Lechelt, Gisela Hedwig, In the Will of
[2002] VSC 332
•8 August 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
In the matter of the Will of GISELA HEDWIG LECHELT deceased
| Application by: HERBERT PHILIPS |
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JUDGE: | Nettle J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August 2002 | |
DATE OF JUDGMENT: | 8 August 2002 | |
CASE MAY BE CITED AS: | In the Will of Gisela Hedwig Lechelt | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 332 | |
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Probate – will and unattested document – doctrine of incorporation by reference – Wills Act 1997, s. 9.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M.G.R. Gronow | Dunemann Sutherland Pty |
HIS HONOUR:
This is an application made by originating motion dated 5 July 2002 for grant of probate of the will of Gisela Hedwig Lechelt, deceased, and a list dated 10 September 2001. There appear to be no difficulties with the will itself, but a problem has arisen concerning the list.
Affidavit material filed in support of the application establishes to my satisfaction that immediately after the will was executed on 10 September 2001 the deceased placed it in an envelope together with another sealed envelope, and that the outer envelope was then sealed and was taken to the deceased's solicitors' offices and there kept in safe keeping until after death of the deceased. Subsequently, it was opened by solicitors, who found the will inside together with the second sealed envelope, and inside that second envelope it was found that the deceased had placed two handwritten documents, respectively marked as Exhibits C and D before me.
The first document (Exhibit C) reads as follows:
“Items of personal Nature left in memorandum
1.To Gabrielle Curwood – my gold and costume jewellery eg. rings (except my Father’s wedding ring, to be returned to him or family), bracelets, necklaces, brooches, watch, etc. Coalport vase and plate, Royal Derby butter plate and knife (from my 21st).
2.To Julie Hall – my Noritake dinner set (12) plus accessories, silver cutlery for (12) plus accessories, coffee pot and milk jug from Oma Julie (Father’s mother) crystal milk jug and sugar bowl, small crystal bowl, one brown wine glass with Lübeck motive, tablecloths please choose.
3.To Susan Nouwen – my crystal sweet set (9 small bowls 1 large) (the chips can be fixed, check), the glass milk jug and sugar basin from Oma Julie (Father’s mother) crystal cake stand and jug, 6 Royal Albert cups and saucers and plates, one brown wine glass Lübeck motive, oval silver dish (from Oma Julie), tablecloths please choose.
4.To Elfie Gee – my Tulip dinner set (4) and stainless steel cutlery (7) (with my name on it (Gisela) wedding present from parents) plus accessories, tablecloths please choose, silver candlestick, the China plate (from Muth, from Germany) on the buffet.
5.To my Philip’s family – my car (not to be sold).
To my brother – my camera, the wood carved goat and Lübeck ornaments.
6.To my family and friends fotos in frames and albums they want.
7.To my family and friends books, paperbacks, Pilcher, Archer, Bradf etc.
8.To my family and friends, old records.
9.Miscellaneous items: clothes, shoes, bags etc for family and friends to choose, otherwise to the Salvation Army.
10.Ornaments, vases, dishes etc statues of cats – to my cat lovers.
Endorsed by myself: Gisela Lechelt
This is the Exhibit marked ‘C’ now produced and shown to Herbert Philips at the time of swearing his Affidavit on the 25th day of June 2002.
Before me: ________________
Jeffrey Lewis Dunemann
128 High Street Road, Ashwood
A current practitioner within the
meaning of the Legal Practice Act 1996”
The second document (Exhibit D) reads as follows:
“National Investment Trust A/c Name Gisela Lechelt
Account NR 200 341 20
To be distributed as follows: $75,000.00
Andrea & Sebastian Nubner
Nettlebeck Street 12
23566 Lübeck Germany$20,000.00
Julie & Timothy Hall
$10,000.00
Susan & Peter Nouwen
$10,000.00
David Schmidhle, Adele Jakenay
$5,000.00
Stephen & Ellise Schmidhle
$5,000.00
Stephen & Sharon Andrews
$5,000.00
Paula Gee
$5,000.00
Michelle & Mark Nanrahan
$5,000.00
Mark & Penny Gee
$5,000.00
Marc Lelia
$5,000.00
$75,000.00
Gisele Lechelt
This is the Exhibit marked ‘D’ now produced and shown to Herbert Philips at the time of swearing his Affidavit on the 25th day of June 2002.
Before me: ________________
Jeffrey Lewis Dunemann
128 High Street Road, Ashwood
A current practitioner within the
meaning of the Legal Practice Act 1996”
The will does not in terms make any reference to Exhibit D or, as I construe it, to any other document or provision which might have been thought by the testatrix to amount to the contents of Exhibit D, but the will does provide that:
“3.I give and bequeath those items of a personal nature which I have listed in a memorandum endorsed by me and left with my solicitor to those persons listed on such memorandum.
4.I give devise and bequeath all the rest and residue of my real and personal estate whatsoever and wheresoever situate unto my trustee upon trust to sell call in and convert into money such parts thereof that shall not consist of money with power to postpone such sale, calling in or conversion until such time as and in such manner as my trustee in his absolute discretion deems fit and to stand possessed of the monies to be produced by such sale, calling in and conversion and my ready money upon the following trusts :-
(a)to pay thereout my just debts funeral and testamentary expenses and all duties payable by reason of my death in respect of my estate;
(b)to hold the balance then remaining for the sole use and benefit of the said herbert philips.”
Mr Gronow of counsel, who appears for the executor of the estate, has submitted to me that Exhibit C is the memorandum referred to in cl. 3 of the will, and ought be regarded as an unattested document which was incorporated by reference into the will, and he relies in support of that submission upon the decision of Barnard J in The Estate of Mardon[1] and upon the observations made and in Boden, Collins, Phillips and Spark, Wills Probate and Administration Service at paragraph 10,065, as to the doctrine of incorporation by reference. Mr Gronow also referred to two decisions of Martin J in The Estate of John Ryan[2] and In the Will of John Vergers[3], although those latter two cases were to do with a different albeit related doctrine. See too: In the Will of Duncan[4], Re Pepperill[5] and In the Will of Beveridge[6].
[1][1944] P 109 at 112.
[2][1955] VLR 316.
[3][1956] VLR at 94.
[4][1916] VLR 1.
[5][1927] St.R.Qd 154.
[6](1905) 6 SR (NSW) 125.
Having regard to the affidavit material to which I have referred and to the authorities referred to in Mr Gronow's submissions, I consider that the document Exhibit C is the memorandum referred to in cl. 3 of the will and thus is a document which was intended by the testatrix to be, and was incorporated into the will by the reference to it in cl. 3 of the will.
There remains to be considered the document Exhibit D. I have already noted that there is no reference, express or otherwise, in the terms of the will to Exhibit D or to anything like its contents. That being so, I do not consider that it is open to allow for the incorporation of the document under the doctrine of incorporation by reference. Nevertheless, under s. 9 of the Wills Act 1997, it would be open to me to admit Exhibit D to probate as part of the will if, to put it shortly, I were satisfied that the deceased intended it to be so incorporated.
Inasmuch as the material put before me establishes that Exhibit D was enclosed by the testatrix in the second envelope which was placed with the will in the first envelope, and left with her solicitors, it might be thought to suggest an intention that the contents of Exhibit D apply in some fashion to the distribution of her estate. But in the absence of a provision in the will referring to or incorporating the document Exhibit D, and in the absence of evidence of circumstances existing at the time of execution that support the existence of an intention that it so operate, I am not satisfied that it was the testatrix's intention that the document Exhibit D be incorporated.
I am a little troubled that the persons who are listed in the document Exhibit D have not been given express notice of the existence of the document or that, if this application is successful, it will result in the exclusion of Exhibit D from the testatrix's testamentary dispositions. I have therefore considered whether I should require that attempts be made to serve those persons and that an opportunity be given to them to be heard before a decision is made. But there are great practical difficulties in adopting that course. First, except in one case, the addresses of the persons are unstated, and whilst enquiries might be made which perhaps would reveal the addresses of some of them, there is no certainty about that and it would entail a considerable degree of expense and delay. Secondly, the amounts which are set out in Exhibit D are of relatively small quantity and it appears to me that the expenses which would be incurred would have the effect of using up most if not all of those sums. Thirdly, and although it is not a complete answer, it is in my view significant that the intention to apply for probate was advertised in The Age newspaper as long ago as December 2001 (as is deposed to in the affidavit of Karen Dannock sworn 5 July 2002), and none of the persons listed in Exhibit D, or indeed anyone else, has come forward to stake a claim.
In the result, the orders I shall make are that, first, the will of the deceased, which is Exhibit B to the affidavit of Herbert Phillips sworn 25 July 2002 in this proceeding, including the handwritten document headed "Items of Personal Nature Left in Memorandum" which is Exhibit C to the affidavit, be admitted to probate as the will of the deceased; and, secondly, the applicant executor's costs of the application be paid out of the deceased estate.
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