McMillan v Lumb

[2005] NSWSC 371

CITATION:	Estate of Frederick Cecil Lumb; McMillan & anor v Lumb & anor [2005] NSWSC 371
HEARING DATE(S):	21 March 2005
JUDGMENT DATE :	22 April 2005
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Document admitted to probate.

CATCHWORDS:	SUCCESSION- probate - informal wills - testamentary intention - alterations made to existing draft before deceased entered hospital - document signed but not witnessed - deceased instructed daughter to retain the original document - referred to it as his will. - LEGISLATION - Wills Probate and Administration Act 1898 - s 18A.
LEGISLATION CITED:	Wills Probate and Administration Act 1898 s18A
PARTIES:	Diana Fay McMillan (First Plaintiff) William McMillan (Second Plaintiff) Christopher Edmund Lumb (First Defendant) Judith Ann Eslick (Second Defendant)
FILE NUMBER(S):	SC 109006 of 2004
COUNSEL:	Mr M S Willmott SC (Plaintiff) Mr I D Roche (Defendants)
SOLICITORS:	Owen Hodge Lawyers (Plaintiff) Hancock Alldis (Defendants)

LOWER COURT JURISDICTION:

- 9 -

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

WINDEYER J

FRIDAY 22 APRIL 2005

109006/04 THE ESTATE OF FREDERICK CECIL LUMB; MCMILLAN V LUMB & ESLICK

JUDGMENT

Issue

1 The question is whether a document dated 16 December 2002 which was signed by the deceased but not witnessed should be admitted to probate under s18A of the Wills Probate and Administration Act 1898.

Section 18A is 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.

Facts

2 Frederick Cecil Lumb (the deceased), died on 10 July 2003, aged 84. His wife had pre-deceased him, she dying on 3 December 2000. She left all her estate to her husband by will dated 20 March 1991. Mr Lumb had made a mirror will, probably ten days earlier, leaving his estate to his wife. He had three children, Diana Faye McMillan, one of the plaintiffs, and Christopher Edmund Lumb and Judith Ann Eslick, the defendants.

3 Mr Kelly was the deceased’s solicitor from about 1995. Mr Lumb and his wife had substantial real estate interests at Bundeena and in the Helensburgh area, the latter for the most part being held through companies.

4 On 18 December 2000 Mr Kelly attended the deceased at Bundeena. Among other things a new will was discussed. There was discussion about Mrs McMillan moving back to Sydney from the United States. According to Mr Kelly Mr Lumb said, “I want you to draft a new will and this is what I want”. Paragraphs 11, 12, 13, 14 and 15 of the affidavit of Mr Kelly are as follows:

11. Mr. Lumb then said words to the effect,

"I want all of my Bundeena property and the personal contents and possessions to go to Faye unencumbered."

One of the Bundeena properties is held as security for a loan to Westpac Banking Corporation.

12. Mr. Lumb then said words to the effect,

"I want the shares in the companies to be split between the children although I do not know how to divide that up at this stage."

13. Mr. Lumb told me that some of his assets consisted of

"The 48 acres of land which is worth about $2 million, the complex which is worth about $2 million, Walker Street, Helensburgh which is worth about $2 million, the Rajani Street property which is worth about $500,000.00 and the highway property which is worth about $350,000.00."


All of these properties are in or around Helensburgh.

14. Mr. Lumb then said words to the effect,

"I want the balance divided between the three children. If Judy dies before me then her share is to go to her children, if Faye dies before me then to Bill and their children, and if Chris dies before me his gift will lapse."


15. On that occasion I also spoke to Mr. Lumb about making a Power of Attorney. He said to me words to the effect,

"I'll think about that and get back to you later."

5 I accept this evidence as I accept all of his evidence. He made a note of his instructions. That note might indicate that everything at Helensburgh was to be shared equally by the children, but Mr Kelly said that this was not so and that the deceased had said that he wished to give consideration to the company shares. The draft prepared supports this.

6 Mr Kelly drafted a will. He faxed a copy to Mr Lumb on 22 December 2000. He spoke to the deceased about the need to finalise the will on a number of occasions between that date and 12 December 2002. Mr Lumb said at least on some occasions that he would wait “Until Helensburgh is sorted out”. This relates, as I have indicated, to land owned by the companies, part of which was being sold for development.

7 Settlement of the sale of the Helensburgh land took place on 5 December 2002. On that day Mr Kelly again reminded the deceased about the will. Mr Lumb said “I won’t do anything about it now, but I do intend to get the matter finalised”. Mr Kelly said he took “now” to mean at that time on that date being the date of settlement and I accept that as correct.

8 Mr Kelly was due to go to hospital for surgery on 12 December 2002. The deceased was also about to go to hospital for removal of a growth on his face at about the same time. Mr Kelly phoned Mr Lumb and said, “I hope it all goes well with your operation and I look forward to talking to you in January when I get back to work. Please think about your will while I am away so that you can get this matter resolved. The current arrangements are completely inadequate.” To which the deceased replied, “I will be thinking about it, good luck for your operation”.

9 Mr Kelly returned to work at the end of January 2003. He spoke regularly to Mr Lumb up to the date of his death, but he said Mr Lumb did not mention the will or the draft he had sent to him any further and apparently he did not raise the subject.

10 Mrs McMillan swore an affidavit on 10 February 2005 and was cross-examined on it. While not as clear and perhaps not as convincing a witness as Mr Kelly, I do accept her evidence. In 2000 she was living in the United States. Her father told her of the draft will and he read it to her over the telephone. On a visit to Australia from 1 November 2001 until February 2002, her father again discussed a will and showed her the draft. He said he had “told Jim Kelly that I will finalise the Will when Helensburgh is settled.” She came to Australia again on 22 November 2002. She assisted her father with the final settlement of the sale of part of the Helensburgh land. As I have said that settlement took place on 5 December 2002. Mrs McMillan said that after leaving Mr Kelly’s office, the deceased said, “It’s a relief that’s settled. Helensburgh is really going to take off. I can concentrate on finalising the Will now”.

11 Mr Lumb was due to go to hospital on 17 December. On the evening of 16 December Mrs McMillan said that her father said to her, “I need to finalise my Will before I go to hospital tomorrow.” He had a copy of the will which had been faxed to him in 2000. He said he would use the faxed copy and make the changes on it. Mrs McMillan said that she would make some extra copies in case he made a mistake. The deceased said, “How should I go about making the changes” and Mrs McMillan said, “Why don’t you write them in using blue ink so they stand out and you can initial them.” Mr Lumb then took the will, which I take it to mean the faxed copy. He made alterations to it, ticked and initialled each paragraph and signed at the foot, and then he took a separate piece of paper and wrote a letter or note to Mr Kelly as follows:

Jim Kelley
Owen Hodge
16th December 2002
Dear Jim - I would like My Estate To Be Distributed as I have Described in My will of 16th December 2002, Which Reflects Mabel’s and my wishes .
F C Lumb
16th DECEMBER 2002

12 According to Mrs McMillan when her father had finished writing he handed the will and the letter to her and said, “Before your mother died I spoke to her about our Wills and about what we should do. This Will represents our wishes”. When he said “this will” he pointed to the document on which he had just written with his amendments. He then said, “Will you make a copy? This is likely to start a shit fight – World War Three. I will give you the original and I will keep a copy. I am suspicious someone may have taken the mailed copy of the Will we could not find”. Mrs McMillan made a copy of each page of the document and a copy of the letter. She put the copies in a manila envelope which she gave to her father and she retained the original of the document signed by her father and the letter addressed to Mr Kelly. The next day her husband, Mr McMillan, phoned from the United States and spoke to the deceased. She heard her father say, “Last night I finalised my will. Bill, I have included you as an Executor.” Mrs McMillan returned to the United States in February 2003 and took the original documents with her. After her father’s death she delivered them to Mr Kelly. She later found the copies of the will and letter which she had left with her father still in the manila envelope among her mother’s clothes.

13 The document propounded is set out in its signed form at the end of this judgment. The deceased amended the document that had been sent to him in 2000 as follows:

Paragraph 2 – addition of William McMillan as second executor. The words “(Cec please advise the name of a second Executor if you want to nominate a second executor)” have been deleted.

Paragraph 4 – the surname of Mrs McMillan, changed from Lumb to her married name.

Paragraph 5 – five grandchildren, three of Mrs Eslick and two of Mrs McMillan were added to the residuary beneficiaries.

14 It can be seen the deceased ticked and initialled each paragraph whether altered or not. It can also be seen that paragraph 4 is of no effect. That fact and the alteration to paragraph 5 by adding the grandchildren in as residuary beneficiaries has made a substantial difference to the share in the estate taken by the defendants, Mrs Eslick and Mr Lumb and of Mrs McMillan as well.

15 The estate is a very large one. The value of the Bundeena properties and contents given to Mrs McMillan is estimated to be $3,946,198 and to that would be added her one-eighth share in residue, estimated at $494,946.58. Each of the other seven residuary beneficiaries being the other two children and the five named grandchildren on that basis take a share valued at $494,946.00.

Discussion

16 The question is whether the document embodies the testamentary intentions of the deceased and whether he intended the document without more to be his will.

17 There are a number of matters which would support a positive finding. Mr Lumb was about to go to hospital the next day; Mrs McMillan said he was concerned about this. Mr Lumb referred to the document as “his will”; he told Mr McMillan he had included him as an executor; he gave the document to his daughter and did not send it back to his solicitor again to be amended on the basis of the alterations written on it; and he gave the letter to Mrs McMillan to keep, not to send to Mr Kelly.

18 As against these matters are the facts the deceased had made an earlier will properly witnessed, and the document propounded provided for attestation by witnesses. The other matter strongly put is that the deceased would not have regarded the document as complete until he had completed clause 4, in other words, “more” was required for finality. This is of course speculative. The deceased might have decided that his shares should go with the residue to those persons named in the amended clause 5. And if he had not intended the document to be his will, then it is quite unlikely he would have done what he did with it. Rather, he would have retained it, as he had done with the draft since 2000, for further consideration.

19 I consider the case for admission of the document to probate made out. Those facts and matters in favour of that finding far outweigh any to the contrary. The defendants were justified in opposing the grant. Their costs should be paid out of the estate.

1. Declare the document signed by the deceased dated 16 December 2002, constitutes a will of Frederick Cecil Lumb deceased.

2. Order that the said document be admitted to probate.

3. Refer the matter to the Registrar to complete the grant.

**********