Estate of Johnston

[2010] NSWSC 382

CITATION:	Estate of Johnston [2010] NSWSC 382
HEARING DATE(S):	1 April 2010
JUDGMENT DATE :	30 April 2010
JURISDICTION:	Equity
JUDGMENT OF:	Slattery J at 1
DECISION:	1. Declare that the informal testamentary document signed by the deceased and dated 14 April 2005 to be the last will of the deceased within the meaning of s 8 Succession Act 2006 (NSW). 2. Grant Letters of Administration cta of the will to Christine Gay Belcher, daughter of the deceased, for the use and benefit of the nominated executor, Dulcie Adeline Johnston, limited until the said Dulcie Adeline Johnston recovers from her disability. 3. Order the administration bond be dispensed with. 4. Order the costs of the plaintiff on the indemnity basis be paid out of the estate of the deceased. 5. Note that no order is made as to the costs of Paul Ronald Johnston to the intent he bear his own costs of the proceedings.
CATCHWORDS:	SUCCESSION - wills, probate and administration - probate and letters of administration - whether an informal document was intended to form the testator’s will - sufficient evidence for the Court to dispense under s 8 (2) of the Succession Act with the usual requirements for the execution of a valid will - Letters of Administration cta of the will granted to plaintiff due to the nominated executrix's mental incapacity
LEGISLATION CITED:	Probate and Administration Act 1898 (NSW), ss 18A, 74(c) Succession Act 2006 (NSW), ss 6,8 Supreme Court Rules 1970 (NSW), Part 78 r 24A (6) (a), r 34E (2)(a) Wills Probate and Administration Act 1898 (NSW), s 7
CATEGORY:	Principal judgment
CASES CITED:	Hatsatouris v Hatsatouris [2001] NSWCA 408 Re Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446
PARTIES:	Plaintiff/Applicant: Christine Gay Belcher
FILE NUMBER(S):	SC 115021/09
COUNSEL:	Plaintiff/Applicant: Mr L Ellison SC
SOLICITORS:	Plaintiff/Applicant: Deutsch Miller

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

FRIDAY 30 APRIL 2010

115021/09 ESTATE OF RONALD GEORGE JOHNSTON – APPLICATION OF CHRISTINE GAY BELCHER

JUDGMENT

1 HIS HONOUR:

Introduction

2 Ronald George Johnston created an informal testamentary document on 14 April 2005. As the author of this informal document, Mr Johnston will be referred to in this judgment as “the testator”. As he died on 28 January 2009, these proceedings must be dealt with under the Succession Act 2006.

3 This informal document was not witnessed in compliance with the formal requirements of s 6(1)(c) Succession Act 2006 (NSW) in that only one of the two required witnesses executed part of the document. The principal issue for determination in this case is whether this informal document was intended to form the testator’s will. If the Court finds that the informal document was so intended, the Court can dispense with the usual requirements for the execution of a valid will: s 8 (2) of the Succession Act.

4 If the Court dispenses with the usual requirements for execution of the informal document a second issue arises. The second issue is whether Letters of Administration cta of the will should be granted to the testator’s daughter Christine Belcher (the plaintiff) because the currently nominated executrix, Mrs Dulcie Johnston (the testator’s widow) is found not to be competent to carry out her duties due to mental incapacity.

Did the testator intend the informal document to be his will

5 The authorities relevant to s 8 Succession Act were principally decided under its predecessor provision, s 18A Probate and Administration Act 1898. Although their structures differ, there is no difference of substance between s 18A Probate and Administration Act 1898 and s 8 Succession Act. The test in s 18A was whether the Court “is satisfied that the deceased person intended for the document to constitute the person’s will”. Under the Succession Act, the question is whether “the Court is satisfied that the person intended [the document] to form his or her will.” The near identity of language allows the authorities in respect of the former Act to be used in respect of the later Act.

6 Thus the matter for determination is whether the testator intended the informal document “to form” his will. The authorities on s 18A Probate and Administration Act 1898 identify the three questions that must be asked upon such a determination, as Powell JA explained in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56] :

(a) Is there a document?
(b) Does the document embody the deceased’s testamentary intention?
(c) Did the deceased intend the document, without more, to operate as a will or codicil?

7 In the present case the informal document is the document which may be the subject of a s 8 Succession Act order. The issues here relate to the second and third of Powell JA’s questions. In this case the same evidence tends to establish that the informal document both embodies the testamentary intentions of the testator and that the informal document was intended without more to operate as a will.

8 Succession Act s 8 should not be applied with too stringent a requirement of proof that a propounded document otherwise clearly embodying the testamentary intentions of the deceased does constitute his will: Re Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446 at 452V per Kirby P. It would be a mistake to regard the third element of Powell JA’s elements as requiring evidence that the deceased consciously set his or her mind to the legal formalities for will making. It is now necessary to analyse the evidence that the plaintiff advances.

9 The informal document that the testator created consists of three parts. The first part describes itself as “the Last Will and Testament of Mr Ronald George Johnston of RMB 106 Nelson Bay Road, Fullerton Cove in the State of New South Wales, Company Director”. This first part appoints Dulcie Adeline Johnston as Executrix and Trustee “of this my will” and then gives the whole of his estate to her absolutely. This first part also provides that should Dulcie Adeline Johnston not survive the testator then two friends of the testator, Alan George Taggart and Grant Jackson are appointed as executors and trustees, upon the trusts then provided for in detail. In summary the trusts created dispose of the whole of the testator’s interests in various classes of shares in a family company, Rivernette Investments Pty Limited. Throughout this document describes itself with the words “this my will”. Some further detail of these dispositions is set out below. They are lengthy and detailed and it is not necessary to reproduce them in this judgment. This first part of the informal document ends with an attestation clause. Were it executed in conformity with Succession Act s 6 it would on its own operate as a complete will of the testator.

10 The second part of the informal document is headed “Schedule 1” and sets out a list of powers that the trustees “in the execution of their office as trustees of the trusts created under this will may exercise in their discretion.” These powers include “any powers given to [the trustees] by law” and any powers and rights as if the trustee “was the absolute owner of the Trust Fund”. This second part then extensively lists a series of additional powers, said to be “without limitation” as to the previous broader description of the trustees powers earlier in the second part of the informal document headed “Schedule 1”.

11 The third part of the informal document is entitled “Memorandum of Wishes” and declares itself to be a memorandum made “to indicate to the Executors and Trustees of my Estate the manner in which they should deal with the assets and affairs of the Johnston Family Trust inter vivos effectively controlled by me during my lifetime”. This “Memorandum of Wishes” then gives directions as to how the testator would wish for the assets of the Johnston Family Trust to be administered. However this third part of the informal document declares that it “…is signed in the knowledge that my Executors and Trustees will not be bound by the terms of this Memorandum.”

12 The testator and other persons present executed this informal document defectively. The last page of part one, was signed by the Testator next to a usual form of attestation clause that describes the steps for attestation in conformity with s 6 Succession Act. No other page of part one is signed or witnessed. Part two of the informal document “The Schedule” is neither signed nor witnessed by the testator. Part three of the informal document the “Memorandum of Wishes” is signed by the testator and witnessed by Mr Ross Langsford whose full name and address are also recorded. No other handwritten markings appear on the informal document. This manner of execution tends to indicate that the testator regarded the informal document as one whole document rather than three separate documents.

13 For a will to be valid, two witnesses who are present when the testator signs the will must attest and sign the will themselves: s 6 (1)(c) Succession Act. The relevant text of s 6 Succession Act follows:

6 How should a will be executed?

(1) A will is not valid unless:

(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and

(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and

(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).


…

(4) If a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section.

14 There are no such signatures in the informal document. The testator’s daughter, Christine Belcher can identify her father’s signature at the foot of part one of the informal document. She also attests to the fact that her father did not re-marry after the informal document was made.

15 The Court can dispense with the requirements for execution of a deceased person’s will “if the Court is satisfied that the person intended it to form his or her will”: s 8(2) Succession Act 2006. The full text of s 8 Succession Act is:

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.

16 When making the s 8 Succession Act decision in this case all the evidentiary sources in s 8 (3) are useful including s 3(a) “evidence relating to the manner in which the document or part was executed” and s 3(b) “evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person”. All these categories of evidence in this case base an inference that the document reflected the testamentary intentions of the testator.

17 First, the testator spoke and gave instructions to his financial advisers to create the document. The testator’s accountant, Grant Jackson of Taggart Partners, Certified Practising Accountants who had carriage of this project attests to taking detailed instructions in 2005 from the testator and Mrs Dulcie Johnston to prepare their wills. He had a discussion with and invited one Mr Alan Taggart to consent to being an executor of the estates of the testator and Mrs Dulcie Johnston.

18 The instructions to Mr Jackson required him to consult solicitors to prepare wills for Mr and Mrs Johnston, and arrange for the wills to be checked and executed.

19 Once the solicitors had prepared the informal document and upon his checking with the testator and Mrs Johnston, Mr Jackson received their instructions that their prepared wills accurately reflected their testamentary wishes and that they wished to sign them. On the day of execution Mr Ross Langsford, a financial planner conducting his practice in the same building as Taggart Partners, was called into a meeting with Mr Jackson and the Johnstons to witness the testator and Mrs Johnston signing their wills. Mr Langsford and Mr Jackson observed that Mr and Mrs Johnston signed what was described as their “wills”. Mr Langsford did sign his name at the end of the document entitled ‘Memorandum of Wishes’. All of this indicates an intention that the informal document was to be a will.

20 Second, the detail of the will and the care with which it has been drafted to dispose of his “A” class shares in Rivernette Investments Pty Limited to his daughter and his grandson and then the giving of various portions of his “B” class shares in Rivernette Investments a range of named family members in various proportions is strongly indicative of a well developed intention on his part to treat the informal document as his will. The time and trouble that was invested in its drafting and the conspicuous care with which it has been physically set out, for the testator’s approval all point to the testator intending the informal document as to be his will.

21 Third, with only very minor adjustments, the will is in terms almost identical to the testator’s 14 June 2001 will which was executed in conformity with s 7 of the Wills Probate and Administration Act 1898 (NSW). The two documents show such similarity of detailed intentions that it can be inferred that the later document is intended to have an equivalent testamentary effect to the earlier document.

22 Fourth, both the testator and his wife executed complementary informal documents in the same fashion at the same time. The two documents were both defective as wills by reason of the same omissions of witnesses’ signatures.

23 Dulcie Johnston’s participation in a joint execution ceremony with an instrument in the complementary form assists the inference that the testator intended to create a will on this occasion. It is difficult to explain such formality involving both of them other than as to make their wills.

24 There is satisfactory evidence that the testator intended the informal document to form a will.

Grant of Letters of Administration

25 The remaining question is whether the Letters of Administration cta of the will should be granted to Christine Belcher. To determine this issue it is necessary to make findings about Mrs Johnston’s present mental capacity. For the reasons which follow I conclude that she is wholly incapable of acting as executrix of the will.

26 The power of the Court to appoint an administrator in the case where the appointed executor is not competent is conferred from s 74 (c) of the Probate and Administration Act 1898 (NSW):

Probate and Administration Act 1898 No 13

74 Power as to appointment of administrator

The Court may, in any case where a person dies:
(a) intestate, or


(b) leaving a will, but without having appointed an executor thereof, or

(c) leaving a will and having appointed an executor thereof, where such executor:

(i) is not willing and competent to take probate, or

(ii) is resident out of New South Wales,

if it thinks it necessary or convenient, appoint some person to be the administrator of the estate of the deceased or of any part thereof, upon the appointed person giving such security (if any) as the Court directs, and every such administration may be limited as the Court thinks fit.

The question here is as to whether Dulcie Johnston is “competent to take probate”.

27 Medical and lay evidence establishes that Mrs Johnston will be unable to carry out her role as an executrix. She currently resides at an aged care facility, Koombahla, in Elermore Vale and requires supervised care. Mrs Dulcie Johnston’s treating general practitioner, Dr Ken Lambert diagnosed her with dementia since the time she came to be under his care in 2007. He deposed as to his opinion that she is unable to ‘discharge her duties as the executrix”. He assessed her condition as a chronic progressive disorder which will worsen with time, with no prospect for recovery. Dr Lambert states Mrs Johnston is mobile and communicative but cannot remember recent events or perform complex intellectual tasks. Christine Belcher testified under oath that Mrs Johnston “…has no recollection of anybody”. She does not even recognise Christine Belcher herself. Dulcie Johnston does not remember anything about her family.

28 Given the state of Mrs Johnston’s health this would also be an appropriate case to dispense with service of the relevant notice to her under Part 78 Rule 34E (2)(a) of the Supreme Court Rules 1970 (NSW). Independent medical evidence establishes that she would be wholly unable to deal with such a notice were it to be served on her. It is pointless to require a notice to be served on her.

29 There is no financial manager for Mrs Johnston’s estate. However Christine Belcher holds with Mrs Johnston’s nephew Mr Drew Anthony Johnston from Mrs Johnston a joint enduring Power of Attorney dated 12 December 2005. Drew Johnston consents to Letters of Administration being granted to Christine Belcher. He also seeks that the administration bond be dispensed with. The court has the power to dispense with the bond under Part 78 Rule 24A (6) (a) of the Supreme Court Rules. This is an appropriate case to dispense with the bond and I will so order.

30 There are no other parties with an interest in the will. Mr Paul Johnston was incorrectly served with a Notice to Affected Person and claimed an interest by way of caveat in the estate. He later stated via letter from his solicitors, Messrs Mullane & Lindsay of 10 March 2010 that he no longer wished to object to Christine Belcher’s application. After that he did not take any part in the proceedings nor did he appear at the hearing.

Orders

31 The Court declares and orders:

1. Declare that the informal testamentary document signed by the deceased and dated 14 April 2005 to be the last will of the deceased within the meaning of s 8 Succession Act 2006 (NSW).

2. Grant Letters of Administration cta of the will to Christine Gay Belcher, daughter of the deceased, for the use and benefit of the nominated executor, Dulcie Adeline Johnston, limited until the said Dulcie Adeline Johnston recovers from her disability.

3. Order the administration bond be dispensed with.

4. Order the costs of the plaintiff on the indemnity basis be paid out of the estate of the deceased.

5. Note that no order is made as to the costs of Paul Ronald Johnston to the intent he bear his own costs of the proceedings.