National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees, Late of Strathfield

Judgment 1The question for decision is whether an informal document should be admitted to probate as a will. Facts 2Nancy Elaine Lees ( the "Deceased" ) died on 17 August 2009. Her husband Arthur Edward Lees predeceased her, having died on 15 July 2009. 3The Deceased made a will on 17 May 1993, giving all her estate to her husband should he survive her by 30 days, in which event he was appointed the sole executor. If Mr Lees did not so survive her, the Deceased appointed National Australia Trustees Ltd as executor and trustee, gave items of personalty to the trustee with the request to distribute them in accordance with a written list, then directed that after payment of debts and testamentary expenses, the residue be divided into 12 equal parts and held for 12 named beneficiaries. The maiden name of Mrs Lees was Le Sage. The beneficiaries named were the Deceased's sister Evangeline Edith Le Sage ( "Evangeline" ); the five children of Evangeline, namely Ruth Ann Davies, Kevan Bruce Le Sage, Malcolm Peter Le Sage, David Kenneth Le Sage and John Derek Le Sage; two children of the Deceased's sister Katrina, namely Trina Ann Skarsmo and Janice Elizabeth Fazey ( "Janice" ); a brother and two sisters of Mr Lees; and a niece of Mr Lees. The will of Mr Lees was, in essence, a mirror will, giving everything to the Deceased on the same condition with the same substituted beneficiaries. The Deceased, having survived her husband for 32 days, took the whole of his estate. 4The plaintiff seeks a grant of probate on the 1993 will. 5The solicitor who acted for Mr and Mrs Lees was a Mr D Sharpe of Messrs DibbsBarker, formerly Dibbs Crowther & Osborne Solicitors. 6It is clear from notes made by the Deceased on a pad which went into evidence that she commenced dealing with her late husband's estate towards the end of July 2009. She made notes of contact with the Department of Veterans Affairs and the office of the coroner. She made contact with Mr Sharpe's office and ascertained he was on holidays. She ascertained that his firm was holding the two 1993 wills. On 29 July 2009, the Deceased made an appointment to see Mr Sharpe at 11am on 18 August 2009. On the same piece of paper as this information about the appointment is written, at the bottom of that page, is the following: "MY WILL - SUM OF MONEY TO EXECUTORS TO PAY FOR FUNERAL/CREMATION - NICHE PLAQUE etc." The next notepad page appears to list the names of people who had written to the Deceased after the death of Mr Lees. 7This is followed by a separate page written by the Deceased as follows: "MR SHARPE - MY WILL ALL MY REAL ESTATE SHARES, CASH DEPOSIT AND PERSONAL BELONGINGS ABSOLUTELY DIVIDED INTO 10 PARTS BETWEEN 8 BENEFICIARIES:- 1 EVANGELINE EDITH LE-SAGE - 1 PART 2 KEVAN BRUCE LE-SAGE - 1 PART 3 JOHN DEREK LE-SAGE - 1 PART 4 MALCOLM PETER LE-SAGE - 1 PART 5 DAVID KENNETH LE-SAGE - 1 PART 6 RUTH ANN DAVIES - 1 PART 7 BRONWYN ELLEN CARTER - 1 PART 8 JANICE ELIZABETH FAZEY - 3 PARTS