NSW Trustee & Guardian v Halsey; Estate of von Skala

Judgment 1HIS HONOUR: The issue in this case is whether 17 handwritten instructions signed by the deceased, but not duly executed as a will or wills, should be admitted to probate together with the deceased's will made on 15 August 2006. 2The deceased died on 1 August 2009 aged 88. He was unmarried, had no children and no close relatives. Three wills had been prepared for the deceased by the Public Trustee: one in July 2000; another on 24 March 2006; and the third and last will on 15 August 2006. 3By the will of 15 August 2006 the deceased appointed the Public Trustee and a Mr Allen Dennison as his executors. 4After making certain specific gifts by the will, he left the residue of his estate, which includes a unit in Potts Point, to Mr Dennison for his life. He gave a second life estate to the defendant, Mr Halsey, on the same terms. The remainder of the estate after the determination of the two life estates is given to the St Vincent's Hospital. 5Mr Dennison has been served, but has not appeared. The NSW Trustee & Guardian, being the successor of the Public Trustee, seeks probate of the will of 15 August 2006 with leave reserved to Mr Dennison to apply later to join in the grant. That part of the application is not contentious. 6As I have said, the issue is what other documents should be admitted to probate. Clause 17 of the will provides: "If at the date of my death I have my safe deposit box 2769 at the Commonwealth Bank Martin Place I direct my Trustee to distribute my personal belongings and monies as per letters of direction kept within my safe deposit box." 7The deceased retained safe deposit box number 2769 at the Commonwealth Bank, Martin Place branch, up to his death. Included in the safe deposit box at his death was an envelope containing 18 notes. The notes were undated, but written and signed by the deceased. One such note gives only an address of a Mr Hazelwood. The other 17 are addressed either "To the solicitor", or "To Alan", or to "The solicitor and Alan", or "To Allan Dennison". Thirteen of the notes state "Please give" or "Give", and then there is an identified recipient of a gift for a sum of money or of a sum of money and a particular chattel or chattels. 8Other notes do not use the words "Give" or "Please give" expressly, but clearly state an intention that specified property be given to the identified recipients. For example, one note reads: "To Allan Dennison The Gold ring 2 crest + crown shoul [sic] be willed back to the Sisters of Charity Rockwall Cr. To be kept in the archives + descript. As is my mothers praybook there already [sic]. Thank you". 9There were three notes providing for gifts to the defendant, Mr Halsey. The three notes state: "To the solicitor, please give" or "give T Halsey" or "Trevor Halsey" "$50,000". 10Insofar as it may be relevant, I am satisfied that all of the notes were written and signed by the deceased prior to the making of his will of 15 August 2006. The safety deposit box was only opened once after the will was made. It was opened by the deceased and Mr Halsey on 24 August 2006. Mr Halsey gave evidence that the only thing that was then done by the deceased was to add his will to the safety deposit box. I accept that evidence. 11Whilst it is uncertain over what period of time the notes were made, I am satisfied that they were all made prior to the date of the will and that no note that had been made as at that date was removed from the safety deposit box prior to the deceased's death. 12Two questions arise, although not in this order. The first is whether, by clause 17 of the will, the handwritten instructions are taken to be incorporated into the will of that date and should be admitted to probate as so incorporated in, the duly executed will. The second question is whether it should be declared that the handwritten instructions formed the deceased's will, or an alteration to his will, and should be admitted to probate pursuant to s 8 of the Succession Act 2006. 13Section 8 relevantly provides: "8 When may the Court dispense with the requirements for execution, alteration or revocation of wills? (cf WPA 18A) (1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will-if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will. (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to: (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2)." 14As the answer to the questions raised under s 8 is clear, I prefer to deal with the case under that section. 15The questions arising under s 8 are first, whether there is a document; secondly, whether the document purports to embody the testamentary intentions of the deceased; and thirdly, whether the Court is satisfied that the deceased intended that the document should, without more on his or her part, operate as his or her will (Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]). To restate the last requirement, the question is whether the deceased intended the document to be his or her testamentary act, that is, to have present operation as a will (Re Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 at 455; Oreski v Ikac [2008] WASCA 220 at [52]-[55]). 16The deceased's intention maybe formed when the document is created or subsequently (Application of Kencalo; In the Estate of Buharoff (Supreme Court of New South Wales, Powell J, 23 October 1991, unreported, BC9101481); and see Bell v Crewes [2011] NSWSC 1159 at [25] and [26]; and National Australia Trustees Ltd v Fazey; Estate of Lees (late of Strathfield) [2011] NSWSC 559 at [17]). 17Although it is not clear when the documents were created, except that they were created over many years up to 2006, nonetheless it is clear that the documents purported to embody the deceased's testamentary intentions and he intended them to form his will, along with the formal instrument. 18I draw those conclusions first from the notes themselves. Secondly, those conclusions can be drawn from the fact that the deceased placed the notes securely in a safe deposit box. Thirdly, he expressed that intention in clause 17 of the will. The same intention had been expressed in clause 17 of the earlier will made on 24 March 2006. It also appears from clause 6 of an earlier will made on 11 July 2000. 19Clause 17 of the March 2006 will was in the same terms as the same numbered clause in the later will. Clause 6 of the 2000 will directed the trustees to open the same safe deposit box and to distribute from the deceased's estate those personal belongings and moneys as per signed letters of direction retained in the safe deposit box. That clause of the 2000 will included a statement that the deceased understood that he could not change the letters, or make new ones, without also making a new will, or a properly executed codicil to his will. 20The same statement did not appear in the later wills and it is clear from other evidence that the deceased did not accept that there should be such a limitation on his ability to ensure distribution of his estate by means of such letters of direction. 21Mr Halsey deposes that he first met the deceased in 2001. In due time, Mr Halsey became the deceased's carer. Soon after they met the deceased said to Mr Halsey words to the effect: "I have jewellery for safekeeping and I use the safe deposit box for that. I also keep bits of paper in it. These notes are part of my Will and give instructions to certain people to receive money, jewellery and other things after my death. I change the bits of paper from time to time. My previous solicitor told me that I can change the pieces of paper but not to put a date on them." I accept that evidence. 22Mr Halsey described accompanying the deceased to the bank when the deceased accessed his safe deposit box. Sometimes the deceased would put jewellery into the safe deposit box, or take jewellery out of it. Sometimes he would also change pieces of paper either by tearing up existing pieces of paper in the box, or changing the amounts of money on them, or putting new pieces of paper in the safe deposit box. 23In due course the deceased told Mr Halsey words to the effect "I am going to leave you $50,000 when I die. You've been such a great help to me". Soon after this was said, Mr Halsey and the deceased went to the bank together and the deceased put one of the three handwritten notes, to which I earlier referred (giving Mr Halsey $50,000) into the safe deposit box. This was repeated on two other occasions. 24The deceased acted in a similar way in relation to gifts to a Mr Graham Hazelwood. He wrote three notes giving Mr Hazelwood sums of $10,000, $5,000 and $15,000. On one occasion the deceased made a handwritten notation in the bottom left-hand corner of the last note, the last such note saying "All (30,000)" and then signed it. 25 In a similar way in relation to the gifts to be made to Mr Halsey, the deceased said to Mr Halsey words to the effect "I should bring this up to date. Would you please bring it up to date and I will sign it." Mr Halsey then wrote on one of the notes the figures $50,000, then $100,000 which is crossed, and then $150,000. Then the deceased signed against the $150,000 figure. This is all consistent with the deceased intending these handwritten instructions to operate as testamentary gifts. 26Mr Hazelwood deposed that on about half a dozen occasions the deceased said to him words to the effect "I am placing these notes in the safe deposit box so that I don't have to continually change my Will." 27Mr Barry North who was employed at the office of the Public Trustee acted for the deceased. The Public Trustee held the deceased's power of attorney. Mr North gave evidence of saying to the deceased "Please don't do it this way. Give your gifts in your will and destroy the notes in the bank." But the deceased rejected that advice. He said "No I don't want to do that. I want to be able to change the notes whenever I feel like it." 28When the deceased made his will in March 2006, Mr Halsey was present together with two officers from the Public Trustee. The Public Trustee had prepared the will. In the deceased's presence, after the Will had been read out, Mr Halsey asked "Are these pieces of paper in the safe deposit box legally binding?" Mr Halsey recalls that one of the representatives from the office of the Public Trustee responded with words to the effect of "Yes." There is some minor dispute about that, but no dispute of substance. 29The officer from the Public Trustee who read out the will and to whom this question was asked was a Ms Kelly Scholes. Another officer who attended, Mr Zenon Kowalczyk, said that when the question was asked, Ms Scholes read clause 17 again and summarised the clause by saying words to the effect "The clause is to see the contents of the box are part of the estate." This is somewhat cryptic, but as a response to the question asked it could only be understood as confirming that the deceased's estate would be disposed of in accordance with documents included in the box in the safe deposit box. 30Thus, the deceased on a number of occasions and to a variety of people, expressed the intention to dispose of his estate after his death by means of letters of direction to be placed in the safe deposit box. 31This clearly satisfies the requirements of s 8 for the admission of those documents as forming part of the deceased's will. As the documents were all in existence prior to 15 August 2006 I do not consider that they should be regarded as an alteration to that will. 32It is not a requirement of s 8(2)(a) that the deceased intend the informal document, and that document only, to form his will. 33Section 8 is a remedial section and is not to be narrowly confined. The present case is on all fours with Treacey v Edwards [2000] NSWSC 846; (2000) 49 NSWLR 739 where Austin J found that an audio tape was a "document" for the purposes of s 18A of the Wills, Probate and Administration Act 1898. His Honour concluded (at [31]) that "the formal will of 2 June 1996, taken together with the audio tape, was intended by the deceased to constitute the final statement of his testamentary wishes, and therefore to constitute his 'will'". Irrespective of whether the handwritten letters of direction could be taken to be incorporated in the will of 15 August 2006, in the absence of s 8, I am satisfied that the deceased intended the formal will of that date, together with those handwritten letters of direction in the safe deposit box, to form his will. 34One of the effects of s 8 is to do away with many of the limitations and restrictions that have grown up around the principles by which informally executed documents could be taken to be incorporated in a validly executed will so as to be admitted to probate. Those principles of incorporation are often said to require that: a) the document to be incorporated must be in existence at the time of the will; b) that the will must expressly describe the document to be incorporated as an existing document; and c) the will must sufficiently describe the document to enable it to be identified (e.g. In the Will of Robert Christopher Beveridge (1905) 6 SR (NSW) 125; University College of North Wales v Taylor [1908] P 140; In the Goods of Smart [1902] P 238; Van Straubenzee v Monk [1862] 3 SW & TR 6; 164 ER 1173; In the Goods of Mary Reid [1868] 38 LJ (P & M) 1; Jones v Jones [1942] Ch 328.) 35Were it necessary to decide this issue without recourse to s 8 I doubt that the second requirement suggested by such authorities would be satisfied. Clause 17 refers to letters of direction kept in the safe deposit box at any time up to the deceased's death. It does not expressly identify such letters of direction as being directions brought into existence prior to the date of the will, although I have found that all of the directions that were in the box at the date of death were there at the date of the will. Many of the decided cases would suggest that this is insufficient to admit the documents on the principles of incorporation into a valid will. 36Were it necessary to decide this question it might be necessary to consider the extent to which such authorities remain binding, whether the cases have correctly applied the Privy Counsel's decision in Allen v Maddock (1858) 11 Moo PCC 427; (1858) 14 ER 757 and whether they are consistent with the intentionalist approach to construction that now prevails following Perrin v Morgan [1943] AC 399. As it is not necessary to decide the case on any basis other than s 8, I prefer not to venture into those waters. 37For these reasons, and subject to any submissions counsel may have as to the precise form of the order that should be made, I propose to make the following declaration and orders: