property (for example, "Rosehill and Kanya are to be sold"). It appoints Mrs Gibbs as executrix ("I know it is a big ask but I wish for Margaret to be executor"). It provides directions for the distribution of the proceeds of the sale of assets ("the procedds [sic: proceeds] of all sales are to be divided equally between my sisters [sic] four daughters except for $100.000 to be set up in a trust fund for Sarah Ingham until she is the age 30 years").

The third requirement

The third requirement is that the deceased intended the Informal Will to form his will.
The language used by the deceased in the Informal Will points, strongly in my opinion, to the conclusion that he intended it to be his will, and not merely a draft, or an aide memoire, or a document to be later given to a solicitor for engrossment as a formal will. In addition to the matters set out at [31] above, the deceased apologised for leaving a "mess", gave directions for the cancellation of his credit card and internet access (including revealing his password) and identified the location of his saving and pension accounts.
There are also objective circumstances, to which by s 8(3) of the Succession Act I may have regard, which point to the conclusion that the deceased intended the Informal Will to form his will.
First, the red notebook was found by Mrs Gibbs in the following circumstances: "I saw that the deceased always used a particular soft bag when he came to visit. He used that bag to carry clothes and other personal items. When he went into the hospital for chemotherapy he left the bag at home and I saw that he took a backpack instead. … The deceased died on 11 December 2013 at Tamworth Hospital. As I had a key to his house I went there after his death to organise his personal possessions. The soft bag was left in his bedroom at Hanging Rock with items of clothing and prescription boxes. I found the soft bag when I was cleaning up after his death and in the bag I found a red notebook…together with clothes and empty prescription boxes."
Mrs Gibbs said that the deceased had many notebooks, and she found many such items at the deceased's house after he died. But the deceased kept the red notebook, only, in the soft bag he carried with him. That evidence suggests that the deceased regarded the red notebook, and I would infer the Informal Will which is by far the most significant note within it, as being something of particular importance such that he usually carried it with him wherever he went. It seems unlikely that the deceased would behave this way if he saw his note as merely being a draft or something similar.
Second, as I have mentioned, the Informal Will states that $100,000 was to be "set up in a trust fund" for the deceased's great-niece, and Mrs Gibbs's granddaughter, Ms Sarah Ingham.
Ms Ingham gave this evidence: "Following the separation of my parents in January 1993 I spent a considerable amount of time with the deceased prior to his death. He became a father figure to me and helped me significantly financially, including the paying of bills when I was short of money and purchasing items for me. … In approximately June/July 2012 when I was visiting the deceased at the John Hunter Hospital we discussed what was going to happen to his estate and what he wanted to do when he got out of hospital. During such meeting the deceased said to me words to the effect that: 'There is a trust fund set up for you'."
That evidence suggests that, by the time of this conversation, not only had the deceased written the Informal Will, but that he thought its effect was to "set up" a trust fund for Ms Ingham. That points to the conclusion that the deceased did not regard the Informal Will as a mere draft or note.
Ms Ingham's evidence is consistent with Mrs Gibbs's (admittedly temporally imprecise) recollection that, "within a year or two prior to his death", the deceased said to her "I want to leave a trust fund for Sarah".
Third, the effect of the Informal Will, if valid as the deceased's will, is to remove the daughters of the deceased's late brother Colin (Ms Milgate, Ms Irvine and Ms Nelson) as beneficiaries, otherwise than to the extent of an intestacy.
There is evidence to suggest that this is what the deceased intended to do.
Mrs Gibbs said that Ms Milgate, Ms Irvine and Ms Nelson did not visit the deceased and that the deceased said to her, on more than one occasion: "They've never once rung me to ask how I am or see whether they could do anything for me".
Mr Townsend accepted in oral submissions that this was a factor pointing to the probability that the deceased intended the Informal Will to be his will and to thereby exclude Ms Milgate, Ms Irvine and Ms Nelson as beneficiaries of his estate.
As to when the deceased created the Informal Will, Mrs Gibbs said that on 24 July 2012, a short time after the deceased had been diagnosed with pancreatic cancer and was informed he needed surgery, he said to her "I should do something about my Will". In response to Mrs Gibbs's remark that "I thought you had a Will", he said "No I don't".
That exchange suggests that the deceased had then forgotten the 1994 Will. It also suggests that the deceased had not then written the Informal Will.
I do not find that to be inconsistent with what I have said concerning Ms Ingham's recollection. Ms Ingham placed her conversation with the deceased as being in "approximately June/July 2012" at the John Hunter Hospital. Mrs Gibbs gave evidence that the deceased was admitted to the John Hunter Hospital in approximately June 2012 and placed her 24 July 2012 conversation with him at that hospital. Mrs Gibbs said the deceased was discharged from the John Hunter Hospital on 30 July 2012.
In those circumstances, it seems likely that the deceased wrote the Informal Will at the hospital sometime between 24 and 30 July 2012, after his conversation with Mrs Gibbs and before his conversation with Ms Ingham.
In oral submissions, both counsel accepted that this conclusion accorded with the probabilities.
I do not see the entries on the first page of the red notebook (see [14] above) as casting any light on the question of when the deceased created the Informal Will. As I have mentioned, the first entry is dated 26 February 2012 and refers to a "standard pistol score" that the deceased evidently achieved that day. Immediately following is what appears to be a reference to an appointment with a Dr Tang on "Thurs 2nd" for "radiation" at the "Mater". The next two occasions after 26 February 2012 when the "2nd" of the month was a Thursday were 2 August 2012 and 2 May 2013. Mrs Gibbs gave evidence that in "early 2013" the deceased had radiation treatment at the Mater Hospital in Newcastle "for approximately six weeks". That suggests that the deceased's note of an appointment with Dr Tang on "Thurs 2nd" may have referred to an appointment on 2 May 2013. That suggests, in turn, that the deceased did not make his entries in the red notebook in the order in which they appear.
Mr Evans gave evidence that, following the death of the deceased's mother in late 2013, he received an enquiry from the solicitors acting for her estate as to whether he held the deceased's will. Mr Evans retrieved the 1994 Will from his strongroom and then had the following telephone conversation with the deceased: Mr Evans: "Ron, its Peter Evans. It's a long time since we've spoken. I have had an enquiry from my old law firm about your Will and I thought I should check with you about it. Have you been in touch with them?" The deceased: "It was probably my sister". Mr Evans: "I have your Will in front of me".
Mr Evans said he then summarised to the deceased the terms of the 1994 Will and the conversation continued: Mr Evans: "Do you wish to make any changes?" The deceased: "I have not been well but I think that the Will is acceptable as it is."
Mr Evans said: "The deceased did not say anything indicating any desire on his part to make a new will. He seemed uninterested in the topic. He sounded unwell and lacking energy. He sounded a bit puffed. … The deceased did not mention: (a) any other will, or (b) a red notebook, or (c) having made any other will since the one I made for him in 1994."
That evidence is, on the face of it, inconsistent with the deceased intending that the Informal Will be his final will.
However, as Mr Evans noted, the deceased sounded unwell and lacking in energy. Mrs Gibbs's evidence establishes that the deceased was, in fact, in very poor health at this time. He died a little over a month later.
Mr Evans's call to the deceased was unsolicited and, I infer, unexpected by the deceased. I think it probable that the deceased decided not to engage with Mr Evans and that his remark "the Will is acceptable as it is" meant no more than that.
It is true, as Mr Townsend submitted, that the deceased could very easily have signed the Informal Will, to make clear that he regarded it as a testamentary disposition. Mr Townsend submitted that "signature is a usual and commonly understood means of indicating an intention to give effect to a written document".
However, as Mr Marshall pointed out, the deceased was not a lawyer or a businessman; he trained and worked as a painter and decorator before his 1985 injuries. He was born right handed but was obliged to use his left hand following his accident. Using his non-dominant hand (admittedly some 25 years after losing his dominant hand) he handwrote, neatly and with some structure, a document which bespeaks an intention to make a will, rather than a note which "idly put present thoughts down".

Conclusion

Mr Townsend submitted that this is a "borderline" case. I do not find it so. I am comfortably satisfied that the deceased intended that the Informal Will would operate, "without more", as his will.
I propose to make a declaration and order to the effect sought by Mrs Gibbs in the cross-summons and will now hear submissions as to what further orders should be made to finalise the deceased's estate.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2015

Wills, Probate and Administration Act 1898(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (5)

Cited By (2)