Albrow v Cunningham

[2000] NSWSC 103

CITATION:

Albrow & Anor v Cunningham [2000] NSWSC 103

CURRENT JURISDICTION:

Equity Division

FILE NUMBER(S):

SC 3977/98

HEARING DATE(S):

24 February 2000

JUDGMENT DATE:

25 February 2000

PARTIES :

Chris Albrow
(First Plaintiff)

Marlene Albrow
(Second Plaintiff)

v

Graeme Cunningham
(Defendant)

JUDGMENT OF:

Davies AJ

COUNSEL :	Ps - Mr R D Wilson D - Mr J Shaw
SOLICITORS:	Ps - Stacks Family Law Services D - Denis M Anderson
CATCHWORDS:	Wills - whether testator and another had entered into mutual wills - whether intention that wills not be revocable - whether provision should be made under Family Provision Act 1982.
LEGISLATION CITED:	Family Provision Act, 1982 ss 7, 9
CASES CITED:	Hubbard v Mason (Santow J, unrep, 9.12.97) Theobald on Wills, 15th Edition
DECISION:	See paras 31 and 32.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

DAVIES AJ

FRIDAY 25 FEBRUARY 2000


3977/98 - Chris ALBROW & ANOR v Graeme CUNNINGHAM

JUDGMENT

1   HIS HONOUR: Mrs Louise Anne Albrow, to whom I shall refer as “Mrs Albrow”, married Arthur Albrow. They had four children, Peggy, who now lives in the United Kingdom, Violet, Patricia and Sheila. Chris Albrow, the plaintiff, was born on 19 November 1950. He was brought up believing that Mrs Albrow and Arthur were his mother and father. His mother in fact was Patricia. His father is unknown. When he was about 11 years of age Patricia informed him that she was his mother. He nevertheless continued to refer to Mrs Albrow and Arthur as “Mum” and “Dad”. 2   In 1959, Mrs Albrow and Arthur terminated their relationship. Mrs Albrow formed a relationship with Mr Reg Crowley. She and Mr Crowley lived together thereafter as husband and wife. Chris lived with them until he turned 19. He had not long been out on his own when he broke his leg and returned to live with Mrs Albrow and Mr Crowley. Chris married Karen in August 1970 and they had a child, Nathan. Chris, Karen and Nathan lived with Mrs Albrow and Mr Crowley for twelve months until Chris was fit enough to go back to work. 3   Again, Chris was not long away from his mother. In 1973, he separated from Karen and moved back with Mrs Albrow and Mr Crowley. In December 1974, he moved to live with Arthur, Violet and her husband. In 1977, Chris returned to Sydney, moving back with Mrs Albrow and Mr Crowley. He met Marlene, his present wife, and Chris and Marlene lived with Mrs Albrow and Mr Crowley for six to eight months. 4   During the many years while he lived with Mrs Albrow and Mr Crowley, Chris paid either no rent or only a token rent. After Chris and Karen had moved to their own premises, they kept in contact with and helped Mrs Albrow and Mr Crowley. 5   In November 1990, there was a conversation between Mrs Albrow and Mr Crowley and Chris and Marlene. I will deal later with that conversation in detail. At about that time, the date is not known, handwritten instructions for wills came into existence and they are Exhibits B and D. They were in relatively similar terms. The instructions in as far as they related to Mrs Albrow read:

“ AFTER MY DEATH
I ANNIE LOUISA ALBROW. DO WILL ALL THAT BELONGS TO ME.
MONEYS. FURNITURE. PROPERTY. & PERSONAL BELONGINGS, TO RALPH REGINALD CROWLEY OF NO 8 WEEMALA CRS BRADBURY.
IF THE DEATH OF RALPH REGINALD CROWLEY, OCCURS PRIOR TO MY OWN. “THEN AFTER MY OWN DEATH ” “EVERYTHING INCLUSIVE” I WILL “ EQUALY ” TO MR CHRISTOPHER ALBROW & WIFE “MARLENE” OF 140 SPITFIRE DRIVE RABY.”

6   The instructions in relation to Mr Crowley were similar but he referred to the assets as, "MONEY. PROPERTY = (N8 WEEMALA CRS) FURNITURE, MOTOR VEHICLE, & PERSONAL BELONGINGS". Each will left the total assets to the other and provided that, if the death of the other occurred prior to the testator's own, then after the testator's death everything was to go equally to Chris and Marlene. Those instructions were written out by Mr Crowley. However, there were additional notations on them dealing with the executor or executrix and like matters which appear in Mrs Albrow's handwriting. 7   The instructions were taken in late January to Mr Denis Anderson who was Mr Crowley's solicitor. He prepared two wills which gave effect to the written instructions. The wills did not carry the title of mutual wills and they did not refer to each other. Mr Crowley's will was executed on 31 January 1991 and Mrs Albrow's on 5 February 1991. 8   Mrs Albrow died on 23 March 1991 aged 80 years. In the following years, Chris and Marlene kept in contact with Mr Crowley, mainly by telephone and by Christmas cards and the like. In 1988 or 1989, Mrs Albrow and Mr Crowley had moved from their then home at Newtown to Bradbury. Mr Crowley subsequently sold the home and moved to Swansea near Newcastle. Both places were inconvenient to visit as far as Chris and Marlene were concerned. During the 1990's, Sheila and her husband, Graeme, saw considerably more of Mr Crowley than did Chris and Marlene. I accept the evidence of Sheila and Graeme that they gave Mr Crowley considerable support. 9   Mr Crowley, as he grew older, became dissatisfied that he saw so little of Chris and Marlene. In 1994, Mr Crowley executed a will in which he gave half his estate to Chris and Marlene and half to Sheila and Graeme. 10   By a further will on 5 November 1996, Mr Crowley left the whole of his estate to Sheila and Graeme. Mr Crowley died on 19 March 1997. His estate consisted principally of the home at Swansea, which was given a value for probate purposes of $82,000, monies in the bank totalling a little over $12,000 and a Toyota motorcar valued at $4,000 for probate purposes. 11   At the present time, Chris and Marlene are in a very tight financial position. They have a house at Bowral which is valued at $260,000. On that home is a fixed mortgage of $100,000 and a variable mortgage of $109,000. They have a Visa card debit of just under $8,000 and a David Jones debit of a little under $5,000. They have a debit on their bank account of just under $3,000. Chris has a net wage of $620 per week and Marlene of $400 per week, a total of $1,020 per week. They estimate their expenses at $1,024 a week. It is clear that their income is low having regard to the expenses they have to meet by way of interest on monies owed. Chris suffers physical problems caused by a deterioration of the bone in his right foot and pain in his right hip. He has employment but is certainly not in either comfortable or secure circumstances. 12   Sheila and Graeme were in a much more comfortable position until Graeme suffered heart bypass surgery in 1997. Prior to that time, Graeme carried on his own business and he and Sheila owned a nice home on the Bilgola Plateau which was worth about $450,000. Since suffering the bypass surgery, Graeme has been disabled from working, save to a limited part-time extent. He has been troubled with both depression and anxiety and has suffered memory loss and an inability to concentrate. He has suffered other problems which include a gastro-oesophageal reflux, hypertension and hypercholesterolaemia. He takes many pills each day. He is not yet fit for work. He receives an invalid pension because of his ill-health. Sheila is also on a pension. They have a home and some assets and capital, but they had to sell their home on the Bilgola Plateau. Some of their capital went in the payment of outstanding debts. 13   The basic principles with respect to the law of mutual wills, is set out in the 15th edition of Theobald on Wills, at p 28, in these terms:

“The term ‘mutual wills’ is used to describe joint or separate wills made as the result of an agreement between the parties to create irrevocable interests in favour of ascertainable beneficiaries. The revocable nature of the wills under which the interests are created is fully recognised by a probate court, In the Estate of Heys [1914] p 192; but in certain circumstances equity protects and enforces the interests created by the agreement despite the revocation of his will by one party after the death of the other without having revoked his will.
Equity does not protect the beneficiary under mutual wills merely because they have been made in almost identical terms. There must be evidence of an agreement to create interests under the mutual wills which are intended to be irrevocable after the death of the first to die, Re Cleaver [1981] 1 WLR 939; In the Estate of Monica Dale, Proctor v Dale , The Times, February 16, 1993."

14   As the principles to be applied are not in dispute, it is convenient for me to incorporate in my judgment a part of the exposition of the relevant principles given by Justice Santow in Hubbard & Anor v Mason & Ors (unreported, 9 December 1997). His Honour said:

“2. The agreement not to revoke is a key element in the concept of mutual wills. It may be implied from all the circumstances, but where implied, ‘it will be important to identify with precision the nature of the implied promise’. In deciding whether to draw the relevant implication, the court will consider ‘All the surrounding circumstances, the history, the factual matrix. The Court will look at all the circumstances and draw any proper inferences. And where … there is extrinsic evidence as to what was being effected and why - that is clearly a relevant factor.’

Re Newey (decd) [1994] 2 NZLR 590 at 593; In re Goodchild [1997] 1 WLR 1216 at 1225 per Leggatt LJ.
Hudson v Gray (1927) 39 CLR 473 at 485 per Isaacs J; Birmingham v Renfrew (1937) 57 CLR 666 at 683 per Dixon J; Bigg v Queensland Trustees Ltd [1990] QdR 11 at 14; Low v Perpetual Trustees WA Ltd (1995) 14 WAR 35 at 42-3.
Aslan v Kopf (CA(NSW), 16 May 1995, unreported) at p 5 per Gleeson CJ.
Re Newey (decd) [1994] 2 NZLR 590 at 595.

3. The requirement that in order for a mutual wills contract to be enforceable each party must have intended to enter into legally binding relations is insisted upon by the courts notwithstanding that most mutual wills contracts are made between husband and wife, and notwithstanding that in other contexts such as the purchase of property together for a common purposes the courts have found an informal common intention sufficient to give rise to a constructive trust.
Renfrew v Birmingham [1937] VLR 180 at 186
Gray v Perpetual Trustee Co Ltd [1928] AC 391 at 400 per Viscount Haldane.
Ford & Lee, Principles of the Law of Trusts, 3rd Ed, (LBC, 1996) para [22290].
…
5. The mere fact that there are mutual wills to the same or similar effect which may have been executed simultaneously is relevant to, but not determinative of, the question of whether the parties intended to enter into a legally binding agreement to execute mutual, irrevocable wills.
Gray v Perpetual Trustee Co [1928] AC 391 at 399-400
In re Cleaver [1981] 1 WLR 939 at 945 per Nourse J, cited with approval by Leggatt J in In re Goodchild [1997] 1 WLR 1216 at 1224
Birmingham v Renfrew (1937) 57 CLR 666 at 675
Re Newey (decd) [1994] 2 NZLR 590 at 595-6
Low v Perpetual Trustees WA Ltd (1995) 14 WAR 35 at 40-1
Needham v Needham (SCNSW, Windeyer J, 15 July 1997, unreported)
Cf Bigg v Queensland Trustees Ltd [1990] 2 QdR 11 (per McPherson J at 14 who appears to have relied solely on the form of the wills in concluding they were irrevocable, resorting to principles of estoppel rather than trust), critically noted by C E F Ricken (1991) 54 MLR 581.
6. Although the burden of proof in mutual will cases and under s140 of the Evidence Act 1995 (NSW) is the ordinary civil standard, the courts will, having regard to the subject matter of proof, approach the question of whether the testator intended to subject himself to a legally binding obligation not to revoke his will with caution, and will act only on ‘clear and satisfactory evidence’; see above under ‘Standard of Proof’.
Birmingham v Renfrew (1937) 57 CLR 666 at 674-5 (Latham CJ), 681-2 (Dixon J)
In re Cleaver (decd) [1981] 1 WLR 939 at 947-8
Re Newey (decd) [1994] 2 NZLR 590 at 594-5
Low v Perpetual Trustees WA Ltd (1995) 14 WAR 35 at 39”

15   His Honour listed the following factors as pertinent in obtaining the intention of the testators in a case where mutual wills are alleged:

* to how many people the statement was made;
* whether there is a statement in writing;
* the substantial consideration offered for the promise;
* the number of times the statement was made;
* the language used by the parties,
* the context, formal or informal, in which the promise was made;
* the nature of the relationship between the parties;
* the certainty of the terms.
I have had regard to all those factors.

16   In the present case, some intention can be gleaned from the wills themselves and particularly from the written instructions for the wills. The instructions appear to have been written out at the same time. The handwriting is that of Mr Crowley with additions as to some relevant and ancillary matters by Mrs Albrow. This shows consensus between them. 17   Reading both wills, as I think is permissible for all such circumstances are relevant, they show an intention that the property after the death of the survivor of the testator or testatrix would go to Chris and Marlene. That intention of both testators could only be achieved if the will of the survivor was not revoked. It is therefore possible to imply an understanding between Mrs Albrow and Mr Crowley that the will of the survivor would not be revoked. It is possible also to imply an intention to contract for the arrangement between Mrs Albrow and Mr Crowley was finalised by formal wills drawn and executed before a solicitor. 18   There is the additional factor that each of the instructions referred to "PROPERTY". This word was intended to refer to real estate, for other terms referred to the other assets. Moreover, in the instructions for Mr Crowley's will, the word "PROPERTY" was followed by the words "= (N8 WEEMALA CRS)". Mrs Albrow did not own real estate at the time but it is not improbable she and Mr Crowley regarded her as having an interest in the home, having regard to the contribution which she made to the home during 30 years of cohabitation with Mr Crowley. 19   The fact that Mrs Albrow was 80 years of age and was in ill-health suggests that she would at the time have wished to see that the assets in which she had an interest or moral claim should pass to those she thought should benefit. Thus the wills and instructions can be read as intending that the totality of the testator's assets, of which the real estate was the major asset and to which both had contributed in their own way, should pass to Chris and Marlene on the death of the survivor. 20   The wills were never mentioned to Sheila and Graeme but there is no reason why they should have been mentioned. Sheila was only one of four sisters. 21   The existence of the intended benefaction was mentioned to Chris and Marlene in November 1990. Chris has deposed:

“On an occasion in November 1990, when my Wife and I attended at Ann’s home for dinner, she produced an envelope and said to me in Marlene’s presence words to the effect,
‘ We have some good news for you. Chris, this is what they call a mutual Will. Reg and I have decided that in the event of either of us dying, my share will go to Reg and his share will go to me, with the understanding that when both of us have passed away, this house is to be left to you and Marlene.’
She started to show me the document. It was a typed document on medium grade cream paper. I recall that the font of the type was traditional. I did not read the document but I recall seeing the heading ‘Mutual Will’.
I pushed the document away and said, ‘That is very nice of you but Mum, I don’t really want to see it because I don’t want to think about it.’
She said, ‘Okay son.’ and replaced the document in the envelope.
She said, ‘Reg and I want you and Marlene to have the house because you two are battlers and the others have everything. They own their own houses. This is to give you a kick along’.
When she referred to the others, I understood her to be referring to Sheila Cunningham and Violet McLean, my maternal aunts.
I walked towards Reg, who was sitting in the kitchen and shook his hand. I said, ‘Thank you very much, Reg, this is very good of you.’
Reg said, ‘That’s alright, Chris, your Mum and I have agreed that we want you and Marlene to have this place. Marlene has been very good to Ann and Ann looks on her as a daughter.’ ”

22   Marlene has deposed:

“At the end of 1990, my Husband and I attended Ann and Reg’s home at 8 Weemala Crescent, Bradbury for dinner, which we had done regularly since 1977. During the evening, Ann produced a brown manilla envelope. She said, ‘Reg and I have got something to tell you. It is about our Wills.’
She then opened the envelope and withdrew a piece of white paper with writing on it. I did not read the document.
My husband said, ‘What are you bringing that up for now Mum? Put it away.’
She replaced the document in the envelope and said, ‘We need to discuss this now. Reg and I have discussed it and we want you two to have the house.’
I looked at Reg and he said, ‘This is what Ann and I want.’
My husband said, words to the effect, ‘Mum, I don’t really want to talk about this now, but thank you very much. We really appreciate it.’
Ann said, ‘All of the others have houses. We want you to have a good start. I have never been able to give you anything. This is what we want.’
I recall that my Husband and Reg both stood up and shook hands.
Reg said, ‘This is what we want, mate. You two have done a lot for Ann.’ ”

23   I do not accept Chris's evidence that he saw the words "mutual Will" or that he can remember a conversation in such splendid legal terms as the one to which he deposes. However, I accept the general substance of the event of which Chris and Marlene have given evidence. 24   I think it probable that that event occurred and that the document referred to by Chris and Marlene was one or both of the handwritten instructions to which I have already referred. I accept the evidence that Chris and Marlene were informed that the home, which was then in Bradbury, would be left to them. This could only be achieved if there were to be wills executed by Mrs Albrow and Mr Crowley and the survivor was under an obligation not to revoke his or her will. 25   The fact that the proposed benefaction was communicated to Chris and Marlene is an indication that it was intended to take effect in a legal way. 26   Taking account of all the circumstances, I am satisfied that mutual wills were entered into by Mrs Albrow and Mr Crowley in 1991 in which each undertook impliedly, if not expressly, that the will of the survivor would not be revoked. 27   On this conclusion, the plaintiffs must succeed in their claim. If I am wrong in that conclusion, I would order under the Family Provision Act, 1982 (NSW) (“the Act”) that one half of the net estate go to Chris and Marlene. 28 It is not in dispute that Chris is an eligible person. I have considered the matter set out in ss 7 and 9 of the Act. I am satisfied that Chris has needs and that, having regard to the relationship which he had with Mrs Albrow and with Mr Crowley, he has a proper call on the estate for benefaction. So also, of course, does Sheila. She and Graeme were at one time in reasonably affluent circumstances, but that is no longer the current situation. Both families had a close relationship with Mrs Albrow and Mr Crowley and both have a proper call on his benefaction. 29 As elderly people tend to do, Mr Crowley in his last years tended to look at his current circumstances and to overlook the events of past years. I think that his reasons for passing the whole of his estate to Sheila and Graeme were justified. 30 I would not put the claims of one family over the other. Both have needs and both have contributed in their own way over the years to the benefit of Mr Crowley. 31 In the circumstances, there should be an order in terms of declaration 1 as sought, save I would substitute the words, "devised and bequeathed" for the word "divided". Declaration 2 should be made. Leave is reserved to apply for such incidental orders as may be required. I would order that the costs of both parties be taxed and paid out of the estate of the testator. 32 I consider that Mr Cunningham had a duty to uphold the will and a ground for opposing the application and so I consider that, as the defendant, his costs should be taxed on an indemnity basis. The exhibits may be returned.

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Last Modified: 09/25/2000