Wise v Callaghan

[2007] NSWSC 580

CITATION:	Wise v Callaghan & Anor; in the Estate of Lavelle Mary Greaves [2007] NSWSC 580
HEARING DATE(S):	18 May 2007
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	18 May 2007
DECISION:	Section 18A declaration made upon plaintiff’s undertaking to repay loan with interest and plaintiff ordered to pass accounts.
CATCHWORDS:	WILLS – Informal Will – where copy of previous Will amended by testator in handwriting and signed – where plaintiff had ‘borrowed’ $250,000 from estate without authority.
LEGISLATION CITED:	(NSW) Wills, Probate & Administration Act 1898, s 18A (NSW) Guardianship Act 1987
CASES CITED:	Hatsatouris v Hatsatouris [2001] NSWCA 408 In the Estate of the late Ian MacLachlan; Peters v Dick [2007] NSWSC 414 Pahlow-Silady v Siladi (NSWCA, 22 April 1997, unreported)
PARTIES:	Julie Lois Wise (plaintiff) Mary Callaghan (first defendant) Sandra Fotineas (second defendant)
FILE NUMBER(S):	SC 121334/05
COUNSEL:	Mr M Gorrick (plaintiff) Mr L Ellison SC (defendants)
SOLICITORS:	Wilkinson Throsby & Edwards (plaintiff) Gells Lawyers (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

BRERETON J

Friday, 18 May 2007

121334/05 Julie Lois Wise v Mary Callaghan & Anor; The Estate of Lavelle Mary Greaves

JUDGMENT (ex tempore)

1 HIS HONOUR: Lavelle Mary Greaves died 28 July 2004, aged 89 years, leaving a Will apparently duly executed on 23 August 1984, and a further copy of that Will from which clause 5 had been struck by her own hand in blue ink and to which the words “I have crossed all the others out” were also added in her handwriting, and signed in 1997. The Plaintiff, Julie Lois Walker, a niece of the deceased, claims a declaration that the altered document apparently signed in 1997 embodies the testamentary intentions of the deceased for the purposes of the (NSW) Wills Probate & Administration Act, s 18A.

2 On an application under s 18A there are essentially three questions: first, whether there is a document; secondly, whether that document purports to embody the testamentary intentions of the deceased; and thirdly, whether the Court is satisfied that the deceased has then, or subsequently, by some act or words demonstrated that it was her or his intention that the document should, without more on her or his part, operate as her or his Will [Hatsatouris v Hatsatouris [2001] NSWCA 408 [56]; Pahlow-Silady v Siladi (NSWCA, 22 April 1997, unreported); In the Estate of the late Ian MacLachlan; Peters v Dick [2007] NSWSC 414, [58] - [60]]

3 It is plain enough that the document on which the handwritten annotations appear is a document, and the first requirement is satisfied. On its face, that document, although in part a copy of an earlier Will, purportedly embodies the testamentary intentions of the deceased. It states an intention to revoke prior dispositions, to appoint the deceased’s niece Eunice Covasseur executrix, to give the whole estate to Eunice Covasseur, but if she did not survive the deceased, then to appoint the plaintiff executrix and trustee. The gift over, which had previously been contained in par 5, to eight named persons in equal shares, one of whom was the plaintiff has been struck out; the words “I have crossed all the others out”, support the view that this was intended to be an operative document as so altered, and that conclusion is fortified by the deceased’s signature on it.

4 By reason of other examples of her signature in evidence, as well as evidence of those who recognise her signature, I am amply satisfied that the handwritten signature on the document is the signature of the deceased.

5 As to the third issue, again the statement written on the altered document and the signature subscribed to it go a substantial way to establishing that the deceased intended that this document, without more, should operate as her Will. That conclusion is fortified by the circumstance that the altered document appears to have been placed in an envelope on which the deceased wrote the words “my last Will”; the probable explanation of the evidence is that the 1984 Will was held in safe custody by the Commonwealth Bank, the deceased retaining a photocopy, and that she made the alteration on that photocopy and subsequently placed it in the envelope “my last Will”.

6 I have, to some extent, been troubled by the circumstance that to attribute testamentary intention to the deceased in respect of this document would be to attribute to her an intention, in effect, to create an intestacy in the event of the prior death of Eunice Covasseur, the gift over being deleted. However, ultimately, I think that becomes a question of construction of the Will, and not a question as to whether the deceased, perhaps not comprehending the precise legal consequences of what she was doing, or perhaps having some other intention as to those consequences, nonetheless intended this document to operate as her Will.

7 In the course of the evidence it has become apparent that the plaintiff, who occupied a fiduciary position in respect of the deceased as her Financial Manager under the (NSW) Guardianship Act 1987 prior to her death, who has not yet obtained a grant of probate, and who - at least on what is prima facie the more likely construction of the Will - has no beneficial interest in the estate, has nonetheless ‘borrowed’ $250,000 from this estate of some $560,000. No basis is apparent upon which the plaintiff was entitled to do any such thing, and for that reason I have required, as a condition of the plaintiff obtaining a grant, an undertaking, which has now been proffered, to repay the ‘loan’, with interest at the rate applicable to unpaid legacies. I will also require that the plaintiff verify, file and pass her accounts.

8 Upon the plaintiff undertaking to the Court that she will by 18 November 2007 repay to the estate the sum of $250,000 said by her to have been borrowed from the estate, together with interest thereon at the rate applicable for unpaid legacies from the date of the advance to her until repayment, I make a declaration in accordance with paragraph 1 of the document entitled Plaintiff’s Proposed Final Orders initialled by me, dated this day and placed with the papers.

9 I make orders in accordance with paragraphs 2, 3 and 4 of that document. I order that the Plaintiff verify, file and pass her accounts relating to the estate of the deceased within 12 months from the date of the grant. The proceedings are remitted to the Registrar in chambers for completion of the grant.

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