Hatsatouris v Hatsatouris

[2001] NSWSC 147

CITATION:	Hatsatouris v Hatsatouris [2001] NSWSC 147
CURRENT JURISDICTION:	Equity Division Probate List
FILE NUMBER(S):	SC 118368/98
HEARING DATE(S):	12/3/01, 13/3/01, 14/3/01
JUDGMENT DATE:	30 March 2001
PARTIES :	Julia Hatsatouris v Angelo George Hatsatouris & Ors. The Estate of George Evangelos Hatsatouris
JUDGMENT OF:	Foster AJ at 1

COUNSEL :	I.G. Harrison SC/W.G. Hodgekiss - Plaintiff P. Taylor SC/M. Scheib - Defendants
SOLICITORS:	Philip Parbury & Associates - Plaintiff Nicholas Pappas & Co. - Defendants
CATCHWORDS:	Probate in common form granted on Will and two Codicils in 1998 - Validity of Codicil - Codicil signed by deceased but not by attesting witnesses.
LEGISLATION CITED:	The Wills, Probate & Administration Act 1898
CASES CITED:	The Estate of Masters (Deceased) (1994) 33 NSWLR 446 at 452 Permanent Trustee Co. Ltd v Milton (1995) 39 NSWLR 330.
DECISION:	Refer Paragraphs 71, 72 and 73.

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

FOSTER AJ

Julia HATSATOURIS - v - Angelo George HATSATOURIS & ORS
JUDGMENT

1    HIS HONOUR: The plaintiff Julia Hatsatouris ("Julia") is a daughter of the late George Evangelos Hatsatouris ("the deceased") who died on 4 March 1998, aged ninety-one. Probate in common form of his last Will dated 20 July 1995 and two Codicils dated respectively 7 February 1997 and 20 May 1997 was granted to the plaintiff and the four defendants, as Executors, on 7 July 1998 in the Probate Division of this Court.

2    The defendants, Angelo George Hatsatouris ("Angelo"), Maria Alexiou ("Maria"), Irene Antonas ("Irene") and Helen Purchell ("Helen") are also children of the deceased. Julia is the youngest of the children, having been born on 13 June 1952. The dates of birth of the defendants are: Angelo, 15 December 1942; Maria, 7 June 1944; Irene, 30 December 1946; and Helen, 8 August 1949.

3    By these proceedings, Julia asserts that the deceased, on 16 December 1997, made a valid Codicil to his Will, ("the Third Codicil"), by which he devised to her his "residential property known as 82 Onslow Street, Rose Bay" ("the Rose Bay home") for her own use and benefit absolutely. In asserting the validity of the Codicil Julia relies upon s 18A of the Wills, Probate and Administration Act 1898 ("the Act"). The validity of the Codicil is denied by the defendants.

4 In circumstances to which reference will be made later, the Third Codicil, which had been prepared for execution by the deceased's solicitor, Mr Davies of Taree, was signed by the deceased but not by the intended attesting witnesses. Accordingly there was a failure to comply with s 7 of the Act, leading to Julia's reliance upon s 18A.

5 Section 18A provides as follows:-

" 18A Certain documents to constitute wills etc
(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute the person's will, an amendment of the person's will or the revocation of the person's will.
(2) In forming its view, the Court may have regard (in addition to
the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise of statements made by the deceased person."

6    In these proceedings the plaintiff claims that the Third Codicil was relevantly "an amendment" of the deceased's Will, intended by the deceased to constitute such an amendment. There is no dispute that, if the Third Codicil be valid, it would operate as "an amendment" within the meaning of this section. Sub-section (2) casts a wide evidentiary net which has led to the introduction into this case of a large amount of testimony, both affidavit and oral. It is necessary to set-out, by way of background, a number of facts established by this evidence.

7    Background

The deceased was born in 1906 and came to Australia as an immigrant in 1919, where he joined members of his family who had immigrated earlier. Other members of the family arrived from Greece shortly thereafter. The family pursued a number of business interests in New South Wales, operating cafes and motion picture theatres. Interests in real estate were also acquired.

8    The deceased married his wife Anna on 12 October 1941, their children being born on the dates already mentioned. The deceased and his family settled in Taree where a theatre was acquired, extended and modernised by the deceased and his brother. Also, the deceased acquired the family home at 59 Pulteney Street, Taree.

9    In 1976 the deceased and his brother parted company in business under an agreement whereby the deceased retained assets in Taree and his brother received assets in Port Macquarie. Angelo, who was by then a solicitor, prepared, on his father's instructions, a discretionary trust into which all the Taree assets were transferred, the trust being managed by a company of the which the deceased and Angelo were the directors. Julia and the four defendants were made the beneficiaries of the trust, the real estate assets of which comprised eight lock-up shops in one part of Taree and a converted theatre development, comprising eight lock-up shops, an upstairs restaurant and upstairs offices in another part.

10    The children all received a reasonable standard of education in Taree and proceeded to tertiary education. Each gave evidence in these proceedings. Each showed himself and herself to be educated, articulate and intelligent. In his affidavit, Angelo described the circumstances of each of the siblings as follows:-

" (a) I am a solicitor in my own practice in Maroubra Junction. I have been in practice for over 30 years. I am married to my wife Despina and we have three sons aged 23, 21 and 15.
(b) Maria married Emanual Alexiou in 1965 and has four grown-up children. She is a licensed real estate agent and registered valuer having completed courses after her children completed their own education. Her husband is a butcher who has since sold his business and has two problem knees. For the past few years. She has been the main provider of her family.
(c) Irene is a qualified pharmacist living in Adelaide. She married Jack Antonas in 1974 and has four children, two boys and two girls. The two boys are twins and have just completed their last year at school. One of her daughters is at university, and the other one has completed a university course and is self-employed.
(d) Helen is a qualified primary school teacher teaching at Double Bay Primary School. She is married to Geoff Purcell and has two adult children.
(e) Julia has one dependant child and has been separated from her husband since December 1997. She is a teacher at Clovelly High School. Her son James is approximately 5 years of age."

11    It appears that this was the situation with each of the defendants as at the time the deceased signed the third Codicil on 16 December 1997. It is suggested by Julia in her evidence that Maria's husband is still able to work in a butcher's shop but I do not consider that this is of any importance in the overall circumstances of the case. The evidence makes it clear that, whereas the other four children achieved stability both financial and domestic in their lives, Julia had had an unfortunate marriage and was, in comparison with the siblings, in an insecure situation. Her husband had been a problem and a poor provider. She had a young child, who had all his schooling ahead of him. Prior to December 1997 the deceased had been well aware of the precarious nature of her marriage and that she was financially insecure. Indeed, the final break-up of her marriage occurred in December 1997, the month in which the deceased signed the Third Codicil.

12    In February 1967 the Rose Bay home was purchased by the deceased in his wife's name. Members of the family were involved in tertiary education in Sydney and, it appears, the deceased wished to keep the family together. Maria had already married and was then living with her husband. Other members of the family moved into the Rose Bay home. Helen married in 1972 and moved out. Angelo and Irene both married in 1974 and left to set up their own homes. In the result Julia remained in the home with her parents. The house was renovated and extended in 1982. It appears that the residence at Taree was also maintained. The deceased and his wife spent time in Taree and in Sydney. After Julia married she and her husband lived in the Rose Bay home which appears to have been maintained at the deceased's expense. It suited the deceased to have the house occupied during the periods when he and the children's mother resided at Taree. He was not happy about Julia's marriage and, quite clearly, did not like or approve of her husband, whose surname was Fleetwood.

13    The affidavits are replete with the usual asserting and disputing of the degree of care and attention provided by each child to the parents whilst they were residing at Rose Bay and also at Taree. In my view, nothing turns on this evidence in this case. It is clear that the deceased loved all his children and was loved by each of them.

14    The deceased's wife Anna died on 30 March 1995. She left all of her Estate, including the Rose Bay home to the deceased absolutely. Her Will contained a provision that, in the event of the deceased predeceasing her then the Rose Bay home was devised to the trustees of her Estate "upon trust to permit my daughter Julia Fleetwood to reside in the said property for so long as she may wish, my said daughter to keep the said property in good repair and insured in the name of my Executors in the office and in the sum approved by them and further to pay all rates and taxes levied on the said property". Provision was also made for the sale of the property and the division of the proceeds between all the children, including Julia, in the event of her relinquishing her right of residence.

15    It is clear that, as at the date of his wife's death, the deceased had some concerns about Julia's situation and her relative insecurity in comparison with the situation in life of the other children. Although the evidence indicates that he had expressed views from time to time that all the children should be treated equally in their parents' Wills, he, apparently, expressed the view round about the time of the reading of his wife's Will that he thought that Julia should receive the Rose Bay home under his Will. This was not a suggestion which, then or later, found favour with any of the other children. Indeed, in my view, it is clear that from 1995 onwards the deceased oscillated, in his testamentary thinking, between providing Julia with the ownership of the Rose Bay home and with making only the same provision for her as had been made in her mother's Will, the latter provision preserving a significantly closer approach to equality between all the children.

16    In fact on 20 July 1995, the deceased executed a Will prepared by his solicitor Spencer Davies, at Taree, in which he repeated the provision in favour of Julia's residence in the Rose Bay home in the same terms as had been provided in his wife's Will.

17    In September 1995 the deceased became ill with cancer of the prostate and bowel. He was operated upon for these conditions in that month. It appears that the cancer returned in 1997 and his health, consequently, declined. In September 1997 he was admitted to the Mayo Hospital in Taree, as he had contracted pneumonia. Angelo visited him at the hospital in early September, when there was a discussion about Julia and the Rose Bay home. The deceased told Angelo that he was thinking about giving Julia the house. Angelo said to him: "I think you're asking for trouble. Do you want to divide the family?" He advised his father to leave everything the way it was and that if Julia was given the house absolutely the others would be upset and there would be a Court case. He said that it would not be fair if his father gave the house to Julia rather than providing for her to live in it for her life. His father said that he did not want to divide the family.

18 It appears that Angelo had not actually seen his father's 1995 Will as this was in the keeping of his father's Taree solicitor. However, it appears that he was aware, in general terms, of the provision made in it for Julia in respect of the Rose Bay home. What he was not aware of, however, was that on 20 August 1997, only shortly before his conversation with his father, the deceased had executed, validly in accordance with the Act, a further Codicil prepared by Spencer Davies which, in fact, gave the Rose Bay property to Julia absolutely. It is clear that his father did not acquaint Angelo with this fact during their discussion.

19    However, the deceased, obviously, was concerned by what Angelo had told him as to the effect upon the family, should he make this provision for Julia. On 10 September 1997, he formally revoked the Codicil in the presence of Mr Spencer Davies, by tearing it up. It appears that Angelo was unaware of these events until he was informed of them by Mr Davies, when the latter was preparing his affidavit in these proceedings. However, Maria gave evidence that when she visited the deceased at the Mayo hospital at around the same time the deceased told her that he had torn up the Codicil in favour of Julia's being given the Rose Bay property and that he had finally decided to leave things as they were contemplated by his wife's Will.

20    The evidence also indicates that from time to time, before his illness entered its final stages, he had conversations with his other children in which he raised his concerns about Julia's needs and in which he was firmly told by them that it would be unfair to the other children if she received the Rose Bay home absolutely. On those occasions he was admonished to deal with the matter in the same way as his wife had, in her Will. It seems that, on these occasions, he would apparently acquiesce in the view that all the children should be treated equally.

21    In late September 1997 the deceased, whose condition was deteriorating, was moved from Taree to the Sacred Heart Hospice in Sydney. Whilst he was there, in very early December, he spoke to his son Angelo and expressed his concerns about Julia and the problems that were occurring at that stage in her marriage. He said: "I want to give her the Rose Bay house". Angelo asked him why he kept bringing this up and the deceased replied that he wanted to help Julia because she did not have a house. Angelo advised him that, if he made such a provision for Julia, the family would fight in Court. His father said that he didn't want that. The tenor of the conversation, as deposed to by Angelo, however, strongly suggests to me that his father had raised the subject in the hope that Angelo would assist him in the alteration of his Will. He said, when Angelo's opposition to the change was made very obvious, "You are not going to help me". He later said the same thing, in the presence of Angelo, in relation to a cousin Denis Poultos, another solicitor, when he was visiting the deceased. He said to Angelo, referring to Poultos, "He won't help me either".

22    The significance of these conversations needs to be assessed against the fact that on 7 October 1997 the deceased had phoned Mr Davies and instructed him that he wanted to leave the Rose Bay home to Julia and that Mr Davies should prepare the necessary document and send it to the Rose Bay address. On 10 October 1997 Mr Davies complied with these instructions and sent the Third Codicil to Onslow Street. The deceased was made aware of this by Julia, who was residing at Onslow Street. He had told her to keep the document in his brief case, which Julia carried back and forth between the Hospice and Onslow Street. The Codicil had been accompanied by a letter from Mr Davies indicating the manner in which it should be executed and attested. I am satisfied that the deceased was aware of the need for two independent witnesses to observe his signing of the Will and to attest his signature. I think that he was hoping that either Angelo or Poultos would organise these matters for him. Neither of them knew that the deceased had received the Third Codicil from his solicitor in Taree. Mr Davies had forwarded, with the Codicil and the letter of instructions, an addressed envelope in which the Codicil was to be returned to his custody in Taree.

23    Julia gave evidence, which I accept, that in October, whilst he was at the Hospice, her father said to her that he wanted to look after her and the boy and that he had then used her mobile telephone to ring Spencer Davies at Taree. She had left the room whilst the call was being made. Later in October, when she had brought in the mail that had been forwarded to Onslow Street, he opened a letter in her presence and asked her what he was going to do with it. He told her that it was his Will. He said that he wanted to leave her the house. She said to him that she wanted him to be very sure about that. She told him that he would have to organise people to sign it. At that stage the Will was returned to the brief case.

24    She gave evidence that in November he expressed anxiety to get witnesses to deal with the Will and suggested that she talk to Denis Poultos. She did so and was told that her father should provide a statement as to why he wished to leave her the Rose Bay home.

25    On 5 December, at which time her father had been moved from the Hospice to the Nursing Home, Lulworth House, Julia's husband finally left her. On 7 December 1997 she told her father of this event and that Angelo was "looking after the settlement because I don't want to be landed with any more debts." Her father responded that he wanted to make her secure, that she needed a place for herself and the boy and that he wanted to leave her the house at Rose Bay. Julia told him that the other members of the family would not like that. He replied, "You have got the boy and you have got to educate him, the others have their own homes, their kids have grown up. Yours hasn't even started school." It was agreed that these were the reasons that he wanted to leave her the house. She suggested that he should write it down. She did so at his dictation and it was agreed that she should find a solicitor and arrange for him to come and see her father at Lulworth House. He agreed that he was happy with that arrangement and that it was what he really wanted to do.

26    Julia obtained the name of a solicitor from her accountant. It was Mr Chalmers of the firm of Chalmers, Marx of Bondi Junction. She saw him on 11 December 1997 taking with her the written notes. She explained that she was attending on behalf of her father and that she wanted Mr Chalmers to go and see him at the Nursing Home "because he has a Will and needs witnesses." She provided Mr Chalmers with the notes and asked that he "make absolutely sure it's what he wants to do and that he understands what he's doing." If her father decided that he didn't want to do it Mr Chalmers was to "just send an account". It was agreed that another witness should be found to accompany Mr Chalmers when he interviewed her father. The witness selected was a Mr John Cooney, apparently known to and liked by her father, who was a next door neighbour.

27    Julia told her father of these arrangements and was told by him to bring in to him the brief case where the Codicil had been placed. She complied with this request.

28    None of these arrangements were known to other members of the family, although it appears that the deceased, in a conversation with a witness, Philip Edward Michael, an old friend of the family, on 16 December 1997 told him that he was "seeing a solicitor tonight".

29    On that night Mr Chalmers and Mr Cooney called upon the deceased in his room at Lulworth House. Mr Chalmers, of course, did not have the Third Codicil with him. It was in the possession of the deceased having been brought to him earlier in the day by Julia as part of the contents of his brief case. It is clear that, in addition to the Codicil itself, the deceased had the accompanying letter from Spencer Davies together with the envelope in which the material had been sent from Taree and the return envelope in which it had been contemplated that the duly executed Codicil would be sent back. Mr Chalmers had with him a type written statement of the deceased's reasons for executing the Codicil. This document had been prepared in his office and amounted to a re-working of the written material supplied to him by Julia, being the notes she had taken in the discussion referred to above.

30    I am satisfied that the deceased was expecting the visit from Mr Chalmers and Mr Cooney. It had been, in effect, organised at his request by Julia. Its purpose was to give effect to the intention that he had made manifest to her, to provide her with ownership of the home. There is no issue as to the deceased's testamentary capacity, nor is it asserted that any undue influence had been exercised upon him.

31    Mr Chalmers gave evidence that he visited the deceased late in the afternoon on his way home from work. He gives the following account, in his affidavit, of what occurred in the deceased's room:-

"I went in and met John Cooney the neighbour. I said to George Hatsatouris 'I am Michael Chalmers, a solicitor, and I understand you want to have the Codicil signed. I have not seen the Codicil have you got it?' He had a pile of papers on a trolley and he went through the papers and pulled out the Codicil. I had a look at it.
I then said to Mr Hatsatouris 'Would you read through the Statement and tell me if it is correct'. He read the Statement and said 'Yes, I want Julia to have the house.' I then had a conversation with him in a general nature such as 'How is the nursing home'.
I read the Statement to him in the presence of Mr Cooney. I believe there was another bed in the room but there was no-one else present apart from myself, Mr Cooney and the deceased. After I read the Statement aloud to him he said 'Yes, that's what I want for Julia'. I said to him 'Do you know what this document means? It is a statement that you dictated to Julia but I have changed it a little' and he said 'Yes'. The Statement was then signed by myself, Mr Cooney and the deceased at the same time the deceased signed the Codicil to the will in our presence."

32    I accept this as an accurate account of what occurred in relation to the signing by the deceased of both the Third Codicil and the Statement. It is to be observed that the Statement was witnessed both by Mr Chalmers and Mr Cooney. However, before the Codicil could be witnessed in the presence of the deceased, the proceedings were interrupted by the entry into the room of the hospital Matron who demanded that the document be not signed. She asserted that the hospital might be liable if the signing took place. She required that Mr Chalmers and Mr Cooney leave the room and discuss the matter outside. There is no need to set out the discussion that then took place. It is clear from Mr Chalmers' affidavit and also his oral evidence that there was a reasonably heated exchange between himself and the Matron, he insisting that he had a right to complete the business upon which he was engaged and she insisting that he should leave the premises. Mr Cooney was clearly embarrassed and left. Mr Chalmers, knowing that the Matron was in control of the premises, ultimately gave in and also left the premises. It appears that the Matron had confiscated the documents but, it would seem, must have handed them back to Mr Chalmers before his departure. These documents were the signed Statement, the Third Codicil signed by the deceased but not signed by the witnesses, the two envelopes and the letter from Mr Davies.

33    Mr Chalmers had not been allowed to speak to the deceased from the time of the interruption, although he had sought to do so in order to explain what had occurred. Sometime before his departure the deceased's daughter Helen came upon the scene. It appears that she was told both by Mr Chalmers before he left and also by the deceased that the deceased had not signed anything. When Angelo later got in touch with Mr Chalmers, Mr Chalmers also told him that the deceased had not signed. Unfortunately this matter was not addressed in either the oral or in affidavit evidence of Mr Chalmers. His statement as to non-signature by the deceased was, consequently, neither denied nor explained. In light of the fact that the deceased clearly signed both the Statement and the Codicil, this part of the evidence remains a mystery.

34    Although the deceased denied signing anything or later expressed doubt as to whether he had or not, I am quite satisfied that he was aware that he had signed both documents. He had, quite clearly, made up his mind to execute the Third Codicil, which he had had knowledge of for some time, and which he had in his possession, for the purpose of giving effect to the intention that he then had of devising the Rose Bay home to Julia. He was aware of the steps that had been taken to enable him to execute the Third Codicil. He was expecting the solicitor to arrive that evening, together with Mr Cooney. I am quite prepared to infer that it was his intention to execute the Codicil privately, as he had done on previous occasions in Taree, and then forward it to the custody of his solicitor, in the envelope provided.

35    He had not expected the dramatic interruption which had occurred. Nor would he have expected that his daughter Helen would have come upon the scene at the time she did. Although I am satisfied that he was completely clear in his mind at the time when he was signing the documents, I am prepared to accept that, thereafter, he was in a state of embarrassment and concern. This led him to assert that he had not signed anything.

36    It is clear that the next day he was concerned about what he had done. He knew it was known and would lead to family upset and dispute. In the presence of his daughter Maria and, after she had had a conversation with Mr Davies on her mobile phone, he spoke to him. The gist of that conversation is recorded in a file note attached to Mr Davies' affidavit. It reads as follows:-

"17 December 1997 George Hatsatouris - instructions to send down document to revoke third Codicil which George believed had been signed the day before providing for Rose Bay property to be left to Julia absolutely.
Address: Lulworth House, St. Lukes Complex, 73 Roslyn Gardens, Kings Cross."

37    Julia entered the room whilst this telephone conversation was occurring. She made some angry comments. She had received a phone call from the Matron in which she had been criticised in strong terms. It is not surprising that she felt hurt at what had occurred. I do not think anything turns upon the remarks that were made in this conversation.

38    The defendants rely upon a note in the Lulworth House Nursing Home nursing notes dated 17 December 1997. This purports to record a statement made by the deceased to the Matron. It appears to read:-

"Rang daughter - not at home. Stated as I walked to dining room, Are you the lady from last night? I have decided to leave my will as it was - fair to everyone. I said to him, that was indeed what he had agreed to do last night. He then asked me who the two men were. I replied, Julia's solicitor, Julia's neighbour. He replied, you asked them to leave. I said, yes I did - He then stated, that's good all the family would be upset with me, that's what I was going to do - it would be better if I was a pensioner and had no money. I reassured him that everything was okay. He stated to come back and see him."

39    It is difficult to know what to make of this statement. The matron did not give evidence, although the evidence of Julia as to the conversation that she had with her on the telephone after the interruption had occurred, suggests that she held views favourable to the defendants. The impression I gain from the note is that the deceased was upset that the steps he had taken had resulted in a significant family row. I am satisfied that as at 17 December, in the circumstances which had occurred, he had decided it was best to seek to re-establish the status quo, rather than provoke further disputes. Hence the call to Mr Davies.

40 I also consider that, although he knew that he had signed the Third Codicil and Statement the night before, he also knew that the Codicil had not been signed by the witnesses in his presence. He would have known, from prior experience, that this attestation was normally required to confer validity on a will or codicil, at least in the sense that that was what had been required in the past. Moreover, these were the instructions in the letter accompanying the Third Codicil. Consequently, even if he intended the Codicil to be effective when he signed it (a matter to which I shall return), he may well have had doubts, in light of the lack of attestation, that he had given effect to his intentions. Quite clearly, of course, he was unaware of s. 18A of the Act.

41    Angelo had arrived at Lulworth House on the evening of 16 December 1997 after being informed by Helen of the incident which had occurred. By the time he arrived Mr Chalmers had departed. He had a conversation, however, with his father in which he was told that Julia had sent a solicitor to get him to sign something for Rose Bay but that he didn't sign it. As I have said, I am satisfied that in fact he knew he had signed it. I consider that he did not want to admit this to Angelo whom he, rightly, supposed would be annoyed. Angelo, it would appear, inferred that his father had been a party to arranging the attendance of the solicitor. He said to his father:

"Haven't we talked about this before?.. Why do you want to do it? It's going to destroy the family."

42    His father replied:

"She hasn't got a house."

43    Further discussion ensued, the purport of which was that Angelo insisted that the giving of the house to Julia would be unfair to the others. His final comment to his father on this occasion was, in the context that his father did not have enough money to equalise the situation with the other siblings, "then it's not a good idea to pursue giving the house to her even though you are thinking it might be a good idea to do so."

44    Although I shall make reference to evidence of what occurred between 17 December and the date of the deceased's death, it is convenient to state now that, in my view, whatever he may have said on other occasions, the deceased continued to think it would be "a good idea" to give the house to Julia for the reasons he had subscribed to in the statement signed before Mr Chalmers and Mr Cooney. The terms of that statement are as follows:-

I, George Hatsatouris, currently residing at Lulworth House, St Vincent's Hospital hereby document why I have left my property at 82 Onslow Street, Rose Bay in the State of New South Wales solely to my daughter, Julia Hatsatouris (Fleetwood) and not equally to all my children including Angelo Hatsatouris, Maria Alexiou, Irene Antonas and Helen Purcell and I ask these reasons to be considered in any judicial challenge by any person to this determination of mine made and recorded in my third Codicil dated 16 December 1997.
1. All of my other children have their own home, other than Julia Hatsatouris.
2. All my other children are securely married.
3. Julia Hatsatouris is a sole parent with a son of pre-school age who still has to have a full education. The majority of my other grandchildren have or almost have completed their secondary education.
4. Julia Hatsatouris has been the main carer of my wife (until her death) and myself over the years and has looked after our personal hygiene and cleanliness.
5. Julia Hatsatouris has had to go through a divorce and needs, like my other children, the security of her own home."

As already indicated this statement was dated 16 December, 1997 and signed by Messrs. Chalmers and Cooney as witnesses.

45    Angelo did not become aware that the deceased had signed this statement, nor that it had been witnessed, until it was produced from Mr Chalmers' file during the course of the hearing. Nor was he aware that his father had signed the Third Codicil until that fact appeared in the affidavit evidence filed in the proceedings. His ignorance was due to the fact that, when he spoke to Mr Chalmers some days after 16 December, he was informed that, because of the interruption, his father had not signed anything at Lulworth House. He was also informed that the original documents had been returned to his father at Lulworth House. The documents had, in fact, been misaddressed. They were returned to Mr Chalmers, who then correctly addressed them and posted them again. They did not arrive at Lulworth House until the date of the deceased's death, 4 March 1998. Even then, only a copy of the statement, unsigned and unwitnessed was returned. The original remained in Mr Chalmers' file. The original signed Third Codicil, however, was included.

46    Accordingly, it was not until after the deceased's death that it became clear to Angelo that his father had, in fact signed the Third Codicil. Accordingly, from 16 December onwards, family discussions relating to the Rose Bay property occurred in circumstances where the deceased had given conflicting accounts on 16 and 17 December as to his signing the Third Codicil and had, thereafter, maintained that he had not signed it, a fact corroborated by what Mr Chalmers had said on the night and later repeated to Angelo. As I have already said, I am satisfied that the deceased knew he had signed the document but was uncertain as to the effect of his signature. In these circumstances, I consider that he felt it easier to tell a white lie rather than provoke a further family dispute.

47    Mr Davies, pursuant to his instructions, forwarded for execution a fourth Codicil which would have the effect referred to in the telephone conversation between him and the deceased of 17 December. This Codicil was never executed by the deceased. Indeed, it was never proffered to him for execution. The envelope containing it was not delivered to him personally at Lulworth House. It was held on arrival and later given into the custody of Maria. This occurred at approximately the middle of January 1998. Maria then took the letter to her father's room and opened it in his presence. She asked her father what he wanted her to do with them. Her father replied, "Just put it in my drawer." There was then mention of a discussion which was to take place, regarding the deceased's permanent placement in Lulworth House. Maria suggested that discussion of the fourth Codicil could be deferred until then and that, in the meantime, she had better take it and the accompanying documents with her. The deceased agreed.

48    There was discussion between Maria and Angelo as to what should be done about the fourth Codicil. Angelo suggested that nothing need be done until the documents arrived from Mr Chalmers and it became clear whether their father had or had not signed anything. In the meantime there was no need to bother the deceased, whose health was obviously deteriorating.

49    The projected meeting took place towards the end of January 1998. Angelo, Maria, Helen and Julia were present. It is clear that discussions focused initially upon the fact that the deceased would henceforth be a permanent resident in Lulworth House, it being clear that, having regard to his need for care, he could not now be looked after properly at the Rose Bay home. There were also various administrative matters to be attended to, consequent upon his admission as a permanent resident. The conversation then turned to the Rose Bay home. Maria had brought to the meeting the Fourth Codicil and accompanying document. These were, however, not produced, the deceased having reiterated that he had not signed anything before Mr Chalmers. The discussion took place in the context that the documents signed before Mr Chalmers were not available, they having not yet been returned to Lulworth House (as already indicated they did not arrive until the date of the deceased's death). Moreover, the deceased's Will was not available. It was, apparently, not clear to all that the Will provided Julia with lifetime residence, if she wished. It appears that Angelo was aware that the Will made the same provision for Julia's residence as had her mother's Will. This does not appear to have been clear to everyone. According to Angelo a lot of the discussion centred around the period of time that would elapse before the property became available for sale, which was an irrelevant consideration unless Julia was prepared to sell the property at an early date.

50    I find the various versions of this conversation deposed to in the evidence difficult to evaluate. Angelo agreed that it was an occasion where people tended to talk at once and where each would have a better recollection of what he or she had said than of what others had said. It was his view that at the end of the discussion there was an understanding that the situation was "that everyone had accepted the fact that Julia was entitled to remain…in Rose Bay as long as she wished." The evidence does not enable me to agree with this. Apparently the deceased said that he wanted to leave things as they were. It is difficult to be clear as to what he had in mind. He would, for instance, have been aware that he had signed the Third Codicil and had not signed the fourth. I think it significant that Maria says in her affidavit that her father said, finally, "I've always just wanted to be fair. There's plenty for all of you. I don't want any fighting." She also says that at a meeting which occurred on 2 March 1998, two days before the deceased's death, he said words to the effect of:

"I don't want you to be greedy. You must all help each other. I don't want you to fight."

51    If the deceased had had in mind that the provision he had made or agreed to in the conversation of late January had been one where all the siblings, for practical purposes, shared equally, then there would have been no need for him to admonish them not to fight amongst themselves and not to be greedy. Also his reference, in this context, to there being "plenty for all" suggests that he had in mind an unequal distribution which would nevertheless leave enough for everybody. It is at least consistent with him having in mind that, as he had frequently indicated in the past, he wanted Julia to have the house at Rose Bay because of her greater need. This would lead to an unequal distribution of his property but he was expressing the hope that there would be no fighting after his death, because of greed.

52    Julia has given evidence of a conversation with her father that took place after the discussion of late January had ended and the others had departed. Whilst I find it difficult to accept the whole of that conversation, I am satisfied that the deceased mentioned the documents which he had signed on 16 December and suggested that they might have some significance after his death. Clearly he could not, in the circumstances prevailing, execute again the third Codicil but was expressing the view that what he had already done might assist Julia, if she persisted in her efforts to obtain the Rose Bay home. I consider that, fundamentally, it was still his wish that this be so.

53    Against this background of fact, I now turn to the issues in the case.

54 In the first place, it is clear, that if the third Codicil has no validity as a testamentary disposition under s. 18A of the Act, then the provisions of the will and first two Codicils, as admitted to Probate, must govern the situation. Julia's entitlement to the Rose Bay home would be limited to residence therein as long as she wished, upon the conditions expressed in the deceased's Will. The question is therefore whether s. 18A operates to confer validity on the Codicil notwithstanding that its execution did not comply with the formalities required by s. 7 of the Act. It is convenient, at this point to set out the Codicil as it was when its execution was interrupted. It was as follows:-

" THIS IS A THIRD CODICIL TO THE LAST WILL AND TESTAMENT of me GEORGE ANGELOS HATSATOURIS of 59 Pulteney Street, Taree in the State of New South Wales, Company Director which said Will and said Codicils are dated respectively 20th day of July, One thousand nine hundred and ninety five, 7th day of February, One thousand nine hundred and ninety seven and 20th day of May, One thousand nine hundred and ninety seven.
1. I GIVE DEVISE AND BEQUEATH my residential property known as 82 Onslow Street, Roses Bay to my daughter JULIE FLEETWOOD for her own use and benefit absolutely.
2. I CONFIRM in all other respects my said Will and said Codicils previously referred to.


GH IN WITNESS whereof I have hereunto set my hand and signed my name to this my third Codicil this 16th day of December. One thousand nine hundred and ninety seven. ( PLEASE DATE )

SIGNED by the said GEORGE EVANGELOS )
HATSATOURIS as and for a Third Codicil to )
his last Will and Testament in the presence of us)
both being present at the same time who at his ) ( Signature of deceased
illegible )
request and in his sight and presence of each ) GEH
other have hereunto set our hands as witnesses)
SIGNATURE OF SIGNATURE OF

ADULT WINTESS X ADULT WITNESS X

NAME (IN FULL) X NAME (IN FULL) X

ADDRESS X ADDRESS X

OCCUPATION X OCCUPATION X

55    It is to be remembered that this document was signed by the deceased in the presence of Mr Chalmers and Mr Cooney and that the signing took place after the deceased had read and signed the Statement of Reasons, referred to above, which had also been signed, in his presence, by Messrs. Chalmers and Cooney as witnesses. Mr Chalmers, also, gave evidence that the deceased had, at Mr Chalmers' request, placed his initials at the left hand edge of the document adjacent to the date, in order to indicate that the dating had taken place at the time of signing.

56    In the circumstances I am quite satisfied that the Third Codicil is, within the meaning of s. 18A, "a document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act". The question is, however, whether I am "satisfied that the deceased … intended the document to constitute an amendment of (his) Will".

57 In determining whether I am so satisfied, I may have regard to the matters set out in s. 18A(2). It may be said, at the outset, that so far as the document itself is concerned it is quite plainly in the form of a testamentary instrument. It was prepared by the deceased's solicitor for the purpose of its becoming, upon its due execution, the third Codicil to his last Will and Testament. In itself it bespeaks testamentary intention.

58    Moreover, it is quite clear that the document was brought into existence as a result of specific instructions given by the deceased to his solicitor that he wished to have it prepared so that he could leave the Rose Bay home to Julia absolutely. In giving these instructions he was reverting to an intention previously held in August 1997 but abandoned in September 1997, the previous Codicil effecting the same result having been duly executed in the former month and destroyed, animo revocandi, in the latter.

59    After the September revocation, the deceased clearly changed his mind again, as evidenced by his conversation with Julia referred to above, in which notes of his reasons for providing her with the property were taken at his dictation and subsequently transformed by Mr Chalmers into the Statement executed on 16 December.

60    So far as the events of 16 December are concerned they were, in my view, the culmination of his firm decision to alter his Will in Julia's favour, which decision had been made as early as October, when he had received the Third Codicil from Mr Davies. He had had difficulties in organising its execution, to which I have already made reference. When these difficulties had been surmounted by Julia's obtaining the services of Mr Chalmers and Mr Cooney. I am satisfied that he approached the execution of the Codicil, which he had retained in his possession, with the clear intention of conferring the additional benefit on Julia, notwithstanding that that would prevent the equal distribution of his property amongst his children. The Statement made this intention clear and, indeed, contemplated that there could be a dispute later between the children.

61    In my view, he signed the third Codicil, having read and considered the Statement which he also signed and which was witnessed by Mr Chalmers and Mr Cooney. All that remained to perfect the Third Codicil as a testamentary document complying with "the formal requirements of this Act" was the completion of the attestation by Messrs. Chalmers and Cooney. The interruption of these final formalities by the arrival of the matron was as unexpected on the part of the deceased as it was unintended.

62    At the moment he signed the third Codicil the deceased had done everything in his power to give effect to it as a testamentary document. I am quite satisfied that, at that point, the deceased "intended the document to constitute an amendment of" his Will.

63 On behalf of the defendants it is submitted that s. 18A does not apply to the signing by the deceased of the third Codicil document. The submission is based upon evidence indicating that the deceased was aware that a testamentary document such as a Will or Codicil required signature in the presence of two witnesses, who should also sign the document in his presence. His prior experience with the making of Wills and Codicils, together with the letter of instruction from his solicitor would have informed him that attestation by two witnesses was a normal requirement for the making of a valid Will or Codicil. Accordingly, it is submitted, the deceased could not have intended that the third Codicil be his Will, in the absence of proper attestation.

64    I do not accept this submission. I am satisfied that, at the time he signed the document, the deceased fully intended that it should constitute an amendment to his Will. All of the extrinsic evidence points to his having that intention up to the instant when completion of formalities was taken out of the hands of himself and the witnesses. As I have indicated, I think it likely that, thereafter, he had doubts as to whether he had given effect to that intention. Also to avoid unpleasantness he chose to say on a number of occasions, that he had not signed the document. Neither of these two matters, in my view, preclude a finding that when he signed the Third Codicil, he did so animo testandi.

65    It is important to bear in mind that what was said by members of the Court of Appeal in The Estate of Masters (Deceased) (1994) 33 NSWLR 446. Thus Kirby P (at 452) said:

"..by the requirement that the document which, by definition embodies the testamentary intentions of a deceased person, should be described as constituting "his or her Will", the legislature plainly drew a distinction between those documents of testamentary intentions which constituted the deceased's will and those which did not. I regard the distinction thus made as one between a generalised homily as to testamentary intentions…and a document which, although falling short on formalities, sufficiently evidences the fact that by it the deceased intended to govern the disposition of his or her property after death.
… A too stringent requirement of proof that a propounded document, otherwise clearly embodying the testamentary intentions of a deceased person, constituted his or her will would undo the reform proposed by the Law Reform Commission and accepted by parliament."
(See also per Mahoney JA at 462, where his Honour said that the benefits of the change (effected by s. 18A) "should not be withheld by requiring too rigid a manner of proof that what was put in a document should have legal effect".)

66 I am satisfied that the deceased's knowledge of the normal requirements for the execution of a Will or Codicil does not prevent the application of s. 18A to the document of 16 December 1997.

67    The remaining issues can be subsumed under the defendants' proposition that the deceased's "intention" in s. 18A is an ambulatory concept. This is said to result, inter alia, from the permission accorded by ss 18A(2) for the Court to have regard to a wide range of evidence relating to the testamentary intention of the deceased, including statements made by him or her. It is asserted that the testamentary intention, contemplated by s. 18A, is not to be confined to the time of execution of the purported testamentary document. An intention manifested at that time can cease to exist, with the result that from the time of such cesser, the section no longer applies and the document loses its testamentary status. Put another way, a person who has brought into existence a s. 18A document, by having executed it with the necessary testamentary intention, can subsequently deprive it of its testamentary significance by simply changing his or her mind as to its constituting his or her will or codicil. Such change of mind, it is said, can be effective notwithstanding a failure to comply with the requirements of the Act relating to the amendment or revocation of testamentary instruments.

68 I am unable to accept this proposition. In my opinion once a person evinces a concluded intention that a document embodying his testamentary intentions shall constitute his will or an amendment to it, then the document becomes relevantly a will or codicil and is subjected to the other provisions of the Act. In this regard, the definition of "Will" in s. 3 of the Act is clearly wide enough to cover, in the phrase "any other testamentary disposition", a document rendered testamentary by force of s. 18A. Such being the case, in my opinion, a s. 18A will, leaving aside the effect of ss 15 and 15A of the Act, can be revoked only in the manner contemplated by s. 17 or by a revocatory document contemplated by s. 18A.

69 In my view, once the Third Codicil came into effect, pursuant to s. 18A, by the deceased's execution of it animo testandi, it could not be revoked except by the execution by the deceased of the fourth Codicil in compliance with the formalities required by s. 7 of the Act or by his executing it in a manner which would bring s. 18A into operation. As neither of these events occurred before his death, I am satisfied that the Third Codicil took effect when he died.

70    In reaching this conclusion I have not ignored the case of Permanent Trustee Co. Ltd v Milton (1995) 39 NSWLR 330. That case is authority for the proposition that a person can bring into existence a testamentary document pursuant to s. 18A where the testamentary intention is limited to expire at sometime in the future or upon the happening of some future event. In that case Hodgson J held that the testamentary document was intended by the deceased only to operate until such time in the future when its place would be taken by a properly drawn and executed will. The intention was described as "stop gap". This is clearly not such a case. I should add that the reasons I have already given would require that I respectfully differ from his Honour's obiter statement that a s. 18A document may be revoked by a manifestation of an intention to revoke it in toto, such intention not being effected by a document operative under the Act.

71    If I be wrong in this view of the law I would, nevertheless reach the same conclusion in this case, on the facts. For reasons that I have already advanced I have decided, on the balance of probabilities, that the deceased did not depart from his intention of devising the Rose Bay home to Julia. He knew that he had executed the Third Codicil, although he may have had doubts as to whether it was effective. It would have appeared to him that the defendants were accepting that he had not signed it. I consider that he preferred to leave it that way. He was never asked to sign the revoking fourth Codicil and, again, I think he was happy for that situation to remain the way it was. The circumstances do not satisfy me that he, relevantly, had a change of mind. To the last he intended that Julia should have the Rose Bay home.

72 In these circumstances, I have decided that the Third Codicil is a valid testamentary document pursuant to s. 18A of the Act.

73    I have not heard any argument on costs or received any submissions as to the form of the orders that I should make. Accordingly, I stand this matter over for seven days in order that the parties may, in the interim, consider these questions and bring in Short Minutes.

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Last Modified: 04/04/2001