Schlesinger v Bowman and Gatenby

[2007] TASSC 57

[2007] TASSC 57

CITATION:                 Schlesinger v Bowman and Gatenby [2007] TASSC 57

PARTIES:SCHLESINGER, Robert

v

BOWMAN, Thomas Ian (as the Executor of the Estate of

Ernest Gatenby)

and
  GATENBY, Sheila
  BOWMAN, Ann
  GATENBY, June

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  613/2004
DELIVERED ON:  9 August 2007
DELIVERED AT:  Hobart
HEARING DATE:  17 July 2007
JUDGMENT OF:  Tennent J

CATCHWORDS:

Succession – Wills, probate and administration – The making of a will – Execution – Informal document intended to be will - Other States or Territories – Tasmania - Note left by deceased to friend at time of suicide - No reasonable doubt that maker intended document as will.

Wills Act 1992 (Tas), s26.
Wills Probate and Administration Act 1898 (NSW), s18A.
Wills Act 1936 – 1975 (SA), s12(2).
Pahlow-Silady v Silady (95040164) CCA NSW 22 April 1997; In the Estate of Williams (1984) 36 SASR 423; In the Estate of Ryan (1986) 40 SASR 305, referred to.
Aust Dig Succession [52]

REPRESENTATION:

Counsel:
             Plaintiff:  T J Williams and M D Duvnjak
             Defendant:  D M Rees

Solicitors:
             Plaintiff:  Gunson Williams
             Defendant:  Henry Wherrett & Benjamin

Judgment Number:  [2007] TASSC 57
Number of paragraphs:  30

Serial No 57/2007
File No 613/2004

ROBERT SCHLESINGER v THOMAS IAN BOWMAN
(as the Executor of the Estate of Ernest Gatenby) v SHEILA GATENBY,
ANN BOWMAN and JUNE GATENBY

REASONS FOR JUDGMENT  TENNENT J

9 August 2007

1. Robert Schlesinger ("the plaintiff") seeks to prove as the last will and testament of one Alan Gatenby ("the deceased") a document in the form of a letter addressed by the deceased to him and dated 19 April 2004. The letter has not been executed in accordance with the Wills Act 1992 ("the Act"), s10, and hence the plaintiff seeks to prove the letter by reference to the Act, s26.

1. The named defendants in the proceedings are Thomas Ian Bowman (as the executor of the estate of Ernest Gatenby), Sheila Gatenby, Ann Bowman and June Gatenby. Ernest and Sheila Gatenby are the parents of the deceased while the remaining defendants are his sisters. After these proceedings were commenced, Ernest Gatenby died.  Prior to his death, both he and Sheila Gatenby renounced any right to seek letters of administration of the deceased's estate. June Gatenby also did so and has not sought any part in these proceedings.  Ann Bowman ("the defendant"), on the other hand, opposes the order sought by the plaintiff and seeks, by her attorney in Tasmania, letters of administration on the basis the deceased died intestate.

1. The deceased took his own life on 19 April 2004 in a car in the driveway of his home at Riviera Drive, Carlton.  His body was found by a work colleague who called police.  Police attended the scene shortly after and, as part of their investigation into the death, searched the deceased's home.  The five documents listed below were found:

·A handwritten note under the windscreen wiper of the deceased's car with the signature "A Gatenby" on the bottom which read:

"Monday 19 April

2.00 pm

To the person who finds me.

I am very sorry to have to put you through this ordeal but I cannot go on any longer.

The house is open, letter for next of kin and local friend are on table.  Also ID etc.

I am of a sound state of mind and am fully aware of what I am about to do.

(signed) A Gatenby"        ("Note 1")

·On a table inside the house a handwritten note addressed "Dear Ann" signed simply "Alan" which read:

"19.4.04

Dear Ann,

I have never really told you how much I love you, I also love June very much but even though we have not seen much of each other in this life you in particular have always been in my heart.

Please forgive me for doing this.  I know how much it will hurt you all.  But I just cant take any more of my own pain.  Whatever is on the other side has to be better for me.

I am, and will forever be your loving brother

(signed) Alan

xxx"            ("Note 2")

·On the same table inside the house a handwritten note addressed "Dear Bob", again signed simply "Alan" which read:

"19.4.04

Dear Bob,

Dont know where to begin.  I guess sorry.  I would have liked to just go quietly but it seems a shame to leave all these possesions [sic] to the taxman or what ever

Bank card enclosed should be $1,500 apx in savings account #1 BSB 6001 105 33763 pin # 191066 have a wake, my shout.  Have left a note for the police stating what I would like my friends to take whatever of my possisions [sic] they whish [sic]to have.  Morgatge [sic] is paid up to 14.5.04.  Dont know what happens after that.  Police should have keys etc.  You can have house if you want it, or sell + take cash.

You have been a good mate Bob.  Dont grieve for me, remember the good times

(signed) Alan"     ("Note 3")

·An un-crumpled but folded handwritten note in a flip top kitchen tidy in the house with the signature "A Gatenby" which read:

"Monday 19^th April

12.30 pm

To the person who finds this.

I am so sorry to put you through this but I cant go on any longer.

Please contact Bob Sliezenger Ph 62 431 040 / 0411 478 776 I would like for my friends to take whatever of my possessions they wish to have.

I am of a sound state of mind and am fully aware of what I am about to do

(signed) A Gatenby"      ("Note 4")

·A crumpled piece of paper in the same rubbish bin as Note 4 which had written on it the words "Dear Ann  By the time you receive this".  ("Note 5")

There was no dispute the handwriting on all of these was that of the deceased.

1. It is Note 3 which is sought to be proved as the will of the deceased.

1. The Act, s26, provides:

"26      (1)       A document purporting to embody the testamentary intentions of a deceased person is taken, notwithstanding that it has not been executed in accordance with Division 3, to be a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court, on application for a grant of probate of the last will of the deceased person, is satisfied that there can be no reasonable doubt that that person intended the document to constitute the will of that person, an amendment of such a will or the revocation of such a will.

(2)       In considering a document for the purposes of subsection (1), the Court may have regard, in addition to the document, to any other evidence relating to the manner of execution or the testamentary intentions of the deceased person, including evidence, whether admissible before the commencement of this Act or otherwise, of statements made by the deceased person."

1. To have Note 3 proved as the will of the deceased, the plaintiff must satisfy the Court that it is a document, that it purports to embody the testamentary intentions of the deceased, and that there can be no reasonable doubt that the deceased intended Note 3 to constitute his will.  In considering that document, the Court may have regard to any other evidence relating to the manner of its execution, or the testamentary intentions of the deceased, including statements made by the deceased.  The plaintiff has relied on his own evidence, that of some friends common to him and the deceased, that of the deceased's former partner, the coronial file relating to the investigation of the deceased's death, and evidence from the deceased's general practitioner and a psychiatrist.  A number of affidavits were also read into evidence from various relevant witnesses as to the existence or otherwise of any other possible testamentary scripts.  The defendant relied on an affidavit of hers.

1. The evidence from the deceased's general practitioner and the psychiatrist was led because of another matter about which the Court needed to be satisfied, that is, the deceased's testamentary capacity at the time he wrote Note 3.  Counsel for the plaintiff described the evidence as perhaps being "overkill", but nevertheless it was proper that the evidence was put to the Court.  The defendant led no evidence-in-chief at all on this issue and conducted a limited cross-examination of the plaintiff's witnesses in this regard.  In his submissions, counsel for the defendant conceded that there was no real issue about the deceased's state of mind.  That was, in my view, a proper concession to make.  All the evidence the Court heard pointed to a man who, while affected by matters which had gone wrong in his life, had thoughtfully and methodically dealt with its ending.  There was no evidence at all which might cause the Court to be concerned in any way that the deceased's mind was so unbalanced immediately prior to his death such that he did not understand what he was doing when he wrote Note 3.  I am satisfied that the deceased had testamentary capacity in the period prior to his death when he wrote that letter.

1. As to the interpretation of the Act, s26, generally, neither counsel was able to put to the Court any Tasmanian authority.  However, a number of authorities dealing with similar legislation in New South Wales, South Australia, and the Australian Capital Territory were referred to.  For example, in Pahlow-Silady v Silady (95040164) a decision of the Court of Appeal of the Supreme Court of New South Wales delivered 22 April 1997, the court dealt with the Wills Probate and Administration Act 1898 (NSW), s18A, a provision inserted in that Act in 1988.  The provision is in almost identical terms to s26 save for the standard of proof.  New South Wales elected to adopt the civil as opposed to criminal standard.  In South Australia, the equivalent section, the Wills Act 1936 - 1975 (SA), s12(2), at least as at the time of the decision in In the Estate of Williams (1984) 36 SASR 423, was in almost identical terms to s26, including the standard of proof. The Australian Capital Territory equivalent is also in almost identical terms to s26, save for the standard of proof, that Territory having also adopted the civil as opposed to criminal standard.

1. A number of propositions were extracted from the cases referred to by counsel for the plaintiff.  No issue was taken with these by counsel for the defendant, his submissions being more particularly directed to the facts and how the law should be applied to them.  These propositions were as follows:

(a)"Secondly, the document must purport to embody the testamentary intentions of the deceased person.  As Mahoney JA pointed out in Masters (at 455), this means the deceased's wishes or intentions as to how, voluntarily, his or her property is to pass or be disposed of after death.  The fact that it also may do other things is not fatal."  (See Pahlow-Silady's case (supra), at 5.)

(b)There is a distinction between the document itself which must purport to embody the deceased's testamentary intentions and the Court's satisfaction that the deceased intended the document to constitute his will.  "The true principle … appears to be that if there is proof, either in the paper itself or from clear evidence dehors, first, that it was the intention of the writer of the paper to convey the benefits by the instrument which would be conveyed by it if considered as a will; secondly, that death was the event that was to give effect to it, then whatever may be its form it may be admitted to probate as testamentary.  It is not necessary that the testator would intend to perform or be aware that he has performed a testamentary act." (See Pahlow-Silady's case (supra) at 6.)

(c )"Section 12(2) is a remedial provision designed to avoid failure of the testamentary purpose caused by non-compliance with the formalities required by s8 arising out of ignorance or inadvertence.  There is no reason to suppose that Parliament intended to limit the circumstances in which the remedial provision would operate and no reason for the Court to construe the sub-section other than in accordance with the natural meaning of the words used."  (See Williams case (supra) at 425.)

(d)As part of a brief summary of principles expounded in relation to the position in South Australia, "The more serious the departure from compliance with the formal requirements, the harder it is for the Courts to be satisfied that dispensation should be granted." (See In the Estate of Ryan (1986) 40 SASR 305 at 310.)

(e)In the Estate of AJ Deceased [1996] ACTSC 38 at par2, Miles J said in a case which involved a suicide note:

"As far as I can ascertain s11A has been the subject of only one previous decision of the Court in Re Letcher (1993) 114 FLR 397, Gallop J said that there were three fundamental questions of fact to be decided, namely:

'(1)      Is there a document?

(2)       Does the document purport to embody testamentary intentions of a deceased person? and

(3)       Is the evidence which has been tendered such as to satisfy this Court that at the time of the document being brought into existence the deceased person intended the document to constitute his or her Will?'

Furthermore, as Powell J pointed out in ReApplication of Brown; Estate of Springfield (1991) 23 NSWLR 535, in relation to a similar provision in New South Wales, what the third question requires is not simply proof of a document purporting to embody the testamentary intention of the deceased person, but the satisfaction on the part of the Court that the deceased intended that document to constitute his or her will. A document which does no more than express the testamentary intention of the deceased, such as instructions for the drawing up of a will, do not suffice."

His Honour went on to say commencing at pars12 and 13:

"It may also be observed that in Re Application of Brown; Estate of Springfield, Powell J rejected the view which appears originally to have commended itself to some of the Judges of the Supreme Court of South Australia that the provisions like those of s.11A are directed solely to wills which, although executed, are not fully executed in accordance with the formalities required otherwise.  In Queensland where the statutory provisions again appear very similar to those in the ACT, the Supreme Court has held that there is a requirement of 'substantial compliance' with the formalities of making a will: see, for instance, Re Will of Eagles (1990) 2 Qd R 501.

In my view, it is appropriate to follow the approach of Gallop J in this Court and that followed in New South Wales. It may be of interest only to note that, according to an article written by Powell J in relation to these matters (Recent Developments in New South Wales in the Law Relating to Wills (1993) 67 ALJ 25), the overwhelming majority of applications in New South Wales relate to documents which do substantially comply with the formalities of a will. Of 98 applications in 1991, only seven were concerned, like the present case, with documents bearing the appearance of instructions for a will. The others were defective in relation to matters of attestation, signature and alterations."

1. As to the factual background to this case, there was not a significant dispute between the parties.  It was the inferences to be drawn from those facts and the application of the law to them which was addressed more specifically in closing addresses.

1. At about 4pm on 19 April 2004, the body of the deceased was found in his car in the driveway of his home at Carlton.  The engine of the car was still running.  The deceased appeared to have already been dead at that point.  Police subsequently attended and searched his residence.  Notes 1 to 5 were found.  Note 1 was found under the windscreen wiper of the car in which the deceased's body was found.  Notes 2 and 3 were found in envelopes addressed to the persons to whom they were written.  Note 5 was found in a waste paper bin within the house, with Note 4 folded in two, sitting on top of it.

1. The first matter about which this Court must be satisfied is that what is sought to be proved by the plaintiff is a document.  There is no doubt at all it is.  There is also no doubt it is a document written by the deceased.  The Court must then be satisfied that it purports to contain the testamentary intentions of the deceased.  Lastly the Court must be satisfied there is no reasonable doubt that the deceased intended the document to constitute his will.  Counsel for the plaintiff submits there can be no doubt as to either of these matters.

1. Counsel for the plaintiff submitted the deceased did not have to consciously think that what he was writing was a valid will.  The document sought to be propounded needed to set out what the deceased intended would happen to his property after his death.  In the present case Note 3, on its face, does that and there was no opportunity after the deceased wrote it to complete a formal will in all respects.  This was, counsel submitted, the deceased's only chance to let people know what he wanted done with his property after he died.  Other relevant factors were that the document was signed, this being at least one of the requirements for a valid will.  Further it was left in a situation where it would obviously be found and in consequence acted upon.  This was not a case where a completely unsigned document of doubtful authenticity has been incidentally found amongst the deceased's possessions.  This is a document in the deceased's handwriting with a signature, albeit unwitnessed, found in circumstances where it was clearly intended to be found and acted upon.  It had an air of finality about it.  See Estate of AJ Deceased (supra).

1. Counsel for the plaintiff also submitted that the deceased clearly understood the significant property he had and, when he wrote the Notes 1 to 5, he was obviously thinking about family.  The evidence, which included effectively unchallenged evidence of the defendant, was that the deceased's upbringing was marked by an abusive father such that the deceased left home at an early age and did not thereafter have contact with his father.  He had minimal contact with his mother and some with his sister June.  The only relative with whom he maintained regular contact was his sister Ann and her family.  However, he had not seen her since 1987 and his only contact was by telephone and letter.  She last spoke to the deceased late March early April 2004 when she told him she and her husband had sold their house and were proposing to come to Tasmania to see him before returning to buy another property.  In her affidavit sworn 6 December 2005 she said:

"Alan stayed in close touch with June, Ian, Ross, Sean and me and he was delighted we were going to see him at last.  He was particularly keen to spoil Ian who he said 'gave him everything when he owed him nothing'."

However she also went on to say:

"I remember that Alan was methodical to the extreme, keeping lists about everything important to him, and writing everything done in diaries.  He always seemed to be worried about money in his latter years, and I offered to lend him money on occasions, the maximum being 5000 pounds sterling, but he always declined these offers."

1. Counsel for the plaintiff referred to the evidence from and about the deceased's friends.  The deceased had worked in the hospitality industry for many years which is how he met the plaintiff.  He had an interest in soccer, surfing, skiing and food and wine.  His circle of friends reflected that.  They were the persons to whom he was closest and to whom he went and talked when in difficulty.  He did not, for example, ever apparently take the view that the most important thing in his life was family and return to England where they all were.  The consistent theme from his friends and the defendant was that the deceased was a very private and methodical person.  The consistent theme in the evidence from his friends was that he spoke rarely of his family.  In that context it could be said there was logic to his leaving his property to friends and not family.

1. There was evidence about statements made by the deceased about his intentions during his life.  Alasdair Adams had known the deceased for about 10 years and saw him regularly when he was in Tasmania.  There was evidence there were times the deceased travelled outside the State, in particular he went to Antarctica.  Mr Adams said that the deceased used to talk a lot about the plaintiff.  The deceased said he had a lot of respect for him and how well he had managed his children after a nasty marriage break up.  The deceased had told him that if anything happened to him he would want the plaintiff to have his house.  At the time, Mr Adams told the deceased that if he did not put his wishes on paper it would not happen.  There was no evidence as to when this discussion occurred.

1. The defendant also gave evidence about a statement made by the deceased about his intentions.  This occurred at the time of the birth of her eldest child in 1978.  He told her then that whatever he made in life would come to "us" as he had been the happiest with "us".  Even had the statement about which Alasdair Adams gave evidence been made early in their relationship, there is almost 20 years between the two statements of the deceased about which evidence has been given.  Other evidence shows that the deceased's life had altered significantly over that period, with the emphasis towards the end being on friends rather than family.

1. As to the deceased's estate, the principal asset is the deceased's home with a net value in 2005 estimated to be about $183,000.  There was a modest vehicle, death benefits under an insurance policy of about $25,789 and entitlements to superannuation totalling about $70,000.  The affidavit of Nigel Henry sworn 2 June 2005 lists the superannuation as part of the deceased's property, but provides no information as to who is the nominated beneficiary of the superannuation entitlements.  No value has been attributed to chattels in the deceased's home and so it can be inferred they had minimal value.

1. The submissions of counsel for the defendant were directed largely towards issues which would, he suggested, create a reasonable doubt as to whether the Court could be satisfied the deceased intended Note 3 to constitute his will.  Firstly, he submitted that there were certain features about the notes generally which might suggest there was a further note not found addressed specifically to the police.  He suggested that it was open to the Court to infer there may have been another note which might also have contained some indications as to what the deceased wished to be done with his property, thus contributing to a doubt that Note 3 was intended as a will.

1. Note 1 has a date and time on it.  It is a reasonable inference and I accept that the note was written at approximately 2pm on 19 April.  Note 4, found in the waste paper bin, also has a time and date.  It is a reasonable inference and I accept that that was written at or about 12.30pm the same day.  None of the other notes have times on them and there is no other evidence to establish when on 19 April 2004 they were written. 

1. The features about the notes highlighted by counsel for the defendant were:

-that Note 1 was addressed "To the person who finds me", while Note 4 was addressed to "The person who finds this";

-in Note 3, the deceased has referred specifically to a letter to police;

-there is a possibility that Note 4 was blown into the waste paper bin or somehow inadvertently ended up there and was not deliberately discarded; and

-that Notes 1 and 4 had what might be categorised as a proper signature, whereas Notes 2 and 3 were simply signed "Alan".

1. With respect to the submissions by counsel for the defendant in respect of this particular matter, it would appear to me he is clutching at straws.  All the notes were written in a clear hand.  Notes 2 and 3 were placed in envelopes clearly addressed to the respective recipients.  That addressed to Ms Bowman also had stamps on it.  The two envelopes were very carefully lined up on a table side by side.  The envelope addressed to the plaintiff had his home and mobile phone numbers written on it and what appears to be a sticky note on one corner with the words "Close local friend".  That to Ms Bowman had two of what appeared to be the same sticky notes on it.  One had telephone numbers on it and the other had the words "Next of kin".  The placement of the notes shows a person working logically and carefully through a number of steps and not one who was acting in a hurry.  Note 5 was clearly an early draft of Note 2, disposed of by the deceased.  As to Note 4, the contents of it and the time, suggest clearly that it was written before Notes 1 and 3.  The fact that it was in the waste bin and there was a subsequent note in similar terms under the windscreen timed an hour and a half later suggests most clearly that Note 4 was deliberately discarded, intended to be overridden by Note 1.

1. The deceased killed himself outside his house.  The note on the windscreen (Note 1), while not specifically addressed to police, directed the finder into the house and to the letters which are Notes 2 and 3.  It is not unreasonable for the deceased to have assumed that police would attend his home once his body was discovered, as they in fact did.  There was also evidence in the coronial file in the form of the affidavits from police that indeed the deceased's residence was searched.  It is illogical to suggest, as in fact defence counsel has done, that police would have missed another note specifically addressed to them.  Counsel for the defendant did not seek to question the relevant police officers about this issue.

1. I am satisfied that the deceased wrote, and then deliberately discarded, what I have described as Notes 4 and 5 and that Notes 1 to 5 were the only notes the deceased wrote intending them to be found.  That is, I am satisfied there was no other note specifically addressed to police.  As to the distinction between what I have described as a formal signature and the signing of the name "Alan", the only reasonable inference which can be drawn from that is, in my view, not that it somehow went to the importance the deceased attached to the particular note, but that it reflected the fact the deceased used simply "Alan" when writing to his sister and a good friend, and his full signature when addressing notes to potential strangers.

1. The other issue specifically referred to by counsel for the defendant was the statement made to the defendant in 1978.  He submitted there was evidence of a strong and continuing relationship between the deceased and his sister and that there was material in Note 3 itself that the deceased was uncertain as to what would happen "after that".  These two factors suggested the deceased never intended, by Note 3, to actually leave his house to the plaintiff.

Conclusion

1. I have already expressed myself satisfied the deceased had testamentary capacity in the period just prior to his death and that Note 3 is a document for the purpose of the Act, s26.  The evidence is that the deceased was a methodical and private man.  He had a close circle of friends whom he saw regularly.  He spoke rarely of his family to them, which suggests he somewhat compartmentalised his life, separating what relationship he had with family apart from that with his friends.  He clearly thought about family before he took his life and expressed his love for his sisters.  He made no mention at all, however, in his letter to the defendant of any of his property or anything at all which might suggest his family should have anything to do with his estate. 

1. The letter to the plaintiff is a complete contrast.  It recognises that he does not want the tax man to have his assets and deals with specifics.  It tells the plaintiff about his bank account and that his mortgage is paid up.  He then tells him he can have the house if he wants it, but also that he can sell it and take the cash.  He recognises that the plaintiff has been a good mate.

1. The plaintiff wrote his notes on the day he died.  He was at his home.  He had no opportunity to go to see a lawyer to have a formal will prepared after writing those notes.  One could ask two rhetorical questions.  Firstly, why, if the deceased did not intend Note 3 to operate as his will in the sense that it was to be acted upon after his death, did he not in the note to his sister tell her, all my property is for you?  Secondly, if he did not intend Note 3 to be acted upon, why did he say what he did in Note 3 at all?  He had ample opportunity, and given he was a methodical man, one would have thought he would do so, to make his intentions clear.  I am of the view he did so by the terms of Note 3.

1. I am satisfied that Note 3 purports to embody the testamentary intentions of the deceased.  I am also satisfied there is no reasonable doubt that the deceased intended Note 3 to constitute his will, recognising in that finding that such will, on its face, does not apparently dispose of or deal with the entirety of the deceased's estate. 

1. I will hear counsel as to the precise terms of the orders to be made consequent upon these findings.