Mouglalis v - ; Beverly Griggs v Julie Ann Mouglalis & Ors - [2007] NSWSC 208 - NSWSC 2007 case summary

107438/02 JULIE ANN MOUGLALIS v - 110756/04 BEVERLY GRIGGS v JULIE ANN MOUGLALIS & ORS (NO 2) JUDGMENT The first issue 1 Willem Wyma, late of Port Macquarie, New South Wales, died on 22 October 2001. No will was found after his death. There was evidence that the deceased prepared a document in 1995 appointing an executor and stating to whom he wished his estate to be distributed ("the Instrument"). The Instrument was not found after the death of the deceased. The executor named in the Instrument having renounced probate, the non-resident principal beneficiary under the Instrument sought probate of its contents through a resident attorney. The second issue 2 The deceased had two daughters with his former wife, Janneke Wyma, the principal beneficiary under the Instrument and donor of the power of attorney, and Tineke Wyma. 3 The deceased's wife and her two daughters left Australia for the Netherlands while the deceased remained in Australia. Thea Jillings was born to the deceased's former wife after she had returned to the Netherlands. In a separate judgment, Mouglalis v - [2007] NSWSC 120, I held that the paternity of Ms Jillings should not be determined in these proceedings. 4 After the departure of his then wife and daughters, the deceased formed a relationship with Constance Delma Sullivan. She maintained that the deceased fathered her three children, Julie Ann Mouglalis, Geoffrey John Sullivan and Scott Andrew Sullivan. 5 The deceased did not marry Mrs Sullivan or anyone else after his divorce. Nor was it submitted that he entered a de facto relationship with Mrs Sullivan or anyone else. Each maintained a separate residence. From time to time they visited each other and communicated by telephone and the deceased met with and spoke by telephone with the Sullivan children from time to time. Mrs Sullivan did not seek, and the deceased did not give, any financial support to her or her children. They owned no property jointly. There was no mutual commitment to a shared life. While the deceased appears to have cared for the Sullivan children, he gave them no support. Neither performed any household duties for the other, and they were careful to avoid any public reputation or acknowledgement of their relationship. None of the indicia of a de facto relationship under the Property (Relationships) Act 1984, s 4(2) existed between the deceased and Mrs Sullivan. 6 The children of Mrs Sullivan grew up believing Mr Sullivan was their father, a belief that he apparently shared. 7 Mrs Mouglalis seeks a declaration that the deceased died intestate. The rules for the distribution of an intestate estate are set out in the Wills, Probate and Administration Act 1898, s 61B. It was common ground that if the deceased died intestate, in the absence of a spouse or a de facto spouse, his estate is to be divided equally amongst his children in terms of s 61B(4). The Instrument 8 Hendrik Korporaal was a friend of the deceased. Shortly after the deceased told him he was the father of the Sullivan children, Mr Korporaal asked him whether he had a will. The deceased said he would consider preparing a will as it was important. After the deceased moved to Port Macquarie towards the end of 1994, Mr Korporaal saw far less of him, but they communicated by telephone. Mr Korporaal said that in early 1995 the deceased contacted him by telephone and said that he had made arrangements to have a will drawn up and would like Mr Korporaal to be his executor, to which Mr Korporaal agreed. 9 Mr Korporaal had assisted the deceased in preparing his income tax returns. Shortly after being asked to act as executor, Mr Korporaal contacted the deceased by telephone in relation to his 1995 income tax return. During that conversation he said the deceased informed him: "Everything has been organised. I want the bulk of my things to go to my two daughters. You are my executor…I know that when I die the vultures will come out and I know you are a good man and you will pay them out of your own pocket…I don't want you to do that…Also inside the safe is $20,000…$10,000 is to cover the travel and accommodation expenses of my children and the rest is for your past service to me because you are a good man…" 10 Mr Korporaal declined the offer of money and said he would make sure that the deceased's daughters got what he had left for them. 11 Thereafter the deceased made two trips to the Netherlands. On his return from the second trip in August 1995, Mr Korporaal said the deceased contacted him by telephone and said: "I had some nasty experiences with Tineke while I was in Holland. She has not treated me well. I am excluding her from my Will. She will not get anything. You must assure me Hank that you will be my executor and that under no circumstances are you to deviate from this even from the $10,000 I have left to you." 12 Mr Korporaal said that the deceased informed him that he had left the will in safe custody at the Hastings Credit Union, Lake Road, Port Macquarie. That institution was subsequently renamed Holiday Coast Credit Union. Mr Korporaal made a note of the Credit Union and its address on the back of an envelope that he kept. 13 In late 1998, Mr Korporaal said he visited the deceased at Port Macquarie. He said the deceased showed him the location of a safe behind the sliding doors of a wardrobe in the deceased's bedroom, the secret location of the safe key and the safe combination. He said the deceased told him that no one else knew about them. Shortly afterwards, Mr Korporaal recorded the secret locations in a note of his that was in evidence. 14 Mr Korporaal never saw a will or the Instrument. His evidence was not shaken in cross-examination and I have no reason to doubt it. 15 Sabina Seellenk swore an affidavit under her maiden name Latinga. She is the daughter of Ms Janneke Wijma. In October 1995, Mrs Seellenk and her mother visited the deceased in Australia. She said that during the visit her grandfather showed her the Instrument and asked her to read it so she could help her mother when the time came. She said the Instrument was written on a will kit and stated words to the following effect: "My best friend Henk Corporal from Sydney will be my executor. He knows everything to do. To my niece Minke Wijma I give $1000-00. To my granddaughter Sabina Lantinga I give 20% of my bank money. The house, my car and the rest of all my money will be for your mother." 16 Mrs Seellenk said that her grandfather put the Instrument into his safe and put a copy into a cardboard video container screwed under a drawer in a kitchen cupboard. She said he also placed $20,000 and ownership documents relating to the house into that box, saying the money was for his cremation and their tickets to go and stay in Australia. 17 In cross-examination, Mrs Seellenk said she did not think the Instrument was signed by her grandfather. It had not been signed by witnesses. 18 Mrs Seellenk's recollection of the contents of the Instrument is confused. Her evidence contains matter that was, no doubt, relayed to her by her grandfather. He would not have written on the Instrument that the house, car and the rest of his money "will be for your mother". Mrs Seellenk was cross-examined on this issue but maintained not only that her grandfather had said these words to her, but also that they were contained in the Instrument. I put the discrepancy down to her imperfect use of the English language and accept that the Instrument contained a provision that the house, car and the rest of the deceased's money was to go to Ms Janneke Wijma. 19 Mrs Seellenk also said that the Instrument stated that the deceased did not want Tineke Wijma to have anything from the estate. Mrs Seellenk was asked whether there was anything else in the Instrument and she answered in the negative. She was cross-examined as to why this statement had not been included in her affidavit. She said that she was only asked to write down to whom the deceased wished to leave his estate. 20 I accept Mrs Seellenk's explanation and, again, put the matter down to a lack of communication. She regarded the question she was asked as excluding any indication of matters in the Instrument other than the identification in it of the persons to whom the deceased wished to leave his estate. 21 Later in her cross-examination, Mrs Seellenk said there was a provision in the Instrument to ensure Mr Korporaal was not out of pocket and because he was the deceased's best friend. When it was put to Mrs Seellenk that there was no mention of this in her affidavit she said: "No, because I was asked to tell who were the beneficiaries". She explained that the Instrument had several sections and the provision with respect to Mr Korporaal was not in the section dealing with the beneficiaries and the provision with respect to Mr Korporaal was to the effect that he was to receive money for the costs that he would incur. 22 Once again, I put the absence of reference to Mr Korporaal in Mrs Seellenk's affidavit down to her imperfect understanding of the English language and her limited interpretation of what she was asked to do in preparing her affidavit. 23 Mrs Seellenk said that the deceased told her that his papers would be at a credit union, the name of which she had forgotten. 24 Mrs Sullivan said that the deceased told her that Mr Korporaal was his executor years before his death. He told Mrs Sullivan that Mr Korporaal was his friend and executor and if anything happened, to contact him. 25 Because of her medical condition, Ms Janneke Wijma was not available to give evidence. Her affidavits were read under the Evidence Act 1995, s 63(2), the necessary notice under s 67 having been given to the other side. She said she and her daughter were shown the Instrument. The deceased said they were to inherit, the Instrument was in the safe and a copy was in the video carton screwed under the drawer in the cupboard. 26 Other evidence of the making of wills, to which I will return, came from the attorney for Ms Janneke Wijma, Beverly Griggs. She had avoided contact in the days leading up to the trial and was not available to give evidence. It was common ground that if effect was to be given to the Instrument, Ms Griggs needed to be replaced by some other attorney. 27 I am satisfied that the deceased wrote the Instrument in which he appointed Mr Korporaal as his executor and by which he made a bequest of $1,000 to Ms Minke Wijma, he gave 20% of the funds standing to his bank accounts to Mrs Seellenk and he gave the balance of his estate to Ms Janneke Wijma. 28 While I am of the view that the Instrument contained some provision for the benefit of Mr Korporaal, the evidence is insufficiently detailed for me to make a finding of the terms of that provision. In the circumstances that may not matter because Mr Korporaal makes no claim on the estate. 29 While the entirety of the Instrument has not been proved, it has been held that probate may be granted of so much of the contents of a will as may be proved, even though proof is not available as to the entirety (Sugden v Lord St Leonard's (1876) 1 PD 154 at 230, 248). The rationale behind that decision was that if part of a will were accidentally burnt or if portion of it were torn out it would nevertheless be the duty of a court of probate to give effect to the will of the testator as far as it could be ascertained provided the court was satisfied that the substantial parts of the will existed. There is no reason, in my view, why a similar principle should not be adopted with respect to the Instrument. Further, I am of the view that the substantial parts of the Instrument have been proved. Should the contents of the Instrument be admitted to probate? 30 In Curley v Duff (1985) 2 NSWLR 716 at 718-719 Young J summarised the requirements for obtaining probate of a lost will as follows: "As I understand it, five matters must be established when it is sought to have probate of a lost will. First, it must be established that there actually was a will (see Re Molloy [1969] 1 NSWR 400), secondly, it must be shown that that will revoked all previous wills, thirdly, that the presumption that when a will is not produced it has been destroyed must be overcome (see Allan v Morrison [1900] AC 604), fourthly, there must be evidence of its terms, and fifthly, evidence of due execution (see Gair v Bowers (1909) 9 CLR 510)." 31 The Wills, Probate and Administration Act 1898, s 18A treats a document as a will even if it has not been properly executed, if the court is satisfied that the deceased intended the document to constitute his or her will. That provision is 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 his or her will, an amendment of his or her will or the revocation of his or her 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." 32 In Cahill v Rhodes/Rhodes v Cahill [2002] NSWSC 561 at [55], Campbell J modified the requirements set out in Curley to take account of the Wills, Probate and Administration Act 1898, s 18A, as follows: "First, it must be established that there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous Wills, third, the presumption that when a Will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her Will." The existence of the Instrument 33 As appears above, the evidence of Mrs Seellenk establishes that the Instrument was a document purporting to embody the testamentary intentions of the deceased. Her evidence was supported by Ms Janneke Wijma and by what the deceased had told Mr Korporaal. Revocation of previous wills 34 There was no evidence that the Instrument contained a revocation clause. But the Wills, Probate and Administration Act 1898, s 18A provides that an informal document may constitute a revocation of a will and statements made by the deceased may be taken into account in concluding that a document so operated. 35 What is required is evidence of an intention to revoke. In this case an intention to revoke any former will can be inferred from the fact that the Instrument disposed of the whole of the deceased's estate (Cadell v Wilcocks [1898] P 21). The inference is strengthened by evidence of his falling out with Ms Tineke Wijma and his subsequent statement that he had removed her from his will. 36 Ms Tineke Wijma said that her relationship with her father was strained over an argument when he gave one of her children money but not the other. Ms Janneke Wijma gave evidence of an argument on the telephone between Ms Tineke Wijma and the deceased and his subsequent statement to her that Ms Tineke Wijma would not get anything when he died. He would change his will. Mrs Sullivan gave evidence of a conversation with the deceased in which he said that Ms Tineke Wijma would not be included in his will. 37 The Instrument did not include any gift to Ms Tineke Wijma. If there was a previous will under which she benefited, her exclusion from the later document was clear evidence of the deceased's intention to revoke any such earlier will under which Ms Tineke Wijma benefited. No such will was found on the deceased's death. The presumption of destruction of any such will was not overcome. 38 Another way of analysing the issue is by reference to the Wills, Probate and Administration Act 1898. It prescribes the manner in which a will may be revoked. Section 17(1) provides that a will shall not be revoked wholly or in part except as mentioned in s 15 or s 15A or s 17. Section 15 and s 15A are irrelevant for present purposes. Section 17(2) provides that a will may be revoked by another will. If effect is to be given to the Instrument, it becomes a will under s 18A and it may thus be the means of revoking any earlier will. 39 In my view, the evidence establishes that the Instrument revoked all previous wills. The presumption of destruction

40 If a will, last seen in a testator's possession, is not found on death there is a rebuttable presumption that it was destroyed by the testator with the intention of revoking it (McCauley v McCauley (1910) 10 CLR 434). 41 Much of the trial was given to evidence of the events that immediately followed the death of the deceased. It was submitted that this evidence led to the inference that the presumption had been rebutted. 42 Mrs Sullivan was advised by the Port Macquarie Base Hospital that the deceased had taken a bad turn. She, Mrs Mouglalis and Mr Geoffrey Sullivan drove through the night from Queensland to Port Macquarie, but they arrived too late. The deceased passed away an hour before they got to Port Macquarie. 43 Having visited the hospital, they parked the motor vehicle near the beach until the sun came up when they drove to the deceased's house to which they were let in by a neighbour called Erik. 44 Mrs Mouglalis described the interior of the house as very grubby with lots of stains on the carpet and piles of newspapers and old betting slips on the floors. There were empty food containers in the kitchen. She changed the sheets on the bed in one of the bedrooms before she slept in it. 45 Mrs Mouglalis said that Erik told them that the deceased put money in his safe. She said that when they looked, the safe was open with the key in the lock and there was no money. Mrs Mouglalis said that there were some papers in the kitchen that they put into a basket. They did not include the Instrument or a copy of it. Mrs Mouglalis denied that she opened the safe. She said she spoke to Erik about the safe being open and he said he was not surprised. He said he had been with the deceased to a bank two years previously when the deceased brought $10,000 home in cash and put it in the safe. 46 Mrs Mouglalis said she telephoned Ms Janneke Wijma and Ms Tineke Wijma in the Netherlands to advise them of the death of the deceased and she also spoke with Mr Korporaal. During her conversation with him, she said that she had found the safe open with a key in the door and it was empty. Erik had said that he had touched nothing in the house. Mr Korporaal confirmed this part of the conversation. Mr Korporaal said Mrs Mouglalis described the house as in chaos. It looked liked it had been ransacked. He said that Mrs Mouglalis said that they were disposing of rubbish and she was going to call the Salvation Army to collect the furniture. Mr Korporaal said he told her she could not do that. He was the executor and she should lock up the house and call the police. Mrs Mouglalis denied this part of the conversation. 47 In a later telephone conversation on the same day, Mr Korporaal said that Mrs Mouglalis told him that she would make the funeral arrangements and that Ms Janneke Wijma and Mrs Seellenk were on their way from the Netherlands. Mr Korporaal said he would contact Hastings Credit Union to locate the will. 48 Mrs Mouglalis delayed the funeral so that Ms Janneke Wijma and Mrs Seellenk could attend. On the morning of the funeral they were met at the airport in Port Macquarie and driven to deceased's house. They later visited the undertakers to see the deceased laid out. After the funeral they were driven to the office of a solicitor, Barbara Louise Dix, where Ms Janneke Wijma was asked to sign a document acknowledging the deceased's paternity of Mrs Sullivan's children. Ms Janneke Wijma refused to sign the document. 49 Ms Dix had arranged to take a portion of the deceased's eyebrow from his body for DNA testing to be made of that facial hair along with samples of DNA material from Mrs Mouglalis and her siblings. 50 Ms Dix was not available for cross-examination. A concession had been made that the deceased was the father of the Sullivan children. It was assumed that Ms Dix would not be required for cross-examination as a result of that concession. When it was withdrawn, Ms Dix was no longer available for cross-examination. 51 When Ms Janneke Wijma and Mrs Seellenk arrived at the deceased's house, Ms Janneke Wijma described it as a complete mess. Mrs Seellenk said it was one big mess and totally ransacked. All the books were all over the place, drawers were open, pictures were torn up, even the pictures on the wall. 52 In an interview with Karolina Ziembla, the solicitor for Ms Janneke Wijma, Mr Korporaal said that Erik had told him that the deceased had torn up the will. 53 Ms Griggs said she had a close continuing relationship with the deceased for 14 years and kept in touch with him until shortly before his death. She said that the deceased spoke to her of making a will around 1995 and a year or so before he "past" he asked her to type up a will. She obtained a form from a newsagent. He was admitted to hospital soon afterwards and stated to her while in hospital that he forgot to sign the will. Ms Griggs said she was unaware of its contents. After this time she said the deceased mentioned making a will, but she was not involved in its preparation. 54 It was submitted that I should find that Mrs Sullivan, Mrs Mouglalis or Geoffrey Sullivan made an active search for a will in the house, that they had the opportunity and a clear motive to find and destroy the Instrument. It was submitted that the inference was strengthened by the unseemly haste with which samples for DNA testing were taken from the deceased and Ms Janneke Wijma and Mrs Seellenk were taken to Ms Dix and asked to acknowledge that the deceased was the father of Mrs Sullivan's child. 55 It was submitted that Ms Griggs' use of the word "past" should not be interpreted to mean passed away. It should be interpreted to mean moved from Sydney. And her statement that the deceased said he had forgotten to sign the will should be interpreted to mean he forgot to make the will. But these latter submissions are far-fetched and I reject them. 56 The evidence was that, having shown the Instrument to Mrs Seellenk, the deceased put it in the safe and put a copy in the video container in the kitchen. But he said the will would be with the Hastings Credit Union both to Mr Korporaal and to Mrs Sellenk. The absence of the original cannot be sheeted home to Mrs Sullivan or her children. There is no suggestion that they obtained the document from the credit union. Furthermore, they were ignorant of the terms of the Instrument. For all they knew they benefited under any will equally with Ms Janneke Wijma and Ms Tineke Wijma. 57 Whether one describes the condition of the interior of the deceased's house as a mess or ransacked, it indicates that the deceased lived a relatively slovenly existence in his house towards the end of his life. He may well have left the safe open himself. And the absence of both the original and the copy of the Instrument may be explained by Erik's statement that the deceased tore up the will. Such a scenario is consistent with Ms Griggs' evidence that the deceased spoke of failing to sign a will a year or so before he passed away, which is the way I interpret her use of the word "past". 58 The fact that Mrs Sullivan and two of her children were in the deceased's house and had the opportunity to find and destroy the Instrument and its copy if they were in the house is not enough to ground a finding that they did so. Their evidence, unassailed in cross-examination was that Erik was present when they discovered that the safe was open. They said they found no Instrument or its copy and they did not approach the Hastings Credit Union. 59 The absence of both the original and the copy of the Instrument on the deceased's death is suggestive of a deliberate act of destruction of two documents. That is hardly the climate in which the court could be satisfied that the presumption that the will has been destroyed has been overcome. 60 In my view, Ms Janneke Wijma has failed to overcome her onus of rebutting the presumption of destruction. The terms of the Instrument and the deceased's intention that it constitute his will 61 In view of my finding that the presumption that the Instrument had been destroyed has not been rebutted, it is unnecessary to consider the fourth and fifth requirements in Curley. 62 But it is my view that each was satisfied. Mrs Seellenk gave evidence of the terms of the instrument and I have made findings as to those terms. The deceased's intention when he made the Instrument that it should constitute his will was made out by his disposal of his entire estate in a way that excluded Ms Tineke Wijma, consistently with his statements to that effect. Conclusion on first issue 63 In my view the contents of the Instrument should not be treated as the will of the deceased under the Wills, Probate and Administration Act 1898, s 18A for the reason that the presumption as to destruction has not been rebutted. 64 I should also say that the application for probate was misconceived. The usual form of an application for an attorney grant is for a grant that administration with the will annexed be granted to the attorney for the use and benefit of the non-resident and limited until the non-resident applies for and obtains a grant of letters of administration with the will annexed (Rosenblum v Gridiger, NSWSC, Holland J, unreported, 24 June 1980, at 12). 65 In this case, the application of Ms Griggs should have been for a grant of administration with the contents of the Instrument annexed limited until Ms Janneke Wijma applied for and obtained a grant of letters of administration with the contents of the Instrument annexed. Entitlements on intestacy 66 The paternity of Mrs Sullivan's children was put in issue when the concession was withdrawn. It was submitted that the DNA evidence should be rejected because the level of care in taking the samples from the deceased was in doubt and the results were therefore unreliable and unsatisfactory. 67 In her affidavit, Ms Dix swore that she contacted Silbase Scientific Services Pty Ltd, now called Genetic Technologies Corporation Pty Ltd, a company that carries out DNA testing and was advised to obtain samples of facial hair from the body of the deceased and to place these in sterile containers to be forwarded to company for testing, along with samples to be taken by that company from the children of Mrs Sullivan. 68 Ms Dix contacted the Hasting District Funeral & Cremation Service that had taken delivery of the body of the deceased to make arrangements for the samples to be taken. Ms Dix said she was taken to the body of the deceased and shown the tag placed on the body by Port Macquarie Base Hospital identifying it as that of the deceased. In her presence, Brian Hutchison, the principal of the Hastings District Funeral & Cremation Service, used tweezers to extract eyebrow hairs from the body and placed them immediately into sterile screw top containers. Ms Dix said she placed the containers in a sealed envelope that both she and Mr Hutchison signed for identification. She said she returned to her office and placed the samples in the office safe until they were posted to Silbase Scientific Services Pty Ltd. Mr Hutchison made a statutory declaration as to what he had done and that statutory declaration was made available to Silbase Scientific Services Pty Ltd. 69 Alexandra Gavrilidis, a scientist employed as Head of Laboratory-DNA Profiling by Genetic Technologies Corporation Pty Ltd swore an affidavit to which she attached reports with respect to each of Mrs Sullivan's children. With respect to Mrs Mouglalis, Ms Gavrilidis concluded that the probability that the deceased was her father was 99.99%. With respect to Mr Geoffrey Sullivan, the probability was 99.9% and with respect to Mr Scott Sullivan, the probability was 99.997%. Those reports were made by Ms Gavrilidis after the method of collection of the samples of facial hair of the deceased was made known to her. She found no unsatisfactory or unreliable element in that method of collection. Ms Gavrilidis was not cross-examined. Conclusion on second issue 70 In my view, the only conclusion open on the evidence before the court, including the statements by Mrs Sullivan, the admissions attributed to the deceased and the scientific reports, is that the deceased was the father of Mrs Sullivan's children. 71 It follows that the distribution of the deceased's estate on intestacy will be to his children equally. Orders 72 It follows that Ms Griggs' summons and notice of motion must be dismissed. With respect to the amended summons of Mrs Mouglalis, there should be a declaration that the deceased died intestate and that he was the father of Ms Janneke Wijma, Ms Tineke Wijma, Mrs Mouglalis, Mr Geoffrey Sullivan and Mr Scott Sullivan. There should be an order that administration of the estate of the deceased be granted to Mrs Mouglalis. 73 I will hear the parties on costs and I will hear the parties on whether any further declarations or orders should be made. I direct the parties to bring in short minutes of order in accordance with these reasons for judgment.

Mouglalis v - ; Beverly Griggs v Julie Ann Mouglalis & Ors

At a glance

Court

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Judgment (13 paragraphs)

Cases Cited (5)