Re Morgan [1999] NSWSC 522

Solicitor for plaintiffs: R Anderson (Lane & Lane) COUNSEL : Solicitor for Wesley Mission: B Bridges Counsel for opponents: M Painter Plaintiffs: Lane & Lane SOLICITORS : Wesley Mission: B Bridges Opponents: Wood Roberts CATCHWORDS : Procedure [560]; Costs; Out of estate; Probate case; When allowed; Succession [48]; Alleged informal will; Memo headed "Will" found in solicitor's file; Insufficient to show testatrix intended it to operate as a will without more ACTS CITED : (NSW) Wills Probate and Administration Act 1898 s 18A DECISION : See paras 15 and 16

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

117447/98 - RE THE ESTATE OF MAVIS GWENDOLYN MORGAN

JUDGMENT 1 HIS HONOUR: This is an application for administration cta of the estate of Mavis Gwendolyn Morgan. Mavis Morgan died on 11 September 1998, aged eighty-two. At the time of her death she was living in Toukley. 2 On 3 April 1998 she made a will through Messrs Nash Allen Williams & Wotton solicitors of Toukley. In this will she gave her nieces, Alison and Lesley one-third of the estate each and gave a quarter of a third to each of the Aboriginal Childrens' Advancement Society Ltd, Salvation Army, Catholic Archdiocese of Sydney Chancery Office and the Royal Blind Society. She made her niece Alison and Alison's husband her executors. 3 On the 29th of the same month the testatrix saw Mr Randall solicitor of Newcastle. She gave Mr Randall instructions. He prepared the will in accordance with those instructions and posted it to her home at Toukley. He requested that the testatrix inform him of the addresses of the nieces and of Roy Charles Morgan, a nephew. 4 On 3 June 1998 the testatrix visited Mr Randall's office and delivered the will to him duly executed. This will has on it the date 29 May 1998 and was witnessed by two retired people in Toukley. There is no doubt that if it were not for a document to which I am about to refer that that was the last will of Mavis Morgan. 5 There is admitted in evidence as Exhibit PX02 a handwritten document in the handwriting of the testatrix, which is headed "WILL. June 1998." This document on the first line sets out the testatrix's full name and address, then the names of the two nieces and their husbands' names in brackets, and their addresses, and the nephew's address; a six line note which also appeared in both the April and May wills as to how the testatrix wanted to be cremated and where she wished her ashes to lay and then these words: "(1. As third (1/3) each to nieces Alison and Lesley (1/3 and 1/3) (2. The remaining one third to be divided between 1) the nephew Roy Morgan - 49 Avon Road Pymble 2075

2.) The Salvation Army 3) Sydney City Mission 4) Royal Blind Society 5) The Aboriginal Childrens' Advancement Society Ltd".

6 The Royal Blind Society and the Aboriginal Childrens' Advancement Society Ltd (to whom I will refer as "the opponents") seek administration, with the will annexed, of this handwritten piece of paper or, alternatively, seek to defeat the plaintiffs' claim to administration cta of the May will. 7 Mr Anderson, solicitor of Messrs Lane and Lane, appears for the plaintiffs, Mr Bryce Bridges for a beneficiary, the Wesley Mission, which supports the plaintiffs, and Miss Painter, of counsel, for the opponents. 8 The cases show that it is proper to admit a document which is not in proper form as a will, as if it were a will, under s 18A of the Wills Probate and Administration Act 1898 if it passes three tests. 9 Applying what Powell J said in Public Trustee v Commins - 19 June 1992 unreported, the questions that must be asked are: (1) is there a document? (2) does that document purport to record the testamentary intention of the relevant deceased? and (3) is the evidence before the court sufficient to show that at the time the document was brought into existence, or at some later time, the testatrix by some act or words evidences her intention that the document should without more constitute her will? 10 There seems little problem about satisfying the first two tests in the present case. The critical question is whether the testatrix intended that the document without more should constitute her will. 11 There is some material to suggest that it might, but it seems to me that on the balance of probabilities it is not. The testatrix well knew what a will was. She had gone to two different solicitors within the last three months of her life. She knew how to execute a document as a will, so that this is not a case of a person who is naive in will making. Had she really intended this to be her will one would have thought she would have done it properly. 12 Further, the testatrix sent the document to a solicitor. Miss Painter says that this reinforces the case that the document was testamentary. However, this is unlikely to be the case. 13 First, Mr Randall had asked for the addresses of the beneficiaries and this document does supply it. It is more likely, to my mind, that the document was intended to be instructions for yet a third will. The word "WILL" at the top, to my mind, is equally likely to be instructions for a will, or "how I would like my next will to be" as with the document itself being a will. There was no nomination of an executor and it is unlikely, to my mind, that without more the testatrix thought that this was a will. 14 Miss Painter put some store on the evidence of a person who said she was the donation supervisor of the Royal Blind Society that the testatrix had given amounts between $20 and $100 for most of the fifteen years immediately preceding her death. In cases where the question is whether the testatrix knew of the existence of a particular claimant, this sort of evidence is very valuable. However, in the present case, there is no doubt from the April will that the testatrix knew that this charity existed. The fact that a multi millionairess was deluged with appeal letters over 15 years and gave up to $100 in most years is of no assistance in the present case. Indeed it might perhaps be said that this charity's continued campaign of seeking donations when the testatrix had requested it to send no more than one appeal letter per year may have been the reason for its deletion from the May will. However, this is mere speculation. 15 Accordingly, I am not satisfied about the third matter which needs to be established. Thus, I will not admit the document PX02 as a testamentary document: it follows that the plaintiffs are entitled to administration cta of the will PX01 dated 29 May 1998. 16 I will refer the matter to the Registrar to complete the grant. I consider that the opponents should pay the costs of the plaintiffs of the contested hearing. The Wesley Mission must bear its own costs. (Counsel for the opponents then addressed on costs and the solicitors for the other parties replied) 17 Miss Painter has submitted that the costs should come out of the estate. She said that a contradictor was needed as to the s 18A point and her clients provided it. I can see that there is something to be said for that view, and there are cases where the court does allow costs out of the estate where a litigant has rendered assistance to the court in clearing up a difficult matter; see Smith v Kearney (1881) 2 LR (NSW) (Eq) 28. However, this submission does not deal with the key questions that arise on questions of costs in this type of case. 18 In probate cases, and cases in equity on the construction of wills, the general rule is that if the problem has been caused by the conduct or writings of the deceased, the reasonable costs of all parties to resolve the problem should be paid out of the deceased's estate. This rule was noted as early as Davies v Gregory (1873) LR 3 P & D 28 and was applied in this State in Brown v M'Encroe (1890) 11 LR (NSW) (Eq) 134, 145. 19 The rule must be read subject to certain provisos such as a party seeking costs must be able to say that on the information in his or her possession at the relevant time, competent counsel would consider that the case was fairly arguable and not merely speculative: Elders Trustee & Executor Co Ltd v Eastoe [1963] WAR 36, 40. 20 Again, the wisdom of Rich, J in Gleeson v Fitzpatrick (1920) 29 CLR 29, 38 should be noted. If a litigant considers that another party in a probate or construction case is going to unnecessary expense, such as briefing counsel, it is expected that such party will warn that other party that such additional costs will be the subject of objection. 21 The rule is, as all so called "rules" in costs are framed, a guideline as to the exercise of discretion. In applying the rule, the court is usually particularly tender to the position of a person named as executor of a will who reasonably, though in the event, unsuccessfully, propounds a will; see eg Brown v Mott [1930] QWN 46. 22 It some cases, courts have been more benign to charities than other litigants; see eg Foundling Hospital and Infants' Home v Trustees Executors & Agency Co Ltd (1945) 19 ALJ 383, 384 (HC). It is very doubtful that the same benign view would be taken in 1999 in the case of a large charity with a fund raising division which systematically seeks donations. 23 When all is said and done, in this case, realistically, the opponents saw an estate worth $2.2 million and made an attempt to secure many thousands of dollars. This failed. Despite Miss Painter's persuasive advocacy, it really had little chance of succeeding. Charities should not think that they can have a "free kick" in such circumstances. There is no reason why the normal commercial rule ought not to apply that failed applicants should pay the costs caused to others by the application. 24 I thus adhere to the order for costs noted earlier.

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