NSW Trustee and Guardian v Pittman - Estate of Koltai

LEGISLATION CITED : Wills, Probate and Administration Act 1898 (NSW) Family Provision Act 1982 (NSW)

Banks v Goodfellow (1870) LR 5 QB 549 King v Hudson [2009] NSWSC 1013 Re Estate of Paul Francis Hodges deceased; Shorter v Hodges (1988) 14 NSWLR 698 CASES CITED : In the Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 Ryan v Kazacos; Estate of Michael Harvey Kazacos [2001] NSWSC 140; (2001) 183 ALR 506 Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330 Hatsatouris v Hatsatouris [2001] NSWCA 408

TEXTS CITED : T Jarman, A treatise on wills, 8th ed (1951) Sweet & Maxwell

NSW Trustee and Guardian v Ronald Charles Pittman - Estate of the late Mary Magdalena Koltai PARTIES : Plaintiff: NSW Trustee and Guardian Defendant: Ronald Charles Pittman

COUNSEL : Plaintiff: B Townsend Defendant: L Ellison SC

SOLICITORS : Plaintiff: NSW Trustee and Guardian Defendant: Clinch Long Letherbarrow Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2009/316295 NSW Trustee and Guardian v Ronald Charles Pittman - Estate of the late Mary Magdalena Koltai JUDGMENT 1 HIS HONOUR: The plaintiff, the NSW Trustee and Guardian, seeks a declaration as to whether or not the court is satisfied that an undated two-page document constitutes the will of the late Mary Magdalena Koltai under s 18A of the Wills, Probate and Administration Act 1898 (NSW). 2 Mary Koltai died by her own hand on 28 December 2007, aged 50. She was survived by her husband, Mr Ronald Pittman, the defendant. She had no children. The deceased left an estate consisting of a property in Leppington, New South Wales, subject to a mortgage, jewellery, bank accounts in credit to the sum of $11,405.55, shares to the value of $333, a motor vehicle to the value of $37,400, a life policy to the value of $47,365.55 and other incidental items of negligible value. By far the largest asset of the estate was the deceased's real estate. After her death that property was sold by the mortgagee. The net proceeds of sale after discharge of the mortgage debt totalling $493,866.70 have been paid to the plaintiff. After allowing for the costs of these proceedings, the value of the estate is about $500,000. 3 The principal issues are whether the deceased had testamentary capacity at the time she made the informal instrument which is propounded as a document which might constitute her will pursuant to s 18A. Secondly, whether the deceased intended the document to constitute her will. Thirdly, whether the deceased expressed her intention that the document constitute her will a day or two after she made the document, and, if so, whether she had capacity at that time. 4 If the document is admitted to probate the defendant seeks an order for provision out of the deceased's estate pursuant to the Family Provision Act 1982 (NSW). 5 The deceased had a long history of mental instability characterised by mood swings and periodic episodes of serious depression. She was addicted to marijuana. She consumed on average four joints and four bongs of marijuana each day. She was also addicted to amphetamines. She regularly and excessively consumed prescription and non-prescription drugs. She did not normally drink alcohol, but if she were angry or upset, would often drink excessively. 6 In the 20 years before her death the deceased had attempted suicide on at least ten occasions. One of the deceased's friends, Ms Lee Castledine, estimated that she, Ms Castledine, had seen about five suicide notes, a couple of which contained directions as to what the deceased wanted to be done with her property. 7 The deceased met the defendant in July 1997 and they were married in December that year. Their relationship was volatile. This was largely because of the deceased's mood swings and her drug and gambling addictions. They lived in the deceased's house at Leppington. From time to time the deceased would throw her husband out of the house and he would stay a couple of days at a time on his own property before returning. Their relationship would then continue. 8 In November 2005 the deceased filed an application for divorce. She told the defendant that "I still want to be with you but I don't want to be married to you". The defendant successfully opposed the divorce application. The deceased's application was dismissed in about March 2006, apparently on the ground that the parties had not been separated for 12 months. The deceased was upset with the dismissal of those proceedings. 9 The deceased's father died in 2004. There was subsequent litigation over his estate between the deceased and her mother and brother. She became very depressed. The deceased had at least two friends, Ms Castledine and Ms Geraldine Keeley, who supported her. They were aware of her depression and attempted suicides and came to her house to attempt to look after the deceased if they thought she was at risk. 10 The document in question I find was made in mid-2006 in the following circumstances. In mid-2006 Ms Keeley received a telephone call from the deceased. She asked Ms Keeley to come over as she needed her. Ms Keeley was concerned and went straight to the deceased's house. She found the deceased next to the swimming pool with an empty bottle of whisky. The deceased told her that she had called Lifeline. The police came and the deceased assured them that she was just drunk and had not taken anything else. Ms Keeley assured the police that she would stay overnight with the deceased and they went to bed. 11 At about 2am or 3am Ms Keeley awoke and found that the deceased had left the house. She had taken a van and was found by the police apparently driving around paddocks, and was returned. In those early hours of the morning Ms Keeley saw on the deceased's desk the document which is now propounded as a possible will. I infer that it was made at that time. 12 Ms Keeley had to go to work and called Ms Castledine early in the morning to take over the task of looking after their friend. For most of that day and the following night the deceased slept. Ms Castledine had been told by Ms Keeley of the note and also read it. The document is handwritten. It is perfectly legible but more of a scrawl than the deceased's usual writing. It said: " In sound mind, I wish to leave my home - [xxx] [xxx] Leppington 2179, to any drug rehabitilation [sic] organisation to be used solely in the rehabilitation of drug users. This is not negotable [sic] . Any debts incurred by me (Mary Koltai) are to be repaid by Mrs Magdalena Koltai and if she is dead, then all debts are to be paid by Mr Steven Koltai of [xxx] [xxx] Dve Picnic Point 2213. Any monies owed to Mary Koltai of [xxx] [xxx] rd Leppington, 2179 are to be paid in equal amounts, (divided evenly) to 1. Janelle Welsh, of [xxx] Padstow. 2. Geraldine K--- of [xxx] Way Leppington 2179. and last of all, Lee Castledine of Mt Druitt. I would like my stallion, Burrendah - Desert Glow, to be left to Pam Chioncci of [xxx] rd Rossmere. I don't give a fuck what happens to the rest of my belongings. Do not disregard my last wishes. Mary Koltai " 13 The next day Ms Castledine and the deceased had a conversation in relation to the note. In cross-examination Ms Castledine gave the following evidence: " Q. Can you recall the conversation? A. Yes, I spoke with her about - I said you know, 'What are you doing?' And 'Why are you doing this for?' And when I said to her 'What's with the note?' And she said, 'I've got no one else to leave it to' and I went off at her and told her to not be stupid, to stop doing it and not to be stupid.

Q. What did you mean by 'stop doing it' and 'don't be stupid' ? A. Well, stop doing it, stop trying to commit suicide, to not be stupid, to say - she said, 'I've got no one' and I said to her, 'Don't be stupid' and that's when she said, 'Well, I've got no one else' and I said, 'Well, what are you doing, you know, writing this crap?' And she said, 'I've got no one else'.

Q. You didn't have this document with you, did you, when you had this chat in her bedroom? A. No, it was still in the next room in the computer room.

Q. Again just say what you said or what the conversation was? A. I'd asked - because Gerry had told me that there was a note there and I had read it the day before, where Gerry had left it in the computer room where her phone is. Gerry had read it and she had told me about it on the phone. While I was there, the day when she was sleeping all day, I had read it, put it down and then I had spoken to her the next day about it and I just said to her 'Don't be stupid' , you know 'Stop doing this' and 'Don't be stupid'.

Q. Did you enter into a discussion with her about who it might be sensible to leave it to? A. At the time?

Q. Yes? A. No. I was trying to convince her not to do it and not to write these notes to say who she wanted to leave things to. She'd always said she wouldn't - I thought if she wouldn't write a will, then she wouldn't commit suicide, so I was trying to not get her to write a will. "

14 Ms Castledine said that at the time of this conversation the deceased was rational but depressed. She said: " She was depressed but she was rational by then; the day earlier when Gerry [Keeley] had phoned me and asked me to come and see her then she was obviously drunk and knocked around so I spoke with her the next day when she was rational but depressed. "

15 In October 2007 the deceased gave Mr Pittman a document she had typed which stated: " Dear Ron, Once again I have made a fool out of myself. ... Regardless, I have been to the public trustee and sorted my will naming you beneficiary of everything I have. Due to the fact I have no family, and unless like you I meet someone else, which is highly unlikely as I am not looking, you can have it all. ... Love you always MARY "

16 The defendant deposed that when the deceased gave the note to him and he read it he asked "What are you giving me this for?" to which the deceased replied: " I have been to see the Public Trustee at Liverpool about my Will. It's the only Will I have or written in my life. I want you to look after my things. With the house I want you to keep it so the horses and Polly have somewhere to live. Make sure Pam gets Glow. I don't want my brother to have anything to do with my things or property and I want you to always look after my mother. " 17 I accept that evidence. It was confirmed by the defendant in his oral evidence and I was left in no doubt that it was a genuine recollection of what the deceased said to him. 18 I turn to the issue of testamentary capacity. The first question is whether the deceased had testamentary capacity at the relevant time for determining whether the document constitutes the deceased's will. Section 18A of the Wills, Probate and Administration Act (which is the relevant provision because the deceased died before the commencement of the Succession Act 2006 (NSW) on 1 March 2008) provided: " 18A Certain documents to constitute wills etc (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. "

19 Testamentary capacity includes the ability to comprehend and to weigh the competing claims of a testator's testamentary bounty (Banks v Goodfellow (1870) LR 5 QB 549 and King v Hudson [2009] NSWSC 1013 at [50]-[51]).

20 I have concluded that the document was written by the deceased on the same evening she called Ms Keeley and Lifeline for help at a time when she was contemplating suicide, although it does not appear that she then attempted suicide. 21 In the absence of contrary medical evidence, the mere fact that the deceased was depressed to the extent of contemplating suicide might not in itself justify a finding the deceased lacked testamentary capacity (Re Estate of Paul Francis Hodges deceased; Shorter v Hodges (1988) 14 NSWLR 698 and King v Hudson). 22 However, Ms Castledine gave evidence, which I accept, that when the deceased's mood was down she was irrational and could not be reasoned with. Ms Castledine, speaking of when the deceased's mood was down, said: " She was irrational where you couldn't reason with her. So she would be making accusations at anyone for things that they had done her wrong and you couldn't reason with her and say look Mary, that's not the case. She had total tunnel vision of no, they have done me wrong and it's all their fault and it's poor me. You couldn't reason with her and try and make her see no, that's not how it was. " 23 This evidence indicates that when the deceased made the document she would not be able rationally to weigh the claims of persons who were potential objects of her testamentary bounty. Moreover I infer that when she wrote the document she had consumed a bottle of whisky and, notwithstanding her statement to the contrary to the police, it is probable that she had taken other drugs which would have interfered with her cognition. 24 The onus is on the plaintiff to establish testamentary capacity. No expert medical evidence was called on either side. I conclude from the text of the document that the deceased, when she wrote it, had the capacity to understand that she was making a document that might operate as her will. But I cannot conclude that at that time and having regard to the alcohol and probably the drugs she had consumed, and her severe depression, that she was then able to weigh the competing claims of potential objects of her testamentary bounty. 25 Mr Townsend who appeared for the plaintiff did not contest this. He submitted that when the deceased had slept off the effects of alcohol and any drugs and discussed the document with Ms Castledine, being a time when the deceased was rational although depressed, that the deceased then approved the content of the document and expressed the intention that it operate as her will. Counsel submitted that at that time there is no sufficient reason to doubt the deceased's testamentary capacity. 26 I accept that if the time for assessing the deceased's capacity is the second morning after Ms Keeley was called when the deceased and Ms Castledine spoke of the document, then at that time the deceased had testamentary capacity. 27 I also accept that the time for determining the capacity of a putative testator under s 18A is the time at which the testator's intention under the section is to be determined. That may be after he or she had signed the document (In the Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 at 469 and Ryan v Kazacos; Estate of Michael Harvey Kazacos [2001] NSWSC 140; (2001) 183 ALR 506 at [53]). 28 If the deceased had shown in her conversation with Ms Castledine that she intended the document she had signed a day or two previously to be her will then I would accept that she had capacity, and the document could be admitted to probate pursuant to s 18A. But the evidence does not go so far as to establish that the deceased then evinced the intention that the document should operate as her will. 29 The focus of Ms Castledine's complaint in her conversation with the deceased was on the deceased's having attempted suicide (as Ms Castledine saw it), presumably from an overdose of sleeping tablets and alcohol. Ms Castledine was urging the deceased to stop trying to kill herself. The focus of the discussion was not on whether the document truly expressed the deceased's testamentary intentions. The fact that the deceased at that time said "I've got no one else to leave it to" does not mean the deceased was then saying that she intended the document to constitute her will, as distinct from justifying her choice at the time she wrote the document. 30 There was no other evidence of the deceased's having adopted the document as her will. There was no evidence that she said that she still wanted to leave her property in the way set out in the document. Ms Castledine's evidence is at least consistent with the deceased's having intended at the time she made the document that it would constitute her will only if she proceeded to kill herself as she was then contemplating she might do, and seeking to justify her actions. 31 In summary I am not satisfied that the deceased had testamentary capacity at the time she made the document in question and I am not satisfied that later, when she did have such capacity, she expressed her intention that the document should constitute her will. 32 If I am wrong in my conclusion that the deceased lacked capacity to make a will when she made the document, it is necessary to consider also whether she then intended it to constitute her will. There are conflicting indications in the document. 33 The opening words which state that the deceased was of sound mind tend in favour of the view that the deceased then intended to make a testamentary instrument. The first gift, although expressed in terms of a wish, is consistent with an intended disposition of property. 34 The statement that the deceased's mother or brother should pay her debts is more consistent with the document being an expression of her wish as to how her family should act after her death rather than being intended to be a will. If the deceased were able to reason the matter out she could not have thought that by her will she could compel others to pay her debts. 35 The gift of the stallion was expressed in precatory, and not dispositive language. The deceased did not purport to leave the stallion to her friend, but said how she would like it to be left. This is consistent with her not intending the document to be a testamentary act, but a statement of her wish to her family with which she hoped they would abide. 36 The gifts of real property, of debts owed to the deceased, and of her stallion did not exhaust her property. Her statement that "I don't give a fuck what happens to the rest of my belongings" in both its looseness of expression and failure to deal with the rest of her property is more consistent with the deceased's not intending the document to be a testamentary act. 37 The statements that "This is not negotable [sic]" and "do not disregard my last wishes" are also consistent with the document being an expression of the deceased's wish by which she hoped her family would abide. If the deceased intended the document to operate as a testamentary disposition on her death there would be no need for such language. 38 If the document itself were the only relevant indication of intention, I would still incline to the view that the deceased did not intend it to constitute her will. But there is more evidence. The deceased's conversation with the defendant in the following year in which she said that she had not made a previous will, is confirmation that the deceased did not intend the document in question to operate as her will. That statement at least confirms that the deceased did not understand or intend that the document was a testamentary act that was still operative. 39 It is an important feature of the case that the document was produced either in connection with an attempted suicide or in contemplation of suicide. The deceased had repeatedly threatened and attempted suicide and had frequently prepared suicide notes, at least some of which included statements of intention as to how her property should be left. No other note was tendered, but Ms Castledine was able to recall the content of some of them. She deposed that in one such earlier suicide note the deceased had directed her property to go to her great niece. In another such note the deceased had directed that her house go to Ms Castledine with instructions for Ms Castledine to look after her animals. Other notes stated who the deceased thought had done wrong to her or by her. 40 In light of the history of such changing intentions associated with each suicide attempt, for the document in question to be admitted to probate, it would be necessary to show that the deceased intended the wishes expressed in the document should operate even if the deceased did not kill herself in the episode that brought the document into existence. I say that in the context of this case where the deceased survived that particular episode. 41 In other words, and whilst there is no direct evidence to this effect, it is a reasonable inference that if the deceased wrote the note intending it to operate as her will, that intention was temporary and conditional on her taking her own life as she then contemplated doing. 42 A will may be made so as to take effect only on a contingency (see T Jarman, A treatise on wills, 8th ed (1951) Sweet & Maxwell at 39-40). In Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330 Hodgson J (as his Honour then was) considered what might be the position of the maker of an informal will who intended the document to be a stop gap measure to operate only until the maker had had the opportunity to make a formal will. His Honour said (at 335D): " If in those circumstances the deceased died before there was that opportunity, then the document would satisfy the provisions of s18A; while if the deceased subsequently has the opportunity contemplated by that intention and does not take advantage of it, then the s18A intention is not established. "

43 In Hatsatouris v Hatsatouris [2001] NSWCA 408 Powell JA, with whom Stein JA agreed, said (at [59]): " [59] However, while it is legitimate to have regard to statements made, and actions taken, by the relevant Deceased, after the relevant document has been brought into being or signed, in determining whether or not at the time when the document was brought into being or signed, the relevant Deceased had the relevant intention, once it be held that the relevant Deceased had the relevant intention recourse cannot be had to subsequent statements or events - unless they fall within the provisions of s.17 of the Act - to deprive the relevant document of its status as a testamentary instrument. To the extent to which the Judgment of Hodgson J (as he then was) in Permanent Trustee Co. Limited v. Milton (1995) 39 NSWLR 330, 334G-335C suggests otherwise, I disagree. "

44 As I read Permanent Trustee Co. Limited v Milton in the passage referred to by Powell JA in Hatsatouris v Hatsatouris, Hodgson J expressed the same view as to the effect of a subsequent change of intention. Powell JA did not disapprove of Hodgson J's analysis that a conditional testamentary intention ("if I die before I have the opportunity to make a proper will") will be given effect to under s 18A if, but only if, the condition is satisfied. Here, if the deceased ever intended the document to operate as her will, I could not be satisfied that such an intention was absolute rather than being conditional on her taking her own life at the time she then contemplated. The condition not being satisfied she would lack the requisite intent for s 18A to be satisfied. 45 For these reasons the informal instrument does not satisfy s 18A and should not be admitted to probate. 46 The deceased died intestate. The defendant, as her husband, inherits the estate. There is thus no need to consider the defendant's alternative claim for provision under the Family Provision Act. 47 If the document were admitted to probate the plaintiff accepts that the deceased would not have made adequate provision for the defendant's proper maintenance and advancement in life. There was no challenge to the defendant's credit. If there were an appeal from the orders I will make and on appeal it were held that the document should be admitted to probate, the Court of Appeal would be in as good a position as am I to assess what provision should be made for the defendant out of the estate. 48 The only remaining question is one of costs. The ordinary practice in a s 18A case where the testator has been the cause of the litigation is that the costs of the unsuccessful party be paid out of the estate on a party and party basis. 49 The plaintiff seeks an order that its costs be paid on the indemnity basis. It points to two factors. First, the Family Provision Act claim was heard concurrently with the plaintiff's claim for a declaration as to whether the instrument satisfies s 18A. If the plaintiff had been appointed to represent the estate to defend the claim under the Family Provision Act it would be entitled to its costs of that proceeding on the indemnity basis. It assumed the necessary role of contradictor. 50 Secondly, the plaintiff was approached by the defendant because of the deceased's statement to him that she had been to the Public Trustee to make a will. That was not in fact the case. The plaintiff, having been approached by the defendant, took on the role of administering the estate, in effect at the defendant's request. That role included propounding, but not in an adversarial way, the document which was arguably a testamentary instrument. In all of those circumstances I accept that in this case the plaintiff's costs should be paid out of the estate on the indemnity basis. 51 Given the amounts in question, there is unlikely to be any significant difference between an assessment on the indemnity basis and on the party and party basis. 52 For these reasons I declare that the two-page document which is exhibit A does not constitute the will of the late Mary Magdalena Koltai. 53 Secondly, I order that letters of administration of the intestate estate of the late Mary Magdalena Koltai be granted to the cross-claimant. 54 Thirdly, I order that the matter be remitted to the Registrar in probate to complete the grant. 55 Fourthly, I order that the claims for relief in the statement of claim and in the amended cross-claim be otherwise dismissed. 56 Fifthly, I order that costs of both parties be paid out of the estate on the indemnity basis. 57 The exhibits may be returned after 28 days.

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