Slack v Rogan
[2013] NSWSC 522
•10 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: Slack v Rogan & Anor ; Palffy v Rogan & Anor [2013] NSWSC 522 Hearing dates: 11-14 March 2013 Decision date: 10 May 2013 Jurisdiction: Equity Division - Probate List Before: White J Decision: Refer to paras [142] and [143] of judgment.
Catchwords: SUCCESSION - wills, probate and administration - whether revoked will can be revived by informal instrument not complying with s 6 of the Succession Act 2006 - whether informal instrument operates as will under s 8 by reason of deceased's intention that it form part of her will - whether deceased had intention to revive will when deceased unaware that will had been revoked - meaning of "execution of a will" in s 15
SUCCESSION - family provision and maintenance - factors relevant to the making of a family provision order under s 59(1)(b) - provision required for "proper" maintenance and advancement in life under s 59(1) - difficulty of assessing community expectations - importance of testator's assessment of applicant's entitlement to testamentary bounty - importance of need of applicant in determining extent of provision that ought to be madeLegislation Cited: Succession Act 2006
Wills Act 1936 (SA)
Wills, Probate and Administration Act 1898
Family Provision Act 1982Cases Cited: In the Estate of Blakely (1983) 32 SASR 473
In the Estate of Williams (1984) 36 SASR 423
MYT Engineering Pty Ltd v Mulcon Pty Ltd [1999] HCA 24; (1999) 195 CLR 636
In the Estate of Lynch (1985) 39 SASR 131
Trickey v Davies (1994) 34 NSWLR 539
In Re Earl of Caithness (1891) 7 TLR 354
McLeod v McNab [1891] AC 471
Oreski v Ikac [2008] WASCA 220 at [54]; Estate of Masters, deceased; Hill v Plummer (1994) 33 NSWLR 446
Hatsatouris v Hatsatouris [2001] NSWCA 408 Bell v Crewes [2011] NSWSC 1159
Re Gloria May Limpus, deceased [2013] QSC 66
In re Baker [1929] 1 Ch 668
In re Pearson, deceased; Rowling v Crowther [1963] 1 WLR 1358
In the Will of Killick [1960] VR 98
Re Anderson (deceased) [2009] SASC 400
Re Fulop, deceased (1987) 8 NSWLR 679
Graziani v Graziani (Supreme Court of New South Wales, Cohen J, 20 February 1987, unreported, BC8701578)
Singer v Berghouse (1994) 181 CLR 201
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Hunter v Hunter (1987) 8 NSWLR 573
Golosky v Golosky [1993] NSWCA 111
Bladwell v Davis [2004] NSWCA 170
Stott v Cook (1960) 33 ALJR 447
Nowak v Beska [2013] NSWSC 166
Gorton v Parks (1989) 17 NSWLR 1
Carney v Jones [2012] NSWSC 352
Wheatley v Wheatley [2006] NSWCA 262Texts Cited: Certoma, The Law of Succession in New South Wales, 4th ed, Thompson Reuters Category: Principal judgment Parties: James Joseph Slack (Plaintiff 2011/247466)
John Peter Palffy (Plaintiff 2011/220317)
Mark Campbell Rogan (1st Defendant)
Elizabeth Kate Rogan (2nd Defendant)Representation: Counsel:
J B Whittle SC with D Neggo (Plaintiff 2011/247466)
M Pesman (Plaintiff 2011/220317)
G McGrath (Defendants)
Solicitors:
Roden Solicitors (Plaintiff 2011/247466)
Aitken Wilson Lawyers (Plaintiff 2011/220317)
Staunton & Thompson (Defendants)
File Number(s): 2011/247466; 2011/220317
Judgment
HIS HONOUR: These proceedings concern the estate of Aidan Patricia Rogan who died on 16 March 2011 aged 91. Her estate has an estimated value of approximately $826,000. Mrs Rogan's husband, John Rogan, died on 23 June 1994. She had one son, Michael Rogan. He died on 23 November 2003. On 29 December 2003, Mrs Rogan made a will substantially in favour of her nephew, James Slack. He is the plaintiff in the first proceeding. On 23 December 2007, Mrs Rogan made a new will that revoked all previous wills and left her estate to her grandchildren, that is, the children of her son Michael. She appointed the defendants, Mark Rogan and Elizabeth Rogan, as the executors of that will. Probate of the will of 23 December 2007 was granted to the defendants on 18 May 2011.
In the first proceeding Mr Slack seeks the revocation of the grant of probate to the defendants of the will of 23 December 2007. He does not challenge the validity of the 2007 will. He claims that it was revoked by a further document signed by Mrs Rogan on 4 December 2008 and witnessed by her solicitor, Mr Philip Abigail, that is said to have revived the 2003 will. The 2003 will contained a revocation clause. If it was revived by the document of 4 December 2008 it took effect from that day and revoked the December 2007 will. The document of 4 December 2008 was not executed in accordance with the requirements of s 6 of the Succession Act 2006 for the execution of wills. Mrs Rogan's signature was witnessed only by one person, not two. Mr Slack relies upon s 8 of the Succession Act concerning the admission of informal testamentary instruments and s 15 of that Act in relation to the revival of the 2003 will.
Although there are reasons to doubt Mrs Rogan's capacity to make a will in either December 2007 or December 2008, no issue of testamentary capacity was raised.
Mr Slack submits in the alternative that the document dated 4 December 2008 is itself an informal will that should be admitted to probate. If neither claim succeeds Mr Slack seeks an order for provision out of the estate pursuant to s 59 of the Succession Act. There is no dispute that he is an "eligible person" pursuant to s 57(1)(e) having been partly dependent on Mrs Rogan and a member of her household.
The second proceeding is a claim by Mr Palffy for an order for provision under s 59 of the Succession Act. He also is an eligible person entitled to apply for a family provision order by reason of s 57(1)(e). He was cared for by Mr and Mrs Rogan as a foster child from age eight.
Claim for revocation of the grant of probate of the December 2007 will: Background
By her will of 29 December 2003 Mrs Rogan appointed Mr Slack and her solicitor, Mr Philip Abigail, as the executors and trustees of the will. She made specific gifts of personal items of property to two people and left the residue of her estate to Mr Slack.
As well as preparing her will of 29 December 2003, Mr Abigail had prepared wills for Mrs Rogan that were signed on 16 July 1986, 29 September 1994, 19 November 1999, and 19 December 2001. I refer to the details of some of those earlier wills later in these reasons in dealing with the claim for a family provision order brought by Mr Palffy. For present purposes, the details of the earlier wills are not relevant. Mr Abigail had been Mrs Rogan's solicitor for a long time and was her trusted adviser.
Mr Slack had frequent contact with his aunt from the time he was in his early 20s. Between 2001 and 2003 he was in constant contact with her because of her concern for her son Michael. Michael was an alcoholic and died from problems related to alcohol abuse. On 10 October 2003, Mrs Rogan executed an enduring power of attorney and an enduring appointment of Mr Slack as her guardian if, because of disability, she became incapable of managing her person. The will of 29 December 2003 was made after Michael Rogan's death. It contained a clause in which Mrs Rogan stated that the reason she had made Mr Slack her executor and residuary beneficiary was his care and attention to her over the last few years and because of his compassionate and constant care for her son Michael prior to his recent death.
Shortly after January 2004 Mrs Rogan asked Mr Slack to be her full-time carer. She told him that her general practitioner, Dr Joseph, had advised her that her health was not going to improve and her dementia was progressing. She said that if she could not find a full-time carer, her doctor thought that she would have to go into a nursing home. Mr Slack agreed to become her full-time carer. He moved into Mrs Rogan's home.
A discharge summary of the Manly and Mona Vale Hospitals and Community Health Services in relation to Mrs Rogan's admission to hospital in 2006 as a result of unstable angina described her as an 86-year-old woman with severe dementia.
Lynette Rogan was Michael Rogan's widow and Aidan Rogan's daughter-in-law. At some time prior to December 2007 she had discussions with Aidan Rogan about Aidan Rogan's will. Lynette Rogan worked as a legal secretary for a firm of solicitors in Manly. She deposed that Aidan Rogan was asking about her papers and she showed Aidan Rogan a scribbled note found in a box and said, "This looks like a draft part of your will." Lynette Rogan said that if it would make Aidan Rogan feel more secure perhaps she should write out a new will, and that she could write one out for her following her directions. According to Lynette Rogan, she went over with Aidan Rogan what Aidan wanted in her will, and Aidan Rogan said, "It would have gone to Michael but now it will go to the children". About a week later, Lynette asked Aidan Rogan if she would like her to prepare another will for Aidan and Aidan said that she would feel better if Lynette wrote a will up for her. According to Lynette Rogan, Aidan Rogan again said, "It would have gone to Michael, but now it will go to his children". Lynette Rogan said that as a legal secretary she had had many years experience in drafting wills for the solicitors for whom she worked and she had a copy of a draft will on her computer which she used as a precedent. She prepared the will and provided a copy to Aidan Rogan.
On the Sunday before Christmas, 23 December 2007, Aidan Rogan came to Christmas lunch with Lynette Rogan and her children and their partners. Lynette brought out a copy of the will she had prepared and showed it to Aidan Rogan and asked her if she wanted to sign it. Aidan Rogan said that what was in the will was what she wanted and the will was signed and witnessed. Lynette Rogan kept the signed will.
No solicitor was involved. Mr Abigail, who had acted as Aidan Rogan's solicitor for over 20 years was not consulted. Mr Slack was not informed. Aidan Rogan was suffering from dementia. However, no issue was raised about the validity of this will.
On 23 September 2008, Lynette Rogan, her daughter Elizabeth and her partner, and her son Mark and his partner, and a number of other men, removed Aidan Rogan from her home. She stayed at Lynette Rogan's house. This was notwithstanding that Aidan Rogan had appointed Mr Slack as her enduring guardian. On 21 October 2008, Aidan Rogan arranged for a call to be placed to her home after she had left Lynette Rogan's house asking to be collected from a shopping centre at Manly Vale. She was collected and returned to her own house.
On or about 24 September 2008, an application was made by Mark Rogan (Aidan's grandson) to the Guardianship Tribunal to review the appointment of Mr Slack as Aidan Rogan's enduring guardian and to review the enduring power of attorney. The Tribunal's reasons for a decision made on 6 November 2008 for the adjournment of the applications records that members of Mrs Rogan's family were said to have become recently unhappy about Mr Slack's acting as enduring guardian and that Mark Rogan believed that he had not been acting in Mrs Rogan's best interests. On 17 December 2008, the Tribunal confirmed the appointment of Mr Slack as Mrs Rogan's enduring guardian and did not vary any of the functions she had given to Mr Slack as her enduring guardian. The Tribunal interviewed Mrs Rogan separately from other participants in the hearing and she confirmed that she was aware that Mr Slack was her enduring guardian and considered him to be reliable and a great help to her. She was unable to say why her grandson, Mark Rogan, might have commenced the proceedings.
Signing of file note of 4 December 2008
Shortly after Aidan Rogan returned to her home, Mr Slack asked her whether she had made another will. She said that she did not know. She said that Mr Slack should call Mr Abigail and get him down to sort it out. She said to Mr Slack:
"I want to have a look physically at my will. Get Mr Abigail to bring down a copy of the will. I want to have a look at it."
Mr Slack telephoned Mr Abigail. He had a number of conversations with Mr Abigail between October and November 2008. He said to Mr Abigail words to the effect, "I think you'd better get Aidan to update her will".
Mr Abigail said:
"She has the will from 2003, do you want me to make the same will again?"
Mr Slack said:
"I think you should come down and see her and update the will."
Mr Abigail deposed that on one occasion at this time Mr Slack said to him in a telephone conversation words to the following effect:
"Jim: Can you bring down a fresh will in the same terms as the 2003 will and have Aidan sign it.
Me: I am not going to do that without some indication from her that that is what she wants me to do."
Mrs Rogan did not tell Mr Slack or Mr Abigail that she had executed a will on 23 December 2007. Mr Slack suspected that the Lynette Rogan had procured Mrs Rogan to have made a new will after she had been taken from her house in September and October 2008. She was not able to tell him whether or not she had made a new will. Mr Slack conveyed this information to Mr Abigail. But, quite properly, Mr Abigail was not prepared to make a new will for Mrs Rogan without her instructions.
Mr Abigail attended on Mrs Rogan on 4 December 2008 at her home. He deposed:
"34. In the afternoon of 4 December 2008 I attended upon Aidan at her home. I thought it was appropriate for me to see Aidan at Jim's request because he was still her carer and it was consistent with what had occurred previously where Jim would contact me in relation to Aidan's affairs. In any event, I wanted to see her because I wanted to ascertain whether she was still happy to leave her estate to Jim, particularly in light of the recent proceedings before the Tribunal, and also having regard to the period when she was absent from her home and living with her daughter-in-law. I was concerned to obtain her considered instructions and for that reason I spent some time with her. In all our meeting went for over an hour and possibly closer to two hours.
...
41. Aidan's eyesight and hearing appeared to be good. As far as I can recall she did not wear glasses. Because of my own partial deafness I tend to talk quite loudly. It was readily obvious to me in the course of our discussions that she could easily hear me.
42. I took Aidan through each of the five wills I had previously drafted for her. The process took over 30 minutes. I would not always go to such lengths when discussing a will with a client, but in this case I did because of the unusual situation of the Guardianship Tribunal proceedings and also the period that Aidan had spent living at her daughter-in-law's house. I was concerned to ensure that I understood what Aidan really wanted in terms of her testamentary intentions.
43. The procedure was as follows; I handed her each will (one at a time, from earliest to latest) and she read them in turn. She read them to herself but I could see that she was reading them as she was looking down at the pages and focusing intently. Also, from time to time she would look up and discuss a particular issue relating to what she was reading; I cannot recall any specific issue that she raised but I recall that she asked me about various matters relevant to the wills which required an explanation from me. Because the conference was in the form of a conversation it was free-flowing and I remember more the general terms of the conversation than each of the specific matters discussed.
44. Aidan did not remember having made any of the five wills. I asked her in relation to each will: 'do you remember making this will?' and her saying: 'no'.
45. When she finished reading each will, I would then discuss the terms of the will with her in summary. I would say: 'this will provides for [such and such].' I know she was paying close attention because she interrupted my summary of the wills a number of times to comment. At each time that she interrupted me, I remember that her comments were prompt, deliberate and appropriate to the context of what we were discussing, but I cannot recall many of her individual comments. She was quite forceful in the sense that she was quite particular and determined in her manner about the terms of her wills and what her testamentary wishes were.
46. When we were discussing Aidan's 29 September 1994 will I said words to the effect of: 'clause 6 is intended to try to avoid claims by people who may be entitled to make a claim against your estate otherwise than as provided for in your will. People who might be eligible to make such a claim include John [Palffy], Lynne [Rogan] and Michael's children. Clause 6 says that you have considered all 'eligible persons' and their interests and that you only want them to benefit as set out in your will.' Aidan replied with words to the effect of: 'Yes, I understand.' I was unsure whether or not Lynne Rogan and Aidan's grandchildren would qualify as 'eligible persons', so I said that they 'might' be eligible to make a claim.
47. When we were discussing Aidan's 19 December 2001 will I said words to the effect of: 'this will leaves your house to your son Michael for his lifetime and then to his children.' She said words to the effect of: 'I don't want that, I want the house to go to Jim.'
48. When we were discussing Aidan's 29 December 2003 will I said: 'Jim and I are the executors of this will.' Aidan said: 'that is what I want.'
49. When we were discussing Aidan's 29 December 2003 will I said words to the effect of: 'this will leaves your house to Jim.' She said words to the effect of: 'That is what I want. Jim has looked after me so well and that's why I'm leaving my house to him.'
50. Also when we were discussing Aidan's 29 December 2003 will, in relation to clause 5 I said words to the effect of: 'this is again the clause relating to "eligible persons" where you declare that you have considered all people who might be eligible to make a claim against your estate, and the interests of those people, and you declare that you wish those people only benefit from your estate as set out in your will.' She said words to the effect of: 'yes, that is what I want.'
51. During the conference she said on repeated occasions: 'I want Jim to get the house.'
52. I also said words to the effect of: 'do you want to leave any bequests to your grandchildren?' She said: 'no'.
53. I said to her 'the main beneficiary of your last will is your nephew, James. Do you wish to make any provisions for others including your grandchildren?' She replied, 'No leave it as it is'. I then said 'Then you do not want to change your 2003 will in which apart from gifts of minor items to Marjorie and Yvonne you leave the rest of the estate to your nephew Jim?' She replied 'Yes, that's correct'.
...
56. I said to Aidan: 'Do you want me to make a new will?' She replied: 'No, what's wrong with the 2003 will? I am satisfied with the 2003 will and I do not want to change it.' I said: 'If you haven't made a new will then it's still valid.' Although I cannot recall her expressly responding by saying that she had not made a new will, I would have discussed the importance of any new will with her in further detail if she had even suggested that she had made a will after 2003. Certainly when I left the conference I was of the understanding that the 2003 will was Aidan's most recent will.
57. Based upon my discussion with Aidan that day I was satisfied that she well understood the nature of her property (in particular her house, which she called 'my house'), the people to whom she might have some duty in respect of her estate and how she wished to discriminate between them, and what she wanted to happen to her property after she died."
I accept that evidence.
Mr Abigail prepared a note of his attendance on Mrs Rogan and of her instructions. She signed the first page of the note. The page she signed reads:
"I attended upon Aidan Rogan at about 4PM on 4 DECEMBER 2008. I showed to her her wills made on 16.7.1986, 19.11.1999, 19.12.2001, 29.12.2003. She considered these wills for over 30 minutes. I explained to her that the main beneficiary of her last will was her nephew James. I asked her whether she wanted to make provision for others including her grandchildren. She said to me 'No leave it as it is'. I said 'Then you did not want to change your 2003 will in which apart from gifts of very minor items to Marjorie & Yvonne you leave the rest of the estate ot your nephew James. She replied 'Yes that's correct.'
TO PHILIP ABIGAIL
I acknowledge that I do not want to change my will & I understand that my home & cash & bank monies will pass to my nephew Jim Slack.
A Rogan
4. 12.2008"
The second page of the file note of 4 December 2008 stated:
"I left with Ms Rogan her original will so that she could review her will & decide whether she wants to make any changes.
I asked her to read the above note to acknowledge that I left her original will with her for the above purpose."
Mr Slack was present at Mrs Rogan's house when Mr Abigail attended on 4 December 2008. Another solicitor, a Mr Richard Thomas, was also present. He was present because Mr Slack had said to him words to the effect of:
"Aidan's solicitor Philip Abigail is going to come and see her at some time to talk to her about her will. I would like you to be there when he comes. If there is to be a new will you can witness it. Otherwise you will be able to confirm the instructions that Aidan gives to Philip."
Neither Mr Thomas nor Mr Slack was present during Mr Abigail's conference with Mrs Rogan. They stayed outside. Mr Thomas was available with Mr Abigail to witness a new will if Mrs Rogan had instructed Mr Abigail that she wanted to make a new will. Mr Abigail had the original of the 2003 will with him. A codicil could have been written by hand on that will that confirmed that Mrs Rogan intended it to be her last will, and such a codicil could have been signed by Mrs Rogan and witnessed by Mr Abigail and Mr Thomas. However, Mrs Rogan saw no need for a new will. She suffered at least from short-term memory loss. She had no recollection of making the will of December 2007. She was happy with the will of December 2003 and saw no reason to make a new will.
Mr Abigail had no instructions to make a new will or a codicil. Accordingly he made the file note confirming his instructions.
After Mr Abigail had consulted with Mrs Rogan and she had signed the file note, he motioned to Mr Thomas and Mr Slack to come over. In the presence of Mrs Rogan, Mr Abigail told Mr Thomas and Mr Slack that:
"As you know, I have come to talk to Aidan about her will. I have shown her all the previous wills I have prepared for her in the past. I have shown her the most recent will from December 2003 which she tells me she doesn't wish to change.
Aidan Rogan: 'No I don't want to make another will. I am leaving my house and money to Jim.'
Thomas: 'That's good.'
Abigail: 'I have had Aidan sign this statement confirming her will of December 2003.'"
Sections 6, 8 and 15 of the Succession Act relevantly provide:
"6 How should a will be executed?
(cf WPA 7 and 9)
(1) A will is not valid unless:
(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and
(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and
(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
(2) The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will.
(3) It is not essential for a will to have an attestation clause.
...
8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?
(cf WPA 18A)
(1) This section applies to a document, or part of a document, that:
(a) purports to state the testamentary intentions of a deceased person, and
(b) has not been executed in accordance with this Part.
(2) The document, or part of the document, forms:
(a) the deceased person's will-if the Court is satisfied that the person intended it to form his or her will, or
(b) an alteration to the deceased person's will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or
(c) a full or partial revocation of the deceased person's will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.
(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:
(a) any evidence relating to the manner in which the document or part was executed, and
(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.
(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).
...
15 How a revoked will may be revived
(cf WPA 19)
(1) A will or part of a will that has been revoked is revived by re-execution or by execution of a will showing an intention to revive the will or part.
(2) A revival of a will that was partly revoked and later revoked as to the balance only revives that part of the will most recently revoked.
(3) Subsection (2) does not apply if a contrary intention appears in the reviving will.
(4) A will that has been revoked and is later wholly or partly revived is taken to have been executed on the day on which the will is revived."
Defendants' submissions on revival
It was common ground that the December 2007 will revoked the will of December 2003. On the question of whether the 2003 will was revived by the file note signed by Mrs Rogan dated 4 December 2008, Mr McGrath, who appeared for the defendants, made two principal submissions. The first was that a document not executed in accordance with s 6 of the Succession Act could not revive a will that had been revoked. This was so for two related reasons. The first was that s 15(1) stipulates that a will that has been revoked can be revived only by re-execution of that will (which is not this case), or by "execution of a will" showing an intention to revive the will. Section 6 prescribes the formalities for execution of a will. It provides that a will is not valid unless the formalities are satisfied. Accordingly, (so it was submitted) it is only a will validly executed in accordance with s 6 that can revive a will that has been revoked pursuant to s 15(1). Consistently with the terms of s 15 (so it was submitted) s 8(2) provides that a document not executed in accordance with the requirements of Part 2 (which includes s 6) forms the deceased person's will, an alteration to the deceased person's will, or a full or partial revocation of the deceased person's will, if the court is satisfied that the person intended it to form his or her will, or an alteration to his or her will, or a full or partial revocation of his or her will. Section 8 is concerned only with dispensation from the requirements for the execution, alteration, or revocation of wills. It is not concerned with the circumstances in which the requirements for revival of a will can be dispensed with. This, so it was submitted, supports a construction of s 15 that revival of a revoked will can only be effected by a new will that is duly executed in accordance with the requirements of Part 2.1 for the execution of wills.
Alternatively, Mr Cohen submitted that the file note of 4 December 2008 signed by Mrs Rogan was not intended by her to form her will. The circumstances of her signing the document of 4 December 2008 showed that she intended only the will she signed on 29 December 2003 to form her will. She did not intend that the document she signed on 29 December 2008 should form her will. She only signed that document as a record of her instructions to Mr Abigail. It should not be inferred that she intended it to have any testamentary effect. Accordingly, the document of 4 December 2008 could not form Mrs Rogan's will within the meaning of s 8. Not being a will, it could not revive the will of 29 December 2003.
Can a revoked will be revived by an informal will under s 8?
In the Succession Act a "will" includes a codicil and any other testamentary disposition (s 3). Thus a codicil can form a deceased person's will within the meaning of s 8(2)(a), although it has not been executed in accordance with the requirements of s 6, if the court is satisfied that the person intended it to form his or her codicil. A revoked will can be revived by execution of a codicil showing an intention to revive the will. The question in terms of s 15 is whether the "execution" of a will (or codicil) showing an intention to revive a will that has been revoked requires that the will or codicil be executed in accordance with the requirements of Part 2 (relevantly s 6), or whether it is enough that a document that the deceased person intended to form his or her will or codicil that revived a prior will was "executed", even though it was not executed in accordance with the formalities required by s 6.
The argument that "execution" in s 15(1) means execution in accordance with Part 2 gains some support from s 8(1)(b) that provides that s 8 applies to a document that has not been executed in accordance with that Part. In s 8(1)(b) the reference to a document not having been "executed" in accordance with Part 2 means that the formalities for due execution of a document have not been complied with, whether the formalities be that of signature by the testator or by some other person in the presence of and at the direction of the testator, or signature in the presence of at least two witnesses, or attestation by at least two witnesses (In the Estate of Blakely (1983) 32 SASR 473; In the Estate of Williams (1984) 36 SASR 423). The issue in those cases was whether s 12(2) of the Wills Act 1936 (SA), a predecessor to s 8 of the Succession Act, applied if the informal document sought to be admitted to probate was not signed by the testator. Subsection 12(2) of the Wills Act provided that:
"A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed with the formalities required by this Act, be deemed to be a will of the deceased person if the Supreme Court upon application for admission of the document to probate as the last will of the deceased, is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will."
There were conflicting authorities as to whether an unsigned document could be admitted to probate under this section as such a document might be said not to have been "executed" at all, as distinct from not having been executed with the prescribed formalities. In giving the required beneficial construction to what was remedial legislation, the Full Court of the Supreme Court of South Australia held that s 12(2) applied even if the document had not been signed by the deceased if the deceased intended the document to constitute his or her will. In In the Estate of Williams, King CJ said (at 424-425):
"I am unable to agree with the contention that the words 'has not been executed with the formalities required by this Act' imply that there must be a signature to the document. I think that the relevant meaning of the word 'execute' is the third meaning given in the English Oxford Dictionary (1961), namely 'to go through the formalities necessary to the validity of (a legal act, e.g. a bequest, agreement, mortgage etc.). Hence to complete and give validity to (the instrument by which such act is effected) by performing what the law requires to be done, as by signing sealing etc.' To execute a document is to do what the law requires to be done to give validity to the document. Section 8 sets out the legal requirements or formalities for execution of a will. If those formalities are not complied with, there is no execution. Execution and signature are, of course, not synonymous. When this is borne in mind, the answer to the present problem becomes clearer. Execution is the validation of a document by going through the formalities required by law for that purpose. The notion of execution of a will other than in accordance with the formalities prescribed by s 8, is therefore a self-contradictory notion. It follows tht the saving effect of s 12 is only required and is only operative when the will has not been executed. Signature is simply one of the formalities required by the Act for valid execution. There is no reason, as a matter of construction or logic, to differentiate between signature and any of the other formalities for execution required by s 8. All that is required for the operation of s 12(2) is that there should be 'a document purporting to embody the testamentary intentions of a deceased person' and that the Court 'is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will'."
In MYT Engineering Pty Ltd v Mulcon Pty Ltd [1999] HCA 24; (1999) 195 CLR 636 at [9], 643, Gleeson CJ, Gaudron, Gummow and Hayne JJ approved the statement of King CJ in In the Estate of Williams that "[t]o execute a document is to do what the law requires to be done to give validity to the document".
These authorities support the argument for the defendants that in s 15 the reference to the execution of a will is to a will that has been duly executed in accordance with s 6.
In my view it does not follow that because in s 8(1)(b) the reference to a document not having been "executed" in accordance with Part 2 is to the failure to comply with any of the formalities required for the execution of a will, that in s 15 the reference to the "execution of a will" is only to the due execution of a will in accordance with s 6. Section 15 must be construed having regard both to s 6 and to s 8. It is not a misuse of language to say in the present case that Mrs Rogan "executed" the document of 4 December 2008 by signing it. Although signature and execution are not synonymous, one of the meanings of "execute" is "to perform or do" (Macquarie Dictionary Revised 3rd Edition). If the document that Mrs Rogan signed on 4 December 2008 not only stated her testamentary intentions (as it clearly did) but was also intended by her to form her will so that it did form her will, in my view she executed the will for the purposes of s 15.
Section 8 is contained in Division 3 of Part 2.1. The division is headed "Dispensing with Requirements for Execution Alteration or Revocation of a Will". I do not think the heading to the Division and to the section takes the matter any further. The fact that the requirements for due execution, alteration or revocation of wills are dispensed with where the requirements of s 8 are satisfied does not mean that a document that forms a deceased person's will by reason of s 8 cannot itself have been executed. Provided such a document is "executed", notwithstanding that it is not executed in accordance with the due formalities for execution of a will, because the document forms the will if the requirements of s 8 are satisfied, the execution of the document is the execution of a will within the meaning of s 15(1) that is capable of reviving an earlier revoked will.
This is the effect of the decision of Matheson J in In the Estate of Lynch (1985) 39 SASR 131. There the testatrix made a valid will in accordance with the formal requirements of the Wills Act (SA). She then married. The marriage revoked the will. After her marriage the testatrix made handwritten alterations in biro by changing her name on the will to her new married name, but without re-executing the will in accordance with the formal requirements of s 8 of the Wills Act.
Section 25 of the Wills Act provided:
"25. No will or codicil or any part thereof which has been in any manner revoked shall be revived otherwise than by the re-execution thereof or by a codicil executed in manner herein before required and showing an intention to revive the will codicil or part thereof."
Matheson J cited the passage from the judgment of King CJ in In the Estate of Williams that I have quoted at para [31] above. His Honour held that when the biro alterations were made the will as so altered was intended by the testatrix to constitute her will. Notwithstanding what was said in In the Estate of Williams which his Honour cited, his Honour concluded that the will as so altered should be admitted to probate. His Honour also cited another passage from In the Estate of Williams where King CJ stressed that s 12(2) of the South Australian Act (the equivalent of s 8 of the Succession Act) is a remedial provision and there is no reason to suppose that Parliament intended to limit the circumstances in which it would operate. His Honour said (at 136):
"... if the deceased had written out the document again, or had it typed again, in exactly the same terms, but substituting the name Lynch for the name Ramsey, and had then signed at the foot of each page, but not had it witnessed, then it seems to me that on the authorities, for example, In the Estate of Clayton, deceased [(1982) 31 SASR 153] and In the Estate of Smith, deceased [(1985) 38 SASR 30], the provisions of s 12(2) of the said Act could then have been successfully invoked to validate such a document, and, in my opinion, what the deceased did here was very similar in character."
Trickey v Davies (1994) 34 NSWLR 539 concerned ss 18A and 19 of the Wills, Probate and Administration Act 1898. Section 18A was in materially the same terms as s 8 of the Succession Act. Section 19(1) provided:
"19(1) No will or any part thereof which is in any manner revoked shall be revived otherwise than by:
(a) the re-execution thereof; or
(b) a codicil executed in the manner required by s 7 and showing an intention to revive the same."
As Mr Whittle SC, who appeared with Mr Neggo for Mr Slack, submitted s 19(1)(b) was substantially narrower than s 15(1) of the Succession Act as it expressly required that a codicil that was to revive a revoked will be executed in the manner required for the due execution of a will. By contrast, s 15(1) simply requires "execution of a will showing an intention to revive the will" and does not expressly require that such a will be executed in the manner required by s 6 (the successor to s 7 of the Wills, Probate and Administration Act).
In Trickey v Davies the testator had made a will that was revoked by marriage. After his marriage the testator did not make any physical alteration to the will or sign any other document that purported to revive the will. He did not have any physical dealing with the will. The deceased did not realise that his marriage had revoked the will, but after his marriage he manifested the intention that his property devolve in accordance with his will by making certain arrangements concerning his own property and that of his wife, and by arranging for his wife's will to be made in favour of her children (at 546). In terms of s 18A of the Wills, Probate and Administration Act, the court was satisfied that the deceased intended the revoked will to constitute his will. In the absence of the execution of any new document and any physical dealing such as there was in In the Estate of Lynch with the revoked will, Hodgson J held that the revoked will was not revived.
One of the arguments put forward by counsel as to why s 18A of the Wills, Probate and Administration Act did not apply was that the section only applied where a will "has not been executed in accordance with the formal requirements of this Act". The revoked will in question had been so executed. Accordingly, so it was submitted, it did not matter whether or not the deceased intended the revoked will to constitute his will because it was not a document that had not been executed in accordance with the formal requirements of the Act. Hodgson J dealt with the argument (at 545) by saying that:
"...the intention suggested by the terms of s 18A is to validate wills which have not been executed in accordance with the formal requirements of the Act. Where a will has been executed in accordance with those formal requirements, and has been revoked, then, in my view, if that document is to be the will of the deceased, there has to be a revival of it. This links with the second point, that s 19 sets out requirements for revival, and what is alleged to be done in this case must, in substance, amount to revival of the revoked will."
In Trickey v Davies there was no separate document that could arguably be a codicil. If s 19(1) applied (as his Honour held it did) the question was whether or not the revoked will had been "re-executed". His Honour said (at 545-546):
"In my view, s 19 must be read together with s 18A; and when that is done, it may be that the word 're-execution' in s 19(1) can be given a meaning wider than re-execution in accordance with s 7 of the Act. It is true that s 18A does not refer to any particular defective execution of a will, and treat that as proper execution: rather, it focuses on the intention of the deceased, and says that a document will constitute a will if the court is satisfied of the appropriate intention. Mr Hallen submitted, in effect, that in those circumstances one cannot identify any particular acts of a deceased which could amount to execution which satisfies s 18A, and that accordingly 're-execution' in s 19 is not appropriate to refer to satisfaction of the requirements of s 18A.
There is considerable force in this submission, and the South Australian case of Lynch is not entirely against it. In that case, because the deceased had actually made alterations to the original executed document, the document sought to be relied on could be regarded as a document different from the properly executed will, not properly executed, and therefore appropriate for the independent application of the equivalent of s 18A. Accordingly, Matheson J in that case did not have occasion to consider whether what was done amounted to 're-execution'.
In my view, it is clear that it would be insufficient merely to show that the deceased did not realise that marriage revoked the will, believed his will still operated, and in that sense continued to intend that the document constitute his will. The difficult question is whether, without making any alteration or addition to the document itself, it is sufficient for the deceased to perform acts or make statements which demonstrate afresh that the deceased intends that the will, in fact revoked by marriage, should constitute his will. Can such acts and statements, not involving any addition or alteration to the document, amount to a 're-execution' of the will, because they are sufficient to satisfy the Court that the deceased intended the document to constitute his will?
The relevant definition of 'execute' in the Macquarie Dictionary, (2nd revised ed) is 'complete and give validity to (a legal instrument) by fulfilling the legal requirements, as by signing, sealing, etc'; while in so far as s 18A specifies legal requirements, they are merely that there be a testamentary document which the court is satisfied the deceased intended to constitute his or her will.
With some hesitation, I have come to the view that, where what is alleged is in substance the revival of a revoked will, mere statements referable to the revoked will, or other conduct not involving some physical dealing with the revoked will, cannot satisfy the requirements of s 19, and cannot be given effect to under s 18A. My reasons are as follows:
1. Section 19(1) was retained when s 18A was introduced; and if mere statements or other conduct referable to the revoked will, but not involving physical dealing with the revoked will, could be sufficient to make the revoked will effective under s 18A, then s 19(1) could have no substantial application.
2. Section 18A specifically refers to a document 'not executed in accordance with the formal requirements of this Act'; and to 'a will', 'an amendment', and 'the revocation'. In both respects, it is not well expressed to deal with revival.
3. Section 18A does not refer to any dealing with a document which amounts to an 'execution' of it for the purposes of s 18A; and I do not think that anything short of some physical dealing with the document could amount to 're-execution' within s 19(1).
4. Section 18A is a remedial section, and should not be given an unduly narrow construction. However, it could still apply in revival-like situations if the s 18A document is not precisely the revoked properly executed will, so that s 19(1) does not apply: for example, if the deceased has manifested the appropriate intention in relation to a particular document which is a copy of the revoked will, or if the deceased has physically dealt with the revoked will so as to alter it physically in some way."
Whilst his Honour referred to the definition of "execute" in the Macquarie Dictionary that was to the same effect as that in the Oxford Dictionary cited by King CJ in In the Estate of Williams, his Honour did not decide that there was no "re-execution" in terms of s 19 simply because there had been no re-execution of a will in accordance with the formal requirements for the validity of a will in s 7. His Honour's reasoning was more nuanced. He found that there was no "re-execution" within the meaning of s 19 where there was no physical dealing with the revoked will. This was consistent with what Matheson J had said in In the Estate of Lynch (at 136) where his Honour had expressed the view (obiter) that if the testatrix in that case had simply retained the revoked will in the mistaken belief that it was still valid, but there was no subsequent act on her part which might amount to a publication of the document, s 12(2) of the Wills Act (SA) would not have saved it.
Hodgson J did not decide in Trickey v Davies that there could only be "re-execution" of a revoked will so as to revive it by re-execution in accordance with the formal requirements of s 7 of the Wills, Probate and Administration Act. This was so notwithstanding that the section as it then stood provided that there could only be revival by execution of a codicil if the codicil was executed in the manner required by s 7. His Honour found that the mere manifestation by the deceased of his intention that his property should devolve in accordance with the will did not amount to its "re-execution" within the meaning of s 19(1), but contemplated that a physical dealing with the will might amount to such a re-execution notwithstanding that there was not a re-execution in accordance with s 7 because of the influence of s 18A. The reasoning of Hodgson J in Trickey v Davies supports the view that "re-execution" of a revoked will, or "execution" of a will showing an intention to revive a revoked will within the meaning of s 15(1) of the Succession Act does not require re-execution or execution in accordance with the formal requirements of s 6. That is also the effect of the decision in In the Estate of Lynch.
There is nothing in the report of the NSW Law Reform Commission that led to the introduction of s 18A of the Wills, Probate and Administration Act (Report 47 (1986) - Community Law Reform Program: Wills - Execution and Revocation) that suggests that there was any intention to exclude the revival of a will from the scope of s 18A, even though revival was not specifically mentioned in the section. The report of the Law Reform Commission was silent on the present question.
Similarly, there is nothing in Report 85 (1988) - Uniform Succession Laws: The Law of Wills of the Law Reform Commission dealing with the revival of wills that throws any light on the present issue.
For these reasons, I am of the view that the will of 29 December 2003 was capable of being revived by Mrs Rogan's signing Mr Abigail's file note of 4 December 2008 if she intended the latter document to form her will (within the meaning of s 8) and showed an intention to revive the 2003 will (within the meaning of s 15(1)), notwithstanding that the document was not executed in accordance with the requirements of s 6.
The requirement of s 15(1) that Mrs Rogan intend to revive the 2003 will is clearly satisfied. The document (if it can be taken to be a codicil pursuant to s 8) shows an intention to revive the 2003 will. That is so notwithstanding that on 4 December 2008 Mrs Rogan was oblivious to the fact that she had made a later will but had revoked the 2003 will. The intention shown in the document was to confirm the 2003 will. The intention to confirm the earlier will is sufficient to satisfy the requirement that there be an intention to revive the will (In Re Earl of Caithness (1891) 7 TLR 354 at 355; McLeod v McNab [1891] AC 471 at 476; Certoma, The Law of Succession in New South Wales, 4th ed, Thompson Reuters at [9.60], 131). This is also implicit in the reasoning or decision in In the Estate of Lynch and Trickey v Davies.
Was Section 8 satisfied?
It is clear that Mrs Rogan intended to confirm the provisions of the 2003 will. Those were her instructions to Mr Abigail which she confirmed by signing his file note. By signing the file note she expressed that intention. Mr Whittle SC and Mr Neggo submitted that confirmation of a will can be a testamentary disposition, and that by confirming that the 2003 will was intended to operate as her will, Mrs Rogan made an informal testamentary disposition that fell within s 8 of the Succession Act that was effective to revive her 2003 will.
In my view, it is not sufficient merely to conclude that by signing the 2008 file note Mrs Rogan confirmed that she intended the 2003 will to operate as her will. To satisfy s 8(2)(a) the Court must be satisfied that Mrs Rogan intended the 2008 document to form her will. It is enough if the Court is satisfied that she intended it to form a codicil or testamentary disposition. She must have intended that the document she signed to have testamentary effect. That is, she must have intended the document to have a legally operative effect on the disposition of her property on her death (Oreski v Ikac [2008] WASCA 220 at [54]; Estate of Masters, deceased; Hill v Plummer (1994) 33 NSWLR 446 at 454-455; Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]; Bell v Crewes [2011] NSWSC 1159 at [24]-[45]). If a deceased person prepares a draft will or gives instructions for the preparation of a draft will and approves the contents of a draft will, so that the draft expresses the deceased's testamentary intentions, but if the deceased intends that the document will only operate as his or her will once it is signed, and dies before the document is signed, the document does not satisfy the requirements of s 8 because the deceased did not intend the document to form his or her will prior to signature. In the same way, if a document that contains the deceased's testamentary intentions is merely the instructions to a solicitor for the preparation of a will, the document cannot be admitted to probate pursuant to s 8 because the deceased did not intend that document to form his or her will. But the position will be different if the deceased intended that the document should operate as his or her will until the more formal document to be prepared by the solicitor was prepared and executed (Bell v Crewes at [44]-[45]; Re Gloria May Limpus, deceased [2013] QSC 66 at [6]-[15]).
In one sense it is clear that Mrs Rogan did not expect that the document she signed would have testamentary effect. She acknowledged that she did not want to change her will. It is clear that she expected that her property would pass to Mr Slack not by reason of the document she signed on 4 December 2008, but pursuant to the will of 29 December 2003. But that does not determine the question whether she nonetheless intended that the document should have testamentary effect if that were needed to give effect to her wishes. That question was not asked of her. There is no direct evidence that she had that specifically in contemplation.
In cross-examination Mr Abigail gave the following evidence:
"Q. Now, in this case, you didn't ask Aidan Rogan to re execute the 2003 will or to execute a copy, did you?
A. No.
Q. And that was in circumstances where you knew there were two independent solicitor witnesses available, who were not beneficiaries?
A. If you are including me.
Q. Yes, I am?
A. Yes.
Q. And you, of course, were aware that that course was open to you, if you wished to revive the will, as insurance against any wills she may have signed during that period in September and October 2008 while she was not in the care of Mr James Slack?
A. Yes, but it was not my will, it was her will, and I had to follow her instructions. And if I had gone down with a will without instructions, ready for her to sign it, I would have thought I was usurping her instructions.
Q. Did you suggest to her that it was a course that was open for her to re sign the will?
A. I asked her would you she like to make a new will, and I think there is something in my notes that she signed about that.
Q. But did you suggest to her that she re execute 2003 will?
A. She told me she didn't want to make another will.
Q. Was that in the context of discussion of her re executing the 2003 will?
A. I asked her was she happy with the 2003 will, and she said, 'Yes, that is what I want,' and I think she said something, 'I want it all to go to Jim.' There is some reference in that note, I can't recall it precisely. And at that stage, I didn't press her any further.
Q. Was that because of any concern you may have had about Mr James Slack pressing his interest too hard?
A. Partly, yes. I was concerned about everybody pressing their interest too hard. Everybody in that family pressing their interest too hard.
Q. And so would you say that the course you followed, of not having a re execution or execution of any document in the presence of two non-beneficiary witnesses, was what she wanted?
A. She indicated to me she didn't wish to make another will. However, I then made a statement which I asked her to sign which indicated, amongst other things, that she had considered the interests of her grandchildren about whom I had concern. They were her grandchildren, after all. And that she wanted her estate to go to Jim. I put that in the note.
Q. Did you press her to resolve any issues with an unremembered earlier will by re executing?
A. No. I didn't press her, no.
Q. And that was because you saw that as inappropriate and not in accord with her instructions?
A. That is correct."
Mr Abigail's purpose in asking Mrs Rogan to sign the file note was to obtain confirmation of his instructions. But the question is what inference should be drawn about Mrs Rogan's intentions. One difficulty is making an assessment of her capacity to form any particular intention. The defendants did not allege that Mrs Rogan lacked the capacity to form the requisite intention. Mr Abigail deposed that he knew Mrs Rogan had fairly significant problems with short-term memory, but during his discussion with her he formed the clear view that she clearly understood the nature of the discussions, what she was doing and what she wanted to do. At the same time he thought that because of her memory problems, she might sign a document on that day understanding it, but then later might not remember ever having signed the document. Mr Abigail thought that Mrs Rogan had testamentary capacity but asked her general practitioner, Dr Joseph, to provide his opinion. In his letter of 15 December 2008, Dr Joseph said that he had seen Mrs Rogan the previous week and that:
"Although she still has marked short-term memory loss and was unaware of what the current status of her will is and when it was last made, she was lucid and logical and capable at present of making decisions as to the distribution of her estate."
Mrs Rogan would have known of her own memory loss. This would have been apparent to her from the fact that she had no memory of the wills that Mr Abigail read to her that he had prepared for her up to 2003. She would have been aware of the possibility that she might have made a later will but had forgotten it. That possibility was the reason Mr Slack asked Mr Abigail to see Mrs Rogan. It is likely that Mrs Rogan was aware that there was a chance she had made a will which she did not remember which did not reflect her then wishes. It does not appear that Mr Abigail put that scenario specifically to Mrs Rogan, but she must have been aware of the possibility of having signed a document and forgotten it. She instructed Mr Abigail that she did not want to make a new will because she was happy with the 2003 will. I infer her intention in signing the document of 4 December 2008 included that the document be a back up to establish her testamentary wishes, if needed. Otherwise, from her perspective, the document served no purpose. Mr McGrath submitted that it was an instruction to Mr Abigail to record a decision to do nothing. The better view is that Mrs Rogan intended the document to record what she intended to happen to her estate after her death and intended the document to bring that about if it were necessary. Such an intention is sufficient to satisfy the requirement of s 8 that the deceased person intend the document to form his or her will. It is a conditional intention which is operative because the condition was satisfied.
For these reasons I conclude that the document of 4 December 2008 signed by Mrs Rogan:
(a) expressed her testamentary intentions so as to satisfy s 8(1)(a);
(b) was not executed in accordance with Part 2 of the Succession Act;
(c) was intended by Mrs Rogan to form her will within the meaning of s 8(2)(a), in that she intended it to have testamentary effect if that were necessary to give effect to her intentions expressed in the document;
(d) by reason of s 8, formed her will, being a codicil or testamentary disposition that confirmed her 2003 will;
(e) was executed by her; and
(f) showed an intention to confirm her 2003 will which amounted to an intention to revive that will as that will (unbeknownst to her at the time) had been revoked.
The consequence is that through the combined operation of ss 8 and 15 of the Succession Act the 2003 will which had been revoked was revived and was taken to have been executed on 4 December 2008. It contained a revocation clause which is operative to revoke the 2007 will (In re Baker [1929] 1 Ch 668 at 673; In re Pearson, deceased; Rowling v Crowther [1963] 1 WLR 1358 at 1360; In the Will of Killick [1960] VR 98 at 105; Re Anderson (deceased) [2009] SASC 400 at [48]).
I do not consider that the alternative basis upon which Mr Slack's case was put could be sustained. Mrs Rogan's intention that the document she signed on 4 December 2008 have testamentary effect was only as to its being a confirmation of the 2003 will. She did not intend the writing to be an entirely new will.
As no issue of testamentary capacity was raised, and as there was, in any event, some evidence supporting the view that the deceased had capacity to make a codicil on 4 December 2008, there should be a grant of probate in solemn form.
For these reasons the grant of probate to the defendants in respect of the will of 23 December 2007 should be revoked. There should be a grant of probate of the will of 29 December 2003, together with the first of the two pages of Mr Abigail's file note of 4 December 2008 that is exhibit B, to Mr Slack, with leave given to Mr Abigail to apply to join in the grant.
This conclusion makes it unnecessary to decide Mr Slack's alternative claim for a family provision order. However, in case I am wrong in my conclusion that the grant of probate to the defendants should be revoked, I will deal with that claim on the assumption that Mr Slack had failed on his primary claim. Before doing so, I will deal with Mr Palffy's claim for a family provision order.
Family provision claim by John Palffy
Mr Palffy was born on 1 May 1949 in Paris to Hungarian parents. They emigrated to Australia in April 1951. In about 1952 when John Palffy was three, he and his sister were placed in an orphanage in Baulkham Hills. In 1958 Mr Palffy, then aged eight, commenced living with Mr and Mrs Rogan and Michael on a permanent basis as their foster child, he having been placed with them through the Catholic Welfare System. Mr Palffy and Michael Rogan were approximately the same age. They shared a bedroom. Mr Palffy was enrolled at St. Augustine's College, Brookvale which Michael Rogan attended. Contrary to Mr Palffy's affidavit, Mr and Mrs Rogan did not adopt him. He continued to live in their household until 1973, when he married aged 24. He then moved to North Balgowlah.
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
The section does not say how the matters listed in s 60(2) are to be used to answer the questions raised by s 59(1)(c) and (2). If s 60 did not exist, the matters raised in it would doubtless still be considered to the extent they were relevant. The factors in s 60(2)(a), (b), (c), (d), (f), (g), (h), (i), (j), (k), (m) and (n) are relevant to the present case and have been referred to above. However, no one factor is determinative and they do not all point to any particular conclusion.
The question of what level of maintenance or advancement in life is "proper" depends on all of the circumstances of the case "including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty" (Singer v Berghouse (1994) 181 CLR 201 at 210).
It is often said that the judgment required by s 59(1)(c) as to whether adequate provision has been made for the proper maintenance, education or advancement in life of the eligible applicant is to be assessed having regard to "community standards" or "community values". Thus, in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, Allsop P described the section as requiring a "broad evaluative judgment based necessarily upon community values" (at [14]; 660). Barrett JA said (at [97]; 679-680):
"... the clear need for the court ... to recognise community expectations is undiminished."
I know of no way of determining what the community would expect, or what its standards are, or values would be. I do not know, but suspect, that the expectations of individual members of the community would vary widely. It may be that the Act itself, at least in so far as it goes beyond allowing provision to be made in favour of spouses and minor or disabled children, runs counter to community expectations about freedom of testamentary disposition. As Basten JA said in Andrew v Andrew (at [36]; 664), the only guiding light, consistent with the rule of law, for the identification of community standards are those reflected in current legislation. No legislation other than the Succession Act itself is relevant to the present case. Attempts to identify particular community standards, for example, that a testator need not make provision for an able bodied son, or that a widow's claim is paramount, have been rejected (Hunter v Hunter (1987) 8 NSWLR 573 at 580; Golosky v Golosky [1993] NSWCA 111; Bladwell v Davis [2004] NSWCA 170 at [12]-[19]). To say that the court itself is the spokesman for the fair and reasonable man or woman in the community (Kearns v Ellis (Supreme Court of New South Wales, Court of Appeal, 5 December 1984, unreported, BC8400149) is to acknowledge that in truth there is no ascertainable external community standard to guide the decision.
The question of whether the provision, if any, made for an eligible applicant is adequate for his or her proper maintenance, education or advancement in life is to be assessed having regard to the facts and circumstances of each individual case. The assessment involves a broad evaluative judgment which is not to be constrained by preconceptions and predispositions (Bladwell v Davis). This really means that there are no definite criteria for the exercise of the "evaluative judgment".
In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will.
In Gorton v Parks (1989) 17 NSWLR 1, Bryson J rejected the notion that the "bare fact of paternity" was incapable of supporting an order for provision (at 9-10). A person who brings a child into the world, or who assumes the obligations of parenthood by adopting a child, assumes a moral obligation towards the child that persists beyond childhood and may well found a moral duty to make provision for the child after the parent's death. Mr Palffy was not in that position. Mrs Rogan did not owe him a duty to make provision for him after her death by formally assuming the obligation of parent. By taking Mr Palffy into her household and bringing him up as one of the family, Mrs Rogan did more for Mr Palffy than the community generally expects. Nonetheless, as Macready AsJ said in Carney v Jones [2012] NSWSC 352 at [51], [53]:
"[51] One frequently sees cases where a foster child is treated as a natural child by the foster parents. This occurs not only with a childless couple but also with other families who also have a natural child as well as the foster child.
...
[53] As has been said before, there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision, or further provision, for the applicant."
It is significant that Mrs Rogan acknowledged that Mr Palffy was a proper object of her testamentary bounty in her wills made in 1994, 1999 and 2001. This fact indicates that she acknowledged that Mr Palffy had become such a member of her family as to give rise to a moral duty on her part to make provision for him in her will, albeit, that that was subject to a preference to be given to her natural son. It is also significant that in her will of 19 December 2001 Mrs Rogan not only left a legacy of $20,000 to Mr Palffy, but left him a life estate of the Manly Vale house after the death of her son. By December 2001 Michael Rogan was in a bad way due to his alcoholism. Mr Slack deposed that between 2001 and 2003 he was in constant contact with Mrs Rogers as she was worried about Michael Rogan's health and state of mind. He had separated from his wife, Lynette, in about 2000 and had moved to Mrs Rogers' home. The life estate of the Manly Vale property given to Mr Palffy on the determination of the life estate to Michael Rogan was a significant gift under the will of 19 December 2001.
Although there is no challenge to Mrs Rogan's capacity to make her will of 29 December 2003, it is clear that by that time her cognition was impaired to some degree. In January 2004, her doctor advised her that her dementia was progressing. Whereas Mrs Rogan provided an explanation in relation to both her 1994 and 2001 wills as to the provision she had made to Mr Palffy, she made no such declaration in relation to her 2003 will to explain the absence of any provision except the general terms of clause 5 referred to at paras [90] and [91] above.
As Mr Pesman, counsel for Mr Palffy, submitted, the "estrangement" between Mr Palffy and Mrs Rogan had started from 1995. Mr Palffy's evidence was that from 1995 to 2002 he only spoke to Mrs Rogan infrequently and by telephone and that the telephone conversations broke down over disputes about money. I draw the inference that the disputes about money arose from Mr Palffy pressing Mrs Rogan for money and her resisting his importunity. That did not prevent her from recognising him as a proper object of her testamentary bounty as at 19 November 1999 and 19 December 2001. Prima facie Mr Palffy had a stronger claim on Mrs Rogan's testamentary bounty after Michael Rogan's death where the persons with competing claims were Mr Slack and Michael Rogan's children, as distinct from her son.
There are strong arguments for saying that after Michael Rogan's death Mrs Rogan was free to dispose of her estate however she wished without interference by the Court. John Palffy was not her son. She had already done a lot for him as his foster mother. She provided him with financial support during his adult years and provided him with board and accommodation for 15 months after the break-up of his second marriage. He had moved to Queensland to make his own life. From 2002 or 2003 he had nothing to do with her and from 1995 to 2002 their contact was infrequent and descended to arguments about money. Contrary to his denial I infer that Mr Palffy was pressing Mrs Rogan for money, claiming that she had promised to provide him with $100,000.
Against those considerations, there are the facts that Mr Palffy had been integrated into the Rogan family, and that in her previous wills Mrs Rogan had acknowledged that he had a claim on her testamentary bounty, notwithstanding the considerations referred to above which suggest otherwise. It does not appear that Mrs Rogan gave any particular consideration to Mr Palffy's claim on her testamentary bounty when she made her wills of 2003, 2007 and 2008, even assuming she was capable of doing so. Moreover, Mr Palffy's financial position is precarious because of his lack of assets, his debts, his age and the difficulty he will have in continuing to earn income that would enable him to reduce the debts. The only competing claim is that of Mr Slack.
Minds could legitimately differ as to whether any provision out of the estate is required for Mr Palffy's proper maintenance and advancement in life. I have concluded that the governing factor is Mr Palffy's precarious financial position arising from his debts. In my view this need is the dominant consideration in determining whether adequate provision was made for Mr Palffy's maintenance and advancement in life and what provision ought to be made for him from the estate. However, the countervailing factors "restrain [the] amplitude" of the provision to be ordered (Wheatley v Wheatley [2006] NSWCA 262 at [37]). I have concluded that the provision that would be adequate for the proper maintenance and advancement in life of Mr Palffy is a sum that is sufficient to discharge his debts and to provide a buffer for contingencies. I conclude that a legacy of $90,000 is adequate for that purpose.
In order to pay Mr Palffy the legacy to which he will be entitled from the estate, Mr Slack will have to sell the Manly Vale house. There will be inevitable delays after probate is obtained in marketing the property for sale and in completing the contract. Interest on the legacy should not run until five months after the grant of probate to Mr Slack.
Position if probate had not been revoked
If I had concluded that the grant of probate to the defendants should not be revoked, I would have made the same order for provision in favour of Mr Palffy. That is because there was no evidence of financial need on the part of Mrs Rogan's grandchildren who would be the beneficiaries of the estate. It does not appear that Mrs Rogan was particularly close to her grandchildren. I accept Mr Slack's evidence and Mr Abigail's evidence that she had little to do with them or they with her, apart from the occasion in September and October 2008 when they removed Mrs Rogan from her house, apparently against her will. If the document of 4 December 2008 is not Mrs Rogan's will pursuant to s 8 of the Succession Act, I would nonetheless conclude that it was her intention not to leave her estate to her grandchildren. In all of those circumstances, they do not have a competing claim on the estate in addition to that of Mr Slack that should affect the provision to be made in favour of Mr Palffy.
For the same reasons, had I concluded that the grant of probate of the 2007 will should not be revoked, I would nonetheless have made an order for provision in favour of Mr Slack whereby he should receive the whole of the residue of the estate, subject to the legacy to be ordered in favour of Mr Palffy. Such an order would be required for Mr Slack's proper maintenance and advancement in life to give effect to Mrs Rogan's testamentary intentions (s 60(2)(j)). For the reasons above, her grandchildren would not have had competing claims that would justify the diminution of Mr Slack's claim on the estate. This is notwithstanding the fact that Mr Slack received a carer's pension for the years he acted as Mrs Rogan's carer before her admission to a nursing home in 2010. Mrs Rogan considered that the care and attention he provided to her coupled with the care and assistance he had provided to Michael Rogan gave him a paramount claim to the estate. In so far as the competing claims of Mr and Mrs Rogan's grandchildren are concerned, there is no reason not to accept her judgment.
Conclusion and orders
For these reasons I conclude that the grant of probate to the defendants should be revoked. There should be a grant of probate in solemn form to Mr Slack of the will of 29 December 2003 together with the first of the two pages of Mr Abigail's file note of 4 December 2008. Leave should be reserved to Mr Abigail to apply to join in the grant. Mr Slack's claim for a family provision order should be dismissed. There should be an order for provision in favour of Mr Palffy out of the estate by way of a legacy in the sum of $90,000. Interest should be payable on that legacy from five months after the grant of probate to Mr Slack is completed if the legacy is then unpaid.
Prima facie, in proceedings 2011/247466 (being the proceedings in which Mr Slack is the plaintiff), Mr Slack's costs should be paid out of the estate on the indemnity basis. The defendants' costs of defending the claim for revocation of the grant of probate should be paid out of the estate on the ordinary basis. Their costs of defending the claim for a family provision order should be paid out of the estate on the indemnity basis, but such costs should not include the costs of preparing the affidavits that were rejected by reason of late service.
In proceedings 2011/220317 (in which proceedings Mr Palffy was the plaintiff), prima facie the appropriate orders are that Mr Slack pay Mr Palffy's costs out of the estate on the ordinary basis. For that purpose, Mr Slack should be added as the third defendant to those proceedings. The first and second defendants' costs should be paid out of the estate on the indemnity basis, but such costs should not include the costs of preparing the affidavits that were rejected by reason of their late service.
I will not make costs orders at this stage because the orders to be made might be affected by any offer of compromise or other settlement offer.
I make the following orders:
In proceedings 2011/247466:
1. Order that the grant made on 18 May 2011 to the defendants of probate of the will of 23 December 2007 of the late Aidan Patricia Rogan be revoked.
2. Declare that the first of the two pages of the file note of 4 December 2008 that is exhibit B is a document that forms a codicil to the will of the late Mrs Rogan dated 29 December 2003 pursuant to s 8 of the Succession Act 2006.
3. Order that probate of the will of the late Mrs Rogan dated 29 December 2003 and the codicil to that will referred to in the above declaration be granted to the plaintiff with liberty to Mr Philip Abigail to join in to apply for a grant.
4. Refer the proceedings to the Registrar to complete the grant.
5. Order that the plaintiff's claims for relief (save as to costs) be otherwise dismissed.
In proceedings 2011/220317:
1. Order that Mr James Slack be joined as the third defendant.
2. Order that provision be made out of the estate of the late Aidan Patricia Rogan in favour of the plaintiff by way of a legacy of $90,000.
2. Order that interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 on unpaid legacies be payable on the legacy the subject of order 1 from the date which is five months after the completion of the grant of probate in proceedings 2011/247466, if the legacy then remains unpaid.
Decision last updated: 10 May 2013
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