MacKenzie v Osburn & Ors

Supreme Court of NSW|2005-07-06|Before: Gzell J

Background 2 The document was found by Stuart MacGregor MacKenzie, a son of Mrs MacKenzie. The deceased had been informed by a neighbour that a side door of his house at Mt Colah, New South Wales, was open. The deceased asked Stuart MacKenzie to check the house shortly before he died on 9 December 2003. 3 Stuart MacKenzie went to the house on 13 December 2003. He noticed some internal damage had been done to the house. In the back room he found an empty envelope on the table. It had the business card of a partner of Miller Noyce, Lawyers attached to it. On the back was written: "Thursday 1st March 2001. Will". Stuart MacKenzie noticed that the top left drawer in a chest of drawers in the back room was open. In it he found the document, some bank statements and small knick knacks the deceased used to collect for making gifts. There was a trunk in the back room that contained the deceased's books. It was open and some of the books were on the floor. The envelope did not contain the original will of 1 March 2001. That was held by the solicitors. 4 David Munro MacKenzie, the other son of Mrs MacKenzie, had been told by the deceased on numerous occasions that if he needed to find the will, it would be in the top drawer of the cupboard in the back room. David MacKenzie did not mention this to Stuart MacKenzie before he went to the house at Mt Colah because he said he assumed Stuart MacKenzie had been told likewise by the deceased. 5 Stuart MacKenzie handed the document to David MacKenzie. The document mentioned Mrs MacKenzie in relation to the house at Mt Colah and divided the deceased's only other substantial assets, bank deposits, equally between his half brother, William Hamilton Osburn, and his two sons, William John Osburn and Alex William Hamilton Osburn, the defendants. 6 On 17 December 2003, the will was read by Joseph Francis, a partner of Miller Noyce, in the presence of Mrs MacKenzie, David MacKenzie, Mr Osburn and his wife Irene Osburn. The will appointed Mrs MacKenzie and Mr Osburn as executors and divided the entire estate equally between Mrs MacKenzie, Mr Osburn and his two sons. 7 David MacKenzie had the informal document with him at that meeting. No mention was made of it. He said he was quite shocked when the will was read because the deceased had said to him on many occasions that he had left the house at Mt Colah to Mrs MacKenzie in his will. 8 After the meeting, David MacKenzie approached Mr Francis as he was leaving the building and produced to him the informal document. He was advised by Mr Francis that if it contained the deceased's wishes, it was legally enforceable and should be submitted to the Court. 9 Mrs MacKenzie and her husband separated in 1973. David MacKenzie and Stuart MacKenzie were infants. Their father was granted custody. As they grew up they spent most weekends and half their Christmas holidays with their mother and the deceased. They said the Osburns rarely visited the deceased. The visits were short and at Christmas time and not every year. Telephone contact was maintained between the deceased and Mr Osburn but that contact was always initiated by the deceased. 10 Both the deceased and Mrs MacKenzie had mental illnesses. Mrs MacKenzie was bipolar. Both David MacKenzie and Stuart MacKenzie said that the deceased constantly praised Mrs MacKenzie and told each of them on many occasions that she would have the house at Mt Colah on his death. He said on a number of occasions that he had made a will to that effect. Mrs MacKenzie said that she was shown a will on one occasion and told by the deceased that he had left the house to her.

11 David MacKenzie and Stuart MacKenzie said that the deceased and their mother were best friends and partners. They said the deceased often said: "Your mum is the most important person in the world to me and she came into my life at a time that I was very lonely, she is my best friend." 12 Mrs MacKenzie owned a unit at Potts Point. Both she and the deceased went to it from time to time because it was close to the beach which the deceased enjoyed. 13 David MacKenzie only remembered Mr and Mrs Osburn and William Osburn and Alex Osburn visiting Mt Colah on one occasion in the early 1980s. 14 The deceased was hospitalised less frequently than Mrs MacKenzie. She spent six to eight weeks in hospital about twice a year. During those periods the deceased was a regular visitor at the hospital, on some occasions staying overnight. 15 David MacKenzie said that the deceased told him on many occasions that if anything ever happened to him, Mrs MacKenzie was to live in the house. He was leaving it to her in his will. He often said to David MacKenzie he was going to make a will leaving the house to his mother. The deceased once showed an envelope to David MacKenzie saying: "This is my will. If you need it you can find it in the top drawer and I am taking it to my solicitor in Hornsby." 16 Stuart MacKenzie said that in about December 2002, the deceased told him that he had left the house to his mother. 17 Mrs MacKenzie said that the deceased often said to her that she had always loved his home and he wanted to leave it to her when he was gone. He repeated on many occasions that he had always told her that the house would be hers, as she said she would never sell it. 18 Mrs MacKenzie said she saw the deceased writing a will on two or three occasions. Either she read the wills or he read them out aloud to her. In each one, she received the house and Mr Osburn and his two sons received the rest of his property. 19 Mr Osburn said he visited the deceased every Christmas and some Easters. William Osburn said he recalled visiting the deceased at Mt Colah almost every Christmas and sometimes at Easter. Mr Osburn said he received telephone calls from the deceased. Alex Osburn said from late 2001 until about four weeks prior to the death of the deceased, he observed his father speaking to the deceased on the telephone about once a month. 20 On 6 October 2001, the deceased arrived at Mr Osburn's home. Mr Osburn said that the deceased asked if he could spend the night as he did not want anything to do with Mrs MacKenzie anymore. He stayed the weekend. On Monday 8 October 2001, Mr Osburn drove the deceased to Mt Colah to collect some clothes. On the way back, the deceased said he was not feeling well and stopped to see a doctor at Hornsby Hospital. He was admitted to the psychiatric wing of the hospital on that day. Two days later, Mrs MacKenzie was admitted to Caritas Hospital at Darlinghurst. 21 Mr and Mrs Osburn visited the deceased while he was hospitalised. They drove him to Mt Colah and back to the hospital. On one of their visits to the hospital, the deceased gave them a plastic bag that contained the deed to the house at Mt Colah, bank statements, photographs and other papers. Mr Osburn said that the deceased told him he needed to have the house deed because the house would be going to him and the boys. 22 On one of their visits from the hospital to Mt Colah, Mr and Mrs Osburn said the deceased took a document from the trunk in the back room and showed it to them. They said they saw the names of Mr Osburn and their two sons. They said the deceased said he was leaving everything to Mr Osburn's boys. Mrs Osburn said she saw the deceased put the will back in the trunk, saying that was where he kept his will. 23 The deceased was discharged on 6 November 2001 and Mr and Mrs Osburn took him shopping and then to Mt Colah where they settled him in with food and clothes that Mrs Osburn had laundered. Mrs MacKenzie was still in hospital. 24 On one of their subsequent visits to Mt Colah, the deceased said he wished to go to Archbold House, a nursing home in Roseville. Mr and Mrs Osburn drove him to the nursing home. He stayed two weeks and moved back to Mt Colah. 25 Mrs MacKenzie was discharged from Caritas Hospital on 24 December 2001 and she and the deceased lived together again, mostly at Mt Colah, but sometimes at Potts Point. Mr and Mrs Osburn last visited the deceased at Potts Point about 18 months before he died. 26 About three weeks before the deceased died, Mr Osburn spoke with Mrs MacKenzie on the telephone. Mrs MacKenzie was at her Potts Point unit. She told Mr Osburn that she had sent the deceased out to do some shopping about four hours previously and he had not returned. Mr Osburn called again a couple of times and was told the deceased had still not returned. 27 The next day, Mr Osburn telephoned again and was told by Mrs MacKenzie that the deceased had returned at about 6 pm the night before. Asked why she had not called the previous evening, Mrs MacKenzie said she did not want to. She and David MacKenzie said the deceased did not want her to. 28 Shortly afterwards, the deceased was forcibly taken to hospital where he remained until his death. Mrs MacKenzie and David Mackenzie said the deceased insisted that the Osburns should not be notified of his hospitalisation. Stuart MacKenzie did not return to Sydney in time to visit the deceased before he died suddenly. 29 There was conflict of testimony between the Osburns on the one hand and the MacKenzies on the other. 30 David MacKenzie had written two letters to Mr Francis setting out the background of the relationship between his mother and the deceased. In them he made a number of statements denigrating the relationship between the Osburns and the deceased. He said that Mr Osburn had appeared, "out of the blue", in the mid 1980s, that the Osburns did not care for the deceased and were only after his money, that the deceased did not trust Mrs Osburn, and that the deceased would not have given personal details or documents to Mr and Mrs Osburn. 31 The picture drawn by the MacKenzies was that there was infrequent contact between the Osburns and the deceased, annually at Christmas, with some Christmases missed out, telephone conversations between the deceased and Mr Osburn, always initiated by the deceased, with the deceased frequently saying he did not want to have contact with the Osburns, he did not trust them, they were only after his money. 32 The Osburns, on the other hand, said the deceased complained about Mrs MacKenzie. Mr Osburn said he was told of her reluctance to contribute to shopping expenses. Mrs Osburn said the deceased told her that Mrs MacKenzie would only stay at Mt Colah for three to four weeks, after which she got bored and wanted to move back to Potts Point until she had spent all her money and she then came back to Mt Colah. Mrs Osburn said she observed that Mrs MacKenzie did almost nothing around the house. The deceased complained to her that he had to do all the shopping and housework. She would not cook. She did not do anything. 33 Dr Robert Llewellyn-Jones, a psychiatrist, provided two reports to the solicitors for the Osburns. In his first report, the doctor said there was insufficient evidence to enable him to provide an opinion with respect to whether the deceased was of sound disposing mind when giving instructions for drawing up his will dated 1 March 2001 and when executing it. The doctor also said that it was not possible to determine with any certainty the degree to which depression, might or might not, have affected the deceased's testamentary capacity on 17 December 2001. 34 The doctor had not been provided with the medical records of the deceased produced by Caritas Psychiatric Unit. He subsequently had that access and provided a supplementary report in which he indicated that there was evidence that the deceased might have had a frontal lobe dementia. However, it was not possible to ascertain, on the basis of the material that he had reviewed in compiling his original report and for the supplementary report, the degree to which frontal lobe impairment might have affected the deceased's testamentary capacity at the time the informal testamentary document was drawn up and executed.

The Informal Document 35 In light of Dr Llewellyn-Jones' reports, the Osburns did not press the argument that the deceased lacked testamentary capacity at the time he executed the informal document. 36 The informal document was made from a will kit that contained examples of bequests and instructions on how to make a will. It was in the following terms: " This is the last Will and Testament of me, …Henry Lloyd Deann…(name) of…498 Pacific Highway Mt Colah…(address) in the State of…NSW 2079. 1. I revoke all Wills and other documents of testamentary intent previously made by me; this is my last Will and Testament. 2. I appoint…Caroline Anne Meldrum (Mackenzie)…(name) of…Unit 31 No 8 Wylde St Potts point…to be Executor or Executrix and Trustee of this my Will.

as to be recognised as the sole owner of the property 3. I give…known as 498 Pacific Mt Colah 2079 and that all cash balances to be equally divided Willy John Osburn Alex Hamilton Osburn all of the same address William Hamilton Osburn known as 14 Forster St Dated this day Friday 17th Dec 2001 H Dean." 37 The document did not comply with the formal requirements for the making of a will. The Wills, Probate and Administration Act 1898, s 7(1)(d) provided that a will was not valid unless the signature of the testator was made in the presence of two or more witnesses, present at the same time, or the signature was acknowledged by the testator in the presence of two or more witnesses, present at the same time. Section 7(1)(e) required at least two of the witnesses to attest and sign the will in the presence of the testator, but not necessarily in the presence of each other, or of any other witness. There was no attestation to the document by any witness and no evidence that the deceased executed the document in the presence of any witnesses. 38 The Wills, Probate and Administration Act 1898, s 18A provided for the admission to probate of a document purporting to embody the testamentary intentions of a deceased, though lacking the formal requirements for a valid will. It was in the following terms: "(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 a 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." 39 In the Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446 the Court of Appeal analysed the section. At 449, Kirby P said that the section required three characteristics: the document must be in documentary form, it must embody the testamentary intentions of the deceased and, although it has not been executed in accordance with the statutory formality, it must, nonetheless, constitute a will of the deceased person. At 452, his Honour said that the document, although falling short on formalities, must sufficiently evidence the fact that by it, the deceased intended to govern the disposition of his or her property after death. At 466, Priestly JA said the section raised essentially questions of fact. The particular questions were whether there was a document, whether that document purported 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. Similar views were expressed by Mahoney JA at 455. 40 The deceased executed the document after returning to Mt Colah after his hospitalisation at Hornsby Hospital. His mental condition had improved. Mrs MacKenzie was still in hospital at Caritas. 41 There are irregularities in the document to which counsel for the Osburns referred. The deceased misspelt his name as "Deann". He misspelt Mrs MacKenzie's name as "Caroline" and he referred to her maiden name with her surname in brackets. He had her unit as number 31 when it was number 32. He had the Osburns' address at 14 Forster Street when it was number 12. 42 But these irregularities, while perhaps relevant to the question of mental clarity, do not, in my view, go to the question whether the deceased intended the document to constitute his will. 43 The document was written in the form of a will. The deceased was aware of what a will was. He had executed a formal will prepared by his solicitors on 1 March 2001. The fact that the deceased went to the trouble of acquiring a will kit is, in my view, highly suggestive of an intention to prepare a document as the deceased's last will. 44 A matter of significance to the Court of Appeal in Masters was the fact that the deceased entrusted the informal document to a close friend shortly before death. In this case the document was left in the top drawer of the chest of drawers. 45 It was submitted on behalf of the Osburns that, for a number of reasons, I should dismiss the evidence of the MacKenzies as to their statements attributed to the deceased. First, there were the discrepancies in the letters written by David MacKenzie to Mr Francis. Secondly, there was the conflict in the testimonies of David MacKenzie and Stuart MacKenzie. David MacKenzie said that he assumed his brother knew about the significance of the top drawer in the cupboard in the back room. In the letters he asserted that the deceased had informed Stuart MacKenzie as well as himself of that significance. Yet Stuart MacKenzie said he was unaware of the significance of the top drawer and found the informal document there by accident. Thirdly, there was the failure to mention the informal document at the meeting with Mr Francis, and, finally, there was the giving of the title deed to the house to the Osburns. 46 Even if I took that course, however, the fact remains that the deceased executed the document in a form that suggests that it constituted a will of the deceased, though lacking execution in accordance with the formal requirements of the Wills, Probate and Administration Act 1898, and that the deceased intended the document to constitute his will. No other suggestion as to its purpose was put on behalf of the Osburns. 47 The document does not purport to deal with the deceased's estate during his life. It purports to act upon his death. It has, in my view, all the hallmarks of a will, save for the lack of attestation. I propose to admit the informal document to probate.

Construction of the Informal Document 48 There is an ambiguity in the document. The words "as to be recognised as the sole owner of the property" appear in the deceased's handwriting above the printed words "I give". The words "known as 498 Pacific Mt Colah 2079" appear at the same level as the words "I give". 49 The document makes more sense if the words "I give" were deleted. It would then read as an appointment of Mrs MacKenzie as executrix "as to be recognised as the sole owner of the property known as 498 Pacific Mt Colah 2079", and the following words would read as a bequest of the residuary estate to Mr Osburn and his sons. 50 In my judgment, the document should be construed in that fashion with a specific devise of the house at Mt Colah to Mrs MacKenzie, including the furniture of minimal value, and a residuary bequest equally to Mr Osburn and his two sons.

Conclusion 51 I will hear the parties on the terms of appropriate orders both in this matter and in the related matter numbered 17650 of 2004, being the application for probate of the 1 March 2001 will by Mr Osburn. I will also hear the parties on costs. I direct the parties to bring in short minutes of orders reflecting my reasons.

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.

CITATION : MacKenzie v Osburn & Ors [2005] NSWSC 657

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