Cassie v Koumans; Estate of Cassie

[2007] NSWSC 481

CITATION:	Cassie v Koumans & Ors; Estate of Cassie [2007] NSWSC 481 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	9 May 2007
JUDGMENT DATE :	9 May 2007
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Claim for rectification of will or that video recording operated as codicil to will dismissed.
CATCHWORDS:	WILLS, PROBATE AND ADMINISTRATION – Testamentary instruments – Video tape purporting to explain will – Video tape constituted “document” – Whether will should be rectified in accordance with video tape – Rectification claim dismissed – Whether video tape was intended to be an amendment to will – Held video tape was intended to explain will and was not intended to be an amendment to will - Wills, Probate and Administration Act 1898, s18A
LEGISLATION CITED:	Interpretation Act 1987 Wills Probate and Administration Act 1898 s 18A
CASES CITED:	Treacey & Ors v Edwards; Estate of Edwards (2000) 49 NSWLR 738 846
PARTIES:	Murray James Bannerman Cassie (Plaintiff) Marget Ann Koumans (First Defendant) Peter Wainberg (Second Defendant) Timothy James Cassie by his tutor Annelies Suzanne Cassie (Third Defendant) Bethany Ruth Cassie by her tutor Annelies Suzanne Cassie (Fourth Defendant)
FILE NUMBER(S):	SC 105334 of 2006
COUNSEL:	Mr L Ellison SC (Plaintiff) Mr JB Stinson (Solicitor) (First and Second Defendants) Mr M Vincent (Third and Fourth Defendants)
SOLICITORS:	Adrian Holmes (Plaintiff) Diamond Conway (First and Second Defendants) Baldwin Oates and Tidbury (Third and Fourth Defendants)

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

WINDEYER J

WEDNESDAY 9 MAY 2007

105334/06 MURRAY JAMES BANNERMAN CASSIE v MARGET ANN KOUMANS & ORS, THE ESTATE OF CASHEL HEATHER BANNERMAN CASSIE

JUDGMENT

1 HIS HONOUR: This is a claim for rectification of a will dated 10 December 1997 of Mrs Cashel Heather Bannerman Cassie, who died on 4 November 2005, and, if that claim does not succeed or in any event in the alternative, for a declaration that a video recording made by the deceased probably in August 2003 is a testamentary instrument operating as a codicil to the will pursuant to s18A of the Wills Probate and Administration Act 1898. So that there is no unnecessary suspense, I say at the outset that I have come to the conclusion that both claims fail. I deal first with the claim for rectification.

2 Under the will, so far as it is relevant, the deceased gave to her daughter, Mrs Koumans, her property, 29 Birdwood Avenue, Killara, which was the deceased's home. Clause 5, subclauses (b) and (c) are as follows.

(b) Subject to subclause (c) of this clause, to my son the said Murray James Bannerman Cassie my freehold property known as 5 Chisholm Street, Greenwich.

(c) The gift referred to in clause 5(b), is subject to and conditional upon my grandchildren Christopher Murray Cassie, Amanda Lisa Cassie, Phillip Michael Cassie, Timothy James Cassie and Bethany Ruth Cassie being entitled to occupy the property at 5 Chisholm Street, Greenwich together with or independently of my said son until the younger of my said grandchildren attains an age of 18 years unless it shall be apparent that at an earlier date that my grandchildren do not occupy the property at 5 Chisholm Street, Greenwich, as a family home.

3 There are further provisions as to the payment of the outgoings by Mr Cassie, who is the plaintiff in these proceedings. The residue of the estate is given to the two children of the deceased, namely, Mrs Koumans and Mr Murray Cassie, in equal shares. Apart from that there is a legacy of $1,000 to the deceased's son-in-law, Mr Robert Koumans and a legacy of $100 to the deceased's godson, Mr Graeme Langley Peake. The executors appointed by the will are the two children of the deceased together with Mr Peter Wainberg, who has been joined as a defendant in these proceedings. Three of the children of the plaintiff are over 18 years of age. Timothy is aged 17 and Bethany is 13.

4 The amended summons seeks in addition to the rectification order and the declaration under s18A, a grant of probate to the plaintiff and to those of the defendants named as executors of that will. That part of the proceedings will be referred to the Registrar to deal with in due course. It is, however, appropriate and necessary to deal with the claim for rectification and the s18A claim in advance of the grant being made.

5 Under the claim for rectification what is sought is that the will be rectified by deleting from sub-clause 5(b) the words "subject to subclause (c) of this clause" and by deleting sub-clauses 5(c) and 5(d). I should explain here that sub-clause 5(d) is the clause making the plaintiff responsible for outgoings on the Greenwich property.

6 Apart from the video there is no evidence at all that there is any mistake in the will as it stands. There is nothing to suggest that the deceased did not understand clause 5 as it is expressed in the will. It is quite apparent that clause would not have been inserted without some instructions.

7 There is in evidence a draft of an earlier will, with a clause somewhat similar to clause 5(b), which named the plaintiff's former wife, being the mother of the children named in clause 5(c), as a beneficiary as well. The only basis for suggesting that there is a mistake in the will and that it does not express the testamentary intentions of the deceased is the video recording made by the deceased, probably in August 2003, in which the deceased explains or says she is explaining the will which she has made. She does not say there is a mistake in the will. She does not say that the will is not as she wished it to be.

8 I have come to the conclusion that there is no evidence whatsoever that could justify a claim for rectification. Counsel for the plaintiff accepted that the claim for an order under section 18A was a stronger claim and I turn to that.

9 For such a claim to succeed, it is necessary to show that there is a document which embodies the testamentary intentions of the deceased and which the deceased intended to operate, in this case, as an amendment to her 1977 will. The question then is whether or not the document does so operate. It has been decided in an earlier case of Treacey & Ors v Edwards; Estate of Edwards (2000) 49 NSWLR 739 that for the purposes of section 18A the definition of “document” under the Interpretation Act 1987 is relevant. In those circumstances it was held in that case that an audio cassette did constitute a document. I should follow that decision and consider it correct. I must say I do not consider this desirable or intended as it can lead to real uncertainty, but that is irrelevant to the consideration of this matter.

10 I do not propose to set out the whole of the transcription of the video. What is clear from the video is that Mrs Cassie understood what she was saying and appeared to be perfectly competent to make the statements she was making when she made them. However, there are a number of matters to which I should refer.

11 At the commencement of the video, she says,

I have been looking at the will that I made and I feel that I should leave some explanation for, for, or give you some reasons why I made the will as I did. I have very little possessions and my whole idea was that I should leave everything that I have to my two children, Marget Ann Cassie, Marget Ann Koumans as she is now, and Murray Cassie, my son, and that has always been my intention.

12 She then goes on to say it had always been discussed and agreed that the Killara property would go to her daughter and the house at Greenwich would go to her son. She explains that it has never been her intention to leave anything to her grandchildren because over the years she has made some small gifts to them and hoped that was a help to set them on their way. She then says,

It was never my intention of leaving anything to my in-laws because I feel that I have done all that I can for them over the years. I have given them, provided a home and it is not provided, my intention that I should provide a home for them after I was dead, so that Annelies who has lived, when Murray, when she left, divorced Murray she asked if she could stay on in the house where I agreed she could do so. And I thought that she should stay there if she wanted to and look after his children. I have no intention of either my in-laws in my home when I was dead. The children.

Then there is a gap in the tape and after which she goes on,

Where did I get to, I didn't want anyone to live in my house when, after I was dead. I didn't really mean to say that, but that doesn't matter, I suppose.

Then there is another gap and the deceased went on,

The houses are given to Marget and Murray unconditionally to do whatever they wish with. Murray, I understand, would like to pull the one at Greenwich down and build another one as a home for himself and if this is his wish, so be it. The house at Greenwich was actually built by my uncle for my grandmother, so, it has been in the family for some time and I would like it to go on to be a place for him and his family, but he may do with it what he pleases.

She then goes on, after stating what good children her children had been to her, to say,

I am sorry if other people expected me to remember them in their, in my will, but as I say, my only intentions really, are for the well-being of my two children.

And she goes on to say she hopes that they will leave what they have to their children and not to others.

13 The last matter which I think I should set out is this. Towards the end of the tape the following appears:

I have only, one thing to say, that I have left a minute remembrance only to my godson, Graham Peake, it is only for him to buy himself a bottle of champagne, or something similar, to remember his godmother. He has been very good over the years to me and his father and mother and I just wanted him to have a remembrance and that is all it is, but I hope this does explain in some way why I have left my will as I have because my children are my most important thing in my life and the only thing in my life and I feel the least I can do is to leave what I have to them to look after themselves, enjoy it and look after their children.

14 When these passages are read in the context of the whole document, which is quite long and quite discursive it does not appear to be anything like a document expressing testamentary intentions by which I mean a document which the deceased would have intended to operate as an amendment to the will which she had made.

15 There are two passages which make it perfectly clear that this is the position. The first is the one I set out earlier where the deceased says she wishes to give some reasons why “I made the will as I did.” This shows the video is an explanation for the will and not an intended variation of it. The second passage is the one to which I have just referred where the deceased said, "I hope that does explain in some way why I have left my will as I have." That again makes it quite clear that the deceased did not intend this document to express an amendment to the will which she had made.

16 It is put by Mr Ellison that the statement that “the houses are given to Marget and Murray unconditionally to do whatever they wish with” is contrary to the expression in clause 5(c) of the will which of course is a conditional gift. When read as a whole however, it seems to me that what the deceased is really saying is that although she would like the home to be kept as a family home, as it was built by her uncle for her grandmother, it is for her son to decide whether he wants that, and if he wants to pull it down and build a new home then that is a matter for him.

17 In my view it is clear that the requirements of s18A have not been made out and therefore the appropriate order is to dismiss the claims in paragraphs 1, 2, 3, 4 and 5 of the further amended summons. I make that order. I order the claims in paragraphs 1 to 5 of the further amended summons be dismissed. I order that the balance of the proceedings be determined by the Registrar.

18 As to costs, I have come to the conclusion that, although counsel for the plaintiff submitted he had a proper ground to put forward the claim, an order that his costs be paid out of the estate is not justified. I do not propose to make an order for his costs. The question as to the costs of the third and fourth defendants is a matter that does affect Mrs Koumans as she is entitled to one half of the residue of the estate and it is from that source that the costs will be paid. Therefore it will be necessary to ascertain whether she wishes to make any submissions as to that. I hope that counsel for the third and fourth defendants will pass on what I have said in discussion about that.

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17/05/2007 - Correction of typographical error change "commence" to "commencement" - Paragraph(s) 11