Application of Russell-Smith; Estate of Plumwood

[2010] NSWSC 257

CITATION:	Application of Russell-Smith; Estate of Plumwood [2010] NSWSC 257
HEARING DATE(S):	30/11/10; interim judgment 9/12/09; and further evidence on 24/2/10
JUDGMENT DATE :	8 April 2010
JURISDICTION:	Equity
JUDGMENT OF:	White J
DECISION:	Refer to paras 23 and 24 of judgment.
CATCHWORDS:	PROBATE WILLS AND ADMINISTRATION – application for grant of probate of undated document entitled draft will – deceased made earlier will – deceased subsequently indicated desire to alter bequests – deceased executed informal will and draft will from will kit – difficulties with will kit instructions – draft will not admitted to probate
LEGISLATION CITED:	Probate and Administration Act 1898
CATEGORY:	Procedural and other rulings
PARTIES:	Applicant: Jeremy Russell-Smith
FILE NUMBER(S):	SC 2009/313321
COUNSEL:	Applicant: C Ryan
SOLICITORS:	Applicant: Helen Small & Associates

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE & PROTECTIVE LIST

WHITE J

Thursday, 8 April 2010

2009/313321 Application of Jeremy Russell-Smith; Estate of the Late Valerie Plumwood

JUDGMENT

1 HIS HONOUR: By his summons the plaintiff seeks “probate in solemn form of undated will of Val Plumwood”. Although that is the only relief sought in the summons, the substantial question in these proceedings is which of three documents should be admitted to probate as the last will of Dr Valerie Plumwood who died between 28 and 29 February 2008 aged 68. She died leaving an estate valued for probate purposes at a little under $500,000 consisting principally of a house and land at Clyde Road, Braidwood, known as Plumwood Mountain, and superannuation. Dr Plumwood was an environmentalist and philosopher.

2 Amongst the papers found after Dr Plumwood’s death was a will duly witnessed dated 16 July 1986 whereby she appointed the plaintiff, Dr Jeremy Russell-Smith, as her executor and devised the property known as Plumwood Mountain to the NSW National Parks and Wildlife Service subject to certain conditions. She gave a small pecuniary legacy to Dr Russell-Smith and made specific bequests of tapes and records (paragraphs lettered (a) to (c) of the will), and directed her executor to distribute minor items not needed for the establishment of her house as a field studies centre. There was a residuary gift to the Australian Conservation Foundation and to her son. The deceased’s son predeceased her.

3 From 2002 Dr Plumwood discussed the possibility of devising the Plumwood Mountain property to the Australian Bush Heritage Fund, now known as Bush Heritage Australia. Between 2002 and 2005 there were discussions and correspondence between Dr Plumwood and that organisation as to the suitability for Bush Heritage Australia of her property at Plumwood Mountain and conditions she might specify to a gift. On 21 May 2005 Ms Plumwood sent an email to Bush Heritage Australia advising that she was thinking of leaving the Plumwood Mountain property to Bush Heritage Australia and make it the beneficiary of her superannuation. She asked to discuss the wording of the will. On 16 June 2005 Bush Heritage Australia wrote to Dr Plumwood thanking her for her indication that she intended to give the property and other assets to it and enclosed a sample clause. The enclosed document stated:

“* Sample Property Gift Clause
I devise to Australian Bush Heritage Fund Limited ( Bush Heritage ) ABN 78 053 639 115 of Level 5, 395 Collins St Melbourne all my interest in my property known as Braidwood being the land described in [title details] (the property ).
It is my firm wish without imposing any binding trust that the property be retained by Bush Heritage in perpetuity and managed and protected by Bush Heritage as a conservation reserve in accordance with the present objects clauses of the Constitution of Bush Heritage
Sample Residuary Clause
... to give the residue of my estate ( my residuary estate ) to Bush Heritage. It is my firm wish, without imposing any binding trust, that the capital and income of my residuary estate be paid or applied by Bush Heritage for the following purposes:
(a) for or towards the environmental conservation management of the Property; and
(b) for or towards the purchase by Bush Heritage of real property adjoining the Property for use as an environmental conservation reserve;
(c) for or towards the costs of repairing and maintaining the Property, including any buildings situated on the Property; and
(d) for or towards the costs of repairing and maintaining the access road to the Property.
Sample Receipt Clause
I direct that receipt of the Secretary, Treasurer or Public Officer of Bush Heritage will be an absolute discharge to my trustees. ”

4 There was found amongst Dr Plumwood’s papers this page to which she had added handwriting including the words “Last will and testament of Val Plumwood”. She added in handwriting the details of the title and location of the property the subject of the first clause. In the sample residuary clause she added the words “I wish” at the commencement of the sentence and added the words “including my superannuation on my death”. She also included express reference to the garden of the property in paras (a), (c) and (d) of the residuary clause. In the sample receipt clause she added the words “plus executor Jeremy Russell-Smith”. She signed the document against a notation “signed:” and added the date, 31 October 2005.

5 She did not advise Bush Heritage Australia that she had signed the document. Nor, so far as appears, did she provide a copy of the document to anyone.

6 The document was not witnessed. This is the second potential instrument to be admitted to probate. It was not executed as a will, but if the court is satisfied that it was intended to operate as the deceased’s will, it could be admitted to probate pursuant to s 18A of the Probate and Administration Act 1898. That section is applicable in the case of persons dying before 1 March 2008. Section 18A provides:

“ 18A (1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will.
(2) In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person .”

7 I would infer from the fact that Dr Plumwood added the words that the document was her last will and testament and signed the document against a notation “signed:” and dated the document that she intended it to constitute her will. Unless revoked, it would be admitted to probate along with such parts of the 1986 will as it did not impliedly revoke. The October 2005 document does not expressly revoke previous wills. Revocation is not implied by the words “last will and testament”. However, the gift of the Plumwood Mountain property to Bush Heritage Australia and the gift of residue to Bush Heritage Australia is directly inconsistent with the gifts of that property and of residue in the 1986 will. The earlier gifts are to that extent impliedly revoked. The specific legacy and bequests in the paragraphs letter (a) to (c) of the 1986 will are not impliedly revoked. Moreover the appointment of the plaintiff as executor is assumed in the 2005 document. His appointment as executor by the 1986 will is not revoked.

8 The plaintiff does not seek probate of either of those documents.

9 The third document, and the one for which the plaintiff seeks probate in solemn form, is entitled “Draft Will”. Included amongst the deceased’s papers was a will kit called a “WilPaC”. It is a do-it-yourself will kit which provides a step by step process of preparing a “Legal Will”. The will kit included in its introduction the following:

“ STEP 1 REMOVE DRAFT WILL(S) AND WILL(S)
Remove the DRAFT WILL(S) and WILL(S) located in the centre of this booklet. These will be used in Step 3 and Step 4.
STEP 2 WILL FACTS
Read the information in this booklet in full prior to completing your WILL as it provides important background information.
STEP 3 DRAFT WILL PREPARATION PAPERS
This allows you to practice before completing your WILL.
Use the DRAFT WILL PREPARATION PAPERS as your step by step guide to preparing your DRAFT WILL.
STEP 4 LAST WILL AND TESTAMENT
Copy details from your completed DRAFT WILL onto your WILL. Sign your WILL in the presence of two witnesses. Then place it in an envelope and return it for storage to Will Store Pty Ltd using the ‘FREE POSTAGE’ number found on page 16 of this booklet.
STEP 5 STORAGE FORM
Complete the Storage Form enclosed and place it in the envelope with your WILL. Send it to Will Store Pty Ltd using the ‘FREE POSTAGE’ number.
STEP 6 EXECUTOR’S MEMORANDUM
Complete these tear out form(s) located on pages 17-20, and place them in the envelope together with your WILL and Storage Application. ”

10 The “Draft Will” was evidently removed from the kit. It was completed in Dr Plumwood’s handwriting. It was completed partly in black pen and partly in blue pen. Clause 5.1 stated “I hereby make the following gifts:”. After this statement Dr Plumwood wrote as follows:

“ I wish to devise to Australian Bush Heritage Fund Ltd (Bush Heritage) ABN 78 053 639 all my interest in my property known as Plumwood Mountain, being portion 61 Parish of Monga. It is my firm wish without imposing any binding trust that the property be retained by Bush Heritage in perpetuity and managed as protected by Bush Heritage as a conservation reserve, in accordance with its constitution. ”

11 Clause 6.1 provided for a gift of the residue of the estate. Dr Plumwood had initially written the words “you used to be able to say something in the old will, surely, that wasn’t just about passing on property.” She deleted those words and initialled the deletion. She added the following words:

“ I give the residue of my Estate to Bush Heritage for the upkeep of the property and the purposes of environmental conservation of the property and towards the purchase of adjoining property for adding to the reserve. ”

12 The draft will stated that it revoked all previous wills. Dr Plumwood completed provisions in relation to funeral directions. The draft will had provision for signature with printed statements in clear and large type that these were “example only”. Dr Plumwood wrote the word “crap” against the clause for signature of the testator. She then crossed this out, crossed out the whole signature clause, initialled the crossing out, and signed her name. The clause for attestation of witnesses also provided as an example the completion of the name and address of attesting witnesses. The example names and addresses were crossed out and the crossing out initialled.

13 Dr Plumwood arranged for two people to sign the document as attesting witnesses. They did not sign the document together. One of the witnesses, Ms Job, had little recollection of the occasion. The document is undated. Neither witness was able to state when they placed their signatures on the document. The other witness, Mr Perkins deposed that it occurred some time before June 2006 and might have been in 2005. He recalled visiting Dr Plumwood at the property. No-one else was present. Dr Plumwood had purchased the draft will from a newsagent. He advised her to consider seeking professional legal assistance but she expressed a desire to save money by using a do-it-yourself type of will. Mr Perkins told Dr Plumwood that he was not happy with her decision to leave the property to the Bush Heritage organisation as he thought that the most enduring protection for the property would be provided by its being given to the National Parks and Wildlife Service.

14 I infer that the draft will was prepared and signed after 16 June 2005. The language Dr Plumwood used to describe her gifts picked up the language of the earlier document.

15 The difficulty in concluding that the document described as a draft will was intended to operate as a will arises partly from the fact that it was described as a draft, and the provisions in the document for signature were described as being by way of example only. If those were the only indicia to the contrary, I would infer that by signing the document and having her signature later purportedly attested by two witnesses, the deceased intended it to have legal efficacy. Otherwise, why go to the trouble?

16 The answer may lie in the will kit. It described a process to be undertaken to make a “legal will”. After describing the need to complete the various sections of the document, the kit stated as follows:

“ Step 11 Executing (signing) your LEGAL WILL
Attention: Please read the directions below carefully and refer to them when executing (signing) your WILL.
Section 11.1 is signed by the Will maker in front of both witnesses. Remember in most States witnesses must be over the age of 18 and must not be a beneficiary or married/defacto to a beneficiary of the Will, or they may lose their entitlements. Use the same black or blue pen to write and sign your WILL. Do not staple, paper clip or attach anything to your WILL.
Step 12 Attestation and Witnesses
Section 12.1 is to be read by both witnesses and must be signed in each other’s presence and in the presence of the Will maker.
________________________________________________________
You have now completed your DRAFT WILL.
There are only a few steps left:
1. Simply copy across the information from your DRAFT WILL onto your WILL.
2. Sign your WILL in the presence of two witnesses (refer to Steps 11 and 12 above for instructions).
3. Place WILL(s), Storage From and Executor’s Memorandum(s) in an envelope and return to Will Store Pty Ltd using the ‘ FREE POSTAGE ’ number found on page 16 of this booklet. ”

17 Steps 11 and 12 might be understood as steps to be taken when the “legal will” was signed rather than the “draft will” was signed. However, the concluding passage quoted above describes the steps of the testator’s signing the document, and the signature being attested by witnesses, as steps to be taken to complete the “draft will”. Otherwise the words below the line would appear before steps 11 and 12. I am at a loss to understand why the author of the kit would propose that the document called a “draft will” should be executed and witnessed. But those instructions show that it cannot be assumed that by signing the draft will and procuring the signatures of two so-called witnesses, Dr Plumwood intended the document to be her will. She may have been following the steps prescribed for making a draft will before making the “legal will”.

18 Dr Plumwood started to complete the attachment in the kit called “Last will and testament”, but she completed only her name and address. Dr Plumwood may have thought that having gone to the trouble of completing the document described as a draft and having signed it and having her signature purportedly witnessed by two witnesses (although it does not appear that either was present when she signed) she had done enough. But she may have been undecided as to whom to leave the property.

19 On 8 December 2006 Dr Plumwood advised an officer with Bush Heritage Australia that she had bequeathed her property to that organisation and would send them a copy of the will. The note of the telephone conversation records “Bequest confirmed in phone call and she will send a copy of the will. Property plus residue all to ABHF. She is fairly certain that she has also selected the option with her superannuation for it to be disposed of as if part of her estate, will check that.” This indicates that Dr Plumwood intended one or other of the latter documents to constitute her will. But it does not unequivocally point to one rather than the other. On 13 December 2006 Ms Roewen Wishart, a development manager with Bush Heritage Australia, wrote to Dr Plumwood thanking her for the bequest and asking to be provided with a copy of the will if Dr Plumwood was comfortable with that course. Dr Plumwood did not do that.

20 It appears from further file notes in April and May 2007 that Dr Plumwood was then debating whether to leave the property to Bush Heritage Australia or to the National Parks and Wildlife Service. A file note of 17 April 2007 records “She is sizing us up to bequest her nearby property to us. It will either be us or Parks.” I do not infer from this that Dr Plumwood did not believe that she had already made a will. She had clearly done so, at least in 1986. The fact that she was still debating in her own mind how she would leave the property is not inconsistent with her having intended the documents she signed in 2005 or 2006 to constitute her will.

21 It is a great pity that in a misguided effort to save costs, Dr Plumwood should have put the estate to the delay and expense of obtaining evidence to throw light on which of either of the later documents she intended to constitute her will. It is also unfortunate that the author of the will kit should have instructed potential testators to execute and have attested what was intended only to be a draft. If the kit is still available for purchase I trust that the proprietor of the kit will correct the text.

22 Neither Mr Perkins nor Ms Job gave evidence of anything having been said by Dr Plumwood which would indicate she intended the draft will to have legal efficacy. For the reasons I have given I cannot conclude from the fact that Dr Plumwood signed the draft will and had her signature purportedly attested by two witnesses that she intended the document to constitute the will. But for the reasons I have given I am satisfied that she intended the second document, being that forwarded under cover of Bush Heritage Australia’s letter of 16 June 2005 which she amended and signed, to be her will. It did not wholly revoke the 1986 will. The plaintiff did not seek probate of either document

23 The appropriate order is to dismiss the claim for relief in para 1 of the summons, being the only relief presently sought. But I assume the plaintiff would wish to seek probate in solemn form of the 1986 will to the extent it is not impliedly revoked, and of the document called “Last Will and Testament of Val Plumwood dated 31 October 2005. Accordingly I will not simply make an order dismissing the summons. If asked to do so I will make the following orders:

1. Grant probate in solemn form to the plaintiff of the following:


(a) the will of Valerie Plumwood dated 16 July 1986, which is annexure “A” to the plaintiff’s affidavit of 14 August 2009, namely the two sheets commencing “ This is the Last Will and Testament of me Val Plumwood ” and concluding with the attestation of witnesses, but excluding the words “ I give devise and bequeath the property Plumwood Mountain (Portion 61 Parish of Moruya & improvements thereon) to the NSW National Parks and Wildlife Service subject to the following conditions. My preference is that the house be maintained & used to further public education & enjoyment of the area’s natural values, for example by the establishment of a Field Studies Centre, provided that this does not detract from the aim of conserving the natural values of the area. Any development work to be carried out to establish such a centre should minimise disturbance (eg. by not enlarging the entrance track beyond its present dimensions), & any further buildings needed should be located in the house clearing without further clearing. Dr Russell-Smith, my Executor & Trustee, will be able to advise the Service where necessary on these matters ” and excluding the words “ Of my remaining assets, I give & bequeath one half to the Australian Conservation Foundation, & the other half to my son John Hector Macrae. Should he predecease me this half also I give & bequeath to the Australian Conservation Foundation. ”; and

(b) the document headed “ Last Will and Testament of Val Plumwood ” which is annexure “D” to that affidavit.

2. Remit the proceedings to the Registrar to complete the grant. 3. Claim for relief in para 1 of the summons be dismissed.

24 I will await advice from the plaintiff’s solicitor as to the course the plaintiff wishes to take.

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