Estate of Laura Angius; Angius v Angius
[2013] NSWSC 1895
•17 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 Decision date: 17 December 2013 Jurisdiction: Equity Division Before: Hallen J Decision: The Court:
(a) Declares that it is satisfied that the undated document purports to state the testamentary intentions of the deceased, and that it has not been executed in accordance with Part 2.1 of the Succession Act 2006.
(b) Declares that it is satisfied that the undated document forms the deceased's Will and that the deceased intended it to form her Will.
(c) Orders, subject to compliance with the rules of Court, that Letters of Administration with the undated document annexed, in solemn form, be granted to Gordon A Salier. (The Registrar may be satisfied to make the grant of the agreed copy until the Commissioner of Police releases the original.)
(d) Orders that the matter be remitted to the Registrar to complete the grant.
(e) Orders that the administration bond be dispensed with.
(f) Orders that the balance of the further amended Statement of Claim and the Cross-Claim be dismissed.
(g) Orders the argument about costs of the proceedings be stood over to a suitable date to the parties and the Court.
Catchwords: WILLS, PROBATE AND ADMINISTRATION - informal testamentary document - no dispute that undated document not executed in accordance with s 6 Succession Act 2006 - No dispute that the undated document purports to state the testamentary intentions of a deceased - Deceased familiar with the formal requirements for the making of a valid will - Whether Court satisfied that the deceased intended the undated document to form a Will - Consideration of circumstances in which the document was made - No dispute that if Court not satisfied should be grant of Letters of Administration with formal 2007 Will annexed to independent solicitor agreed to by the parties Legislation Cited: Births Deaths and Marriages Registration Act 1995
Corporations Law 1989
Evidence Act 1995
Interpretation Act 1987
Probate and Administration Act 1898
Succession Act 2006
Supreme Court RulesCases Cited: Application of Brown; Estate of Springfield (1991) 23 NSWLR 535
Application of Kencalo; Estate of Buharoff (NSWSC, 23 October 1991, unreported)
Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Ll.R. 1
Belcastro v Belcastro [2004] WASC 111
Currell v Baldock; Estate of Currell [2012] NSWSC 705
Day v Couch [2000] NSWSC 230
Deeks v Greenwood [2011] WASC 359
Dolan v Dolan [2007] WASC 249
Estate of Gall (Deceased) [2008] SASC 349
Estate of Kevin John Hines v Hines [1999] WASC 111
Estate of Kiepas (Dec'd); Twemlow v Kiepas [2004] NSWSC 452
Estate of Knibbs, deceased; Flay v Trueman [1962] 1 WLR 852
Estate of Margaret, Deceased [2012] NSWSC 1490
Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446
Estate of O'Dell [2010] NSWSC 678
Estate of Peter Geoffrey Brock [2007] VSC 415; (2007) 1 ASTLR 127
Estate of Puruto [2012] NSWSC 827
Estate of Silady (NSWSC, 21 November, 1994, unreported)
Estate of Stewart, (NSWSC, 12 April 1996, unreported)
Estate of Williams, deceased (1984) 36 SASR 423
Fast v Rockman [2013] VSC 18
Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the matter of Broad; Smith v Draeger [1901] 2 Ch 86
In the matter of Hodgson (1886) 31 Ch D 177; [1881-85] All ER Rep 931
In the matter of Levy [1953] VLR 652
In the matter of Munn [1943] SASR 304
In the matter of Nicholls [1996] 1 Qd R 179
In the Will of Lobarto Shields v Caratozzolo (1991) 6 WAR 1
In the Will of England (1900) 22 ALT 86
Jolley v Jarvis [1964] P 262
Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd [1994] FCA 1059; (1994) 51 FCR 446
Kuhl v Liebcheschel [1933] SASR 394
Masters v Cameron [1954] HCA 72; [1954] 91 CLR 353
National Australia Trustees Ltd v Fazey [2011] NSWSC 559
Newman v Brinkgreve; Estate of Floris Verzijden [2013] NSWSC 371
NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872
Oakes v Uzzell [1932] P 19
Onassis v Vergottis [1968] 2 Lloyd's Rep. 403
Palin v Ponting [1930] P 185
Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544
Public Trustee v Commins; Estate of Gwendolyn Myrtle Wray (NSWSC, 19 June 1992, unreported)
R v Gittany (No 4) [2013] NSWSC 1737
Romano v Romano [2003] NSWSC 436
Snape v Gibson; Re Estate of Paul Francis Snape [2006] NSWSC 829
Tobin v Ezekiel [2012] NSWCA 285
Tsagouris v Belliars [2010] SASC 147
Verzar v Verzar [2012] NSWSC 1380
Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56
Watson v Foxman (1995) 49 NSWLR 315
Webb v Ryan [2012] VSC 377
Weeks v Hrubala [2008] NSWSC 162
Whyte v Pollok (1882) 7 AC 400
Wood v Smith [1993] Ch. 90 (C.A.)
Yazbek v Yazbek [2012] NSWSC 594Category: Principal judgment Parties: Robert Angius (Plaintiff)
Gianna (Jenny) Angius (Defendant)Representation: Counsel:
Ms V Culkoff; Mr C Vindin
Mr M Gorrick
Solicitors:
Comino Prassas Solicitors; Perez Varela Lawyers (Plaintiff)
Patrick Hargraves & Co (Defendant)
File Number(s): 2012/161134
JUDGMENT
The Claims
HIS HONOUR: This judgment relates to contested Probate proceedings in which the Plaintiff, Robert Angius, initially, sought probate in common form of a duly executed Will made on 27 April 2007 ("the 2007 Will") (Ex. G) made by his mother, Laura Angius ("the deceased"), and, in the alternative, a declaration that a document, being an undated part of a book, described as an "Exercise Book" ("the undated document"), forms the Will of the deceased, and that letters of administration with the undated document annexed, be granted to him. He also sought an order that the costs of the application be paid from the estate of the deceased.
The Defendant named in the Statement of Claim is Gianna (also known as "Jenny") Angius, the only other child of the deceased and the sister of the Plaintiff. She is a beneficiary named in the 2007 Will but not in the undated document. She filed a Defence and Cross-Claim in which she opposed the grant of administration of the undated document, but sought Probate, to her alone, of the 2007 Will. In the alternative, she sought a grant of letters of administration to an independent third party, Mr Gordon Salier AM, Solicitor, who has consented to being appointed.
Relevantly, the Plaintiff filed a further amended Statement of Claim on 6 August 2013, pursuant to leave granted by the Court, in which he sought a declaration under s 8 of the Succession Act 2006 ("the Act") that the undated document forms the deceased's Will. In the alternative, he sought an order that probate in solemn form of the 2007 Will be granted to him, with leave reserved to the Defendant to come in and apply for a grant.
The Defendant did not oppose the Plaintiff's application to file the further amended Statement of Claim (which principally changed the priority of the relief sought) and leave was granted for him to do so. It is the relief referred to therein that is now sought by him.
It was unnecessary, in the circumstances, for the Defendant to file an amended Defence to the further amended Statement of Claim and she has relied upon the Defence filed on 12 October 2012 and Cross-Claim filed by her on 24 July 2013.
During the course of the hearing, without objection from the Defendant, the Plaintiff filed a Defence to the Cross-Claim.
Even though the Plaintiff and the Defendant agreed that they are incapable, together, of performing their duties as joint executors in the event that the 2007 Will is found to be the last valid Will of the deceased, initially, the Plaintiff did not agree to Mr Salier, or, it seemed, any other independent person, being appointed as the administrator of the deceased's estate. He acknowledged, in one of his affidavits read in the proceedings, however, that he and the Defendant do not have a good relationship and that "there is deep animosity and mistrust between us".
On the morning of the second last day of the hearing, his new Counsel, Mr C Vindin, said that the Plaintiff nominated Mr G Heckenberg, solicitor, as the independent person to whom a grant of administration may be made, and that Mr Heckenberg had consented to that appointment.
On the last day of the hearing, the parties were able to agree that whatever the result of the proceedings, as there is likely to be other litigation involving the estate of the deceased (to which I shall refer), it would be more beneficial to its administration if someone independent were appointed. The parties agreed to the appointment of Mr Salier as the administrator of the deceased's estate with whichever testamentary document the Court determines is the last valid Will of the deceased annexed. I agree that such an order should be made, as the due and proper administration of the estate requires it.
(I should mention that during the hearing, there was a change in the Plaintiff's legal representation. New solicitors were retained, and counsel briefed, for the last two days of the hearing, which followed the adjournment of the matter, part heard, because it did not conclude within the time allotted. The change of representation occurred prior to the cross-examination of the Defendant.)
Other Proceedings
There are currently other proceedings, in this Court, commenced by the Defendant, in which she seeks a family provision order out of the estate or notional estate of the deceased. Those proceedings, which I shall describe as "the family provision proceedings", have not advanced past the stage of a Summons being filed.
It is clear that the family provision proceedings cannot proceed until the determination of these proceedings. If the Plaintiff is unsuccessful in his principal claim for relief, with the result that the 2007 Will is held to be the last valid Will of the deceased, the family provision proceedings will not continue.
The deceased's husband, John, also has commenced separate proceedings. Those proceedings (which I shall call "the husband's proceedings"), also, have not advanced past the stage of a Summons having been filed. (I shall refer to these proceedings briefly later in these reasons.)
In each of the other proceedings, no Defendant has been named. It is only on the appointment of the administrator of the estate of the deceased that the proper Defendant can be named. In the events that have happened, Mr Salier, no doubt, will be named as the Defendant.
Mr Anderson, solicitor, appeared for John in the husband's proceedings, at the commencement of the hearing of the Probate proceedings (because those proceedings were listed for directions). He submitted that the husband's proceedings could not continue until there was a proper Defendant.
This aspect of the matter was not resolved and whilst it was hoped that directions for the further conduct of those proceedings could be made in order to avoid further delay in having them heard, the parties were unable to come to any agreement about, and did not seek, such directions.
On the second last day of the hearing, Mr Anderson, again, appeared, but indicated that there was some question about whether his firm was to continue to act for John in the husband's proceedings. In those circumstances, it seemed to me that it was not possible to make any directions. I indicated that those proceedings would be listed at the time that these reasons for judgment were to be delivered or at such other mutually convenient time.
Similarly, the family provision proceedings will be listed on the date when I am to deliver these reasons for judgment so that appropriate orders and directions may be made or at such other mutually convenient time.
Preliminary Matter
There is no dispute that the deceased was found dead at the bottom of the stairs of her home on 4 January 2012. The deceased's Death Certificate, registered under the Births Deaths and Marriages Registration Act 1995, does not reveal the cause(s) of death, but relevantly states "[T]he finding of the Coroner has not yet been received ...".
The circumstances that led to the involvement of the Coroner are that, although initially the deceased's death was reported to the Coroner as non-suspicious, on 15 March 2012, the Plaintiff wrote to the Registrar alleging that the deceased's death was not an accident. On 3 April 2012, a Coronial brief was ordered, and on 22 May 2012, the Coroner requested that the Sergeant Assisting obtain further information regarding any family domestic violence reports to police, any historical apprehended violence orders between the deceased and the Defendant, and a copy of the deceased's Will.
On 3 October 2012, a detective senior constable was allocated the investigation into the death of the deceased.
A coronial inquest into the circumstances of the deceased's death was conducted for six days in March, April and May 2013. The Coroner handed down an open finding and referred the matter to the unsolved homicide squad for review. The unsolved homicide squad is to undertake a review of the evidence in due course.
As I have stated above, the undated document is to be found in what has been described by the parties as the Exercise Book. Also relevant is what the parties have described as the "Telephone Book". On 27 July 2012, the Plaintiff handed to the Police the original Exercise Book and the original Telephone Book. (The circumstances in which each of these came into the Plaintiff's possession will be dealt with later in these reasons.) They have remained in the possession of the Police since then.
During the course of pre-trial directions, I ordered that the original Exercise Book and Telephone Book be produced to the Court for inspection. The Commissioner of Police took the view that the Exercise Book and the Telephone Book may have evidentiary value in respect of the investigations being conducted. He sought, by amended Notice of Motion filed 19 July 2013, that the order for production be vacated.
At the hearing of the amended Notice of Motion on 5 August 2013, the Commissioner of Police, represented by Mr Bhalla of counsel, and the parties, each of whom was also represented by counsel who appeared at the first four days of the hearing, agreed to orders and notations in regard to the production of the Exercise Book and the Telephone Book, which orders and notations were subsequently made.
In accordance with the orders and notations made on 5 August 2013, on the first day of the hearing, Ms Crawford, solicitor, appeared for the Commissioner of Police. Detective Sergeant Ricky Hennessy of the NSW Police, Eastern Beaches Local Area Command attended and presented the original Exercise Book and Telephone Book for inspection, and each was formally tendered (Ex. A and Ex. B respectively) in the proceedings.
Prior to commencing the hearing, the parties, in the presence of Detective Sergeant Hennessy, had the opportunity to inspect the original Exercise Book and the Telephone Book. At the commencement of the hearing, I also had that opportunity.
I should mention that because of concerns regarding the evidentiary value of the Exercise Book and the Telephone Book, the handling procedures required by the Police were followed during the inspection. Latex gloves were worn by Detective Sergeant Hennessy and changed between the handling of the different documents. (In fact, whilst in Court, only Detective Sergeant Hennessy handled the documents.)
Upon the undertaking given to the Court to produce the original of each document to the Court, if, and when, it was required, the Exercise Book and the Telephone Book were returned to the possession of the Police. At all times thereafter, during the hearing, the parties have, and the Court has, relied upon a copy of each of those documents and the matters noted and agreed set out below.
An agreed copy of the relevant part of the Exercise Book was marked Ex. C and the copy of the relevant part of the Telephone Book was marked as Ex. D.
Following the inspection, and before Detective Sergeant Hennessey left the Court, the following matters were noted, and agreed between the parties, about Ex. A:
(a) It is a standard A4 exercise book typically used by school children.
(b) The front cover and the back cover of the Exercise Book appear to have a shiny finish, whilst the reverse side of each cover and each of the lined pages does not. (It looks like there is a plastic protective coating on the front cover and the back cover, which does not exist on the reverse side of each cover.)
(c) The cover of the Exercise Book is thicker than the individual lined pages within the cover.
(d) The texture of the lined pages is different to the front and back cover.
(e) There are lined pages in the original Exercise Book that contain no handwriting and these pages have not been copied and do not form part of Ex. C (to which I shall refer).
(f) There appear to be different inks and perhaps, pressure, used on the pages after the lined page that has "figlio" as the last word.
(g) Not all of the handwriting in the Exercise Book is that of the deceased. In addition, some of the numbers on page 2 of the part of the Exercise Book relied upon by the Plaintiff (2697.38 and 1347.31) are not in the deceased's handwriting.
(h) The contents of the Exercise Book are for the most part written in the Italian language.
(i) The Plaintiff relies only on the first three pages of the Exercise Book as comprising the undated document, excluding the top part on the second page commencing with "7-7-11" and ending with "1347.31" and noting that the first page is written on the back of the front cover of the Exercise Book.
(j) The contents of these pages, containing the handwriting of the deceased, may be regarded as testamentary in nature, but when these pages were written is not disclosed on the pages.
(k) The pages at the back of the copy of the Exercise Book that were tendered, which appear to have been inverted, are as they appear in the Exercise Book.
(l) The outside cover of the Exercise Book was fluorescent lime green in colour.
The parties also agreed, subsequently, that:
(a) The undated document appears to have been written with the same pen.
(b) All the writing on the undated document is that of the deceased.
(c) The writing on the undated document discloses a similar font size, pressure and slant.
(d) The undated document is not signed by the deceased, or by some other person in the presence, and at the direction, of the deceased.
(e) There are no other signatures on the undated document.
(f) The undated document does not contain a revocation clause. However, it cannot stand consistently with the 2007 Will. (It was accepted that the Court, if satisfied of the other necessary matters, would be also be satisfied that the deceased intended to revoke the 2007 Will. An implied revocation may arise where the deceased has executed two testamentary documents and the later one does not contain an express revocation clause. It then becomes a question of construction to determine whether the later document has impliedly revoked the earlier will: In the Estate of Gall (Deceased) [2008] SASC 349, per Gray J at [24].)
(g) The undated document does not nominate any executor. (In view of the agreement of the parties in relation to the appointment of Mr Salier, it is not necessary to address any question about the appointment of executors in the 2007 Will and whether the deceased intended to revoke their appointment.)
(h) In the undated document, the person referred to as "Roby" is the Plaintiff; "Shon" is the deceased's grandson, Sean; "Jack" or "Jacqui" is Ms Varela; "Gabrielle" is the deceased's granddaughter, Gabrielle; and The Children's Hospital, is the "Children's Hospital at Randwick".
(i) What is written in the Exercise Book on the pages following the undated document appears to have been written at different times, and, apparently, not in any particular sequence.
Although it was not specifically agreed, there does not seem to be any real dispute that the deceased is likely to have written the undated document at some time between 6 September 2011 and 15 December 2011. Amongst other things leading to this conclusion, there appears to be a reference to the ages of the deceased's grandchildren, which ages suggest that the earliest date that the deceased could have written the document was 6 September 2011. Also, there is no dispute that the deceased had the Exercise Book with her when she saw the solicitor, Mr Vlahakis, which was on 15 December 2011.
Ultimately, I do not think that the precise date on which the deceased wrote the undated document is of great significance. However, in view of the above conclusion, I am satisfied that she wrote it shortly before her death.
There is also no dispute that the undated document is not a valid Will because it is not signed by the deceased or by some other person in the presence of, and at the direction of, the deceased: s 6(1) of the Act. It is for this reason that the Plaintiff seeks the declaration and consequential orders under s 8 of the Act. I shall return to the circumstances of the creation of the undated document later in these reasons.
Because parts of the contents of the Exercise Book were written in Italian, a copy of the agreed translation, from Italian into English, of the whole of that part of the contents of the Exercise Book in Italian was tendered as Ex. E and the agreed translation of the last two pages of 'Notes' in the Telephone Book, which also had been written in Italian, was marked as Ex. F.
I take the following from the agreed translation of the undated document:
"1) [illegible word] of the Flat
2) xx Jonh [sic] and [illegible name] tenat [sic] in common
3) The sale xx Denning Street ½ [illegible name] and ½ Jon [sic] because there are problems with the Bank
1) 10,000 to the Children's Hospital in Randwick
5000 every year in memory of the mother
All properties to Roby Angius at my death the rent to go immediately to Roby Angius if Roby wants to take some properties first he has to give his father a choice
Flat 24 to Gabriella Angius
Flat 19 [to] Shon [sic] Bates but if Jenny Angius attacks her brother Roby Angius the flat must be sold and the proceeds thereof are to go to the Cildre [possible italianised version of the word "Children"] Hospital in Randwick
After my death the rent from 19 must be put aside for him at 18 years [of age] to take what is in the bank both for his studies and whatever else he needs. Roby Angius will look after Shon's interest at 25 years [of age] the Flat will be his
7-7-11
Ray Wit [possible Italianised version of the word "White"]
2898-25
C Han [illegible word] 30,000 [?]
Infiniti 2697-38
1347-31
_____________________________________________________
I don't want Jenny Angius to come to my funeral after she bashed me up for years [?] but to work no [sic]
The debt on 46 my share is to go to Roby Angius
Flat 8 and the architect's office to Roby Angius
Xx Wild St [to] Roby Angius
[illegible name] NEW Alby [illegible word] Galo
[illegible name] St Coogee Bay Road
Rosebery [?] Dowling [?] St
To go to Roby Angius [at] my death Roby may God bless you and try to forgive your father and your sister for all the harm they have caused you pray for your mother and remember that money is not everything do good wherever you can
To you Jack [?] who treated me like a daughter I want Roby to give you wages so that you can spend them for yourself and your children [?] try to teach the girls that love in our midst is the most beautiful thing.
As for you Jenny shame is all I feel I hope God will not let your children do to you what you did to your mother [illegible word] to the point of breaking her spine after she had given you everything remember that the house you live in is partly mine and where you sleep and sit was [all] left to me by my father if you don't remember it was 675000 I gave you everything I did for Gabriella what no one would have done and you denied me to see the little boy and you knew how much I loved him live with the remorse for depriving Shon [sic] of his grandmother if you are honest tell your son the truth
Remove the mogichi [possible Italianised version of the word "mortgage"]
[illegible word]
Sell the house
2 million [illegible word]
to the Bank the remainder ½ each
the furniture ½ each
the caravan ½ each
I give my scera [possible Italianised version of the word "share"] to Gabriella
[illegible word] will
1 Flat and the sciop [possible Italianised version of the words "shops"]
divided
John [sic] to have the [illegible word]
LAURA to have [?] the furniture pictures ornaments books photos in other words anything that may be removed without causing any damage
To guarantee the account with DAG
Jon [sic] to have 300000 [illegible word]
LAURA int. [sic]
5 - 6 - 19 - 24
LAURA scop [possible Italianised version of the word "shop"] architect [?]
When I go in on the 24th I will pay the rait [possible italianised version of the word "rates"] BEFORE the Company used to pay them
To [or at] [illegible word] take the 24
[illegible word] is to stay 2 years and when the house is ready the rent [will be] 1 dollar per week
_____________________________________________________
As regards Flat xx I receive [or he/she receives] 50%
The money is to be paid into the chi [possible italianised version of the word "key"] card
___________________________________________________
1/3 of 36 to Gabriella in [illegible word]
to have 6 months to sell xx Denning St and buy it [sic] 2.2 million
Balconies
Front door in glass
White kitchen
All downlights [?]
____________________
Ston [possible Italianised version of the word "stone"] bench tops
- WINDOWS NATURAL ADONISED
- FULLY INTEGRATED DISHWASHER
- A/C
- FLYscreens
- PIETRA GREY
- WALL COVER VIVID WHITE"
The parties were unable to agree on the meaning, or effect, of the undated document (even though they agreed on its translation as set out above). Counsel for the Defendant submitted "part of the position we put ... is that the lack of precision instances where there is ambiguity or lack of certainty in the informal document of itself is relevant to [the] determination as to whether or not the deceased intended it to operate as her will". He also submitted that the undated document did not contain a residuary clause.
They agreed, however, that it is not necessary for the Court, in these proceedings, to construe the undated document. (It is thought that in any construction suit, notice will need to be given to the deceased's husband, John, so that, if necessary, he can appear.)
Following the inspection, and before Detective Sergeant Hennessey left the Court, the following matters were noted about the Telephone Book (Ex. B):
(a) It has a black plastic cover with a telephone motif on the front.
(b) It has A to Z listings. (There are no entries in the Telephone Book between "T" to "Z". Those pages have not been copied and do not form part of Ex. D)
(c) After the "Z" listing there is provision for notes.
(d) The handwriting on the last two pages is that of the deceased. The handwriting is in black ink and blue ink and the colour of the black ink on the last two pages does not appear to be the same.
(e) The contents of the last two pages, containing the handwriting of the deceased, may be regarded as testamentary in nature, but when those pages were written is not disclosed on them.
The Background Facts
The following facts are uncontroversial or they have been clearly established by the evidence.
The deceased died on 4 January 2012, aged 79 years.
The deceased was born in Italy in about 1933. The Plaintiff described her as "sharp, very sharp" and "... In her head she was very sure about what she wanted to always. If she wanted to do something she was stubborn, very stubborn. If she wanted to do it a certain way or go down a certain path, she would do that no matter what, regardless ... She wouldn't change her mind for anything" and that "... if she was determined to do it a certain way she wouldn't change her mind".
The deceased had no difficulty reading the English language. She could write in the English language, but it would be in "broken English". She preferred to write in the Italian language and was more comfortable doing so.
The deceased was also described as, generally, being a happy person, who changed, towards the end of her life, into a very anxious and concerned person. The Defendant said that towards the end of the deceased's life, she thought that the deceased was depressed.
The deceased died leaving property in New South Wales.
The deceased was married to John, who is the father of the parties, in September 1958. They came to Australia together in about 1958. They purchased the former matrimonial home, at Coogee, as joint tenants, in approximately 1991. It was transmitted to John, following the deceased's death, in about May 2012.
The Plaintiff was born, in Australia, in 1961 and is currently 52 years of age. The Defendant was born, in Italy, in 1964, the deceased and her husband having returned to Italy, but they subsequently returned to Australia, where the Defendant was raised. The Defendant is currently 49 years of age.
It appears that the deceased and her husband separated in September 2010, and, thereafter, lived apart with no likelihood of cohabitation being resumed. Apparently, at about this time, John moved out of the Coogee property and moved into one of the units that he and the deceased owned at Waterloo.
The Plaintiff believed that John continued to have a key to the Coogee property, the locks of which the deceased did not change. (He also said that neither he, nor, he believed, the Defendant, held a key to the Coogee property.)
No divorce order had been made at the date of the deceased's death.
Between 2008 and about 2010, John commenced and completed a residential strata redevelopment of land at Allen Street Waterloo.
The relationship between the deceased and John was volatile, it would seem, from about 2005. In March 2007, the deceased reported an attack on her by John at their home at Coogee, following which she attended the Prince of Wales Hospital at Randwick. Following this incident, an AVO against John, in favour of the deceased, was granted.
During 2010 and 2011, there were further attendances by the Police at the Coogee property due to arguments between the deceased and John.
Despite these events, the deceased and John entered into three different Separation Agreements, dated 10 May 2011, 6 October 2011 and 15 November 2011, respectively, each dealing with the division of their various assets. The proceedings to which I have referred earlier, commenced by John, and which will involve the deceased's estate, relate to these Separation Agreements.
There were, also, proceedings in this Court, commenced by the deceased in September 2011 (2011/290751), against John, in which proceedings, the Defendant was named as the first Defendant and John was named as the second Defendant. Those proceedings related to the two properties at Coogee, one of which was the former matrimonial home, and the other, the property in which the Defendant lived. The 2011 proceedings were resolved by a Deed dated 15 November 2011. Final orders determining the 2011 proceedings were made, by consent, on 18 November 2011.
Pursuant to the final Orders made by the Court, John, by 15 January 2012, was required to either pay the deceased $2,200,000 and discharge the debt of $3,200,000, which was secured by mortgage registered on the title to the matrimonial home at Coogee, or place the property on the market for sale by public auction.
(In the 2011 proceedings, the deceased and John was each separately legally represented.) (The parties agreed to an order for the discontinuance of the proceedings involving the current Defendant with no order as to costs. A copy of the form of Consent Order filed in those proceedings, signed by each of the parties, forms part of the evidence in these proceedings.)
Other than appearing by his solicitor to deal with the other proceedings to which I have earlier referred, John did not play any part in the present proceedings.
The Plaintiff 'sided' with the deceased and the Defendant 'sided' with John in their somewhat acrimonious separation. In addition, the same family dynamics existed in relation to disputes concerning the renovation of the Plaintiff's home at Maroubra and in relation to other family matters. I shall return to this aspect later in these reasons.
The Plaintiff has 6 children, four with his first wife, Sylvana Salvatore. They are Stephanie (born in 1985), Melissa (born in 1987), Natalie (born in 1990) and Jacqueline (born in 1991). He has two children with his partner, Jacqueline Varela, namely Laura Roberta (born in January 2003) and Carly Marie (born in September 2005).
The Defendant has two children, one with her first husband, Anthony de Palo, being Gabrielle Angius (born in August 1990) and the second with her partner, Kevin Batten, being Sean Batten Angius (born in April 2004).
The deceased's estate, at the date of death, according to Inventory of Property lodged by the Plaintiff, had an estimated gross value of $17,746,250. The estate is said to consist of real estate at Waterloo ($750,000), moneys in bank ($1,396,250), and shares in companies ($15,600,000). (There appears to be a typographical or mathematical error in the Inventory of Property in that the estate is said to have a value of $27,746,250.)
In the Inventory of Property, the Plaintiff also refers to various parcels of real estate in Coogee, Waterloo and Rosebery, held in joint tenancy with John. (There may be an issue about whether there has been a severance of the joint tenancy, but that dispute is not relevant to these proceedings.) In any event, the parties agree that the value of the deceased's estate is very substantial.
The Plaintiff also says that he does not know what liabilities the deceased had at the time of her death.
There are no issues raised by the Defendant concerning a lack of testamentary capacity, or lack of knowledge and approval, of the deceased, or undue influence, at the time, or times, she wrote the undated document. Nor does the evidence suggest any such issues. The sole basis of the Defendant's opposition is that the Court should not be satisfied that the deceased intended the undated document to form her Will.
Other Formal Matters
On 1 September 2012, the Plaintiff caused notice of his intended application to be published in the Sydney Morning Herald, which is a newspaper circulating in the district where the deceased resided at the date of her death. However, the notice is slightly different to the relief sought by the Plaintiff in that the notice refers to "an application for Probate in solemn form of draft Wills of 2010 and 2011 in conjunction with the 2007 Will" of the deceased.
Division 6 of Part 78 of the Supreme Court Rules ("SCR") "applies to proceedings on an application for the grant of probate or administration in relation to a will that comprises or includes an informal testamentary document". "Informal testamentary document" is defined in Part 78 rule 1 SCR, as meaning "a document that (together with any amendments to it) purports to embody a deceased person's testamentary intentions, being a document that has not been duly executed".
Part 78 rule 42 SCR provides:
"(1) The plaintiff must serve notice of the application ("a prescribed notice") on each person whose interests may be affected by the Court's decision as to the deceased's intentions in relation to the informal testamentary document.
(2) Subrule (1) does not require a prescribed notice to be served:
(a) on the caveator under any caveat in force in respect of the informal testamentary document, or
(b) on any person who has consented to the grant of probate or administration to the plaintiff.
(3) Any consent referred to in subrule (2) (b) must be filed by the plaintiff.
(4) If the person whose interests are affected is a person under legal incapacity:
(a) subrule (2) (b) does not apply, and
(b) if the person has no tutor, service of a prescribed notice does not take effect until a tutor is appointed.
(5) The Court may dispense with compliance with subrule (1) on any of the following grounds:
(a) that the person affected cannot readily be ascertained,
(b) that the person affected, though ascertained, cannot readily be found,
(c) that it would be expedient to do so (having regard to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) so as to save expense."
The prescribed notice was not served on persons whose interests may be affected by the Court's decision as to the deceased's intentions in relation to the undated document. However, Ms Varela and Gabrielle, each gave evidence, by affidavit, and was cross-examined during the hearing. Both attended the hearing at other times following their cross-examination. Accordingly, I am satisfied that each was well aware of the proceedings.
Sean, who is the deceased's grandson, is aged 9 years. He is referred to as a devisee of a home unit in the undated document. There have been discussions between the Defendant's solicitor and Sean's father (who could be appointed his tutor if that were necessary), but the prescribed notice has not been provided to him.
Similarly, the prescribed notice has not been served on the Children's Hospital at Randwick. It is a beneficiary named in the undated document also. There is no evidence that it is aware of the proceedings.
I am prepared to dispense with compliance with sub-rule (1) on Sean and on the Children's Hospital Randwick, on the ground that it would be expedient to do so in order to save further expense. I am satisfied that there has been proper representation throughout the proceedings and that the case for, and against, the making of the principal order sought by the Plaintiff, has been comprehensively argued. It is unlikely that anything more could be added to the submissions made in writing (a copy of which will be retained with the Court papers) and orally.
In the circumstances, each of the persons identified is bound by the decision made in relation to the informal testamentary document to the same extent as if he, she, or it had been a party to the proceedings concerned when the decision was made: Part 78 rule 45(2) SCR.
Events involving the deceased and Solicitors
I am satisfied that the evidence establishes the following facts.
Anthony Ross Bennett, a solicitor conducting practice in Albury in 2006, has sworn an affidavit, upon which he was not cross-examined, in which he states that he "accepted instructions from [the deceased] and her husband John Angius in relation to various Angius Family interests in a number of matters in 2006". He says that, initially, he received instructions, on about 2 May 2006, on behalf of the deceased and John, from Doug May, who, he "was aware was the Managing Agent for various Angius Family Interests". He goes on to state that he prepared a draft Will for the deceased but that she did not execute it. He says, and correspondence addressed to the deceased and her husband confirms, that he required further instructions and additional information from them. He had further conversations with Mr May on 18 May and 25 May 2006.
It was agreed that Mr Bennett neither saw, nor obtained instructions directly from, the deceased either in 2006 or 2007 or in relation to the alleged testamentary disposition in 2011. He never spoke to the deceased about her testamentary intentions at any time.
In about February 2007, the deceased asked the Defendant to write out, in English, the instructions for her Will.
Cathie Blanchfield, a solicitor in the firm of solicitors, Blanchfield Nicholls Partners Family Law, in an affidavit sworn on 8 March 2013, deposed that the original of the 2007 Will was prepared by her following instructions from the deceased, at a conference on 10 April 2007, at her office (at which the Defendant attended with the deceased). She states that the deceased gave her a handwritten document, headed "Will" which contained her instructions. (It was this document that had been written out by the Defendant at the request of the deceased.)
Ms Blanchfield had a discussion with the deceased and prepared a typed draft Will for her immediately. The deceased took the original of the document prepared by Ms Blanchfield with her.
Ms Blanchfield conferred, again, with the deceased, on 27 April 2007, when she was given the original draft Will that had been typed and provided to the deceased, with what appeared to be the deceased's signature on it, as well as the signatures of two other persons, Phillip Walsh and Lynette Donovan, each of whom had signed the original as an attesting witness, on the second page. That document bore the date 13 April 2007.
It appears that the deceased, herself, had arranged for the execution of the original draft Will, which bore the date 13 April 2007. Ms Blanchfield thought that each page of the original draft Will bearing the date 13 April 2007, should be signed, so she printed out another original of that Will, which the deceased then signed on 27 April 2007. Ms Blanchfield and her secretary, Katy Muscat, then each attested the deceased's signature on that Will, which was then dated 27 April 2007. It is that Will which is propounded and which is Ex. G in the proceedings.
An affidavit sworn 6 August 2013, by Ms Muscat, was also read in the proceedings. She deposed that the 2007 Will was signed by the deceased in her presence and in the presence of Ms Blanchfield, both of whom were present at the same time, and who attested and subscribed the deceased's signature on the 2007 Will in the presence of the deceased and in the presence of each other.
In the 2007 Will, the deceased appointed the Plaintiff and the Defendant to be the executors and trustees. After the payment of just debts, funeral and testamentary expenses, the deceased left the residue of the estate to them as tenants in common in equal shares.
In this case, as stated, each of the attesting witnesses to the deceased's signature on the 2007 Will has given evidence. Neither Ms Blanchfield, nor Ms Muscat, was cross-examined. There is no reason to disbelieve her evidence.
(I mention that the Defendant had affidavit evidence from Philip Walsh, one of the attesting witnesses to the Will signed by the deceased on 13 April 2007. Whilst he identifies his signature and the handwriting that appears under the name of each of the attesting witnesses as his own and acknowledges that Lynette Donovan has been one of his employees for approximately 8 years, he states that he does "not know any woman by the name of Laura Angius" and that "[s]o far as I am aware, she was not a regular client of mine". He was not cross-examined.)
There is no dispute about the validity of the 2007 Will and the parties agree, in the event that the undated document is not found to form the Will of the deceased, that the 2007 Will is the last valid Will of the deceased. As stated earlier, there is no longer any question, if it is the last valid Will of the deceased, to whom administration should be granted.
Following the deceased executing the 2007 Will, she provided a copy to the Defendant, requested her to keep it in a safe place and told her that the solicitor has retained the original. At about this time, the deceased told the Plaintiff that she had made a Will; that she had given a copy of it to the Defendant; and that she had left half of her estate to him. However, she did not, then, provide a copy of the 2007 Will to him.
In 2010 and 2011, the deceased retained the firm of solicitors, Kydon Segal Lawyers, which firm conducts practice at Eastgardens (a suburb of Sydney).
In 2011, the firm had acted for the deceased in relation to various disputes involving the deceased and her husband in relation to the settlement of their matrimonial property, and on the sale of property by them. On other occasions, the firm acted for them in certain conveyancing transactions.
Different files had been created for each property transaction and for the deceased's settlement of matrimonial property.
On 15 December 2011, the deceased conferred with George Vlahakis, the sole principal of the firm Kydon Segal Lawyers. Usually, however, the deceased dealt with Ms Fiona Giannakopoulos, an employed solicitor at the firm.
Despite a written request made in a letter, dated 21 November 2012, to the firm of solicitors, Kydon Segal Lawyers, to have Mr Vlahakis and Ms Giannakopoulos, meet with the legal representatives of the Plaintiff in order to prepare an affidavit dealing with the matters with which he, she or they, was or were, involved, as well as making an offer to pay the reasonable professional costs of so doing, neither was prepared to do so.
In a letter dated 28 November 2012, from Kydon Segal Lawyers, the Plaintiff's solicitors were informed "neither Mr Vlahakis nor Ms Giannakopoulos wish to be involved in the proceedings". No reason(s) for not wishing to be "involved in the proceedings" was (were) provided and any difficulties associated therewith were not ascertained.
It appears that neither solicitor was aware of s 12 of the Evidence Act 1995, which provides that, except as otherwise provided, every person is competent to give evidence, and a person who is competent to give evidence about a fact is compellable to give that evidence. Accordingly, each was compellable.
In the events that happened, Mr Vlahakis gave oral evidence but Ms Giannakopoulos did not.
This is not a case, particularly in relation to the events involving the deceased, where the solicitor's acts, or omissions, are an integral part of any complaint, or where his, or her, advice is effectively in issue. Nor is it a case in which he, or she, appears to have a personal interest in the outcome of the action. Rather, he was, and she might have been, a material witness to at least one factual event, which is of some significance to the determination of the proceedings. Importantly, the disclosure of what occurred when he, and she, met the deceased in December 2011, would have exposed to the parties, and have exposed to the Court, prior to the hearing, what the deceased had said to each of them.
The unco-operative approach until the hearing evidenced by the letter from the firm of solicitors has increased the time and costs of the proceedings, since it was necessary for Mr Vlahakis to be called and to give his evidence orally. He played a role in the aspect to which I have referred and also in the events of 5 January 2012, each of which is significant, and this should have been obvious to him.
It appears that no subpoena to give evidence was served upon Ms Giannakopoulos and neither party called her to give oral evidence. It seems to me that she may have been able to provide some evidence of matters in issue, particularly since the oral evidence of Mr Vlahakis was that she had been the solicitor who was encouraging the deceased to make another Will and because she had seen, and spoken to, the deceased immediately before, and immediately after, the deceased had conferred with Mr Vlahakis on 15 December 2011.
I should say that upon attending to giving evidence, Mr Vlahakis endeavoured to assist the Court to the best of his ability. He answered the questions carefully, and acknowledged when he did not have a recollection of the events about which he was asked. However, it was clear that his recollection was not precise, and it improved when, during cross-examination, certain matters were put to him.
A subpoena to produce documents was served upon the firm, Kydon Segal Lawyers, and there was produced a handwritten diary note dated "15/12", which is in the following form:
"Conference Laura Angius - instructions re new Will
Executors - Doug May & George Vlahakis
- Understands will charge - include charging clause
$10,000 to Randwick Children's Hospital
$5,000 to RCH per year for 20 years -
Robert Angius (son) to be trustee
→ Mortgage on xx Denning Coogee to Robert Angius
→ xx/xx Allen Street Waterloo to Gabrielle Angius (grand/daughter).
→ xx/xx Allen St Waterloo to Sean Bates (g/s until 25 y.o.) trustee Robert Angius) but if my daughter Jenny Angius challenges my Will the property is to be sold and the proceeds to Randwick Children's Hospital.
→ xx/xx Allen St W/loo to Carly Angius & Laura Angius when 25 y.o with my son Robert as trustee.
→ $400 per week to Jackie Verila for as long as she lives with my trustees to set up a trust fund with sufficient funds for that purpose at their discretion ... rest & residue to my son Robert Angius.
→ draft to be prepared & signed 26/1 with FG."
Mr Vlahakis acknowledged that he had written out the original diary note on 15 December 2011, whilst in the conference with the deceased. From his evidence, I am satisfied about the following matters:
(a) There are four employed solicitors in the firm, one of whom is Ms Giannakopoulos. She has been employed in the firm, continuously, since 2008.
(b) Mr Vlahakis, Ms Giannakopoulos, and the other employed solicitors at the firm cannot speak, read, or write in the Italian language.
(c) In about 2010, Ms Giannakopoulos, at her initial conference in relation to family law matters, raised with the deceased, the need to reconsider her Will. Thereafter, there were discussions between them, and possibly with Mr May, who was the real estate agent who handled some of the affairs of, and provided advice to, the deceased and John. Mr Vlahakis does not recollect any specific discussions that he had with Mr May.
(d) Mr Vlahakis read an email sent by Mr May to Ms Giannakopoulos but could not remember when he had first read it. He believed that it was in the firm's Will file for the deceased at the time of the conference on 15 December 2011. He recognised all of the handwriting on the copy document as being that of Ms Giannakopoulos. (The original email was not located on the firm's computer system and an enquiry made of Ms Giannakopoulous by Mr Vlahakis did not reveal when it had been received.) The email was in the following terms:
"RE: LAURA'S WILL
POWER OF ATTORNEY- PERSONAL- Robert Angius
BUSINESS- Douglas John May/Fiona
###Kiewa St
Albury NSW 2640
EXECUTOR- Doug/Fiona
The balance held in any of Laura's bank accounts shall pass to son Robert Angius.
xx Denning St- tenants in common? Coogee
Laura's 1/3 share of xx Denning St to go to Robert in his will until such time as she can sort this out with Jenny after the dust settles with John.
The share of Laura's rental income, after expenses, from the following properties shall upon her death either go immediately to Robert Angius or be held in trust for him until the will is settled. Her interest in the properties shall also pass to Robert Angius:-
Laura's 50% share in Alfreda St
50% share in Coogee Bay Rd
50% share in xxx Botany Rd
50% share in the N A Hotel
50% share in the F## Hotel
25% share in xxx George St
Laura's share in xx Wild St, Maroubra shall pass to Robert and in the event of Robert's death, then in turn in equal shares to Laura and Carly (Robert's daughters).
But firstly, $10,000 to go to the Children's Hospital, Randwick in memory of Laura Angius
And $5,000 each year thereafter whilst any of the properties are held.
The share of Laura's rental income, after expenses, from the following property shall go to Gabriel Angius or be held in trust for her until she reaches the age of 25. Laura's interest in this property shall pass to Gabriel:-
Laura's 50% share in S### Hotel - all Lauren's share to Gabriel
Robert Angius shall be the nominated Trustee.
If Robert or Gabrielle decide to sell their interest then they shall offer John Angius first right of refusal. She would like John to do the same?
Unit 5, xxx Allen St, and any net rental proceeds shall be left in trust to Laura Angius, Robert's daughter, until the age of 25.
Unit 6, xxx Allen St shall be left to Carly Angius, Robert's daughter (as above)
Unit 19, xxx Allen St shall be left to Sean Batas (sic), Jenny's son (as above)
Unit 24, xxx Allen St shall be left to Gabriel Angius, Jenny's daughter (as above)
Robert Angius shall be the nominated Trustee in all cases.
In the event of the death of any of the abovementioned grandchildren prior to them attaining the age of 25 then their inheritance shall pass to their sibling on the same circumstances.
Should Jenny Angius dispute any part of Laura's will then any inheritance bequeathed to Jenny Angius' children shall be withdrawn and the rental income and interest in the properties left to the Children's Hospital, Randwick."
(f) There may have been discussions between the deceased and Mr Vlahakis about her Will, but the only occasion on which he conferred with her, that he specifically remembers in any detail, is the conference on 15 December 2011, which took place at his office at Eastgardens.
(g) As only he and the deceased were present during the conference, he is the only direct source of evidence about what occurred then. Otherwise, the Court is left to the evidence of what the deceased is said to have reported to others about that conference.
(h) The Will file relating to the deceased was opened, apparently, on 3 August 2011. Mr Vlahakis believes that he was to confer with the deceased on that date, but that she did not attend.
(i) It was Ms Giannakopoulos who arranged for the deceased to see Mr Vlahakis on 15 December 2011. In fact, before and after she conferred with him, the deceased spoke with Ms Giannakopoulos.
(j) Prior to conferring with the deceased, Mr Vlahakis was told that the deceased had wanted Ms Giannakopoulos to be her executor, but that Ms Giannakopoulos refused, and remained unwilling, to be appointed as the executrix.
(k) The deceased's instructions to Mr Vlahakis were conveyed orally. However, he could see that the deceased had with her an "exercise book" to which she was referring. He could see handwriting in the "exercise book" but was unable to discern the words in it. The deceased did not show him the "exercise book". He could not remember whether she had other documents with her, but thought that it was quite possible that she did.
(l) Although he could not precisely remember the size or colour of the exercise book to which he referred, I am satisfied from his, and other, evidence, that it was the Exercise Book.
(m) His diary note of 15 December 2011 reflected the deceased's instructions to him.
(n) The date 26 January 2012 was chosen as the date the deceased was to next confer with Ms Giannakopoulos. He believed that by that date, John's obligations under the last Separation Agreement that they had signed would be completed. He said that the deceased wanted to discuss a draft Will to be prepared with Ms Giannakopoulos on that date when she would sign it.
(o) Mr Vlahakis did not prepare a draft Will for the deceased.
(p) Mr Vlahakis thought that the deceased was very clear in her instructions in terms of what she wanted in her Will; who the trustees should be; what specific bequests she wanted to make; which grandchildren should receive what property; and that the rest and residue should go to her son, the Plaintiff.
In answer to some questions from the Bench, Mr Vlahakis also gave this evidence:
"Q ...Ms Culkoff suggested to you that in your conversations with The Plaintiff after the death of the deceased you said to him "Your mother brought the book in and I wrote her wishes out in English". You said you didn't say those words but you said something similar?
A. Yes.
Q. I wonder if you could remember to the best of your recollection what you said about that?
A. What I would have said was
Q. Not what you would have said. Do you have a recollection of what you said?
A. "Your mother had a book with her which she referred to and she gave me instructions to make her will".
Q. There is no reference in what you have just told me to, in effect, translation from one language into English which seems to be what you agreed with Ms Culkoff?
A. No there was no translation. In the conference she didn't translate into English as far as I know what was in the book. It was more conversational, her dictating into English what she had written in Italian.
...
Q. Did the deceased tell you when she saw you on the 15 December that she had written out something in Italian?
A. I think she did, yes.
Q. Do you remember what she said about that?
A. I recall we had a conversation about her background and the fact she was born, she said she was as clever as a Jew because she grew up in the Jewish quarter in Rome and she was very street smart but not very educated and that she had written out or she had made notes or written out what she wanted in her will.
Q. In Italian?
A. In Italian, yes."
Another important matter about which Mr Vlahakis gave evidence related to his attendance, with the Plaintiff, at the deceased's home on 5 January 2012, the day after her death. He remembered that the Plaintiff told him (whether when he arrived at the deceased's home or before he had arrived), that the deceased had written a Will in a book and that one purpose for being there was to locate that book. He also recalled that the Plaintiff went to the white cupboard in the garage and searched for the Exercise Book. He could not say "with a hundred percent confidence" that the Plaintiff located the Exercise Book in the white cupboard but he believed the search of the white cupboard to have been one of the first things that they found and they discussed.
After the search of the whole house, the items retrieved were placed in a box. He and the Plaintiff returned to his office, where one of the other employees of the practice, one Mr Wong, completed an inventory. Mr Vlahakis did not participate in this task, which he left to Mr Wong. He did not doubt, however, that the Plaintiff was present whilst Mr Wong completed the inventory.
There was one piece of the evidence of Mr Vlahakis upon which the Defendant relied:
"Q. Do you agree then that your best recollection is that you had that Doug May file note with you at the conference then?
A. I had looked at it either at the conference or before the conference. I had a general understanding of what Laura had said to Fiona she wanted in her will. Laura had been adamant she did not want to make a will until the property matter with John, her husband, had been finalised. (my emphasis)
One of the reasons that the appointment with Fiona was made for late January was from memory that there was a court date prior to that or there was something that was supposed to have happened in the property settlement matter before her conference on the 26 January and the principal purpose of the conference with Fiona on the 26th was not to sign the will, it was to deal with this other property matter. Laura had always been adamant she would not make a will until everything was finalised with John." (my emphasis)
It was submitted that this evidence supported the proposition that the deceased did not intend the undated document to form her Will because, at the time it was written everything had not been finalised with John.
I have considered this evidence very carefully, but I am satisfied that the deceased was referring to the Will that was to be prepared by the solicitors and not what she had drafted. Meantime, she had prepared a Will, in the Italian language, with which she was satisfied. Her repeated references to "my Will" in her conversation with various people support this conclusion. (I shall return to this topic later in these reasons.)
The Parties and Other Witnesses
So far, I have referred to matters that, for the most part, unless otherwise indicated, were not the subject of any real dispute. I shall now turn to the evidence that was the subject of dispute between the parties, and the parties and other witnesses who gave evidence.
The Court read, and heard, evidence from a number of witnesses. There were the parties and associated family members, as well as others, to whom the deceased had spoken about the undated document, who were cross-examined. Others (the witnesses involved with the preparation and/or execution of the 2007 Will, or to whom the deceased, or others on her behalf, gave instruction) were not cross-examined. There was a sustained attack, by the Defendant, upon the evidence of a number of the witnesses (to which I shall return).
Much of the evidence concerned the deceased's conversation with the deponent of the affidavit being read, which deponent recounted the conversation. Neither party took objection to the evidence of the conversations, which, generally, was recorded in direct speech.
It is clear, as will be read, that s 8(3) of the Act makes admissible statements by the deceased as to the existence, and content, of any alleged testamentary intention, that is, both an intention to dispose of the deceased's property in a specified way by Will and the details of the nature of the dispositions intended. It also permits evidence of relevant statements of other persons. Thus, the evidence, relied upon by the Plaintiff, of conversations that the deceased had with him, and with others, is admissible and material.
However, evidence in that form is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the fact unless falling within an exception to the hearsay rule: s 59 of the Evidence Act. (Neither party made any submissions concerning the applicability of any exceptions e.g. s 63 (the deceased not available to give evidence about an asserted fact) or s 66A (contemporaneous representations about her health, feelings, sensations, knowledge or state of mind) of the Evidence Act.)
It is necessary to bear in mind the inherent shortcomings of hearsay evidence. I have borne in mind that the Court must exercise caution in determining whether to accept the evidence, and, if accepted, carefully consider the weight to be attached to it. Also, the version of events spoken of by the deceased to the deponent cannot be tested by cross-examination.
I bear in mind, also, the need for careful scrutiny to which evidence should be subjected in such circumstances (Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544, per Isaacs J at 548-9), and whilst there is no absolute legal requirement for it, I should look for some corroboration (Re Hodgson (1886) 31 Ch D 177; [1881-85] All ER Rep 931, at 931; Day v Couch [2000] NSWSC 230; Weeks v Hrubala [2008] NSWSC 162, at [20]).
Furthermore, although in a different context, Whelan J in Webb v Ryan [2012] VSC 377, at [22], referred to the difficulties in assessing evidence, in such circumstances, stating:
"An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined."
I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56:
"48 ... When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2)."
The credibility of a witness and his, or her, veracity may be tested by reference to the objective facts proved independently of the testimony given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Ll.R. 1, per Robert Goff LJ at 57.
I have also found what Lord Pearce, in his dissenting speech in Onassis v Vergottis [1968] 2 Lloyd's Rep. 403, at 431, useful:
"Credibility involves wider problems than mere "demeanour" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. and lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
Finally, I refer to what McLelland CJ in Eq said in Watson v Foxman (1995) 49 NSWLR 315, at 319:
"Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
With these principles in mind, I turn to the evidence of specific witnesses.
The Plaintiff was cross-examined for over three days at different times. (By agreement, the Plaintiff's evidence was interrupted with the interposition of other witnesses. He was not present whilst any witness who was interposed gave evidence.) The Defendant was cross-examined for much less, and at one, time (about 3 hours).
Overall, whilst the Plaintiff had great difficulty answering many of the questions concisely, and at times, responsively, I am satisfied that he did endeavour, throughout his cross-examination, to answer truthfully. He did not depart, in any significant way, in his oral evidence, from the account, given in his affidavits, or otherwise (other than in respect of one matter to which I shall refer).
Importantly, a significant part of his evidence, like many of the other witnesses, consisted of repeating conversations with the deceased, at most of which, no one else was present.
Furthermore, the evidence of other witnesses to whom, as well as contemporaneous and other documents to which, I shall refer, corroborates much of the factual content of the conversations that he said he had with the deceased and which he repeated. I shall refer to the other witnesses who gave evidence of similar conversations with the deceased.
In addition, the fundamental facts in a number of the conversations with the deceased, concerning the undated document, were corroborated by the very existence of the Exercise Book and the terms of the undated document contained in it. In summary, and as the deceased told the Plaintiff, there was a document contained in a book, written by her, in the Italian language, which set out what she wanted to do with her estate, or part of it, which intentions, broadly speaking, appear to have been that each of two identified grandchildren was to receive a unit in Waterloo, that the Plaintiff was to receive the bulk of the remainder of the estate (I say this subject to what is determined in any construction suit), and that the Defendant was to receive no part of the deceased's estate.
Importantly, I do not find that any of the evidence given by the Defendant and her daughter, Gabrielle, materially undermines the Plaintiff's account of the events that occurred in relation to the undated document or his evidence more generally. (In a number of respects, Gabrielle's evidence relating to her conversations with the deceased corroborates some of the Plaintiff's evidence.)
Overall, I consider the Plaintiff to be a truthful and reliable witness. In particular, I am satisfied that he gave truthful evidence about the following matters:
(a) His conversations with the deceased about the Exercise Book.
(b) His conversations with the deceased about events that had happened with the Defendant. (This does not mean, however, that what the deceased told him about the Defendant's conduct was true.)
(c) His own observations of the deceased's relationship with the Defendant.
(d) His attendance at the office of Mr Vlahakis following the death of the deceased and the preparation of the inventory with Mr Wong, a solicitor to whom Mr Vlahakis had entrusted the task.
There was one aspect of the Plaintiff's evidence that, initially, I found troubling. That evidence related to the circumstances in which the Plaintiff located the Exercise Book in the Coogee property.
The Plaintiff stated, more than once, in his evidence, that the deceased had told him where the Exercise Book was located, namely in between two books located in the white cupboard in the garage.
He maintained, when asked in cross-examination, that he had gone to the deceased's home, with Mr Vlahakis, after being told by the Police that it was a crime scene, and that he had found the Exercise Book, where the deceased had told him she had left it. He said he did so, on the day following the deceased's death, and before the Defendant and the deceased's husband could find it.
He also gave evidence that he went to the garage first, located the Exercise Book, but then looked throughout the Coogee property in order to retrieve various other documents and effects. Those items, when retrieved, were immediately placed in a plastic box that he had found in the cellar (also described as "the little room off the garage") of the Coogee property. These items, including the Exercise Book, were then identified in the inventory created at the office of Mr Vlahakis.
The Plaintiff had sworn an affidavit on 20 September 2012, in support of his application for the grant of administration (which affidavit was not read in the proceedings). In cross-examination, he was referred to Paragraph 40 of that affidavit in which he had said:
"In my mother's plastic box ... I found a further testamentary handwritten statement of my mother".
The "testamentary handwritten statement" was identified by page numbers of Ex. H1, which was the Exercise Book.
Importantly, the Plaintiff in his affidavit of 20 September 2012, did not refer to having located the Exercise Book in the white cupboard in the deceased's garage, but rather stated that he had found it in "my mother's plastic box".
The Plaintiff was also cross-examined on a record of interview in which he participated with the NSW Police Service on 1 November 2012 upon the basis that what he had then said, on this topic, was a prior inconsistent statement. The part of the E.R.I.S.P Transcript, relating to what he had found at the deceased's home on 5 January 2012, was subsequently tendered (Ex. 5) without objection. Having referred to attending the Coogee property, with Mr Vlahakis, the following questions and answers were then recorded in the Transcript:
"Q So then you went downstairs and let George in through the garage.
A Yeah.
Q And then what did you do?
A Well, I went to the places that me mum usually keeps the stuff and told me where she keeps them.
Q And what places were they?
A Well, the first one was obviously the garage, which was her favourite. She has a cupboard in the garage there where she keeps stuff and that's where I found, I found a fair bit of stuff.
Q When you say stuff, what do you mean?
A Books, documents, her purse, her bag, I didn't bring it with me, her bag was ---
Q No, that's O.K.
A I've still got that.
Q All right. So you went to the cupboard in the garage, then where did you go?
A Ah, we checked on the table there, we checked generally in the garage, then we went upstairs. Um, I checked into the kitchen especially in the kitchen cupboards. I checked everywhere but I checked the kitchen um, but there wasn't anything in the drawers in the kitchen, there wasn't anything there. Checked the laundry 'cause she had stuff in the laundry. I found her jewellery, expensive jewellery was in the laundry but I didn't, I didn't touch it, I didn't touch it, I only took what was, was necessary. I found um, a photo album up in one of the bedrooms with all our pictures in it. I wanted to take that but I said, well, no, I can't, it's not relevant at the moment and the authorities, I cant start taking personal stuff.
Q Mmm.
A Um, in her bedroom I found in a large dressing table, I found documents in a dressing table, I found them. Um, I came back downstairs, I went in a little room out just off the garage. That's where the box was and I found the box 'cause I knew, she told me she'd left everything, she kept everything. The exercise book, she'd put that in between two, she told me about that she made a thing and she'd put it in, in between a couple of books.
Q So she'd hidden it?
A yeah, she told me she wrote things down, she told me, she did, it was common, she told me that she'd wrote a new will she told a lot of people that, that she wrote a new will."
When Mr Vlahakis gave evidence, he stated:
"Q. And when you arrived at the property on 5 January Robert said to you, did he not, words to the effect that "my mother has written a will in a book"?
A. Yes. Well I don't recall whether it was when I got there or in the conversations I had with him prior to meeting there.
Q. But on the 5th?
A. On the 5th or prior, immediately prior to going there, yes.
Q. And he said to you "I am looking for that book, she told me she wrote it down in a book and it's in here"?
A. Yes.
Q. "She said she left everything to me and I want to find it before Jenny and my father find it"?
A. Yes I think so, yes.
...
Q. Do you recall that when you entered the garage Robert went directly to a white cupboard and searched?
A. In the garage?
Q. In the garage a white cupboard on the other side of the lounge room in the sitting area and searched
A. On the same level?
Q. Yes and searched for books?
A. Yes.
Q. Do you recall that?
A. I do recall that, yes.
Q. Do you recall Robert searching in that white cupboard and locating a book tucked in between other books?
A. I can't say with a hundred percent confidence that I recall that.
Q. Do you recall Robert flicking through the book and saying "This looks like it. I think this is it. I think this is what I'm looking for"?
A. I recall him saying that and I recall that I don't recall when he said that but I recall he said that when he found, or words to that effect, when he found a book or document but I don't know now if it was immediately after we entered into the garage.
From memory Laura had a living area that she may have lived on that level or she lived on a lower level even though her bedroom was on an upper level but I don't recall if that white cupboard and that conversation was in the garage or off the garage or above the garage.
Q. But it could have been
A. It was one of the first things that we
Q. One of the first things
A. I think so, yes.
Q. that you located and discussed?
A. I think so.
Q. You then went through the remainder of the house?
A. Yes."
It seems to me that Mr Vlahakis corroborated the Plaintiff's version of the events that had occurred the day after the deceased's death and that he and the Plaintiff had located the Exercise Book reasonably promptly after entering the Coogee property. Certainly, the answers given by the Plaintiff in the record of interview suggest that the deceased had hidden the book that the Plaintiff located between two books in the white cupboard.
The evidence, overall, satisfies me that the deceased did tell the Plaintiff where she had hidden the Exercise Book (in the white cupboard between two books) and that he located it on 5 January 2012. I am also satisfied that the Plaintiff's principal purpose for going to the Coogee property on 5 January 2012 was to locate the Exercise Book and that he did so because of what the deceased had told him. There can be little doubt that he wished to retrieve the Exercise Book as soon as possible and before any opportunity was given to any other person to do so.
Because it was raised by counsel for the Defendant as a matter of significance, I have carefully read the cross-examination of the Plaintiff about when he had the first conversation with the deceased about changing her Will. He maintained that it was at some time between mid 2010 and late 2010. However, he could not remember whether her statement, at that time, was that she had written a new Will (using the past tense) or whether she was going to write a new Will (using the present tense). This is hardly surprising as the conversation took place about three years before the Plaintiff was cross-examined.
The Plaintiff was also cross-examined about where different conversations about the same topic had occurred. Counsel for the Defendant suggested to the Plaintiff, and he agreed, that it was 8 to 12 times that the deceased had said words to the effect "I have left everything to you".
He was asked about the evidence, given in one of his affidavits, that one such conversation took place in Albury. He conceded that it might not have been in Albury as he had stated in the affidavit. He said, in my view, unsurprisingly, that he could not say, "for sure it was Albury, or whether it was back in Coogee".
However, throughout the cross-examination, he maintained that he had been told by the deceased, at various times, that she had written her Will in a book. (He denied that he knew in what sort of book she had written and said that he was not even aware of what the book looked like.)
I also accept that the deceased, initially told him that she was leaving the bulk of her estate to him and that he was "to look after all the children", and that later, she stated to him that she was going to leave each of Gabrielle and Sean one home unit and that he should look after his own children and Jacqui, to the latter of whom he must give "wages".
In Deeks v Greenwood [2011] WASC 359, E M Heenan J, referred to the use, in some of the cases, of the phrase "without more". He wrote, at [71] - [73]:
"The question of whether or not the document was intended to take effect as the testator's will without more plainly emphasises that it needs to be established that it embodies the final expression of testamentary intentions upon which the testator was at the time resolved, and that it should not be tentative, advisory or prepared in the anticipation that it may need revision, further thought or final confirmation. That is consistent with principle and with the statute but the phrase, not found in the legislation itself, is capable of suggesting that if anything more is required for the paper to take effect as a will it could not be valid even as an informal will . With respect, I am satisfied that this is not what was intended by his Honour's observations in Oreski v Ikac. ...
...
Clearly enough, a will prepared by a solicitor, or any will in conventional form contemplating execution with the formalities and requirements provided for by s 8 of the Wills Act, suggests that formal execution will follow and that the testament will thereupon be the will of the testator unless revoked or amended by a subsequent will or codicil or otherwise. However, this does not necessarily mean that such a document prepared for execution and submitted to the testator is incapable of being accepted as an informal will if it nevertheless embodies the testator's settled testamentary intentions. There are obviously cases, such as Mitchell v Mitchell, where the evidence establishes that the deceased had formed settled testamentary intentions to be expressed in his will and had adopted a particular document as embodying them notwithstanding that, for some sudden and unexpected reason, the document was not executed or properly executed.
Nevertheless, such cases can present difficulties because if, as is often the case, a proposed will is prepared on instructions given by a testator and then sent by the solicitors to the testator for consideration or, as here, marked plainly with the word 'Draft', that implies that the document may be for consideration, further thought or revision and is still awaiting the expression of the final settled intention of the intended testator. Those are instances in which the document clearly is only a preliminary, tentative or provisional expression of testamentary intention and where it is clearly contemplated that the final decision by the testator whether to adopt its terms or to vary them needs to be made. Those are the features which led to the rejection of the attempt to prove as informal wills the documents being propounded in The Estate of Perriman (dec) and in Oreski v Ikac."
Recently, Habersberger J considered the authorities on this topic in Fast v Rockman [2013] VSC 18. His Honour concluded, at [113] - [116]:
"In many cases where wills that do not comply with statutory formalities are sought to be admitted to probate, the would be testator, especially where a solicitor had been engaged to prepare one, is likely to have been aware that the document in question had to be executed in accordance with those formalities to have legal effect. But this, in my opinion, is only one of the factual circumstance which a court will take into account in assessing what ultimately is a question of fact as to whether the requisite intention existed.
Like Murray J in Dolan v Dolan, I consider that the words "without more" have been mentioned by way of emphasising that the court must be satisfied that the deceased really did intend the terms of the document - "without any alteration or reservation" - to be the manner in which his or her property was to be disposed of upon his or her death. Or as EM Heenan J put it in Mitchell v Mitchell, the words "without more" were used in Oreski v Ikac:
... to emphasise the need for the document being propounded for proof as an informal will to express the concluded testamentary intentions and decision of the deceased rather than being some provisional, preliminary or tentative proposal which had not by then received the deceased's full assent.
In my opinion, the insistence by counsel for Mrs Rockman that an unsigned will could never be held to be an informal will under s 9 if a deceased intended to sign a document and thereby to make it his or her will but died before signing it, has rather surprising consequences. Probably the best illustration of this is the following situation. The deceased had read the will prepared by his solicitors on his prior instructions, announced to those present that it was what he wanted in his will and that he was going to sign it, picked up a pen and as he was about to sign collapsed and died from a massive heart attack. The argument by Mrs Rockman's counsel would result in the document about to be signed by the deceased in the above hypothetical situation not being admitted to probate because he still had more to do before it could be recognised as his will. That cannot be correct, in my opinion.
As pointed out by Kirby P in Re Masters, Hill v Plummer a too rigid insistence on the formalities or other characteristics necessary to constitute a document the deceased's will defeats the purpose of a provision such as s 9 to allow a document to be admitted to probate as an informal will where the court is satisfied that the deceased intended that document to be his or her will."
Finally, it is important, in this regard, to remember what Wrangham J said in In the Estate of Knibbs, deceased; Flay v Trueman [1962] 1 WLR 852, at 855 - 856:
"As Salter J said in Beech's case (In the Estate of Beech, deceased [1923] P 46 at 57):
'I think that, in order to constitute a will, the words used by the testator must be intended by him, at or after the time when he uses them, to be preserved or remembered so as to form the guide to those who survive in carrying out his wishes.'
In other words, in order to be a testamentary act there must be a statement of the deceased's wishes for the disposition of his property after his death which is not merely imparted to his audience as a matter of information or interest, but is intended by him to convey to that audience a request, explicit or implicit, to see that his wishes are acted on."
In determining whether the Court is satisfied that the deceased person "intended the document to form his, or her, will", the Court may, in addition to the considering the form and content of the document or part of it, have regard to, amongst any other matter, (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.
It is always difficult to assess the intentions of a person who has left no specific directions, or indications, relating to his, or her, Will. All that the Court can do, in those circumstances, is to look at such facts as are available, in order to determine what was more likely to have been intended by the deceased in respect of the document concerned: In The Estate of Stewart (NSWSC, 12 April 1996, unreported).
In Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, Powell J noted, at 539-540:
"4. ... while each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will.
It will, I think, be apparent from what I have said - and, as well, from the declarations which I have already made in similar matters which have been referred to me since my appointment as Probate Judge - that, in cases where the subject document is either wholly written out, or, being on a will form, has been filled in, in the handwriting of the relevant deceased, and in cases where the subject document bears the signature of, or some mark made by, the relevant deceased indicating his intention to adopt it as his own, I would have little difficulty in finding myself satisfied that it was intended by the relevant deceased that the subject document should constitute his will. Where, however, the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased, was, in truth, no more than "instructions", or a note of "instructions", for a will (see, eg, In the Estate of Allan (Needham AJ, 24 September 1990, unreported); Cloonan v Allingham (Needham AJ, 14 December 1990, unreported) I would, I believe, find it very difficult, indeed, to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will."
A signature, placed at the foot of a testamentary document would, in most cases, carry the implication that the testator intended the signature to give testamentary effect to the document: Wood v Smith [1993] Ch. 90 (C.A.) at 111.
While dating a document is not necessary for it to be adopted by a person who causes it to be produced, dating is often an indication that the document is in its final form and intended to be operative: Re Estate of Kiepas (Dec'd); Twemlow v Kiepas [2004] NSWSC 452.
The document, itself, must also be considered in context (Estate of Gwendoline Myrtle Wray; Public Trustee v Commins; Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353; The Estate of Silady (NSWSC, 21 November 1994, unreported)). An intention that the document be the Will of the person who wrote it may be inferred from the physical form of the document itself: The Estate of Kevin John Hines v Hines [1999] WASC 111; In the Estate of Margaret, Deceased, [2012] NSWSC 1490, at [31].
Also important to bear in mind will be the degree of closeness in time of death to the preparation of the document; evidence of the deceased's state of mind leading up to the preparation of the document; the availability of persons to act as attesting witnesses (Re Nicholls [1996] 1 Qd R 179, at 181-182); and the relative publicity given to the document (Snape v Gibson; Re Estate of Paul Francis Snape [2006] NSWSC 829).
Additionally, the Court may take into account the existence of prior solicitor-drawn Wills when examining the extent of the failure to comply with formalities. In appropriate circumstances, an inference may be drawn that the deceased was aware of the formalities required for a Will. This may effect the question whether the Court should be satisfied that the deceased intended the informal document to be his, or her, Will or an alteration to his, or her, Will: Estate of Peter Brock, per Hollingworth J, at [34].
In Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371, I set out the principles that apply in respect of instructions and whether instructions for a Will may be admitted to probate. At [112], I wrote:
"I gratefully adopt, in this regard, what was recently stated by Philippides J in the Supreme Court of Queensland in Re Gloria May Limpus Deceased [2013] QSC 66:
"[6] In Theobald on Wills, it is stated in respect of "instructions for a will" that:
"A duly executed instrument, described as instructions for a will, may have effect as a will, if it appears that it was intended to take effect in the absence of a more formal instrument."
[7] On that topic the learned authors of Jarman on Wills state as follows:
"Instructions for a will
A paper merely expressing an intention to instruct a solicitor to prepare a will making a particular disposition of property, will not be admitted to probate in the absence of evidence of intention that such paper should have a testamentary operation. But instruments headed 'Plan of a will', or 'Heads of a will', or 'Sketch of my will', or 'Memorandum of my intended will', or 'Notes of an intended settlement', have been held to operate as valid testamentary dispositions, if duly executed. But probate was refused of an instrument duly executed and attested as a will, but headed 'This is not meant as a legal will, but as a guide'."
[8] Likewise, Williams on Wills states:
"Instructions for will. These can be admitted only if executed as a will and must be something more than mere heads of instructions."
[9] The matters has been considered in New Zealand in the decisions of In re Gilmour [1948] NZLR 687 and In re Barnes (Deceased), Public Trustee v Barnes [1954] NZLR 714.
[10] In In re Barnes the testator signed, in his solicitor's office, a document headed "Instructions for the will of [the testator]" and the signatures of two witnesses were appended to it. The testator was informed that a will in proper form could be prepared ready for execution the same afternoon by 5.00 pm, but he said he could not wait. He died more than a year later, without having executed any other testamentary document. The evidence showed that, during the last weeks of his life, he intended to make a new final will, and the making of such will would have included the revocation of the "instructions" document.
[11] Turner J held that, on the evidence, the testator executed the document meaning that it should operate as his effective will unless before his death he should execute in its stead a more formal document, embodying the same provisions, which his solicitor was to prepare. There was no need to rely on the presumption that the document, duly executed, was intended to be a will, as the testator's solicitor's evidence was sufficient to help to convince the court that the testator executed the document intending that it would operate as a will until some more formal document should be prepared and executed. Having considered the decision of In re Gilmour [1948] NZLR 687, Turner J said (at 718):
"In the present case, like Gresson J [in In re Gilmour], I am put upon inquiry by the use of the term 'instructions for a will', by the lack of form of the document, and by the absence of any words designating it as a final testamentary instrument. Like Gresson J, I listened to such extrinsic evidence as was available as to the circumstances in which the document came to be executed; but, unlike him, I was presented with direct and cogent evidence - that of [the testator's solicitor]. It clearly appears from this evidence that the document was signed so as to operate as a will until a more formal document should be signed."
[12] In re Barnes was considered by the Supreme Court of Western Australian in Re Ogley (dec'd); Ex parte The Public Trustee [2004] WASC 277. In that case, Mr Johnstone, a Wills Manager with the Public Trust Office completed a form headed "Will Instructions" with information provided by Mr Ogley's wife. The form was a standard form used by the Public Trustee to take down instructions from a testator with the intent that a formal will will be drawn up at a later date. Mr Johnstone then met with Mr Ogley, who was suffering from cancer and expected to have three to six months to live, and read through the instructions and explained to him what was in those instructions in some detail. Mr Ogley confirmed that what was written was in accordance with his wishes. Mr Ogley, Mrs Ogley and Mr Johnstone signed the form at the bottom of the final page and it was dated by Mr Johnstone. The signatures of Mr and Mrs Ogley were then witnessed. The Registrar declined to grant probate in common form because he was not satisfied that the deceased intended the document in question to be his will. An appeal against that decision was allowed and probate in common form was granted.
[13] In determining the matter, Sanderson M referred to the South Australian decision of Estate of Treloar (1984) 36 SASR 41, to In re Barnes, and to some of the early English authorities, and said:
"[13] The circumstances in which a Will can be contained in instructions were discussed by Legoe J in the Estate of Treloar (1984) 36 SASR 41. His Honour refers to Tristam & Coote, Theobald and Halsbury's Laws of England, in setting out the circumstances when instructions for a Will may have effect as a Will: see pp 43-44. These include:
(a) if it can be shown that the instructions represented how the testator intended to dispose of the estate;
(b) if the instrument was intended to take effect in the absence of a more formal document;
(c) if the document should be depository and operate provisionally until a more formal will was prepared.
[14] In the Goods of Fisher (1869) 20 LTR 684, Lord Penzance directs that a presumption arises when instructions are executed that it is intended will take effect as a Will, even where in future a more regular form is intended. In Re Meynill; Meynill v Meynill (1940) WN 273, Barnard J accepts that the presumption arises where formalities have not been complied with. In In re Barnes (Dec) [1954] NZLR 714 Turner J expressed the view that if the document has been executed animo testandi and the formalities observed, it becomes the last Will and testament of the deceased and was not revoked by any 'mere change of intention'. It is to be noted that the authorities suggest that a Will is not to be regarded as contained in instructions in the absence of evidence of animus testandi: see Lister v Smith (1863) 3 Sw & Tr 282; Torre v Castle (1836) 1 Curt 303; Whyte v Pollok (1882) 7 App Cas 400."
[14] Nevertheless, Sanderson M cautioned:
"Having said all of that, it is clear that each case must be decided on its merit 'because so much depends on the particular circumstances': see Hines v Hines [1999] WASC 111 per Owen J at 25. In that same case his Honour pointed out (at 26) that determining whether the document is a testamentary instrument is a less difficult task when independent evidence is available."
[15] Sanderson M concluded at [18] that, while the evidence was "thin", he was satisfied that it established that the deceased intended that the signed instructions would be an "interim will". The deceased, by his conduct, had indicated that he had signed a will and was satisfied that what he was signing was consistent with the way he intended to dispose of his property. Sanderson M further observed at [19]:
'It must be borne in mind in an application such as this that it is the Court's role to facilitate, rather than hinder a deceased's intention to settle his affairs. That is what Lord O'Hagan said so long ago [in Whyte v Pollok (1882) 7 App Cas 400] and it is as true today as it was then. In my view, there is no justification for coming to any conclusion other than that the signed instructions contain the Will of the deceased.'"
In Currell v Baldock; Estate of Currell [2012] NSWSC 705, White J, at [26], wrote:
"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 ...".
I make it clear that I do not intend what I have described as "principles" or "statements in other cases" to be elevated into rules of law. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.
As Lindsay J said in Verzar v Verzar [2012] NSWSC 1380, in another context, but equally apt in this case, at [131]:
"Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
Determination
As stated above, s 8 is in two parts, one characterising the document and the other the intentions of the deceased. The gateway into the section is by means of "a document". There is no issue in this case that there is a document and that it (a) purports to state the testamentary intentions of the deceased, and (b) has not been executed in accordance with Part 2.1 of the Act.
The sole question for the Court is the status of the undated document - whether the Court is satisfied that the deceased intended the undated document to form her Will. It would not be sufficient if the Court came to the view that the deceased had intended the undated document to record only her instructions for a Will, or to be a draft Will made to assist in the preparation of a final Will by her then solicitors.
Nor is it enough if the Court is only satisfied that the undated document contained the deceased's ideas about her testamentary intentions. The document must be intended to be the legally operative act which purports to dispose of the deceased's property upon her death and be intended by her to have present operation as her Will.
However, as stated previously, the form of the document, whilst necessary to be considered, is, by no means, solely determinative of the result of the proceedings. Furthermore, as long ago as 1882, in Whyte v Pollok (1882) 7 AC 400, at 405, Lord Selborne noted "it might happen that something which he did not originally intend to be a testamentary act was converted into a testamentary act by a subsequent and sufficient manifestation of intention on his part ...".
It is also clear that one must resolve the questions in dispute by looking at the probabilities on the totality of the evidence available to the Court, including, but not limited to, evidence relating to the manner in which the undated document was executed, if at all, and any evidence of the testamentary intentions of the deceased, including evidence of statements made by her. Thus, the Court determines, firstly, the objectively discerned nature of the content of the document, and then, subjectively, whether the specific deceased had the necessary intention.
In summary, at least the following facts and circumstances are sufficient, in my view, to weigh the probabilities in favour of finding that the deceased did intend the undated document to form her Will:
(a) There is no suggestion that anyone, other than the deceased herself, provided the initiative for the preparation of the undated document. Not unnaturally, it is written in a way that demonstrates a lack of legal knowledge and grammatical sophistication, and in a manner commensurate with the deceased's English language skills.
(b) The undated document shows unmistakeable signs that the deceased believed she would not be alive at the time that it would be read.
(c) In this case, not only did the deceased see Mr Vlahakis to discuss what she had written in the Exercise Book, she wished him, in effect, put what she had written, in the Italian language, into the English language.
(d) The deceased expressed to various persons, consistently, her great dissatisfaction about her relationship, relevantly, with the Defendant and the lack of closeness with, and even fear of, her. This provides an obvious reason for changing the testamentary disposition to the Defendant that is made in the 2007 Will. It is not inconsistent with what she expressed in the undated document, which, in the circumstances, is rational on its face and in its context.
(e) Whilst it seems clear that the deceased knew that for a document to have legal effect as a Will, it had to be signed, this is not a case where the evidence raised doubts about whether she wanted to think further about what she had written, or where the evidence did not disclose any act or words by the deceased "adopting" the document as her intended Will.
(f) Also, this is not a case where the deceased exhibited any reluctance to sign a Will prepared by her solicitors when given an opportunity by them to do so. She was never given that opportunity because her death intervened.
(g) That the deceased, herself, when referring to the undated document, described it as a "Will", to so many different people, is compelling. That she did so, even after conferring with Mr Vlahakis, is equally so. The evidence from the various witnesses, who speak, effectively, with one voice, to which I have referred, and which evidence I have accepted, confirms that the deceased intended the undated document to give effect to her testamentary intention. As Slattery J noted in Yazbek v Yazbek, at [87], "[a] "will" is a very commonly understood means of recording testamentary intentions".
(h) That the deceased thought it was necessary to, in effect, hide the Exercise Book, so that the Defendant and/or John would not be able to easily find it, assists the Plaintiff. It suggests the importance of the Exercise Book to the deceased who retained it in her custody. That she told the Plaintiff where it was to be found after her death, in circumstances where, otherwise, it might not have been, is also important. This is not a case where the concealment of the undated document demonstrates that the deceased did not intend it to be her Will. It was located where she said it was to be found only after her death. Therefore, she retained what she had described to others as her Will and did not disclose to anyone, other than the Plaintiff, where it could be located on her death.
(i) The deceased clearly had considered whether she wished to make any provision for the Defendant and decided that she did not wish to do so.
I do not accept the Defendant's submission that "[a]t its highest ... the informal document [is more than] a note or sequence of notes made by the deceased at a point (or points) in time which is unclear" and that she wrote it "to assist her in conveying her instructions to [her] solicitor so that a will could be prepared for her". Her repeated statements that she had written her Will and, on 15 December 2011, when speaking to Mr Sader, having informed her solicitor of the contents of the undated document and was having it put into English: "That's it now. I am very glad I am finished", suggests the significance, to her, of what she had done.
Merely because the conference notes of Mr Vlahakis and the contents of the undated document are different, does not mean that the deceased did not intend the undated document to be her Will. Whilst, following the settlement of her financial inter-relationship with John, she may have wished to sign another, perhaps, different, or more detailed, Will, that does not mean until she did so, she did not intend the undated document, without more, to form her Will.
Similarly, whilst I accept that the deceased's knowledge of the formalities required for a valid Will may bear on the Court's assessment of whether she intended the undated document to form her Will, that is only one of the factual matters which the Court will consider in assessing whether the requisite intention existed. Her state of knowledge is obviously a relevant consideration in assessing her intention, but, ultimately, the question is whether the Court is satisfied of her intention.
In this case, there is ample evidence of the circumstances in which the undated document came into being; how and why it came to be written; and that the deceased wrote it herself, without assistance from any other person. Her desire to communicate the nature of the undated document and that she regarded it as a Will is clear from the content of the conversations stated by a number of different people.
Accordingly, I am satisfied that, on the balance of probabilities, the undated document is a document, purporting to state the deceased's testamentary intentions, which document has not been executed in accordance with Part 2.1 of the Act, and which the deceased intended to be her Will. Accordingly, the saving effect of s 8 of the Act can be relied upon. In all the circumstances, it is the undated document that should be the subject of a grant of Probate in solemn form.
The Court:
(a) Declares that the Court is satisfied that the undated document purports to state the testamentary intentions of the deceased, and that it has not been executed in accordance with Part 2.1 of the Succession Act 2006.
(b) Declares that the Court is satisfied that the undated document forms the deceased's Will and that the deceased intended it to form her Will.
(c) Orders, subject to compliance with the rules of Court, that Letters of Administration with the undated document annexed, in solemn form, be granted to Gordon A Salier. (The Registrar may be satisfied to make the grant of the agreed copy until the Commissioner of Police releases the original.)
(d) Orders that the matter be remitted to the Registrar to complete the grant.
(e) Orders that the administration bond be dispensed with.
(f) Orders that the balance of the further amended Statement of Claim and the Cross-Claim be dismissed.
Counsel requested me to hear submissions on costs following the delivery of reasons for judgment, as there may be documents that are relevant to how the burden of costs should be borne. I shall determine the issue of costs following the parties' submissions if the parties are unable to reach agreement.
I shall stand the matter over to a date for any argument on costs and make directions in relation to the filing and service of evidence and submissions in relation thereto.
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Decision last updated: 22 January 2014
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