MORRIS CHARLES HASSAN DECEASED
[2008] SASC 14
•1 February 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of MORRIS CHARLES HASSAN DECEASED
[2008] SASC 14
Judgment of The Honourable Justice Gray
1 February 2008
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA - NO REASONABLE DOUBT THAT MAKER INTENDED DOCUMENT AS WILL
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS
Application for grant of probate of informal document executed by deceased, titled “confidential memorandum” – application opposed by a child of the deceased who was expressly excluded as a beneficiary – whether deceased intended to give effect to confidential memorandum as his last will and testament – whether disposition of invalid gifts demonstrated a lack of testamentary intention – whether operation of confidential memorandum was conditional on future events – consideration of extrinsic evidence and oral testimony.
Held: Application allowed – confidential memorandum admitted to probate – deceased intended confidential memorandum to be his last will and testament – invalid gifts do not negate testamentary intention – confidential memorandum not a conditional document.
Wills Act 1936 (SA) s 8; The Probate Rules 2004 (SA) r 52.01, r 52.06 and r 52.08; Evidence Act 1929 (SA) s 45A, referred to.
Dalrymple v Campbell [1919] P 7; In re Estate of Knibb [1962] 2 All ER 829; In re Berger, deceased [1990] Ch 118; Russell v Scott (1936) 55 CLR 440; Re Resch’s Will Trusts; Le Cras v Perpetual Trustee Co Ltd [1969] 1 AC 514; Whyte v Pollok (1882) 7 App Cas 400; Bailey v Bailey (1924) 34 CLR 558; Lutheran Church of Australia South Australia District Incorporated v Farmers’ Co-Operative Executors and Trustees Limited and Others (1969) 121 CLR 628; In the Estate of Treloar (1984) 36 SASR 41; In the Goods of Spratt [1897] P 28; Corbett v Newey [1998] Ch 57; In Re Bathern [1941] SASR 266; In the Goods of Mayd (1880) 6 P.D. 17; In the Will of Wilson (1903) 9 ALR 217; Godman v Godman [1920] P 261, considered.
In the Estate of MORRIS CHARLES HASSAN DECEASED
[2008] SASC 14Testamentary Causes Jurisdiction
GRAY J.
This is an application for a grant of probate.
The application has been made in respect of a document executed on 29 April 2005 (“the April 2005 document”) claimed to be the last will and testament of Morris Charles Hassan (deceased). The application has been brought by the plaintiffs, the executors appointed under the April 2005 document, against the first defendant and caveator, Matthew Morris Hassan, and the second to fifth defendants, Jeremy Gordon Hassan, Margaret Ann Hassan, Jane Monica Heyburn and Mark Heyburn, in their capacity as beneficiaries.
The principal issue arising in these proceedings is whether the April 2005 document was executed by the deceased with the intention that the document should operate as a “revocable ambulatory disposition” of the deceased’s property, to take effect on his death.[1]
[1] Dalrymple v Campbell [1919] P 7 at 9; In re Estate of Knibb [1962] 2 All ER 829 at 832; In re Berger, deceased [1990] Ch 118 at 129; Russell v Scott (1936) 55 CLR 440 at 454.
All parties agreed that the task for this Court was to resolve this issue as a court of probate, and not as a court of construction. The observations of Lord Wilberforce in Re Resch’s Will Trusts; Le Cras v Perpetual Trustee Co Ltd are apposite:[2]
The principles which ought to be applied on such a question as this, by a court of construction, as compared with those applicable by a court of probate have been clearly stated by Sir John Nicholl: “In the court of probate the whole question is one of intention: the animus testandi and the animus revocandi are completely open to investigation” (Methuen v Methuen) and “in a court of construction, where the factum of the instrument has been previously established in the court of probate, the inquiry is pretty closely restricted to the contents of the instrument itself, in order to ascertain the intentions of the testator”: Greenough v Martin. But the fact that a document has been admitted to probate, even after consideration of the construction of that and other testamentary instruments, does not prevent a court of construction from coming to the conclusion that this document has no operative effect (In re Hawksley’s Settlement, Black v Tidy, per Luxmoore J).
[2] Re Resch’s Will Trusts; Le Cras v Perpetual Trustee Co Ltd [1969] 1 AC 514 at 547 (footnotes omitted).
A primary inquiry for the Court is to ascertain whether the deceased had the necessary testamentary intention – animus testandi – when he executed the April 2005 document. It is trite law that nothing can receive probate which was not intended to be a testamentary act by the testator.[3]
Preliminary Observations
[3] Whyte v Pollok (1882) 7 App Cas 400 at 405 (Lord Selborne L.C.).
Onus of Proof
The legal burden of proving an instrument as a will lies on the propounder of the instrument. Once the proponent has established a prima facie case, then the onus probandi lies upon the party seeking to impeach the will to show that it ought not be admitted to proof. In Bailey v Bailey,[4] Isaacs J, with whom Gavan Duffy and Rich JJ agreed, relevantly summarised the principles as follows:
[4] Bailey v Bailey (1924) 34 CLR 558 at 570-571 (footnotes omitted).
(1)The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument (Baker v. Batt, at pp. 319-320; Bremer v. Freeman, at p. 357; Durnell v. Corfield).
(2)This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence (Symes v. Green, at p. 402; Baker v. Batt).
(3)The proponent's duty is, in the first place, discharged by establishing a prima facie case (Bremer v. Freeman, at p. 357).
(4)A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator (Durnell v. Corfield; Baker v. Batt; Barry v. Butlin, at p. 482; Fulton v. Andrew, at p. 461, and cases there cited).
…
(6)The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances (Barry v. Butlin; Jones v. Godrich, at pp. 19-20; Wrench v. Murray).
(7)As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries (Wrench v. Murray; Brogden v. Brown; Durnell v. Corfield; Symes v. Green; Bama Soondari Debi v. Tara Soondari Debi, at p. 139, per Lord Shand; Sajid Ali v. Idab Ali; Jagrani Kunwar v. Durga Prasad, at p. 98, per Lord Shaw; Banks v. Goodfellow; Harwood v. Baker, at p. 285; Van Alst v. Hunter); (b) the exclusion of persons naturally having a claim upon the testator (Wrench v. Murray; Brogden v. Brown; Harwood v. Baker; Banks v. Goodfellow); (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit (Wheeler v. Alderson, at p. 587; Baker v. Batt; Barry v. Butlin; Bur Singh v. Uttam Singh).
(8)Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof (Bremer v. Freeman; Waring v. Waring, at p. 355; Sutton v. Sadler, at p. 96; Bama Soondari Debi v. Tara Soondari Debi; Bates v. Graves, at p. 288; Bur Singh v. Uttam Singh).
Extrinsic Evidence
The parties agreed that extrinsic evidence was relevant and admissible on the question as to whether the April 2005 document constituted the last will of the deceased. The permissible use of extrinsic evidence was discussed by Windeyer J in Lutheran Church of Australia South Australia District Incorporated v Farmers’ Co-Operative Executors and Trustees Limited and Others as follows:[5]
Of course extrinsic evidence is not admissible to contradict what a will unambiguously says. Every testator must be taken to have meant what he said. We were referred in the course of argument to the well-known and forceful statements to this effect of Lord Coleridge in Shore v. Wilson [(1842) 9 Cl & Fin 355, at pp 525–526 [8 ER 450, at pp 517,518]]. I take the governing principle to be as it has been stated, for well over a century, in Wigram on Extrinsic Evidence in aid of the Interpretation of Wills, at p. 8, as follows:
“... any evidence is admissible, which, in its nature and effect, simply explains what the testator has written; but no evidence can be admissible which, in its nature or effect, is applicable to the purpose of showing merely what he intended to have written. In other words, the question in expounding a will is not,—What the testator meant? as distinguished from—What his words express? but simply—What is the meaning of his words? And extrinsic evidence, in aid of the exposition of his will, must be admissible or inadmissible with reference to its bearing upon the issue which this question raises.”
[5] Lutheran Church of Australia South Australia District Incorporated v Farmers’ Co-Operative Executors and Trustees Limited and Others (1969) 121 CLR 628 at 648-649.
Requirements as to writing and execution
The requirements as to writing and execution are outlined in the Wills Act 1936 (SA), by section 8, which provides:
Subject to this Act, no will is valid unless it is in writing and executed in the following manner:
(a)it must be signed by the testator or by some other person in the testator's presence and by the testator's direction; and
(b)it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
(c)the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)the witnesses must attest and sign the will (but no form of attestation is necessary); and
(e)the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).
Rebuttable Presumption
Notwithstanding the prima facie onus of proof, it is relevant to note that since the introduction of the Wills Act, in circumstances where a person complies with the formalities set out in the statute, and has the document, whatever its form, duly executed, a presumption arises that the document was intended to be a will. This presumption was acknowledged by Legoe J in In The Estate of Treloar,[6] when his Honour, reviewing earlier authorities, observed:
Some eighty years later in Re Meynell; Meynell v. Meynell Barnard J. said that “… if since the Wills Act a person troubled to comply with its formalities and had a document, whatever its form, duly executed, there was a strong presumption that that was intended to be a will”; and further his Lordship stated that most of the cases were decided before the Wills Act.
Meynell’s case was followed in the most helpful decision of Turner J. In re Barnes (Deceased). In that case the testator, a farmer, could not wait to sign the formal will which his solicitor was instructed to prepare and which would have been ready later that day. Although the solicitor saw his client once or twice between the date of the instructions and his death some seventeen months later, and the solicitor had mentioned the failure to sign the will on at least one occasion his Honour admitted the document to probate. The statement of the law at p. 717 is clear and helpful, where Turner J. said:
“My view is that this document having been executed animo testandi and with all the formalities prescribed by the Wills Act, 1837, thereby became the last will and testament of the deceased, and being so constituted it could thereafter not lapse by the failure of the testator to make another will, or be revoked by any mere change of intention. It would thereafter enure and did enure unless and until (as never became the case) it was revoked in one of the ways set forth in the Wills Act. Not ever having been so revoked, it remained effective as the testator’s last will.”
[6] In the Estate of Treloar (1984) 36 SASR 41 at 44-45.
Any party seeking to rebut that presumption bears an evidentiary onus of proof in rebuttal.[7]
[7] Butterworths, Halsbury’s Laws of Australia, Vol 24 (at 23 January 2008) 395 Succession, ‘3 Grants’ [395-2515].
The Propounded Document
On 29 April 2005, the April 2005 document was prepared by John Richard Goldberg, the deceased’s solicitor, in the form of a confidential memorandum. An execution clause appears at the conclusion of the document:
Pending execution of a more formal document I express this to be my last will [and] testament and super nomination in substitution for all prior instruments.
29 April 2005
[Deceased’s signature]
[Witness’ Signature]
[Witness’ Signature]
The deceased and the witnesses signed and dated at the end of each of the earlier pages of the April 2005 document.
The April 2005 document appointed executors and trustees – the deceased’s daughter, Jane Monica Heyburn; the son-in-law, Mark Heyburn; and Donald John Inglis. There was a substitutionary appointment of the deceased’s brother-in-law, John Mason, if Mr Inglis was unwilling or unable to act.
Beneficiaries were named – Margaret Ann Hassan, the spouse of the deceased; Jeremy Gordon Hassan, the youngest son of the deceased; and Mr and Mrs Heyburn. The deceased’s first son, David Hassan, died in 1995.
Matthew Morris Hassan, the deceased’s second son, was excluded as a beneficiary under the April 2005 document and the following explanation was provided:
Matthew is not being left anything because he has already been provided for in his lifetime. I note that this may not be good enough to defeat an inheritance family provision claim and it follows that we will need to divest Morris of his personal assets by making a gift to a family trust (possibly the Morris Hassan Family Trust) of an amount equal to the value of his personal assets which will be loaned back to Morris on the security of a charge over his personal assets. This means that on his death his net estate will be zero and Matthew should therefore be precluded from a claim against the estate.
These reasons include extracts from the April 2005 document. However, as it is also important to review the document in its entirety, the text of the document is now set out: [8]
[8] The signatures of the deceased and the witnesses have been omitted.
CONFIDENTIAL
MEMORANDUM
DATE: 29 April 2005
RE: MORRIS HASSAN – SUCCESSION PLAN
FILE NO: 40233
Superannuation
To be split equally between Margaret, Jeremy and Jane.
Binding Nomination required.
Executors
Jane together with Mark Hayburn [sic] and Donald Inglis but if Donald Inglis is not available then John Mason.
Other assets
Other assets to be split equally between Margie, Jane and Jeremy:
Shares in Hispano Nominees Pty Ltd
Shares in Australian Motors Holdings Pty Ltd
Credit loan accounts in MC Hassan Family Trust
House at Springfield to be sold within 3 years of Morris’ death. (Date to be determined by Margie)Furniture and effects to be divided turn and turn about or sold.
Tools
To Jeremy
Murray Bridge
Equally to Jeremy and Jane with Margie having a right of access
Collectable motor vehicles
Divided equally between Jeremy and Mark Hayburn [sic].
Riviera 47
Sold and proceeds equally between Jeremy, Jane and Margie or retained and shared.
Balance of estate including any inheritance from parents
To be divided equally between Jeremy and Jane.
Survivorship
If Jane does not survive Morris then her share is on trust for her children.
If Jeremy does not survive Morris then $150,000 on trust for each of his children (proof of paternity required) for their education, maintenance and benefit with the balance of Jeremy’s share going to Jane.
If Margie does not survive then her share goes to Jeremy and Jane.
Jeremy’s share
Jeremy’s share does not go direct to him but into a testamentary trust for his benefit and the benefit of his children but administered by Jane. Morris will prepare letter of wishes to Jane concerning administration of this trust.
Jane’s share
I suggest that Jane at her option should have her share go into a testamentary trust administered by her.
Margie’s Deed
Margie is to enter into a Deed with Morris that in her will, anything that she inherits from Morris or the investments representing her inheritance are to go back to Jeremy and Jane on her death.
Matthew
Matthew is not being left anything because he has already been provided for in his lifetime. I note that this may not be good enough to defeat an inheritance family provision claim and it follows that we will need to divest Morris of his personal assets by making a gift to a family trust (possibly the Morris Hassan Family Trust) of an amount equal to the value of his personal assets which will be loaned back to Morris on the security of a charge over his personal assets. This means that on his death his net estate will be zero and Matthew should therefore be precluded from a claim against the estate.
Letter of wishes from Morris
Morris will prepare a separate letter concerning the ongoing running of Australian Motors and also the sale of the property at the corner of Goodwood Road and Rose Terrace to the Royal Adelaide Show Society. This will not be binding but will reflect Morris’s intentions.
Margie’s will
Executors – Margie’s brothers John Mason and Bryan Mason.
Anything that she has inherited from Morris or the investments representing her inheritance (subject to her personal expenditure) are to go to Jeremy and Jane. The balance of her personal assets go equally to her nieces and nephew Sophie, Henry and Katlin or the survivors or survivor of them but if either of her nieces or her nephew die before her then the parents share will go to their children equally subject to each child turning 25.
Jeremy’s house
This is in a trust which Morris controls and on Morris’s death control of the trust passes to Jeremy.
[handwritten]
Pending execution of a more formal document I express this to be my last will and testament and super nomination in substitution for all prior instruments.
The Proceedings
On 26 May 2006, Matthew Hassan, pursuant to Rule 52.01 of The Probate Rules 2004 (SA),[9] lodged a caveat against the application for a grant of probate of the April 2005 document. On 26 June 2006, the caveat was warned by the executors pursuant to Rule 52.06.[10] On 27 July 2006, Matthew Hassan filed an appearance to the warning.[11]
[9] Rule 52.01 provides as follows: “Any person who wishes to ensure that no grant is sealed without notice to such person may enter a caveat in the Registry.”
[10] Rule 52.06 provides as follows: “Any person claiming to have an interest in the estate of the deceased may cause to be issued from the Registry, a warning against the caveat in the Form No. 73 and the person warning must state his or her interest in the estate and if such person claims under a will, the date of the will, and shall require the caveator to give particulars of any contrary interest in the estate, and a copy of the warning must be served on the caveator forthwith.”
[11] Rule 52.08 provides as follows: “A caveator having an interest contrary to that of the person warning may, within the time limited for appearance by the warning, or at any time thereafter if no affidavit has been filed under Rule 52.10 enter an appearance in the Form No. 74 at the Registry.”
By summons filed on 29 September 2006 and later amended on 12 January 2007 and 27 March 2007, the executors instituted the within proceedings, seeking an order that the April 2005 document be admitted to probate.
On 8 November 2006, later amended on 18 April 2007, Matthew Hassan filed a defence to the summons and instituted a cross-action (counterclaim) against the plaintiffs. In summary, the defence pleaded that the April 2005 document was not a valid will capable of being admitted to probate, and denied that the plaintiffs were entitled to all or any of the remedies sought in the statement of claim. The following particulars were relied on at trial:
The deceased executed the Confidential Memorandum pending the execution of a more formal document and certain conditions being satisfied including the execution of a Will and Deed by Margaret Hassan in terms approved by the deceased.
The deceased did not intend that the Confidential Memorandum to operate as his Last Will and Testament.
The deceased’s testamentary intention was not expressed in clear and unambiguous terms in the Confidential Memorandum.
The deceased did not undertake nor complete any document to put into effect any of the proposed plans set out in the Confidential Memorandum to enable the succession plan to take effect upon his death.
The deceased often procrastinated in respect of business and personal issues which he determined as being important.
The cross-action (counterclaim) pleaded that the deceased made and executed his last will and testament on 5 September 2001. An order was sought that the Court pronounce against the validity of the April 2005 document. A further order was sought that the Court pronounce in favour of the 5 September 2001 will.
The defendant beneficiaries, with the exception of Margaret Hassan, by their defence admitted the allegations pleaded in the statement of claim and consented to the orders sought by the plaintiffs. Margaret Hassan, by her defence, admitted the allegations pleaded in the statement of claim and agreed to abide the order of the Court in relation to the orders sought by the plaintiffs.
In response to the defence, the plaintiffs pleaded by their reply that the deceased executed the April 2005 document as and for his last will intending that it constitute a valid will as from the date of execution, and that the deceased fully intended the April 2005 document to operate as his last will and testament. In response to the counterclaim, the plaintiffs pleaded that the will dated 5 September 2001 was not the last will of the deceased, and was revoked by the April 2005 document.
On 25 June 2007, the defendant beneficiaries, with the exception of Margaret Hassan, filed a defence to the cross-action (counterclaim) denying that the will dated 5 September 2001 was the last will of the deceased and denying that Matthew Hassan was entitled to the orders sought under the cross-action. No defence to the cross-action (counterclaim) has been filed by Margaret Hassan.
The Trial
The Evidence
In support of the application to propound the April 2005 document, the executors led evidence from Mr Goldberg and his secretary, Christina Sharon Suzannah Hendriks. In support of the case advanced by the executors, the defendant beneficiaries, with the exception of Margaret Hassan, called evidence from Mrs Heyburn and Peter Hayden Hunt, an accounting advisor of the deceased. Matthew Hassan, in support of his case, gave evidence and called Albert Bensimon, a friend of the deceased, and a relation by marriage.
Documentary evidence was tendered, including the 1996, 1999 and 2001 wills of the deceased all drawn by Mr Goldberg. Mr Goldberg’s files containing his instructions with respect to each of the wills and the April 2005 document were tendered. Mr Goldberg’s files included notes of telephone conversations and correspondence with the deceased and Mr Hunt. Other documents recording transfers of shares were also tendered. All the tendered documents were business records and were accepted by the Court on that basis.[12]
[12] Evidence Act 1929 (SA), section 45A.
The evidence of the witnesses, subject to the one exception, gave rise to little dispute. However, there was considerable debate about the inferences to be drawn from the evidence. I will return to the area of dispute shortly.
All witnesses were credible and reliable. All were straightforward in giving evidence and appeared open and frank. There was at times a lack of recall about the precise date and detail of salient events, but this was unsurprising. Notwithstanding this lack of recall there has been little difficulty in making findings concerning the relevant events.
I accept Mr Goldberg’s evidence, as an experienced legal practitioner with expertise in estate work including succession planning and the preparation of wills. I find that he is a competent and careful solicitor. There was no suggestion that there was any aspect of his evidence on which the Court could not act.
I accept the evidence of Mrs Heyburn and Matthew Hassan. The only substantive difference in their evidence related to a visit that Mrs Heyburn made to Matthew Hassan at his home in Adelaide, in or about 1999. Mrs Heyburn recounted a conversation in which her brother suggested that the deceased was seriously ill with diabetes, and that his illness was affecting his mental stability to the point where he was unable to manage the motor vehicle franchise business. The evidence was given in some generality. Matthew Hassan had no recollection of such a discussion and in substance denied that any such discussion would have occurred. On the evidence, it is not possible to resolve this factual dispute. At one stage in her evidence, Mrs Heyburn spoke of these matters arising through implication. At another time she said that they were contained in direct statements. One possibility is that something was said in a general way by Matthew Hassan and that more was “read into it” by his sister. There may have been a degree of misunderstanding or confusion. There is no need to resolve this dispute and, as earlier observed, I am unable to do so.
I accept the evidence of Ms Hendriks, Mr Hunt and Mr Bensimon. There was no relevant challenge to their testimony.
Findings of Fact
The deceased was born on 6 March 1943. He had four children by his first marriage, David born in 1965, Matthew born in 1968, Jeremy born in 1970 and Jane born in 1973. David died in 1995, I infer without a widow or issue. The deceased and his first wife divorced in 1984 and at some time subsequent the deceased entered into a de facto relationship with Margaret. They married in 1994.
The deceased, through corporate entities, conducted a motor vehicle franchise business known as “Australian Motors”. The deceased’s father started the business. Members of the family held executive positions as well as working within the business. The corporate structure, through which the business was conducted, was complex and underwent restructuring from time to time. A number of trusts were involved and formed part of the overall structure. It is not necessary for the purposes of these proceedings to record the detail of the corporate and trust structure.
In or about 1985, the deceased instructed Mr Goldberg to act as his legal advisor. Mr Goldberg continued as an advisor until the time of the deceased’s death. Mr Goldberg was the deceased’s legal advisor in regard to succession planning and estate matters. Mr Goldberg also acted from time to time in respect of the general business affairs of the deceased.
In 1994, Mr Goldberg received instructions from the deceased with respect to a proposed will. The will was executed on 1 May 1996. Earlier wills were revoked. The original was placed in a deed packet held by Mr Goldberg.
In January 1997, Jane Hassan (now Jane Heyburn) married Mark Heyburn. The couple moved to Melbourne in 1998.
In 1998, Matthew Hassan, who had been working in the business for some time, received a 20 per cent interest in the shares in the principal corporate entity of the business. The purchase price for the shares was $420,028. This was provided by way of a loan from the deceased. The shares were placed in Matthew Hassan’s family trust. It was part of the arrangement that the debt would be forgiven on the death of the deceased.
On 23 September 1999, Mr Goldberg conferred with the deceased and Mr Hunt with respect to the preparation of a new will. A confidential memorandum was prepared by Mr Goldberg. A will was prepared and executed the following day. Earlier wills were revoked. Mr Goldberg placed the 1999 will in the deed packet, together with the revoked 1996 will.
By the late 1990s tensions and difficulties were arising between the deceased and Matthew Hassan. It appears that their relationship deteriorated between 1998 and 2001. Differences appear to have arisen in the management of the business. Their relationship continued to deteriorate thereafter.
In the early months of the year 2000, a restructuring of the corporate entities took place. Matthew Hassan’s family trust received a 20 per cent shareholding in the new holding company of the principal operating company. It appears that the deceased controlled the balance of the shares.
Matthew Hassan withdrew from the business in or about the year 2000, and retired as a director during 2001, but retained his shareholding through his family trust. Mr Hunt was of the opinion that Matthew Hassan was a competent manager and that the deceased was not a good manager, and that this was the cause of the problems that developed. The deceased apparently held a belief that he was being “put down” and “belittled” by Matthew Hassan.
In September 2001, Mr Goldberg prepared a new will for the deceased. Earlier wills were revoked. The will was executed on 5 September 2001. It was placed in Mr Goldberg’s deed packet with the 1996 and 1999 wills.
In April 2003, the deceased apparently wished to review his 2001 will. On 28 April 2003, Mr Goldberg forwarded a copy of the 2001 will to Mr Hunt at the deceased’s request. On 17 February 2004, Mr Goldberg met with the deceased and Mr Hunt for more than three hours, to take instructions. The handwritten notes of Mr Goldberg’s instructions were headed “Succession Plan 2004”. The notes commence with the words: “Matthew’s
hassettlement will be his inheritance”.The instructions taken for the will also contain the following:
What about Matthew challenge to will.
[? Release debt to MC Hassan Family Trust.]
Restructure –Morris’ share in Aust. Motors
to go to Hispano.]At this time Mr Goldberg did not receive instructions to proceed to prepare a will. On 19 February 2004, Mr Goldberg had had a telephone conversation with Mr Hunt and then met with him on 25 February 2004 to receive information about the overall corporate structure. On the following day, Mr Goldberg conferred with the deceased.
Documentary evidence suggests that there had been ongoing discussion over many months concerning the acquisition by the deceased of the 20 per cent share holdings held by Matthew Hassan’s family trust. As earlier observed, by this time Matthew Hassan had ceased to be involved in the business. These discussions concluded in August 2004 with the deceased agreeing to pay $1.2 million for the purchase of the shares held by Matthew Hassan’s family trust. Two hundred thousand dollars of this sum was transmitted by way of a fully franked dividend.
Late in the year 2004, the deceased, while in Melbourne, met with Mr and Mrs Heyburn. At this time the deceased informed Mrs Heyburn that he proposed to “write Matthew out of his will” to avoid “double dipping”.
On several occasions after the payment of the $1.2 million, the deceased told Mr Hunt that Matthew had received his inheritance.
Matters were in abeyance until Mr Goldberg met with the deceased on 29 October 2004, when further instructions were taken with respect to a proposed new will. On this occasion Mr Goldberg’s notes commence with the words: “Nothing to Matthew”.
The matter did not receive further attention until Mr Goldberg met with the deceased on 29 April 2005. Mr Goldberg’s account of the conduct of this meeting was as follows:
I met with [the deceased] in my office on 29 April. The two of us met alone which was rather exceptional. I normally met with him and Peter Hunt, his accountant. On this occasion he came alone. I have no file notes of that meeting other than the typed confidential memorandum, and my recollection is that after discussing his will with him, once again, I got my dictaphone and I told him that I was going to dictate a memorandum in his presence and that I wanted him to listen to me while I was dictating it and correct me if I said anything that he disagreed with. I did that. The memorandum was dictated in his presence …
…
…[M]y recollection is on this occasion I pressed [the deceased] to allow me to produce a document that reflected his current wishes and so it would have been – to the best of my recollection it would have been going through my previous file notes with him, anything he had discussed with me on that day, and dictating point by point and allowing [the deceased] to tell me if he agreed or disagreed on each point.
…
I gave [the audio tape] to my secretary [Christina Hendriks] to transcribe.
…
[After the document was transcribed] I gave it to [the deceased] to read.
…
…I do recollect that [the deceased] agreed that [the confidential memorandum] reflected his wishes.
…
On that meeting on 29 April 2005 I dictated as part of the confidential memorandum the following concerning Matthew. The heading reads ‘Matthew’ and the body of the paragraph reads as follows, “Matthew is not being left anything because he had already been provided for in his lifetime. I note that this may not be good enough to defeat an inheritance family provision claim and it follows that we will need to divest [the deceased] of his personal assets by making a gift to a family trust, possibly the Morris Hassan family trust, of an amount equal to the value of his personal assets which will be loaned back to [the deceased] on the security of a charge over his personal assets. This means that on his death his net estate will be zero and Matthew should therefore be precluded from a claim against the estate”. That is the content of the memorandum concerning Matthew.
…
... [The deceased’s] instructions were quite categoric, that Matthew was to be entirely excluded from his will.
…
After the [confidential] memorandum had been prepared and the hard copy had been brought back to the conference room for [the deceased’s] review, it occurred to me that in light of the time that had already elapsed since [the deceased] had given me his initial instructions on this new will, and his emphasis on Matthew being precluded, and my concern that it could take more time, I suggested to [the deceased] that it might not be a bad idea for him to treat this memorandum as a will, and I explained to him that if I put an appropriate clause at the bottom of it and he signed it, it [would] become a will and it would supersede his previous will. [The deceased] agreed to that course. I wrote the handwritten component on page 3 in his presence. I called in my secretary Christina Hendriks and [the deceased] signed it. I dated it, and I and Christina witnessed it, we all being present in the room at the same time.
…
… [M]y recollection is before it was stapled it was photocopied and [the deceased] took a copy away with him and indeed I discussed – I remember discussing with him that he should take it away with him and review it and come back to me. In fact, that was the intention of preparing it as a memorandum in the first place, before the thought occurred to me that he should sign it as a will. I wanted [the deceased] to have something that he could review so that I could get a higher degree of clarity in relation to some of the instructions.
…
My recollection is that I retained [the confidential memorandum]. It had a staple put through it and it was put in the deed packet with [the deceased’s] prior wills.
[When I wrote the handwritten component on page 3] I was very explicit. I explained to the deceased that if he signed that, on the basis of what I’d written on page 3, if he were to die, that would supersede his previous will and that would operate to be his will. And I can actually recollect as he was leaving the office, I said to [the deceased] jokingly that he could be comforted in knowing that if he died he’d at least sorted out the main issue concerning his estate … I’m of the view that the discussion that we had left [the deceased] in no doubt at all that he was signing a will.
… I have a clear recollection of this because it was unconventional, this is not the normal way in which I prepare wills.
I accept Mr Goldberg’s account of the meeting.
The evidence of Mr Goldberg was that he presented the April 2005 document to the deceased and asked him to sign it as his will, to which the deceased acceded and signed the document. Mr Goldberg gave evidence that this was the express purpose of printing the execution clause on the document that was otherwise prepared as a confidential memorandum. He said that he explained this circumstance to the deceased. No other “confidential memorandum” prepared by Mr Goldberg and contained in his files appears to have been executed as a will. The signatures of the deceased and two witnesses were not required for any other purpose.
These facts allow the conclusion that at the meeting of 29 April 2005, the deceased executed the April 2005 document intending it to be his will and testament. He did so having regard to the advice of his solicitor. He did so with an understanding of the process of executing a will. The deceased’s conduct in executing the document before two witnesses confirms the conclusions as to his intention.
On 20 June 2005, Mr Goldberg wrote to the deceased in the following terms:
SUCCESSION PLAN
The Memorandum that you signed concerning your succession plan is very much an interim measure.
Would you please contact me with your further feedback so that we can move this along.
The deceased responded by email on 5 July 2005 in the following terms:
I will make a time to see you when I get back from my 2 week break so that we can finalise the succession issue. I see no fundamental changes to what we set out other than the provision of some cash, the education expenses for Jane and Jeremy’s kids, and the way we are dealing with Jeremy. I think we may need to ask his [de facto] to sign some sort of [prenuptial precluding] her from claiming on his inheritance [if] that were possible.
Mr Goldberg conferred with the deceased and Mr Hunt on 8 August 2005 when further instructions were taken in regard to the deceased’s succession plan.
During October 2005, the deceased holidayed in South East Asia. His relative by marriage and a longstanding friend, Albert Bensimon, was a member of the travel group. In the course of conversation between Mr Bensimon and the deceased, the topic of estates arose. The deceased informed Mr Bensimon that he had fallen out with his son Matthew and that he would not be giving Matthew anything as he had already received an amount of about $1 million. Mr Bensimon remonstrated with the deceased, suggested that he had only paid Matthew a very modest amount and that he should treat his children equally. The deceased informed Mr Bensimon that his affairs were in order. Late in the conversation the deceased became exasperated with Mr Bensimon and said words to the effect of “Don’t harass me, I haven’t made up my mind, I haven’t finalised my affairs”.
On 26 October 2005, in the course of a general attendance on the deceased, Mr Goldberg reminded the deceased that he was to provide further information. Then on 23 January 2006, in the course of general attendance on the deceased, Mr Goldberg gave the deceased a further reminder.
In December 2005, the deceased had met with Mr and Mrs Heyburn in Melbourne and sought to have them return to the motor vehicle franchise in South Australia. Mrs Heyburn was concerned about what might happen in the event of a reconciliation between the deceased and Matthew Hassan. She raised this topic with the deceased. The deceased told her that there would not be any change of heart, and that he had taken measures to take Matthew out of his will.
On 11 February 2006, the deceased visited Mrs Heyburn and her family in Melbourne. During the course of the visit, according to Mrs Heyburn’s evidence, the deceased informed Mrs Heyburn as follows:
I said to [the deceased] that it still concerned me that if he and Matthew were reunited how that would affect the business, and if we gave up our life in Melbourne how that would affect the business.
…
[The deceased] responded that even if Matthew came and apologised to him he would never trust Matthew as far as business went, and he would never have him back in the business.
…
…I believe I asked [the deceased] if he had done his will and he said to me – he leant across the table and said to me, in no uncertain terms, that he had a will and Matthew wasn’t in it.
…
… [The deceased] leant across the table at me at the time and was very assertive in his behaviour when he said it, he was making a point.
The deceased died on 23 February 2006. He was then aged 62 years.
Matthew Hassan’s Submissions
Incomplete Dispositions
The April 2005 document contains a number of gifts that were said by Matthew Hassan not to be capable of being the subject of disposition by the deceased. Attention was drawn to the gift concerning Murray Bridge and in particular the right of access given to Margaret Hassan. It was contended that the purported gift of a right of access was repugnant to the absolute interests granted to Jeremy and Jane. It was further submitted that the gift of any inheritance from parents was an invalid attempt to dispose of an expectation of a benefit. It was said that the reference to a letter of wishes to Jane concerning the administration of a trust was imperfect as the letter had to be completed by the donor. Finally, it was contended that the reference in the document to a non-provision for Matthew was conditional on the gifts to other persons. It was said that if those gifts were incapable of being effected, the disinheritance of Matthew was of no effect. The submission of Matthew Hassan was that these invalid gifts were of such a nature as to demonstrate that the deceased did not intend the April 2005 document to be his will.
Although it was acknowledged that these were ultimately matters for a court of construction, it was contended that when viewed collectively the terms of each of these purported gifts demonstrated a lack of animus testandi.
These questions are properly left to the court of construction and not the court of probate. It is to be recalled that the April 2005 document commenced as a memorandum of instructions. The decision to execute the document as a will was made after the typed document was completed. It was at this point that the printed execution clause was added. In these circumstances it is unsurprising that there may be imperfections in the text of the document. None of the matters identified negates the presumption arising from due execution and the other compelling evidence from Mr Goldberg. Further, there is the extrinsic evidence from later statements of the deceased confirming that it had been his intention to execute the April 2005 document as his last will and testament.
A Conditional Document
Matthew Hassan next submitted that the April 2005 document was conditional in that the deceased’s intention was not complete at the time of execution – rather, his intention was conditional or contingent upon a number of factors. It was submitted that the use of the handwritten expression, “Pending execution of a more formal document I express this to be my last will [and] testament and super nomination in substitution of all prior instruments”, indicated that the deceased’s intention in signing the document was conditional upon the drafting of a formal will. It was said to be clear from the deceased’s instructions that a formal will was to be an integral part of his succession plan.
Matthew Hassan further submitted that the dispositive effect of the April 2005 document was conditional upon future events. It was contended that many of the gifts contained in the document, such as the words under the headings “Margie’s Deed”, “Margie’s Will” and “Jeremy’s house”, referred to interests incapable of disposition pending the completion of other events. It was pointed out that the deceased’s succession plan anticipated that Margaret Hassan would execute a deed with a concomitant will leaving that which she inherited from the deceased, or the investments representing her inheritance, to devolve upon Jeremy and Jane. It was said that the April 2005 document was conditional upon these events having occurred. These events, it was said, were necessary to give the April 2005 document operative effect.
Matthew Hassan further submitted that the interrelationship between the April 2005 document and the foreshadowed formal will was such that, even if the deceased intended that the April 2005 document constitute his will, its operation was conditional or contingent upon the implementation of other aspects of the succession plan.
A will may be expressed to take effect only upon the happening of some contingency or condition. If the condition fails, the document will not be admitted to probate. However, it must clearly appear from the terms of the will that the testator intended to limit its operation to the circumstances identified. According to Mortimer on Probate Law and Practice:[13]
If the testator refers to a contingency or the happening of an impending or anticipated event merely by way of ascribing a reason for his making a will, but does not express in terms his intention of limiting its operation to the happening of such contingency or event, the will shall not be regarded as contingent or conditional, nor shall probate thereof be refused on the ground that the contingency or event has not occurred.
Sir F H Jeune in In the Goods of Spratt describes the distinction in the following terms:[14]
If the will is clearly expressed to take effect only on the happening, or not happening, of any event, cadit quaestio, it is conditional. If the testator says, in effect – that he is led to make his will by reason of the uncertainty of life in general, or for some special reason, cadit quaestio, it is not conditional. But if it be not clear whether the words used import a reason for making a will or impress a conditional character on it, the whole language of the document, and also the surrounding circumstances, must be considered.
[13] Mortimer, C and Coates, H.H.H, Mortimer on Probate Law and Practice (2nd Ed) 1927 at 248.
[14] In the Goods of Spratt [1897] P 28 at 30.
The question of whether a testamentary document is conditional depends on the wording of the document itself. A testator cannot, by either words or conduct, impose a condition after the execution of a will that does not appear on the face of the document. According to Waite LJ in Corbett v Newey:[15]
That is why, surprising though the distinction may at first sight be to a layman, it is possible to have a will which is on its face conditional, and yet impossible to have a will which though unconditional on its face purports, through some direction imposed externally by the testator at the time of its execution, to be made conditional in its operation.
[15] Corbett v Newey [1998] Ch 57 at 65.
The court is generally unwilling to refuse probate of a testamentary document on the ground that it is conditional or contingent, unless it is clear that the testator intended that it should operate only in a certain event or during a certain period.[16]
[16] Mortimer, C and Coates, H.H.H, Mortimer on Probate Law and Practice (2nd Ed) 1927 at 251.
A number of authorities have addressed the question of whether a contingency is expressed in sufficiently clear wording to invalidate a will if the condition is not met. In In Re Bathern,[17] Angas Parsons J determined that the words “in case of my present sickness proving fatal” were not sufficient to deny the motion for a grant of probate:[18]
Looking at this document in the light of those principles, does it clearly appear that this is a conditional document, or does not it even more clearly appear that it is the intention of the testator to make a testamentary distribution of the property therein referred to? The words “in the case of my present sickness proving fatal” are no doubt capable in one way of conditional construction, but they are equally applicable as an expression of the reason which prompted the deceased to write the letter.
[17] In Re Bathern [1941] SASR 266.
[18] In Re Bathern [1941] SASR 266 at 268; see also In the Goods of Mayd (1880) 6 P.D. 17.
Similarly, in In the Will of Wilson,[19] Hood J determined that a will concluding with the words “I sign the above rough draft of my will as a temporary will on the eve of my leaving the colony, but to take effect as my will in the event of my death” was not a temporary or conditional will, and that probate should be granted:[20]
[T]he Court will not hold a will to be conditional unless that intention is clearly expressed, and will go to great lengths in construing the language so that the will may not be held to be merely conditional, but to be a permanent will, if possible.
[19] In the Will of Wilson (1903) 9 ALR 217.
[20] In the Will of Wilson (1903) 9 ALR 217 at 218.
These authorities illustrate the reluctance of the court to deny a grant of probate with respect to a conditional document, particularly when the document otherwise appears to embody the testamentary intentions of the testator. This will occur only when the condition is expressed in such clear and unambiguous language sufficient to nullify the testamentary dispositions if the condition is not fulfilled.
A will must be intended to have operative effect at the moment of execution.[21] This intention cannot be present if the will is conditional or contingent upon some future event occurring, notwithstanding that the condition does not appear on the face of the will. Waite LJ In Corbett v Newey stated the principle in the following terms:[22]
Since a will operates from the moment of execution, it necessarily follows that to possess the necessary animus testandi the testator must intend that this dispositive (though revocable and ambulatory) regime will be called into play immediately and not postponed to, or made dependent upon, some future event or condition.
In this case, the testatrix refrained from dating a will, in the belief that that would postpone its operation until certain inter vivos gifts had been completed. The grant for probate was denied on the basis that she did not therefore possess the relevant intention at the time of executing the will, as those conditions had not been made out.
[21] See eg In re Berger, deceased [1990] Ch 118 at 129 (Mustill LJ).
[22] Corbett v Newey [1998] Ch 57 at 65.
Godman v Godman,[23] a soldier’s will case, concerned the admission of a letter disposing of both real and personal property as a codicil to a will. As the testator had died before the Wills (Soldiers and Sailors) Act, 1918, came into operation, the letter could only operate to dispose of the personal property and not the real estate. The issue before the court was whether the dispositions of realty and the dispositions of personalty were so dependent upon one another that the admission to probate of only one part of the document would be wholly inconsistent with the testator’s intention. Lord Sterndale MR cited with approval the following passage of Sir William Wynne in Eyles v. Eyles:[24]
[23] Godman v Godman [1920] P 261.
[24] Eyles v. Eyles (1792) Hil. Term, By-Day; cited in Godman v Godman [1920] P 261 at 272-273 (Lord Sterndale MR).
There are many instances where a testator having intended to dispose of real and personal estate, the Court has given effect to the disposition as far as it can, and pronounced for the one part conveying the personalty, in other cases it has refused to do so; the distinction is this, where the devise of the realty is perfectly independent of the disposition of the personalty, then, by giving effect to the unexecuted will, the deceased’s intention pro tanto is carried into effect; but where one part appears to depend on the other, when a testator gives to A. because he has given to B., then it would defeat the intention, and be injustice to give effect to one, unless you could to the other.
Lord Sterndale MR then observed:[25]
[A] document dealing with both real and personal property, and inoperative as to realty, may be admitted to probate as a will of personal property if the disposition of the personalty can be shown to be independent and intended to operate independently of the disposition of realty.
Similarly, Warrington LJ observed:[26]
As to the document itself I cannot say the gifts of realty and personalty arise out of each other, but I think they are so far dependent on each other that it would defeat the intention of the testator if effect were given to the gift of personalty alone. The will would stand unaffected by the codicil so far as realty is concerned, and the operation of the two documents – the will and the informal codicil together – would be so different from that of the will and the contemplated formal codicil that I think it would be wrong for the Court to bring about such a result.
However, Scrutton LJ, in dissent, disagreed with Lord Sterndale MR’s formulation of the rule:[27]
I have great difficulty in following this reason as stated. It appears to treat the will as contingent: “if my wishes as to realty are carried out, then, and then only these are my wishes as to personalty.” There are a large number of cases as to contingent wills collected in Williams on Executors, 10th ed., vol. i., p. 136, where the test is stated to be “if the will is made dependent on the contingency occurring, its validity will depend on the happening of the contingent event, but that if the contemplated possible event is merely the reason of the making of the will, it will be valid and effectual in any event.” Whether a bequest was conditional, or merely motived and induced by a certain event would seem to be a question of construction rather than probate.
[25] Godman v Godman [1920] P 261 at 273.
[26] Godman v Godman [1920] P 261 at 278.
[27] Godman v Godman [1920] P 261 at 284.
Relying on the majority judgment in Godman v Godman and Corbett v Newby, Matthew Hassan submitted that the intention that the April 2005 document should operate as the deceased’s last testamentary disposition was dependent upon other aspects of his succession plan being implemented. It was said that the April 2005 document and the succession plan were “so far dependent on each other” that it would defeat the intention of the testator if effect were to be given to the April 2005 document notwithstanding that other aspects of the succession plan had not been fulfilled.
There is nothing on the face of the April 2005 document to support the conclusion that the operation of the will of the April 2005 document was conditional. The fact that the document makes reference to a will of the spouse of the deceased does not render the April 2005 document contingent upon the preparation and execution of such a document. The fact that the April 2005 document was executed in accordance with the statutory requirements indicates that the deceased intended the document to operate as his will, irrespective of future arrangements. The deceased’s desire to draw up a more formal document in the future, and to finalise arrangements for his spouse’s will, is not sufficient to invalidate this intention. The April 2005 document is not a conditional document. No express condition appears on the face of the document.
Conclusions
On the basis of the findings and considerations referred to earlier, I have reached the following conclusions.
Mr Goldberg took the deceased through the April 2005 document and received instructions that the document recorded the wishes of the deceased, and the instructions of the deceased. Mr Goldberg explained to the deceased that the purpose of printing the words at the end of the April 2005 document “pending execution of a more formal document I express this to be my last will [and] testament and super nomination in substitution for all prior instruments” was so that the document would constitute the will of the deceased and would be in substitution for the earlier wills. The deceased understood that the April 2005 document constituted his will and revoked all earlier wills. The deceased executed the April 2005 document intending it to be his last will and testament.
The statutory requirements of section 8 of the Wills Act were complied with in the manner of the execution of the April 2005 document. The hand printed words at the end of the April 2005 document “I express this to be my last will and testament” and the words “Pending execution of a more formal document” do not detract from the import of the execution of the April 2005 document. These words support the conclusion that the execution was for the very purpose of giving effect to the document as a will. The document was not a communication of the dispositions the deceased thought he might make. The April 2005 document became the deceased’s will – that is, a disposition of his assets to have effect on his death.[28]
[28] In the Estate of Treloar (1984) 36 SASR 41.
I find that the April 2005 document was duly executed. The document was signed by the deceased, his signature was made in the presence of two witnesses, present at the same time, the witnesses, Mr Goldberg and Ms Hendriks, attested and signed the April 2005 documents, and their signatures were made in the presence of the deceased. The presumption, earlier referred to, arises.
In reaching the above conclusions, I have weighed and considered and acted on extrinsic evidence including the deceased’s instructions that he wished to change his will to leave nothing to Matthew Hassan, and to his subsequent statements that he had made a will omitting any provision to Matthew Hassan. In particular, I accept that this was the substance of the deceased’s earlier referred to conversations with Mr Hunt, Mrs Heyburn and Mr Bensimon.
I conclude that the deceased, by his signature, intended to give effect to the April 2005 document as his last will and testament. He had the necessary animus testandi. The document is not conditional. The April 2005 document is admitted to probate.
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