Re Hamilton; Hughes v O'Donoghue
[2020] VSC 876
•21 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2019 03212
IN THE MATTER of the Will and estate of ALAN NICHOLAS AVERELL HAMILTON, deceased, and IN THE MATTER of an application pursuant to Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for determination of questions arising in the administration of the estate
| DAVID JAMES HUGHES (in his capacity as administration of the estate of ALAN NICHOLAS AVERELL HAMILTON) | Plaintiff |
| v | |
| BRIAN O’DONOGHUE (by his litigation guardian Anton Van Den Dungen) & Ors (named in the annexed Schedule) | Defendants |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 December 2019 |
DATE OF JUDGMENT: | 21 December 2020 |
CASE MAY BE CITED AS: | Re Hamilton; Hughes v O’Donoghue |
MEDIUM NEUTRAL CITATION: | [2020] VSC 876 |
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WILLS AND ESTATES – Construction of will – Mistake or misdescription of legatee – Where named beneficiary in will not found – Where first defendant claims to be beneficiary – Fell v Fell (1922) 31 CLR 268; Hopwood v Cuthbertson 10 Tas R 186 – Wills Act 1997 (Vic) s 36.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Pitt | Lawson Hughes Peter Walsh Lawyers |
| For the First Defendant | Mr C Northrop | Matthew Shaw & Associates |
HER HONOUR:
Plaintiff’s application
By originating motion and summons filed 8 July 2019, the plaintiff, in his capacity as administrator of the estate of Alan Nicholas Averell Hamilton, deceased, seeks the determination of whether the first defendant is entitled to receive a pecuniary legacy of $200,000 pursuant to clause 3(b) of the deceased’s will dated 9 October 2014 (‘the will’).
Clause 3 of the will provides:
I LEAVE the following bequests:
a) to my friend JUDY BAYLISS the sum of Five hundred thousand dollars ($500,000.00);
b) to friend BRYAN HOGAN the sum of Two hundred thousand dollars ($200,000.00);
Judy Bayliss (‘Judy’) is a known friend of the deceased. The first defendant, Brian O’Donoghue, claims to be the person entitled to the pecuniary legacy of $200,000.[1]
[1]The first defendant is represented by his litigation guardian, Anton Van Den Dungen.
The second defendant (‘Rohan’) is the deceased’s brother. Rohan and the third to fifth defendants are the residuary beneficiaries under the will. The third defendant (‘Merran’) is a friend of the deceased. The fourth defendant (‘Fraser’) and fifth defendant (‘Josephine’) are Merran’s adult children. No appearances were filed by the second to fifth defendants, although Merran and Josephine filed affidavits in the proceeding.
Background
Alan Nicholas Averell Hamilton died on 12 October 2014.
Pursuant to the will, the deceased appointed Rohan, Merran and Josephine as his executors.
Subsequent to the deceased’s death, Rohan commenced two proceedings relating to the estate of the deceased. The first proceeding concerned the validity of the will (‘the probate proceeding’).[2] Pursuant to the deceased’s penultimate will dated 28 November 1997, Rohan was the executor and beneficiary of the estate. In the second proceeding, Rohan claimed that the deceased’s estate was held on trust for him pursuant to an agreement whereby the deceased promised to leave his estate to him (‘the trust proceeding’).[3]
[2]Proceeding S PRB 2015 04942.
[3]Proceeding S CI 2017 00332.
By terms of settlement dated 18 August 2017, both the will proceeding and the trust proceeding were compromised on the basis that the will was the deceased’s last valid will, that the plaintiff be entitled to obtain a grant of letters of administration with the will annexed and — subject to certain assets being transferred to Merran, the fourth defendant and Josephine — Rohan would be entitled to the balance of the deceased’s estate.
On 21 August 2017, letters of administration with the will annexed were granted to the plaintiff.
Affidavits relied on by the parties
The plaintiff filed an affidavit sworn 4 July 2019. After the conclusion of the trial, the plaintiff filed an affidavit sworn 17 December 2019 and an affidavit of Leanne Jessep, solicitor for the plaintiff, sworn 18 February 2020. The affidavits filed after the trial dealt with the plaintiff’s further searches and enquiries made at the request of the Court.
The first defendant relied on the affidavits of Joan Van Den Dungen sworn 28 October 2019, Judy Bayliss sworn 30 October 2019, John Balfour Blanch sworn 1 November 2019, Merran sworn 8 November 2019, Josephine sworn 27 November 2019 and Mark Cerne, solicitor for the first defendant, sworn 20 February 2020.
In addition, the first defendant sought to rely on affidavits filed in the probate proceeding as evidence in this proceeding, namely:
(a) his affidavit sworn 26 February 2016 and the affidavits of John Balfour Blanch sworn 29 February 2016, Carole Nancy McMahon sworn 29 February 2016, Judy Bayliss sworn 26 February 2016 and Brian Leslie Cullum sworn 20 April 2016; and
(b) parts of Merran’s affidavit sworn 1 March 2016, and exhibits ‘MJS 11’ and ‘MJD 25’ to that affidavit, parts of Josephine’s affidavit sworn 2 March 2016 and parts of Rohan’s affidavit sworn 22 April 2016.
No orders were sought by the first defendant to use the documents and information referred to in the affidavits filed in the probate proceeding and to which s 27(3) of the Civil Procedure Act 2010 applies. The plaintiff did not formally object to these affidavits being evidence in this proceeding, but submitted that much of the evidence in the affidavits was ‘speculative and inadmissible’ and was of little probative value.
The affidavits relied on by the first defendant from the probate proceeding were directed to the factual issues concerning the validity of the will, including the testamentary capacity of the deceased. The issues in this proceeding concern the making of the will, in particular, the deceased’s instructions in relation to clause 3, the searches made for the person named in clause 3(b), and the evidence relied on by the first defendant to support his claim that he is the person entitled to the pecuniary legacy in clause 3(b).
The evidence
At the beginning of 2014, the deceased was diagnosed with a squamous cell carcinoma under his tongue.
In her affidavit filed in the probate proceeding, Merran deposed that on 15 April 2014 she met the deceased for dinner on Chapel Street. At the dinner, he told her of his diagnosis, that he had begun a course of chemotherapy and ray treatment, and that he had seen his doctors and his chest was clear. He also told her he wished to make provision for Merran and her children in his will and asked her for details of a lawyer that she might know. On 26 May 2014, Merran emailed the deceased with the contact details of Mr Blanch, a solicitor, whom she knew had done work for Josephine.
On 8 October 2014, the deceased was admitted to the emergency ward of the Alfred Hospital. At around 8 o’clock that evening, the hospital called Merran to tell her that the deceased had been admitted and that he had asked her to come to the hospital. After having dinner, Merran called Josephine and they arranged to meet at the Alfred Hospital. They saw the deceased together in the emergency ward. Merran described the deceased as sitting ‘bolt upright’ and ‘totally focused and intent’. He demanded that Merran fetch a pen and paper and said: ‘This is very important’. As soon as Merran had a pen and paper, he started dictating his will ‘with great urgency’ to Merran, in the presence of Josephine. Merran described the deceased as very alert, even though he was in considerable pain and had trouble speaking. He used his fingers to reinforce the specific amounts in clause 3. Merran knew the name ‘Judy’ but not the surname ‘Bayliss’, so the deceased spelt that name for her. She did not ask him to spell out ‘Hogan’ as it was a ‘straight forward name’. Merran’s notes of the conversation were recorded by her on a piece of paper and included the following:
I wish to leave my assets to the included:
a) Judy Bayliss, $500,000
b) Bryan Hogan, $200,000
Josephine, a medical practitioner, described the meeting with the deceased when he told Merran and her how he wanted to leave his assets. Josephine deposed that the deceased had difficulty talking as his mouth was dry and his voice was very soft. At certain points she found it difficult to hear the deceased’s exact words. At some points, he used his fingers to emphasise the amounts for Judy and Bryan. She recalled Merran attempting to clarify the full names of the people he was referring to, with ‘Judy’ being ‘Judy Bayliss’ and ‘Bryan’ being ‘Bryan Hogan’.
The deceased wanted to have the dictated draft signed and witnessed that evening. Merran deposed that he was emphatic that his will be properly signed and correct. He told Merran he needed a lawyer and asked her to make sure it was ‘all done and correct’. Merran took the dictated will to the doctors’ station and asked for the will to be witnessed. This was not possible as the staff at the hospital told Merran that it was not hospital protocol for staff to witness wills.
Merran deposed that the deceased considered the situation was critical and Josephine called Mr Blanch’s mobile and left a message. This was confirmed by Josephine. Merran also contacted a person she knew who worked at a solicitor’s firm and asked her to assist, however, that person was unable to do so.
Merran was unsure whether she or Josephine contacted Mr Blanch the next morning but in the morning they did contact the Alfred Hospital as they needed their services to fax the dictated draft will to Mr Blanch. The social work department at the Alfred Hospital suggested that Merran and Josephine enlist the lawyer service provided by the Alfred Hospital called HeLP Lawyers. Merran deposed that a person named Kate Booth from HeLP Lawyers met with the deceased alone and that she may have written the names of the intended executors on the draft that Merran had written. Ms Booth advised them that the services of HeLP Lawyers were designed for patients in financial stress or pensioners.
In his affidavit filed in the probate proceeding, Mr Blanch deposed that Josephine contacted him around 10.30pm on 8 October 2014 and asked if he would be available to do a will for a terminally ill patient and gave some further details. Mr Blanch had known Josephine for many years and had acted for her for a number of years. Mr Blanch said he was happy to be involved and they agreed to discuss matters in the morning.
On 9 October 2014, Josephine again spoke with Mr Blanch and faxed Merran’s handwritten notes dated 8 October 2014 to him. The first note is short and lists the deceased’s wishes in a simple form. The second note is more detailed; it includes a revocation clause, the appointment of executors, pecuniary legacies, distribution of the residue of the estate and provides for the signatures of the deceased and two witnesses. This second note includes the specific gifts with the names and amounts unchanged, a residuary clause and the names of three executors. Both handwritten notes include the name ‘Bryan Hogan’. The third note contains the names and addresses of the three executors and four residuary beneficiaries.
Merran’s affidavit filed in the probate proceeding exhibits a copy of the original dictated will on hospital paper dated 8 October 2014, which contains the two legacies and for the residue to be divided between the second to fifth defendants. The documents faxed to Mr Blanch include the simple version of the original dictated version set out in a slightly different form, however, both versions include the name ‘Bryan Hogan’ and the legacy of $200,000.
Mr Blanch drafted two copies of the deceased’s will, with the difference being the inclusion of Rohan as an executor. The drafts were created by Mr Blanch using a precedent will and Merran’s notes, as provided by Josephine. Mr Blanch printed the draft copies of the will and, with a solicitor, Ms McMahon, took them to the Alfred Hospital at around 12.15pm that day. Upon arrival, Mr Blanch and Ms McMahon were met by Merran and Josephine. Mr Blanch and Ms McMahon went into the deceased’s room and Merran and Josephine remained outside.
Mr Blanch and Ms McMahon met with the deceased. Mr Blanch asked the deceased whether he wished to have two or three executors, Merran and Rohan, or Merran, Rohan and Josephine. The deceased chose three. Mr Blanch then took the deceased through each clause of the draft will, including clause 3(b). The deceased made no reference to or comment on the surnames and confirmed the bequests. The deceased indicated to Mr Blanch that he was happy with the draft will and wished to sign it. The deceased signed the will in the presence of Mr Blanch and Ms McMahon.
On his return to his office, Mr Blanch prepared a file note of his attendance on the deceased. He noted that throughout his interactions with the deceased, the deceased engaged in normal conversation and responded to questions and statements with warmth and clarity. He recorded, amongst other matters, that he went through the clauses for the bequests and the residuary estate with the deceased who indicated his satisfaction with each of them. He also recorded his clear impression that the deceased was lucid and alert, understood his estate and those he wished to benefit and was clear about how he wanted to dispose of his estate. Mr Blanch considered the deceased knew what he was doing and felt it was unnecessary to obtain any corroborative evidence as to his mental condition.
In his affidavit filed in this proceeding, Mr Blanch deposed that he received instructions through Merran and that Merran provided her notes to him and he based the will he drafted on those notes. He deposed that the notes and the will provided for bequests to Judy and Bryan. Mr Blanch deposed that, after being read each clause in the will, the deceased did not demur on the written text.
In her affidavit filed in the probate proceeding, Ms McMahon deposed that in October 2014 she was a newly admitted solicitor. She accompanied Mr Blanch to the Alfred Hospital on 8 October 2014. She was present when Mr Blanch read each clause in the will to the deceased and confirmed that he understood the clauses. Ms McMahon deposed that the deceased was clear in his answers, was not slurring his words or giving any indication that he was affected by drugs or pain and appeared controlled and responsive. Her file note of the meeting records that he was alert.
The deceased died three days later on 12 October 2014.
Relationships with the deceased
First defendant
In his affidavit sworn 26 February 2016 filed in the probate proceeding, the first defendant deposed that he first met the deceased in the late 1990s, around the time he married Judy. He said the deceased attended their engagement party and wedding.
The first defendant deposed that he remained close friends with the deceased until his death. He saw the deceased regularly over the years and he and Judy would catch up with the deceased for meals. He characterised his friendship with the deceased as ‘convivial’. Judy characterised the friendship of the first defendant and the deceased as ’good friends’.
The first defendant deposed that he is Judy’s carer. In an email dated 20 December 2014 to Rohan, Judy described the first defendant as her part-time carer.
The first defendant deposed that he and Judy live separately in rented accommodation, although he visits her every week. The first defendant is unable to work due to his own health issues. He also deposed that the deceased was aware of the couple’s ‘precarious financial position’.
The first defendant’s sister, Joan Van Den Duggan, deposed that the first defendant has suffered from depression since 2010.
In response to an email dated 26 October 2014 responding to Josephine, Rohan referred to the fact that the first defendant did not even make it to the funeral and expressed his view that a bequest to him was far too generous given what he knew of his role in the deceased’s life.
By email dated 20 December 2014, Judy informed Rohan that the first defendant was admitted as an inpatient to the Albert Park Clinic with alcohol-related problems for three weeks and was at the Clinic when the funeral took place on 15 October 2014.
In response to the plaintiff’s request for information concerning the identity of the named beneficiary, Rohan said he believed that the first defendant was an inpatient at the Albert Road Clinic in Albert Road, Melbourne, which specialises in addiction therapy for inpatients, whereas the Albert Park Clinic does not take inpatients.
Ms Van Den Duggan deposed that, as at October 2019, the first defendant has been hospitalised with severe depression in an Aged Psychiatric Facility in Caulfield.
The first defendant’s wife, Judy
Judy has suffered from multiple sclerosis for around 44 years and is confined to a wheelchair. She met the deceased in 1978 when she visited Rohan at his home, which was also where the deceased lived. Thereafter, Judy met with the deceased regularly.
In 1983, Judy was hospitalised for nine months and the deceased was a regular visitor when she was in hospital. Judy was also in hospital subsequently on other occasions
She deposed that, upon her engagement to the first defendant, the deceased took them out for a celebration and that thereafter the deceased and the first defendant became friends. Judy and the first defendant subsequently married and the deceased attended the wedding. The marriage took place on 8 February 1997, after which Judy and the first defendant lived separately but saw each other every week. They went on holidays together and the first defendant would often stay over at her place on weekends.
Judy deposed that, about one year before his death, the deceased became reclusive. He did not tell Judy that he was ill and only told her about three weeks before he died that he had trouble swallowing.
In her affidavit filed in the probate proceeding, Judy’s belief was that the first defendant is referred to in the deceased’s will as Bryan Hogan.
In her affidavit filed in this proceeding, she reiterated that the first defendant and the deceased were friends. She is unsure if the deceased and the first defendant met before her wedding on 8 February 1997, but both of them were there. Judy said that the first defendant and the deceased were good friends, who worked together on various schemes and had similar interests. She is not aware of any person with the name Brian Hogan and does not know of any person called Brian who was a friend of the deceased, other than the first defendant.
In an email dated 2 November 2014 to Judy, Rohan specifically asked Judy whether she knew of a Brian Hogan, to which she responded: ‘no don’t know him’. In an email dated 24 December 2014, Rohan told Judy that if the deceased did have a friend called Bryan Hogan, he could not imagine the deceased being unaware of his surname and, if he was unsure of the surname, the deceased could have easily referenced it by saying it was Judy’s husband or carer.
Deceased’s funeral and wake
In an affidavit filed in the probate proceeding, Brian Leslie Cullum deposed that he has known the deceased and Rohan for around 48 years. The Hamilton family and the family of Mr Cullum’s wife were close, with Rohan’s mother being the godmother of Mr Cullum’s wife. Mr Cullum spent a lot of time in the company of Rohan’s mother at social and family events and they were very fond of each other. He also spent time with Rohan on a number of occasions, but felt he knew the two boys more anecdotally, as well as personally, as the Hamilton family were a constant source of conversation in his family.
Mr Cullum and his family attended the deceased’s funeral on 15 October 2014 and the wake held afterwards. At the wake, Mr Cullum was introduced to Merran and Josephine, who told him they were the hosts of the wake. Mr Cullum deposed that, after Josephine introduced herself, he told her his first name. She looked at him strangely and said: ‘But I rang you yesterday and you said you wouldn’t come today.’ Mr Cullum told her that she had not called him and told her his surname. She said she had spoken to a Brian yesterday who told her that he was not coming to this ‘bloody funeral’. She said the Brian she spoke to seemed very angry and adamant that he would not come to the funeral. She expressed shock that the Brian she had spoken to was so rude to her when she didn’t even know him.
In his affidavit filed in the probate proceeding, Rohan deposed that he heard Josephine complaining to guests at the wake that she had telephoned someone that she believed to be Bryan Hogan a day or two before and asked him whether the person intended going to the funeral. Josephine told the listening guests that she was ‘rudely and contemptuously’ dismissed by this person, having been asked: ‘Why would I attend? What has he ever done for me?’
Subsequently, on 24 December 2014, Rohan asked Judy whether the first defendant had received a call from Josephine. She responded that the first defendant had never received a call from her.
Josephine described a conversation that she had with a person she believed was Judy’s husband, and that she believed that it was Brian O’Donoghue. She deposed that she does not know of nor has she ever contacted a Bryan Hogan. Her recollection is that Judy gave her the number for the first defendant. She telephoned who she believed was Judy’s husband and offered him a lift to the deceased’s funeral. His response was abrupt, but not angry, and she thought he did not know who she was. The conversation was short. He did not refuse to attend the funeral nor did she recall him expressing an opinion concerning the funeral. He did not say he was not coming to the ‘bloody’ funeral or ask why he would bother attending or what the deceased had ever done for him.
Searches conducted for ‘Bryan Hogan’
Investigations have been carried out amongst the deceased’s friends and acquaintances for ‘Bryan Hogan’. The plaintiff deposed as to the results of his enquiries of the deceased’s family and friends and other relevant parties regarding the identity of ‘Bryan Hogan’. None of them had heard of such a person. The plaintiff also made the following inquiries:
(a) In August 2017, he made a search of the White Pages directory for a B Hogan, with the only listing being a ‘B Hogan’ in Windsor, Victoria.
(b) On 1 December 2017, the plaintiff requested notes or statements from Mr Blanch’s will file from Mr Blanch.
(c) He requested information from Rohan regarding any ‘Bryan Hogan’ of whom he was aware.
(d) He requested information from Merran about the identity of any ‘Bryan Hogan’.
Mr Blanch provided the plaintiff with documents from Merran and Josephine, being the handwritten notes that Merran transcribed to the deceased’s dictation and the second handwritten will.
Rohan does not know of a friend of the deceased named Bryan Hogan. He deposed that the deceased was well aware of the full name of the first defendant and his telephone number.
Merran went through the deceased’s personal papers and could not find a record of a Bryan Hogan.
Three exercise books said to belong to the deceased were referred to in some of the affidavits, but only selected pages were exhibited. There was no evidence that the books were in the deceased’s handwriting, however, the parties accepted that the writing in the exercise books was that of the deceased. At the time of the trial, the exercise books were held in the custody of counsel for the first defendant. At the end of the trial, the Court required production of the books for inspection by the plaintiff and the Court.
The exercise books include a myriad of detail over the years, including personal thoughts, names of people, contact details of family, friends and other contacts (such as lawyers and various professional people), drawings, shopping lists, questions to be asked, registration details, notes for VCAT hearings concerning the deceased’s mother and all manner of personal thoughts. Overall, their contents indicate that the deceased was a detailed person, although the detail is not in any apparent order. Inspection of the books reveal a reference to ‘Brian’ with a telephone number, as well as a number of references throughout the notebooks to a ‘Julienne Hogan’.
Ms Jessep, partner of the plaintiff’s solicitors, undertook a detailed inspection of the original exercise books. She noted a number on a page that included the words ‘Brian 97955571’. On 22 January 2020, she telephoned the number and a recorded message advised that the number was disconnected. Subsequently, Mr Cerne, solicitor for the first defendant, arranged a search of the number, which indicated that the number was previously registered to the surname ‘D’Rozario’ in Mulgrave. Mr Cerne forwarded this result to Ms Jessep and enquired if she intended to carry out further searches. Ms Jessep responded that she was instructed not to undertake any further searches as to the identity of Bryan Hogan.
In respect of the references to a ‘Julienne Hogan’, Ms Jessep noted that, throughout the notebooks, the name was also spelled ‘Julian Hogan’. On some of the pages, there was a list of questions to be asked of Ms Hogan and a telephone number ‘9603 9519’ and to ‘Office of Public Advocate’ next to Ms Hogan’s name. Between 22 January 2020 and 11 February 2020, Ms Jessep telephoned the number and left messages for Julienne Hogan to return her call. On 12 February 2020, a person by the name of Julienne Hogan called Ms Jessep. Ms Hogan confirmed that she worked for the Office of the Public Advocate. She informed Ms Jessep that she did not know a person with the name of the deceased and that she did not have a personal relationship with any person with that name. Ms Jessep noted there was an arrow under Ms Hogan’s name pointing to a reference ‘G45539’. As Ms Jessep was aware the deceased’s mother was under an order pursuant to the Guardianship and Administration Act, she asked Ms Hogan whether she would have dealt with the deceased in relation to the VCAT proceeding. While on the telephone to Ms Jessep, Ms Hogan searched the records of the Office of the Public Advocate and confirmed there was an application in the VCAT Guardianship List with that reference number. Ms Hogan confirmed that the deceased was listed on the file as the son of the represented person but was unable to confirm that she had liaised with him in relation to his mother’s affairs, as the file was closed in 2007 and she no longer had access to the filing system that was used at that time.
The exercise books contain references to Judy and the first defendant. There is a reference to ‘Judith Buchanan Bayliss’ above ‘Brian O’Donoghue’ with a date on the same page being 14 December 1996. On another page of the same book there is a reference to ‘Judy’s Brian’ along with a phone number. Judy confirmed that the telephone number was the number of the first defendant. Under this entry are Judy’s credit card details. In addition, there is an entry that refers to Brian with a phone number and an address. The address largely matches the first defendant’s address in his affidavit. Mr Blanch’s details were also in the exercise books.
Merran deposed that the deceased often asked her for contact details of people who she knew professionally, such as tradespeople. She said the deceased had an eye for recording details, and was concerned to know people’s names. She deposed the only reference to a Brian or Bryan in the exercise books she found was to ‘Judy’s Brian’ and says this is a reference to the first defendant. Merran deposed that the name Brian O’Donoghue was written in one of the deceased’s notebooks, along with a telephone number, residential address in Elsternwick and his pension number. Merran noted there was a similar entry in the notebooks elsewhere.
Plaintiff’s submissions
The plaintiff submitted that there were two tasks before the Court. First, the Court must construe the will as a whole without reference to extrinsic evidence of the testator’s intention. Second, extrinsic circumstances can be used to determine the meaning of the words in the will to identify a beneficiary. If there are several beneficiaries that fit the description in the will, then evidence of the testator’s intention is admissible. Evidence of the surrounding circumstances can show an intended beneficiary where the name in the will is inaccurate.
The plaintiff noted that the first defendant, as the person who claims to be a beneficiary of the will, bears the onus of showing, on the balance of probabilities, that he is the person named in the will.
The plaintiff then listed factors that are in favour of construing the gift as being to the first defendant, as well as against that construction. The factors the plaintiff considered to be in the first defendant’s favour are:
·no-one called Bryan Hogan has been located, or is known to be a friend of the deceased;
·when the deceased gave instructions to make a gift to ‘Bryan Hogan’, it is assumed the deceased must have been referring to a person he knew;
·it is possible that the deceased was not aware of the first defendant’s last name, as it was his habit to refer to his friends by their first name only; and
·the life circumstances of the first defendant are such that he is in need of funds, which may explain why the deceased made a gift to him.
The factors the plaintiff considered were not in the first defendant’s favour are:
·while the deceased was having trouble speaking when communicating his wishes regarding his estate, he did say the words ‘Bryan Hogan’ in a sufficiently clear way that this could be written down; and
·Mr Blanch went through the will with the deceased ‘clause by clause’, and the deceased signed this document.
The plaintiff concluded that it is evident the deceased wished to give a $200,000 bequest to someone and that he believed that person to be Bryan Hogan. The plaintiff submitted that it was unlikely that the inclusion of the name in the will was a mistake in the will, but rather it was a mistake in the deceased’s mind. However, there is no direct evidence to show that the deceased was referring to the first defendant. The nexus between the first defendant and the relevant gift in the will is simply that the first defendant is the only ‘logical candidate’. By submitting that, just because there is only one individual who could logically be the person referred to as Bryan Hogan in the deceased’s will, does not mean that the gift should be given to him because there are no other suitable candidates.
Counsel also drew attention to the fact that it was very difficult to hear what the deceased was saying while he was dictating the dispositions. Counsel noted the deceased was on morphine shortly before he dictated the will.
Counsel also noted that the outcome of the settlement in the 2015 proceeding is that Rohan would receive the bequest of $200,000 if the gift in clause 3(b) fails for uncertainty.
First defendant’s submissions
The first defendant submitted that the approach of a court when construing the proper beneficiary in a will is to follow one of the golden rules of construction, being to construe a will so as to avoid an intestacy, and referred to several cases where beneficiaries were incorrectly described and the golden rule had been applied.
This includes the case of Re Newman,[4] where the testator devised certain land to his son for his lifetime and thereafter to his son’s daughter, ‘Mavis born of his present wife Edith’. The son’s first wife was Daisy and the daughter of the marriage was named Lillian Mavis. When the will was made, the son was married to his second wife, Ethel, and the couple had brought up a child as their own under the name of Mavis Joy, although she had not be legally adopted. In his reasons, Starke J stated:
[T]he Court is unwilling to find a gift void for uncertainty and will use every endeavour to find what is meant. It is only if there is no one accurately answering the description and several persons to whom it applies with more or less accuracy, and there is nothing to enable the Court to decide between them, that the Court will hold the gift is void for uncertainty.[5]
[4][1967] VR 201.
[5]Ibid 203, citing Sir HS Theobald and Sir Oshley Roy Marshal, Theobald on Wills (London: Stevens, 12th ed, 1963), [806]–[807].
The first defendant’s written submissions noted similar comments in other decisions in this area.[6]
[6]Re Edwards [1981] VR 794, 795; Hopwood v Cuthbertson [2002] 10 Tas R 186, 194 [22] (Underwood J, Evans J agreeing) (‘Hopwood’).
The first defendant submitted that, on the evidence, the first defendant was the person the testator had meant when he had bequeathed $200,000 to Bryan Hogan, despite the fact that he misspelt his first name and incorrectly recorded the second. Overall, he submitted, the surname in the bequest to ‘Bryan Hogan’ was ‘misremembered, misstated, misheard or a combination of factors’. The factors that the first defendant submitted were relevant to these conclusions included:
·Mr Blanch, who attended by the deceased’s bedside and drew up his will, was of the opinion the deceased ‘knew what he was doing’;
·the contents of clause 3, whereby the deceased was leaving money to two friends, were confirmed by Mr Blanch with the deceased;
·the deceased clearly indicated that he wanted to leave two bequests to two people, and intended to make this gift to people who were living and known to him;
·the first bequest was left to Judy, who is the first defendant’s wife and a friend of the deceased;
·the first defendant was in a difficult financial situation;
·the first defendant is referred to in the deceased’s notebooks as ‘Judy’s Brian’, with his phone number, and is also noted in a range of other places in the deceased’s notebooks; and
·there has not been a suggestion of anyone else who could fit the description of ‘Bryan Hogan’.
In oral submissions, counsel emphasised that the deceased intended to give a specific gift to a specific individual. Counsel relied on the searches conducted for a ‘Bryan Hogan’ to support this conclusion. Counsel also submitted that there was evidence the deceased had been thinking about making a will for some time, since April 2014. Counsel relied on Merran’s affidavit, the email Merran sent to the deceased in May containing Mr Blanch’s details and the reference to Mr Blanch in the deceased’s notebooks to support this submission.
Counsel submitted that the entries in the deceased’s notebooks indicated that the first defendant had been friends with the deceased for a long period of time. Counsel drew the Court’s attention in particular to references to ‘Judy’s Brian’ and the entry where Judith Buchanan Bayliss is listed directly above Brian O’Donoghue.
Counsel reiterated the submissions that the testator was very determined to make a will and, on the evidence, determined to make two specific bequests to two different people.
Counsel conceded that the efforts to find a Brian Hogan had not been set out before the Court in detail. Counsel also drew the Court’s attention to Rohan’s affidavit, where he deposed he was not aware of a Brian Hogan. Counsel concluded there is no Brian other that Brian O’Donoghue that could be who the testator intended to receive the gift under clause 3(b) of the will.
Applicable principles
In construing a will, the task of the Court is to give effect to the intentions of the testator by examination of the words used in the will, having regard to the will as a whole, aided as is necessary by any admissible extrinsic evidence.[7]
[7]Fell v Fell (1922) 31 CLR 268, 273–4 (Isaacs J); Perrin v Morgan [1943] AC 399, 420 (Lord Romer); Wills Act 1997 (Vic) s 36. See also Re De Bruyn [2016] VSC 6, [11] (McMillan J).
In Fell v Fell, Isaacs J set out the common law principles relating to construction of wills, principles that his Honour considered ‘incontestable’.[8] Prima facie, the written words in the will must be given their ordinary meaning, with the Court making a determination of the issue by reference to the words used by the testator in the will, having regard to any established rules of construction and construing a will ‘as trained legal minds would do’.[9] His Honour articulated the second principle as follows:
The instrument … must receive a construction according to the plain meaning of the words and sentences therein contained. But … you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it.[10]
[8]Fell v Fell (n 7) 273–6.
[9]Ibid 273, quoting Ralph v Carrick (1879) 11 Ch D 873, 878 (Cotton LJ).
[10]Ibid 273–4 (emphasis in original).
If the will does not make sense, the Court is required to consider relevant extrinsic evidence to establish the intention of the testator. In Re Staughton; Grant v McMillan, the Court noted:
If, in the context of the will read as a whole, and of the surrounding circumstances, the ordinary meaning of the words in the will do not make sense, extrinsic evidence is admissible under the ‘armchair principle’. In effect, the court is able to consider evidence of the circumstances surrounding the testator at the time of executing the will.[11]
[11][2017] VSC 359, [37] (McMillan J) (citations omitted) (‘Re Staughton’).
The starting point is to determine whether, reading the will as a whole and in light of its surrounding circumstances, the language used by the testator results in the will being rendered meaningless, ambiguous or uncertain. If this is established, evidence may be admitted to assist in the interpretation of the language of the will, both where the uncertainty or ambiguity arises on the face of the will or in light of surrounding circumstances, although in the latter situation evidence of the testator’s intention may not be given.[12]
[12]Wills Act 1997 (Vic) s 36.
Generally, at common law, direct extrinsic evidence of a deceased’s testamentary intention or declarations as to the meaning of the words used in a will are inadmissible. An exception arises where an analysis of the evidence surrounding the circumstances of the making of the will fails to resolve an ambiguity present in the ordinary meaning of the words and there is an equivocation. In Re Staughton, an equivocation was defined as ‘a term that, upon application to external objects, is found to fit two or more of them equally’.[13]
[13]Re Staughton (n 11) [38] (McMillan J), citing Re Smith [1939] VLR 213, 218 (O’Bryan AJ).
The circumstances in which extrinsic evidence may be considered, and the purposes for which it may be used in interpreting a will, are also governed by statute. In Victoria, s 36 of the Wills Act 1997 applies where the will was made on or after 20 July 1998 and dictates when evidence may be admitted to assist in interpretation of the language of a will — for example, where the language used in the will renders the will or any part of it uncertain or ambiguous in light of surrounding circumstances.[14] Pursuant to s 36(3), the legislation does not override the common law armchair principle or equivocation exception, but explicitly preserves them. Further, the Wills Act 1997 also provides that evidence of the testator’s intention is admissible in certain circumstances.[15]
[14]Wills Act 1997 (Vic) s 36(1)(c).
[15]See Morgan v Moore [2000] VSC 94, where a detailed discussion of the legislative history of s 36 of the Wills Act 1997 (Vic) and its precursor, s 22A of the Wills Act 1958 (Vic), is set out.
In the Full Court decision of Hopwood v Cuthbertson (‘Hopwood’), Underwood J stated:
The cases concerning a misdescription of a beneficiary are legion. ... Little profit is to be gained from minutely examining these cases. Each turns upon its own facts.[16]
[16]Hopwood (n 6) 192 [16] (Underwood J, Evans J agreeing)
His Honour quoted Lindley MR in Re Waller; White v Scoles, who described the task of the Court as being to:
cast about and see who, if anyone, was known to the testator whose name could have been by mistake put as Ignatius.
However, whilst the respondent in Hopwood placed great emphasis on the expression ‘cast about’ and submitted that the Court had a very wide duty, it was determined that the expression meant only that the Court should consider the terms of the will and all the circumstances surrounding the testator as disclosed by the admissible evidence.[17]
[17]Ibid 192 [17]–[18].
On the one hand, the Court cannot rewrite the testator’s will but, on the other hand, the Court should be reluctant to hold a gift void for uncertainty.[18] The majority in Hopwood adopted the words of Starke J in Re Newman, as follows:
To be void for this reason [difficulty in interpreting an ambiguity] it must be utterly impossible to put a meaning upon it. The Court is furthermore reluctant to hold a gift void for uncertainty, and adopts the benevolent rule that if there is ever so little reason in favour of one construction of an ambiguous gift more than another, the adoption of the construction so favoured is at least nearer the intention of the testator than that the whole disposition should be void and the persons entitled on an intestacy let in.[19]
[18]Ibid 192 [19].
[19][1967] VR 201, 203.
These principles apply even where the false description contains multiple mistakes —the intended legatee in Hopwood was found to have been misdescribed as to relationship, first name, surname and sex.
Consideration
Despite searches, there is no person who answers to the description of the deceased’s friend, Bryan Hogan. The deceased’s exercise books identified a person with the surname ‘Hogan’, however, the enquiries made by Ms Jessep eliminated that person as the intended legatee. It is the Court’s task to determine if the clause can be construed in such a way that the gift does not fail.
In respect of the first name of the legatee, there is no issue in a construction which sees the gift pass to a person called ‘Brian’, instead of ‘Bryan’. The evidence is that the deceased initially dictated the will to Merran, who asked him to spell certain names, but not the first name of the legatee in clause 3(b). Mr Blanch drafted the will based on Merran’s notes and he then read the will to the deceased. It does not appear that the deceased read the will himself. Given the pronunciation of ‘Brian’ and ‘Bryan’ is identical, the deceased would not have noticed any error. Therefore, the fact that the first defendant spells his name differently to the legatee in the will is of no great importance.
There appear to be at least two, and possibly three, people known to the deceased who answer to the first name ‘Brian’. The first defendant is one. There is also Brian Cullum, who is a family friend and attended the deceased’s funeral and wake. His friendship with the deceased was not close as he was simply part of the Hamilton extended family. Other than his first name, there is nothing to suggest that he was the intended legatee. The third ‘Brian’ is a possible third person to whom Josephine spoke on the telephone prior to the funeral. From the description of the conversation, it appeared that the person knew the deceased, but there is no evidence concerning this Brian as being a friend of the deceased. Josephine did not file a further affidavit concerning this Brian. The evidence is not definitive on the question of whether this third ‘Brian’ is one and same person as the first defendant.
The difference in surname creates a far greater difficulty for the first defendant. The surname in the will, ‘Hogan’, and the first defendant’s surname, ‘O’Donoghue’, do not resemble each other and do not sound alike. This is not a case of misspelling or even mishearing on the part of Merran, who herself deposed that the deceased clearly said the name ‘Hogan’.
In such a situation, the case law requires the Court to start with the proposition that the decease intended to benefit someone and that a failure of a gift for uncertainty is to be avoided if possible. Clearly, the deceased intended to benefit two separate people, both friends, in clause 3 of his will.
There are several factors, other than the first name, that indicate that the intended legatee of clause 3(b) is the first defendant. First, there were only two beneficiaries of specific bequests in the will, the other being Judy, the wife of the first defendant. That the deceased may have chosen to group them together in this way, rather than one or either of them sharing in the residue, indicates that the intended legatee is the first defendant, as opposed to some person unrelated to Judy.
Secondly, whilst Judy and the intended legatee appear to have been grouped together in this way, separate bequests have been given to each of them. This is consistent with Judy and the first defendant living somewhat separate lives and suffering from their own health and financial problems.
Thirdly, the evidence suggests that, whilst the first defendant and the deceased were close enough for the deceased to have referred to him as a ‘friend’ in the will, the deceased may not have recalled his surname easily. One of the references in the notebook is to ‘Judy’s Brian’, indicating that the first name was of greater importance to the deceased.
These inferences are readily available upon a reading of the will together with the admissible evidence of surrounding circumstances. They are not, however, strong inferences that lead unquestionably to a reading that the deceased intended to benefit the first defendant. Much of the evidence relied on by the first defendant is limited by general statements, particularly as it relates to their alleged longstanding friendship. The evidence suggests that the deceased had a closer relationship with Judy, and was ‘convivial’ with the first defendant. According to Rohan, the first defendant did not have much of a role in the deceased’s life.
Rohan deposed that the deceased was well aware of the full name of the first defendant and his telephone number. This is confirmed by reference to the exercise books as well as his relationship with both Judy and the first defendant. There is some weight in the submission that the deceased would not have misremembered a friend’s surname.
The Court would have benefitted from more detailed evidence from Mr Blanch, who read the will to the deceased and confirmed its contents. In his affidavit filed in this proceeding, Mr Blanch proffered certain views for the first time, which are not reflected in his affidavit filed in the probate proceeding or his contemporaneous file note made shortly after coming back to his office after the deceased signed the will. He deposed that:
·He was informed verbally that Judy and Brian were partners;
·Merran indicated that she had written down the surnames as she understood them to be spoken by the deceased but she did not know the real surnames of the people referred to;
·Merran indicated to him that in their circle they largely used first names only and she did not know what Brian’s surname was;
·It may well be that the deceased was not sure what Judy and the first defendant’s real surnames were either, that he may have referred to them, and that he certainly did have the impression that ‘Judy and Brian’ were connected and were not disparate beneficiaries.
Mr Blanch did not depose when Merran informed him of these matters. Her affidavits in the probate proceeding and this proceeding do not include any of these matters. In her affidavit filed in the probate proceeding, she was not certain that she spoke to Mr Blanch before he arrived at the hospital. When she met him at the hospital, it was to introduce him and Ms McMahon to the deceased and otherwise she absented herself from the room. Further, Mr Blanch should have deposed in greater detail as to his reading of the will with the deceased. The manner in which the deceased confirmed each clause, and any comments he may have made, would have had probative value in construing the will.
The most weighty factor of this case is that there is no person other than the first defendant who the will could reasonably be construed as intending to benefit in clause 3(b). The first defendant’s position is that his surname was either misremembered, misstated, misheard, or a combination of these factors. Although remote in terms of years, it is possible that the deceased, having dealt with a person with the surname ‘Hogan’ at the Office of the Public Advocate, simply interchanged the surname in his mind. Whilst this is a somewhat unsatisfactory explanation, the deceased clearly intended to benefit a friend and the available construction is preferable to a failure of the gift.
Adopting the approach in Hopwood and the cases referred to therein, the Court finds in favour of the first defendant.
Orders
The Court declares and orders that:
(a) The plaintiff have leave pursuant to r 45.05 of the Supreme Court (General Civil Procedure) Rules 2015 to commence this proceeding by originating motion in Form FC and that the requirements of rr 5.03(1) and 8.02 be dispensed with.
(b) The first defendant is the intended beneficiary of clause 3(b) of the will of the deceased dated 9 October 2014.
(c) The plaintiff’s costs of the proceeding be paid out of the estate of the deceased on the indemnity basis.
(d) The first defendant’s costs of the proceeding be paid out of the estate of the deceased on the standard basis.
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SCHEDULE OF PARTIES
| S ECI 2019 03212 | |
| BETWEEN: | |
| DAVID JAMES HUGHES (In his capacity as administrator of the estate of ALAN NICHOLAS AVERELL HAMILTON) | Plaintiff |
| - v - | |
| BRIAN O’DONOGHUE (by his litigation guardian Anton Van Den Dungen) | First Defendant |
| JULIAN ROHAN HAMILTON | Second Defendant |
| MERRAN JEAN SAMUEL | Third Defendant |
| FRASER RICHARD SAMUEL | Fourth Defendant |
| JOSEPHINE JEAN SAMUEL-KING | Fifth Defendant |
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3
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