Stone & Drabsch v Pinniger

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.