Re the Estate of Collins (No 2)

[2000] NSWSC 407

CITATION:	Estate of Francis Collins [2000] NSWSC 407
CURRENT JURISDICTION:	Equity Division Probate List
FILE NUMBER(S):	SC 108480/96
HEARING DATE(S):	08/05/2000
JUDGMENT DATE:	15 May 2000
PARTIES :	Sarah Agnes Russell, Margaret Collins and Veronica Collins (P)
JUDGMENT OF:	Young J

COUNSEL :	G O Blake (P)
SOLICITORS:	Hunt & Hunt (P)
CATCHWORDS:	SUCCESION [55]- Revocation- Inconsistent instruments- No revocation clause- How far former revoked.
CASES CITED:	In the Goods of Budd (1862) 3 Sw & Tr 196; 164 ER 1249 Cadell v Wilcocks [1898] P 21 Re Christie (1883) 9 VLR (IP & M) 46 Re Gilbert (1905) 22 WN (NSW) 186 Lemage v Goodban (1865) 1 P & D 57 In the Goods of Petchell (1874) 3 P & D 153 Re Resch's Will Trusts [1969] 1 AC 514
DECISION:	See paras 8 and 9

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

PROBATE LIST

YOUNG J

MONDAY 15 MAY 2000

108480/96 - ESTATE OF FRANCIS COLLINS (NO 2)

JUDGMENT

1    HIS HONOUR: On 21 February 2000, I held that an informal document bearing the date 23 April 1995 was a testamentary document. I made orders in accordance with the Short Minutes then tendered.

2    The question that now arises under the notice of motion filed on 14 April 2000 is whether that document should be treated as a codicil or amendment of the previous will, and that so much of the previous will as is not inconsistent with it should also be admitted to probate.

3    In essence, the original will of the deceased contains the following clauses:

(1) revocation clause;
(2) appointment of his three sisters as executors/trustees; and
(3) devise of all real and personal Australian property to nieces and nephews that survive him.

4    The informal document, which is in the form of a letter, contains the following -

(1) direction as to use of his bodily remains;
(2) direction that his property pass to any surviving nieces and nephews, including his wife’s niece; and
(3) directions as to use of his furnished house.

5 Generally, where a later will deals with the whole of the testator’s property, impliedly all prior testamentary instruments are revoked: Cadell v Wilcocks [1898] P 21. Here, the informal document deals with the deceased’s entire estate.

6 However, where a later testamentary instrument which does not contain a revocation clause is partially or totally inconsistent with a former testamentary instrument, then the former will is considered to be revoked in whole or in part. The mere fact of making a subsequent testamentary document does not work a total revocation of the prior one unless expressly stated or the two are incapable of standing together: Lemage v Goodban (1865) 1 P & D 57; Re Gilbert (1905) 22 WN (NSW) 186. If possible, the court will attempt to construe wills not containing revocation clauses as standing together in which case the later will prevail over the earlier one to the extent of any inconsistency: In the Goods of Budd (1862) 3 Sw & Tr 196; (1862) 164 ER 1249; In the Goods of Petchell (1874) 3 P & D 153; Re Christie (1883) 9 VLR (IP & M) 46; Re Resch’s Will Trusts [1969] 1 AC 514. Generally, a prior testamentary instrument will be disturbed only to the extent needed to give effect to the later inconsistent document.

7    The question is really one question of the testator’s intention - can it be discerned whether the testator intended the informal document to completely revoke his former will, or merely to amend (partially revoke) it?

8    In the instant case, the informal document does not contain a revocation clause or anything similar, and the general scheme of the document is similar to the original will. It only provides specific additional directions regarding the use of his bodily remains and his furnished house. The general bequest to his nieces and nephews remains substantially the same. Further, there is no express revocation of the appointment of executors/trustees in the informal document. The absence of a revocation clause or revocation regarding appointment of executors leads one to the inference that the deceased did intend that the informal document was to be merely an alteration of the previous will. Therefore the two documents should be read together, the informal document prevailing to the extent of any inconsistency.

9    Thus, further orders should be made in accordance with prayers 1 and 2 in the notice of motion of 14 April 2000. There should be liberty to apply.

Last Modified: 09/25/2000