Kedzier v Postle

[2002] NSWSC 875

CITATION:	Kedzier v Postle [2002] NSWSC 875
CURRENT JURISDICTION:	Probate Division
FILE NUMBER(S):	SC 119885/01
HEARING DATE(S):	09/09/02
JUDGMENT DATE:	30 September 2002
PARTIES :	Ruth Kedzier v Freda Postle (The Estate of Isadore Joseph Horne)
JUDGMENT OF:	Acting Justice Macready at 1

COUNSEL :	Mr M. Willmott for plaintiff Mr F. Kunc for defendant
SOLICITORS:	Teece Hodgson & Ward for plaintiff Pryor Tzannes & Wallis
CATCHWORDS:	Succession: Wills Probate & Administration. Application under s18A of the Wills Probate & Administration Act. Codicil signed by the deceased but not witnessed. Testator believed a codicil needed to be witnessed. In the circumstances codicil not admitted to probate.
LEGISLATION CITED:	Legislation s18A Wills Probate & Administration Act
CASES CITED:	Estate of Masters (1994) 33 NSWLR 446 Estate of Parkinson (1988) 143 LSJS 336
DECISION:	Paragraph 39

- 1 -

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

Acting Justice Macready

Monday 30 September 2002

119885/2001 Ruth Kedzier v Freda Postle – The Estate of Isadore Joseph Horne (Also known as Joseph Horne)

JUDGMENT

1 His Honour: This is an application made under section 18A of the Wills Probate and Administration Act in respect of a codicil made by the late Isadore Joseph Horne on 9 July 2000. The deceased was also known as Joseph Horne. In her summons the plaintiff seeks a declaration that the document dated 9 July 2000 signed by the deceased, but not witnessed, constituted a codicil to his last will. The plaintiff sought a grant of probate of the will and the codicil to her with leave reserved to the defendant, the first named executor in the will, to come in and prove the will.

2 The deceased made his last will in February 1997. Under that will he appointed his two daughters, the plaintiff and the defendant, as executors and trustees. After eight legacies of $20,000 to his various grandchildren the deceased left the whole of his estate to be shared equally between his two daughters.

3 The document of 9 July 2000 is on a piece of note paper and has at the top right hand corner the deceased's address namely 141 Victoria Road, Bellevue Hill 2023. It is headed "Codicil dated 9 7 2000”. The substance of the document is as follows: --

”This codicil is related to Isadore Joseph Horne owners & residence of 141 Victoria Road Bellevue Hill 2023, I hereby bequeath the said land and buildings of 141 Victoria Road Bellevue Hill 2023 to Ruth Kedzier of 30 Maitland Ave Kingsford 2032 for her own use.
Furthermore upon transfer the said property to Ruth Kedzier: Freda Postle of 7 Eastern Ave, Kensington transfer the same sum of monies equivalent valuation of land and buildings as described as her share of my estate.”

4 There then follows the word “signed” and next to that “J Horne”. There is no doubt that the document is in the handwriting of the deceased.

5 The defendant filed an amended cross-claim on 15 August 2002. That cross-claim only falls for consideration if in fact the court admits the document of 9 July 2000 to probate. In respect of that cross-claim the relief in paragraph 1 is now no longer pressed. The parties are agreed on the way the will will be administered if the codicil is admitted into probate. Effectively they propose to administer the will on the basis that the plaintiff would take the house as part of her share of residue. Claim No 2 in the cross-claim which deals with the determination of the value of the house is consented to by the cross defendant. In relation to claim No 3 a question will arise as to the burden of any capital gains tax if a decision is not given before 9 November 2002. The plaintiff also consents to the relief sought in paragraphs 4 and 5 of the cross claim.

The background history to the claim.

6 The deceased was born in 1911. He was married and had two children. They are the plaintiff and the defendant. The family home was at 141 Victoria Road, Bellevue Hill. There is little evidence of the deceased’s background life but it is apparent that over the last years of his life his activities and interests were connected with his numerous investments. His estate was valued at $5,436,765.92 of which $2 million was the value placed upon his residence at Bellevue Hill.

7 The first will in evidence before me made by the deceased was one which was executed on 22 February 1968. It was drawn by a solicitor and executed before the solicitor and a secretary. It became the basis for the drafting by the deceased of numerous other wills for himself and members of his family. In fact that is the only will in this case which has been drawn by a solicitor. On 1 December 1987 the deceased made a will which he wrote out himself which substantially reproduced the terms of the 1968 will. It was made at a time when the deceased also prepared a will for his wife.

8 On 27 January 1992 Esther Horne the deceased’s wife died. In the year 1999 the deceased suffered a number of heart attacks and in July was admitted to the Prince of Wales Hospital. Prior to that, in February 1997, the deceased executed his last will to which I have already referred. In August 1999 the deceased discharged himself from the Prince of Wales Hospital and he was then admitted to the Wolper Private Hospital. In September 1999 the deceased left hospital and went to live with the defendant and her husband at their home at Kensington.

9 In April 2000 the deceased left the defendant's home following a disagreement that he had with the defendant's husband. The disagreement seems to have been about the extent of the demands by the deceased upon his daughter. At the time the plaintiff collected the deceased from the defendant's home and took him to his own home at Bellevue Hill. He made statements to the effect that he did not want Ron, the husband of the defendant, to ever live in his house.

10 The deceased remained living by himself at his home until 2 June when the plaintiff took him to St Vincents Hospital. On that occasion when he was in hospital the deceased had the following discussion with the plaintiff.

“I don't want Ron to live in my house. I want you to have the house. Freda will get the value of the house in shares. It is also sensible for you to live there because three of your children are in the area whereas Freda's children already live near her. The shares are more valuable than the house, but I think it makes more sense to do it this way. I will discuss it with Freda.”

11 The plaintiff responded in the following terms: --

“Dad, I don't want to discus it. Whatever you do, just keep it even.”

12 While he was in hospital the deceased was visited by his granddaughter Dana Kedzier and her partner Scott Hurst. They gave evidence of a conversation they had with the deceased in which he said that he wanted Dana's mother, the plaintiff, to have the house. Dana pointed out the need for there to be equality and asked if the deceased wanted her to arrange a lawyer. The deceased agreed and Dana obtained a quote for the lawyer’s services but apparently the deceased did not contact him.

13 On 21 June 2000 the deceased was discharged from St Vincents Hospital and returned to his home at Bellevue Hill. On the 30 June he moved back to live with the plaintiff at her home at Kingsford.

14 The document in question was dated 9 July 2000 and at some stage after it was executed there was a conversation between the plaintiff and the deceased about the will. The conversation was in the following terms: --

“I have brought my will from home. Can I show it to you?”

15 The plaintiff responded: --

“I am not interested. What you put in it is your business. I don't want to look at it.”

16 The deceased responded: --

“Where will I put it?’

17 To which the plaintiff replied: --

“In the document box.”

18 The document box was a box which the plaintiff had purchased for the deceased so that he could organise his papers and put them in manila folders in the box.

19 At the conclusion of this discussion the deceased then placed the folded will vertically into the back of the box and it remained there until he died. On 20 October 2000 the deceased was again admitted to hospital and on the way to hospital he signed a power of attorney which had been prepared by a solicitor. The deceased died on 9 November 2000.

20 On the Tuesday after his funeral the plaintiff and the defendant met and the plaintiff took the will out of the box. When she opened it up she found folded inside the document of 9 July 2000. This was the first time that she had seen the document.

The relevant legal principles.

21 Section 18A of the Wills Probate and Administration Act is in the following form: --

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.

22 The dominant test for the application of the dispensing power under the section is now well established in New South Wales. See Estate of Masters (1994) 33 NSWLR 446. It has three steps:

(1) There must be a document.
(2) The document must embody the testamentary intentions of the deceased.
(3) The evidence must be sufficient to satisfy the Court that the testator intended the document, without more, to operate immediately as his or her will.

23 In the present case the only matter that is in issue is the third matter mentioned above.

The plaintiff's contentions.

24 The plaintiff advanced two strands of evidence in support of her application. The first related to the various conversations prior to the creation of the codicil. In the history I have set out above I refer to the main conversations that are statements about the dissatisfaction that the deceased felt with the defendant's husband and his wish to not have him live in the house. There are also the statements to his granddaughter and her partner indicating an intention to leave the house to the plaintiff. There is also some other evidence of the plaintiff's when she mentions that on a number of occasions the deceased tried to engage her in conversation about his will. Her response was to tell him to do what he wished to do and to just make sure it was fifty fifty. At times she told her father to talk to a lawyer and his response was that there was nothing wrong with his will and he said, “I don't need a lawyer.”

25 The second strand of the plaintiff's case are the circumstances in which the codicil was placed inside the will. I have set out above the conversation which occurred at the time of the will being placed in the document box. There was no mention of the document of 9 July 2000 which was carefully folded out of sight inside the will. Although there was some dispute between the plaintiff and the defendant as to the location of the box at the time the will was retrieved, this is of no consequence. There is no doubt on the evidence that the will was placed in the box and it remained there until after his death. The box apparently was in his room on the ground floor at the time the will was placed in the box.

26 The plaintiff in submissions suggested that what occurred was similar to a situation which has occurred in a number of cases, namely, that the testator has given the document into the custody of some other person as representing his wishes. See for example in Estate of Masters where the deceased said, "This is what I want done, your (sic) my best friend and that is what is to happen to my estate when I die”. It is certainly arguable that when the deceased was referring to his will he was in fact referring to the documents which he held in his hand and then put in the box. On the evidence that was the will and the document of 9 July 2000.

The defendant's contentions.

27 A primary contention of the defendant was the fact that the document was not witnessed. Is perfectly clear from the history of the deceased's home drawn wills and codicils for him and his family members that he knew the codicil had to be witnessed. Although the deceased had been in hospital and did not wish to involve lawyers there would have been adequate opportunity for him to have had the codicil witnessed. On a number of occasions about this time he took a taxi from the plaintiff's home to his home in Bellevue Hill. In addition he would accompany the plaintiff when she attended to his banking. The execution of the power of attorney on 20 October 2000 is also an illustration of how the deceased could have had his will witnessed. In the will which he drafted for his daughter Freda the deceased illustrated the requirements for attestation referring to “John Blank” of the “Commonwealth Bank” as one of the witnesses to the will.

28 Another important part of the defendant’s submissions addressed the form of the codicil. The earliest will in evidence is Exhibit 1 which was a will drafted by a solicitor and executed in 1968. The next will, Exhibit 2, was the will in the deceased’s handwriting executed on 1 December 1987. This will and the deceased’s wife’s will of the same date were substantially copies in the same format as the will prepared by the solicitor. The format was copied in a number of different respects. The first was the fact that the paper was lined and ruled in the same way as was the will prepared by the solicitor. A number of clauses giving trustees’ powers were copied verbatim from the solicitor’s will. The underlining at the commencement of the paragraphs and certain points within paragraphs were also copied from the solicitor’s will. Of importance was the fact that the attestation clause was an identical copy.

29 There was a codicil executed by the deceased’s wife on 10 December 1991. That was also in the deceased’s handwriting. Although not as full the layout of the attestation clause followed the attestation clause in the will drawn by the solicitor. The defendant gave evidence that after the death of his wife the deceased showed the defendant the codicil which he had prepared and mentioned that he had to arrange for the two witnesses because that was what was needed for a will or codicil.

30 After the death of his wife the deceased apparently raised with the defendant the terms of her will and he drafted for her a new will in his own handwriting. It clearly was done as a draft as it was on the back of paper that had printed matter on it. It also copied all the formal matters including the attestation clause. The deceased when giving it to her indicated that she should have it signed and witnessed by two people.

31 It is apparent that there were some documents drawn by the deceased which indicated the origins of the document of 9 July 2000. Page 13 of Exhibit “C” is a calculation as at 14 June 2000 in the deceased’s handwriting. In that document the deceased is adding up the value of his shares and valuing the land in an effort to perhaps achieve equality between his daughters. There was another document which was disclosed by the plaintiff in her application for probate which she has annexed to her affidavit of 27 November 2001. The document is on a news release by Woodside Australian Energy. In the blank part of the document below the typewriting the deceased has in his own handwriting, which is very shaky, drawn a document which is somewhat similar to the one in July. The piece of paper on which he was writing, by its date, means the writing occurred after 17 May 2000. The writing shows evidence that it is a draft as there are corrections throughout.

32 The defendant submitted that the document of 9 July 2000 was nothing more than a further draft which had not been put into effect. It is on a piece of paper no doubt taken from a writing pad and shows evidence of corrections as the deceased wrote it.

Did the deceased intend the document, without more, to operate as a codicil to his will?

33 It is important to note in this case that there was no reference to the codicil by the deceased after it was prepared by him. The conversations which occurred prior to 9 July 2000 were merely an indication of an intention by the testator to make a change to his testamentary dispositions in a manner which he was drafting. In the Estate of Parkinson (1988) 143 LSJS 336 White J. said: --

“The law books are full of cases where intending testator’s laws have shown their irresolution and changed their minds at the last minute or altered their wills by interlineations in the course of execution. It does not require much professional or bench experience to realise that intending testators do change their minds between the time of “finally" giving instructions and the time of ultimate execution of their wills."

34 There is thus nothing in the early conversations which is sufficient to demonstrate the required intention. All those conversations do is set the scene for what occurred when the documents were placed in the document box.

35 I have earlier referred to the fact that the document at the end does not have an attestation clause and includes the words ”signed J. Horne". There is no doubt that those words were written by the deceased in his own handwriting as is the rest of the document and there must be some doubt as to whether he meant to write it as his signature. In his wife’s codicil he printed the name of his wife where she had to sign it. In the will which he drafted for his daughter the defendant wrote in his own hand the words “Freda Postle” opposite the attestation clause. It is not suggested that he was trying to sign for her but merely indicating where she was to sign. The document annexed to the affidavit of the plaintiff of 27 November 2001 also has the words “signed J. Horne".

36 Where there is no signature on a will it is always difficult for the court to be persuaded that the required finality of intention exists. In the present case the writing of the deceased’s name on the document may only be a drafting indication of where it is to be signed. However this discounts the use of the word “signed” and the fact that on earlier occasions he wrote names without the word “signed” in order to show where the document should be signed.

37 This case is a good example of a testator who knew some of the requirements of attestation and a proper signature. He took care on a number of prior occasions to ensure that wills were witnessed. However, the evidence also demonstrated that he was accustomed to having the witnesses sign later after the person for whom he had drafted the document had signed it. One of these was his sister’s will in 1990. The witness who was approached actually refused to witness the will as he had not seen her execute it. Later the deceased convinced others to sign it. The evidence would thus suggest that the deceased had signed the 9 July 2000 document but thought that for it to be effective it still needed to be signed by two witnesses. Medical evidence demonstrated that, although frail, he was sharp and alert until he died.

38 One must look carefully at what happened when the will with the codicil tucked inside it was placed into his document box. This was the time, on the plaintiff’s case, that the deceased evidenced the relevant intention. The testator in the conversation he had with the plaintiff did not refer to his codicil and, of importance, he appears in that conversation not to have referred to any change in his will. In the circumstances his statements on their face only apply to the will and not to the document which appears to be a draft inside the will. His daughter had rebuffed his attempts to talk about the will. The deceased thereafter kept custody of the will to himself in that it was in his document box. He did not give it to someone else for safekeeping. The rebuff contained in the conversation with his daughter when he placed it in the box makes his actions just as consistent with further consideration before completion of execution which he believed required attestation by two witnesses.

39 In the circumstances of this case I am not satisfied that the deceased intended the document of 9 July 2000 to operate as a codicil to his will. Accordingly, I propose not to make the declaration sought in paragraph 1 of the summons and to admit only the will to probate. I direct the parties to bring in short minutes which can include orders for the dismissal of the cross claim.

Last Modified: 10/03/2002