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[2014] NSWSC 1562
Supreme Court of NSW
2014-10-29
Nicholas AJ
Original judgment source is linked above.
Judgment 1HIS HONOUR: Mr Barry Leaney ("the deceased"), dairy farmer, died on 23 May 2013, aged 76 years. He made a formal will on 4 August 1989 ("the Will"). His estate is valued at about $2.7 M. 2The deceased and his late wife, Yvonne Maltas, were divorced on 22 September 1977. She died on about 3 October 2005. 3By his Will the deceased appointed his only child and daughter, Jennifer Patricia Leaney ("Jennifer") as executor and trustee of his Will and, if she predeceased him, his niece, Deborah Knott ("Deborah") and his nephew David Leaney ("the defendant") as his executors and trustees. He left the whole of his estate to Jennifer. Should she not survive him, the estate was to be divided equally between the defendant, and his nieces Michelle Leaney, Nicole Leaney, Deborah, and Sonya Andriske ("the plaintiff") who survived him and attained the age of eighteen years. 4The deceased is survived by his sister, Nita Turner, and his brother, Mr Ross Leaney. Also surviving him are Mr Leaney's children, namely the defendant, Michelle Woods, and Nicole Besgrove, and Mrs Turner's daughter, the plaintiff, and the plaintiff's children, Danielle Andriske, Brooke Andriske, and Peter Andriske. 5Jennifer died on 2 October 2006. Deborah died on 7 June 1997. The plaintiff's husband, Gregory Andriske, died on 3 September 2012. 6At some time between April 2011 and August 2012 the deceased prepared an unsigned, handwritten document ("the document") which was found by the plaintiff on the evening of 23 May 2013 shortly after the deceased had died. 7The plaintiff seeks a grant of probate of the document. By his Cross-Claim, the defendant seeks a grant of probate of the Will. It is agreed that if the plaintiff fails, the defendant should succeed. 8In the top portion of the document is written the following: POWER OF ATTORNEY FIRST ½ ROSS & ½ SONYA THEN: ½ DANIEL, BROOK & PETER ANDRISKE ½ MICHELLE WOODS, DAVID LEANEY, & NICOLE LEANEY EXECUTORS SONYA & GREG ANDRISKE 9Beneath these words the deceased listed the name and the address of each beneficiary. It will be seen that under the document the estate is to be disposed of in a manner substantially different from that under the Will. 10The following background and circumstances of the making of the document were established on the evidence of the plaintiff and Mrs Turner, which I accept. 11In her affidavit of 29 November 2013, the plaintiff deposed: "48. In about March or April 2011 I was visiting Uncle Barry and we had a conversation to the following effect: Uncle Barry said: Will you and Greg be the executors of my Will. I said: I am happy to but I will ask Greg and let you know. I think you should also do a Power of Attorney and the other document that I can't remember what it's called - the one for if you get sick - so that all you affairs are in order. Uncle Barry said: I need to change my Will because not only have I lost Jennifer, but Deborah was still also in my old Will. "49. About two days later I again visited Uncle Barry with Mum who I had told of Uncle Barry's request. Uncle Barry, Mum and I had a conversation to the following effect: I said: Grey and I are happy to be your Executor's. Mum said: If you are thinking of leaving anything to me, please put it in Sonya's name so that it does not affect my pension. Uncle Barry said: That's fine I'll only put Sonya in." 12In about November 2012 the deceased suffered renal failure and thereafter his health deteriorated. He frequently travelled from his home and farm at Milton to Wollongong Hospital for treatment, usually accompanied by the plaintiff and/or Mrs Turner. 13On 27 April 2013 the deceased came to live in a room at the plaintiff's house at Ulladulla. He remained there, but for hospital visits and medical appointments, until he died. During this period the plaintiff and Mrs Turner attended to his every needs, and generally cared for, and supported, him. By May 2013 he was undergoing chemotherapy treatment and continually in pain. 14On 21 May 2013 Mrs Turner had a conversation with the deceased as follows: (affidavit 5 December 2013): "40. On returning to Sonya's house I had a conversation with Barry to the following effect: I said: Barry, I don't like to ask this, but have you got your affairs in order? Barry said: Yes, half to Ross and half to Sonya as you requested. I said: Good Barry, if that's what you want." 15On the afternoon of 21 May 2013 the plaintiff and Mrs Turner had a conversation with the deceased in his room. The plaintiff gave the following account (affidavit 29 November 2014): "63. ... I entered Uncle Barry's room with Mum and we had a conversation to the following effect: Uncle Barry said: Your mother and I had a conversation this morning about my affairs. I was thinking about it and I don't think Ross is entitled to even have a share in the two blocks. I really only think he's entitled to half of mum and dad's original farm. .... I said: That's up to you, Uncle Barry. Uncle Barry said: I want you to go back to the Farm and get my black bag from behind the door in Jennifer's room and then go to the newsagency and get me a Will kit. I said: No worries. Do you want to ring your solicitors in Nowra? Barry said: No it takes too much time because I know by the time they write it out send it and it's been initialled and signed it will take too long. I said: When Greg was really sick I had John Hozack come out to the house. I could get him to come out and see you. Uncle Barry said: Ahhhh no. Marilyn and Neville had so much trouble with them. I said: That's up to you. Mum then went home. "64 At about 7pm that night, I had another conversation with Uncle Barry to the following effect: Uncle Barry said: There's only one other thing I want to request that's not in my Will. I want to leave Janine $50,000.00 but it's not be (sic) cash and I don't know how to go about it. I'm worried that she might be a bit of a gambler and I'm worried about that ex-husband of hers. So you think about it Sonya. What can we do? I said: I will think it over." Mrs Turner's evidence was to the same effect. 16On the morning of 22 May 2013 the plaintiff and Mrs Turner had a conversation with the deceased in his room. The plaintiff's account was as follows (affidavit 29 November 2013): "66. ... Mum and I then entered Uncle Barry's room. I sat on the bed in which Uncle Barry was lying down and we had a conversation to the following effect: I said: I've had an idea about what we can do for Janine. How about I turn up at her place on a Saturday morning and say to her "Ok Janine, Uncle Barry wanted me to buy you a new car and then we can buy anything else you need". I could buy her a new lounge, a new bed, new clothes, furniture. Anything she needs to the value of $50,000.00. Uncle Barry said: That's perfect, that's exactly what I want. I said: "I will honour that" looking directly into Uncle Barry's eyes. Mum was standing behind me and said: Barry, you know we will honour your wishes." Mrs Turner's evidence was to the same effect. 17The plaintiff then went to the deceased's farm. She collected the black bag from behind the door to Jennifer's room, and put it in her car. She then drove to a newsagent in Ulladulla and purchased a will kit. She then went to work. 18Later that day the deceased was taken by ambulance to Milton Hospital. He died during the afternoon of 23 May 2013, and before the contents of the bag and the will kit had been brought to his attention. At about 6.30pm that day the plaintiff and Mrs Turner opened the black bag in which they found the Will and the document. The document was inside the cover of the Will. Shortly afterwards, Mrs Turner informed Mr Leaney of the death.
The Principles 19Relevantly, s 8 of the Succession Act 2006 ("the Act") 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 the 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 ther 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 limited the matters that the Court may have regard to in making a decision under subsection (2). (5) This section applies to a document whether it came into existence within or outside the State. 20In Stone & Drabsch v Pinniger [2011] NSWSC 795 I endeavoured to summarise the relevant principles as follows: "25. The authorities say that once a document is shown to exist, two factors are crucial to the operation of s 8 in relation to it. First, as to the objectively discerned nature of its content, does it purport to state the testamentary intentions of a deceased person, and second, as to the deceased's intentions as to its status and operation i.e. did the deceased intend the document, or part of it, to operate as a will, or as an alteration to it, or as a full or partial revocation of it. Affirmative answers to both questions are necessary for the result that the document operate as an amendment of the will (Re The Estate of Cropley; Cropley v Cropley [2002] NSWSC 349 at [20]. 26 In The Estate of Masters (deceased); Hill v Plummer (11994) 33 NSWLR 446 Kirby P, with reference to s 18A Wills Probate and Administration Act 1898 said (p 452): "Yet by the requirement that the document which, by definition embodies the testamentary intentions of a deceased person, should be described as constituting "his or her will", the legislature plainly drew a distinction between those documents of testamentary intentions which constituted the deceased's will and those which did not." And Mahoney JA said (p 455): "...the document must state the deceased's "testamentary intentions", that is, his wishes or intentions as to how, voluntarily, his property is to pass or be disposed of after his death. ...it is the disposition of the deceased's property voluntarily after his death which is, for present purposes, the relevant characteristic of a will. This seems to me to be an appropriate way of understanding the section." 27. Thus, for a document to constitute a will it is necessary that it, in terms, sufficiently evidences the fact that by it the deceased intended to govern the disposition of his or her property after death. By s 8(4) of the Act the Court may have regard to extrinsic evidence in deciding the question." 21In short, there must be a document which purports to state the testamentary intentions of the deceased and has not been executed in accordance with the requirements of the Act; and the Court must be satisfied the deceased person intended it to form his or her will. The deceased may have that intention at the time the document is written or at some later time. (National Australia Trustees Limited v Fazey; the estate of Nancy Elaine Lees [2011] NSWSC 559, para 17 per Windeyer AJ.)
Determination 22The crucial question is whether the evidence establishes that at the time the document was brought into existence, or at some later time, it was the intention of the deceased that the document should, without more, operate as his will. It is a question to be determined with great care. 23For the defendant it was submitted that the document was not intended by the deceased to operate as his will. The heading "POWER OF ATTORNEY" and the information thereunder, taken as a whole, indicated that the document was not a will but was intended to operate as a note to himself of matters which he intended at some future time to discuss with his solicitor. In support of this submission reference was made to typewritten documents signed by the deceased dated 4 June 2012 and witnessed by a police officer which recorded that he permitted Ms Kim Stretton and Ms Jodi Smith to agist their horses on his property on the understanding that each vacate within two weeks of notice being given "...from either myself or the beneficiaries of my will". Thus it was put that it should be inferred that the deceased regarded it important that a document intended to be operative after his death be prepared with due formality. 24For the plaintiff it was submitted that the document stated the deceased's testamentary intentions, and was intended to be his will and a full revocation of the Will of 1989. Reliance was placed on the content of the document taken as a whole, and upon the evidence as to the circumstances of which it was made, and the conversations with the deceased in the days before he died. 25The evidence set out above (paras 11 to 18) provides a clear guide to the deceased's intention at the time the document was made, and at the time of his death. 26In March or April 2011 he told the plaintiff of his need to change his will to take account of the deaths of Jennifer and Deborah who benefitted under the existing will. He obtained the consent of the plaintiff and her husband to be appointed executors. He agreed with Mrs Turner's request to benefit the plaintiff instead of herself. The contents of the document are self-evidently consistent with what was in his mind. The naming of Gregory Andriske as co-executor indicates, in my opinion, the high probability that the document was written prior to the final stages of Mr Andriske's illness in August 2012 from which he later died. 27Once written, the document was placed inside the cover of the Will and safely stored in the deceased's black bag which was kept in Jennifer's room. 28On 21 May 2013, at the time when he was very unwell, the deceased confirmed to Mrs Turner that he had his affairs in order, and had left half to each of his brother and to the plaintiff as requested by her. Later he requested the plaintiff to retrieve the black bag and to obtain a will kit. He rejected the plaintiff's suggestion to engage a solicitor. In another conversation later that day with the plaintiff, the deceased expressed his wish to leave $50,000.00 for Janine (his cousin) for which he had made no provision in what he referred to as his will. On 22 May 2013 the deceased agreed with the plaintiff's suggestion as to how Janine was to be provided for, whereupon he was assured by the plaintiff and Mrs Turner that they would follow his wishes. 29The evidence to which I have referred supports the findings, which I make, that the deceased intended the document to convey his testamentary intentions and to operate as his will, and thereby to revoke the Will of 4 August 1989. 30In so deciding, I have taken into account the words "POWER OF ATTORNEY" which appear as a heading but, in my opinion, they do not qualify the conclusion that the words which follow record the intention that the estate be disposed of as stated. I have not overlooked the submission that the request for a will kit indicated that the deceased thought that for a will to be operative incorporation in a formal document was required, which would have been consistent with the earlier Will and, for example, the records of the arrangement with Ms Stretton and Ms Smith. However, analysis of the conversations on 21 and 22 May 2013 in my opinion establish that the deceased was referring to the document, which he had earlier placed in the cover of the Will, as the will which was to be acted upon after he died. In the circumstances, in my opinion, the fact that at the end he may have wished for the assistance of a will kit does not mean that he did not intend that the document, without more, was to serve as his will. 31It follows, in my opinion, that the document should be admitted to probate. The Cross-Claim should be dismissed. 32As to the question of costs, this is a matter where the defendant quite properly required the validity of the informal document to be determined by the Court, and where there was a proper basis for propounding the formal 1989 Will. My prima facie view is that, in these circumstances, the costs of all parties should come out of the estate, but in accordance with usual practice, it is only those of the plaintiff that should be on an indemnity basis (cf National Australia Trustees Limited v Fazey, para 21). However, if the question of costs is not agreed I will hear submissions on a date to be arranged with my Associate.
Orders 33The Court: (1)Declares that the handwritten document found by the plaintiff on 23 May 2013 inside the deceased's black bag after his death and identified as exhibit B in these proceedings is the last will of the late Barry Leaney who died on 23 May 2013. (2)Orders that probate of the said will be granted to the plaintiff. (3)Orders the Cross-Claim to be dismissed.
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: 07 November 2014
Stone & Drabsch
Pinniger