The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak
[2015] NSWSC 934
•30 July 2015
|
New South Wales |
Case Name: | The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak |
Medium Neutral Citation: | [2015] NSWSC 934 |
Hearing Date(s): | 4, 5, 6, 7, 11, 12 and 13 May 2015Final Written Submissions received 29 May 2015 |
Decision Date: | 30 July 2015 |
Jurisdiction: | Equity Division |
Before: | Hallen J |
Decision: | Direct the parties to deliver within 7 days an agreed form of Short Minutes of Order. If that proves impossible to achieve, then competing forms of order should be provided within that time. The question of costs, may be dealt with as a separate issue, unless agreement is reached. |
Catchwords: | SUCCESSION – PRACTICE & PROCEDURE – Duly executed Will made in 2007 – Original Will lost post death – Nature of order that may be made in respect of copy Will in event that it is found to be a true copy of a valid Will |
Legislation Cited: | Births Deaths and Marriages Registration Act 1995 (NSW) |
Cases Cited: | Bailey v Bailey [1924] HCA 21;(1924) 34 CLR 558 |
Texts Cited: | Kenneth I. Shulman, Carole A. Cohen, Felice C. Kirsh and Pamela R. Champine, “Assessment of Testamentary Capacity and Vulnerability to Undue Influence” (2007) 164 The American Journal of Psychiatry 722 |
Category: | Principal judgment |
Parties: | NSW Trustee & Guardian (Plaintiff in 2011/228232 and Defendant in 2012/159538) |
Representation: | Counsel: |
File Number(s): | 2011/228232; 2012/159538 |
JUDGMENT
Introduction
HIS HONOUR: This judgment concerns two contested proceedings involving the estate of Stanislaw Budniak (“the deceased”). On 3 November 2014, the court ordered that the proceedings should be heard consecutively, with the evidence in one being evidence in the other. The hearing of the two matters proceeded over 7 non-consecutive days. However, as the oral submissions did not conclude, it was necessary to allow the parties an opportunity to serve further submissions to which submissions in reply were also served. The court received all of the submissions by 29 May 2015.
The first proceeding in time was commenced by Statement of Claim, filed on 9 November 2012, with an Amended Statement of Claim filed on 12 June 2013. In those proceedings, the Plaintiff, the NSW Trustee & Guardian (“the NSW T & G”) propounded a copy of a duly executed Will made by the deceased on 3 October 2007 (“the 2007 Will”) (Ex. A) and it sought consequential relief. It is the sole executor named in the 2007 Will.
During the proceedings, on occasions, the NSW T & G was referred to as the Public Trustee. I shall also identify it in this way, when necessary, in these reasons. (The NSW Trustee and Guardian Act 2009 (NSW) commenced on 1 July 2009. Section 4 repealed the Public Trustee Act 1913 (NSW). Section 5 constituted the corporation called the NSW Trustee and Guardian. Under clause 3(1)(d) of Schedule 1 to the NSW Trustee and Guardian Act, any reference in a previous Act to the Public Trustee is to be read as a reference to the NSW Trustee. Under clause 11 of Schedule 1, the NSW T & G is taken, for all purposes, to be a continuation of the former Public Trustee.)
The Defendants named in the first proceeding are four of the five children of the deceased, namely, Robert Zbigniew Budniak, Lech Jerzy Budniak, Eliza Kyrstyna Budniak, and Joanna Maria Borysewicz (nee Budniak). They relied upon one composite Defence (to the Statement of Claim) filed on 19 December 2012, identifying two grounds for opposition to the relief sought, namely that the deceased lacked testamentary capacity and that he did not know and approve of the contents of the 2007 Will. Only Robert filed a Cross-Claim to which I shall return. I shall refer to these proceedings as “the Probate proceedings”.
Without intending to convey undue familiarity, with no disrespect intended, and for convenience, I shall refer, hereafter, to the parties, and other family members, after introduction, by her, or his, given name.
In the second proceeding, which was only brought in case there is a grant of Probate in solemn form of the 2007 Will, each of Robert, Lech, Eliza and Joanna, sought a family provision order out of the estate and/or notional estate of the deceased under s 59 of the Succession Act 2006 (NSW) (“the Act”). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (“the former Act”), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. (There is, in fact, no notional estate.) I shall refer to these proceedings as “the family provision proceedings”.
There were a large number of affidavits read in one, or other, of the proceedings, and nearly every deponent was cross-examined. At the hearing, mercifully, there were not too many objections to the affidavits. In particular, no objection was taken to the oral statements said to have been made by the deceased to one, or other, of the witnesses.
After the first four days of the hearing, the parties were given another chance to resolve their differences. They did not do so. The proceedings provide another example of what is really a family dispute in which “blood, thicker than water, is spilled copiously in uncompromising and uncompromised litigation between [siblings] in a fight over their inheritance”: (Lifely v Lifely [2008] EWCA Civ 904, per Ward LJ, at [1]). The Defendants and the NSW T & G, on behalf of another child (Tomasz Jan Budniak) and a grandchild (Benjamin Budniak) of the deceased, have litigated, and, thereby, have incurred costs, seemingly, disproportionate to the value of the estate. In saying this, I have not forgotten that the terms of a testamentary document frequently produce feelings of disappointment, or worse, on the part of relatives.
Like most probate disputes, the personality, state of mind, desires, and prejudices of the central person, namely the deceased, his relationship with family members he did, or did not, provide for, and the reasons for the change in testamentary dispositions, are all significant matters that the court needs to examine carefully in order to come to a finding about testamentary capacity and knowledge and approval. With the death of the deceased, most of those matters can only be examined by way of second-hand, and often, partisan, evidence: Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 at [51].
The family provision proceedings were lengthened because it appears that each of the children of the deceased did not disclose fully, or accurately, his, and her, financial and material resources, and those of his, or her, spouse in his, or her, affidavits that were read. Various documents were tendered, during the course of the cross-examination, of each child and his, or her, spouse, which amplified the evidence of his, or her, financial resources. I shall return to this topic later in the event that there is any issue about costs.
The Probate Proceedings
I have briefly referred to the amended Statement of Claim and the Defence filed by the Defendants named in the Statement of Claim. As stated in a summary way, the Defendants in the Probate proceedings asserted that, in May 2007, when giving instructions for, and in October 2007, when he executed, the 2007 Will, the deceased lacked testamentary capacity. They also alleged that he did not know and approve the contents of the 2007 Will. (They admitted, however, that if it was a valid Will, it was not subsequently altered or revoked.)
The Defence to which I have referred provided the following particulars:
“(i) The deceased suffered dementia; and
(ii) Such other matters as may be disclosed after documents are produced.”
The Defendants relied upon evidence of the deceased’s age, his conduct, his deteriorating health prior to giving instructions for the 2007 Will, his deteriorating health after giving instructions for the 2007 Will, the circumstances under which he gave instructions for the 2007 Will, the circumstances surrounding the execution of the 2007 Will (some 5 months later), the terms of the 2007 Will itself, the deceased’s poor recollection of relevant, and important, facts and events occurring in his lifetime, and what was said to be his long held testamentary intention to divide his estate equally between his five children. (I have taken this broad summary from the closing submissions made on behalf of the Defendants.)
Importantly, the Defendants did not specifically raise in the pleadings, the facts that the 2007 Will was written in English; that no written translation of the 2007 Will into Polish was prepared for the deceased to read prior to execution of the 2007 Will; and that there was no record of any person at the NSW T & G reading the 2007 Will, in the Polish language, to the deceased.
However, when I raised this matter, at the commencement of the hearing, senior counsel for the Defendants said “it’s not pleaded but it’s clearly in the evidence and canvassed by the parties”: T3.50-T4.01. It was suggested by the court that if these matters were to be relied upon, they should be identified to counsel for the NSW T & G: T4.19-T4.26. However, counsel for the Defendants did not seek to file any amended Defence to the amended Statement of Claim pleading the matters to which the court had adverted.
In their Outline of Closing Submissions, served on the last day of the hearing, counsel for the Defendants made reference to the particulars provided in Paragraph 6(a) of the Defence, filed 19 December 2012, that “the deceased had no demonstrated ability to read (visually) the [2007 Will]”; that he “had no demonstrated ability to comprehend the [2007 Will]”; and that “such particulars of testamentary capacity as are relevant to knowledge and approval”.
This submission was made despite Robert, in his oral evidence, having acknowledged the deceased’s long held ability, in late 2006, to read, and understand, written English: T213.33-T213.34 (as amended). I shall return to Robert’s evidence on this topic later in these reasons.
The Defendants contended that there was adequate evidence relating to the relevant grounds of challenge; that, by that evidence, they had sufficiently discharged their evidential burden of proof; and that they had shifted the persuasive burden onto the NSW T & G, as propounder, to prove, affirmatively, the validity of the 2007 Will.
Only Robert filed, relevantly, a Further Amended First Cross-Claim, in which, he sought a declaration that an original document, written and signed by the deceased in the English language (and on the other side, in the Polish language) and dated 25 June 1994 (“the 1994 document”) (Ex. B), is an informal testamentary document within the meaning of s 8 of the Act; an order that administration of the 1994 document be granted to him; and consequential relief. He is the sole nominated executor in the 1994 document.
It is quite clear from the affidavits that were read in the proceedings, that Robert has had, and continues to have, the support of his three siblings (who are Defendants) to the granting of the relief he seeks.
Robert, in the Further Amended First Cross-Claim pleaded that, in the event the court did not find the 1994 document was intended by the deceased to form his Will, and if the 2007 Will was not the last valid Will of the deceased, the deceased died intestate. He sought a grant of administration of the deceased’s estate on intestacy to him alone; an order that the administration bond be dispensed with; other consequential relief; and costs. (This alternative case did not proceed for reasons to which I shall come.)
The NSW T & G filed a Further Amended Defence to the Further Amended first Cross-Claim, in which it admitted that the deceased signed the 1994 document; did not admit that it embodied his testamentary intentions; or that the deceased intended the 1994 document to form his Will. In addition, the NSW T & G implicitly asserted that even if the court were satisfied that the deceased intended the 1994 document to form his Will, it was revoked by the 2007 Will. (Robert accepted that this was one consequence if the 2007 Will was found to be a valid Will: T5.30-T5.34.)
However, at the hearing, counsel for the NSW T & G accepted, in the event that the court was not satisfied of the validity of the 2007 Will, that the relief sought by Robert in respect of the 1994 document should be granted: T5.09-T5.23.
Thus, the only question at issue, in the Probate proceedings, was whether the 2007 Will is a valid Will, that is to say, whether the deceased had testamentary capacity and whether he knew and approved of its contents.
The Family Provision Proceedings
The family provision proceedings were commenced by one Summons filed on 18 May 2012, within the time prescribed by the Act (12 months from the date of the deceased’s death). The Defendant named in the proceedings is the NSW T & G. It was the appropriate and natural Defendant, even though there was no grant of administration made to it.
As stated earlier, it is only in the event that the 2007 Will is found to be the last valid Will of the deceased, will it then be necessary to turn to the claims for a family provision order by each of the Defendants: T5.48-T6.06. In broad summary, the NSW T & G submitted that each of the applicants for provision is an adult; each is able bodied; each is in employment or capable of being employed; and each has assets of reasonable value. The consequence, so it was submitted, was that no order for provision ought to be made for any of the Defendants and that the whole of the Summons should be dismissed with costs.
In the case of Lech’s claim for a family provision order, there was said to be an additional issue relating to his virtually non-existent relationship with the deceased for about 30 years prior to death.
Persons Adversely Affected
Although the NSW T & G is the Plaintiff in the Probate proceedings and the Defendant in the family provision proceedings, the persons who would be adversely affected if orders were made in favour of Robert in the Probate proceedings, or in favour of Robert, Lech, Eliza or Joanna in the family provision proceedings, are Tomasz and Benjamin (a son of Tomasz and a nephew of all of the Defendants), both of whom are the residuary beneficiaries named in the 2007 Will. Only Tomasz has given evidence read in both proceedings. Benjamin is a minor.
At the commencement of the hearing, Mr S Mitchell, solicitor, announced that he was representing Tomasz, and Nathalie Budniak, Tomasz’s wife and the mother of Benjamin, in the proceedings. He said, however, that he did not seek to appear formally on their behalf although he had filed an Appearance on behalf of Benjamin by his tutor, Nathalie: T1.44-T1.50. Mr Mitchell understood that, in the proceedings, the NSW T & G was representing the interests of Tomasz and Benjamin (which was confirmed by counsel for the NSW T & G).
Tomasz subsequently gave evidence that Mr Mitchell had been retained from a short time after the death of the deceased to advise him in relation to the proceedings. However, Mr Mitchell had not participated in the preparation of the affidavits by Tomasz and Nathalie that were read in each proceedings.
In the circumstances, it was not necessary for Mr Mitchell to remain in court unless he was instructed to do so. He remained for a short time (but then came and went at different times during the early part of the hearing). Meantime, without objection, however, Tomasz was present in court throughout the proceedings, as was Nathalie (other than during the cross-examination of Tomasz).
Events before Proceedings Commenced
By letter dated 23 June 2011, the Defendant’s then solicitors wrote to the NSW T & G asserting that the deceased “suffered from dementia for a considerable number of years and most importantly, at the time [the 2007 Will] was executed”. They asserted that the Defendants would require the Will to be proved in solemn form and that “our clients will be seeking to file evidence disputing that the deceased had testamentary capacity at the time the will was made”. The letter also stated that “[i]n the event that will is proved, our clients will be making application for provision pursuant to the provisions of the Succession Act”. Various requests were then made concerning, and questions were asked about, the estate.
The NSW T & G responded in a letter dated 5 July 2011. In relation to the assertion of a lack of testamentary capacity, a question was asked about the availability of medical reports to support the claim. The other questions raised were answered.
On 14 July 2011, the Defendants filed a caveat requiring proof in solemn form of the 2007 Will (Ex. E). There is no specific evidence that a copy of the caveat was served on the NSW T & G within 7 days after filing: Supreme Court Rules 1970 (NSW) (“SCR”), Part 78 rule 68(3).
In accordance with SCR, Part 78 rule 69, the caveat, which took effect when it was filed, lapsed after 6 months, as there was no application to extend the duration of the caveat.
On 21 May 2012, the NSW T & G caused notice of its intention to apply for Probate of the 2007 Will in the Sydney Morning Herald, which is a newspaper circulating in the district where the deceased resided at the date of his death.
On 14 June 2012, the NSW T & G filed a Summons seeking Probate in common form of the 2007 Will.
On 29 June 2012, the Defendants filed a general caveat in the Probate Registry, against the making of any grant in the estate of the deceased without prior notification to them.
On 2 July 2012, the court issued a requisition to the NSW T & G noting that a caveat had been filed in the estate and drawing its attention “to Div. 10 Pt. 78 SCR”. That Division of SCR deals with caveats.
Subsequently, on 9 November 2012, the NSW T & G filed the Statement of Claim.
I am satisfied that all of the persons whose interests may be affected by the court’s decision in relation to each of the documents propounded in the proceedings, are well aware of the proceedings. In the circumstances, I dispense with service of the prescribed notice on Benjamin upon the basis that it is expedient to do so, having regard to all the circumstances, including because his interests are being protected by the NSW T & G, so as to save further expense, and also because his father, who is an equal residuary beneficiary named in the 2007 Will, has obtained independent legal advice.
Although there is no evidence of service of the prescribed form of notice of the family provision proceedings on Benjamin, I am satisfied, in view of the fact that Mr Mitchell attended on occasions during the hearing, that Benjamin, by both of his parents, is well aware of the nature of the proceedings. Accordingly, service of such a notice upon him (or someone on his behalf) is unnecessary in the circumstances of the case.
As each of Tomasz and Benjamin is a beneficiary named in the 2007 Will, and even though Tomasz, who is an eligible person, has not commenced proceedings for a family provision order, should it be necessary, I shall not disregard the interest of each as a beneficiary named in the 2007 Will. (There is no suggestion that Benjamin is an eligible person under the Act.)
Some Other Preliminary Matters
Although the NSW T & G seeks Probate in solemn form of a copy, rather than the original, of the 2007 Will, the Defendants, subject to the defences raised, accepted that there actually was an original 2007 Will; that the original 2007 Will revoked all previous Wills; that there was evidence of the terms of the original 2007 Will; that the copy 2007 Will in evidence was an accurate and complete copy of the terms of the original 2007 Will; that there was evidence of due execution by the deceased of the original 2007 Will; and finally, that the presumption that when a Will is not produced it has been destroyed by the testator with the intention of revocation, had been overcome (T3.06-T3.12): Curley v Duff (1985) 2 NSWLR 716, at 718; Cahill v Rhodes [2002] NSWSC 561, at [55]; Scott v Romanoff [2015] VSC 343 at [10].
No doubt, the concessions were made because of the evidence given by Mr G A Salier AM, which I accept, concerning the loss of the original of the 2007 Will. In an affidavit sworn on 12 April 2013, he stated that he had caused his law stationer to uplift the original of the 2007 Will, from the court, on or about 18 February 2013; that he received it into his possession shortly thereafter; that he sent the original 2007 Will, and an affidavit of the attesting witness, Mr N Mohammed, by ordinary pre-paid post, under cover of a letter dated 22 February 2013, to the NSW T & G; that there is no record of receipt by the NSW T & G of his letter, the affidavit, or the original 2007 Will; and that the documents that he sent have never been returned to him as unclaimed.
Mr Mohammed who remains in the employ of the NSW T & G, gave evidence that he made enquiries of the “Mail Room at the Parramatta Office of the NSW Trustee & Guardian” and reported that “There is no record there of receipt of the documents” sent by Mr Salier.
It follows that the loss of the original 2007 Will was not the result of any act of the deceased and it was unaccompanied by any intention of the deceased to revoke it. It was entirely accidental and its loss occurred post death.
The form of order sought by the NSW T & G in the amended Statement of Claim, namely that “subject to due compliance with the rules of the Court, probate of a copy of the Will be granted to the [NSW T & G]”, does not accord with what has been described as “conventional practice” in Probate and in some of the authorities.
I refer to what was written by E M Heenan J in Powell v Dinwoodie [2012] WASC 139, at [40]:
“The conventional practice is that where an original will or codicil is lost, destroyed or damaged and an application is made for an order admitting it to proof as contained in a carbon copy, draft, photocopy or reconstruction, the grant made, if the will has been lost, should be limited until the original or a more authentic copy is proved; and, if the will has been destroyed, the grant which issues should be limited until a more authentic copy is proved: Williams, Mortimore [sic] & Sunnucks, Executors, Administrators & Probate (19th ed, 2008) para 24–03. Such a grant is one form of a limited grant known as a cessate grant - Tristram and Coote’s Probate Practice (28th ed, 1995) paras 11.11, 13.81 and 13.82.”
In New South Wales, in Taylor v Waters (Supreme Court, Powell J, 19 June 1992, unrep), Powell J expressed the view that if there was a lost will, or a will that was known to have been destroyed, the English practice was to limit the grant, until the original, or a more authentic copy, be proved. His Honour thought that this practice might conveniently be adopted in New South Wales.
This form of order has also been adopted in some other States: In the estate of Musolino (deceased) [2008] SASC 334, at [30]; In the Will of Brian Lindsay O’Connor [2011] QSC 360; and Lemon v Lemon [2014] QSC 123; Powell v Dinwoodie, at [41].
However, Young CJ in Eq (as his Honour then was) in Koerstz v Norman [2008] NSWSC 133, at [8], expressed the view that “where the facts are proved… that the original will was destroyed by a person other than the testator after death, it will never be able to be proved. There is no barrier to proving a will by a copy with evidence that the original has been lost and in such a situation, I cannot see why the court should not just grant probate or letters of administration with the will annexed as the case may be”.
His Honour went on at [11]-[12] and [18]-[19]:
“One can understand those cases, and one can understand cases like Re Campbell [1948] NZLR 510 also referred to in the Probate Practice, where secondary evidence was given of a lost will. However, where the facts clearly are that the last will of the testatrix has been destroyed after her death and a fair photostat copy with signatures is produced to the registry, in my view the proper practice is to make an unlimited grant.
As White J said in Re Gwynne at 216, the ‘limitation does not invalidate the grant. It merely leaves the door open in case the original is discovered.’ Where there is no realistic possibility of the original will being produced, there is nothing to be gained through making a limited grant.
…
In cases where there is probate granted of a copy of a will and the original is found, it would be the duty of the administrator to apply for cessate probate.
Accordingly, it would be the duty of the administrator to apply for an unlimited grant of probate should she find the original will and query also if there was a clear case that any application for an unlimited grant of a lost will would succeed. It may be that for the future where there is a mislaid will or a case where probate is granted of a statement by reliable witnesses who have seen the original of a lost will, an undertaking should be taken from the proposed administrator to prove the will should better evidence or a better document become available. In this way the attention of administrators who may not have access to a copy of [1953] VLR to their obligations would assist.”
In this case, the evidence reveals that the original 2007 Will has been lost, rather than destroyed. Despite the passage of time since it was lost, bearing in mind the evidence that has been relied upon, there is a possibility that the original 2007 may be located by, or may be returned to, the NSW T & G. Should it be necessary, to limit the grant “until the original will be proved” would imply that the original 2007 Will might still be proved, which is not contrary to the evidence given by Mr Salier.
I discussed the form of orders that might be made in the event that the court is satisfied that the 2007 Will is the last valid Will of the deceased with counsel for the parties during the course of the hearing and they agreed that the conventional form of order would be appropriate in this case: T66.24-T67.20. Accordingly, if the court is satisfied of the validity of the 2007 Will, probate in solemn form of the copy Will, limited until the original is proved, should be granted to the NSW T & G, and an order should be made that the Further Amended first Cross-Claim be dismissed.
In an affidavit of Ms L Russell sworn 5 June 2012, the deponent confirmed that if granted Probate, the NSW T & G would administer the estate according to law. She also deposed to the reason for delay in making the application for a grant being “due to a caveat lodged”.
With the leave of the court, and without objection, Robert gave oral evidence that in the event that an order were made that the deceased intended the 1994 document to form his Will and was satisfied that it was the last valid Will of the deceased, he was willing to take on the office of executor; that he was prepared to administer the deceased’s estate in accordance with the requirements of that document, and, if necessary, to continue all orders of the Court and answer any requisitions relevant to that estate: T202.04-T202.12 (as amended). He was not cross-examined on any of these matters.
Family History and Background Facts
The following facts are uncontroversial, or I am otherwise satisfied that they have been established by the uncontroverted evidence relied upon in the proceedings.
The deceased was born in Wegrzynowo, Poland in February 1922, and he died on 21 May 2011, leaving property in New South Wales.
The deceased’s Death Certificate, registered under the Births Deaths and Marriages Registration Act 1995 (NSW), reveals the cause(s) of death, as “(I)(a) Aspiration pneumonia, days; (b) Dementia, years; and (II) Right pneumonectomy”. The “Informant” identified on the Death Certificate is Tomasz.
During World War II, the deceased had fought in Poland as a member of the Polish Home Army. He had fought in the Warsaw Uprising. He was captured by the Germans and marched to Germany, where he spent time as a prisoner of war. He was liberated by the Americans, and, in about 1950, the deceased migrated to Sydney, Australia.
The deceased married Genowefa Czekalowska, in 1955. She was born in Poland in March 1929. She had migrated to Perth, Australia, also, in 1950. Subsequently, they moved to Sydney, in 1956, where they lived for the remainder of their lives.
The deceased, initially, worked at BHP in Port Kembla as a fettler. He then returned to Sydney and obtained employment in the electronics industry. From 1960 until about 1983, he worked as an electronics technician for the University of New South Wales.
The deceased and Genowefa separated in about 1982, and in about 1992, their marriage was formally dissolved. Following the dissolution of the marriage, the deceased did not remarry, or enter into a de facto relationship.
There were five children of the marriage, being Robert, who was born in October 1957, Lech, who was born in February 1959, Eliza, who was born in June 1962, Tomasz, who was born in November 1965, and Joanna who was born in September 1972.
After their separation, there had been proceedings in the Family Court of Australia, at Sydney, between the deceased and Genowefa. She sought various orders relating to the properties that she, and they, owned, as well as orders for custody of Tomasz and Joanna and for maintenance for each of them. Robert swore an affidavit in support of Genowefa’s application
In 1983, Robert married Fiona Edgar and he moved out of the Ashfield property. Robert and Fiona have two daughters, being Jacqueline, born in May 1987 and Elise, born in August 1990.
In 1987, Eliza married James Ilett and she moved out of the house in which Genowefa lived. They have one son, Sebastian, born in January 2002.
In 1995, Lech married Sharron Mackay. They have three children, namely Daniel, born in December 1997, Brendan, born in December 1999, and Samantha, born in January 2002.
In 1998, Joanna married Andrew Borysewicz. They have four children, being Zara, born in September 2003, Kayla, born in January 2006, Markus, born in December 2008, and Ashton, born in November 2010.
In 1999, Tomasz married Nathalie. They have three children, namely Benjamin, who was born in July 2002, Amelia, who was born in July 2004, and Maximilian, who was born in July 2006.
In 1956, the deceased and Genowefa purchased as joint tenants, a property situated at Palace Street Ashfield (“the Ashfield property”), which became the family home until about 1983. Thereafter, the deceased, until his death in 2011, continued to reside in the Ashfield property.
In 1970, the deceased and Genowefa purchased a property situated at Service Avenue, Ashfield (“the investment property”).
In about late July, or early August, 1994, the deceased returned to Poland for the fiftieth anniversary of the Warsaw Uprising. (The anniversary of the uprising is celebrated from 1 August each year.) He returned some weeks later.
It appears from Ex. D, that the deceased lodged his income tax return for the financial year ending 30 June 2005. A Notice of Assessment, dated 7 October 1995, issued by the Australian Taxation Office, revealed that the amount of tax payable by the deceased (by 21 March 2006) was $12,504.30. Attached to the Notice of Assessment was a Notice, dated 9 October 2005, headed “Your introduction to PAYG income tax instalments”, which document stated that “as your return includes… investment income, you have entered the pay as you go (PAYG) instalments system. As a result, you will need to pay PAYG instalments towards your expected tax liability on your business/investment income”.
There was also included in Ex. D, a letter, dated 21 April 2006, from the ATO to the deceased, referring to a telephone call “regarding your income tax account”. Attached to the letter was “an account history” (of several pages), which included “transactions processed up to 21 April 2006”. The letter also reminded the deceased “that an amount of $12,504.30 remains outstanding”.
An “Overdue Payment Reminder”, dated 6 June 2006, from the Australian Taxation Office, sent to the deceased, reminded him that $2,877 was due.
Dr Lye (to whose evidence I shall return) interviewed the deceased in relation to his concerns regarding the ATO in May 2007. A copy of her notes of the interview (Ex. S) includes the deceased having said to her that he “has no idea what he owes. Wants yearly not quarterly bills…. Requested tax statements from ATO re: what he owes & they owe him.” (I shall return to Ex. S later in these reasons.)
The Testamentary Documents
There are three testamentary documents that have been produced to the court being, first, the photostat copy of the original 2007 Will (Ex. A); second, the original of both sides of the 1994 document (Ex. 1); and the third being the original of both sides of a handwritten document dated 2 June 1988 (“the 1988 document”) (Ex. 2). I shall deal with these documents in reverse date order.
The 2007 Will, relevantly, is in the following terms:
“1. This Will sets out completely who I want to give my property to after my death. I cancel any earlier Wills and Codicils.
EXECUTOR AND TRUSTEE
2. I appoint the Public Trustee of New South Wales the executor and trustee of this Will.
GIFTS
3. I give all of my property, after payment of my estate liabilities to those of the following people who survive me and reach 21 years of age:
- my son THOMAS BUDNIAK
- my grandson BENJAMIN BUDNIAK.
…
4.2 Wherever a beneficiary is conditionally entitled to any property, I direct my Trustee to pay him or her any income earned by it after the beneficiary reached 18 years of age. (By conditionally entitled I mean that the beneficiary would be entitled to immediate payment but for the fact that he or she has not yet reached a specified age.)
…
6. The term ‘estate liabilities’ includes:
- my funeral expenses
- all debts I owe when I die
- all expenses my Trustee incurs in administering the estate
- all charges my Trustee makes for doing the work.”
The 2007 Will was professionally drawn by Matthew Kennedy, a Branch Manager of the NSW T & G, who met with the deceased, and others, on 8 May 2007. Mr Kennedy took instructions from him, at that time, for the 2007 Will and subsequently drafted the 2007 Will. Mr Kennedy was not present when the deceased executed the 2007 Will on 3 October 2007. I shall return to a more detailed account of Mr Kennedy’s evidence later in these reasons.
The 2007 Will bears a conventional attestation clause and signatures indicating that the 2007 Will had been signed by the deceased in the presence of “T Di Donato” and “N Mohammed”. There is no dispute that the deceased signed the 2007 Will or that it was otherwise duly executed in accordance with the Act.
There is no evidence that, at any stage after the 2007 Will had been executed, the deceased expressed a desire and wish to change this Will.
The 1994 document, which is in the handwriting of the deceased, is written in the English language and in the Polish language. Each version appears in one document with the words in English on one side and the words in Polish on the other.
The English version, which is set out as it appears, is as follows:
“ Ashfield
25-6-1994
xxxx St
It will be my Will (Destament).
I Stanislaw Tadeusz Budniak borne 21-2-1922 in Wegrzynowo, Poland, solenly declare that it is my wish, in case of my death, to leave my estate and all my posetion, to my 5 (five) children, Robert Budniak, Lech Budniak, Eliza Budniak, Tomasz Budniak, and Joanna Budniak.
All my estate and posetion will be divided eqally among mentionet children.
I do nominate my son Robert Budniak as executor of my Will (Destament).
The above is truth and I do to put a seale of my signature.
Stanislaw Tadeusz
Budniak
[SIGNATURE]
Ashfield
25-6-1994”
There is no attestation Clause in the 1994 document. Whilst the deceased’s signature appears on each side, there is no evidence that his signature was made, or acknowledged, by him in the presence of two or more witnesses present at the same time, and that any witnesses attested and signed the 1994 document in the presence of the deceased (or in the presence of each other). Indeed, which side the deceased wrote, and signed, first, and the circumstances in which the 1994 document was written, are not known.
A friend of the deceased gave Robert the original of the 1994 document in 1994 (whilst the deceased was in Poland at the anniversary celebrations of the Warsaw Uprising). Upon his return, the deceased “took it back in 1994”: T201.40-T201.46 (as amended). (Robert had offered to retain the 1994 document but the deceased told him to return it and that he would retain it with his papers.)
After the deceased’s death, Tomasz found the 1994 document in a dresser drawer next to the deceased’s bed in the deceased’s bedroom in the Ashfield property: T344.16-T344.28.
(There are holes punched on the side of the original 1994 document, which it is accepted, were not there when it was found by Tomasz. The parties accept that Tomasz had caused these holes to be punched in the 1994 document, inadvertently, whilst the document was in his custody: T14.40-T14.45. Nothing turns on this.)
For reasons that are not entirely clear, since the words in the 1994 document were written by the deceased in English, the Defendants, without objection, tendered (Ex. 4) an agreed English translation of the Polish words in the 1994 document. That translation is as follows:
“I Stanislaw Tadeusz Budniak
of Jan and Jozefa from Nowotkow and born
21-2-1922 year, of my own and unforced
will, wish to leave my will
of my own free will, in the case
of my death all my wealth, that
is, real estate and personal property-
be left to my children (five of)
Robert Budniak, Lech, Eliza, Tomasz and
Joanna. Every one of them should get
equal parts divided that is 20%
of the whole wealth. My personal
documents should be sent to Poland.
The executor of this will I appoint as
my son Robert as the executor
of my will.
The above I state with my own handwritten
signature.”
Although neither party sought to propound it, the 1988 document is in the handwriting of the deceased and was signed by him, in the English language and in the Polish language. Each version appears in one document with the words in English on one side and the words in Polish on the other.
There is no attestation Clause in the 1988 document. Whilst the deceased’s signature appears on both sides of the document, there is no evidence that his signature was made, or acknowledged, by him in the presence of two or more witnesses present at the same time, and that any witnesses attested and signed the 1988 document in the presence of the deceased (or in the presence of each other). Indeed, which side the deceased wrote, and signed, first, and the circumstances in which the 1988 document was written, are not known.
The English version, which is set out as it appears, is as follows:
“ Ashfield
2-6-88
xx xxxxx St
It will be my Will
(Destament)
I Stanislaw Tadeusz Budniak borne 21-2-1982 in Poland, solenly declare that it is my wish, in case of my death, leave my estate and my all posetion, to my 5 (five) children, Robert Budniak, Lech Budniak, Eliza Budniak, Tomasz Budniak i Joanne Budniak. All my estate and position will be deviaded eacwaly among above mentioned children.
I do mominait my son Robert Budniak as acxecutor of my Will (Destament)
The above is truth and I do to put a seal of my signature
Stanislaw Tadeusz
Budniak
[SIGNATURE]
Ashfield
2-6-1988”
Neither party relied upon the 1988 document, presumably because the original has the word “cancelled” written across part of it. There is no dispute that the word is in the handwriting of the deceased and that underneath the word is the deceased’s signature.
There is no evidence of the circumstances in which the 1988 document was written. There is also no evidence of when the deceased wrote the word “cancelled” on the 1988 document, or when he placed his signature underneath that word.
It was accepted by the parties that the deceased intended to revoke the entire 1988 document by writing the word “cancelled” on it: s 11(1)(d) of the Act. Neither party sought a declaration, under s 8 of the Act, that the 1988 document was revoked, the Court being satisfied that the deceased intended it to be a full revocation of the 1988 document. (In any event, there was no need for Robert to propound the 1988 document in light of the concession made by the NSW T & G regarding the 1994 document.)
It was not suggested, however, that the 1988 document is without relevance.
The Nature and Value of the deceased’s Estate
In an affidavit sworn on 18 September 2014, by Ms L Russell, a Branch Manager of the NSW T & G, at its Burwood Branch, the deceased’s estate, at the date of death, was disclosed as having an estimated value of $3,308,379. The estate was said to consist of the Ashfield property ($730,000), money in bank accounts ($761,036), shares in public companies ($1,221,801), additional shares ($493,454) and other property ($102,087). (I have omitted, and shall continue to omit, any reference to the cents, which accounts for any small differences in addition.)
The liabilities of the deceased, at the date of death, in total, were disclosed at $124,646, although a “possible tax liability” of $100,000 was also disclosed. Of those liabilities, the funeral account ($4,783) was paid out of funds held in the estate. Testamentary expenses, incurred by the estate, after death, totalled $11,517, which expenses have also been paid out of funds held in the estate. The balance in the estate account (being dividends received after death), then held, was $49,399.
Ms Russell estimated the total commission for administration of the deceased’s estate to be $46,461.
Despite a direction having been made on 4 November 2014 that any updating affidavits required by Paragraph 17 of Practice Note SC Eq 7 should be served with the original to be delivered to my Chambers by 25 March 2015, the NSW T & G did not serve an affidavit updating the nature and value of the deceased’s estate until the morning of the hearing.
Subsequently, on the fifth day of the hearing, the parties provided a mostly agreed Schedule (Ex. P), which set out the assets and liabilities of the estate, together with estimates of the value of the assets and the estimated liabilities at the date of hearing. The deceased’s estate was said to consist of the Ashfield property ($1,250,000), cash in bank or on investments ($1,040,986) plus uncollected interest ($16,300), shares and unit trusts ($1,609,661), monies held by the NSW T & G in an estate account (including dividends that have been received) ($155,965), and an estimated value of uncollected dividends ($132,000).
The liabilities of the estate included an amount for income tax and CGT on sale of estate assets ($607,000 as estimated by the NSW T & G, or $350,000 as estimated by Robert), the capital commission payable to the NSW T & G ($52,844), other estate liabilities ($48,684), costs and expenses of sale of the Ashfield property ($32,500), costs and expenses of sale of shares ($32,193 as estimated by NSW T & G and $3,000 as estimated by Robert), making a total of $773,222 (as estimated by the NSW T & G) or $487,029 (as estimated by Robert).
Thus, the parties agreed (in Ex. P) that, at the date of the hearing, the estimated value of the deceased’s estate, after deducting the estimated liabilities (but not the costs of these proceedings) was between $3,431,711 and $3,717,904. (I note that there is an error in the addition of the interest in Ex. P, which results in the estimated value being reduced by $20. However, nothing turns on that miscalculation.)
In calculating the value of the deceased’s estate, finally available for distribution, the costs of the two proceedings should also be considered.
The legal representative of each of the parties sought to make no differentiation between the two proceedings in the calculation of the costs and disbursements. However, I note that all of the evidence has been considered in both proceedings and the parties seem to have approached the matter upon the basis that there is evidence in the affidavits filed in each matter relevant to both matters.
The NSW T & G’s solicitor, Mr G Salier, estimated the costs and disbursements, including both junior counsels’ fees, calculated on the indemnity basis, to be $220,000 (inclusive of GST and upon the basis of a seven day hearing).
The Defendants’ solicitor, Mr A K Gokani, estimated the costs and disbursements of the proceedings, including senior and junior counsel’s fees, calculated on the indemnity basis, calculated until the completion of the hearing, to be about $650,000 (inclusive of GST and upon the basis of a seven day hearing of both matters) and to be $576,000, calculated on the ordinary basis (inclusive of GST and upon the basis of a seven day hearing of both matters). Despite the quantum of the Defendants’ costs and disbursements, there was said to be no uplift factor included in the costs that had been estimated. (It may become necessary for the Defendants’ solicitor to explain why the costs and disbursements are so high.)
Of the total amount estimated as the Defendants’ costs, $481,000 had been paid by the four Defendants (in equal shares) to their solicitor prior to the hearing. The parties agreed that, depending upon the costs order made in one, or both, matters, some, or all, of the amount paid by each (about $120,000) may be reimbursed to him or her.
If the estimates of costs prove accurate, and if an order is made that all of the costs, calculated on the indemnity basis are to be paid out of the estate of the deceased, the estimated value of the estate available for distribution will be between about $2.56 million and about $2.84 million.
Of course, depending upon the result of each of the proceedings, and any order made as to costs, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the amounts referred to are estimates only.
It can be seen, that the costs of the proceedings, may significantly impact upon the value of the estate available for distribution and also upon the financial and material resources of any party, or parties, who may be ordered to bear the burden of costs.
The possibility exists that not all of the costs incurred by one party, or the other, or both, will be ordered to be paid out of the estate. The parties wish to argue how the burden of costs is to be borne, and by whom, following the determination of both proceedings. The parties submitted that the court should allow further submissions, if necessary. I shall abide this request in view of the quantum of costs.
Hopefully, it will not be necessary to incur further costs on the determination of the costs issue. However, that will be a matter for the parties, and perhaps, Tomasz and Nathalie (on behalf of Benjamin).
The only persons who are eligible persons, within the meaning of the Act, are the five children of the deceased. Only Tomasz has not commenced proceedings under the Act for a family provision order. However, he is clearly aware of the proceedings as he is a witness who has sworn at least one affidavit in the proceedings.
There was no suggestion that any of the grandchildren of the deceased, including Benjamin, is an eligible person within the meaning of s 57(1)(e) of the Act.
The Evidence of Witnesses from the NSW T & G regarding the 2007 Will
I turn now to the evidence given by the witnesses whose evidence was read by the NSW T & G. (I have omitted a reference to the evidence of Ms Russell and Ms S McMillan, each of whom gave evidence by affidavit, and each of whom was cross-examined, as to the nature and value of the deceased’s estate. I have earlier referred to the relevant evidence of each as part of the uncontroverted matters.)
It is necessary to consider, in some detail, the evidence about the making of the 2007 Will, and the circumstances in which it was signed.
Mr Kennedy, in an affidavit sworn 28 March 2013, stated:
“4. I have been employed by the Plaintiff for 14 years and have been interviewing clients and taking instructions in relation to Wills for 12 years.
5. When interviewing a client my standard practice is to enquire of the client:-
(a) their identification;
(b) their personal details such as address and contact information;
(c) their assets and liabilities;
(d) who they propose or should consider as beneficiaries;
(e) those who might be potential claimants with respect to the estate in which regard I explain to the client the implications of the Family Provision Act 1982 and the Succession Act 2006;
6. As part of my standard procedure I seek to ensure that to me the client has the testamentary capacity to make a Will. In this regard I enquire of the client as to whether the client understands the nature of the Will, details of their assets and those who should benefit under the Will. When the Will is typed I have the client read through the Will and approve same before execution.
7. On 8 May, 2007 I saw the late Stanislaw Budniak (hereinafter referred to as Mr Budniak). I took instructions from Mr Budniak in relation to his Will subsequently executed on 3 October, 2007. At the time I took instructions from Mr Budniak I completed the Public Trustee NSW Will Information Form… I followed my standard practices referred to above during the interview I had with Mr Budniak at the time he provided instructions for his Will.
8. I asked Mr Budniak to provide me with details as to his address, date of birth and his assets. He advised me his full residential address which I recorded on the Wills instruction sheet. He informed me his date of birth was 21 February, 1922. I recorded his date of birth on the Wills instructions sheet. I asked Mr Budniak to provide me with details as to his assets. Again I recorded the information provided to me by Mr Budniak in this regard.
9. During the course of our interview I informed Mr Budniak the Public Trustee would be his Executor and Trustee. I said to him words to the effect:-
‘To whom do you wish to leave your estate?’
Mr Budniak replied with words to the effect:-
‘I want to leave my estate to my son Thomas and his son. Thomas is there for me when I need him and I want him to take my estate.’
Mr Budniak advised me he had a son Thomas Budniak and that Thomas had one son Benjamin Budniak. He was unable to provide me with their address at the time but said that he would contact me when he had those details.
10. I spoke to Mr Budniak about potential claimants under his Will. I explained to him the rights that were available under the Family Provision Act 1982. Whilst I cannot recall any precise conversation as to whether Mr Budniak had other children I certainly completed page 4 of the Wills instruction sheet at the time of the interview.
11. To me Mr Budniak was in no doubt as to his source of income. He advised me that he received the pension from Centrelink but was unable to provide me with his pension number. For that reason I completed the statement as to sources of income on page 1 of the Wills instructions sheet as I did at the time.
12. Mr Budniak did not exhibit any outward signs of any failure to understand the reason for his visit or the instructions given. I had no hesitation in completing that part of page 4 of the Wills instructions sheet as addresses testamentary capacity.
13. Mr Budniak did not sign his Will on 8 May, 2007. He informed me he would again attend the office to sign his Will. I received a call from him the next day. He confirmed he would attend the office to sign his Will and he advised me that he did not want me to post the Will out to him. I endorsed the front of the Wills instructions sheet to that effect on 9 May, 2007. During the course of our conversation on 9 May, 2007 Mr Budniak also stated to me that he would possibly appoint NSW Trustee & Guardian [as] his attorney and would discuss that particular aspect with me at our next appointment.”
The Will Information Form, a copy of which is annexed to Mr Kennedy’s affidavit, is a printed pro-forma document, available in July 2006, consisting of 5 pages, which includes the following bolded headings. (I shall also include the main matters of information to be completed under the bolded headings):
(a) Will Client – the name, address, date of birth, occupation, source of referral, “Public Trustee’s Role as Executor of the Will and estate explained and understood”, and “Public Trustee’s fees explained”.
(b) Assets – bank accounts, real estate (location of deeds, details of mortgage (if any); additional realty; shares/unit trusts; superannuation fund with current and past employers; debentures, life policies, motor vehicles, boats, caravans, trailers; jewellery, furniture, artworks; interests in business, farms, enterprises – accountant for business; any assets held as trustee; sources of income; accountant or tax agent; solicitor; private health fund; “jointures”; “Can Testator estimate the total value of their assets. Approximate total value”;
(c) Funeral details;
(d) Beneficiaries;
(e) Guardian Details (If Guardians appointed for Minors);
(f) Will Instructions – Can testator read and understand Will;
(g) Family Provision Act 1982 – The persons who can make a claim if not adequately provided for under the Will are (identifies each category of eligible person);
(h) Testamentary Capacity – Understand the nature of the Will; Know assets/value of estate; Understand FPA; Other comments;
(i) General Comments – Overseas assets; person/s present at interview;
(j) Contact permission;
(k) Attorney Services – Have the above services been discussed with the client? Has the client been given a brochure on the services?
The Will Information Form contained a default provision for the Public Trustee to be appointed as either executor and trustee or substitute executor and trustee. Mr Kennedy ticked the box for the Public Trustee to be appointed as executor and trustee. Then there is a statement cancelling “earlier Wills, Codicils and other Testamentary dispositions”.
Then the following appears in handwriting.
“Equally b/w son Thomas + G/son Ben.
Ben till 21 years
No further substitute at this stage.
Fully Explained”.
Under the heading “Will Instruction” and what follows as set out above, is a space to enable the testator to “confirm the instructions set out on the previous pages do express my testamentary intentions as at this date and I WISH THIS DOCUMENT TO CONSTITUTE MY WILL until some further document, if any, replaces it”. However, the deceased’s signature does not appear in the space provided.
Mr Kennedy included the letters “TBA” under the heading “Address” of each of the beneficiaries. (The address of each of the beneficiaries does not, in fact, appear in the 2007 Will. It is possible to infer, therefore, that no further instructions, in respect thereof, were provided to him by the deceased.)
Under the heading “Testamentary Capacity”, Mr Kennedy had written “Yes” in answer to the questions whether the client understands the nature of the Will, knows the assets/value of the Estate, and understands FPA (if applicable).
Under the heading “General Comments… person/s present at interview”, Mr Kennedy did not note that a nurse, or an interpreter, were also present at the interview.
On the front of the Will Information Form there was a note in Mr Kennedy’s handwriting:
“Mr Budniak will attend office to sign in due course & possibly discuss POA. Do not post Will at this time.”
The Will Information Form, completed by Mr Kennedy, was dated 8 May 2007, the time of the meeting with the deceased was identified as 10:00 a.m., and it was signed. The preparation Branch was stated to be Burwood.
Mr Kennedy swore another affidavit on 20 November 2013, in which he amplified the evidence given in his earlier affidavit:
“…
8. I spoke with Mr. Budniak at his house at xx xxxx Street, Ashfield. Present was Mr. Budniak, a Nurse from Home Care, and an Interpretor [sic].
9. During the course of my interview with Mr. Budniak, I said to him:-
‘Could you please provide me with details as to your address, date of birth, and assets?’
MR. BUDNIAK: ‘My residential address is xx xxxx Street, Ashfield and my date of birth is the 21st February, 1922. I have bank accounts with the St. George Bank and the Commonwealth Bank. I own my home at xx xxxx Street, Ashfield. Such property probably includes the next door property known as xx xxxx Street. I have shares in One Steel, BHP, and BlueScope.’
I said: ‘Do you have entitlement to Superannuation with any past employer?’
MR. BUDNIAK: ‘I worked for the University of NSW for some twenty six years or so. I had entitlement to State Superannuation. It may be I collected my entitlement or had it paid as a pension.’
I said: ‘Do you use the services of an Accountant for your tax returns?’
MR. BUDNIAK: ‘Yes, my Accountant is at Fox Financial Services.’
I recorded the information provided to me at the time by Mr. Budniak on the NSW Will Information Form which is Annexure ‘A’…
a. Where I place a ‘?’ next to an answer, it is an indication for the administrator of the Will to investigate whether such property does, or does not, belong to the testator at the date of death;
b. I made a note on the front of ‘Annexure A’ to the effect that Mr. Budniak would come back to sign his Will. I also noted on page 5, that there would be a further appointment; and
c. I placed a circle around the figue $200 – 750k. The reason for this was, it was a guestimate that I made for office use only.
10. During the course of my inteview with Mr. Budniak, I informed him the Public Trustee would be his executor and Trustee, and said, ‘To whom do you wish to leave your estate?’, Mr. Budniak replied, ‘I want to leave my estate to my son, Thomas, and his son. Thomas is there for me when I need him and I want him to take my estate’. Mr. Budniak was unable to provide me with an address for his son, Thomas, at the time but he said, ‘I’ll contact you when I have my son’s address’.
…
12. To me, Mr. Budniak was in no doubt as to his source of income. He advised me that he received the pension from Centrelink but was unable to provide me with his pension number, he said, ‘I receive a pension from Centrelink and the DVA’. As Mr. Budniak was unable to provide me with his pension number at the time of the interview, I completed the satement as to sources of income on page 1 of Annexure ‘A’ as I did at the time.
…
14. Mr. Budniak did not sign his Will on the 8th May, 2007. He said to me at the time of our interview, ‘I’ll come back and sign my Will’.
15. On the 9th May, 2007 I received a call from Mr. Budniak during which he said, ‘I’ll come back to your office to sign my Will and I don’t want you to post it out to me’. I endorsed the front of the Wills Instruction Sheet to that effect on the 9th May, 2007.
16. During the course of our conversation on the 9th May, 2007 Mr. Budniak also said to me, ‘I’m considering possibly appointing the NSW Trustee & Guardian as my Attorney. I’ll discuss this further with you at our next meeting’…”
Mr Kennedy was cross-examined. I summarise his evidence given in cross-examination:
(a) In 2007, he was the Manager of the NSW T & G’s Burwood office. He transferred to the Wollongong office of the NSW T & G in 2010.
(b) He had been employed by the NSW T & G (or the Public Trustee) since 1999.
(c) He followed a standard form in taking instructions for a Will.
(d) His only contact with the deceased was face to face on 8 May 2007 and then, by telephone, on 9 May 2007.
(e) He had no further involvement with the deceased and only became aware of the dispute about the 2007 Will following the commencement of the Probate proceedings.
(f) He had very little independent recollection of the events about which he gave evidence, relying, almost entirely upon the Will Instruction Form, which he had completed at the time he met with the deceased on 8 May 2007.
(g) He had some independent recollection of attending the deceased’s home. The deceased, a nurse (who, other evidence established, was Nurse McDonnell a witness to whom I shall refer) and an interpreter were also present. (He had not referred to either of these facts in his first affidavit because “I didn’t see it [being] relevant at the time”. He had been told something by the lawyers for the NSW T & G about the other persons being present and had included it is his second affidavit.) The interpreter had “assisted on further clarification of issues, but the main points I was able to get from Mr Budniak”. He acknowledged that, on occasions, the deceased had difficulty expressing himself.
(h) Mr Kennedy could not recall any discussions with the nurse about the deceased’s state of health or any medical condition from which he might have suffered.
(i) He could not recollect how long he had spent with the deceased.
(j) There was nothing on the Will Instruction Form that the deceased told Mr Kennedy that he had any children, or grandchildren, other than Tomasz and Benjamin. Mr Kennedy did make an enquiry about persons who might be eligible to make a claim under the former Act.
(k) There was nothing in the Will Instruction Form that suggested Mr Kennedy had made any enquiry about the deceased’s history.
(l) There was nothing in the Will Instruction Form that suggested Mr Kennedy made any enquiry about the deceased’s state of health or his health history.
(m) Mr Kennedy made no note confirming he had asked the deceased whether there were any prior Wills to revoke or, if so, what was contained in any such Will. He agreed that he had made no enquiry about the reasons for making a new Will.
(n) Mr Kennedy made no enquiry about the deceased’s relationship with any family member other than Tomasz and Benjamin.
(o) Mr Kennedy accepted that the Will Instruction Form that he completed did not include all of the conversations that he had with the deceased on 8 May 2007, but only “the main points”.
(p) The deceased was asked about his real estate. He identified the Ashfield property. He also identified “possibly” the Wife’s property, which he said had been vacant “approx. 5 years”. (Although the deceased believed that he had an interest in that property, as evidenced by his caveat, by May 2007, he had been told, prior to his meeting with Mr Kennedy, that Tomasz was buying the property. The deceased had also been told that the caveat lodged by him had lapsed.)
(q) When asked about his sources of income, the deceased did not identify his primary source of income as dividends and interest earned on shares and interest-bearing deposits. The Will Information Form stated “DVA/Centrelink?” as being income sources. He identified “Fox Financial Services” (with a P.O. Box address and telephone number” next to “Accountant/Tax Agent”. (Other evidence reveals that it had last provided accounting services to the deceased in relation to his income tax returns for the year ending 30 June 2003. More recently, the deceased had used “Myssy Taxation Services” to prepare his income tax return for the year ending 30 June 2005.)
(r) The deceased did not provide information about the value of his estate. Where there was a statement of value inserted in the Will Instruction Form, it had been inserted by Mr Kennedy “purely for office purposes”. (The question “Can testator estimate the total value of their assets. Approximate total value is…” was left incomplete on the Will Information Form.)
(s) Mr Kennedy left unmarked on the Will Information Form the box for the question “Can testator read and understand will” because he was not preparing the deceased’s will on that day. He was not concerned about this issue as there was nothing for the deceased to read on that day.
(t) Mr Kennedy discussed with the deceased the charges to be incurred, although he could not recollect precisely what he had said. He did discuss the various percentages that might be charged. He thought that he had discussed the charges that would be made for continuing to hold trust assets for Benjamin until he attained the age of 21 years.
(u) Mr Kennedy was “satisfied at the time that [the deceased] gave me clear instructions and that’s what I acted on”. He did not otherwise identify those instructions (except in relation to the identity of the beneficiaries).
I next set out some questions from the Bench and Mr Kennedy’s answers:
“Q. You have set out in both your affidavits what your standard practice is. In circumstances where there is an interpreter present, do you have any recollection of how the interview actually went? How did you ascertain for example that he did not need an interpreter, or the parts of the conversation that did require an interpreter?
A. I was satisfied that the questions that I asked in relation to his name, address, date of birth, assets and liabilities, beneficiaries, they came from Mr Budniak, and whilst he had broken - broken English, it was - I was able to clearly understand his answers and directions to me.
Q. Did you say his directions to you?
A. Yes, that I recorded in the wills instruction sheet.
Q. Do you have any specific recollection of any part of the conversation where the interpreter was required to assist?
A. No, I don’t have specific
Q. Could I take you to page 4 of the will instruction sheet, under the heading Family Provision Act. Do you see that?
A. Yes.
Q. Could you tell me if you have a recollection of what you did in relation to that part of the will instruction sheet?
A. Not a specific recollection, other than my generic discussions with the will making with the client.
Q. Could you tell me what that was, what your generic …
A. Yeah, well I ask them under the Family Provisions [sic] Act do they believe that there may be anybody that should be considered should - in the event that their will is contested. Then, as I stated, I go through the people that may be eligible or that are eligible under the Act, and is there anybody that has been omitted from the will that I should record.
Q. Does that line of questioning require you to ask him whether, for example, he has a spouse?
A. Yes, it does.
Q. And down each of the categories?
A. That’s correct.
Q. Where you actually ask whether he has anyone who falls into the categories identified in paragraphs A to H?
A. Yes.
Q. Do I get from that answer that you would have asked him whether he had any natural or adopted children?
A. Yes, absolutely.
Q. And do I get from the tick in “No” that he said that he didn’t have any?
A. That’s correct.
Q. When you just answered that, you mean other than Tom, because he specifically identified Tom.
A. Yeah.
Q. And again, do I take it that you asked him about grandchildren, and the only grandchild he identified was Benjamin?
A. That’s correct.”
I am satisfied that Mr Kennedy did his best to recollect the events that occurred on 8 May 2007. It is hardly surprising that 8 years later, he could not remember, precisely, the detail of the whole of his conversation with the deceased. I have no reason to doubt that, at his meeting with the deceased, he followed what was his standard practice, in 2007, in taking instructions for a Will. It is clear that whatever the instructions given by the deceased were, they were given directly by him to Mr Kennedy, there being nobody there to prompt the deceased.
In some respects, as will be read, some of his evidence was corroborated by Mrs L J McDonnell, who is the registered nurse who attended the deceased’s home on 8 May 2007 with Mr Kennedy and the interpreter.
There was no evidence from the interpreter who attended at the deceased’s home on 8 May 2007. No comment was made by senior counsel for Robert in this regard.
There was no specific evidence of when Mr Kennedy prepared the 2007 Will.
Nothing appears to have been done to progress the making of the 2007 Will between early May 2007 and early October 2007 although it appears to have been located in the NSW T & G’s Will file.
I shall return to other evidence going to the events in May 2007 when the deceased is said to have given instructions for that Will.
Mr Mohammed, in an affidavit sworn 17 October 2013, wrote:
“…
4. I have been employed by the Plaintiff for ten years and have been interviewing clients, and taking instructions, in relation to Wills for between seven and eight years.
5. On the 3rd October, 2007 I saw the late Stanislaw Budniak (‘Mr. Budniak’) (‘the deceased’), at the Burwood Branch of the Plaintiff. I was told by Mr. Budniak, ‘I wish to sign my Will’. The Will had been previously prepared for him. I went, and got Mr. Budniak’s Will and took him to an interview room.
6. As my standard practice is to ask clients for some form of identification, I would have asked Mr. Budniak for identification. I cannot recall what identification Mr. Budniak provided to me but I was certainly satisfied at the time as to his identity.
7. Whilst Mr. Budniak was seated in an interview room, I gave him a copy of the typed Will and left him alone in the interview room so that he could read his Will without interference of any nature. After a short time while, I returned to the interview room and said to Mr. Budniak:-
‘Have you finished reading your Will?’
MR. BUDNIAK: ‘Yes.’
I SAID: ‘Are you satisfied with the Will?’
MR. BUDNIAK: ‘Yes, I’m satisfied with the Will.’
I SAID: ‘As two witnesses are needed to [witness] your signature to the Will, I’ll get a colleague to come in and witness your signature.’
A member of staff, Teresa DiDonato, agreed to be a witness. Ms. DiDonato, and I, thereafter joined Mr. Budniak in the interview room.
8. Mr. Budniak freely, and voluntarily, signed his Will dated the 3rd October, 2007 in the presence of myself, and Teresa DiDonato, both being present at the same time. I cannot recall Mr. Budniak asking any questions whatsoever with respect to the content of his Will...”
(Mr Mohammed had sworn an earlier affidavit that was read. However, that affidavit was in the same short form of attesting witness affidavit by Ms Di Donato, to which I shall refer.)
Mr Mohammed was cross-examined. I summarise his evidence given in cross-examination:
(a) He joined the Public Trustee as a trainee in mid-2003. Until 2010, he held the position of trust clerk.
(b) Since November 2010, he has occupied the position of a client property officer at the NSW T & G. His clients have disabilities so he co-ordinates repairs, maintenance and renovations of their properties using their funds.
(c) Until 3 October 2007, he had no prior involvement with the deceased. He met him when the deceased came into the NSW T & G’s office, at Burwood, and asked to sign what was the 2007 Will. The deceased had not made an appointment to do so.
(d) After verifying the deceased’s identity, Mr Mohammed said his responsibility was to obtain the execution of the Will that someone else had prepared for the deceased. In doing so, he did not look at any documents in the NSW T & G’s Will file, apart from the Will that had been prepared and he did not concern himself with the Will Instruction Form.
(e) Mr Mohammed did not discuss with the deceased, any instructions given to make the Will or any other matters concerning the deceased’s testamentary affairs. He did not read the 2007 Will out aloud to, or summarise its contents for, the deceased. He gave the deceased the original unexecuted 2007 Will to read and immediately left the room.
(f) He could not recollect how long he left the deceased alone in the room to read the unexecuted 2007 Will. Of course, he did not know whether the deceased had read the draft 2007 Will whilst he was alone, but Mr Mohammed confirmed that the deceased told him that he had read and was satisfied with it.
(g) Mr Mohammed was not asked how long, in total, he had spent with the deceased, but, bearing in mind his evidence as to the events that occurred, it is unlikely to have been very long.
(h) The 2007 Will was then signed and the deceased’s signature thereon was witnessed. Mr Mohammed does not recall the deceased asking any questions about the contents of the 2007 Will.
In answer to questions from the Bench, Mr Mohammed confirmed that part of his standard practice in 2007 was to provide a client with a copy of the Will that had been executed. He confirmed that he had followed that standard practice with the deceased.
Following these questions, counsel for the NSW T & G asked Mr Mohammed about certain documents, which were subsequently tendered as Ex. F. Included as part of this tender, was a copy of the 2007 Will, which Mr Mohammed identified as a copy of the will but could not say that it was the copy that he had given to the deceased.
Because the other documents which became part of Ex. F should have been identified as evidence in chief, and because they had not previously been shown to counsel for the Defendants, I permitted further cross-examination. Mr Mohammed identified the other documents as “a standard pack”, but was unable to confirm that he had provided those other documents to the deceased at the time of the execution of the 2007 Will. (I do not think anything turns on this as the evidence is that all of the documents that comprise Ex. F were found in the Ashfield property following the death of the deceased.)
I am satisfied that Mr Mohammed did his best to recollect the events that occurred on 3 October 2007. It is hardly surprising that the detail of his conversation with the deceased was not remembered precisely over 7 years after the conversations took place. I have no reason to doubt that at the time the 2007 Will was executed, he followed what was his standard practice in 2007, in having a Will executed.
Ms Di Donato, the other attesting witness, gave the following evidence in an affidavit sworn on 16 May 2012:
“2. On 03 October 2007 the original Will… was signed as now appears on the said Will by Stanislaw Budniak the deceased, as the said Stanislaw Budniak’s Will in the presence of me and of Nicholas Mohammed present at the same time and then at the request of the deceased attested and subscribed by us in the deceased’s presence and in the presence of each other.
3. The signatures ‘T Di Donato’ and ‘N Mohammed’ subscribed as witnesses to the Will are respectively those of me and Nicholas Mohammed.”
It is clear from the evidence that there was no prior arrangement for either Mr Mohammed or Ms di Donato to be the attesting witnesses.
The Defendants did not require Ms Di Donato to attend for cross-examination. There is no reason to disbelieve her evidence as to the circumstances of the execution by the deceased of the 2007 Will.
There was no other evidence going to the circumstances surrounding the execution, by the deceased, of the 2007 Will.
Subsequent Events Involving the Deceased and the NSW T & G
Mr Mohammed saw the deceased, subsequently, at the office of the NSW T & G, when the deceased came in with a question about his taxation affairs. On this occasion, Mr Mohammed provided him with a list of tax agents who might be contacted by telephone, which list Mr Mohammed retrieved from the Yellow Pages. There was no evidence on this occasion that anything was said about the 2007 Will.
Ms Ulrike Scarlett, a Senior Trust officer in the employ of the NSW T & G, in an affidavit sworn 25 September 2013 (as amended in one respect, being the date in paragraph 6) wrote:
“…
4. I have been employed by the Plaintiff since 1988 and have been interviewing clients, and taking instructions, in relation to Wills since 1990. Part of my training is to assess the capacity of clients when drawing up documents for them.
5. In August 2009 (as corrected), I was working at the Plaintiff’s office at O’Connell Street, Sydney as the Will’s Officer.
6. On the 31st August, 2009 (as amended) I saw the late Stanislaw Budniak (‘Mr. Budniak’), at the O’Connell Street office of the Plaintiff.
7. I discussed Mr. Budniak’s Will with him, he said to me:-
‘I don’t want to change my Will, I’m leaving my estate to my son and grandson.’
‘I have five children.’
‘My estate is too difficult to split.’
‘I have a property I live in and another investment property.’
‘I have Bank accounts with the St. George Bank and the Commonwealth Bank.’
8. Mr. Budniak’s main concern was that he wanted to make a Power of Attorney, he said, ‘I want a Power of Attorney with the Public Trustee to look after my money and to protect myself’.
9. As far as I understood Mr. Budniak, he wanted a Power of Attorney with the Plaintiff because, ‘I gave my son money and he spends it. I know the Public Trustee will look after my money’, he also said, ‘I have problems with my memory and I’ve been ill.’
10. Although Mr. Budniak understood what a Power of Attorney was, I was not confident that he fully understood the effect, charges, and fees, that the Plaintiff would charge for such service, so, as a precaution, I went and spoke with Ms. Jill Day, a Senior Legal Officer, about Mr. Budniak.
11. After speaking with Ms. Jill Day, I spoke to Mr. Budniak and said:-
‘I’ve spoken with a Senior Legal Officer and because of what you’ve told me, what we would need to make a Power of Attorney is medical evidence about your memory because of the possible conflict with your son, so you should go and see your doctor. Once we have a letter from your doctor we’ll make a Power of Attorney for you.’
MR. BUDNIAK: Expressed reluctance to do so.
I SAID: ‘I have no choice due to my doubts about your understanding of the charges and fees we make for a Power of Attorney. I know you understand what a Power of Attorney is, but I’m concerned about the possible conflict with your son. Medical evidence will also protect you to support what you want to do.’
12. Mr. Budniak left and I wrote a file note dated the 31st August, 2009…”
When considering whether circumstances that excite suspicion exist, the court looks at a number of factors including the circumstances surrounding the preparation of the propounded Will; whether a beneficiary was instrumental in the preparation of the propounded Will; the extent of the physical and mental impairment, if any, of the deceased; whether the Will in question constitutes a significant change from a prior Will; and whether the propounded Will, generally, seems to make testamentary sense. Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded Will is not a reason for rebutting the presumption arising from the due execution of a Will regular on its face: In re R (dec’d) [1950] 2 All ER 117, at 121.
A full review of case law on the topic is to be found in Vernon v Watson; Estate Clarice Isabel Quigley dec’d [2002] NSWSC 600, at [2]-[9].
Even though it is not relied upon as a relevant matter, I should mention Paraskov v Paraskos [2002] WASC 109, in which case, Pullin J, at [50] observed:
“Because the person cannot read the will, does not mean that it is invalid. The question is whether the deceased understood what the contents of the will were before it was signed. In some cases this will be established by reference to the instructions which were given before the will was signed; in others by the fact that the will was accurately translated into language the testator understood before it was signed; and in others it will be satisfied by proof that the contents of the will, although not translated, were explained to the testator in a way which accurately informed the testator what the will provided for. See In the Will of Steward (supra); In the Will of Clayton (1906) 8 GLR 516; Parker v Felgate (1883) 8 PD 171 at 173 per Hannen P; Perera v Perera [1901] AC 354; Astridge v Pepper [1970] 1 NSWR 542 at 548 per Helsham J; Battan Singh v Amirchand [1948] AC 161; and Re Flynn [1982] 1 WLR 310 at 320.”
Section 8 of the Act
As the deceased died in 2011, these proceedings are governed by the Act, s 8, rather than the Probate and Administration Act 1898 (NSW), s 18. Section 8 applies to wills whether made before, on, or after 1 March 2008, if the deceased died on, or after, that date: Schedule 1, Clause 3(3) of the Act.
In view of the concession made by the NSW T & G, it is not necessary to repeat the relevant principles of law. I should, however, refer to section 8 of the Act which provides:
“(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).
(5) This section applies to a document whether it came into existence within or outside the State.”
In this regard, however, there can be no doubt, and the parties agree, in the present case, that the 1994 document:
(i) Is a “document”, within the meaning given to the term by Interpretation Act1987 (NSW), s 21, which includes (a) anything on which there is writing, or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them.
(ii) Was not executed, or witnessed, in conformity with the formal requirements of s 6(1) of the Act. Execution “is the validation of a document by going through the formalities required by law for that purpose”: Estate of Williams deceased (1984) 36 SASR 423, at 425.
(iii) Purports to state the testamentary intentions of the deceased.
(iv) Was intended by the deceased to form his Will.
Determination of the Probate Proceedings
In arriving at a conclusion, I have borne in mind what was written by Tadgell JA in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, at 141:
“The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details.”
The 2007 Will, so far as it related to the identified beneficiaries, is accepted as having been prepared in accordance with the instructions given by the deceased to Mr Kennedy in May 2007. There is no suggestion of the involvement of any interested party (for example, Tomasz or Nathalie) in organising the meeting with Mr Kennedy, or of participating, in any way, in the meeting. Despite Nathalie having been informed of the meeting, neither she, nor Tomasz, attended.
I am also satisfied that Mr Kennedy was an experienced Branch Manager within the NSW T & G. Where an experienced draftsman of a will states, upon facts that are set out, that he satisfied himself of the deceased’s mental capacity, his conclusion about the deceased’s capacity, noted on the Will Instruction Form, requires some evidence to contradict the conclusion.
In this regard, it is also to be noted that Nurse McDonnell was present whilst the instructions were being given to Mr Kennedy. She was clearly aware of the reasons for Mr Kennedy’s presence, and whilst she did not participate in the discussions that took place, she did not express any concerns, at the time, or otherwise, about the deceased being able to give instructions regarding the contents of his Will.
Furthermore her evidence and the evidence of Mr Kennedy does not suggest that the deceased was not, oriented in time, place and person, or that he did not know with whom he was interacting or the reasons why. There is no suggestion that his speech was incoherent.
Nor was it put to Nurse McDonnell, in cross-examination, that there was a need for her to be concerned, or to express concern, that because of any medical condition of which she was aware, the deceased did not have capacity to give instructions to Mr Kennedy about the Will.
Nor was there any suggestion that Nurse McDonnell observed anything about the deceased’s medical condition, when he gave instructions to Mr Kennedy. Importantly, she did not suggest that there was any confusion, or lack of understanding, evident in her communications with the deceased, or between the deceased and Mr Kennedy, on 8 May 2007, whilst she was present. There may have been some inability to understand the concept of an Attorney and some confusion about the role of an Attorney as compared with an executor. The evidence confirms that the deceased knew that the broad subject matters of the attendance by Mr Kennedy at his home with Nurse McDonnell and the interpreter was to discuss, amongst other things, a will. It is also clear that the deceased specifically identified the persons whom he wished to benefit by his Will. However, the evidence, overall, makes it clear that he had the ability to, and did understand, the concept of a Will. Therefore, I accept that the deceased knew what a will was and its effect.
Yet, it is clear, by May 2007, that a reduced ability to plan, judge and organise, was more observable in the deceased. Similarly, by this time, he was having some difficulties performing more complex activities, such as dealing with his finances and with his shares. In addition, he was having difficulty understanding correspondence from the Australian Taxation Office and the advice from accountants and lawyers that he said he had seen about that correspondence. These demonstrated a reduced capacity for information processing and also corroborated the conclusion of Dr Unsen that the “function of the frontal lobe of his brain, which involves decision making, executive function ability to make decisions flexibly and to have insight” was reduced.
However, at this time, the deceased seemed to be able to still adequately perform basic tasks, such as dressing, or moving around the community. Symptoms akin to those of depression were also observable. These emotional disturbances were fluctuating.
At his meeting with the deceased, Mr Kennedy would have been aware that he was dealing with an elderly man whose first language was not English and about whose medical, and other, history, he had no detailed knowledge (other than the fact that a Nurse from ACAT had organised the meeting and was present). There is no suggestion that the deceased had any legal training or knowledge about wills (albeit that he had prepared two documents that he had identified as his last Will and testament, a matter unknown to Mr Kennedy). He had, however, attended the office of the Public Trustee, in late January 2007 and had some discussion about the preparation of a will and the appointment of the Public Trustee as his Attorney.
Mr Kennedy did not make any enquiry about any prior Wills made by the deceased, or, if there were a prior Will, no enquiry was made about its terms. Had Mr Kennedy done so, he could have discussed the terms of any Will with the deceased and ascertained the deceased’s reasons for the alteration to the terms of any prior Will.
Nor did Mr Kennedy test, in any way, the deceased’s responses to the questions in the Will Instruction Form under the heading “Family Provision Act”. He seemed to have accepted, at face value, the answers given by the deceased, the relevant one being that the deceased had no other children.
Nor did Mr Kennedy test the deceased, in any way, to ascertain whether the answer to his question on this topic was accurate, or whether the answer should have been that the deceased had other children for whom he was not going to provide. It appears that he accepted that there were no other potential beneficiaries with a claim on the bounty of the deceased.
Had Mr Kennedy tested the deceased, he might have been able to elicit from the deceased that he had other potential claimants on his bounty and the reasons why he was not going to provide for such claimants. That, in turn, could have provided the basis of testamentary letters of explanation, or explanations contained within the 2007 Will, identifying the reasons for making no provision for specified family members. Such reasons, if provided, might have enabled a testing of the deceased’s capacity to weigh the claims of his other children and grandchildren upon bounty.
These omissions led Mr Kennedy to not ascertain whether the deceased had any appreciation of, or ability to comprehend, the consequences, and impact, of the distribution of his estate to Tomasz and Benjamin only, especially since it deviated significantly from his long held prior testamentary intentions and since it excluded those who might be considered to be persons with a natural claim on his bounty.
Mr Kennedy’s explanation of the effect of the former Act would have been likely to be far less detailed than would have been necessary in view of the answers that the deceased provided in relation to questions posed about eligible persons. There would have been little need to provide any detailed exposition of the Family Provision Act in light of the answers reported to have been given by the deceased.
In accordance with the deceased’s instructions, the draft of the 2007 Will was not sent to the deceased at the Ashfield property or otherwise. Nor was any letter explaining the contents of the Will, by reference to the instructions that had been given, as drafted, sent to the deceased.
Bearing in mind that the deceased lived alone, and there was no suggestion of regular attendances at the Ashfield home by any of his children, other than, perhaps, Tomasz, and of Nathalie, the instructions to Mr Kennedy to not send a draft to the deceased, on the evidence, is somewhat inexplicable.
Also, it cannot be forgotten that the 2007 Will was not actually prepared by Mr Kennedy at his meeting in May 2007. Thus, the precise terms of the 2007 Will, as drafted, could not have been discussed on the occasion instructions were given in May 2007. This fact necessitates ensuring, when the 2007 Will had been drafted, and was to be executed, that its contents were known to, and understood by, the deceased. It also requires a consideration, by the court, of both the deceased’s testamentary capacity, and his knowledge and approval, of the contents of the 2007 Will, as drafted, when it was executed in October 2007.
There was a gap of about 5 months between the date the deceased gave instructions to Mr Kennedy and the date the deceased attended the office of the Public Trustee to execute the 2007 Will. There is no evidence of what prompted the deceased, then, to go to the office of the Public Trustee. Nor is there any evidence that he had been reminded by anyone of the fact that he had not signed the Will following his meeting with Mr Kennedy, or that he should go to the office of the Public Trustee to do so. (The Progress Notes do not suggest contact between Nurse McDonnell and the deceased in or about October 2007.)
When the deceased did attend the office of the Public Trustee in October 2007, it is clear that he was oriented in place and person. He appears to have known that he had given instructions for a Will to a representative of the Public Trustee and that a Will would have been prepared and be available for his consideration. He also specified the reason why he was at the office of the Public Trustee, namely to sign that Will.
Of course, during his attendance at the office of the Public Trustee, following being handed the original, and after being given the opportunity to do so, on his own, the deceased did say to Mr Mohammed that he read the 2007 Will. However, there is no evidence of either attesting witness observing him doing so or how long it took him to do so.
The lack of any examination of, or explanation to, the deceased, about the 2007 Will by Mr Mohammed, is made more significant when it is remembered that he did not take instructions for, or prepare, the 2007 Will. Nor had he ever met the deceased previously. Taken with the fact that Mr Mohammed did not consider the Will Information Form, he could not have known anything about the deceased. (Even if he had considered that document, the reference to the deceased’s ability to read and understand English was left incomplete.)
Clearly, Mr Mohammed assumed that the deceased could read. Without more, that assumption, without any particular basis, might have been a powerful factor in determining the result of the case. However, Robert’s evidence of his belief that the deceased had the ability to read the lapsing notice, and be able to “deal with” it, makes the fact that no person read the 2007 Will to the deceased, of less significance.
But, even assuming that there was a legitimate basis for the assumption, apparently made by Mr Mohammed, that the deceased could read the 2007 Will, it was much bolder to assume that he was capable of understanding the legal terminology in the 2007 Will and all of its provisions without any real questioning of the deceased.
An affirmative response by the deceased, after the original of the 2007 Will was provided to him, to the question posed by Mr Mohammed “Are you satisfied with the Will?” or some similar type of question, is hardly an adequate reflection of the deceased’s understanding of its contents.
I note that there is no evidence that the deceased stated his understanding about the terms of the 2007 Will, or that he asked any questions in respect thereof in his conversation with Mr Mohammed.
It is to be remembered that the 2007 Will contained material other than the mere dispositive gift of all his property to Tomasz and Benjamin. In this regard, whilst it was submitted by the Defendants that the dispositive provision of the estate in Clause 3 of the 2007 Will accorded with the deceased’s instructions as recorded in the Will Information Form (Para 127 of opening submissions dated 30 April 2015), I should note, in passing, that the terms of the dispositive clause in the Will might be considered to be subtly different from the instructions recorded therein. The Will Instruction Form refers to the estate being divided “Equally b/w son Thomas and g/son Ben, Ben till 21 years. No further substitute at this stage”, whilst the 2007 Will provides for the estate to be given to “the following people who survive me and reach the age of 21 years of age” and then identifies Tomasz and Benjamin. (I do not place any reliance on this subtle difference if there is one.)
In the closing submissions of the Defendants, it was submitted that a number of the clauses of the Will, as drafted, were not discussed by Mr Kennedy with the deceased or they were not the subject of the deceased’s instructions. For example, Clause 4.2 of the 2007 Will directed that income earned on the estate should be paid to (in effect) Benjamin after he had reached 18 years of age (inconsistently with the instruction for the gift on an equal share of the estate to Benjamin to pass to him at the age of 21 years). Clause 5 of the 2007 Will contained a provision for dealing with any liability for Capital Gains Tax. Clause 6 provided that estate liabilities included all expenses incurred by the NSW T & G in administering the estate, or charges made for doing the work.
It was submitted that had the topic of Capital Gains Tax, or income tax, been discussed with the deceased, he would have had difficulty understanding the concepts bearing in mind his difficulties with his own taxation affairs.
There is no specific evidence that any of these Clauses was the subject of discussions with, or instructions from, the deceased, and they were not recorded in the Will Information Form. There is no specific evidence that the effect of each had been explained to the deceased. Had they been explained, and had there been discussion, the deceased’s capacity, or lack thereof, to understand each might have been elicited. It was not. Thus, the 2007 Will prepared by Mr Kennedy contained a number of clauses, even though the only specific instructions from the deceased appear to have been simply to leave everything to Tomasz and Benjamin.
Furthermore, there was evidence of the deceased’s frugal nature and the spartan existence in which he was, and had been, living. There was evidence from Nurse McDonnell that the deceased refused to immediately appoint the Public Trustee as his Attorney because of the costs. This, and other evidence about the deceased’s personality in regard to spending money, does suggest that it would have been somewhat out of character for him to nominate the NSW T & G as the executor in circumstances where it would be charging fees for services provided, and would also be entitled to seek executor’s commission.
I do not think that the evidence of Nurse McDonnell that the deceased had questioned Mr Kennedy about costs and commission really goes far enough since there is no precise evidence about what had been discussed, or whether it was in the context of the role of the Public Trustee as executor or as an Attorney.
Thus, in my view, some further discussion with the deceased would have been required, after the 2007 Will was prepared, and before its execution by the deceased, to ensure that he was capable of understanding all of the clauses in the 2007 Will and that he knew and approved of each.
As has been stated, there is no evidence that the Clauses of the Will were discussed by Mr Mohammed at the time the deceased executed the 2007 Will. The evidence is clear that he did not do so. He made no attempt, even in a perfunctory way, to satisfy himself of the deceased’s testamentary capacity, or his knowledge and approval of the contents of the 2007 Will in October 2007. Accordingly, all that the court is left with is the deceased’s statement that he had read the 2007 Will and was “satisfied” with it.
I have earlier referred to the statements in Nicholson v Knaggs, by Vickery J, at [97], to the effect that it needs to be shown that the deceased had the capacity to understand the practical effect of the central clauses in the Will, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it. At [664], his Honour recommended a “considered and appropriately structured interview with the testatrix”, having emphasised, at [387], that “in order to establish knowledge and approval of a will by a testator, more is required than ‘merely establishing that the testator executed it in the presence of a witness after it had been read to, or by, him’”. I respectfully agree.
Mr Mohammed asked no questions in an effort to satisfy himself of the capacity of the deceased to recall what property he had, what family the deceased had, or what claims, other than those of Tomasz and Benjamin, there might have been on the deceased’s bounty. Mr Mohammed simply accepted the deceased’s statement.
In this regard, the evidence of Dr Lye relating to the deceased being able to understand the issue of a Power of Attorney if he was instructed about it, and if it was clarified for him, does not assist the NSW T & G, since there is no evidence of any explanation given to the deceased of the terms of the 2007 Will. Mr Mohammed did not provide any advice about the 2007 Will and did not explain, or clarify, any of its terms to the deceased before its execution by him. This also is important bearing in mind the deceased’s reduced capacity for information processing identified by Dr Lye.
Furthermore, bearing in mind the concern that the deceased had expressed to Nurse McDonnell about his ability to “trust” the Public Trustee, the appointment of the Public Trustee in the 2007 Will, is difficult to explain. In the circumstances of this case, more is required than merely establishing that the deceased executed the Will in the presence of two witnesses after he said that he was “satisfied” with it.
There is evidence, which I accept, that following its execution, Mr Mohammed provided the deceased with a copy of the executed 2007 Will. However, it is clear that no person read the Will to the deceased or explained its contents to him at the time of its execution. There is no evidence that any person did so at any time thereafter.
All the matters, to which I have referred, involving Mr Kennedy, and then Mr Mohammed, do suggest that there were some failures, and some irregularities, of ordinary legal procedures, that are common when taking instructions for, and then having, a Will executed.
Yet, I do not consider that the 2007 Will necessarily demonstrates any irrationality on the part of the deceased. He provided reasons, in August 2007, to Nathalie for omitting each of his children. Other evidence reveals the nature of his relationship with those children. It seems clear that he was closest to his son, Tomasz, and his grandchild, Benjamin.
I have also considered the omission of all of the deceased’s other children and to a lesser extent, his grandchildren, in the 2007 Will. Interestingly, senior counsel for the Defendants did not suggest that the 2007 Will was irrational. (In fact, it was not seriously suggested that the deceased could not remember his children.) Undoubtedly, this was a deliberate omission bearing in mind that a determination of the question whether the 2007 Will was irrational would depend upon the deceased’s personality, his relationship with the named beneficiaries, his relationship with others who had a claim on his bounty and what he believed to be the circumstances of each of them.
More importantly, I have borne in mind, that the 2007 Will effected a substantial change to the deceased’s long-standing (since 1988) testamentary intentions, so as to exclude four of his children, in respect of at least some of whom he might have been expected to make provision. Although it appears that the deceased had considered making Benjamin a beneficiary for some time before the instructions for the 2007 Will were given, the significant change to exclude all of the Defendants appears to have been a relatively abrupt one when compared with the long held testamentary intentions revealed by the 1988 document and then by the 1994 document.
There is some evidence, from Nathalie, of the reasons given by the deceased, in about August 2007, for altering his long held testamentary intention to divide his estate equally between his five children. That explanation was in the context of seeking advice relating to the transfer of the Wife’s property. Yet, what the deceased said to her does provide some evidence of his capacity to consider the competing claims upon his bounty. However, as stated, there is no evidence that the deceased had a factual basis for expressing any view about the financial circumstances of each of his children in August 2007. Furthermore, on neither of the occasions that he saw, and spoke to, an officer of the NSW T & G was the deceased’s attention drawn to the existence of his other children, or grandchildren, and to whether any had a legitimate claim upon his bounty.
Despite the protestations to the contrary, I am not satisfied that each of the Defendants had a particularly close relationship with the deceased. (In the case of Lech, he and the deceased were clearly estranged for about 30 years.) Overall, the evidence suggests that following the separation of the deceased and Genowefa, the children supported her, rather than the deceased, and that each was closer to her than to the deceased.
I should mention that Dr Orr made clear that the deceased did not make any delusional, or unusual, statements about his family and that there did not seem to be any psychosis or unusual beliefs in terms of his family. I also refer to the evidence of Dr Orr that “from the first time that I saw him he had indicated that he didn’t feel close to his family and there was one son that mainly did his, bringing him backwards and forwards or assisting him”. Thus, the nature of his relationship with each of the Defendants may also have been a relevant consideration in making the 2007 Will.
It was submitted by the NSW T & G that the deceased’s reason for excluding the Defendants related to him believing that his children (presumably, other than Tomasz), were endeavouring to change the title to the Wife’s property (with, or without, his knowledge). It was also submitted that the deceased’s relationship with the Defendants was a contributing factor for his decision.
However, if this reason provided was correct, it demonstrates that the deceased was unable to understand that Tomasz would benefit, in precisely the same way as the other children, from the lapsing of the caveat and the sale of the Wife’s property. This inability may have been caused by impairment of cognition, being his information processing capacity, or by the deterioration of his mental flexibility.
That the deceased was informed that Tomasz was purchasing the Wife’s property prior to executing the 2007 Will, is also relevant. The deceased does not appear to have been capable of understanding this circumstance, since he continued to assert, even to Nathalie, that he retained an interest in the Wife’s property and that he retained a belief that he could, somehow, reverse what had occurred.
These matters raise the question, when the evidence concerning the Wife’s property is considered, whether the deceased’s “cognitive impairment, being mental rigidity, which is a reduced capacity for flexible thought, or an inability to shift freely from one idea to the next”, was a “disorder of the mind” which “prevented the exercise of his natural faculties”. That he had difficulties with flexible thinking, or shifting loads of thought, which some might describe as inflexible thinking, is clear from the evidence of Dr Lye, albeit that she described them as “only mild impairments”. They, too, lead me to conclude that I cannot be satisfied that the deceased’s mind was “free to act in a natural, regular, and ordinary manner”: Will of Wilson [1898] VicLawRp 39; (1897) 23 VLR 197, per Hood J, at 199.
Furthermore, if, as I have found, Robert only served the lapsing notice, none of the children’s names, other than Robert’s, was on that document.
This basis of altering his testamentary intentions also raises a doubt about the deceased’s capacity to reflect upon the claims of the Defendants who, by nature, were persons who could be supposed to have claims on the deceased’s bounty, and to have the ability to evaluate and discriminate between the respective strengths of those claims.
In this regard, I make clear that any unfairness suggested by the dispositions in the 2007 Will is not directly in issue. The dispositions become relevant only for the light they shed on the deceased’s capacity to understand the claims to which he ought to have given effect when making the testamentary dispositions.
In addition, as stated, a testator might make a valid will disinheriting some of his children out of capricious, frivolous, mean, or even bad, motives. The function of the court is not to substitute its own view of what the deceased should have done. Nor does the court necessarily need to look for a justification for the change in the deceased’s testamentary intentions, or inquire why he disinherited his other children and grandchildren. An irrational, unjust, unfair, vindictive or even perverse, Will must be upheld if the testator had the capacity to make a will.
As Gleeson CJ said in Easter v Griffith, at 290, “[t]he power freely to dispose of one’s assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter.”
Whilst I am satisfied that the deceased, in May 2007, only suffered mild cognitive impairment, I cannot be satisfied, on the totality of the evidence, of his testamentary capacity at the time he gave instructions for, or at the time he executed, the 2007 Will. This conclusion makes it unnecessary to determine whether the NSW T & G, as propounder of the 2007 Will, has affirmatively established that the deceased knew and approved the contents of that Will.
However, in case I am wrong on the question of testamentary capacity, it is prudent to consider the latter question.
I cannot be satisfied that the deceased knew and approved of the terms of the 2007 Will. In particular, the evidence, overall, does not able me to be affirmatively satisfied that the deceased was capable of understanding the practical effect of nominating the NSW T & G as his executor and trustee, particularly where there was a real possibility that it would be required to act as trustee under the terms of the 2007 Will for some years, or that the deceased was capable of understanding other clauses of the 2007 Will, the substance of which do not appear to have been discussed with him. In reaching this conclusion, I have not forgotten that the deceased signed the 2007 Will.
That the deceased was able to tell Ms Scarlett of some of the terms of the 2007 Will, in August 2009, is an important consideration in revealing his understanding, and his memory, of some of its terms, at that time. But, even though he might have known and approved of the identity of his two beneficiaries, I am not satisfied that he knew and approved of the whole of contents of the 2007 Will. (In this regard, I must also weigh what he had said to Dr Unsen, in May 2008, about having left his estate to his five children.)
In particular, I cannot be satisfied, after a consideration of the whole of the evidence, that all of the terms of the 2007 Will were discussed with, and explained to, the deceased either before or after it was prepared to ensure that he knew and approved of all those terms. Again, it is relevant to note, that he was an elderly testator, with mild impaired cognition, whose condition was deteriorating, and that no person read through the 2007 Will after it was prepared, or explained its contents to him, or asked if it contained his instructions.
I cannot be satisfied that the procedures that Mr Kennedy and Mr Mohammed adopted before the deceased signed the 2007 Will led to him knowing and approving its contents.
It follows that there cannot be a grant of Probate in solemn form of the copy of that Will and that there should be a grant of Probate of the 1994 document. The matter may be referred to the Registrar to complete the grant.
Determination of the Family Provision Proceedings
In the circumstances, it is unnecessary for me to deal with the family provision proceedings and in accordance with the view of the parties, those proceedings should be dismissed. I am prepared to make that order.
For the assistance of the parties, on the issue of the burden of costs, I mention that this case is one in which there appears to have been a real, and legitimate, question whether the 2007 Will was the last valid Will of the deceased, in which the facts did not all point in the same direction.
It must be remembered, also, that probate litigation is not entirely between parties, because they did not make the Will and the Court is required to determine whether a document of somebody who is dead is a valid testamentary instrument. There is a public interest in ensuring that the matter is properly proved: Tu v Tu; Estate of Tu.
In relation to the family provision case, the evidence read on that case has been read in the probate proceedings also. I mention, again, the failure to disclose fully and accurately the financial circumstances of each of the Plaintiffs in the proceedings which was only remedied during the course of the hearing.
I shall give the parties the opportunity to consider the form of the orders that should be made, and also to consider the question of costs. I shall stand the matter over to a date convenient to the parties and to the court. In the event that agreed Short Minutes of Order reflecting these reasons, and the question of costs, is resolved between the parties, I shall make orders in Chambers.
I direct the parties to deliver to my Chambers, within 7 days, an agreed form of Short Minutes of Order. If that proves impossible to achieve, then competing forms of Short Minutes of Order should be provided within the same time. I shall deal with the question of costs, as a separate issue, unless agreement is reached.
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