Scott v Romanoff
[2015] VSC 343
•15 July 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S PRB 2012 18184
| JUSTIN CAMPBELL DOUGLAS SCOTT | Plaintiff |
| v | |
| OLGA ANDREEVNA ROMANOFF | Defendant |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 & 15 July 2015 |
DATE OF JUDGMENT: | 15 July 2015 |
CASE MAY BE CITED AS: | Scott v Romanoff |
MEDIUM NEUTRAL CITATION: | [2015] VSC 343 |
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WILLS AND ESTATES – whether deceased left informal will – whether copy thereof should be admitted to probate – where executor has renounced probate – whether beneficiary should be granted letters of administration - Wills Act 1997 (Vic) s 9(1).
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr R Phillips | Hunts Lawyers |
| For the defendant | Mr A Verspaandonk | Earl & Associates |
HIS HONOUR:
Justin Campbell Douglas Scott has applied for a grant of letters of administration in respect of a copy of an informal will made on 25 October 2006 by Arthur Herbert Quinton McDougall who died some time between 12 January 2009 and 21 January 2009. Objections having been raised, the application has been referred to court for consideration.
In pursuance of a case-management order, the defendant has specified the following issues for determination at trial, as now relevant:
1. Is the copy of the informal will dated 25 October 2006 a true reflection of the deceased’s last testamentary intentions given that:
a. No original Will has been located and an inference can be drawn that the original had been destroyed by the deceased?
b. The copy Will records the name of the deceased inconsistently; the paragraphs were unnumbered; and the copy Will was not signed on each page by the deceased;
c. The Plaintiff himself deposes to the deceased indicating his intention to prepare a new Will in place of the 2006 informal copy Will?
2. Is the Plaintiff the proper person to be applying for Letters of Administration with Will annexed given that:
a. if it is found that the copy informal Will of 2006 is invalid, then the Plaintiff has no standing on intestacy;
b. the Plaintiff has delayed in his application for Letters of Administration and has misled the Court and the potential beneficiaries as to the true nature of the application and as to the whereabouts of the personal effects of the deceased;
c. the Plaintiff is not a fit and proper person within the meaning of the law given his previous criminal conduct and breach of fiduciary duty?
3. …
4. …
5. Is the Defendant the appropriate person to apply for Letters of Administration being not only a residuary beneficiary referred to in the informal copy will of 2006 but also a taker on intestacy as one of two nieces surviving the deceased (presuming the deceased’s brother, Ronald predeceased the deceased)?
6. …
It is agreed that determination of issues 1, 2 and 5 will inform the question of whether the court should admit the informal will to probate in accordance with s 9(1) of the Wills Act 1997 (Vic), which provides:
The Supreme Court may admit to probate as the will of a deceased person—
(a) a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b) a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act—
if the Court is satisfied that that person intended the document to be his or her will.
It is common ground that the procedure in s 9(1) for admitting to probate an informal will applies in respect of an informal will constituted by a document that has been lost but a copy of which is available.[1]
[1] See Whiteley v Clune(No 2) The Estate of Brett Whitely (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993) 1.
It is also common ground that, in the circumstances, the proper nature of Mr Scott's application is for a grant of letters of administration in respect of the informal will, the original of which is missing but the contents of which are proved by the copy thereof, but limited until the original will or a more authentic copy is proven.[2]
[2] See Re Henderson [1996] 1 Qd R 249 (8 December 1994) 251 (Williams J).
The executor specified in the informal will is Daniel Francis Ryan. Mr Ryan has renounced probate. In consequence, Mr Scott sought a grant of letters of administration as one of two beneficiaries. Olga Andreevna Mathew (also known as Romanoff) is the other. It is now agreed that, if a grant of letters of administration in respect of the informal will is to be made, it will be Ms Mathew and not Mr Scott who will obtain that probate and administer the estate.
The two-page informal will does not comply with the requirements of s 7(1)(c) and (d) of the Wills Act. It is dated and signed by Mr McDougall under the attestation clause on page 2. It is not signed on page 1 by Mr McDougall and it is not signed on page 2 by, or by him in the presence of, two witnesses.
The informal will is a picture of clarity in terms. The two beneficiaries are specified to be Mr Scott and Ms Mathew. On the evidence, I find that the informal will was typed by Mr McDougall on or about the date it was signed using a document provided by his solicitor as a precedent. The differences between the draft and the informal will reflect Mr McDougall's deliberate intentions. It is significant that the document was typed and signed by Mr McDougall and expressed in formal terms. That he typed the document in those terms and signed it suggests that it meant something important to him.
Grant of probate upon the basis of the informal will and to Mr Scott is opposed by Ms Mathew. It is common ground that, if a grant of letters of administration is not made in respect of the informal will the estate will descend on an intestacy jointly to her and Ms Diana Kaley, who is the deceased’s niece. The estate is not large and has a present value of some $281,000.
It follows from Cahill v Rhodes[3] and Curley v Duff[4] and the principles discussed therein that, in the application of s 9(1) of the Wills Act to the present case, Mr Scott must persuade the court that: (a) there was an original of the informal will; (b) Mr McDougall signed that document; (c) he intended the document to be his will; (d) the document revoked all previous wills; and (e) the presumption that Mr McDougall revoked the informal will as the original cannot be found must be overcome.
[3] [2002] NSWSC 561 (10 July 2002) [55] (Campbell J).
[4] (1985) 2 NSWLR 716, 718-19 (Young J).
As was held by Habersberger J in Fast v Rockman,[5] the requisite elements of s 9(1) of the Wills Act must be established on the balance of probabilities but according to the Briginshaw standard.[6] In my view the evidence does clearly and convincingly establish those elements according to that standard.
[5] [2013] VSC 18 (7 February 2013) [48].
[6]See Briginshaw v Briginshaw (1938) 60 CLR 336, 362-3 (Dixon J).
To a significant extent the case turns upon whether I accept the evidence of Mr Scott, who was the last person to see Mr McDougall and who had critical conversations with him in relation to his testamentary intentions and the informal will. When considering his credibility and the reliability of his testimony, I take fully into account that Mr Scott is a struck-off former solicitor who in 1987 was convicted in the County Court of Victoria on 103 counts of theft and one count of false accounting for which he was sentenced to imprisonment of two and a half years with a non-parole period of 18 months. Nevertheless, having considered his written and oral testimony in the context of the objectively proven facts and circumstances, I do accept his evidence.
The evidence overall reveals that Mr McDougall was a lonely and somewhat isolated man who was aged 69 years when he died while living alone in a flat in country Victoria. He was estranged from his family. To his emotional and financial cost, he had a temporary encounter with the Church of Scientology. He had a long term friendship with Mr Scott to whom he granted a power of attorney. There is no evidence that Mr Scott was anything other than a trusted and loyal friend of Mr McDougall. Ms Mathew was a niece who, according to what Mr McDougall told Mr Scott, had fallen out of contact with Mr McDougall.
There are two written documents to consider. On the evidence, there were no other wills, formal or informal. The first of these two documents is the draft will prepared on Mr McDougall's instructions by his solicitor in February 2006. This was never signed and it predates Mr McDougall's falling out with the Church of Scientology. It is quite clear on the evidence that this document did not represent his testamentary intentions at the time of his death although it provided a precedent for the form of the latter informal will. The second document is that informal will.
On Mr Scott's evidence, I find that there was an original copy of the informal will which Mr McDougall signed. The informal will that is in evidence is a photocopy of that signed version. As Mr Scott deposed, Mr McDougall had the original signed version with him during a meeting between him and Mr Scott on 11 January 2009, some days before his death. At that meeting, the original version was read, in critical part, to Mr Scott by Mr McDougall. It corresponded with the copy that Mr Scott had earlier been given by Mr McDougall.
From the contents of the informal will and the established facts I find that Mr McDougall intended the signed version of the informal will to represent his testamentary intentions. By its terms the informal will revoked all former wills. Mr Scott was assisting Mr McDougall in the preparation of a new will, one that would nominate Mr Scott to be the sole beneficiary to the exclusion of Ms Mathew. Mr McDougall did not disavow the informal will and intended it to stand pending the execution of a new will.
On behalf of Ms Mathew, Mr Verspaandonk made comprehensive and persuasive submissions to the contrary. It was submitted that the informal will was nothing but a ‘draft’, to use Mr McDougall's own word in conversation with Mr Scott. It had deliberately not been signed by, or by Mr McDougall before, two witnesses. Certainly inconsistencies in Mr Scott's evidence were identified by Mr Verspaandonk and I identified another in argument. Mr McDougall's instructions to Mr Scott were to have solicitors prepare a proposed new will in different terms to the draft will. This suggested that the informal will did not represent Mr McDougall's testamentary intentions. Further, Mr Scott should not be regarded as a credible witness because of his criminal record, the inconsistencies in his evidence and, among other things, aspects of his conduct towards the police after Mr McDougall's death.
I acknowledge the force of the points made by Mr Verspaandonk but must reject the conclusion for which he contends. As I have already said, I accept Mr Scott as a credible and reliable witness. Overall his evidence is consistent, especially in relation to critical matters. The letter dated 29 January 2009 to Ms Mathew does contain errors but not major ones in the scheme of things.
I have in evidence a document typed by Mr McDougall as a former will and signed by him as such. I accept Mr Scott's evidence that Mr McDougall intended to have it changed in Mr Scott's favour. But it was not renounced or destroyed (see below). This suggests Mr McDougall intended the informal will to represent his testamentary intentions subject to change in the new will. He wanted the informal will to stand pending that change. An intention that the informal will would not stand pending change would be inconsistent with the intention to benefit Mr Scott to the exclusion of Ms Mathew in the new will because Mr Scott would have taken nothing under an intestacy. Analysing the evidence with great care as I must, I find that the informal will represented Mr McDougall's testamentary intentions upon his death.
The final matter to be determined is whether the presumption that Mr McDougall revoked the informal will has been displaced. On that issue the onus rests upon Mr Scott.[7] The relevant principles were conveniently summarised by Hansen J in John Di Gregorio & Anor v Lorenzo Di Gregorio[8] and Gray J in Jack Hamilton Gerard Deceased.[9] I adopt these summaries with gratitude.
[7] Jack Hamilton Gerard Deceased [2007] SASC 362 (10 October 2007) [34] (Gray J) (‘Gerard’), citing Allan v Morrison [1900] AC 604 and In the Will of Molloy [1969] 1 NSWR 400.
[8] [2007] VSC 156 (18 May 2007) [11]-[16] (‘Di Gregorio’)
[9] [2007] SASC 362 (10 October 2007) [32]-[40].
In submitting that the presumption had not been rebutted, Mr Verspaandonk relied upon a number of factual considerations. The original version of the informal will had been retained by Mr McDougall for over two years yet was not found upon his death. There was nothing in the manner of the keeping of his papers to suggest that it had been lost. Other official documents were found at his premises but not the original version of the informal will. He had given Mr Scott instructions to change that will, which supplied a reason for destroying the original version. It was speculative to conclude otherwise. There was no evidence of theft. Other papers had been found to have been destroyed by Mr McDougall. It could not be concluded that the original version of the informal will had been taken and destroyed by the police. Other matters were referred to.
Again, each of these submissions has force. Nevertheless I am convinced to the Briginshaw standard that Mr McDougall did not destroy the original version of the informal will. Such a step would have been totally inconsistent with the pattern of his behaviour in relation to the informal will before his death.
In my view Mr McDougall regarded the informal will to be an important document because it represented his testamentary intentions. That is why he kept it (safe) for such a long period of time and later gave a copy to Mr Scott. He summoned Mr Scott to his premises to receive instructions to have it changed in Mr Scott's favour. To destroy the original version of the will would have resulted in Mr Scott's disinheritance.
It is relevant to take into account the closeness of the custody with which the relevant document was held.[10] Mr McDougall kept the original version of the will safe for a long time but not under lock and key. It could easily have been, and in my view was, lost upon his death. It was not destroyed by Mr McDougall. On the evidence, I cannot actually find that it was taken and subsequently destroyed by the police but that is one plausible possibility.
[10] Gregorio [2007] VSC 156 (18 May 2007) (Hansen J) [14]; Gerard [2007] SASC 362 (10 October 2007) (Gray J) [33].
For these reasons I conclude that the informal will should be admitted to probate but the proper applicant for letters of administration is Ms Mathew. The issues stated for determination are so addressed.
Accordingly, there will be a grant of letters of administration in respect of a will made by Mr McDougall on 25 October 2006, the original of which is missing but the contents of which are proved by a photocopy thereof, but the grant of probate will be limited until the original will or a more authentic copy is proved.
I will hear the parties on the precise terms of the order and question of costs.
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