McKinney v Campbell

[2003] NSWSC 244

CITATION:	McKinney v Campbell; Estate Campbell [2003] NSWSC 244
HEARING DATE(S):	31/03/03
JUDGMENT DATE:	3 April 2003
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Barrett J
DECISION:	Declaration in plaintiff's favour as to matters in s.13(2)(c) of the Wills, Probate and Administration Act 1898. Defendant's costs to be paid out of plaintiff's share of estate on indemnity basis; otherwise no order as to costs.
CATCHWORDS:	SUCCESSION - wills, probate and administration - the making of a will - where attesting witness is spouse of beneficiary - whether court satisfied that testator knew and approved of gift and that gift made freely and voluntarily - PROCEDURE - costs - where beneficiary succeeds in showing testamentary gift not void although beneficiary's spouse was attesting witness - no case for departing from order required by Supreme Court Rules in relation to plaintiff's costs - costs of persons cited who do not become parties - where their participation did not add to debate on issues before the court
LEGISLATION CITED:	Supreme Court Rules, Part 52A rule 29 Wills, Probate and Administration Act 1898, ss.13(1) and 13(2)(c)
CASES CITED:	Commissioner of Stamp Duties v Pearse (1951) 84 CLR 490 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Miller v Miller; Estate of Miller (2000) 50 NSWLR 81 Tonkiss v Graham; Estate of Thompson [2002] NSWSC 89 Tonkiss v Graham (No 2); Estate of Thompson [2002] NSWSC 1093
PARTIES :	Norma Alice McKinney - Plaintiff Phillip John Campbell - Defendant
FILE NUMBER(S):	SC 119019/02
COUNSEL:	Mr R G H Keller - Plaintiff No appearance - Defendant Mr T Hall - Persons cited
SOLICITORS:	Maurice Buckley C T Poole & Son - Plaintiff Robinson Beale Horton McMinn - Defendant Salmon & Co - Persons cited

- 19 -

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

BARRETT J

THURSDAY, 3 APRIL 2003

119019/02 – NORMA ALICE McKINNEY v PHILLIP JOHN CAMPBELL; ESTATE OF ALICE MARGARET CAMPBELL

JUDGMENT

Background

1 The plaintiff is named as a beneficiary in the will dated 22 April 2000 of her mother, Alice Margaret Campbell, who died on 31 March 2002 aged 92 years. Probate of the will was, on 19 August 2002, granted to Phillip John Campbell, a son of the deceased (and brother of the plaintiff), one of the nominated executors. The plaintiff was named as an executrix but renounced probate.

2 By her summons filed on 15 November 2002, the plaintiff seeks the following declaration and order:

“1. A declaration that:
a) Alice Margaret Campbell knew and approved of the gift of one quarter of the residue of her estate in her will dated 22 April 2000 to the plaintiff; and
b) the gift of one quarter of the residue of her estate to the plaintiff was given or made freely and voluntarily by Alice Margaret Campbell.
2. An order that the gift of one quarter of the residue of the estate to the plaintiff in the will of Alice Margaret Campbell dated 22 April 2000 be distributed according to its terms.”

3 The application is made because one of the attesting witnesses to the will was the plaintiff’s husband. As a result, the testamentary gift to the plaintiff is void by operation of s.13(1) of the Wills, Probate and Administration Act 1898 unless saved by one of the paragraphs of s.13(2). The part of s.13(2) on which the plaintiff relies is s.13(2)(c):

“A beneficial gift given or made by will is not made void by this section if:
…
(c) the Court is satisfied:
(i) that the testator knew and approved of the gift, and
(ii) that the gift was given or made freely and voluntarily by the testator.”

4 What is now s.13(1) of the Wills, Probate and Administration Act, insofar as it deals with the consequences of attestation by the husband or wife of a beneficiary, derives from s.15 of the Wills Act 1837 which was itself an extension of a provision enacted in 1752 by the Act 25 Geo II c.6 reversing the effect of s.5 of the Statute of Frauds which caused to be disregarded attestation of a will of real estate by a beneficiary, such a witness being regarded as not “credible”. The history of these provisions was traced briefly by Dixon J in Commissioner of Stamp Duties v Pearse (1951) 84 CLR 490 and in greater detail by Young J in Miller v Miller; Estate of Miller (2000) 50 NSWLR 81.

5 The severity of s.13(1) was mitigated by s.13(2) introduced by the Wills, Probate and Administration Amendment Act 1989 following the report of the New South Wales Law Reform Commission entitled “Wills Execution and Revocation” (1986). The commission’s report and its rationale are extensively referred to in the judgment of Young J in Miller v Miller and that of Campbell J in Tonkiss v Graham; Estate of Thompson [2002] NSWSC 89. These decisions of Young J and Campbell J provide valuable guidance as to the meaning and effect of s.13(2)(c). I shall refer to them in due course. First, I consider the evidence.

Evidence

6 The deceased had six children, Norma Alice (Mrs McKinney, the present plaintiff), Shirley Mary (who was married first to Keith William Black and subsequently to Alfred Joseph Edward Smith and who died on 30 June 1999), Barbara Joan (Mrs Clarke who died in 1969 without leaving children), Phillip John, Monica Carmen (Mrs Tasker) and Christopher. Mrs McKinney (the plaintiff), Mr P J Campbell, Mrs Tasker and Mr C Campbell survived their mother and are still living. The daughter Shirley Mary Smith who died in 1999 left her surviving five children of her first marriage, namely, James Michael Black, Norman Keith Black, William John Black, Debra Margaret Black and Gary Neville Black, born between 1950 and 1957. The first four are living and the fifth, Mr G N Black, is believed by other family members to be living although, as will be seen, his whereabouts have not been ascertained.

7 The deceased’s will dated 22 April 2000 was not drawn by a solicitor. It was prepared in handwriting on a form included in a “will kit” bought from Law Consumers Association, 203 Castlereagh Street, Sydney. The plaintiff, Mrs McKinney, and her husband, William James McKinney, went to that address on 18 April 2000 to buy the will kit for the deceased after a discussion with her at her home at Matraville in which the deceased said that, following the death of Mrs Smith, she needed to make a new will. Present on that occasion were the deceased, Mrs McKinney, Mr W J McKinney and Mrs Tasker, the other surviving daughter of the deceased, who at that time lived with her mother in the house at Matraville. The will kit was bought because the deceased had bad legs and could not easily leave home to visit a solicitor.

8 The will made on the form from the will kit left the estate to the four surviving children. The dispositive part is as follows:

“I give the whole of my estate in equal shares to my children Norma McKinney of 16 Koorool Ave Seven Hills NSW Phillip Campbell of 15 Neptune St Umina Monica Tasker 13-20 Subway Road Rockdale Christopher Campbell c/o Post Office Store Yandaran Qld.”

9 The circumstances in which the form of will included in the will kit was completed and executed are related in affidavits sworn by the four persons, in addition to the deceased, who were present on that occasion. They are Mrs McKinney, her husband Mr W J McKinney, their son Phillip James McKinney and Mrs Tasker. The relevant events took place immediately after a lunch at the deceased’s home at which she and the four other family members were present. The account of relevant events given by Mr W J McKinney who, as I have noted, became one of the attesting witnesses, is as follows:

“On 22 April 2000 I was present again at the home of my mother-in-law for lunch with my wife, my sister in law and my son Phillip McKinney. When we were in the kitchen after lunch there was general discussion with my mother-in-law about making out a will using the will kit that my wife and I had purchased from Law Consumers Association.
On that occasion my wife said to my mother-in-law words to the effect of:
‘Would you like to fill out your will now?’
She answered with the word: ‘Yes’
My wife said to my mother-in-law words to the effect of:
‘I will fill out the will. How do you want it put?’
My mother-in-law said to my wife words to the effect of:
‘The four of you children to be shares in it’
My wife then filled in the blanks in the will form and gave it to my mother-in-law to read which she appeared to do. My wife then read the will to my mother-in-law after which she then said to my wife words to the effect of:
‘That’s what I want’
My mother-in-law then signed on the first and second page. After my mother-in-law signed the will my son and I signed as witnesses.”

10 The evidence of Mr P J McKinney, who became the second attesting witness, was:

“After lunch we were all in the kitchen together and there was discussion between all of us about my grandmother’s wish to make a will dividing her assets amongst her living children. Her decision to make her will was brought about by the recent death of her daughter Shirley Smith.
My grandmother said to my mother words to the effect of:
“Whatever I own I want it divided amongst the four of you’
My mother had obtained a will kit from the Law Consumers Association in the city. I saw my mother proceed to fill in the blanks in the will form in her handwriting. My mother showed it to my grandmother who handed it back to my mother who then appeared to read the will form and the words that she had written. My mother then said to her words to the effect of:
‘Is that what you want, or do you want some of the children included?’
As to the words ‘the children’ I believe (in view of the earlier discussion) that my mother was referring to the children of my aunt Shirley Smith who had died the previous year. In answer to my mother’s question my grandmother said to my mother words to the effect of:
‘No, just the four of you’
My mother then said to my grandmother words to the effect of:
‘If that’s what you want all you have to do is sign the will’
My grandmother then signed the will and my father Jim McKinney watched and we then witnessed her signature and signed our names. I recall that father signed first and then I signed second.
I do not recall any discussion between my mother and my grandmother about the appointment of executors.”

11 Mrs Tasker’s account is as follows:

“On 22 April 2000 we arranged for all of them to come to lunch again at my mother’s home. After lunch we were all in the kitchen together. As my sister had obtained a will form from Law Consumers Association she then said to my mother words to the effect of:
‘What do you want put in the will’
My mother then said to us words to the effect of:
“I want to leave my assets to my children equally’.
My sister then proceeded to fill in the blanks in the will form in her handwriting. I recall that my mother said words to the effect of:
‘Norma and Phillip will be the executors’
In referring to Phillip I knew that my mother was referring to my brother Phillip John Campbell.
My sister said words to the effect of:
‘I’ll put Monica’s name here’
She was referring to the part of the will form providing for an alternate executor.
After filling in the will form my mother then looked at the will on her own and handed it back to my sister.
My sister read the will out to my mother and then said to her words to the effect of:
‘Is that what you want?’
My mother replied with the word ‘Yes’.”

12 Mrs McKinney’s evidence is as follows:

“On 20 April 2000 I was at my mother’s home again with members of my family. We were all in the kitchen together after lunch. There was discussion between all of us about my mother’s wish to make her will by dividing her assets between her living children. The need to make the will was brought about by my sister Shirley Smith having recently died.
I said to my mother words to the effect of:
‘Who do you want to be your executors’
In reply, my mother said words to the effect of:
‘I’ll have you because you’re my eldest daughter and I’ll have Phillip because he is my eldest son”
My mother then said to me words to the effect of:
‘Whatever I own I want it divided amongst the 4 of you’
I had obtained the will kit and the instructions from the Law Consumers Association in the city and being the type of will to be filled in without the need for my mother to see a solicitor. I then proceeded to fill in the blanks in the will form in my handwriting. I showed it to my mother who then handed it back to me. I then read to my mother the words that I had written in the blanks. I said to her words to the effect of:
‘Is that what you want?’ to which she replied ‘Yes’
I then said to my mother words to the effect of:
‘Are you sure you don’t want the kids to have any’
In reply, she said ‘No – they don’t bother about me’
By using the words ‘the kids’ I was referring to the children of my sister Shirley Smith.
I then said to my mother words to the effect of:
‘If that’s what you want all you have to do is sign the will’
My sister Monica Tasker was present during the time that I was filling in the blanks on the will form and during the time that my mother signed her will.
In response to my mother’s instructions I filled in the blanks in the will form in the manner appearing on the annexure to the grant of probate.
My mother then signed the will as now appears on that document in the presence of my husband Jim McKinney and my son Phillip McKinney who then signed as witnesses.”


Although Mrs McKinney refers to these events as having happened on 20 April 2000, I am satisfied that her reference to that date is intended as a reference to 22 April 2000.

13 It is plain that there is no dispute about the basic facts. Some of the witnesses refer to matters that are not mentioned by others. That is only to be expected when people are recording their recollections more than two years after the event. The important point is that the versions are entirely consistent with one another as to the central facts.

Parties and representation

14 Mr Keller of counsel appeared for Mrs McKinney. Mr P J Campbell is the executor and is accordingly named as defendant in Mrs McKinney’s summons. Mr Campbell filed an appearance in which he consented to the substantive orders sought but reserved his position on costs. He took no part in the hearing of Mrs McKinney’s application. An affidavit of Mr Campbell was, however, read by counsel for Mrs McKinney. That affidavit refers to Mr Campbell’s desire not to share (upon an intestacy) in the part of the estate that will be denied Mrs McKinney if her present claim is not upheld. The affidavit also says that Mr Campbell consents to the distribution of the estate in accordance with the will – in particular, that Mrs McKinney should have the share specified in the will. There are similar affidavits of Mrs Tasker and Mr C Campbell.

15 The children of Mrs Smith are not parties to the proceedings. Citations to see the proceedings were issued to them on Mrs McKinney’s application. The citations were duly served on all of them except Mr G N Black. Mrs McKinney’s solicitor, Mr Poole, deposes to attempts to discover the whereabouts of Mr G N Black, including through inquiries of his siblings (each of whom telephoned Mr Poole after receiving a letter from him about the subject matter of the present proceedings) and subsequently by correspondence with a solicitor retained by them. Mr Poole further deposes to attempts to discover information that might lead to Mr G N Black and lack of success.

16 Each of the four persons cited upon whom service was effected entered an appearance but none elected to become a defendant. I nevertheless received, without objection by Mr Keller, counsel for Mrs McKinney as plaintiff, submissions made on behalf of those four persons by Mr Hall of counsel. Their position is that they neither consent to nor oppose the grant of the relief sought by Mrs McKinney. They are, however, concerned to emphasise the need for the court to have before it evidence sufficient to discharge the plaintiff’s onus under s.13(2)(c). Mr Hall made it clear that such claims as his clients may consider themselves to have in respect of the estate will be pursued, if at all, by proceedings under the Family Provision Act 1982.

The first statutory criterion – s.13(2)(c)(i)

17 I turn now to the matters on which the court must be satisfied if Mrs McKinney is to have the relief she seeks. The onus of proving those matters rests, clearly enough, with Mrs McKinney. As to that onus, it was said by Young J in Miller v Miller (above) that the court should start “with suspicion”:

“That suspicion may be deep or surface, depending on the circumstances. The onus is on the claimant to establish by proper evidence that the testator did indeed know that he or she was making a gift to the witness [or, as here, the spouse of the witness] and that this gift was a free and voluntary one.”

18 Young J went on to say that a presumption of knowledge and approval arising from due execution could be used as part of the evidentiary base in a case such as this and that the presumption was strengthened if it was shown that the will was read over to or by a capable testator.

19 The evidence in the present case fully justifies a positive finding on the question posed by s.13(2)(c)(i), that is, that the testatrix “knew and approved” the gift to Mrs McKinney. All four persons present with the testatrix gave evidence of having heard the testatrix say that she wanted her estate divided equally among her four surviving children and that she intended to make no provision for the children of her deceased child, Mrs Smith. There is clear evidence from Mr W J McKinney that the testatrix was given the will form on which Mrs McKinney had written and that the testatrix appeared to read it; furthermore, that Mrs McKinney then read the will to the testatrix, after which the testatrix said, ‘That’s what I want’. Mr P J McKinney also deposed to the testatrix having been handed the completed form by Mrs McKinney, after which Mrs McKinney asked whether that was what the testatrix wanted and received an affirmative answer. Mrs Tasker’s affidavit contains express reference to both the testatrix having read the completed form and Mrs McKinney having read it out to her, coupled with an express statement of approval of its content by the testatrix. Mrs McKinney’s own affidavit refers to the same matters.

20 On the basis of this evidence, I am entirely satisfied that the testatrix was aware that the will contained a gift of a one-fourth share of her estate to Mrs McKinney and wished it to be so. I might add that this conclusion is strengthened by the fact that that gift was accompanied by identical gifts to her other living children so that it formed part of a rational and natural pattern of equal distribution among surviving children, even though minds may differ as to whether there may have been room for inclusion of the children of the deceased daughter Mrs Smith. On the evidence, therefore, the question posed for the court by s.13(2)(c)(i) is answered in the affirmative in this case.

The second statutory criterion – s.13(2)(c)(ii)

21 I proceed then to the second matter. Section 13(2)(c)(ii) directs attention to the question whether the court is satisfied that the gift to Mrs McKinney “was given or made freely and voluntarily by the testator”. The existence of this second (and additional) test is said in the Law Reform Commission’s report to have been recommended by Mr Justice Hutley. There is discussion in both Miller v Miller and Tonkiss v Graham about what s.13(2)(c)(ii) adds to s.13(2)(c)(i). In the latter case, Campbell J, after referring to the Commission’s report, said:

“One can draw from the whole of the portions I have quoted from the Report that the Commission's fundamental purpose in adopting the ‘knew and approved’ and ‘free and voluntary disposition’ test was to articulate a test whereby a person seeking to uphold a gift to a witness or a witness’s spouse would need to satisfy the court that the gift to the witness, or the spouse of the witness, did not result from any improper conduct. Undue influence is one type of impropriety which would need to be negatived, but more than lack of undue influence (as that term is understood in probate law) would be needed to establish the propriety of the gift.

By reference to the Law Reform Commission report one can conclude that, in enacting this test, Parliament is not to have been taken to have expected testators to be making decisions about what gifts to include in a Will in circumstances devoid of any of the impulses to action coming from affection, gratitude or a sense of moral obligation. Motives such as these underlie many wills, and there is no impropriety in them. The type of freedom and voluntariness which Parliament intended is that identified by the Law Reform Commission, namely freedom and voluntariness of a kind which results in there being no impropriety in the making of the Will.

I should add that in section 13(2)(c) the expression ‘voluntarily’ is not used in its usual legal sense of ‘without consideration’ . This emerges from the consideration of the Law Reform Commission's reasoning which led to the inclusion of the ‘freely and voluntary’ test in section 13(2)(c). It also emerges from realising that it would often be pointless to construe ‘voluntary’ as meaning ‘without consideration’ . In the situation where a testator included a particular provision in the will because he had received consideration for doing so, if section 13(2)(c) were to make void that disposition, equity would, in many cases, then step in to impose a constructive trust, to require that the person who had given the consideration should receive from the estate the property he or she had been promised. The jurisdiction to impose a constructive trust where someone promises, for valuable consideration, to leave property by will in a particular fashion (other than as a pecuniary legacy), but does not, is well established: Synge v Synge (1894) 1 QB 466 at 470; Horton v Jones (1935) 53 CLR 475 at 484, 489; Birmingham v Renfrew (1937) 57 CLR 666 at 683; Schaefer v Schuhmann [1972] AC 572; Jacobs on Trusts , 6th ed, paragraph [266]-[272].”

22 The added dimension derived from s.13(2)(c)(ii) is thus one concerned with exercise of free will in relation to the content of which the testator is aware and has approved. The approval that accompanies awareness must be shown to have been the product of the testator’s own volition and independently exercised judgment. The court’s task is to see that the factors of self-interest on the part of the witness that may be presumed to arise from the gift to the witness or the witness’s spouse have not intruded so as to colour the testator’s decision making. The underlying assumption is that a person who is present when a will is made possesses some capacity to influence the will-maker’s judgment. It was no doubt this assumption that, in past centuries, caused beneficiaries and others with an interest not to be “credible” witnesses for the purposes of the Statute of Frauds.

23 The evidence of the four persons present when the deceased made her will shows that she made a free and voluntary decision regarding the gift to Mrs McKinney. All testify that the testatrix was asked what she wanted to do in her will and that the idea of equal distribution among her four children still living came from her without prompting. The evidence also shows clearly that the possibility of including the children of the recently deceased Mrs Smith was put to the testatrix, that she considered it and that she rejected it. Apart from the suggestion that she consider Mrs Smith’s children (which, if taken up, would have been adverse to Mrs McKinney’s interests), the testatrix did not receive any suggestion or comment from anyone else present - in particular, Mrs McKinney, her husband Mr W J McKinney or their son Mr P J McKinney. There is thus an entire absence of grounds for suspicion that any of Mrs McKinney, her husband and her son sought to influence or in fact influenced the testatrix beyond having her consider the position of Mrs Smith’s children. There is also the point, to which I have already referred, that the scheme of the will was natural in the particular family context. It showed no hint of the kind of distortion that one might expect to see if untoward influences had been at work.

24 The court is accordingly satisfied that the gift to Mrs McKinney was given or made freely and voluntarily by the testatrix.

Conclusion on substantive issues

25 Mrs McKinney as plaintiff has thus succeeded in satisfying the court as to the matters referred to in s.13(2)(c). That being so, the gift to her is not made void by s.13(1) and she is entitled to the declaration and order she seeks.

Costs

26 The plaintiff seeks an order that her costs be paid out of the estate. A like order is sought by the persons on whose behalf Mr Hall appeared.

27 As to the plaintiff’s costs, the starting point is Part 52A rule 29 of the Supreme Court Rules:

“Where a beneficial gift is, by reason of the Court's satisfaction under section 13(2)(c) of the Wills, Probate and Administration Act 1898, not void, the applicant for relief shall, unless the Court otherwise orders, pay the costs of and occasioned by the application and any order made on or in consequence of the application.”

28 This rule is clear. In a case such as the present, the successful plaintiff must pay the costs of the application unless the court otherwise orders. It is submitted on behalf of Mrs McKinney that the court should, in this case, otherwise order and that her costs should be paid out of the estate. The submission is advanced by reference to the decision of Campbell J on the costs aspect of the Tonkiss v Graham litigation: see Tonkiss v Graham (No 2); Estate of Thompson [2002] NSWSC 1093.

29 In his judgment on costs, Campbell J referred to a principle recorded by Powell J in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 as being one of several recognised exceptions in the probate field to the general rule that costs should follow the event, namely, that:

“where the testator has, or those interested in residue have, been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate.”

30 Campbell J continued:

“In the present case it is the conduct of the testatrix, in having her will executed before the spouse of an interested beneficiary, which is the substantial cause of the litigation.”

31 The order his Honour then made was an order that the costs of both the plaintiffs and the defendants be paid on the indemnity basis out of the interest in the estate of the beneficiary whose spouse had witnessed the will. Thus, although it was ordered that costs be paid out of the estate, the fact that they were payable out of the share of the beneficiary concerned meant that effect was given to the scheme reflected in Part 52A rule 29. The decision on costs in Tonkiss v Graham therefore involves no departure from that rule. Campbell J said quite clearly, referring to Part 52A rule 29:

“Even though the defendants have failed in their challenge to the s.13(2)(c) matters, I do not think this is an appropriate case to ‘otherwise order’.”

32 I accept that there is, as Campbell J observed, some analogy between a case such as the present and one in which proceedings are necessitated by some problematic content of the will that is properly laid at the feet of the testator in such a way as to activate, in relation to proceedings to deal with that content, the principle to which Powell J referred in Re Hodges. But Part 52A rule 29 must be taken to have been formulated and introduced in the light of the existence of that principle, with the result that the rule reflects, in the particular case to which it applies, both an intended displacement of the principle and an exclusion of the analogy that might otherwise be drawn. It follows, in my view, that the principle and the analogy cannot, of themselves, constitute a basis on which to order a departure from Part 52A rule 29. Some special and additional case must, I think, be made in support of an application for such an order, failing which the rule requiring payment of costs by the successful applicant is to prevail.

33 No such special and additional case has been advanced here, with the result that Part 52A rule 29 must take its course and Mrs McKinney, as plaintiff, should pay her own costs, being “costs of … the application”. There is no need, in this case, to take the course taken by Campbell J (in a case with multiple parties) of ordering that the costs of the beneficiary concerned be paid out of the interest of that beneficiary in the estate, since the equivalent result can be achieved, in line with the rule, simply by making no order as to the plaintiff’s costs.

34 As to Mr Hall’s clients, the first point to be made is that they are not parties to these proceedings although, as parties cited, they will be bound by the res judicata. They could, if they wished, have become parties but they chose not to do so. They neither consented to nor opposed the grant of the relief sought by the plaintiff. In that respect, they did not advance the debate before me. As Mr Hall recognised, his clients were in no position to offer evidence relevant to the issues to be determined. On that front also, therefore, they did not contribute to the debate. The submissions Mr Hall made were really no more than a reinforcement of the statutory message and citation of passages from the judgments in Miller v Miller and Tonkiss v Graham. There was not placed before the court anything to which due recognition would not been given in the ordinary course of events.

35 In short, the limited participation of Mr Hall’s clients did not, in my view, entail anything material to the outcome. That outcome would have been reached in precisely the same way had they chosen not to have counsel attend. These factors lead me to conclude that no basis has been shown on which it would be appropriate to make an award of costs in favour of the persons concerned.

36 In view of the conclusions I have reached as to the costs of both Mrs McKinney as plaintiff and Mr Hall’s clients, there will be no order as to those costs, so that the costs will lie where they have fallen.

37 It remains to consider the costs of the defendant executor, Mr P J Campbell. He, as I have said, filed a consenting appearance except as to costs and took no part in the hearing. There was accordingly no application for a costs order by the defendant but it is appropriate that the court, of its own motion, make in respect of his costs, in line with Part 52A rule 29, an order of the kind made by Campbell J in Tonkiss v Graham (No 2), that is, that the costs be paid on the indemnity basis out of the plaintiff’s share of the estate.

Postscript

38 I cannot leave this matter without referring again to the will kit purchased from the Law Consumers Association of 203 Castlereagh Street, Sydney. That kit is in evidence. It consists of a booklet of some 15 pages with accompanying blank forms of will. The booklet contains information and suggestions for persons considering making a will. The first page is in the form of a letter and bears the date November 1998. Much of the content, as one would expect, deals with legal matters. On the issue of attestation, the booklet says:

“Two witnesses who are over the age of 18 years are required to be present at the same time. Note that a witness should not be one of your beneficiaries. Your executor may be a witness. Preferably they should be people with no interest in your estate and likely to be easily found in the event a problem arises in relation to your Will upon your death.”

There is also an earlier statement:

“ Do not allow a beneficiary to be a witness to your Will. If a beneficiary witnesses a Will he will lose his entitlement to the gift.”

39 These statements are dangerous. Each fails entirely to recognise and accommodate the further aspect of s.13(1) of the Wills, Probate and Administration Act that causes a gift to be void where the spouse of the person to whom the gift is made is an attesting witness. In addition, the statement in the first extract that an executor may be a witness may lead users of the kit into placing executors unwittingly in a position where they will be denied the ability to claim commission. According to the evidence before me, family members present with Alice Margaret Campbell when she made her will read and relied upon the parts of the booklet to which I have referred.

40 Persons and organisations such as the Law Consumers Association supplying “do it yourself kits” for will making and other activities commonly entrusted to legal practitioners may be thought to provide a useful service for those who cannot afford to employ a lawyer or, for some other reason, choose not to do so. But intended savings and efficiencies will be illusory, consequences will be serious and purveyors of kits will do their customers a gross disservice unless every kit is completely accurate and unambiguous in the guidance it gives on crucial legal matters.

Orders

41 The court makes the following declarations and orders:

1. Declare that
a) Alice Margaret Campbell knew and approved of the gift of one quarter of the residue of her estate in her will dated 22 April 2000 to the plaintiff; and
b) the gift of one quarter of the residue of her estate to the plaintiff was given or made freely and voluntarily by Alice Margaret Campbell.


2. Order that the gift of one quarter of the residue of the estate to the plaintiff in the will of Alice Margaret Campbell dated 22 April 2000 be distributed according to its terms.

3. Order that the defendant’s costs of and occasioned by the plaintiff’s application by summons filed on 15 November 2002 and of the declaration and order made in accordance with that summons be paid on the indemnity basis out of the interest of the plaintiff in the estate of the late Alice Margaret Campbell; otherwise no order as to costs.

**********

Last Modified: 04/04/2003