Estate D M Edwards: Treacey v Edwards

[2000] NSWSC 846

Reported Decision: 50 NSWLR 739

New South Wales

Supreme Court

CITATION:	Estate D M Edwards: Treacey v Edwards [2000] NSWSC 846
CURRENT JURISDICTION:	Probate
FILE NUMBER(S):	SC 103776/97
HEARING DATE(S):	18 August 2000
JUDGMENT DATE:	18 August 2000
PARTIES :	Scott John Treacey (P) Philip John Ritchie (P) Sonia Champion De Crespigny (P) Gwendoline Ada Edwards (D)
JUDGMENT OF:	Austin J

COUNSEL :	A Enright (P) No appearance for defendant
SOLICITORS:	Jenny Bull & Company (P) No appearance for defendant
CATCHWORDS:	WILLS - later will revokes former will and disposes of estate in accordance with audio tape - whether dependent relative revocation - whether audio tape, though unwritten, is a 'document' so that court may exercise its dispensing power under s 18A - whether formally valid will can incorporate audio tape by reference
LEGISLATION CITED:	Wills, Probate and Administration Act 1898 (NSW) ss 7, 18A Interpretation Act 1987 (NSW) ss 8, 21
CASES CITED:	Estate of Niven (1921) 21 SR (NSW) 702 Estate of Southerden [1925] P 177 In the Will of Beveridge (1935) 6 SR (NSW) 125 Re Graham (1970) 20 SASR 198 Re Jones [1976] 1 All ER 593 Re Lindrea [1953] VLR 168 Re Masters; Hill v Plumber (1994) 33 NSWLR 446
DECISION:	Probate of later will, in common form, granted to plaintiffs, and audio tape admitted to probate under s 18A.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

FRIDAY 18 AUGUST 2000

103776/97 - SCOTT JOHN TREACEY & 2 ORS v GWENDOLINE ADA EDWARDS, THE ESTATE OF DAVID MICHAEL EDWARDS

JUDGMENT (Ex tempore; revised 21 August 2000)

1 HIS HONOUR: This is an application by further amended statement of claim by the three plaintiffs for an order that probate of the will of David Michael Edwards, deceased, dated 2 June 1996 be granted to them in solemn or common form and also that an audio tape referred to in that will be admitted to probate under section 18A of the Wills, Probate and Administration Act 1898 (NSW) (‘the Act’), or that a declaration be made that the audio tape is incorporated by reference into that will. In the alternative, the plaintiff seeks an order that probate of an earlier will of the deceased dated 21 December 1993 be granted to them. Counsel has presented the matter on the basis that the plaintiff's preferred course of action is that the later will be admitted to probate provided that the audio tape can be given effect.

2   The deceased died on 18 June 1996. His estate was valued by the plaintiffs as executors in 1997 at a net value of approximately $34,173. It comprised photographic equipment, art works, household effects and clothing plus a superannuation entitlement, a life policy entitlement and the balance to the credit of a bank account. The property was situated in New South Wales.

3   The deceased was homosexual. The evidence indicates that he believed, apparently until his death, that his mother and sister had never accepted his homosexuality. He lived separately from them and appears to have had very little contact with them.

4   On the 21 December 1993 he executed a will in proper form naming the plaintiffs as executors. By that will he gave the whole of his estate to his three executors but requested, without imposing any binding obligation on them, that they should distribute items of property to such of his friends as they may determine in their discretion. That will contained the following clause:

‘I have made no provision for my mother, Gwendoline Ada Edwards and my sister Donna Louise Gregg as they have played very little part in my life for many years and have not been prepared to acknowledge and accept that I am gay and I expressly state that I do not wish my mother or sister to make any arrangements for the disposal of my body upon my death.’

5   Evidently the original of that will has been misplaced, but on the view I take of the matter it is unnecessary to say any more than that I am satisfied upon the evidence that the 1993 will was executed in the above terms.

6   The deceased contracted the HIV virus and then AIDS, which led to his death. He was in contact with the AIDS Council of New South Wales. In 1996 a solicitor at the AIDS Council discussed his testamentary intentions with him. By that time the deceased had formed the view that he should make specific gifts of items of his personal property rather than leaving the destination of that property to his executors. The solicitor suggested that instead of putting the specific bequests in the body of a new will, he should make a new will referring to an attached list. In fact, either by virtue of some suggestion made to him or of his own initiative, the deceased decided that the ‘attached list’ would be an audio tape. By a will dated 2 June 1996 he purported to revoke all former testamentary dispositions and to appoint the three plaintiffs as his executors. The will proceeded:

‘(3) I direct my executors to dispose of all of property [sic] both real and personal in accordance with the audio tape recorded list which accompanies this will.’

7   The will directed the first plaintiff to manage and organise all the details of the funeral and it proceeded:

‘(5) I direct that my mother Gwendalen [sic] Ada Edwards and my sister Donna Louise Gregg and all other members of my biological family be expressly excused from all plans, arrangements in regard to my funeral and any other matter regarding my estate. This is due to their non-acceptance of my homosexuality.’

8   The evidence satisfies me that prior to the execution of that will, the deceased had prepared an audio tape which is in evidence. The audio tape bears a label, ‘Notes on will of David Edwards’ and the signature of Mr Edwards. It is in a container which bears the same label and signature. The evidence before me also includes a transcript of the audio tape.

9   In the audio tape, in a rather rambling way which he admits to be ‘eclectic’ and ‘higgledy piggledy’ (not an overstatement), the deceased purports to give many personal effects to named beneficiaries. After doing so, he says on the tape:

‘My family is not to get any of my possessions at all. The only things, if my mother wants them, she can have my ashes. If she doesn't I really don't care what happens to them. They can blow them into the wind. But if she wants my ashes she can have them and I would prefer if she could be talked out of coming down for the funeral not that I think she would.’

10   Although it is a rambling presentation, the contents of the tape are, in my view, sufficiently certain to dispose of the deceased's assets.

11   There is other evidence that the deceased said frequently to those of his friends with whom he discussed his estate that he did not want his mother to receive anything because she had never accepted his homosexuality. I infer that his intentions in this regard were firm and unshakeable, possibly approaching an obsession. There is also evidence that the deceased discussed the preparation of the audio tape with friends and that some of the friends were given the opportunity to hear the entire tape.

12 Notices have been given under Pt 78 r 34E of the Supreme Court Rules to almost all of the people mentioned as beneficiaries in the tape and also to the deceased's mother. She is the defendant in the proceedings. The one exception is a beneficiary mentioned in the tape who cannot be located, so I have made an order dispensing with notice in his case.

13   The deceased's mother was served with the amended statement of claim, although in the circumstances I dispensed with service of the further amended statement of claim (filed in court at the hearing) as the further amendment did not affect her interests. There is evidence that she formed the intention not to attend or be represented at today's hearing. There was no appearance for her.

14 If the 1996 will was effective to revoke the 1993 will absolutely, and the 1996 will and the audio tape have failed to dispose of the deceased’s estate, then the 1996 will should be admitted to probate. However, the purported gift of the beneficial ownership of the estate having lapsed, on these assumptions, the beneficiary of the estate would be the deceased's next of kin. The bitter irony is that the deceased's next of kin is his mother. Consequently that result would be diametrically opposed to the one proposition about his testamentary intentions that the deceased repeatedly made crystal clear. Fortunately that is not the result that emerges from the application of relevant legal principles, in my opinion. I have reached the view that the 1996 will and the audio tape should be admitted to probate having regard to s 18A of the Act. Additionally, although I would prefer to base my judgment on s 18A because it is the firmer ground, my opinion is that the audio tape has been validly incorporated by reference into the will so that it governs the disposition of the estate as part of the will.

Revocation of the 1993 Will

15   Counsel for the plaintiffs made an alternative submission directed towards admitting the 1993 will to probate. I shall first deal with that matter. I have formed the view that the 1996 will validly and unconditionally revoked the 1993 will and consequently there is no basis for admitting the 1993 will to probate.

16   The 1996 will contained a revocation clause expressed in absolute terms, as well as a clause that purported to dispose of the beneficial interest in the estate by reference to the audio tape. There is nothing on the face of the 1996 will to suggest that the revocation clause is in any way dependent upon the validity of the disposition clause or that there is any condition to that effect. These facts distinguish the present case from the authorities on the so-called ‘doctrine of dependent relative revocation’. For example in Estate of Southerden [1925] P 177, the deceased left a will in favour of his wife but subsequently burnt it, on the assumption that if the will were revoked his wife would take his entire estate on intestacy. There was clearly a basis for saying, on the evidence, that the destruction of the will was conditional on her taking the whole estate. Since the condition was not fulfilled, the revocation of the will was held to be ineffective. By contrast, in Estate of Niven (1921) 21 SR (NSW) 702 the deceased made a will in favour of his wife a week before they married. The marriage revoked that will. Subsequently he made another will leaving his wife only a life estate, with gifts to others including his brother. When the deceased and his wife visited his brother in England the deceased was unhappy with the treatment he received and so he cut out the signatures on the later will, and wrote ‘cancelled’ on each page. He told his wife of the whereabouts of the earlier will and assured her that everything would go to her. Harvey J said (at p 705):

‘To establish dependent relevant revocation it is necessary for a person to show that the condition attached to revocation, i.e., the intention to set up a former will, was the sole object. In other words, that the testator would not have revoked except for the purpose of reviving the previous will.’

17   He was not satisfied on the evidence that the later will had been revoked for the sole purpose of reviving the earlier will, and held that it had been effectively revoked.

18   In Re Lindrea [1953] VLR 168 the Supreme Court of Victoria found there was a conditional revocation in circumstances where the deceased made a will leaving his property to his wife for life and thereafter to his four children, and later made a new will leaving his property to his wife solely. But, later still, he tore up the new will. The Court concluded that the later will was destroyed for the purpose of reviving the earlier one, relying on evidence that the deceased reacted adversely to pressure applied by his wife and ‘her intemperate habits’. In Re Jones [1976] 1 All ER 593 the English Court of Appeal declined to apply the doctrine dependent relative revocation where a testator had revoked a will intending to make a new one which was in fact never made.

19   It would be surprising if the doctrine of dependent relative revocation could apply to countermand a testamentary revocation clause expressed unconditionally, simply because the same will contains an ineffective disposition of the beneficial estate. If that was so, the law of lapsed dispositions would have no role to play, as long as a revocation clause appeared in the will. There is a distinction between a testamentary intention that an earlier will be replaced by a later will which validly disposes of the testator’s estate, and a testamentary intention that the earlier will be replaced only on condition that the disposition in the later will is effective. It seems to me that rather special evidence is needed to bring a case within the latter category. No such evidence is present here.

Section 18A

20 In this case there is the clearest evidence that the testator intended that the 1996 will and the audio tape together should govern the disposition of his estate. The question is whether the law provides any mechanism for that intention to be carried out. As I have indicated, I believe that there are two grounds upon which what the testator sought to achieve can be lawfully implemented. Section 7 of the Act provides (relevantly):

‘7(1) A will is not valid unless;
(a) it is in writing, and
(b) it is signed by a testator...’

21 The section goes on to stipulate the requirements for attestation. Section 18A of the Act, introduced by amendment in 1989, is in these terms:

‘18A (1) A document purporting to embody the testamentary intention 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 the person’s will, an amendment of the person’s will or the revocation of the person’s 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...of statements made by the deceased person.’

22 Section 18A was introduced in New South Wales as a result of recommendations by the New South Wales Law Reform Commission in its report, ‘Wills - Execution and Revocation’ (LRC 47, 1986). The Report deals with formalities for the execution of a will as well as the proposal that became s 18A, described as ‘a general dispensing power’. As to formal requirements for execution, paragraph 2.12 of the Report refers to the requirement that a will must be ‘in writing’, observing that any permanent form of visual representation is sufficient and that the writing may be on any material including an egg shell. The authors of the Report observe, however, that ‘a will recorded on sound or videotape, not being a visual representation of the words used, does not satisfy the statutory requirements for writing.’ I note that the same view is expressed, after the introduction of s 18A, by the authors of ‘Wills, Probate and Administration Service New South Wales’ (Butterworths looseleaf) at paragraph [1025.4].

23   The Report deals with the question whether oral, videotape or holograph wills should be introduced. It rejects proposals for such changes. As to videotape wills, the authors remark:

‘4.16. However, although a videotape would generally avoid any difficulty of proving the words used, it has one of the substantial disadvantages of oral wills in that there is likely to be less attention to accuracy of expression and detail. Further, the time taken to play through tapes compared to the time involved in reading documents makes tapes unattractive to process in large numbers, i.e., tapes perform the 'channelling function'...very poorly. Testators who desire to speak 'live' to their beneficiaries are free to make their own video in addition to a will and persons intent upon preserving ‘living’ evidence of the testator's physical and mental condition may film the testator while ‘he or she’ is in the act of will-making in the traditional manner. These comments apply a fortiori to wills recorded just on sound tape.’

24   Clearly enough the authors of the Report set themselves against any reform which would allow audio tapes to constitute wills in any formal or general way. I note in passing, however, that in their policy analysis of videotape wills the authors of the Report do not seem to have taken into account the tragic circumstances of a testator afflicted by some such condition as AIDS, which makes it difficult to give detailed instructions as to the disposition of items of personal property but easier to put down intentions on an audio tape.

25   The Report also recommends the introduction of the ‘general dispensing power’. At paragraph 6.28 the authors agree with the threshold requirement of the South Australian Act, then already in force, that there should be a ‘document’, remarking that ‘it avoids the uncertainty and difficulty of oral wills.’ It does not appear that in paragraph 6.28 the authors had in mind audio or videotapes, which are not subject to the vice of uncertainty which arises in an oral will. As I read the Report, the authors simply do not address, in terms, the question whether the dispensing power should allow the Court to admit to probate a ‘non-written document’ such as a tape.

26 Whatever the intention of the authors of the Report might have been, as to the scope of the dispensing power, the legislation as enacted uses the word ‘document’. It does so just two years after the same legislature revised the general Interpretation Act and enacted the Interpretation Act 1987 (NSW). Section 21 of the Interpretation Act, dealing with the ‘meaning of commonly used words and expressions’, provides that in any act or instrument:

‘ ‘Document’ means any record of information, and includes:
(a) anything on which there is writing, or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or
(c) anything from which sound, images or writings can be reproduced with or without the aid of anything else, or
(d) a map, plan, drawing or photograph.’

27 The audio tape in the present case is something from which sound can be reproduced with the aid of a cassette player. It therefore falls literally within the definition of ‘document’ in the Interpretation Act. I cannot see anything in the Wills, Probate and Administration Act (which contains no definition of ‘document’) which would indicate an intention to exclude the application of that definition. The Report which led to the enactment of s 18A exhibited an intention that there be no change to the formal requirements for wills such as would permit audio tape or videotape wills generally. But as I have indicated, the Report does not show any intention to prevent a non-written document from being treated as a will under s 18A.

28 As a matter of construction, s 18A expressly creates an exception to the requirement of execution appearing in section 7(1)(b) and does not expressly create an exception to the requirement that a will be in writing (s 7(1)(a)). But it cannot be correct that the only exception that s 18A creates to s 7 is an exception with respect to execution, since clearly the section also overcomes the formal requirements with respect to the presence of witnesses rather than merely the attestation of the witnesses' names. As I have said, s 18A uses the word ‘document’ - not, for example, ‘written document’. In the circumstances, in my view the legislative intention reflected in s 18A is to create an exception to s 7 for anything which is a ‘document’ and which satisfies the requirements of s 18A.

29 The approach which I have taken is consistent with the case law on s 18A, although I have found no authority which deals expressly with the extended meaning of the word ‘document’ under the Interpretation Act. The case law is to the effect that a purposive interpretation should be given to s 18A, with a view to giving effect to the testator’s real intention: see Re Graham (1970) 20 SASR 198. It is true that in Re Masters; Hill v Plumber (1994) 33 NSWLR 446 at 449 Kirby P says that the first characteristic to be demonstrated by a propounded document under s 18A is that it must be in ‘documentary form’, but his Honour's attention does not appear to have been directed to the definition in the Interpretation Act and his remarks are consistent with that extended definition. Orders have been made in South Australia with respect to informal documents and lost wills (see Wills, Probate and Administration Service New South Wales, paragraph [10.70.2], page 1119), including even a case where the testamentary intention was expressed on a wall. While it is a significant step to move from writing to sound, the level of formality associated with the audio tape in this case seems rather higher than in some of the South Australian cases.

30 It has concerned me that the application of s 18A in a case such as this might allow the introduction of audio tape and videotape wills more generally, as it were by the back door. But on reflection I do not think this is a serious possibility. Section 18A is used only in exceptional cases and only when the Court is satisfied after a hearing that the relevant ‘document’ reflects the deceased's final testamentary intention. It would be unwise for any testator to leave it to his or her executors to prove that a videotape or audio tape satisfies the requirements of s 18A, or to rely on their ability to do so. If there is to be any general reform to allow the ‘video will’, it will have to be by amendment to s 7.

31 Having concluded that the audio tape is a ‘document’ for the purpose of s 18A, I turn to consider whether the ingredients of s 18A are satisfied on the facts. The issues in the present case are whether there is a ‘document’ purporting to embody the testamentary intention of the deceased and whether I am satisfied that the deceased ‘intended the document to constitute his will.’ I am satisfied that the formal will of 2 June 1996, taken together with the audio tape, was intended by the deceased to constitute the final statement of his testamentary wishes, and therefore to constitute his ‘will’. The only residual problem is whether I can apply s 18A given that there are two ‘documents’, namely the formal will and the audio tape. Although s 18A speaks of ‘the document’ it appears to me that the wording of the section is apt to cover a case where the deceased's final testamentary intention can be ascertained only by considering two or more ‘documents’ together. I note that according to the Interpretation Act 1987, s 8, in any Act or instrument a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form. Suppose, for example, that the deceased has written two letters, the first expressing his final testamentary intention with respect to his real estate, and indicating he will deal with his personal effects in a separate letter, and the second letter referring to the first and setting out the deceased’s wishes with respect to his personal effects. It is clear, in my view, that the Court could apply s 18A to the two letters considered together. If that is so, the section cannot be any less available when one of the two documents takes the shape of a formal will which specifically refers to the other ‘document’.

32 My conclusion on s 18A is enough for me to dispose of the proceedings in favour of the plaintiff. However, it seems to me that there is another basis upon which the matter can be considered, which also leads to a conclusion in favour of the plaintiffs. It is well established that a will that complies with the formal requirements of s 7 can incorporate by reference other material which does not itself comply with s 7. In all of the Australian (and, as far as I am aware, English) cases to date the incorporated material has been in written form. Not surprisingly, therefore, the courts speak of ‘documents’ without drawing any distinction between ‘written documents’ and ‘documents’ in the extended sense which would include sound recordings.

33   There are three requirements for incorporation by reference set out in such cases as In the Will of Beveridge (1935) 6 SR (NSW) 125; see also Wills, Probate and Administration Service New South Wales, paragraph [1009.1], page 1054. The first requirement is that the document must be referred to in the will. In this case the will expressly refers to the audio tape, and there is clear and cogent evidence identifying the particular audio tape which has been tendered as the tape to which the will refers. Secondly, the reference to the extrinsic document must be sufficient to identify it. That requirement is clearly satisfied here. Thirdly, the reference must be to a document then in existence. On the evidence before me, the audio tape was in existence at the time when the will was executed. Therefore the requirements for incorporation by reference are satisfied so long as the doctrine is capable of being extended to incorporation of non-written material.

34   A cause for hesitation is the statement often made in the cases, that a document incorporated into a will is admissible to probate as part of the will: see Theobold on Wills (15th edition 1995) page 61. With some hesitation, I have concluded that this proposition does not imply that the document incorporated by reference must comply with s 7(1)(a) by being written. The purpose of saying that a document incorporated by reference is treated as part of the will is, in my view, to render it subject to the rules which apply to wills, such as rules concerning lapse and redemption. Incorporation of an instrument into a will does not alter the effect of the instrument, but simply enables it to take effect as a testamentary disposition. If that reasoning is correct, then it follows that the doctrine of incorporation by reference is available in the case of material such as an audio tape, or for that matter a videotape or computerised record.

35 Having regard to the issues that I have just discussed, it appears to me that the safer basis upon which to proceed in this case is to rely on s 18A. However, I record that in my view the doctrine of incorporation by reference is also available, in case I am proven wrong on the principal basis of my decision.

36   However, the requirements of the doctrine of incorporation by reference are quite onerous. It is only because of the specific and clear evidence in this case that I have decided that the doctrine is available. One can imagine that in many other cases there will be doubt as to whether the material purporting to be incorporated by reference might have been created or amended after the execution of the formal will, and there will be uncertainty as to whether that material is sufficiently identified in the formal will.

37 I order that probate of the will of the deceased dated 2 June 1996 in common form be granted to the plaintiffs and that the audio tape, Exhibit P 2, be admitted to probate pursuant to s 18A of the Wills, Probate Administration Act 1898. I order that the plaintiffs’ costs be paid out of the estate on an indemnity basis.

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Last Modified: 09/27/2000