Leslie v McDowell; Estate of Joyce Wilhelmina Commins

Supreme Court of NSW|2000-06-30|Before: Young J

CITATION : Leslie v McDowell; Estate of Joyce Wilhelmina Commins [2000] NSWSC 727 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 118714/98 HEARING DATE(S) : 30/06/2000 JUDGMENT DATE : 30 June 2000

Douglas Kevin Leslie (P) Norma Phyllis McDowell and Ian Wray Leslie (D1) PARTIES : Elizabeth Ann Cocks (D2) Kerril Ann Grun (D3) Wendy Hamilton (D4) JUDGMENT OF : Young J

G M Colman (P) COUNSEL : J Needham (D1 & 2) D R Pritchard (D3) D Fitzsimons (D4) Staunton & Thompson (P) Alderdice & Clarke (D1) SOLICITORS : Booth & Boorman (D2) Garland Hawthorn Brahe (D3) C R Fitzsimons (D4) CATCHWORDS : SUCCESSION [48]- Informal will- Draft written out before deceased took long journey by air- Whether intended only as stop gap- On balance, probate granted. LEGISLATION CITED : Wills Probate and Administration Act 1898, s 18A In the Estate of Masters (1994) 33 NSWLR 446 CASES CITED : Permanent Trustee Company Ltd v Milton (1996) 39 NSWLR 330 Public Trustee v Commins (Wray's case) - 19 June 1992 unreported Read v Chown (1929) 46 WN 154 DECISION : See para 50

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST YOUNG J FRIDAY 30 JUNE 2000

118714/98 - LESLIE v McDOWELL & ORS; THE ESTATE OF JOYCE WILHELMINA COMMINS

1 HIS HONOUR: This is an application under section 18A of the Wills Probate and Administration Act 1898 as amended, for a declaration that an informal document constitutes the last will of the late Joyce Wilhelmina Commins (the "deceased"). If that declaration is made then there will need to be a reference to the Registrar in Probate to complete the grant. 2 The deceased was one of six siblings, only one of whom, Norma McDowell, survived her. The plaintiff is a nephew of the deceased, being the son of the deceased's sister, Olive. He is the person named as executor in the document being propounded. Mr G Colman of counsel appeared for him. 3 Apart from the informal document, no other will that has any effect has been found amongst the property of the deceased. She had a will of 1961 which left all her property to her sister, Gwen Wray, who predeceased her. 4 The informal document is written on the reverse side of an envelope addressed to the deceased from the Cunard World Club. It has been analysed by Mr Anderson, a forensic document examiner. In Mr Anderson's affidavit, there is a copy of the document which has been highlighted in different colours to indicate three writing sessions at different times which went into creating the final document. 5 Mr Anderson has highlighted in green what appears to be the original text. He has highlighted in blue some additions made in a black ballpoint pen and highlighted in pink additions and alterations that were made in a blue ballpoint pen. In these reasons I will refer to the green part, the blue additions and the pink additions when necessary. 6 The informal document makes it clear that the deceased wished to leave the residue of her estate to her nephew, Kevin Leslie (the plaintiff), and her niece, Kerril Grun (the third defendant), for whom Mr Pritchard appears. The document scornfully leaves a 10 cent legacy to the deceased's surviving sister and ascribes a reason for this. There are various legacies to other persons. 7 The document also describes the principal assets of the deceased, her bank accounts and where the title deeds to her major properties are kept. 8 If the informal document is admitted to probate, the practical consequences of that will be that the nephew and niece, whom I have mentioned, take the whole estate, subject to certain small legacies. On the other hand, if the deceased died intestate the deceased's sister, Norma (one of the first defendants), for whom Ms Needham of counsel appears (she also appears for the other first defendant, Ian Wray Leslie and the second defendant) and the fourth defendant, who is Kerril Grun's sister, for whom Ms Fitzsimons appears, will also take a one-eighth share. 9 The question then is whether the informal document should be admitted to probate. Section 18A of the Wills Probate and Administration Act 1898 is as follows: "18A. (1) A document purporting to embody the testamentary intentions of 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 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 person." 10 All the counsel have been content to adopt the approach to questions that arise under that section which was adopted by Powell J in Public Trustee v Commins (Wray's case) (19 June 1992, unreported). His Honour says at pages 14 and 15 of the judgment: "...the issues which the Court is called upon (to decide) whenever the provisions of section 18A are invoked are, ultimately, questions of fact, those questions being:-

(1) is there a document? (2) does that document purport to record the testamentary intentions of the relevant deceased? (3) is the evidence which has been tendered such as to satisfy the Court that, at the time of the document being brought into existence, or at some later time, the relevant deceased, by some act, or words, evidenced her, or his, the [sic] intention that the document should, without more, constitute her, or his, will." 11 That case has particular significance in the instant matter because the estate involved was the estate of the present deceased's sister, Gwen Wray, and the then defendant was the present deceased herself. 12 It would seem the present deceased herself appeared in person before Powell J when the former litigation was listed for directions although she was represented at the final hearing by a solicitor. 13 She proffered an informal document which she had written for her sister. She lost the case because Powell J was not satisfied that the document was anything more than instructions for the change of a will. 14 The facts pertaining to the present case are that on 30 December 1994 the deceased wrote out the green part of the current document. The first two lines of the document read: "This is the last Will & Testament made by Joyce Wilhelmina Commins on this date 30th December 1994."

She has also then put the date after her signature at the end. 15 The evidence shows that the next day, 31 December 1994, the deceased departed Sydney by aeroplane for a New Year's flight over Antarctica, returning in the early morning of New Year's Day 1995. 16 It thus seems to be quite likely, bearing in mind the fact that she was then 87 years old and that there had been problems with flights over Antarctica, that the deceased thought that she should make a will. 17 However, she did not die until 5 August 1998 and in the intervening three and a half years she wrote letters to the plaintiff and others, and she also made alterations to the document of 30 December 1994 which gives some indication that the document was not intended to be a will. 18 The facts or factors which point in the direction of the document not being intended as a will fall mainly into four groups. I take these from para 12 of Mr Pritchard's written submissions which, if I might respectfully say so, are fairly accurate. 19 First, in her letter to the plaintiff of 18 October 1995 the deceased says "I will be appointing you executor". This gives an indication that the appointment of an executor has not yet been made. 20 Mr Pritchard submits that this is equally consistent with a person who has the belief that the appointment of an executor takes place on her death, but that submission probably just shows Mr Pritchard's ingenuity. 21 Secondly, the deceased at no stage informed the plaintiff of the existence of the document. This is rather significant because the deceased told the plaintiff virtually everything else. She gave him letters in her own hand which he could hand to her bank manager so he could take over. She paid for her funeral under a pre-paid funeral plan, and gave quite specific directions as to her funeral. She indicated where the deeds were yet she never ever gave a copy of the "will", if it be a will, to the plaintiff or informed him of the existence of the document or its contents. 22 Thirdly, there are the three different pens that were used, which shows that the document was added to from time to time, or altered. The document seems to have been altered as a result of the fact that the deceased closed one of her three bank accounts on 9 February 1995. The blue alterations show that the figure "3" before the words "Bank a/cs" was altered to "2" and the words "and State" referring to the Colonial State Bank were deleted. A couple of other alterations were made of a very minor nature including Mrs Grun's home address and the word "value" before a figure in line three. These alterations, one might think were made somewhere in 1995 as a result of a review of the document after the closure of that account. 23 There is, however, no indication as to when or why the pink alterations were made. There is some rewording of the document in the pink alterations. There is also the addition of two charities as beneficiaries for small legacies, some addresses written in, and the legacy to her sister Olive who died on 5 April 1997 increased from $1,000 to $2,000. Thus, whilst we know that 5 April 1997 is probably the date for blue alterations we do not know when the pink alterations were made. 24 Ms Needham says that this means the document was really just being used by the deceased as a working draft; one which she could alter from time to time and probably when it had progressed to the stage when it could be taken to a lawyer that is what would have happened, and that I should not regard the document as being any more than that. 25 The deceased did, of course, make a formal will in 1961 before her sister Gwen died. She also had had the experience of appearing in this Court on a section 18A application involving her sister Gwen's estate, and losing that case. 26 Mr Pritchard says that she was obviously a lady who learnt from that experience. She knew of the existence of section 18A and she knew that if it was properly complied with she could make an informal will. She did not fall into the trap that she had fallen into in making the informal will for her sister, Gwen. 27 Ms Needham, on the other hand, says that it is very difficult to make that inference from the evidence because the deceased's letter of 18 October 1995 suggests she may not have accepted the decision of Powell J. That letter, at the bottom of the first page says: "Norma didn't carry out Gwen's 'last wishes' in order - but for 'one word' against me - defend myself in Supreme Ct - never thought that would come about. 'TRUTH' doesn't always prove Right - so Norma I do not see." 28 I do not think that properly construed this can be said to be anything more than invective against Norma, rather than anything to do with the decision of the Court. 29 There is also in her letter to the plaintiff and his wife of 12 November 1995, an indication that the deceased had worked in a solicitor's office and the solicitor dealt improperly with clients' moneys and, accordingly, she wanted the plaintiff to be her executor. 30 However, in the correspondence the plaintiff kept saying to the deceased that she must make a will. For instance, in the letter of 4 May 1997 he said to the deceased that his solicitor has: "told me that there is absolutely nothing I can do unless there is a Will. The Estate would then be contested by the next of kin, and I do not wish to become involved with Norma in this matter. ... Joyce, I suggest you attend to this matter immediately." 31 That evoked a reply from the deceased. She said in her letter of 13 May 1997, after some reference to not attending a family funeral: "Guilty people won't face me - as in both instances. However one gets by somehow. You see three times rearranged my Will through passing away of family. Last one endeavouring to help Olive in her loneliness as it was evident to me. God relieved her of that ...". 32 The letter went on to remind the plaintiff that he had a list of where all the documents were placed but no mention of any will. I must confess, it is not clear to me that this letter necessarily refers to the document or even the 1961 will. 33 It would, it is submitted, be very strange if there had been a document which the deceased recognised as a will, for her not to have just told the executor that the document existed even if she did not give him a copy. 34 Fourthly, in the letter of 12 November 1995, which was the one in which she referred to the amoral solicitor, she said: "Helen and Kevin - re will, my valued solcr has passed away - since Gwen's passing a valid will has not been in existence - in this case she was only named ...".

35 This is relied on as being an acknowledgment by the deceased that she did not have a will a year after the document was made. 36 Mr Pritchard's answer to this is first that the statement was made 18 months prior to the deceased's recognition of the document as her last will in her letter to the plaintiff of 13 May 1997, and secondly, that the statement was formally correct in that the document was not executed in accordance with the Wills, Probate and Administration Act. 37 On the other side, it is put that although there were hosts of pieces of paper in the deceased's home, the document was found together with the funeral arrangements and other important documents on a table in an accessible place in the deceased's unit, not covered with any dust. It would appear, accordingly, that it was left there so that it would be available with the other documents of importance when the deceased died. This would not have been the case if it had been a document which had been meant only to cover the voyage to Antarctica, or was some sort of draft eventually to be sent to a solicitor. I should note that the deceased was found by the police in her unit in a state where they had to take her to hospital. She lived alone. So it is not clear whether she had put these documents aside or whether they were put there at a time just before she failed, or whether they had been there for some time, despite the lack of dust. 38 Next, it is put that the change of legacy to Olive has been initialled. Mr Colman made the telling point that you do not initial alterations to a draft. 39 Thirdly, it would seem that the deceased took some care with the document. She started off describing it as a will, she subscribed it at the end and then on at least two occasions she has maintained its accuracy. 40 There are, of course, things that are inexplicable. One is the reference in the deceased's letter of 13 May 1997 to having changed her will three times because of family deaths to which I have already referred. 41 One can, as Mr Pritchard did, find some explanations for each of the four substantial points that are raised against the document. Essentially, the question for decision is a question of fact. In almost all of these cases there is evidence going both ways because if there were not, people would not waste time going to court unless they have some obsession with the righteousness of their cause. 42 I have been referred by counsel to the decision of Powell J in Wray's case and also to the decision of the Judges of the Court of Appeal in In the Estate of Masters (1994) 33 NSWLR 446, and the judgment of the present Chief Judge in Equity in Permanent Trustee Company Limited v Milton (1996) 39 NSWLR 330. 43 Milton's case is significant because it discusses "stop gap" wills. One theory that was canvassed during argument in this case was that the "will" was made as a stop gap for the trip to Antarctica and was not intended to operate apart from that. There may be some very special cases where a stop gap will ceases to have operation, such as a stop gap until the deceased has an opportunity to see a solicitor, and he has in fact seen a solicitor on many occasions (see Milton's case at page 335). However, generally speaking, if one makes a will for a particular reason, that will remains a person's will until that person revokes it in a proper way, or by way of informal revocation under section 18A. 44 Thus, if the facts show that on 30 December 1994 the green part of the document was a document which was made by the deceased as her last will, then unless the circumstances show that it is in one of the special categories, it really matters not whether the deceased later forgot that she had made it or intended to make another document, or even treated the document as an aide memoire if she ever saw a solicitor. 45 I am of the view that the circumstances show that on 30 December 1994 the green part of the document was intended to be the deceased's will. I cannot see how it could have been created for any other purpose on the material that I have. It fits in with the trip to Antarctica. It shows that the deceased wished to leave her property to those who appear to be the only nephew and niece who actually visited her. It reflects the deceased's distaste of her sister's attitude in past inheritances. It appoints an executor and deals with flowers on the grave and, in my view, quite clearly was meant to operate should anything happen on the way to Antarctica or back. 46 I do not consider that, on the facts of this case, the document should be held to be only a stop gap will. The deceased's whole attitude to the document shows that to be the case. 47 The document was altered after the Antarctica trip, but the alterations, apart from the two minor legacies, were to update or to expand the legacy to Olive. I do not think that any of that really affects the deceased's intention, but, even if it did, it would not go to revocation. 48 The more likely scenario therefore is that the document, including the blue and pink alterations, was intended to be the deceased's will. 49 I realise that what I have listed as the points against tell against the document being considered by the deceased as her will in 1998. However once the document operated as a will, it could only cease to have effect if revoked and she never formally revoked it. In any event, I do not consider that the points raised against the document are sufficiently strong, when looked at in the overall facts of this case, and particularly the points in favour of the document which I have stressed earlier, to make me come to any conclusion other than on the balance of probabilities that the test laid down by Powell J in Wray's case has been made out. 50 The orders are:

(1) I make declaration 1 in the summons and refer the document to the Registrar in Probate to complete the grant.

(2) The costs of the plaintiff to be paid out of the estate.

(3) The costs of the defendants to be paid out of the estate but only one set of costs is to be allowed between the first, second and fourth defendants.

(4) But in addition to the costs of the suit each individual solicitor is also to be allowed out of the estate the costs of properly taking instructions and considering how the parties should be represented before the Court. See Read v Chown (1929) 46 WN 154, 156 where the taxing master was instructed what to do about the costs of such instructions.

(5) The exhibits other than Exhibit PX01 (which is the document which has to go to the Probate Office) may be returned.

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