O'Keeffe v Carlysle in the Estate of Garvan

[2006] NSWSC 93

CITATION:	O'Keeffe v Carlysle in the Estate of Garvan [2006] NSWSC 93
HEARING DATE(S):	24 February 2006
JUDGMENT DATE :	24 February 2006
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
EX TEMPORE JUDGMENT DATE:	02/24/2006
DECISION:	Plaintiff's claim dismissed. Costs of all parties to be paid out of the estate, those of the defendants on the indemnity basis.
CATCHWORDS:	WILLS PROBATE AND ADMINISTRATION - s18A - document not complying with formal requirements of a will - where document not signed or dated - document not admitted to probate
LEGISLATION CITED:	Wills Probate and Administration Act 1898 s18A
PARTIES:	Colleen Patrician O'Keeffe (Plaintiff) Charlene Rene Hoolihan and Justin Anthony Hoolihan as executors of the Estate of the late Robin Mary Ellen Carlysle (Defendants)
FILE NUMBER(S):	SC 108934/04
COUNSEL:	Mr M Gorrick (Plaintiff) Mrs M Bridger (Defendants)
SOLICITORS:	Peter Blackbwell and Associates (Plaintiff) Robilliard Lawyers (Defendants)

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

WINDEYER J

FRIDAY 24 FEBRUARY 2006

108934/04 COLLEEN PATRICIA O'KEEFFE v ROBIN MARY ELLEN CARLYSLE THE ESTATE OF DENIS DAVID GARVAN

JUDGMENT

1 HIS HONOUR: Denis David Garvan died on 22 July 2002. He left a will dated 10 August 1982 which appointed his niece, Robin Carlysle, sole executrix and sole beneficiary. Probate of that will was granted to her on 23 December 2004. Robin Carlysle died on 24 August 2004. Probate of her will was granted in Queensland on 1 November 2004 to the now defendants in this case, the executors named in that will. That probate was resealed in this state on 24 December 2004.

2 In this action the plaintiff, Colleen O'Keefe, seeks to have the grant of probate of the will dated 10 August 1982 revoked and seeks an order under s18A of the Wills Probate and Administration Act 1898 that a document which does not comply with the formal requirements of a will nevertheless be admitted to probate. The document now propounded is, I find, in the handwriting of the deceased. There was no real challenge to that and I accept the evidence of Mrs Ferguson, a sister of the deceased, that the will was in the handwriting of her late brother, Denis Garvan. The document, so far as it is clear, is in the following words:

“If I die before M B John.
I leave Every thing to him
Otherwise I leave quarter of the SALE of 68A only to Robin Carlysle Lives some where in Queensland.
Quarter of such (said?) sale under the instructions of E Carlysle Sainty to her Daughter Filiscty Carlysle ST whom lives some where in the Blue M.
The remain of the Sale of the house and anything I one(?) Own(?) to Colleen O'Kee."

3 The deceased was one of eight children of David and Margaret Garvan. All of his brothers and sisters apart from Nancy Ferguson predeceased him. He had a brother John. M B John obviously refers to my brother John. Robin Carlysle is a niece. Colleen O'Keefe is another niece. I am satisfied that the surname O'Kee is short for O'Keefe. The deceased had, at least for a substantial period, a good relationship with both his nieces, Robin and Colleen.

4 The only asset of the deceased was property 68A Carrington Road, Randwick. That property had been purchased in the name of Evelyn Carlysle, the sister of Denis, and Denis and John Garvan, as joint tenants. On the evidence before the court, that may have been a mistake, but that was what was done. There is evidence that Evelyn certainly considered that she had one half interest in the property and that Evelyn's daughters were concerned as to what might happen to the house when their uncle Denis died.

5 If I have already not said so, I should indicate that the deceased was a bachelor. He could have been expected then to give his estate to either his brother and sisters or, in the case of their having died, to his nieces and nephews, not necessarily to them all, there being a very large number of them.

6 On 9 March 2000 Messrs Lee Hourigan Brooks solicitors wrote to the deceased saying that they acted for Mrs Eve Carlysle Sainty, who is a daughter of Evelyn Carlysle, as is Robin Carlysle, the beneficiary under the 1982 will, taking up the question of the Randwick property and asking, so far as Mrs Sainty was concerned, whether her mother's interests in relation to the Randwick property could be, if you like, brought into effect but that her interests not go to her but to go to her daughter, Felicity.

7 According to Mrs Ferguson, she discussed that letter with the deceased and later she had a conversation with him in which he said to her: "I saw a solicitor about that letter and he told me to ignore it and that I should make a new will". And he said: "I will leave everything to my brother John". Later in that year, she said to her brother: "Did you fix your will?" And he said: "Yes".

8 John Garvan died in 2001. In those circumstances, it is clear that the document now propounded was written before that date. In my view I should also find that it was written after 9 March 2000 because it was the letter of that date from Messrs Lee Hourigan Brooks which suggested that what might otherwise go to Felicity's mother should go to Felicity.

9 Mrs Ferguson in her affidavit sworn on 23 March 2005 went on to say that she was concerned about matters after her brother John died, and the situation regarding his will. She said that shortly after the death of John in December 2001 she had a conversation with the deceased at her home at Sefton, where he said: "I have made a will and I have made James the executor". James is a son of Eileen Ferguson and is a nephew of the deceased, and it is likely that it is that person who the deceased was referring to in that conversation. In February 2002 Mrs Ferguson had another conversation with the deceased in which he said: "I ripped up the will because I do not want James to be executor, I want Colleen to be the executor but I don't want her to know".

10 While one must look at the evidence of statements by deceased persons with considerable care, none of this was challenged, and I accept all of the evidence of Mrs Ferguson; in other words, I accept those conversations took place.

11 Mrs Ferguson was required by the police to identify the body of her deceased brother at the City Morgue. He died, it seems, alone at home, and the police having broken into the house and found him. She did so, then went back to the house having been handed a key by the police. She went there with the plaintiff in these proceedings. She said that she went there looking for a will and to check up on the house. She said that she found the document now propounded in an open section of the deceased's wardrobe above a small set of drawers. It was not in an envelope, it was not accompanied by any other document, it was in amongst a brush, pencils, a glasses case, and hearing aids. There were no other documents on the shelf.

12 For a document to be admitted to probate under section 18A, it is necessary for there to be a document which sets out the testamentary intentions of the deceased and which the deceased intended at that time or at some later date without more to be his will. So far as the document propounded is concerned, it of course satisfies the first requirement. It is a document and as I have found it is written by the deceased. It does, on its face, embody the testamentary intentions of the person who wrote it. It does dispose of the whole of estate and it does so in what appears to be a sensible fashion, having regard to the evidence as to the interests in the Randwick house and the reason why Felicity is put forward as a beneficiary rather than her mother.

13 The question then is whether the deceased intended this document to operate from the time he wrote it or from some other time as his will. In my view that requirement is not satisfied.

14 The deceased was clearly aware of the requirements for making formal wills. He had at least made one will before, being the will admitted to probate. On the evidence, he was in touch with solicitors and the solicitors suggested to him that he should make another will. While this document propounded does not, on its face, take the form of a list of instructions, as its wording appears to be dispository, I do not think that carries the day.

15 It is clear from the conversations set out in the evidence of Mrs Ferguson that the deceased knew that it was desirable at least to have an executor and thought that he should have one. This document does not name any executor. It is not signed by the deceased. It is not dated. It falls far outside the general requirements for a valid will. That, in my view, would be sufficient to dispose of the matter. There are, however, further problems which, quite correctly, Mr Gorrick identified. Those problems arise through the conversations which are set out in the evidence of Mrs Ferguson. If it is correct that the deceased made a will giving everything to his brother John which one might conclude might have been made in accordance with this propounded document, then it seems that John having died, the deceased said he had made a will naming James as executor. If that were the position, then if this propounded document at that stage had testamentary effect, it would have been, firstly, revoked by any will leaving everything to John and, secondly, if there was no such will, by the will naming James as executor, which will, if it disposed of the whole of the estate of the deceased, would have revoked any earlier will. The court of course does know about this but, as counsel for the plaintiff so correctly says, it would require the court to come to the conclusion that John having died and James having been dismissed out of mind, the deceased from that time on intended to revive this document in some way and make it his last will. There is no evidence of words or actions to support this and it is a conclusion which I think is quite impossible for the court to reach. It seems to me that the claim put forward in this way must fail. I order that the plaintiff's claim be dismissed. I note the parties have agreed on the following orders as to costs.

16 Order that costs of all of the parties be paid out of the estate, those of the defendants on the indemnity basis. The exhibits can be returned other than Exhibit A.

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