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[2011] VSC 90
Supreme Court of Victoria
2011-03-22
BEACH J
Original judgment source is linked above.
1 John Alan Standing died on 15 April 2008, leaving an estate valued[1] at $4,627,213.59. The deceased also left behind a wife and four adult children. Christina Amanda Prucha, the plaintiff, was the deceased's eldest daughter. Elizabeth Netabuyelo Standing, the defendant, was the deceased's wife. This proceeding concerns a contest between a 1977 Will executed by the deceased and an unexecuted 2008 document purporting to be the deceased's last Will and testament.
2 On 27 February 1977, the deceased executed a Will ("the 1977 Will"). The 1977 Will provided for the appointment of the Trustees Executors and Agency Company Limited to be the deceased's executor. The successor in law of that company is ANZ Trustees Limited. The defendant, Elizabeth Netabuyelo Standing, seeks an order granting probate of the 1977 Will to ANZ Trustees Limited.[2] In other proceedings between the parties,[3] ANZ Trustees Limited was granted letters of administration pending litigation pursuant to s 22 of the Administration and Probate Act 1958. That grant is limited until a grant of probate is made.[4]
3 The plaintiff resists any grant of probate being made in respect of the 1977 Will. The plaintiff alleges that in January, February and March 2008, she had conversations with the deceased which resulted in her preparing a Will ("the March 2008 document"), which the deceased intended to sign - and would have signed but for his death on 15 April 2008. The plaintiff seeks to have the March 2008 document admitted to probate pursuant to s 9 of the Wills Act 1997. That is the principal application in this proceeding.
"A will is not valid unless-
(a) it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and
(b) the signature is made with the testator's intention of executing a will, whether or not the signature appears at the foot of the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other."
"(1) The Supreme Court may admit to probate as the will of a deceased person-
(a) a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b) a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act-
if the Court is satisfied that that person intended the document to be his or her will.
(2) The Supreme Court may refuse to admit a will to probate which the testator has purported to revoke by some writing, where the writing has not been executed in the manner in which a will is required to be executed by this Act, if the Court is satisfied that the testator intended to revoke the will by that writing.
(3) In making a decision under subsection (1) or (2) the Court may have regard to-
(a) any evidence relating to the manner in which the document was executed; and
(b) any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
(4) This section applies to a document whether it came into existence within or outside the State.
(5) ...
(6) ..."
6 The principles to be applied are not controversial. Section 9(1) of the Wills Act establishes three criteria, all of which must be satisfied before an informal document will be admitted to probate: there must be a document; that document must record intentions which are testamentary intentions; and that document must have been intended by the deceased to be his Will.[5] In this case, it is the third criterion which is in issue. Ultimately, I must be satisfied that the deceased intended the March 2008 document to be his Will. In making that determination, regard may be had to any evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased.[6]
7 The only dispute of substance between the parties on the principles governing the plaintiff's application concerned the defendant's reliance upon authorities suggesting that the Court must be satisfied that the relevant deceased demonstrated an intention that the document being sought to be admitted to probate should, without more, operate as a Will.[7] Counsel for the plaintiff contended that use of the words "without more", in considering the issue, has the capacity to put a gloss on the statute. He relied upon Mitchell v Mitchell,[8] wherein EM Heenan J held[9] that some difficulty may be experienced with the phrase "that the document [in question] should, without more on his or her part, operate as his or her Will". His Honour went on to say that "One must be careful to avoid placing any gloss upon the statutory language which, by [the Western Australian equivalent of s 9 of the Wills Act], focuses attention only on whether or not the document purports to embody the testamentary intentions of the deceased, even though it has not been executed in the manner required by the Act". With respect, I agree with EM Heenan J.
8 Finally, as Hollingworth J said in Estate of Peter Brock,[10] because of the nature of probate, the consequences of any findings that may be made, and the inability to hear any evidence from the deceased as to his actual intentions, the Court needs to evaluate the evidence with great care. I turn now to consider the relevant facts.
9 The 1977 Will was executed on 27 February 1977. From the addresses contained in it, it would appear that the 1977 Will was witnessed by two neighbours of the deceased, who gave their occupations as home duties and teacher. There is no dispute that the 1977 Will was validly executed.
"1. I APPOINT THE TRUSTEES EXECUTORS AND AGENCY COMPANY LIMITED of 401 Collins Street Melbourne in the said State to be Executor of this my Will and Trustee of my Estate.
2. I GIVE DEVISE AND BEQUEATH the whole of my estate whatsoever and wheresoever situate to my Trustee UPON TRUST for sale calling in and conversion into money (with power to postpone such sale calling in and conversation for so long as my Trustee shall deem appropriate without being responsible for any loss occasioned thereby) and after payment thereout of all my just debts funeral and testamentary expenses and Probate Estate and Succession duties including duties on notional estate to stand possessed of the proceeds of such sale calling in and conversion and any unconverted estate (hereinafter call 'my trust fund') UPON TRUST -
(a) to pay the income arising therefrom to my wife during her lifetime
(b) on and after the death of my wife for such of my children as shall survive me and attain the age of twenty-one years and if more than one in equal shares share and share alike."
11 The deceased was born in Yarraville, Victoria in 1944. He was 63 years of age when he died. The defendant was born in 1954 in Papua, New Guinea. In 1970, the deceased migrated from Australia to PNG. In 1973, the deceased and the defendant married. The deceased and the defendant had four children: the plaintiff, born in 1974; Lisa, born in 1976; Kylie, born in 1981; and Rowan, born in 1988.
12 In December 1986, the family returned to Australia. They lived with the deceased's parents. In January 1987, the defendant and the deceased returned to PNG. The plaintiff continued her schooling in Australia, completing VCE in 1992.
13 At about the time the plaintiff completed her VCE, the deceased and the defendant returned to Australia. At first, the family lived with the deceased's parents, but shortly after, the family moved into a house directly behind the deceased's parents.
14 Following the completion of her VCE, the plaintiff undertook an Associate Diploma in Business Computing at Victoria University (Werribee Campus). In 1995, she left home to join the Royal Australian Air Force. The plaintiff was posted at various bases in New South Wales, South Australia and Victoria, but ultimately has come to live in New South Wales.
15 The plaintiff gave evidence that in 2002, her mother (the defendant) left the deceased. The plaintiff had a conversation with the deceased in which (to use her words) "He let me know that he was in the process of doing a new Will and that he was going to organise that with the help of Uncle Roy Andrews".[11] Roy Andrews was the deceased's accountant. The plaintiff gave evidence that at the same time, her father (the deceased) told her that he was going to reorganise the family trust and that the plaintiff would become the new trustee.
16 The documents show that in May 2002, a deed was executed between the deceased and the plaintiff in which the deceased was replaced by the plaintiff as the sole appointor of the J & E Standing Family Trust. At the same time, a new company, Rockleys Investments Pty Ltd, was incorporated, and Rockleys Investments took over as trustee of the J & E Standing Family Trust from the retiring trustee, Bokei (Aust) Pty Ltd. The plaintiff was (and is) the sole director and shareholder of Rockleys Investments.
17 Whilst the deceased told the plaintiff in 2002 that he was "in the process of doing a new Will", there is no evidence that the deceased actually executed a Will at this time. However, on 20 June 2002, the deceased wrote to Mr Andrews in the following terms:
"Hi Roy,
Enclosed my previous Will which Ray Sheedy requested I provide.
Essentially, 40 Adams Street and any other property, shares, bank accounts et cetera be bequeathed to the four kids, share and share alike.
Christina to be the executor of the Will.
Liz to be bequeathed, a home (that is a place to reside rather than inheriting a property) and an income of $20,000 per annum to be increased according to CPI increases, and to look to her welfare in her dotage.
[The letter went on to provide details of the four children and the defendant and their dates of birth]
Many thanks Roy,
Regards,
John"
18 This letter enclosed a two page document, stamped "DRAFT" (on both pages) ("the 2002 document"). The 2002 document was headed:
"TATCHELL SHEEDY
SOLICITORS
WILL"
19 That the 2002 document was a draft cannot be doubted. Apart from being stamped "DRAFT", there was a typographical error and an error in the description of the deceased's occupation, both of which were the subject of handwritten corrections. The 2002 document was unsigned, but had provision for witnessing by Mr Sheedy, a solicitor, and a secretary employed by him.
20 Clause 1 of the 2002 document purported to appoint the plaintiff to be the deceased's executor. Clauses 2 and 3 were in the following terms:
"2. I GIVE AND DEVISE to my trustee my property known as upon trust for the use and occupation of my wife ELIZABTH [sic] STANDING during her life with my trustee paying all rates and taxes and other outgoings from time to time payable in connection with my said property and keeping the same in good order and condition and insured against such risks and for such amounts as my trustee shall at her discretion require with an insurance company approved by the trustee and upon the death of my said wife to sell the said residence and the proceeds to fall into and form part of my residuary estate.
(a) to pay the income arising there form [sic] to my wife during her lifetime;
(b) on and after the death of my said wife to be divided equally between such of my children
namely CHRISTINA AMANDA PRUCHA, LISA MICHELLE STANDING, KYLIE ANNE STANDING and ROWAN JOHN WILLIAM STANDING as shall survive me and attain the age of eighteen years. Provided however that in the event of any of my said children having predeceased my [sic] leaving a child or children shall take [sic], then such child or children shall take the share to which his, her or their parent would have taken had he or she survived me."
21 As can be seen from the above, the 2002 document did not specify the property the defendant was going to be permitted to use and occupy. Further, in the margin of Clause 3(a), there was handwriting which included the following words:
"Is income to be stated?"
"$20000 fixed"
22 The plaintiff gave evidence that following the change of trustee of the family trust, her parents "got back together" and purchased a property at Patterson Avenue. However, according to the plaintiff, after living there for a few years, the deceased wanted to live in Adams Street. From that time (on the plaintiff's version), it would appear that the deceased and the defendant each resided in both Adams Street and Patterson Avenue.[12]
23 However, the defendant's evidence concerning her break-up with the deceased in 2002 was to a different effect. The defendant gave evidence that she left the deceased in 2002, but that the separation only lasted three months. Additionally, the defendant said that upon her return to the matrimonial home, she remained living with the deceased until his death.[13]
24 It is to be remembered that the plaintiff left home in 1995.[14] Further, the plaintiff, having lived interstate for some years, was not in the best position to describe the relationship or living arrangements between the defendant and the deceased between 2002 and the date of the deceased's death. I have no reason to doubt (and indeed, I accept) the account given by the defendant of her reconciliation with the deceased and their living together from some time in late 2002 until the deceased's death. Whilst the deceased's former accountant, Roy Andrews, gave evidence that suggested the separation in 2002 may have been for as long as ten or eleven months, as I have said, I prefer the evidence of the defendant on this issue. In any event, whether the separation was for three months or eleven months in 2002 is of no great moment, given that the defendant and the deceased reconciled and then lived together thereafter.
25 The plaintiff gave evidence that, in 2007, the deceased called her and told her that he had been diagnosed with leukaemia. Subsequently, she had a conversation with the deceased about him going to PNG to look after the business of Roy Moore.
26 Upon the deceased's return from PNG, the deceased had a conversation with the plaintiff. The plaintiff gave evidence of this conversation in the following terms:
"Did you speak to your father when he returned?---Yes, I did, my father called me on 20 January a few days after he returned from PNG. He said that he'd done a will while he was in PNG and that Daisy Owen was the one who typed it up for him. He then told me that he wanted to make changes to that will because he wasn't entirely happy with it and then proceeded to ask me to type that will - a new will for him.
Did he tell you what it was that he wasn't happy about?---Yes, in the Daisy Owen will he had given the share in fifths which wasn't his intention. He had wanted to give his estate to his four children and that the trust would look after Liz.
Did he tell - sorry?---He also asked me - sorry, he also asked me to be the executor of his estate.
Yes, I was going to say, did he mention anything else to you in the conversation?---Yes, he asked me to be the executor of his will."[15]
27 Daisy Owen swore an affidavit concerning documents the deceased instructed her to type when he was in PNG in January 2008. In the affidavit, Ms Owen deposed:
"I asked him why he was writing the Will and he replied anything can happen while flying in and out of Papua New Guinea and I have to prepare this Will for my wife and children's (sic) to share the benefits that I have."
28 Daisy Owen was not called as a witness, and the case was conducted on the basis that there was no dispute in relation to her affidavit or what she typed.[16]
29 The Daisy Owen document made provision for witnessing by Nancy Standing and Jean Christina Woods, both of whom were described as "housewife". Clauses 1, 2, 3 and 7 of the Daisy Owen document provided as follows:
"1. I APPOINT MY ELDEST DAUGHTER CHRISTINA AMANDA PRUCHA (Nee STANDING) of RAAF BASE Richmond NSW as Administrator of the Standing family Trust to be the Executor & Trustee of this my will and DIRECT that the following provisions of my Will shall take effect.
My daughters CHRISTINA AMANADA [sic] PRUCHA
LISA MICHELLE STANDING
KYLIE ANNE STANDING
My son ROWAN JOHN WILLIAM STANDING
to be shared and shared alike.
30 The plaintiff gave evidence that the deceased then posted her a copy of the Daisy Owen document, and that she received it some time before 14 February 2008. On 14 February 2008, the plaintiff said she had a further conversation with the deceased. She gave evidence of this conversation in the following terms:
"He called you and what did he say to you?---We discussed the fact that I had received the Daisy Owen will and I had started preparing a will based on the Daisy Owen document that Daisy Owen prepared. Sorry.
HIS HONOUR: Take your time?---He told me he wanted me to be the executrix of his will or the executor of his will. He told me again that he wanted me to type up that will for him because it would save him a lot of money. He also mentioned that he wanted each of his children to be named in full and that his estate would be split up for his four children and that the trust would provide an income for his wife."[17]
31 The plaintiff gave evidence that after that conversation, she handwrote a Will and gave it to her husband to type (as they did not have a computer or fax machine at home). Subsequently, the plaintiff directed her husband to fax the typed version of the plaintiff's handwritten draft to the deceased. The draft was faxed to the deceased on 13 March 2008.
32 On 14 March 2008, the plaintiff said she received a telephone call from the deceased, letting her know he had received the fax, but that there was a fax error and he had only received the first page. The plaintiff's evidence of this conversation continued:
"Whilst on the telephone he told me that he had done handwritten amendments to that Will which I then wrote down as well. He then said he would post me the faxed copy that he had written on ...".[18]
33 The page of the fax received by the deceased was in the following terms:
34 The handwritten change of significance was the insertion of Lisa Standing's name under Kylie Standing's name in Clause 2, followed by the words "(to be co-executors)". In addition to making this handwritten change, the deceased corrected a typographical error, underlined the words "absolute discretion" in Clause 4 and added some notes about itemised assets and chattels at the foot of the document.
35 The plaintiff gave further evidence of what was said to her by her father on 14 March 2008. She said that one of the changes he wanted was to add Lisa and Kylie as co-executors as "that would show accountability".[19] It is not immediately clear how appointing Lisa and Kylie as co-executors would "show accountability". Whilst I accept that the plaintiff believes that was what the deceased said, it raises the possibility that there was some miscommunication or misunderstanding between them.
36 As to the division of the deceased's estate, the plaintiff gave evidence that on 14 March the deceased "was very clear about his estate - his personal estate to be divided amongst his four children which he wanted named in full and that the trust would provide an income and a home for Elizabeth [the defendant]".[20]
37 Additionally, the plaintiff gave evidence of two further matters discussed on 14 March 2008, namely:
(a) the fact that the deceased wanted his children's names spelt out in full in Clause 4; and
(b) what was to happen if any child died before the deceased.
38 As to the issue of children dying before the deceased, the plaintiff said:[21]
"Yes, he was concerned that if - let's say I passed away what would happen to my children - their share - and it was then decided by my father that it should go back into the estate to continue providing support for my mother and then once she passed away then it could be divided."
39 However, during cross-examination, the plaintiff gave a different account:[22]
"He was very particular in making sure that each of our - each of the children's names were spelt out and he was very particular in the fact that if I was to die and left my children, that my children would then get my share. But if my children pass away, then that share has - something has to be done with that share.
What was that?---That it would be put into the trust to provide for my mother.
So if you passed away and your children passed away it would go into the trust?---Yes.
For your mother, that is what he wanted was it?---Yes."[23]
40 When the fact that the plaintiff had sworn to two different versions (grandchildren's shares to go back into the estate, as compared to great grandchildren's shares going back into the trust), the plaintiff said that her first version was correct.[24]
41 The plaintiff also gave evidence about discussions with the deceased prior to the preparation of the page that was faxed on 13 March 2008. The plaintiff said that the effect of these discussions was that the family trust was to remain in her control as trustee and sole appointor of the trust, and that she was to provide for her mother (the defendant) and provide a home for her.[25] It is, of course, to be remembered that the plaintiff was not the trustee of the family trust: the trustee was Rockleys Investments.
42 Following the conversation on 14 March 2008, the plaintiff (with the assistance of her husband) made various amendments, resulting in the production of the March 2008 document. The March 2008 document provided as follows:
SIGNED by the said JOHN ALAN STANDING as and for )
his last Will and Testament in the presence of us both being )
present at the same time who at her [sic] request in her [sic] )
presence and in the presence of each other have hereunto )
subscribed our names as witnesses:"
43 Immediately, one sees that there are errors in the March 2008 document. First, the defendant's middle name is misspelt in Clauses 4 and 5. Secondly, whatever the correctness or appropriateness of referring to the J & E Standing Family Trust in Clause 5, the reference to the J & E Standing Family Trust in Clause 6 is wrong; it is the trustee of the estate who would be able to postpone the sale or calling in et cetera, rather than the trustee of the J & E Standing Family Trust. Thirdly, the use of the word "her" (twice occurring) in the attestation clause is wrong. Fourthly, the word "parents" in Clause 4, rather than "parents' ".
44 In her evidence, the plaintiff was asked about the use of the word "her" in the attestation clause. The plaintiff's explanation was that the attestation clause had been copied from the attestation clause of her own Will (which document she had available to her at the time of the preparation of the March 2008 document). However, it is to be noted that in the attestation clause of the plaintiff's Will, the word "her" appears three times, and the first of these was changed to "his" in the March 2008 document.
45 Following the preparation of the March 2008 document, two copies of it were sent to the deceased. The plaintiff gave evidence that after this occurred, the deceased telephoned her on 27 March 2008. The plaintiff gave evidence of this conversation in the following terms:[26]
"My father often called me from his mother's house because he often went to my grandmother's house on Tuesdays and Thursday to run errands for them, take them shopping and do all those things that you do for your parents. It was early in the morning, my father was coughing during this conversation, he'd been coughing during other conversations that we'd had earlier in the year as well. He had told me that he'd been going for walks with Alan Didlick in the Botanical Gardens. He said that when going on these walks he felt much better, the pain in his side would ease. He then told me that he had received the copies that I had sent him. I asked him, 'Are you happy with them, is there anything you'd like changed?' He said, 'No, that's perfect.' We then discussed the Easter holidays, school holidays, that my husband Simeon and I would be coming down to Melbourne to visit and he said that that would be a great time to then go and see Tina Burke, a solicitor that - a lawyer I think she is - that he had had dealings with before and he liked her and she was a nice lady. We discussed preferable dates that this should happen and I suggested between the 14th and the 17th. There is a handwritten note that we found where he'd jotted down those dates. We then settled on the 16th of April to be the date that my - I left it with my father to arrange that meeting. He said he would sign in front of a lawyer and give me a copy to retain for myself and that the lawyer would then also retain the other copy.
Did he say why he wanted to sign it in front of a lawyer, lawyer's charge money usually?---Yes but I'd already written it so he was happy to - - -
What did he say about why he wanted to sign it in front of a lawyer?---To make it legitimate."
46 This conversation had been the subject of description in affidavits sworn by the plaintiff in this proceeding. However, the affidavits sworn by the plaintiff failed to make any reference to Tina Burke or the fact that it was contemplated that the March 2008 document would be signed in front of a lawyer. These were significant omissions. A substantial attack was made on the plaintiff's credit in relation to this issue, and in relation to the failure to discover the deceased's handwritten note, referred to by the plaintiff in her evidence, until 1.30pm on the day before trial.
47 The deceased's handwritten note contains some writing that is not his and some other unrelated writing. The relevant parts appear to be:
"Christina + Simeon
14th April - 23rd
Sorrento 17th - 19th
(15th - 17th) - solicitor."
"Tina Burke.
Solicitors
Wednesday 16th
Will appointment"
48 A fair interpretation of his handwritten note (assisted by the evidence of the plaintiff) was that the deceased expected the plaintiff and her husband to be in Melbourne some time between 14 and 23 April 2008, and that he would see a solicitor between 15 and 17 April. The note in respect of Tina Burke suggests that an appointment was, at least, contemplated for 16 April.[27] The plaintiff gave evidence that the reference to Sorrento was a reference to her family visiting Sorrento between 17 and 19 April.
49 Finally, it was suggested to the plaintiff in cross-examination that "The purpose of that time was to draw up a Will and have it finished off as it were by Tina Burke". The plaintiff denied this suggestion, saying that the March 2008 document was "the final Will" and "was to be witnessed by her".
50 It is common ground between the parties that on 2 April 2008, the deceased, who had been feeling unwell for a couple of days, was admitted to the Alfred Hospital. On 3 April, the deceased was placed in a medically-induced coma. From that time, until his death on 15 April 2008, the deceased did not regain consciousness. The cause of death and duration of last illness was recorded on his death certificate as:
"Legionella septicaemia/pneumonia - 13 days.
Chronic lymphocytic leukaemia - years.
Acute renal failure - 13 days".
51 The plaintiff called Roy Andrews. Mr Andrews is the person the plaintiff referred to as Uncle Roy Andrews in her evidence-in-chief.[28] Mr Andrews first met the deceased in 1973 in PNG, and commenced acting as his accountant in 1982. Mr Andrews gave evidence about the setting up of the J & E Standing Family Trust; the change of trustee and appointor in 2002; what he knew of the break-up between the deceased and the defendant in 2002 (which, on his evidence, would appear to have lasted for some months during that year); the deceased sending the 2002 document to him; and conversations about signing his Will thereafter.
52 Of critical importance, Mr Andrews gave evidence of a conversation he said he had with the deceased approximately three weeks before the deceased died. The deceased telephoned him. During this conversation, the deceased said:
"Are you ready for a laugh?"
"I'm actually going to do my Will."
"Christina's coming down in the Easter school holiday break, and she will have a drafted Will which we have discussed, and which I am satisfied with and I will be signing it at that time."
53 Notwithstanding the close connection between the plaintiff and Mr Andrews, I have no reason to doubt (and in fact, I accept) that he had a conversation with the deceased, the substance of which was in the terms recounted by him. Whilst the conversation is corroborative of the plaintiff's claim, it is to be noted that Mr Andrews' recollection of his conversation with the deceased is that the plaintiff will have a drafted Will which had been discussed. The possibility arises that this conversation occurred prior to the final preparation of the 2008 document. However, the reference to the plaintiff coming down in the Easter school holiday break probably puts this conversation after the conversation between the plaintiff and the deceased on 27 March 2008 (albeit that that would make it less than three weeks before the death of the deceased).
54 Of less assistance to the plaintiff, is Mr Andrews' recollection of the deceased's intentions. Mr Andrews said:[29]
"[H]e gave me a rough outline of what was in the Will. He stated that it was his intention to see Elizabeth, his wife, would by succession get the house at Patterson Avenue for her permanent domicile, and she would also receive the income from the family trust for the rest of her days. The balance of the assets ... those assets were to be distributed equally between the four children." (emphasis mine)
55 An issue in this case concerns references to the J & E Standing Family Trust and the trustee of the J & E Standing Family Trust in the March 2008 document. The benefits purported to be given to the defendant by Clause 5 of the March 2008 document are benefits to be provided by the J & E Standing Family Trust. However, it is to be remembered that the deceased had (as at 2008) no power to direct the trustee, nor any power to direct that amounts be paid out of that trust (subject, perhaps, to a right - had he chosen to exercise it - to direct repayment of his loan account[30] to a particular person). The plaintiff's answer to such problems when they were raised was that "My father trusted me". That is, it was suggested that the deceased trusted the plaintiff that she would comply with his wishes in respect of the defendant as expressed in the March 2008 document. To this end, Mr Andrews also gave evidence that the deceased told him that he trusted the plaintiff implicitly.
56 Further, when counsel for the plaintiff's attention was drawn to Mr Andrews' evidence that the deceased told him the defendant would "receive the income from the family trust for the rest of her days", he submitted that this was of no great moment because that was a mere intention, rather than a testamentary intention. Reliance was then placed on authority to the effect that testamentary intentions are an expression of what a person wants to happen to his or her property upon death.[31] That testamentary intentions are an expression of what a person wants to happen to his or her property upon death may be accepted. However, where reliance is placed upon conversations involving a deceased person, in scrutinising those conversations, some care needs to be exercised.[32] Clearly, it is not of assistance to the plaintiff in this case to have evidence of two different conversations with the deceased in or about March 2008 wherein the deceased appears to say different things on an issue of some significance (the proper maintenance of his wife).
Findings in relation to the events of January, February and March 2008
57 The plaintiff gave her evidence-in-chief in a straightforward manner, impressing me as a person attempting to give an honest and accurate account of events as she believed them to be. In cross-examination, a substantial attack was made on her credit. This resulted in the plaintiff being somewhat combative at times, and perhaps being more of an advocate for her cause than a witness. Whilst some of the plaintiff's answers on peripheral matters were surprising, overall I remained of the opinion that the plaintiff was doing her best - and not seeking to mislead me.
58 Much of the plaintiff's evidence of the conversations between herself and her father in the period January to March 2008 was corroborated by the documents generated during this period (and to which I have already referred). Whilst there was cross-examination as to conversations that occurred between the deceased and the plaintiff (and about which no specific evidence was given),[33] I accept that the plaintiff had conversations with the deceased, during January, February and March, largely to the effect of the conversations described in her evidence. Further, I accept that these conversations culminated in the deceased saying in late March 2008 that what the plaintiff had done was perfect. The real issue is what the defendant actually intended, about which I will say more below.
59 There is greater controversy about the plaintiff's evidence that Tina Burke was only to be consulted for the purpose of having the Will signed in front of her. The plaintiff swore three affidavits in this proceeding in support of her application to admit the March 2008 document to probate. A central issue in this case has always been the deceased's alleged conversation with the plaintiff on 27 March 2008. In none of her affidavits did the plaintiff ever mention Tina Burke or any conversation about having the March 2008 document signed in front of a solicitor. These were serious omissions. However, having seen the plaintiff (and for the reasons I have already given), I am not satisfied that this involved any attempt by the plaintiff to mislead the Court.
60 Nevertheless, the failure to mention these significant matters (when one would have expected them to have been mentioned) casts some doubt upon the plaintiff's evidence insofar as it was to the effect that the March 2008 document would be signed in front of a lawyer, without that lawyer making any alteration to it, or having any other involvement. Further, when the plaintiff first dealt with this issue in evidence-in-chief,[34] the tenor of her evidence was that she and her husband were to be witnesses signing in front of the solicitor. Whereas, in cross-examination, when it was suggested to the plaintiff that the Will would be executed in front of the solicitor, the plaintiff cavilled with this proposition, saying "It was to be witnessed by her [the solicitor]".[35]
61 When one examines the plaintiff's oral evidence carefully, one sees that what she is saying is that the deceased told her on 27 March that he would sign the March 2008 document in front of a lawyer "to make it legitimate".[36] Nowhere does the plaintiff specifically say that the deceased said that the solicitor (Tina Burke) would have no other involvement or that the March 2008 document could not be amended as a result of any advice that might be given by the solicitor. In the circumstances, I am not prepared to conclude that the deceased made any such statement. However, if I am wrong about this, then the question remains: "What were the deceased's real intentions?".
Did the deceased intend the March 2008 document to be his Will?
62 The deceased was obviously a successful businessman, amassing significant assets during the course of his life. The evidence discloses that he was a meticulous person, and the sort of person who would "be very much wanting to get things done right".[37] He was also described as an educated man who read extensively and who wrote things very carefully. He was also variously described as "not a confrontational person", a person who had "a great attention to detail", a person who "used to dot his I's and cross his T's",[38] a person who had a tendency to procrastinate, and a person who was "careful with his money". The evidence also disclosed that he was a person who used lawyers from time to time. Although, as one witness[39] put it, he was so careful with his money that he would only use lawyers when absolutely necessary. In final addresses, both sides agreed that the evidence disclosed the deceased to have been "an astute, careful and well-organised businessman".[40]
63 Prior to the creation of the March 2008 document, the deceased had arranged for the preparation of the 2002 document and the Daisy Owen document - neither of which he ever executed. The description of the deceased as someone who procrastinated throws no light on why the deceased never arranged for the finalisation of the 2002 document, nor executed the Daisy Owen document or the March 2008 document. When asked about the events of 2002, Mr Andrews said that, as far as he knew, the deceased "fully intended at that time" to instruct a lawyer to make a will for him. All that can be said in respect of the Daisy Owen document is the plaintiff's account of her conversation with the deceased in which he said that he was not entirely happy with it. There is no basis for any suggestion that Daisy Owen typed something different from the deceased's instructions to her.
64 It is trite to say that from time to time people say one thing, intending to do something different. There is no doubt in my mind that the deceased asked the plaintiff to prepare the March 2008 document in order to save legal costs. Unsurprisingly, the deceased (who had imposed this burden on the plaintiff) ultimately said to the plaintiff that the document was "perfect". This, in the face of the obvious errors it contained.[41] The plaintiff was the daughter of the deceased. She had had two goes at producing a document for the deceased. The deceased obviously loved her. If the deceased did not intend to ask the plaintiff to do any further work on the document, then all that remained for him to do was to tell the plaintiff that she had done what he wished to be done. Such a course also conforms with the description of the deceased (agreed in by the plaintiff) as a person who was not confrontational.
65 Similarly, the evidence of Mr Andrews is unsurprising. After 2002, it had become a joke between the deceased and Mr Andrews that the deceased kept putting off finalising a new Will.[42] A social telephone call to tell Mr Andrews that he was "going to do" his Will is entirely consistent with the events of January to March 2008. However, if the precise detail of Mr Andrews' evidence is to be accepted, then the March 2008 document did not record the deceased's intentions so far as the income stream to be provided to the defendant ("the income from the family trust" as allegedly said to Mr Andrews, compared with an income of $25,000 per annum indexed to CPI as provided for in Clause 5 of the March 2008 document).
66 The conversation between Mr Andrews and the deceased needs to be scrutinised and considered with some care.[43] In the end, I am not prepared to conclude that what the deceased said to Mr Andrews was that he would be signing the March 2008 document unaltered and without further correction or amendment. Mr Andrews' reference to a "drafted Will" which the plaintiff would bring with her throws further doubt on any such proposition. In my view, it is more likely that what the deceased conveyed to Mr Andrews was satisfaction with what the plaintiff had done and an intention to finalise (or "do") his Will in the near future.
67 The problem with the plaintiff's case is the deceased's explanation as to why he wanted to sign the Will in front of a lawyers (the explanation being "to make it legitimate"). Given the deceased's background and experience, it is difficult to accept (and I do not accept) that the deceased believed that in order to make the Will legitimate it had to be signed in front of a lawyer. There is no reference in the 1977 Will to it being signed in front of a lawyer: the 1977 Will was witnessed by people who described their occupations as "home duties" and "teacher". Further, the Daisy Owen document contemplated that the witnessing of it would be done by two witnesses whose occupations were given as "housewife". Additionally, the existence of Will kits (not requiring the involvement of a lawyer) has been notorious for many years.
68 In my view, the more likely position as at the end of March 2008 was that the deceased was happy to have a document that could be given to a lawyer (Tina Burke) for finalisation at what would have been a lesser fee than had the solicitor had to start from scratch. It is very unlikely that a man who was careful with his money and who only retained lawyers when necessary, would be prepared to incur the possibility of paying legal fees merely for the privilege of having his Will signed in front of a solicitor - which fact[44] (if the March 2008 document was to be used) would not be recorded on the Will.[45] It is more likely that the deceased (being a careful man[46]) wanted to check with a lawyer that the March 2008 document in fact recorded his intentions - and if it did not, then to take advice as to alterations which would reflect his intentions. A careful and astute businessman would, at least, as likely as not want legal advice about the meaning and operation of Clauses 4 and 5 in the March 2008 document.
69 For these reasons, I am not satisfied that the deceased intended the March 2008 document to be his Will. Whilst I have not made reference to the inability of the deceased to direct the J & E Standing Family Trust to provide anything to the defendant (a point which the plaintiff answers by saying that he deceased trusted her), the unenforceability of Clause 5 of the March 2008 document provides further grounds for doubting that the March 2008 document expressed the testamentary intentions of the deceased. Further, in my view, it was no answer for the plaintiff to submit that Clause 5 and the deceased's wishes for the family trust to make provision for the defendant, were not testamentary intentions but mere (non-testamentary) intentions of the deceased.[47]
70 It follows from what I have said above, that the plaintiff's application to admit the March 2008 document to probate must be dismissed. I will hear the parties on the appropriate form of orders and the issue of costs.
[1] As at 2 December 2008, and according to an inventory of assets and liabilities sworn to by the plaintiff.
[2] This order is sought "subject to the requirements of the Registrar of Probates", which the parties agreed, encapsulated compliance with formal processes, including appropriate searches (see T178.7 - .18, during which Senior Counsel for the defendant was nodding his head in agreement).
[4] See the terms of the order made by Kyrou J on 21 October 2010 in proceeding number S PRB 2010 13633.
[5] See Re Masters; Hill v Plummer (1994) 33 NSWLR 446; Re Trethewey [2002] VSC 83; (2002) 4 VR 406, 408 [11]. See further, Estate of Peter Brock [2007] VSC 415 [13] - [47] (Hollingworth J), and in particular at [29] wherein her Honour said:
"It is necessary, but not sufficient, that the document sets out the deceased's true testamentary intentions. The deceased must also have intended that the document in question operate as a will. In enacting s9, the legislature did not intend that any document expressing or reflecting testamentary intentions could be probated under s9; the testator must have intended the particular document to constitute a will, and for the document to immediately operate as his or her will at the time it was created or completed".
[7] See for example The Application of Kencalo (In the estate of Ruth Buharoff), unreported Supreme Court of New South Wales, Powell J, 23 October 1991 at p 10 and Oreski v Ikac [2008] WASCA 220 at [55].
[10] [2007] VSC 415 at [47].
[23] See also the same account given at T114.2 - .6.
[27] It appears that the note originally said Tuesday 15th and that this was amended to Wednesday 16th. This may suggest that an appointment was actually made. However, no evidence was led in respect of this matter.
[30] Valued as at 2 December 2008, according to the inventory of assets and liabilities, at $1,109,858.
[31] Cf Re Trethewey [2002] VSC 83; (2002) 4 VR 406, 409 [16].
[32] As with all conversations between a living witness and a dead person: see Clune v Collins Angus & Robertson Publishers Pty Ltd [1992] FCA 503; (1992) 25 IPR 246, 253.
[34] T49, T89.13 - .14 and T103 (where the plaintiff said it was intended that "all of us [the plaintiff, her husband and the deceased] go to see Tina Burke and be witnesses".
[36] See T49.7 - .24, T89.13 - .17 and T112.25 - .30 (although at T112.29 - .30, the plaintiff was asked and answered the following question:
"It was to be executed in front of her?---It was to be witnessed by her.").
[38] At least, according to Mr Andrews, up until the time the deceased's "health started to ail".
[40] See paragraph 23 of the outline of defendant's submissions dated 17 March 2011 and T254.31 - T255.5.
[41] The misspelling of the defendant's middle name in Clauses 4 and 5 (although it must be conceded that the deceased did not correct the same misspelling in Clauses 4 and 5 of the document faxed to the deceased on 13 March 2008); the inappropriate reference to the J & E Standing Family Trust in Clause 6; the incorrect use of the word "her" (twice) in the attestation clause; and the use of the word "parents" without an apostrophe.
[43] As with all conversations between a living witness and a dead person: see Clune v Collins Angus & Robertson Publishers Pty Ltd [1992] FCA 503; (1992) 25 IPR 246, 253.
[44] The signing of the Will in front of a solicitor.
[45] Unless (as the plaintiff suggested at T112.29 - .30) the March 2008 document was in fact to be witnessed by the solicitor. But again, cf the plaintiff's evidence at T89.13 - .14, namely, "It was to have the Will that I had prepared signed in front of her".
[46] Either with money, or writing things down, or more generally.
[47] Cf Clause 3 of the March 2008 document, which makes the following provisions (including Clause 5), provisions of the deceased's purported Will.
Prucha
Standing [2011] VSC 90
(1994) 33 NSWLR 446
(2002) 4 VR 406
(1992) 25 IPR 246