Tristram, Application of Eunice Helen

[2012] NSWSC 657

Supreme Court

New South Wales

Medium Neutral Citation:	Tristram, Application of Eunice Helen [2012] NSWSC 657
Hearing dates:	4 June 2012
Decision date:	04 June 2012
Jurisdiction:	Equity Division - Probate List
Before:	White J
Decision:	Refer to para [16] of judgment.
Catchwords:	WILLS, PROBATE AND ADMINISTRATION - wills - Succession Act 2006, s 8 - where documents saved on deceased's computer expressing testamentary intentions - whether intended to form will of deceased - whether deceased intended document without more to operate as will - evidence that deceased did not consider task of making will complete - mention of "will" in conversation with daughter not sufficient to show intention for either informal document to form will - informal documents expressed intentions only - held deceased died intestate
Legislation Cited:	Succession Act 2006
Cases Cited:	Hatsatouris v Hatsatouris [2001] NSWSC 147 In the estate of Masters (Deceased) (1994) 33 NSWLR 446 Application of Kencalo; In the Estate of Buharoff (Supreme Court of New South Wales, Powell J, 23 October 1991, unreported, BC9101481)) Bell v Crewes [2011] NSWSC 1159
Category:	Principal judgment
Parties:	Eunice Helen Tristram (Plaintiff)
Representation:	Counsel: G Waugh Solicitors: Roe Mackenzie Lawyers (Plaintiff)
File Number(s):	2012/138072

Judgment

1. HIS HONOUR: This application concerns the estate of Dennis Thomas Warlum who died on 13 June 2011 aged 82. The plaintiff was the deceased's de facto partner. The deceased was formerly married but that marriage was dissolved in 1984. He is survived by two children and a number of grandchildren, as well as the plaintiff. The issue for determination is whether the deceased died intestate, or whether one, or possibly two, documents, found on his computer after his death should be declared to be a document or documents that the deceased intended to form his will.

1. Section 8 of the Succession Act 2006 relevantly provides:

"8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?

(cf WPA 18A)

(1) This section applies to a document, or part of a document, that:

(a) purports to state the testamentary intentions of a deceased person, and

(b) has not been executed in accordance with this Part.

(2) The document, or part of the document, forms:

(a) the deceased person's will-if the Court is satisfied that the person intended it to form his or her will, or

(b) an alteration to the deceased person's will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or

(c) a full or partial revocation of the deceased person's will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.

(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:

(a) any evidence relating to the manner in which the document or part was executed, and

(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2)."

1. For probate to be given of an informal document pursuant to that section the court must be satisfied that the deceased intended that the document should without more on his part operate as his will (Hatsatouris v Hatsatouris [2001] NSWSC 147 at [68]) and In the estate of Masters (Deceased) (1994) 33 NSWLR 446 at 452). This is necessary because the section requires that the deceased intend that the document form his or her will. A document which is intended to be a draft cannot be admitted to probate under the section (Application of Kencalo; In the Estate of Buharoff (Supreme Court of New South Wales, Powell J, 23 October 1991, unreported, BC9101481)). It is not enough that an informal document express the deceased's then intentions as to how he or she would like the estate dealt with. Rather the deceased must intend the document to have a present operation as his or her will (Bell v Crewes [2011] NSWSC 1159).

1. The two documents found on the deceased's computer were saved with the description "willcalcs.xls" and "will.doc.". The former was last modified on 14 May 2008 and the latter on 2 June 2008. That is more than three years before the deceased's death. The deceased did not tell his de facto partner that he had made a will. The document saved as "willcalcs.xls" has a heading "Will Calculations". It describes four assets, namely, an MLC pension investment, another MLC investment, cash and a house. He prescribes values to those assets, except for the house. On one view, the document appears to reflect the deceased's then thoughts as to how the assets might be divided between nine people being the plaintiff, the deceased's children and his grandchildren.

1. A later document clearly sets out the deceased's then thoughts as to how he might divide his estate. It gives reasons as to why a greater share of his estate might be given to his daughter, Carol, than to his son, Barry. There are words which would be consistent with an immediately dispositive intention in relation to certain of the assets. Thus the document includes the statement:

"Helen receives a lifetime interest in the house at ... Terrigal ... She is free to use the house as she wishes and arrange for its sale if it becomes necessary to purchase something more suited to her needs and to use any capital ... to support her lifestyle and to maintain the new property."

1. However, this statement is immediately followed by the following:

"Trusts ??? Who owns? how does she commit to passing on?????"

1. Those words clearly demonstrate that the deceased did not consider that he had completed the task of making a will or even fully stating his testamentary intentions. Other parts of the document are consistent with the earlier document described as "Will calculations". It explains the earlier document. The deceased says:

"To achieve some equalisation of circumstances and to compensate Carol and her family for what they may have been denied financially I have decided to apply weighting factors to the distribution of the remainder ... The factors are: ..."

1. The potential beneficiaries are then named and a factor is allocated to each totalling thirteen with different weightings given to different individuals. These weightings are in accordance with the earlier document called "Will calculations". The document states:

"[The individuals] shall each receive a portion of the remainder calculated by:

(Remainder $/Factor Total)*Factor).

At todays [sic] value this would produce" [The document is then blank.]

1. Even in this portion of the document it appears that the deceased had not completed his thinking. After the sentence that he had decided to apply weighting factors to the distribution of the remainder, the deceased said, "Survivors???????" This suggests that he was still thinking as to whether there should be any gift over if any of the potential beneficiaries did not survive him.

1. The deceased did not tell his son, Barry, that he had made a will. His daughter, Carol, deposed that at the beginning of 2011 she visited her father and a conversation to the following effect took place:

"The deceased: 'I want to discuss my will with you.'

[Ms Warlum]: 'Dad you know I don't like talking about things like that'

The deceased: 'I just want you to know what my wishes are. I have changed my will.'

[Ms Warlum]: 'What do you mean.'

The deceased: 'I am leaving you more than Barry because of your different circumstances. Barry has investment properties and superannuation and he is better off than you are.'

[Ms Warlum]: 'I don't want that. Just split it equally between us.'

The deceased: 'Listen to me I am an old man and those are my wishes. That is what I want. I want to make sure you are looked after.'"

1. His daughter deposes that the deceased did not say where his will was and did not mention who he wished to be executor. Nor did he mention what arrangements he wished to make for his de facto partner. She deposes that the deceased died suddenly and she believed that her father felt that he had longer to live. She also says that she believed that if the deceased had made a valid will he would have told her where it was, but he did not.

1. The deceased's statement "I have changed my will." in his conversation with his daughter is not evidence of sufficient strength to show that he intended either of the only two possible documents that have been found that might constitute the will to be his will. Neither of those documents has been modified since 2008.

1. Considering the evidence as a whole, I think it amounts to no more than the deceased's advising his daughter of changes to his thinking as to how he intended to leave his estate.

1. The deceased had told a financial adviser, a Mr Abbott, in 2006 something about a will. Notes made by Mr Abbott at the time in relation to estate planning refer to a will and a statement by the deceased that it needs to be "updated/formalised". Mr Abbott infers, as would I, that the reference to the need for such a will to be "formalised" meant that no formal will of the deceased was then in existence. There may have been an informal document and, if so, this would explain the deceased's statement in his conversation with his daughter to his having changed his will, in the sense that the deceased had changed his intentions as expressed in some informal document. No such earlier document has been located.

1. I am not satisfied that either of annexures B or C to the affidavit of the plaintiff formed the last will of the deceased. Rather, I will declare that the deceased died intestate.

1. For these reasons I make the declaration and orders as set out in the short minutes of order entitled "Alternative 2" handed up by counsel for the plaintiff which I initial and date today.

1. The plaintiff has very properly brought the existence of the informal documents to the attention of the court so that a decision can be made as to whether or not the deceased died intestate. She is entitled to the costs of these proceedings out of the estate on the indemnity basis.

1. I have modified order 3 to substitute the word "complete" for "perfect".

1. I have made those orders.

Decision last updated: 26 June 2012