MacDonald v MacDonald

[2012] NSWSC 1376

Supreme Court

New South Wales

Medium Neutral Citation:	MacDonald v MacDonald [2012] NSWSC 1376
Hearing dates:	7 November 2012
Decision date:	07 November 2012
Jurisdiction:	Equity Division - Probate List
Before:	White J
Decision:	Refer to para [20] of judgment.
Catchwords:	WILLS, PROBATE AND ADMINISTRATION - informal wills - whether suicide note was intended to operate as deceased's will
Legislation Cited:	Succession Act 2006 (NSW)
Cases Cited:	In the Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446
Category:	Principal judgment
Parties:	Rosemary Therese MacDonald (Plaintiff) Amy Louise MacDonald (Defendant)
Representation:	Counsel: T Rogers (Plaintiff) Solicitors: Kacir Safi & Halligan (Plaintiff) Andrew Sheeley & Associates (Defendant)
File Number(s):	2011/353053

Judgment

1. HIS HONOUR: This is an application for the grant of letters of administration of the estate of the late Bradbury John MacDonald, with a will, being an informal document, annexed to the grant.

1. The plaintiff seeks a determination under s 8 of the Succession Act 2006 (NSW) that a suicide note, or relevant parts of it, forms the deceased's will.

1. The deceased died by his own hand on 30 September 2010, aged only 24. He had executed a will on 11 March 2008 by which he left his estate in equal shares to his mother and father.

1. The plaintiff is the deceased's mother. The deceased married the defendant, Amy Louise MacDonald, then known as Amy Louise Lloyd, on 8 November 2008. The marriage revoked the will.

1. The plaintiff's affidavit of 1 November 2011 has been read, save for certain paragraphs. Paragraph 8 that is not read contains evidence that is arguably material to the determination of the issues. The effect of paragraph 8 of the plaintiff's affidavit is that in 2010 the deceased made statements to the plaintiff which indicate that he considered that his will of 2008 was still operative. He asked his mother to keep it safe and indicated that it was important.

1. The 2008 will appointed the plaintiff as the deceased's executor, and his father as his executor only if the plaintiff was unable or unwilling to act.

1. The note that was found on the morning of 13 September 2010 was typed. It was clearly prepared by the deceased. It is unnecessary to refer to all of it. Under a heading "Instructions for distribution of my goods", the deceased wrote as follows:

"Mum, you are the beneficiary of my estate. I have boxed everything at Julianne's house and labeled where I believe it should go. If anything is missing, it has been donated or lost years ago. I ask that part of my super annuation payout go to settling my debts with Amy. She can advise on the amount required. Any possessions that Amy currently holds I have given up claim on. Please follow my wishes.

Amy, as you are legally my wife, you have a claim to dispute my estate. I ask that you don't dispute my will and only claim what is needed to settle our joint debts and what you feel I owe you. There is a box of possessions that I have set aside for you. You can do with them as you wish, but if you don't wish to keep my wedding ring, I ask that you pass it on [to] Ben. Please follow my wishes.

All legal documents and possessions will be found at Julianne's place; [x xxxxxxxxx xx, xxxxxxxxxx]. The keys are enclosed and the alarm pin is [xxxxx]."

1. The fact that the document is a suicide note does not mean that it cannot also be admitted as an informal testamentary document under s 8 of the Succession Act. To be admitted to probate, the document must purport to express the testamentary intentions of the deceased and the deceased must have intended it to form his will. The document must not only set out what the deceased wished or intended to happen to his property after his death, but he must have intended that the document should cause that to come to pass. That is, he should have intended that the document operate as a will (In the Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 at 449, 452).

1. If by the words in question the deceased was only expressing the mistaken belief that the plaintiff was the beneficiary of his estate under a previous will, then the Court could not be satisfied that he intended the document to form his will.

1. Whether or not I can have regard to the paragraph of the affidavit which was not read, I do not conclude that all that the deceased was doing in this part of the note was expressing his mistaken belief as to who would inherit his estate, and then making requests in relation to the dealings with his assets.

1. Even if I should have regard to the paragraph of the plaintiff's affidavit which was not read, which I think is doubtful, it would still be the case that the deceased was intending by this note to leave his estate to the plaintiff.

1. Under the 2008 will, the plaintiff was not the sole beneficiary of the deceased's estate, but only one of two beneficiaries. In saying, "Mum, you are the beneficiary of my estate", I infer the deceased intended that the plaintiff by this document should be the beneficiary of the estate. The same paragraph includes precatory words, namely the last sentence of that paragraph, which is a request, I think, to the plaintiff to follow the wishes expressed in that paragraph. That does not affect the dispositive nature of the first sentence of the paragraph.

1. For these reasons, I am satisfied that the deceased intended the paragraphs of the suicide note under the heading "Instructions for distribution of my goods" to form his will. There will be orders accordingly.

1. The plaintiff and the deceased's wife have reached an agreement in relation to the estate. The deceased's wife is the party with an interest in the question as to whether or not the document should be admitted as an informal testamentary instrument. She does not oppose the orders sought.

1. The plaintiff and the deceased's wife have reached an agreement as to how the estate should be dealt with, whether the informal document is admitted to probate, or whether it is found that the estate should pass on intestacy. If the assets were to pass on intestacy, then the deceased's wife would be entitled to them.

1. I am asked to approve the releases that are contained in the settlement deed in respect of any claim that might otherwise be made for a family provision order under the Succession Act. So far as it appears, the only person who could make such an application would be the deceased's wife.

1. The estate is a small one. There are financial advantages to the defendant in the settlement that has been agreed on, and I am satisfied that it is prudent for her to make the release. I am satisfied that the provisions of the agreement are fair and reasonable.

1. Litigation for a family provision order in relation to the deceased's estate would be a great evil. The circumstances of the deceased's death must have been the cause of great distress for all concerned, and it would not be in anyone's interest for a claim for a family provision order to be made. I think the release from the potential stress of litigation is itself a significant factor on the application for approval. It appears from clause 1 of the agreement that the plaintiff's wife has a solicitor or counsel.

1. For these reasons I will grant the approval under s 95 of the Succession Act that is sought.

1. I make the following declaration and orders:

1.   Declare that the deceased, Bradley John MacDonald, intended the following part of the document, which is annexure B to the plaintiff's affidavit of 1 November 2011, to form his will, namely the heading "Instructions for distribution of my goods" and the three paragraphs following that heading.

2.   Order that letters of administration of the estate of the deceased with the said will annexed be granted to the plaintiff.

3.   Remit the proceedings to the Registrar to complete the grant.

4. Order pursuant to s 95 of the Succession Act 2006 (NSW) that the agreement entitled Deed of Settlement and Release of Indemnity dated 2 November 2012 that provides that the plaintiff and the defendant release any right either might have to make an application under the Succession Act 2006 for herself in relation to the deceased's estate or notional estate be approved.

5.   Order that the costs of both parties be paid out of the estate.

Decision last updated: 14 November 2012