Currell v Baldock

[2012] NSWSC 705

Supreme Court

New South Wales

Medium Neutral Citation:

Currell v Baldock; Estate of Currell [2012] NSWSC 705

Hearing dates:

6 June 2012

Decision date:

06 June 2012

Jurisdiction:

Equity Division - Probate List

Before:

White J

Decision:

Refer to para [89] of judgment.

Catchwords:

WILLS, PROBATE AND ADMINISTRATION - wills - construction of a will - whether deceased intended for document, without more, to operate as her will - whether deceased understood requirements of Succession Act 2006, s 8 - effect of informal alterations to wills - whether inference as to intention of deceased affected by absence of any initialling or authentication of informal amendments - held deceased intended latest testamentary instrument to form will

WILLS, PROBATE AND ADMINISTRATION - wills - grant of probate - where multiple informal documents written in hand of deceased - no revocation clause in later will - later wills prevail over earlier ones to extent of any inconsistencies - consideration of extent to which prior wills have been revoked - probate granted of will of deceased comprising of two instruments

WILLS, PROBATE AND ADMINISTRATION - wills - construction of will - whether words of gift or statement of intention - question as to the nature of the gift made - words of will conferring right of residence - gift as conferring only a conditional right of residence

Legislation Cited:

Succession Act 2006
Wills, Probate and Administration Act 1898

Cases Cited:

Hatsatouris v Hatsatouris [2001] NSWCA 408
In the Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446
Bell v Crewes [2011] NSWSC 1159
Estate of Francis Collins [2000] NSWSC 407
Perrin v Morgan [1943] AC 399
White v Arizon Pty Ltd [2003] NSWSC 1051
Stevenson v Myers (1929) 47 WN (NSW) 94

Texts Cited:

Geddes, Rowland and Studdert, Wills, Probate and Administration Law in New South Wales

Category:

Principal judgment

Parties:

Tanya Lee Currell (1st Plaintiff)
Elizabeth Jean Thompson (2nd Plaintiff)
Lynette Fae Baldock (1st Defendant)
Joy Maree de Martini (2nd Defendant)
Debra Anne Phipps (3rd Defendant)

Representation:

Counsel:
D V Robinson (Plaintiffs)
D L Warren (Defendants)
Solicitors:
Lyons Barnett Kennedy (Plaintiffs)
Newman & Pengilly (Defendants)

File Number(s):

2011/415782

Judgment

1. HIS HONOUR: These proceedings concern the estate of Mrs Beryl Gwen Currell who died on 10 March 2010 aged 78. The deceased had four children, Lynette, Joy, Debra and Tanya. The present application raises first, the question of which of several documents should be admitted to probate as constituting the will of the deceased. Two of the documents in question, namely, the last two documents, are not executed in accordance with the requirements of s 6 of the Succession Act 2006. The question is whether either or both should be admitted to probate pursuant to s 8 of the Succession Act.

1. The documents are all in the hand of the deceased and they contain handwritten amendments. A question arises as to whether those amendments constitute alterations to the will of the deceased.

1. On the determination of which of the documents constituted a will of the deceased, the question then arises as to the extent to which prior wills have been revoked.

1. The decision on those questions will determine what documents should be admitted to probate.

1. A separate issue arises in relation to the last of the documents involving a question of construction of a gift to the first plaintiff, Tanya Currell.

1. Although it was not the practice for questions of construction of a will to be decided at the same time as the question as to what documents should be admitted to probate, there is no objection to that course. To do so in the present case is consistent with the requirement that so far as possible all matters in issue should be determined in the one proceeding.

1. The estate is a modest one. The deceased died owning a property in [xxxxxxx xxxx], Tamworth which, for probate purposes, has been appraised as having a value of $315,000. The deceased owned two accounts with the St George Bank: one a term deposit account to the value of $64,500; and the other a savings account containing a little over $43,000. The deceased otherwise owned shares to the value of $4,720, a motor vehicle and furniture, furnishings and personal effects. In total, the estate was estimated to have a net value of a little under $430,000.

1. The earliest of the instruments is a will dated 5 April 2004. It appears to have been executed in accordance with the requirements of the Wills, Probate and Administration Act 1898. It was signed by the deceased whose signature is apparently attested to by two witnesses. I need not dwell on that document because it was revoked by a later will dated 14 April 2007. It is sufficient to note that in the 2004 will the deceased left a legacy of $10 to her three elder daughters, Lynette, Joy and Debra, and described this sum as being the least amount possible that they might be paid to stop them contesting her will.

1. The deceased made a later will on 14 April 2007. It is also signed by the deceased at the foot of each of the two pages of the will and her signature is attested to by two witnesses. There is no issue as to its validity. The will of 14 April 2007 revoked all former wills and testamentary dispositions. The deceased appointed as her "Exectrices" (sic) a Mrs Egan, a solicitor Mr O'Halloran, and her daughter Tanya. It relevantly provided:

"Subject to the payment of any Debts, I leave - $10 (ea) to three of my children." [The children were then named.]

1. The deceased then set out her reasons for leaving three of her daughters legacies of only $10.

1. The will then provided:

"To my daughter Tanya I leave my Holden Astra car. I will leave an account at the St George Bank for her. The furniture and contents of my home I give to (Will to) Patricia Forsyth [address given] for the loving care she has given me".

1. The deceased at some point crossed out the name of Patricia Forsyth and the address and the reference to her reasons for making that gift. It is not clear whether this deletion was on the document as it was originally signed, but I infer it was not because the crossing out is not initialled. However, nothing turns on this. If the deletion were made later, it was an effective informal alteration to the will.

1. The will then continues:

"After my debts are paid (if any) I give any money I have to the Heart Foundation New South Wales Division Strawberry Hills 2012, New South Wales and St Vincents Hospital Sydney.

My home is to be sold, also 2 mowers. The proceeds is [sic] to be divided equally between ...".

1. The word "equally" is crossed out and the crossing out was initialled by the deceased.

1. The will then continues:

"Heart Foundation - New South Wales - 70%

St Vincents Hospital - Sydney - 30%.

They have saved my life twice".

1. I infer that the alteration from a division of proceeds equally to a division in a ratio of 70 per cent and 30 per cent was made at the time the will was signed, but, again, that does not matter.

1. It is clear from the deceased's initialling of the alteration that even if as originally executed, the will provided for the proceeds to be divided equally, she subsequently must have altered the will and her alteration will be an effective informal alteration pursuant to s 8 of the Succession Act. However, looking at the physical formatting of the document and the words which follow and the pen that was used, I infer that at the time the document was signed it provided for a division of proceeds between the two charities in the ratio of 70 per cent and 30 per cent.

1. For the reasons which will follow, questions arise as to the proper construction of the gift of "any money I have" to those charities. A question also arises as to the effect of the sentence "I will leave an account at the St George Bank for [Tanya]".

1. The last two handwritten documents which are in issue are a document described as "The Last Will and Testament" of the deceased which is in her hand and which bears a date 20 January 2010. This is the most complete of all of the instruments. It is unsigned but the deceased's initials appear against a correction to the spelling of one of the words.

1. The other document is a document also described as "The Last Will and Testament" of the deceased. It is dated 19 February 2010. The deceased has again initialled the document where it contains an interpolation, but otherwise she has not signed it. The document has been signed by two persons who were called in to be attesting witnesses and is dated 19 February 2010. The circumstances relating to the preparation of these two documents are as follows.

1. The deceased's sister Jean Stobie visited the deceased on 20 January 2010. Prior to that time she had found her sister writing her will, or attempting to do so, and on prior occasions the deceased said to Mrs Stobie words to the effect that "I can't work it out".

1. On 20 January, the deceased handed Mrs Stobie the document which she had then written out which consists of three pages of handwriting. When she handed the document to Mrs Stobie, the deceased said to her "This is my Will". Later that day, the deceased said to Mrs Stobie "I'm glad that's done".

1. The deceased also spoke to a friend at about this time, a Mrs Shirley McMillan. Mrs McMillan deposed that in the period before 20 January 2010, the deceased continued to discuss with her the effect of a document she had wanted to create as her will. She discussed how the estate might be left.

1. Mrs McMillan deposed that about a month before 19 February 2010, she recalls the deceased saying to her, when sitting at the dining table with a document in front of her, which she assumed was her will "I've done it". This is the same language which the deceased used in referring to the document when speaking with Mrs Stobie. Mrs McMillan says, however, that she was aware that an appointment had been made for the deceased to see a solicitor with a view to discussing her will. In the same conversation as that in which the deceased said "I've done it", she also said words to the effect of "I've got it right this time". Mrs McMillan said to the deceased "Well, you can take it to your Solicitor and check it over with him to make sure it's OK".

1. Given Mrs McMillan's evidence that at the time the document was prepared by the deceased it was proposed that she would see a solicitor with a view to discussing her will, I do not infer from the deceased's words "I've done it" that the deceased intended that the document she had prepared would have immediate effect as her will. In the context that it was proposed to see a solicitor, those words are more consistent with the deceased's conveying that she had done what she needed to do in order to complete the document that, subject to seeing her solicitor, she intended would take effect as her will.

1. There is no necessary inconsistency between a person making a will and intending it to be immediately operative as such, and also intending to see a solicitor with a view to discussing its contents or even its validity. But I think it more likely that the deceased did not intend at that time the document to operate as her will. This would explain why the document was not signed by her at the time and why she did not ask Mrs Stobie and Mrs McMillan to witness the document as she subsequently did on 19 February.

1. It is clear from the two earlier wills of 2004 and 2007 that the deceased understood that a will should be signed and attested by two witnesses.

1. Section 8 of the Succession Act provides:

"8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?

(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 this 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 the 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 limit 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."

1. The document dated 20 January 2010 is expressed to be the last will and testament of the deceased and clearly sets out testamentary intentions. It does so more completely than any of the other documents. However, for a document not executed in accordance with s 6 to be admitted as the will of the deceased, the Court must be satisfied that the deceased intended that the document should, without more, on her part operate as her will (Hatsatouris v Hatsatouris [2001] NSWCA 408; In the Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446; and Bell v Crewes [2011] NSWSC 1159).

1. I am not satisfied that the deceased at 20 January, or subsequently, intended that the document bearing that date was to operate without more on her part as her will.

1. On 19 February, the deceased visited a solicitor. Mrs Stobie drove her to the offices of RJ O'Halloran & Co in Tamworth. No-one from that firm has given evidence. Mrs Stobie did not attend her sister at the conference with the solicitor. After the conference the deceased told Mrs Stobie words to the effect:

"I was advised to go home, sign it, have it witnessed and bring it back and I was given a bit of paper with instructions on it as to how to complete my Will."

1. The piece of paper which she showed to Mrs Stobie was evidently prepared by the solicitor. It is in handwriting and says:

"Reason why

- The rest, Residue and remainder of my estate is given to ................ (equally)

Dated and sign 2 witnesses

2 witnesses to witness your signature."

1. But for the terms of this document, it might be inferred that the deceased would have taken the three-page draft will dated 20 January 2010 to the solicitor for advice. It may be that she didn't do so, or alternatively it may be the case that the solicitor, whoever he or she was, might not have read the document carefully.

1. The draft will of 20 January 2010 does include a residuary bequest. It provided for the rest of the deceased's estate to be divided between the Heart Foundation and St Vincent's Hospital in equal shares. That was after the deceased had again provided a legacy of $10 to her three elder daughters, and after she had given her car and a mower to her daughter Tanya, and after making provision for the executors to sell her house and contents and to use the money to buy a small house or unit where Tanya could live. The draft of 20 January 2010 also provided that Tanya would not be able to sell such a house or unit, and if the house or unit were sold, the proceeds would be divided between the Heart Foundation and St Vincent's Hospital equally.

1. After the deceased and Mrs Stobie returned, the deceased completed another will document in her own handwriting. She said to Mrs Stobie words to the effect "I have been trying to sort out the rest of my Will and I think I've got it right this time". She said to Mrs Stobie that "it has to be signed by Witnesses".

1. The deceased telephoned Mrs McMillan and said to her "I have to sign it when you are there". Mrs McMillan arrived at the deceased's house on 19 February and together, Mrs Stobie and Mrs McMillan signed a four-page document that the deceased had written out. It can be inferred from Mrs Stobie's evidence that the deceased wrote out this document on 19 February.

1. Although the deceased did not sign the will, she initialled an interpolation in it. At the conclusion of Mrs Stobie and Mrs McMillan's signing the document, the deceased said "I'm relieved I've done my Will now". Mrs Stobie and Mrs McMillan signed each of the four pages of the document.

1. I am satisfied that the deceased did intend this document of 19 February 2010 to have immediate operation as her will.

1. The will of 19 February 2010 appointed the plaintiffs, namely her daughter Tanya and a Mrs Elizabeth Thompson and also a Mrs Marie Egan as executrices.

1. The question was raised whether the insertion of Tanya's name may have been a later insertion. It is in a different coloured blue pen than that used for most of the rest of the will. However, there are other parts of the will which are also written in a different pen from that which apparently was used for the bulk of the document and I would not infer from the use of that pen that her name was not included in the document at the time. It does not matter because if her name were not included in the document at that time, it would be inferred that it was inserted by the deceased at a later time, with the intention that the addition of the name of Tanya as one of the executors should be an alteration to the will.

1. Again, the will left a legacy of only $10 to each of the three elder daughters. It contains a lengthy explanation of the reasons for their exclusion from any greater benefit. The remaining operative parts of the will state as follows:

"To my daughter Tanya Lee Currell I will to her my Holden Astra Car - [xxx xxx].

Home and Contents for as long as she needs them.

I do not want anyone else to live here other than Tanya and her partner. If this happens she will forfeit the right to live here at [xx xxxxxxx xxxx], Tamworth. It can be sold, the proceeds then go to as follows -

A small house or unit for Tanya, which she may own."

1. This will contains no revocation clause.

1. The words "house or" have been written on in black biro. The word "or" has been crossed out in black biro and the word "house" has been lightly smudged in black biro. I infer that those markings were put on the document after 19 February. The marking of those words is not an alteration of the will that conforms with s 14 of the Succession Act.

1. The question is whether it is an alteration that I should be satisfied the deceased intended to form an alteration to her will which is to be given effect to pursuant to s 8(2)(b) of the Act.

1. The alteration is not initialled. Typically, but not always, where the deceased made alterations to the text of the document, she initialled the alteration. In the absence of any initialling or other authentication by the deceased that she intended the markings to be an alteration to her will, I would not infer that that was her intention.

1. From looking at the text of the original document, I infer that the deceased, at some point, contemplated altering the will by deleting the words "house or" and started to do so by crossing out the word "or" and by making an initial smudge on the word "house", but I do not think that she completed that intention. In my view the whole of the document of 19 February 2010 forms a will of the deceased.

1. The next question is whether the earlier will of 14 April 2007 or parts of it have been revoked.

1. Mr Warren of counsel, who appeared for the defendants, being the three elder daughters, acknowledged the principles in relation to implied revocation that were helpfully summarised by Young J (as His Honour then was) in Estate of Francis Collins [2000] NSWSC 407 (at [5]-[7]):

"[5] Generally, where a later will deals with the whole of the testator's property, impliedly all prior testamentary instruments are revoked: Cadell v Wilcocks [1898] P 21. Here, the informal document deals with the deceased's entire estate.

[6] However, where a later testamentary instrument which does not contain a revocation clause is partially or totally inconsistent with a former testamentary instrument, then the former will is considered to be revoked in whole or in part. The mere fact of making a subsequent testamentary document does not work a total revocation of the prior one unless expressly stated or the two are incapable of standing together: Lemage v Goodban (1865) 1 P & D 57; Re Gilbert (1905) 22 WN (NSW) 186. If possible, the court will attempt to construe wills not containing revocation clauses as standing together in which case the later will prevail over the earlier one to the extent of any inconsistency: In the Goods of Budd (1862) 3 Sw & Tr 196; (1862) 164 ER 1249; In the Goods of Petchell (1874) 3 P & D 153; Re Christie (1883) 9 VLR (IP & M) 46; Re Resch's Will Trusts [1969] 1 AC 514. Generally, a prior testamentary instrument will be disturbed only to the extent needed to give effect to the later inconsistent document.

[7] The question is really one question of the testator's intention - can it be discerned whether the testator intended the informal document to completely revoke his former will, or merely to amend (partially revoke) it?"

1. Counsel also acknowledged that the law leans against an intestacy. But Mr Warren laid stress on the advice the deceased said she had received from the solicitor and the document she had received from the solicitor.

1. He submitted that as the deceased had been advised that she should include a clause that dealt with the residue of her estate, and as she apparently chose to ignore that advice, it should be inferred that by this will she did not intend to deal with the residue of her estate. I think that much can be accepted. But then it was said that it should be inferred that she intended the document not only to be her last will, but also her last and only will, such that the residue of the estate was undisposed of and would pass on intestacy. I do not think that that can be inferred from the fact that the deceased did not act on the advice she was apparently given.

1. As Young J said in Estate of Collins, if possible, the Court will attempt to construe wills not containing revocation clauses as standing together in which case the later will will prevail over the earlier one to the extent of any inconsistency, and it is only to avoid inconsistency that the prior testamentary instrument will be disturbed in the absence of a revocation clause.

1. If any inference is to be drawn as to the deceased's subjective intentions, it would be that by not dealing with all of the assets in her estate, she intended those not dealt with to pass in accordance with her prior will.

1. Certainly it could not be inferred that she had any subjective intention that her three elder daughters should inherit any part of her estate on intestacy. That would be inconsistent with her giving them legacies of only $10 each and explaining in detail the reasons for such gifts.

1. Counsel also submitted that s 8 of the Succession Act applies as a statutory command in determining whether the deceased intended the document of 19 February 2010 to form her will, and that the law in relation to the revocation of wills did not apply in the context of s 8. I do not think that s 8 has anything to do with the question of the extent of implied revocation of earlier testamentary instruments by the informal document of 19 February 2010.

1. The fact that the Court might declare that an informal document forms the deceased's will does not mean that the Court has to be satisfied that the deceased intended the document to form his or her only will. That would be inconsistent with both s 8(2)(a) and with s 8(2)(b).

1. Once the Court is satisfied that the informal document was intended by the deceased to form his or her will, the question of the extent to which prior instruments have been revoked is to be approached in the same way as if the document had been properly executed.

1. It is only to the extent to which the gifts in the will of 19 February 2010 or other provisions of that document are inconsistent with the will of 14 April 2007 that the latter is revoked.

1. I turn then to the question as to the extent of the revocation of the will of 14 April 2007.

1. The persons appointed as executors of that will included Tanya Currell, but also Mrs Egan and Mr O'Halloran.

1. Mrs Egan was also named as an executrix of the will of 19 February 2010, but she has renounced probate.

1. Mr O'Halloran was not appointed as executor of the will of 19 February 2010. I did not hear argument on the question as to whether his appointment under the will of 14 April 2007 was impliedly revoked but the principle as stated in Geddes, Rowland and Studdert, Wills, Probate and Administration Law in New South Wales at [41.24] is that:

"Where the will comprises several testamentary documents, each appointing executors or a sole executor, probate is granted to all the executors jointly, but where the documents each dealt with different property, probate has been granted to different executors each in respect of different property ...".

1. Whilst the will of 19 February 2010 and the will of 14 April 2007 do not deal with precisely the same property, nonetheless, in my view the appropriate order will be to declare both instruments to form the will of the deceased and to make a grant of probate to the present plaintiffs with leave being reserved to Mr O'Halloran to join in and also apply for the grant if he so chooses.

1. Both wills gave pecuniary legacies of $10 to the three elder daughters and contained reasons for those bequests. Both wills contained the gift of the Holden car to Tanya. The will of 14 April 2007 initially dealt with the furniture and contents of the deceased's house, however, as I have said, the deletion of the beneficiary of that gift by the deceased means that there was no effective gift in respect of furniture and contents in the 2007 will. In any event, that matter is now dealt with by the will of 19 February 2010.

1. There is a question as to whether or not, by the will of 14 April 2007, the deceased has left one or other or both of her bank accounts with the St. George Bank to Tanya. It will be recalled that the words used in the 2007 will are "I will leave an account at the St. George Bank for her". In my view, these were not words of gift, but a statement of intention by the deceased as to what she proposed to do at some time in the future, either by making an inter vivos gift of moneys in one of the accounts, or by leaving one of the accounts to Tanya by will.

1. If the words could be construed as a gift of an account to Tanya, then the gift would fail for uncertainty because the deceased had two bank accounts. It would not be possible to say which of the two (either a term deposit account or a savings account) she intended to pass by such a gift.

1. The remaining gift in the 2007 will is of "any money I have" to the two named charities and of the disposition of the proceeds of the sale of the deceased's home and of two mowers. The gift of "any money I have" includes not only any cash that the deceased had, but also money in her bank accounts. In my view, it also includes other personal estate not otherwise specifically dealt with in the will.

1. Whilst shares would not be described as "money" in the strict or primary sense of that term, the question is in what sense the deceased intended to use that phrase. As the House of Lords decided in Perrin v Morgan [1943] AC 399, the word "money" has several meanings, each of which in appropriate circumstances may be regarded as a natural meaning. In Perrin v Morgan, it was held that a bequest of "all moneys of which I die possessed" included all of the deceased's net personalty.

1. The will of 14 April 2007 evinces an intention by the deceased to deal with all of her property and hence the shares pass under the gift of money.

1. The gift of the home in the 2007 will is inconsistent with the later gift in the 2010 will and is impliedly revoked by the 2010 will.

1. It is not clear from the statement of estate assets whether the deceased died possessed of mowers. Whether or not they were dealt with by the 2010 will inconsistently with the 2007 will depends on whether they were part of the contents of the home. If so, the 2010 will prevails because it contains an inconsistent provision. If not, those mowers are to be dealt with under the 2007 will.

1. The remaining questions concern the construction of the gift to Tanya in the 2010 will. Ms Robinson of counsel, who appeared for Ms Tanya Currell, submitted that Tanya inherited the residue of the estate under the 2010 will by the gift of "the proceeds". I do not agree. The context in which those words were used makes it clear that the proceeds refer only to the proceeds of the sale of the deceased's house in [xxxxxxx xxxx], Tamworth.

1. Counsel also submitted that Tanya was entitled beneficially to the Tamworth house. This argument was put on a number of bases. It was submitted that the gift concerning home and contents created a trust of which Tanya Currell was the sole beneficiary and that she was entitled to terminate the trust and call for an immediate transfer of the trust property. I do not agree.

1. The 2010 will gives Tanya Currell a right of residence in the Tamworth home and a right of use of the contents of the home for as long as she needs them. Upon the right of residence coming to an end, either because Tanya Currell no longer needs the home and contents, or if the right is terminated by her living there with persons other than her partner, then the Tamworth property is to be sold. The will does not provide for Tanya to be beneficially entitled to the whole of the proceeds. The whole of the proceeds might be applied in the purchase of a small house or unit, but whether or not that would be so would depend upon the exercise of the executors' discretion. It may be that such a small house or unit would be purchased for Tanya and that some part of the proceeds would be left over.

1. It is only if a beneficiary is absolutely entitled to the property of the trust that she would be entitled to call for a transfer of the trust property. I do not think that the property itself is held on trust for Tanya, but if it is, she is not absolutely entitled.

1. Ms Robinson submitted that contrary to the conclusion I have just expressed, the gift in the 2010 will conferred more than a right of residence on Tanya. Counsel emphasised the words "I will to" and submitted that those were words of a gift of an estate whereas a mere personal right of residence does not confer an estate of any kind (White v Arizon Pty Ltd [2003] NSWSC 1051 at [23] citing Stevenson v Myers (1929) 47 WN (NSW) 94 at 95). But in my view, it is a not an inappropriate use of language to confer a right of residence using the words "I will to". All those words indicate is that the deceased was making a gift. The question is what was the nature of the gift made.

1. It is clear from the restrictions that Tanya was not to have the right to let the property to others. She was not to have the right to sell the property and to retain all of the proceeds beneficially. She was not to have the right to mortgage it. I think it confers only a right of residence.

1. Then it was said that Tanya Currell received a vested estate subject to a condition upon which that estate could be defeated. It was said that the condition failed both on the grounds of uncertainty and on the grounds of public policy.

1. In my view the clause did not vest any estate in Tanya, subject to a condition of defeasance. Rather, it conferred a conditional right of residence.

1. I see nothing in the condition (that the only persons who are to reside in the property are Tanya or her partner) that would offend public policy. By implication, if Tanya or her partner had a child, that the child would also be permitted to live on the property. That would be a necessary implication. But there is no public policy that would be infringed by saying that if someone other than Tanya or her partner were to reside on the property, the property should then be sold. The only consequence of that would be that the proceeds would be applied to provide other accommodation for Tanya.

1. In summary, for these reasons I will declare that the informal document of 19 February 2010 and the will of the deceased dated 14 April 2007 formed the will of the deceased, that in respect of the latter document, that the part of the document that forms the will of the deceased is the paragraph commencing "After my debts are paid if any" down to "and St Vincent's Hospital Sydney" and after to deleting the words "my home is to be sold" then as to the balance of the will of 14 April 2007.

1. I will dismiss the claims in paras 5(b), 5(c) and 5(d) of the amended statement of claim.

1. I will direct that probate in solemn form of the will of the deceased comprising those two instruments be granted to the plaintiffs with liberty to Mr O'Halloran to apply to join in the grant and remit the proceedings to the Registrar to complete the grant.

1. I will declare that Tanya is entitled absolutely to the Holden Astra car, but I will refuse the declaration that she is entitled absolutely to the home and its contents.

1. I direct counsel to bring in short minutes of order in accordance with these reasons and I will hear the parties on costs.

Postscript

1. As is clear from these reasons the appointment of executors in the will of 14 April 2007 is also part of the will to be admitted to probate. The introductory words and the revocation clause in the 2007 will should also be admitted. The pecuniary legacies and the statement of reasons for those legacies in the 2007 will are replaced by the like provisions in the will of 19 February 2010.

1. In my reasons delivered orally I said (at [70] above) that whether the mowers were dealt with under the 2010 or 2007 will depended on whether they were part of the contents of the home dealt with by the 2010 will. There was no evidence on that issue. The draft orders proposed by counsel to give effect to my reasons did not deal with it. I do not know whether such mowers are part of the estate. In the absence of evidence that mowers were dealt with by the 2010 will there is no reason to exclude from probate the words of the 2007 will dealing with the application of the proceeds of sale of mowers.

1. The orders provide for payment of costs out of the residuary estate. As should be clear from paras [66]-[68] that is the personal estate passing under the gift of "any money I have" and to the charities.

1. Although it was not the subject of argument, to avoid the costs of any future application, I direct the executors and trustees of the will that they would be justified in distributing the net personal estate of the deceased that passes to the National Heart Foundation and St. Vincent's Hospital, after payment of debts, funeral and testamentary expenses to those organisations in equal shares and that it is only the proceeds (if any) of two mowers that are to be distributed in the proportions of 70 per cent and 30 per cent.

1. The orders made were:

1. Declare that the documents dated 19 February 2010 and 14 April 2007 (copies of which are annexures "A" and "C" to the amended statement of claim filed 14 May 2012) form the will of the deceased, but in respect of the document dated 14 April 2007 the words to be admitted to probate are the first three paragraphs down to and including the appointment of executors and the words on the second page:

"After my debts are paid (if any) I give any money I have to The Heart Foundation New South Wales Division Strawberry Hills 2012 New South Wales & St Vincents Hospital Sydney.

... 2 mowers [to be sold].

The proceeds is to be divided between:

Heart Foundation - New South Wales - 70%

St Vincents Hospital - Sydney - 30%

They have saved my life twice."

2. Orders that probate in solemn form be granted to the plaintiffs of the two documents dated 19 February 2010 and 14 April 2007.

3. Reserve leave to Mr O'Halloran, executor named in the will dated 14 April 2007, to join in and apply for the grant of probate if he so chooses.

4. Declare that under the will Tanya Lee Currell is entitled absolutely to the car.

5. Dismiss the claim for the declarations sought in paragraph 5(b), (c) and (d) of the amended statement of claim and the claim in paragraph 5(a) of the amended statement of claim for a declaration that the plaintiff is entitled absolutely to the estate home and contents.

6. Remit the proceedings to the Registrar to complete the grant.

7. Order that the plaintiffs' costs of the proceedings be paid out of the residuary estate on the indemnity basis.

8. Order that the defendants' costs of the proceedings be paid out of the residuary estate on the ordinary basis.

9. Direct the executors and trustees of the will that they would be justified in distributing the net personal estate of the deceased that passes to the National Heart Foundation and St. Vincent's Hospital, after payment of debts, funeral and testamentary expenses to those organisations in equal shares and that it is only the proceeds (if any) of two mowers that are to be distributed in the proportions of 70 per cent and 30 per cent.