Saunders v O'Shea - [2021] NTSC 60

CITATION:Saunders v O’Shea & Ors [2021] NTSC 60
PARTIES:SAUNDERS, Kerri Ann

v
O’SHEA, Kim Bernadette
and
REED, Jodi-Maree
And
O’SHEA, June

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2021-00135-SC
DELIVERED:  13 August 2021
HEARING DATE:  On the Papers
JUDGMENT OF:  Kelly J

CATCHWORDS:
Wills Act 2000 (NT) s 10 - document purporting to be the last Will of the deceased was signed by the deceased and witnessed by one person – not been executed in the manner required by the Wills Act 2000 (NT) s 8 - whether the document embodied the testamentary intentions of the deceased – whether the deceased intended the document to constitute his Will – held the deceased demonstrated that it was his intention when the document was signed and dated that the document should, without more on his part operate as his Will – declared pursuant to s 10(2) of the Wills Act 2000 (NT) that the document constitutes the Will of the deceased
Wills Act 2000 (NT), s 8, s 10(1), s 10(2)
REPRESENTATION:
Solicitors:
Plaintiff:Ward Keller
First & Second Defendants:        Maleys
Third Defendant:  unrepresented
Judgment category classification:    B
Judgment ID Number:  Kel2112
Number of pages:  31

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Saunders v O’Shea & Ors [2021] NTSC 60

No. 2021-00135-SC

BETWEEN:

KERRI ANN SAUNDERS

Plaintiff

AND:

KIM BERNADETTE O’SHEA

First Defendant

AND:

JODI-MAREE REED
Second Defendant

AND:

JUNE O’SHEA
Third Defendant

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 13 August 2021)

This is an Application under s 10(2) of the Wills Act 2000 (NT) (the “Wills Act”) for an order that an informal document dated 24 May 2011 forms the Will of Peter Desmond O’Shea, deceased.
BACKGROUND
The following facts, taken in large part from the introductory section of the plaintiff’s submissions, appear from the affidavits of the plaintiff, Kerri Ann Saunders and the plaintiff’s solicitor Melissa Yates and have not been contested.
Peter Desmond O’Shea (“the deceased”) was born on 6 March 1930.[1] He and his wife, June had three children:
(a)Kim, born 5 November 1960 (the First Defendant);
(b)Kerri, born 3 November 1961 (the Plaintiff); and
(c)Jodi-Maree, born 28 September 1968 (the Second Defendant).[2]
The assets owned by the deceased at the date of his death included shares in Capricornia Holdings Pty Ltd which was the trustee of the O’Shea Family Trust[3] and a finance business called Northern Territory Finance, operated through a company Northern Territory Finance Pty Ltd.[4]
From about 1983, Northern Territory Finance operated out of an office at the Winnellie Shopping Centre.[5] The deceased’s daughter, Kerri, worked with

him in the business.[6]

From about 2015, Kerri drove the deceased to and from work each day and transported him to medical appointments.[7]
Until October 2011, the deceased was actively engaged in the finance business, attending work each day, dealing with clients and participating in loan approval decisions. He also managed his own share portfolio. The deceased ceased working in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Saunders v O'Shea

Details

AGLC: Saunders v O'Shea [2021] NTSC 60
Case: [2021] NTSC 60
Decision Date: 13 August 2021

CaseChat Overview and Summary

The case of Saunders v O’Shea concerns an application under section 10(2) of the Wills Act 2000 (NT) to declare an informal document dated 24 May 2011 as the last will of Peter Desmond O'Shea, who passed away on 14 April 2020. The applicant, Kerri Ann Saunders, seeks to have the document recognized as her father’s will, while her sisters, the first and second defendants, oppose the application on the basis that the document may have been tampered with. The court had to decide whether the document constituted the deceased's will, considering the evidence provided and the expert report on the document's authenticity.

The primary legal issue was whether the document dated 24 May 2011 fulfilled the criteria for being recognized as the deceased’s will under section 10(2) of the Wills Act. This required the court to examine whether the deceased intended the document to operate as his will. The court had to consider the content of the document, the circumstances of its creation, and whether there were any indications of tampering or alterations. The expert report played a crucial role in determining the authenticity and consistency of the document’s handwriting and ink.

The court found that the document met the requirements for being considered the deceased’s will. The evidence demonstrated that the deceased intended the document to operate as his will, as evidenced by his signature, his statements to his daughter Kerri, and the manner in which he stored the document in a safe. The expert report concluded that there were no significant anomalies that would suggest tampering or alterations by another person, thereby supporting the notion that the document was written by the deceased himself. Consequently, the court was satisfied that the document was intended to be the deceased’s will and granted the application.

The court declared the document dated 24 May 2011 as the will of Peter Desmond O'Shea and ordered that letters of administration of the estate be granted to an independent person, Mr Paul Maher, subject to the formal requirements of the Probate Registrar. The court also reserved the matter of costs for further hearing.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an Application under s 10(2) of the Wills Act 2000 (NT) (the “Wills Act”) for an order that an informal document dated 24 May 2011 forms the Will of Peter Desmond O’Shea, deceased.BACKGROUND The following facts, taken in large part from the introductory section of the plaintiff’s submissions, appear from the affidavits of the plaintiff, Kerri Ann Saunders and the plaintiff’s solicitor Melissa Yates and have not been contested. Peter Desmond O’Shea (“the deceased”) was born on 6 March 1930.[1] He and his wife, June had three children:(a)Kim, born 5 November 1960 (the First Defendant);(b)Kerri, born 3 November 1961 (the Plaintiff); and(c)Jodi-Maree, born 28 September 1968 (the Second Defendant).[2] The assets owned by the deceased at the date of his death included shares in Capricornia Holdings Pty Ltd which was the trustee of the O’Shea Family Trust[3] and a finance business called Northern Territory Finance, operated through a company Northern Territory Finance Pty Ltd.[4] From about 1983, Northern Territory Finance operated out of an office at the Winnellie Shopping Centre.[5] The deceased’s daughter, Kerri, worked with From about 2015, Kerri drove the deceased to and from work each day and transported him to medical appointments.[7] Until October 2011, the deceased was actively engaged in the finance business, attending work each day, dealing with clients and participating in loan approval decisions. He also managed his own share portfolio. The deceased ceased working in the finance business in October 2011.[8] There has been no contest to the document propounded as an informal Will on the ground that the deceased lacked testamentary capacity. However, for the sake of completeness it should be noted that the records of the deceased’s general practitioner, Dr Goodhand,[9] do not record any concerns about the deceased’s cognitive state during 2011, although “anxiety” was noted on 24 May 2011.[10] On 10 May 2012, Dr Goodhand noted concerns about the deceased’s memory and raised uncertainty about whether this was of recent onset. He thought that the deceased may have been suffering from early dementia or depression.[11] The deceased was examined by a respiratory physician, Dr Robert Edwards, on 17 April 2012. Dr Edwards noted that the deceased’s family complained that the deceased had had a recent onset of dementia which had occurred suddenly over the last two weeks.[12] The deceased was assessed by the Aged Care Assessment Team (ACAT) on 7 June 2012 and the assessment recorded memory problems and periodic confusion. He was re-assessed by ACAT on 13 July 2012, at which time it was thought that he was suffering from a combination of Alzheimer’s Disease and vascular dementia.[13] The deceased died on 14 April 2020.[14] He was survived by his wife and three daughters.[15] His estate is valued at about $1 million.[16] The deceased had little to do with lawyers during his lifetime[17] and is not known to have made a formal Will.[18] Despite enquiries which included searching the deceased’s papers, a newspaper advertisement and enquiries of numerous Northern Territory solicitors, a formal Will for the deceased has not been found.[19]The Informal Will 24 May 2011

Evidence

Evidence Before The Court

The first and second defendants oppose the making of a declaration that the document of 24 May 2011 forms the Will of the deceased. They had concerns that the document purporting to be their father’s Will may have been tampered with so they obtained a report from an expert Ms Holt who has qualifications in handwriting and forensic document examination. It has been agreed between the parties that that report should be received in evidence and that a decision on this application should be made “on the papers” on the evidence contained in the affidavits filed in the proceeding and the report of Ms Holt. None of the deponents nor the expert, Ms Holt, was required for cross-examination, and their evidence must be taken as uncontested.The evidence of the expert in handwriting and forensic document examination Upon examining the document, Ms Holt came to the following relevant conclusions in relation to the concerns expressed by the first and second defendants.(a)In relation to the page commencing “3. NT Finance P/L …”, the first and second defendants expressed concern that the percentages recorded there may have been added afterwards by someone other than the deceased. On that page, the deceased bequeathed the shares in NT Finance Pty Ltd, which operated the business which Kerri had worked in with her father, in the following proportions: 40% to Kerry and 20% to each of June, Kim and Jodi. Ms Holt advised that the same or very similar ink was used to write the percentages and the remaining writing on the page and that the percentage signs were consistent with percentage signs elsewhere in the document.(b)The first and second defendants expressed concern that the two “O” formations in the names “June O’Shea” and “Kim O’Shea” were anomalous in that they did not resemble the “O” formations written elsewhere by the deceased. Ms Holt said that no anomalies were noted either in the handwriting or the ink used to write the names and that these two “O” formations are consistent with other formations used throughout the document. The conclusion in relation to that page was as follows:“Overall, whilst it is impossible to determine with certainty, there are no features regarding this page that suggest two different writers or writing events.”(c)On the page beginning “6 O’S The Peter O’Shea Family Trust …”, the first and second defendants expressed concern that in the words “Shares held at Westpac” the word “Westpac” had been written on the line below and that the spacing between that word and the words above was different from the spacing between the other lines on the page. (It was closer.) Ms Holt expressed the following opinion:“[W]hilst the spacing certainly stands out as being different from the remaining entries, no differences in the reaction of the ink were observed when the entry was examined under various light sources and filter combinations of the VSC so as to suggest this particular entry was written in a different ink to the remaining entries. Further, the handwriting of this entry is consistent with the substantive handwriting on the page, thus providing support that this entry was written by the writer of the questioned Will.”[59](d)There are two pages headed “Cash and ASX”. (See above.) The first and second defendants were concerned that, on one, the amount bequeathed to the daughters was left blank, and that in the other, “$20000.00” was inserted in that space. In relation to that concern Ms Holt expressed the following opinion:“In regard to the concern re the entry ‘$20000.00’ on the ‘more complete’ page titled ‘P.2 Cash and ASX Shares’, again no differences in the reaction of the ink used to write this entry were observed relative to the remaining entries on the page when this section was examined under the various lights sources and filter combinations using the VSC. This finding suggests that this entry was written in the same or very similar ink to the remaining entries on the page. Further, the formations were consistent with other similar entries suggesting this dollar amount was written by [the] writer of the remaining substantive entries.”(e)Finally, Ms Holt expressed the following opinion in relation to the document as a whole.“Overall, the handwriting contained on the various pages of the questioned Will is consistent throughout and displays similar features and motor habits, in common and in combination, to support the belief that the various pages were written by the one writer, rather than there being multiple writers involved. There are some variations in line quality but not beyond an acceptable level, so these variations are consistent with expected natural variation. Further, the alignment and spacing is consistent on any given page, with the exception of the entry ‘Shares held at Westpac’ (discussed above….). However, whilst I am of the opinion that the evidence supports the proposition that the Will was written by one person, I cannot opine when any given page was written relative to any other given page. In other words, I cannot determine if the Will, as presented, was written in one sitting or over two or more sittings.”

Decision

Reasons for decision

The general tenor of Ms Holt’s findings, set out at [46] above, is that Ms Holt found no support for any of the concerns that the document may have been tampered with or added to by another person expressed by the first and second defendants and expressed the view that the document had been written by the one person. The plaintiff has identified the handwriting of that one person as that of the deceased.Conclusion The onus is on the plaintiff to establish on the balance of probabilities that the document relied on as constituting the Will of the deceased fulfils the criteria in s 10(2) of the Wills Act. For the reasons set out above, I am satisfied that the plaintiff has satisfied that onus. Unfortunately there has been a falling out between the sisters, the plaintiff on the one hand, and the first and second defendants on the other. As a result, they have agreed that, rather than seeking probate of the Will in the names of all or some of the executors, an independent person, Mr Paul Maher of 4/48 Woods St, Darwin should be appointed as administrator of the estate. ORDERS:1.I declare, pursuant to s 10(2) of the Wills Act 2000 (NT) that the original of the pages numbered (1), (2), (3), (4), (6) and (8) in the copy document annexed as Annexure KS-5 to the affidavit of Kerri Ann Saunders dated 19 January 2021 filed herein constitutes the Will of Peter Desmond O’Shea, deceased. (The page numbered (7) has not been signed and is simply an explanation of why there are two pages headed “Cash and ASX Shares”. As explained, the page numbered (5) is a “spare” and has not been fully completed. I am not satisfied that the deceased intended either of those pages, without more, to form part of his Will.)2.Subject to the formal requirements of the Probate Registrar, letters of administration of the estate of Peter Desmond O’Shea, deceased with the Will annexed be granted to Paul Maher. I will hear the parties as to costs.----------

Ratio Decidendi

Legal Principle Established

To be satisfied that the deceased intended the document to constitute his Will, the Court must be satisfied that, either at the time of the document being brought into being, or at some later time, the deceased, by some act or words, demonstrated that it was his then intention that the document should, without more on his part operate as his Will.[60] It will not be sufficient if the document is intended to be a draft Will.[61] It must be intended to constitute a Will: it is not to operate during the life of the deceased.[62]A signature at the foot of a testamentary document has been found to carry the implication that the person intended the signature to give testamentary effect to the document. The absence of a signature may invite the opposite inference. However, the intention of the deceased is a matter of fact and each case must be decided on its own merits taking into account all of the circumstances.[63]Consideration The plaintiff contends that all of these requirements have been met. I agree. The eight pages in question are a document within the meaning of s 10(1). The document purports to embody the testamentary intentions of the deceased.(a)The first page, as the pages were kept in the envelope, is headed Will.(b)That page states:I, Peter Desmond O’Shea declare this to be my Last Will andTestament which supercedes (sic) allother Wills in my name,(c)Page 7 refers to “this Will”.(d)It uses the word “bequeth”, obviously intending “bequeath”, (to give or leave by Will) and purports to dispose of the different classes of assets owned by the deceased. It has not been executed in accordance with the formalities prescribed in s 8. Finally, the evidence is overwhelming that the deceased intended the document to constitute his Will, and that it should, without more, operate as such.(a)He signed the document and had his signature witnessed by his GP and dated it, consistent with an intention that it was to operate as his Will from that date.(b)He later said to Kerri, “The will is locked in the bottom drawer of the safe. I’ve left everything to everybody to be as fair as I can see it.” (Later events make it clear that the document he referred to as his Will is the one under consideration in this application. That is the document that was found in the safe and returned to the safe after being taken out and examined by the deceased, his wife and his daughter Kerri.)(c)The deceased wrote on both the inner and outer envelopes, “Last Will and Testament of Peter Desmond O’Shea dated 24th May 2011” and signed underneath.(d)He later referred to the document as his Will saying he wanted it to remain in the safe. (Keeping the document in the safe is a further indication that the deceased attached considerable importance to the document.)The first and second defendants’ contentions Counsel for the first and second defendants contended, in written submissions that Ms Holt had found that: “… there were a number of anomalies noted throughout the pages of the questioned Will that raised potential concern about the veracity of the document as a whole.” (This appears at para [47] of the report.)