Re Estate Beeby; Beeby v Eggers

Supreme Court of NSW|2015-02-26|Before: Lindsay J

P Menadue (Plaintiff) J Brown (First Defendant) N Bilinsky (Second Defendant)

Solicitors: Brennan Tipple Solicitors (Plaintiff) Kiki Kyriacou Lawyers (First Defendant) Michelle Harding Lawyers (Second Defendant) File Number(s): 2012/00081067

The 2008 Will

The will dated 30 December 2008 takes the form of a printed pro-forma will, in the character of a "will-kit" sold over the counter, completed (with immaterial blank spaces) in the hand of Pauline.
Clause 1, part of the printed form, provides for revocation of all previous Wills and testamentary acts and dispositions.
According to other terms of the Will: 1. clause 2 appoints John and Pauline as executors and trustees. 2. clause 4 provides for each of Pauline and John to receive a legacy of $220,000. 3. clause 5 provides for the deceased's residuary estate to be divided into nine shares (each expressed to be for "11.11%") with one share to go to each of those of her eight children who survived her and the remaining share to be divided between the four children of Patricia.
The will was witnessed by Mr JK Selby and Mr SJ Williams.
The will was executed by the deceased in the lounge room of her home and in the presence of the two attesting witnesses (Messrs Selby and Williams), Pauline and John.
Mr Selby was a neighbour of the deceased, Pauline and John (all of whom lived on the deceased's Mangrove Mountain property) and a friend of John, with whom he shared an interest in horses. Before his own death in December 2013, he swore an affidavit in which he deposed to the deceased's competency at the time she executed the will, and the regularity of the process of execution. He did not read the will before signing it. By reason of his death, he was not available for cross examination on his affidavit.
Each of the three other people present at the time of execution of the will provided an affidavit deposing to the competency of the deceased, and the regularity of the process relating to execution of the will. Each was cross-examined.
Mr Williams, who had trained as an aged care worker, was a neighbour who, on the day of execution of the will, was doing odd jobs on the deceased's property. He was a friend of John, with a shared interest in horses. His ex-partner had re-partnered with John. He knew Mr Selby but, evidently, not well.
Mr Williams was on friendly terms with Anne at the time. She was on the property, but not involved in execution of the will. After the fact, shortly after its execution, Mr Williams told her, apparently in casual conversation, that he had witnessed the will. She did not engage in the will-making process, but she had almost contemporaneous knowledge of the will having been made.
Anne swore affidavits, and gave oral evidence, the effect of which was that the deceased was not competent to execute the will. Her evidence was corroborative of that of the first defendant (Julie) in opposition to the validity of the will. On their evidence, the deceased was almost in a vegetative state on the day the will was executed.
Although the will bears the date "30 December 2008", the defendants suggest that it was in fact executed on 31 December 2008.
A resolution of that dispute is not of critical significance. It is subsumed in larger questions about the deceased's capacity, knowledge and approval. Nothing of substance ultimately turns on the correctness of the date.
The plaintiffs, John and Pauline, swore affidavits, and were cross-examined, on their evidence in support of the will's validity.
In addition to unrelated church friends of the deceased, John's partner, Kim (formerly the partner of Mr Williams) also deposed to the deceased's general competence in or about December 2008.

The 1999 Will

The will dated 16 April 1999 was typed on a single sheet of paper, with four unnumbered paragraphs.
It was in terms to the following effect: "I revoke all former testamentary dispositions. This is the last Will and Testament of me [the deceased of Mangrove Mountain] I appoint [John] and [Patricia's husband, who died in June 2007] as my joint Executors and Trustees hereof my Estate. Property at Mangrove Mountain to be sold and divided as follows. The trustees shall sell my property, the mortgage to be paid and the balance to be divided as set out below:- The first $220,000 for the purchase of a home of her choice for my daughter [Pauline] for her sole use in her lifetime provided she survives me for 30 days the balance of my estate to be divided evenly amongst my surviving children [who, nine in number at the time the will was executed, are specifically named in the instrument]."
The two attesting witnesses were a neighbour, Mr EG Morris, and an itinerant worker from Japan then living and working on his farming property. Mr Morris verified the deceased's execution of the will. The whereabouts of his co-witness was unknown. No evidence was adduced from her.
The will was drafted by Patricia. Pauline was not involved in its making, other than to help the deceased and Patricia find a witness.
There is no evidence that Patricia was legally qualified.
Mr Morris was a Justice of the Peace of long-standing.
An unusual feature of the will-making process was that the will was executed in triplicate, although the whereabouts of only two of the three documents was known at the time of hearing of these proceedings.
Mr Morris was unable to explain why the will was executed in triplicate.

The 1992 Will

The will dated 4 September 1992 takes the form of a single page, part of which is typed and part of which is handwritten.
The typed portion of the document is in terms to the following effect: "This is the LAST WILL and TESTAMENT of me [the deceased of Kellyville, NSW]. I appoint the PUBLIC TRUSTEE and [John] and [Patricia's husband, now deceased] as my joint Executors and Trustees hereof my Estate. Property at [Kellyville] to be sold The Proceed to be divided as follows. 1. THE TRUSTEES shall purchase a property to a value not exceeding $250,000 which they shall hold in trust provided for the sole and singular use and occupancy of my daughter [Pauline] provided she survived me for thirty days for the term of her natural life the said property shall be selected by Pauline a further $40,000 shall be invested with a bank on fixed deposit 60% of interest received shall be used for maintenance and local council rates on the said property and upon her death the property sold and divided amongst my children. 2. That balance of my estate shall be divided evenly amongst my nine children [specifically named]."
Against the word "children" at the end of clause 1 appears, in handwriting: "IE THE OTHER EIGHT".
Insofar as the text of the will is in handwriting, it is to the following effect: " I confirm that these instructions do express my testamentary intentions as at this date, and I wish this document to constitute my will until some further document, if any, replaces it."
The Will is said by the first defendant to have been witnessed by members of the staff of the Public Trustee. Beyond that, their identity is unclear.
Documentation produced on subpoena from the records of the Public Trustee (now the NSW Trustee and Guardian) are broadly consistent with the scheme of the 1992 will as advanced by the first defendant; but a much longer, more sophisticated document prepared by the Public Trustee was evidently not executed by the deceased, whose behaviour is described in the Public Trustee's contemporaneous records as eccentric.
In light of findings made in this judgment about the 2008 will (and, as a precaution, the 1999 will) it is not necessary to dwell upon the status of the 1992 will.
Accepting that it was duly executed, it was made, almost literally, in the wake of the death of the deceased's husband (Charles) in late July 1992.
The effect of the will, if admitted to probate, would be little more than to identify those to whom, prima facie, administration of the estate would be granted.
The substantive provisions of the Will could have no operation. They are tied to property of the deceased (at Kellyville) sold well before her death. The deceased moved from Kellyville to Mangrove Mountain in 1994. In substance, her estate (principally, the Mangrove Mountain property) would have to be administered as an intestate estate.
That would suit the first defendant (Julie), the principal proponent of the 1992 will by virtue of her challenges to both the 1999 will and the 2008 will. She harbours a strong conviction that her mother's estate should pass to the next generation without any preferential allowances in favour of the plaintiffs.

The 2008 Will

That the 2008 will was, objectively, attended by "suspicious circumstances", reinforcing the need for a critical assessment of the deceased's testamentary capacity and her knowledge and approval of the will, is beyond contest. The deceased was elderly and in poor health. She was, in daily living, more or less dependent upon the plaintiffs, with whom she resided on her Mangrove Mountain property, and in whose care she lived. Both were involved, more or less, in the process of the will being made. Both received preferential treatment under the will viz á viz their siblings. The first plaintiff (John), in particular, received preferential treatment not allowed to him under earlier wills.
Although she was of advanced age, and in poor, fluctuating health, the deceased was a feisty, independently minded woman.
The plaintiffs' evidence in support of her competency, and her knowledge and approval of the will, strikes me as having an objective foundation in fact.
It is supported by evidence from the deceased's general medical practitioner, Dr Anandasivan. He treated her for the last 3 ½ years of her life. He was aware of her physical frailty, her medical conditions and her susceptibility to variations in health associated with whether she did, or did not, take medicine prescribed for her. He was not on the spot when she executed the will, but he attended upon her a fortnight or so on either side of her execution of it. His evidence, to which he adhered in cross-examination, was that, to his observation, the deceased was clearly capable of understanding the process of making a will, and all that entailed, and she was not incapacitated by dementia or any other condition that would have rendered her unable to make a will.
The role of the plaintiffs in the making of the will is not remarkable in the context of relationships within the family and the character that the deceased was.
In that context there is nothing sinister in a will being made without recourse to legal advice. This was a self-reliant, matriarchial family, not given to formalities not perceived by them to be necessary. Legal advice was not sought, obtained or thought necessary. The deceased was in control of her senses and the will-making processes. She relied, especially, on Pauline because she was confident she could do so.
John's history of gambling, evocative of an addiction, requires particular caution in approaching his evidence and that of all the witnesses present at the signing of the will, given their affinity with him and the preferential treatment accorded to him in the will.
Nevertheless, despite inconsistencies in her evidence, Pauline remains a firm foundation on an assessment of the validity of the 2008 will.
In making this observation I allow for the fact that, although Pauline attached importance to the deceased's 1999 will being executed in the presence of a justice of the peace, no attempt was made to follow a similar process in execution of the 2008 will.
Bearing in mind that each of the plaintiffs had cared for her, and lived with her or in close proximity to her, for many years, there is nothing untoward in the deceased's preferential treatment of them.
At the time the 2008 will was made, Pauline had lived with the deceased for 39 years, and John had done so for 18 years, or thereabouts.
Pauline had a particularly close association with the deceased and, as recorded by the Public Trustee in 1992, the deceased regarded herself as morally obliged to favour Pauline because of Pauline's generosity to her.
Pauline had worked in her parents' flower business for over 30 years. Mother and daughter were close.
In the years that he had been living with the deceased at her Mangrove Mountain property, John had made substantial improvements to the property at his own expense. True it may be, as the defendants contend, that those improvements were made for the benefit of John, and his convenience, in caring for horses, his abiding preoccupation. Nevertheless, the improvements provided a rational foundation for the deceased to reflect upon a necessity to provide extra assistance to John, as indeed may have done the weight of any debts (including any gambling debts) under which he laboured.
Given the type of person she was, feisty and independent, and her close companionship with both the plaintiffs over many years, it is hardly surprising that she turned to them for preparation of a will, the will.
Nor is it surprising that she entrusted Pauline with the task of writing out the will, and taking possession of it for safe keeping. The bona fides of Pauline in acting as her mother's amanuensis is reinforced by the facts that: (a) the terms of the 2008 will diminished her share of her mother's estate compared with the terms of the 1999 will; and (b) the 2008 will made provision for Patricia's "share" of the estate to go to her children, not to enlargen the portion of the deceased's own surviving children.
Pauline unquestioningly accepted her mother's instructions for the will even if, as is likely, she chose the terminology used to give those instructions effect.
The plaintiffs did not include their sister Anne in the will-making process, despite her presence on the Mangrove Mountain property at the time, but neither did they place, or endeavour to place, the attesting witnesses to the will under an obligation to treat the process as secret. As has been recorded already, one of the witnesses quickly, but in the ordinary course, reported what had happened to Anne without any attendant drama.
In criticism of the process, the defendants made much of inconsistencies in evidence of Pauline about how she used different pens in filling in the will kit form she had obtained, pointing out (with a measure of truth, but without recourse to expert evidence) that the form of the will does not appear to conform to her evidence. There is here more smoke than fire. I accept the substance of Pauline's evidence that what she wrote was an accurate reflection of what the deceased intended her to write in the preparation of the will. That is the core question, rising above criticism of particular incidents of the will-making process.
I attach no significance to the fact that, in acting upon her mother's instructions, Pauline drafted clause 5 by reference to nominated percentages of the estate rather than by a more general description of the "equal shares" intended for each branch of the deceased's surviving family. It was not a lawyer's will on any account. Allowance must be made that.
I accept the evidence of Pauline and John that the deceased read the will before signing it. I accept that evidence despite uncertainty in Pauline's mind about the timing of the will's preparation and whether the deceased read the will at the time of its execution or earlier. I am satisfied that she did not sign the document blindly or without knowledge of its contents.
Given the close circumstances in which the deceased, Pauline and John lived, and particularly the trust that the deceased reposed in Pauline, it was natural for the deceased to entrust the will to Pauline's care after its execution. I do not accept the defendants' contention that, having secured its execution in stealth, Pauline concealed it from her mother and constructively denied all access to it.
There are inconsistencies in the evidence about the course of events in the preparation and signing of the will, but they speak of the comparative informality of the process, not something sinister. The whole family might well have been better placed in the long run had the deceased made her will with the benefit of a solicitor. However, that was not who she was. She was a strong willed, unsophisticated person not given to reliance on strangers.
The evidence of the attesting witnesses to the 2008 will addresses the competency of the deceased, recording that she was talkative and coherent. That evidence is not to be discounted simply on the basis of ties of friendship or the like between them and, in particular, John.
I do not accept the defendants' evidence that, at the time of execution of the will (whenever, precisely, it may have happened in the last days of 2008) the deceased was, through age and infirmity, quiescent to the point of being incompetent to make a will, and lacking knowledge and approval of the will she executed. I intend no disrespect of either Julie or Anne (or other members of family incidentally involved in providing affidavits) in recording that their evidence was, to my perception, coloured by strongly held beliefs about what should, in fairness, be done with the deceased's estate - and family antipathies.
Hostility towards John and Pauline appears to have been grounded, in part, in a perception that, by their residence with the deceased over many years, they had received more than their fair share of their mother's bounty. In the case of Pauline, lingering secrecy still attaching to the 1992 lottery win appears also to have fuelled resentment, perhaps grounded in envy. The resentment attaching to John is more readily seen, given his predilection for gambling and an apprehension that he might be in denial about the nature and extent of gambling's grip upon him.
It is not given to the Court, in deciding upon the validity of the 2008 will, to make a moral judgment about whether the deceased's principal beneficiaries are, or are not, worthy recipients of her bounty. Nor is it the task of the Court, absent a claim for family provision relief under chapter 3 of the Succession Act 2006 NSW, to make orders for provision for family members generally that, in the defendants' estimation, the deceased "ought" to have made.
In these proceedings, the focus for attention is upon whether the 2008 will was the last will of a free and capable testatrix: Woodley-Page v Symons (1987) 217 ALR 25 at 35.
In my judgement, it was and, accordingly, it should be admitted to probate.

The 1999 Will

In light of my finding that the 2008 will was valid, and that it should be admitted to probate, it is not necessary to dwell at length on the validity of the 1999 will.
In her attack on the validity of the 1999 will the first defendant correctly draws strength from the "suspicious circumstances rule" insofar as the second plaintiff was, at least: (a) involved in connecting the deceased with Mr Morris (a justice of the peace), and his resident worker, for the purpose of having the will executed; and (b) named in the will as a, indeed the, principal beneficiary, preferred over all her siblings; and (c) the making of the will was not attended by any independent legal advice provided to the deceased.
Although the deceased's execution of the will in triplicate is both unexplained and unusual, I do not regard it as suspicious in any way bearing upon a presumption of knowledge and approval arising from "due" execution of the will in the circumstances of this case. There was but one will, a lay will, notwithstanding that it was executed in triplicate.
Whether it was prepared by Pauline or, as she suspects, by Patricia, the will was prepared by a non-lawyer. Although it was witnessed by a JP (Mr Morris) - an experience and practical man - he was not legally qualified.
There is nothing to shock the conscience, or even to raise a doubt, in the mere fact that non-lawyers executing a will in triplicate rather than executing one document, and taking a fair copy of it or photocopying it, as a prudent lawyer would do. Without more, I would not count the existence of the will "in triplicate" as a suspicious circumstance in the circumstances of the present case.
Nevertheless, the onus is plainly on the plaintiffs to prove that the 1999 will was valid: Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 704-707.
In my view, they have discharged that onus. I accept that the will was read to the deceased before she executed it, and that she knew and approved its contents.
I accept the evidence of Pauline and Mr Morris, notwithstanding inconsistencies in aspects of their evidence. They both struck me as witnesses of truth. The absence from the witness box of Mr Morris' co-witness was sufficiently explained to rebut any adverse inference that might otherwise have been drawn against the validity of the will.
Had I not found in favour of the validity of the 2008 will, I would have found that the 1999 will was valid. As it is, it was revoked by the 2008 will.

IDENTITY OF THE DECEASED'S LEGAL PERSONAL REPRESENTATIVES

The Court will not lightly interfere with a will-maker's personal selection of an executor: Baldwin and Neale v Greenland [2006] QCA 293 at [44]-[55]. That is so, even if acceptance of the office of executor exposes the will-maker's choice of a legal personal representative to a conflict between duty and interest: Horden v Horden [1910] AC 465 at 475, citing Vyse v Foster (1874) LR 7 HL 318 at 332.
There is no basis upon which the plaintiffs should be passed over in a grant of representation arising from admission of the 2008 will to probate. In particular: (a) I do not accept that they cannot be relied upon to discharge their executorial duties honestly and competently; (b) hostility within the family is not enough to deprive them of the office the deceased chose for them to occupy; (c) if, consequentially upon this judgment, the parties become engaged in other proceedings, orders can be made for representation of competing interests; (d) the fact that there may need to be an accounting for the plaintiffs' occupation of the Mangrove Mountain property since the death of the deceased is not, in itself, a reason to pass over them as executors; and (e) a grant of probate having been made, administration of the deceased's estate will not inevitably be complicated.

CONCLUSION

Subject to allowing the parties an opportunity to be heard as to the form of the relief to be granted, I propose to make orders to the following effect: 1. ORDER that probate, in solemn form, be granted to the plaintiffs of the will dated 30 December 2008 of Veta Avis Beeby, who died at Gosford on 22 February,2012. 2. ORDER that the proceedings be referred to the Registrar to complete the grant.
Ancillary orders may be necessary, including: (a) an order that, in accounting for the estate, the plaintiffs allow in favour of their siblings a reasonable "occupation fee" for their occupation of the Mangrove Mountain property since the date of the deceased's death; and (b) an order for the removal forthwith of Caveat No. AG867269 lodged by Julie against the title of that property in or about March 2012.
The question of an occupation fee was debated during final submissions. I do not regard it as remaining "at large", but, within reason, having regard to the time that has passed since the final hearing, I will entertain further submissions.
Subject to a consideration of any such submissions, I am minded to require of the plaintiffs only that they pay or bear rates charged on the property since the deceased's death. Prima facie, it is appropriate that current enjoyment of the benefit of possession be matched with current liabilities associated with it.
Given the course of the proceedings, I will hear the parties on the question of costs, and upon whether orders or directions for the due administration of the estate (including, for example, an order for sale of the Mangrove Mountain property) are necessary.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2015

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