Macey v Finch; Estate of Donald Munro

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

111565/02 - MACEY v FINCH; ESTATE OF DONALD MUNRO JUDGMENT 1 HIS HONOUR: Donald Munro died unexpectedly on 16 August 2001. Earlier that day Mr Munro had attended the office of Mr Roger Schenko, solicitor, of Berala for the purpose of making his will. 2 Mr Munro attended with his nephews, Kenneth Arthur Macey, the present plaintiff, and Larry Raymond Macey, who died on 1 April 2002. The evidence of what happened at Mr Schenko's office is provided by Mr Schenko and the plaintiff in their respective affidavits. They differ slightly. There was no cross-examination and I think that where there is a difference I should prefer the evidence of the independent solicitor, rather than the plaintiff, who has an interest. 3 However, the differences are not that marked. Taking the facts from Mr Schenko's affidavit, he said he asked Mr Munro his full name, address and occupation and then he said: (I will use "RS" for Mr Schenko and "DM" for the testator). "RS: Who do you want to make the Executors?

DM: These two. (Pointing to Messrs Kenneth and Larry Macey).

RS: Do you want to put in your Will that they will bury you?

RS: Do you want them to place a headstone on your grave?

DM: I want to give it to the boys." 4 Ken Macey then intervened giving the names of the five nephews named Macey. RS then said:

"If any of these persons die what would you like to do with their share?

RS: What happens if Ken or Larry should die before you, do you want the survivor to be the sole Executor?

DM: Only one sister, she is living in Queensland, I have not seen her for forty (40) years. I don't know where she is, she has had nothing to do with me." 5 Mr Schenko wrote these instructions on a piece of paper. Mr Schenko then read out the contents of the notes using words to the following effect:

"You have appointed these two as Executors, you want them to pay your funeral expenses and put a headstone over your grave and after this is done you would like the rest to be divided up between Ken, Larry, Lance, Stephen and Darryl. If any of these should die, then you would like to give their share to their children.

RS: I will type up a copy of the Will and send it to you to see if it is all right. When you receive it you will need to make an appointment so you can come in and sign it. If you want any changes, ring me and we will keep it on the computer, so when you come in next time it is all there that you want." 6 The solicitor then proceeded to take instructions from Larry Macey for his will and the three gentlemen left the office shortly afterward. 7 Mr Munro died suddenly later that day. It does not appear that anyone contemplated earlier in the day that that was likely to happen. 8 Mr Macey has filed for probate of those notes, claiming that they constitute a will under s 18A of the Wills Probate and Administration Act, 1898 (as amended). In his application he claims that the estate had a net value of approximately $98,000. 9 Section 18A(1) of the Act says that: "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 ... if the Court is satisfied that the deceased person intended the document to constitute the person's will ... ". 10 In Re Masters (1994) 33 NSWLR 446, the Court of Appeal construed s 18A as requiring proof of three matters. Putting together what Kirby P said at 449, what Mahoney JA said at 455 and what Powell J had said at first instance, those elements are as follows:

2. The document must purport to state the deceased's intentions as to how, voluntarily, his property is to pass after his death; and

3. The document must constitute the will of the deceased, that is, it is not to operate during his or her life but must be intended to constitute the deceased's will.

See also Pahlow-Silady v Siladi Court of Appeal, 22 April 1997 unreported, particularly per Mason P at p 809. 11 In the instant case we are concerned with the third aspect. 12 This has been fleshed out in other cases. In Re Kencalo 23 October 1991, unreported, Powell J said at p 10 as to the third proposition: "The evidence - whether it be the form, or contents of the document itself, or evidence as to the circumstances in which the document came into being - must be such as to satisfy the Court that, either at the time of the document being brought into being, the relevant deceased, by some act, or words, demonstrated that it was his, or her, then intention that the document in question should, without more, operate as his, or her, Will."

His Honour underlined "without more". 13 Ten years later, in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56] his Honour said almost the same thing, and, indeed, he has said it on many other occasions as well. 14 In Re Springfield (1991) 23 NSWLR 535, 539-540, Powell J said: "… the ultimate inquiry remains, whether the document itself, the circumstances regarding its contents ... and other relevant circumstances ... lead to the conclusion that the relevant deceased intended the subject document to constitute his will; "… that, while each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will." 15 His Honour then proceeded at p 540 to say that he would find it very difficult indeed to be satisfied that a document which had not been seen, read or written, or in some way authenticated, or adopted by the deceased could qualify. 16 Mr Cameron, who appeared for the plaintiff, referred me to my decision in Re Sharman [1999] NSWSC 709. That does not appear to be a particularly unique case and I need not stay to deal with it further. 17 However, it does refer to the decision of the Prerogative Court in 1832 of Theakston v Marson (1832) 4 Hagg Ecc 290; 162 ER 1452. That case involved a document before the Wills Act of 1837, which had been written down in point form by a clergyman and allegedly approved by the deceased before his death. The judge of the Prerogative Court, Sir John Nicholl, spent quite some time considering how far he should accept that the document written by the clergyman was a document intended by the deceased to be his last will. He says at 297 (1455): … looking at the instrument which I have already read as an unfinished and imperfect paper, written in the manner stated in the plea, there are two requisites essentially necessary, first, that the circumstances of the case, taken together, shall satisfy the mind of the Court that the instrument contains the fixed and final testamentary intentions of the deceased as to the disposition of his property: the proof of this, the first requisite, may arise, not from any one particular fact, but from all the circumstances taken together. The next requisite is, that the deceased, having the firm intention to give effect to the instrument in a more formal state, had no opportunity of proceeding to complete that intention, inasmuch as his further progress was arrested by the act of God, by death, or by some supervening inability. These two requisites are in some degree connected together. Thus, if the internal evidence of final testamentary intention is strong, if the instrument has arrived at its last stage of maturity - merely wanting the testator's signature - if there have been instructions, and a draft prepared and engrossed for execution, in such a case slight intervening circumstances, preventing the act of execution, are sufficient from whence to infer a continuance of intention and to repel any presumption of abandonment: but, on the other hand, if the instrument is in its very first stage - mere heads and outline of a will hastily given - in its first concoction - then, before the Court can come to the conclusion that the instrument contains that disposition to which the deceased had made up his mind, and is entitled to probate, not only does it require more extraneous evidence of final intention ... but it requires more stringent and direct proof that the deceased had no opportunity of proceeding further, and that the unfinished state of the paper results from that want of opportunity, and not from any change or infirmity of purpose." 18 Whilst we are not worried in the present case about change of purpose, the passage that I have read reinforces what Powell J had said in Springfield about the increased forensic burden placed on a plaintiff where a will is, as Sir John Nicholl said, in its first stage of concoction. 19 Mr Cameron referred me to the decision of Austin J in Re Polyak [1999] NSWSC 862. I have read that decision carefully. It is, of course, as are all decisions in this area, a decision on its own facts. With respect, there are some parts of the judgment, particularly paras 44 and 52, which seem to me to unduly trivialise what is necessary for a solicitor to get from the stage of taking raw instructions to preparing the final will. It is not necessary really to examine the case further because what I have already stated covers the principles that I need to apply. 20 Mr Cameron freely acknowledges the authority which says that instructions for a will or a draft will do not qualify for admission to probate under s 18A. 21 Mr Cameron, however, says that this is outside that class of case and is a case where the testator had made up his mind what he wanted to do. He had given his solicitor full instructions; in fact at one stage, I think Mr Cameron submitted that he had dictated the will to his solicitor. The solicitor read it over. The testator said that he agreed with what was written and all that had to happen was for him to come in and sign it. 22 However, I think this is too rosy a picture of what happened. The solicitor's affidavit does not quite go that far. The solicitor, first of all, only took notes. Secondly, he said that he would have it typed up and send it to the testator to see if it was all right and suggested there might be changes. 23 It is quite common for a person when he or she sees a draft of what has been typed up to realise that there needs to be some change in expression, or even in disposition. I cannot see, with great respect, how the present was merely a case where everything had been done but the mere execution. 24 Mr J Glass, solicitor, for the first defendant, whose submissions were adopted by Mr R J Kirby, solicitor, for the second to sixth defendants, pointed to the fact that not only was this will in its early stage of preparation, but to the complete lack of evidence that the deceased had ever said that it was his intention that what the solicitor had written down would operate there and then as his will. 25 There are some cases, of which Permanent Trustee Co Ltd v Milton (1995) 39 NSWLR 330, and more recently Public Trustee v NSW Cancer Council [2002] NSWSC 220 are examples, where one does not have to find that when the testator left the solicitor's office he or she had made a will that was to last for decades. All that needs to be found is that the person had made a stop-gap will intending that to operate as the will until a more formal and complete document was prepared. 26 I thought for a while that that might be this case, but having thought more about it, it seems to me the defendants' submissions are correct. Indeed, the evidence does not even go so far as to suggest that there was an intention that the document created by the solicitor as his own notes would be operative as a stop-gap will. 27 Mr Cameron acknowledged that if the conclusion was that the document recorded by the solicitor was the solicitor's own notes of his instructions, or was a draft will, that was not enough, and he had to show something more. He valiantly took me through the cases and mentioned ever possible piece of ratio or dicta that might support it. I do not consider, even accepting all those statements, that the circumstances, if proved, establish the third element, that is whether there was an intention that what the solicitor wrote down was to operate as the will without more. 28 I should note that in actual fact there is in evidence a document created by the solicitor, which was how the instructions would be transformed into a draft will. However, no significance can be placed on that document as it is conceded that that document was not engrossed during the deceased's lifetime. 29 Accordingly, the claim for probate of the will must fail. There is no contest that the plaintiff may take out letters of administration as on an intestacy. The other persons entitled on intestacy are content that the administration bond be dispensed with. 30 I will, accordingly, make those orders and refer the matter to the Registrar to complete the grant. 31 That just leaves the question of costs. 32 There are two aspects of costs that need to be considered. The first is the plaintiff's costs, and the second is whether more than one set of costs should be allowed for the defendants. 33 So far as the plaintiff's costs are concerned, Mr Glass and Mr Kirby submitted that this is adversary litigation and the usual rule in adversary litigation, even though the matter of costs is in the discretion of the court, is that if a person fails then that person should personally pay the costs, and the person who succeeds should receive the costs. 34 The fact that that general rule applies in probate is made clear by various decisions in the Probate List; see, for instance, Re Hodges (1988) 14 NSWLR 698, 709. 35 The opposing argument is that in any event the existence of the document would have had to be disclosed to the court; the court would have to rule on it, so that there has been no increase in costs in having the matter fully argued out before the court. 36 So far as the defendants' costs are concerned, the general rule is that people in the same interest must appear on the hearing by the same set of counsel and solicitors, and if they do not then they are only entitled to one set of costs between them. 37 In the instant case, the two sets of defendants, who claim their descent from a different ancestor, have appeared by separate solicitors. Mr Glass filed his appearance on 12 August 2002 and Mr Kirby on 20 August. After that there was an appearance before the Registrar. What should have happened is that when two separate appearances were received by the plaintiff, the plaintiff's solicitor should have written pointing out the rule as to one set of costs, so that had the defendants been under any misapprehension as to what costs they might get, that misapprehension would have been corrected. If that had not been done, at least the matter should have been considered when the case was before the Registrar. However, it was not. 38 I consider that, especially with a small estate, as this is, the court has to be very careful about costs. It was reasonable for everybody to be represented by their own solicitor for the purpose of obtaining advice. Thus the only additional costs are the costs of appearances. This situation used to be covered by the old two guinea rule. However, as the defendants were all in the same interest, the costs of appearance should be limited to one set of costs between the defendants. 39 In more recent times a more benign attitude seems to be taken to costs, so that, for instance, in the Cancer Council case Einstein J ordered that everybody's costs in this sort of case come out of the estate. 40 It seems to me that the proper order to make for costs is that the costs of all parties be paid out of the estate, with the following exceptions: (a) that the costs on hearing of the plaintiff be paid by him personally; and (b) that only one set of costs on hearing be allowed as between the two sets of appearing defendants. That would mean that everybody's costs of examining the case and preparing the relevant documents would come out of the estate, and that the defendants would have one set of costs out of the estate between them for the hearing. 41 It may be that on considering the matter the solicitors may reach the view that in the long run it would be less expensive to the clients if all the costs came out of the estate, so I will reserve further consideration as to the question of costs. If all parties can agree that there should be some variation then such variation may be made, even after the order is passed and entered.

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