Permanent Trustee Company Limited v Pasztor Gezanne

[2005] NSWSC 173

CITATION:	Permanent Trustee Company Limited v Pasztor Gezanne; Estate of Bela Balogh [2005] NSWSC 173
HEARING DATE(S):	21 February 2005
JUDGMENT DATE :	21 February 2005
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Summons dismissed

CATCHWORDS:	WILLS - whether informal document should be admitted to probate - LEGISLATION - Wills Probate and Administration Act 1898 s18A
LEGISLATION CITED:	Wills Probate & Administration Act 1898, s18A
PARTIES:	Permanent Trustee Company Limited (Plaintiff) Pasztor Gezanne (Defendant)
FILE NUMBER(S):	SC 119261 of 2004
COUNSEL:	Mr J R Wilson SC (Plaintiff) Mr L Ellison (Defendant)
SOLICITORS:	Bartier Perry (Plaintiff) Grinberg Young (Defendant)

LOWER COURT JURISDICTION:

- 2 -

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

WINDEYER J

MONDAY 21 FEBRUARY 2005

119261/04 PERMANENT TRUSTEE COMPANY LIMITED v PASZTOR GEZANNE

JUDGMENT

1 HIS HONOUR: The question in this matter is whether a document which bears a date 27 August 1985 should be admitted to probate. The deceased died sometime between 11 October and 7 November 2002, aged 83 years. He was a bachelor. His parents predeceased him. He was one of a family of three children. His brother predeceased him. His sister survived him. The only person entitled to his estate on intestacy in those circumstances is his sister.

2 Under the document in respect of which a grant is sought, the deceased appointed Permanent Trustee Company Limited as executor of his will. He gave to his brother, who is now deceased, a home unit at North Sydney and a number of listed investments. That list is clearly taken from a document which is in evidence dated 28 September 1984 under which his investment advisers informed him of his then investments and to which he appears to have added a note which sets these out again. He gave to his sister a unit at Liverpool and certain other personal property such as a van and a boat and moneys in bank accounts. He gave to the Catholic Church at Liverpool and the Salvation Army Liverpool equal shares, "all of my other assets not included above” (being furniture, radio, T.V., clothing et cetera).

3 The deceased's signature appears opposite the word "signature" handwritten by him. The document at its foot has the words "first witness address" and underneath that "second witness address" with no signatures. As the word "signature" is written twice in the writing of the deceased, it is not clear whether or not that was supposed to be for the signatures of the witnesses or for the signature of the deceased. The signature on the will is, I think, sufficiently proved to be that of the deceased. It is in a different pen to that used to prepare or write out the rest of the document. In other words, it is in a blue pen which appears to be of the biro type and the rest of the document appears to be written with a fountain pen. In any event, it is perfectly clear that there are different pens used.

4 This document was found by a representative of the Public Trustee among papers in the deceased's bedroom in a drawer under the bed which had in it, as well as this document, rate notices from the Liverpool and North Sydney Councils, Water Board notices, bank statements, and correspondence about general property, trust units, and AGC shares. The certificates of title to the two properties owned by the deceased were not with those documents. It is an agreed fact that the deceased was a meticulous person who kept records important to his financial affairs. He did keep a diary but this document is not mentioned in it.

5 As the deceased has been described in evidence as a loner, there is no person to whom it seems he would be likely to have acknowledged having made a testamentary instrument. The question, then, is whether I am satisfied that the document propounded is one embodying the testamentary intentions of the deceased and was intended by him without more to operate as his will either as from the date it bears or on some other date.

6 It is I think relevant to bear in mind that the document was written out before s18A was included in the Wills Probate and Administration Act 1898 by amendment. It is also, I think, relevant that the deceased seems clearly to have understood the requirement for the document to be witnessed by two persons. Were it not for the difference in ink, I would have had little difficulty to determine that the requirements of section 18A were not met. While counsel for the plaintiff originally suggested that the document must have been prepared on 27 August 1985 in one pen and signed on the same day in another pen, that is by no means clear, and that view is not really now pressed except as a possible contention.

7 The document may have been signed at any time after 27 August 1985 or it might have been signed on that day. If it was signed on that day, then its form, I think, predicates against making the necessary declaration. The requirement for witnesses would seem to indicate that the deceased knew of this and, therefore, did not intend the document to operate as a will prior to its being witnessed. If it were signed at a later date - and there is no way that the court can determine whether it was signed on 27 August 1985 or some later date - it is still, I think, not possible to determine that the deceased intended it to operate as a will without more.

8 I should say, however, that there is one matter revealed in evidence which might support the claim for the document to be admitted to probate, that is a document which came from the papers of the deceased which apparently reports a speech made to some association by Mr Burgess of the Law Consumers Association referring to the rules for the making of a valid will. It is submitted that, as the deceased kept this in his possession, and was a meticulous man, then as he did not on the evidence make another will, and the document remained in existence for a long period of time, this points to the deceased considering that it was his will.

9 I do not think it is possible for the court to come to that conclusion. The date the document bears, the doubt about when it was signed, the fact the deceased obviously understood that two witnesses were required at least on that date, I think makes it is impossible to say that the plaintiff has satisfied the onus upon it to establish that the document should be admitted to probate, and, therefore, I refuse that application.

10 The orders are the summons filed on 11 November 2004 be dismissed. Note that it is agreed by counsel for the next of kin that the costs of both parties to this summons be paid out of the estate.

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