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Paper Presented for the NSW State Legal
Conference
30 August 2012
SMC Conference Centre, Sydney
Recent Developments in Wills & Estates
Ramena Kako, Barrister, TEP 13 Wentworth Selborne Chambers
Ph: 02 9232 7750 E: [email protected]
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Estate of Daly [2012] NSWSC 555 per White J – in chambers
1. This case concerned mirror wills executed by a husband and wife where by mistake,
each signed the will prepared for the other. The signatures of both were duly
witnessed. No-one appreciated that the husband and wife had signed the wrong will.
2. Probate was sought of the wife's will. Her husband predeceased her. The question
was whether an order should be made for the rectification of the document signed by
the deceased (that is, the will prepared as her husband's will); whether the will
prepared in the name of the deceased should be rectified by omitting the signature of
her husband and deeming the will to have been signed by the deceased; or whether
an order should be made under s 8 of the Succession Act 2006 declaring that the
deceased intended that the document prepared for her form her will, and directing
that document to be admitted to probate.
3. The deceased, Eliane Lucie Daly and her husband, Henri Georges Daly resided in New
Caledonia. The wills concerned their property in Australia. On 5 May 2003 they
attended at the office of their solicitor who had prepared wills for each of them to
sign. The will prepared for the deceased was as follows:
"THIS IS THE LAST WILL AND TESTAMENT of me, ELIANE LUCIE DALY of 10 Rue Laguimiville, Noumea, New Caledonia, retired, which said Will shall apply only to such of my assets situate in Australia.
1. I REVOKE all former Wills and Testamentary Dispositions made by me in so far as any such Will or testamentary disposition relates to any of my assets situate in Australia.
2. I APPOINT my sons MICHAEL JAMES DALY, AND JACQUES HENRI DALY to be the executors and trustees of this my Will.
3. I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and situate in Australia to my husband HENRI GEORGES DALY.
4. IN THE EVENT of my said husband predeceasing me or failing to survive me for a period of thirty [(]30) days I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and situate in Australia to my sons MICHAEL JAMES DALY and JACQUES HENRI DALY in equal shares as tenants in common.
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5. IN THE EVENT of either of my sons MICHAEL JAMES DALY or JACQUES HENRI DALY predeceasing me or [failing] to survive me for a period of [(]30) days, I GIVE DEVISE AND BEQUEATH the share of my estate to which he would otherwise have been entitled to my trustees in trust for that son's children as tenants in common in equal shares and share alike upon their attaining the age of twenty-one (21) years."
The will of the deceased's husband was in mirror terms. It stated:
"THIS IS THE LAST WILL AND TESTAMENT of me, HENRI GEORGES DALY of 10 Rue Laguimiville, Noumea, New Caledonia, retired, which said Will shall apply only to such of my assets situate in Australia.
1. I REVOKE all former Wills and Testamentary Dispositions made by me in so far as any such Will or testamentary disposition relates to any of my assets situate in Australia.
2. I APPOINT my sons MICHAEL JAMES DALY, AND JACQUES HENRI DALY to be the executors and trustees of this my Will.
3. I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and situate in Australia to my wife ELIANE LUCIE DALY.
4. IN THE EVENT of my said wife predeceasing me or failing to survive me for a period of thirty [(]30) days I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and situate in Australia to my sons MICHAEL JAMES DALY and JACQUES HENRI DALY in equal shares as tenants in common.
5. IN THE EVENT of either of my sons MICHAEL JAMES DALY or JACQUES HENRI DALY predeceasing me or [failing] to survive me for a period of [(]30) days, I GIVE DEVISE AND BEQUEATH the share of my estate to which he would otherwise have been entitled to my trustees in trust for that son's children as tenants in common in equal shares and share alike upon their attaining the age of twenty-one (21) years."
Henri Georges Daly died on 27 August 2007. Eliane Lucie Daly died on 22 May 2010.
4. The plaintiffs, Michael James Daly and Jacques Henri Daly sought probate of their
mother's will. She died leaving property in New South Wales.
5. By their summons, the plaintiffs sought an order under s 27(1) of the Succession Act
for rectification of the document signed Eliane Lucie Daly. The orders sought were as
follows:
"1 An order under Section 27(1) of the Succession Act 2006 (NSW) that the will of the deceased dated 5 May 2003 and commencing with the words 'THIS IS
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THE LAST WILL AND TESTAMENT of me, HENRI GEORGES DALY' be rectified as follows:
(i) That the words 'HENRI GEORGES DALY' on line 1 be replaced with the words 'ELIANE LUCIE DALY';
(ii) That the words 'my wife ELIANE LUCIE DALY' in paragraph 3 be replaced with the words 'my husband HENRI GEORGES DALEY'; and
(iii) That the words 'my said wife' be replaced with the words 'my said husband' in line 1 of paragraph 4; and
2. An order that the period of time for making the application for the order sought at paragraph 1 above be extended to 7 December 2011 or such other date as the Court deems fit; and
3. The plaintiffs, Michael James Daly and Jacques Henri Daly, the executors appointed by the will dated 5 May 2003 and commencing with the words 'THIS IS THE LAST WILL AND TESTAMENT of me, HENRI GEORGES DALY' of Eliane Lucie Daly also known as Eliane Lucie Eugenie Greslan of 10 rue Laguimiville, Vallee des Colons, Noumea, New Caledonia, retired, deceased claim that probate of the will be granted to them."
6. By their amended summons, the plaintiffs sought the following relief:
"The plaintiffs, Michael James Daly and Jacques Henri Daly, the executors appointed by the will dated 5 May 2003 of Eliane Lucie Daly also known as Eliane Lucie Eugenie de Greslan of 10 rue Laguimiville, Vallee des Colons, Noumea, New Caledonia, retired, deceased claim:
1 A declaration that the Court is satisfied that the will fails to carry out the testamentary intentions of the deceased in that the deceased and Henri Georges Daly at the time of executing their respective wills signed the other's will rather than his or her own.
2 An order that the will of the deceased be rectified by omitting the signature of Henri Georges Daly.
3 An order that the will be deemed to have been signed by the deceased.
4 An order that the period of time for making the application for the declaration and orders at paragraphs 1 to 3 above be extended to 1 May 2012 or such other date as the Court deems fit; and
5 That probate of the will as rectified be granted to them."
7. Section 27 of the Succession Act provides:
"27 Court may rectify a will
(cf WPA 29A)
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(1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator's intentions because:
(a) a clerical error was made, or
(b) the will does not give effect to the testator's instructions.
(2) A person who wishes to make an application for an order under this section must apply to the Court within 12 months after the date of the death of the testator.
(3) However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if:
(a) the Court considers it necessary, and
(b) the final distribution of the estate has not been made."
8. In In the Estate of Gillespie, Powell J considered whether the powers then recently
conferred on the Court by ss 18A and 29A of the Wills, Probate and Administration Act
1898 should be used to deal with the same problem where mirror wills were prepared
for husband and wife and by mistake, each executed the will prepared for the other.
9. Section 18A of the Wills, Probate and Administration Act was the predecessor to s 8 of
the Succession Act. It was in materially the same terms as s 8. Section 29A of the
Wills, Probate and Administration Act was the predecessor to s 27 of the Succession
Act and was in materially the same terms.
10. After setting out the terms of s 18A Powell J said:
"In 1983 (In the Estate of Blakely (1893 32 S.A.S.R. 473), a case such as this came before the Supreme Court of South Australia. In that case, White J., relying upon the provisions of s.12(2) of the South Australian Act ordered ((supra) at 480) 'that the husband's will, the document in the name of the husband, be admitted for probate as if his signature and the signatures of the two witnesses, all appearing on the wife's will, all appeared on the husband's will, and as if the wife's signature were expunged therefrom'.
I have some doubt as to whether the provisions of s.12(2) of the South Australian Act, or of s.18A of the Act, which are intended to preserve, as valid, a testamentary act which would otherwise fail for want of formality, permit one to go as far as did White J. in In the Estate of Blakely, a doubt which appears as if it may have been shared by the Law Reform Commission in its Report on 'Wills - Execution and Revocation' (L.R.C. 47 1986), for, in footnote 8 on p.76, the Commissioners, after referring top such cases as Re Meyer (supra), Re Petchell (supra), Guardian, Trust and Executors Company of New Zealand Limited v. Inwood (supra) and Re Brander
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(supra) observed 'If there were a general power of rectification (see Chapter 7) this type of mistake could also be overcome by resort to it.'"
11. After expressing doubt as to the scope of s 18A, but not deciding that question, Powell
J said:
"... it seems to me that, it being transparently clear that the form of Will, which the Deceased in fact executed did not correctly record his testamentary intentions, this is a case in which it is proper to invoke the powers contained in s.29A of the Act."
12. His Honour made the following declarations and orders:
"1. DECLARE that, at the time when he executed the form of Will being Exhibit 'B' on this reference, the Deceased did so in the mistaken belief that the provisions contained therein conformed in all respects with the provisions contained in the form of Will being Exhibit 'A' on this reference.
2. DECLARE that I am satisfied that the form of Will so executed by the Deceased failed to carry out the Deceased's testamentary intentions.
3. ORDER that the form of Will so executed by the Deceased be, and be deemed to have been, rectified so as to conform in all respects, except as to the signatures now appearing thereon, with the form of Will being Exhibit 'A' on this reference.
4. REMIT the matter to the Registrar to complete the grant to the Applicant of Probate in common form of the form of Will executed by the Deceased, but rectified as aforesaid."
13. The will prepared for execution by the deceased but signed by his wife was Exhibit A.
The will prepared for execution by his wife, but signed by the deceased, was Exhibit B.
The document admitted to probate was the document bearing the deceased's
signature rectified to take the form of Exhibit A.
14. The relief claimed in the summons before its amendment was in accordance with the
declarations and orders made in In the Estate of Gillespie.
15. Powell J gave no reason for his doubts as to the scope of s 18A of the Wills, Probate
and Administration Act and for dealing with the issue of invalid execution by way of an
order for rectification. He did not explain why the document signed by the deceased
was his will which could be rectified to conform with his intentions.
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16. The same problem arose in Public Trustee v Smith where the same form of orders for
rectification were made. The document admitted to probate was the document
signed by the deceased, but rectified to conform with the form of will which he had
intended to sign. Hodgson J followed the decision in In the Estate of Gillespie without
further elaboration.
17. The question was more recently considered in the Supreme Court of South Australia
by Gray J in In the Estate of Hennekam (deceased). Section 12 of the Wills Act 1936
(SA) is in material respects the same as s 8 of the Succession Act. Section 25AA(1) of
the Wills Act is materially the same as s 27(1) of the Succession Act.
18. In In the Estate of Hennekam (deceased) Gray J considered, but rejected, the doubt
expressed by Powell J in In the Estate of Gillespie as to the width of s 12 of the Wills
Act. Prior to the decision in In the Estate of Gillespie the Full Court of the Supreme
Court of South Australia had approved the decision in In the Estate of Blakely (In the
Estate of Williams (1984) 36 SASR 423). It is settled that there is no implication from
the words "has not been executed in accordance with this Part" in s 8 of the Succession
Act (s 12 of the Wills Act (SA)) that the informal testamentary document must have
been in some way "executed" by the deceased. In In the Estate of Williams King CJ said
(at 425):
"To execute a document is to do what the law requires to be done to give validity to the document. Section 8 sets out the legal requirements or formalities for execution of a will. If those formalities are not complied with, there is no execution. Execution and signature are, of course, not synonymous. When this is borne in mind, the answer to the present problem becomes clearer. Execution is the validation of a document by going through the formalities required by law for that purpose. The notion of execution of a will other than in accordance with the formalities prescribed by s.8, is therefore a self-contradictory notion. It follows that the saving effect of s.12 is only required and is only operative when the will has not been executed. Signature is simply one of the formalities required by the Act for valid execution. There is no reason, as a matter of construction or logic, to differentiate between signature and any other formalities for execution required by s.8. All that is required for the operation of s.12(2) is that there should be a 'document purporting to embody the testamentary intentions of a deceased person' and that the Court 'is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will'."
19. In In the Estate of Hennekam (deceased) Gray J concluded:
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"[36] Having regard to the materials outlined above, it is appropriate to utilise s 12(2) in the circumstances before this court. The legislative intention demonstrates that these circumstances are precisely the 'mischief' to which the section is directed. Section 12(2) is fundamentally concerned with remedying documents which have not complied with the statutory formalities and risk being held invalid as a consequence. In contrast, s 25AA is a devise [sic] to enable the court to correct a document which does not accurately reflect the testator's intentions. It is generally concerned with rectifying mistakes as to the meaning or the contents of the will.
[37] In my view, to delete the portions of the will of the deceased's wife which the deceased actually signed so that the document complies with the known intentions of the deceased, is of greater artificiality than to admit to probate the actual will of the deceased, despite its lack of appropriate execution."
I agree with this conclusion.
20. Section 27 would not confer power to make the orders sought in the amended
summons. Before there can be an order for rectification there must first be a will. If
no order were made under s 8, the document expressed to be the last will of the
deceased, but not signed by her, could not be rectified by omitting the signature of
Henri Georges Daly and deeming the document to have been signed by the deceased
because the document in question would never have been the valid will of the
deceased (Succession Act, s 6). If an order is made under s 8, no rectification is
necessary.
21. On the authority of In the Estate of Gillespie and Public Trustee v Smith, I could make
the orders originally sought in the summons by rectifying the document signed by the
deceased, if she intended it to be her will, so the document conformed with her
intentions. But I respectfully doubt the basis of those decisions. They proceed on the
premise that the piece of paper signed by the deceased was his or her will that could
be rectified to conform with his or her intentions. But consistently with the decisions
in In the Goods of Hunt (1875) LR 3 P&D 250, In the Estate of Meyer [1908] P 353 and
In re Petchell (decd) (1943) 46 W.A.L.R. 62, the deceased never intended the paper
she signed to be her will, but intended to put her signature on a different document.
To treat her signature as her will and then rectify the contents of the piece of paper
she signed is at least artificial, as Gray J said in In the Estate of Hennekam (deceased).
White J said, “It is more than artificial”. Section 27 is premised on there being a valid
will, which there would not be in the absence of an order under s 8.
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22. White agreed with Gray J in In the Estate of Hennekam (deceased) that the appropriate
course is to admit to probate the document the deceased intended to be her will,
notwithstanding its lack of due execution, pursuant to s 8 of the Succession Act, and
not to make an order under s 27.
23. His Honour declared that the deceased Eliane Lucie Daly intended the document
commencing "THIS IS THE LAST WILL AND TESTAMENT of me, ELIANE LUCIE DALY" and
bearing date 5 May 2003 to form her will.
Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594 per Slattery J
24. Daniel Yazbek ("Daniel") was a creative and entrepreneurial restaurateur, the sixth
child of a family of eight siblings. He died at the age of 39 on 18 or 19 September
2010. In the proceedings the plaintiff, ("Alan"), one of Daniel's brothers, propounded
an informal testamentary document as Daniel's will. The defendants, Ghosn Yazbek
("Ghosn"), Daniel's father, and Mouna Yazbek ("Mouna"), Daniel's mother said Daniel
died intestate.
Daniel Yazbek and his Family
25. Ghosn and Mouna's children, other than Daniel are, Anwar, David, Malek, Alan,
Richard, Matthew and Amanda.
26. Through corporate vehicles, Daniel, Alan and Matthew together owned three
restaurants. Daniel never married and has no known children.
27. Alan claimed that Daniel prepared a Microsoft Word document, entitled "Will.doc" on
his computer between 11 and 14 July 2009, just before he left for a holiday on the
Greek Island, Mykonos. It was later found on Daniel's computer. Alan says that
Will.doc recorded Daniel's testamentary intentions and that Daniel intended it to be
his will. The primary issue in dispute was whether the electronic document,
"Will.doc", or a printed out paper copy of Will.doc, satisfy the requirements of
Succession Act 2006, s 8, sufficiently for the Court to declare either to be Daniel's last
will.
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28. Ghosn and Mouna said that Daniel did not intend Will.doc to be his will. They
contended that if he intended anything to be his will it was the paper copy of Will.doc;
that he printed out and signed. Daniel's parents further said Daniel destroyed the
printed document thereby either (1) revoking his will represented by the paper
document and (2) negativing any inference that the surviving electronic document,
Will.doc, continued to reflect his testamentary intentions or that he continued to
intend Will.doc to be his will.
29. The plaintiff sought a declaration pursuant to Succession Act, s 8 that the content of
Will.doc was Daniel's last will. The plaintiff's Amended Statement of Claim sought
probate of Will.doc rather than the printed document. Will.doc and the printed
document, were accepted as necessarily having the same text. But Daniel may have
treated them differently.
30. Will.doc referred to most but not all of the following assets:
Daniel's most valuable assets were his real estate interests and the three restaurant
businesses.
31. The Yazbek brothers held their restaurant businesses through three private
companies. Daniel held a one-third share in the brothers' partnership represented by
these companies, a partnership which at the time of his death was valued at
$3,200,000. Daniel's one third share was thus worth $1,066,667.
32. At the time of his death Daniel had an interest in several bank accounts.
33. Daniel had apparently committed suicide at his home. The police found a number of
pieces of electronic equipment that were capable of recording messages from Daniel
including a Toshiba Satellite laptop computer. The laptop computer was taken away
by police for examination.
34. The police searched the folders of documents created by the deceased. In the
computer's C drive at "C:/users/danielyazbek/documents/will.doc" the police found an
electronic file named "Will.doc". According to the technical evidence adduced through
the expert Mr Snell, where Will.doc was found on the computer was a conventional
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and system-designated place for a user to store personal and business documents.
Will.doc was printed out and examined. Will.doc's metadata (embedded data showing
the document's history and technical characteristics) and the computer's other
technical information about its creation, editing and printing was analysed. Will.doc
provided in full as follows:-
"Dear Family,
I want to say that it was an absolute pleasure to be a part of this family in this life. I want to say to mum and pop that I could not ask for more in a parent.
Mum, your unconditional love is the reason I made it to 38 and that I will never forget you. You were the soul of my very existence.
Pop, thankyou for being there for me. I know in my heart that you loved me more than words could have ever been said.
To all of my brothers and sister. Thankyou for everything and every memory that I have of you all.
I want to tell you all that I love you all and will miss your company in every way.
Following is the list of things that I have accumulated over the years and would like to hand out to the following persons.
MUM- I want you to have the car of your dreams. With the equity I have I want you purchase whatever you want.
POP- I know that you don't want anything but my love, so this is yours.
ANWAR- I want to give you my Ibanez guitar, my CD collection any electrical goods I have. Plus $100,000 from my equity in my Ashton st property.
DAVID- I want to give you $50,000 in cash from the equity in my Ashton st property.
MAL- I want to give you $50,000 in cash from my superannuation fund.
AL- I want to give you all of my architecture books and 50% of my equity in our business.
MAT- I want to give you my motorbikes, and 50% of my equity in our business and my equity in Stewart st property.
AMANDA- I want to give you [address not published] Lorna ave, and my share of money overseas.
CHRIS, MIKEY & ROCCO- Thanks for our friendship. I could not ask for better friends.
Ps I want you to tell of my friends that I love then and will miss them all.
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Pss I want to give my Gibson Les Paul to rocco and $20,000 which I have in my savings accounts with Westpac and commonwealth bank so you can finish your album.
Love and light
Daniel Yazbek."
35. The name "Daniel Yazbek" at the end of Will.doc was not in the form of an electronic
signature, reproducing his handwriting. The words of his name were typed like the
rest of Will.doc. His Honour found the internal evidence of Will.doc strongly
supported the inference that Daniel created it. Daniel's password could have been
discovered by other users by trial and error methods. But there was no suggestion in
the evidence that any other individual was either in a position to access Daniel's laptop
or had any motive to create documents such as Will.doc on Daniel's laptop. From this
evidence and some later evidence that it was unlikely that other users had access to
Daniel's laptop, His Honour inferred that Daniel created Will.doc. But Will.doc is best
analysed in the light of Daniel's and the family's history.
Daniel's Testamentary Intentions in 2009 and 2010
The Yazbek Family and their Businesses
36. Since February 2001, Daniel, Alan and Matthew were equal partners in the various
businesses. Mr Girgis was the overall manager of the Crown Street restaurants,
having first met the deceased in about 2004. Mr Girgis' role as managing director of
the Crown Street restaurants commenced on 1 July 2009.
37. But there were tensions among the brothers and with other members of the family.
Daniel Goes to Mykonos
38. Mr Michael Girgis, the Managing Director of Toko Surry Hills and Tokonoma, was the
sole source of evidence supporting the existence of any printed copy of Will.doc.
Counsel for the defendants conceded that if Mr Girgis' evidence were not accepted,
then Mr Snell's expert evidence was not alone a basis to infer that Will.doc was
printed. Mr Snell's evidence made it clear that the hypothesis that Will.doc was
printed could not be excluded. Mr Girgis' evidence of his conversations with the
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deceased about a printed copy of the deceased's will being "at home" was strongly
contested, but His Honour accepted it as reliable.
39. Mr Girgis said that in July 2009, he had a conversation with Daniel just before the
deceased caught an aeroplane to Greece and Mykonos. Mr Girgis said Daniel told him,
that "there is a will on my computer and also one at home in a draw".
40. The conversation was a brief face to face one, held in unusual circumstances. Daniel
was leaving to go to Mykonos by taxi and stopped outside the Crown Street office on
the way to the airport. Mr Girgis spoke to him there. He said that Daniel there and
then said to him words to the effect, "if anything happens to me there is a will on my
computer and also one at home in a draw". Mr Girgis said that he joked with Daniel at
the time about that comment and said in reply to him words to the effect, "don't
worry about it, Dan, it will be fine". He said in his affidavit that Daniel then grunted a
reply, "something he commonly did".
41. Mr Girgis committed himself to this version before a will was actually found on the
deceased's computer. Indeed his statement to Daniel's brother that there was a will
on Daniel's computer was one of the reasons that the police search of the computer
took place. Thirdly, Mr Girgis conveyed an account of what he says that Daniel had
said to him, in July 2009, in an email Mr Girgis sent to the plaintiff and to Matthew on
20 September 2010, the day after Daniel's body was found.
Conversations before Daniel's Death
42. Family members and Mr Girgis remembered a number of conversations with Daniel
just before his death. Amanda remembered a long conversation of some two and a
half hours about life, religion and suffering that she had on the morning of 17
September 2010.
43. Mr Girgis also spoke to Daniel in the two weeks before he died. He was sufficiently
worried about the tone of the conversations and Daniel's welfare that he gave Daniel
the phone number for Lifeline.
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44. There was little doubt that Daniel was troubled by conflict, mainly with Alan, about
aspects of the restaurant business operations. In these conflicts Daniel and Matthew
appeared to have one view of the restaurants' operations and Alan another.
45. There was another conversation of significance at the time involving the deceased, but
which only emerged after his death. The conversation's said to be between Matthew
and Daniel about two weeks before Daniel's death. Its occurrence was strongly
contested. The conversation was revealed after Daniel's death, when Mal and
Matthew were speaking.
46. Mal's account which the Judge accepted was that a conversation took place at their
parents' home at Blakehurst on the Monday or Tuesday after Daniel had died. Mal
says that Matthew and he were discussing events prior to Daniel's death and that
Matthew said to him "About two weeks ago Daniel came to me in my office and said:
'You know I have a will don't you?' and I said to him: 'So?'" Mal recalled that Matthew
then said "Dan gave me one of those stupid grins and he walked away". Mal said, that
he recalled thinking at the time of the conversation with Matthew why Matthew did
not question Daniel further. Matthew did not recall the conversation. The Court
inferred that the time that Daniel was having this conversation with Matthew was
about 7 September 2010.
Conversations after Daniel's Death
47. On 20 September 2010, Mr Girgis sent an email to Alana and Matthew in which he
referred to a conversation he (Mr Girgis) had just had with Mr Theo Casimatis, a
solicitor of Sparke Helmore. The conversation was about whether Daniel had made a
will. In that email, Mr Girgis wrote:
"Dear Al and Matt,
I have informed Hera, Paul, Regan, Louise and Angela in person.
I have spoken to Theo this morning and the same message has been communicated
to staff that Dan has passed away unexpectedly, funeral arrangements will be
announced when available.
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Paul and co will now inform staff individually or in small groups. We will continue to
trade unless advised to the contrary.
Theo has asked if Dan has a will in place. Perhaps you can assist him with that. I
remember when Dan went to Mykonos he told me that he has a will on his laptop
and at home. However I am not aware if it has been signed.
MICHAEL GIRGIS
Managing Director".
48. Mr Girgis said that in addition to sending this 20 September 2010 email, the same day
he had a conversation with Mr Casimatis in which he said of Daniel, "I think he had a
will on his computer and a hard copy at home". He said he could not verify to Mr
Casimatis whether the deceased had told him (Mr Girgis) whether the will had been
signed.
The Toshiba Laptop Contents - Mr Snell's Findings
49. The parties jointly engaged a computer expert to analyse Daniel's laptop and to
provide expert technical evidence of his findings.
50. These three technical reports were provided: (1) mainly dealt with the creation and
editing of Will.doc; (2) mainly dealt with Daniel's last access to the computer and the
police and lawyers' access after Daniel's death; (3) mainly dealt with the printing of
Will.doc from the deceased's computer and some analysis of the contents of a desktop
computer located in Daniel's office at the restaurant.
The First Report - the Creation and Editing of Will.doc
51. After examining the laptop Mr Snell prepared his first report - 16 March 2012, which
recorded findings about how and when Will.doc had been created and dealt with by
Daniel on his Toshiba computer, apart from any detailed consideration of the issue of
printing Will.doc. His technical findings appear below, followed by the inferences
about Daniel's conduct in relation to Will.doc that the Court drew from them.
(i) The electronic copy of Will.doc found by Mr Snell on Daniel's computer was
identical to a printed copy he had been given by the parties' solicitors.
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(ii) There was no duplicate, or near duplicate, or file similar to Will.doc
elsewhere on Daniel's laptop.
(iii) Will.doc was first opened on the laptop as an untitled blank Microsoft Word
document at 7:08pm on 11 July 2009. Will.doc was created, by being
electronically saved with that particular file name, the same day, 27 minutes
later, at 7:35pm. It was last modified on 14 July 2009 at 1:35pm. The first
time that the electronic copy of Will.doc was saved was the operator's
manual saving at 7:35pm on 11 July 2009.
(iv) Will.doc had changes to it saved four times during the period between
7:35pm on 11 July 2009 and 1:35pm on 14 July 2009.
(v) Will.doc was opened for a total editing time of 34 minutes. This comprised
the 27 minutes between 7:08pm and 7:35pm on 11 July 2009 and another 7
minutes between 7:35pm on 11 July 2009 and 1:35pm on 14 July 2009. The
computer did not retain information from which it could be determined with
any more precision just when this editing time occurred.
(vi) Will.doc was last accessed, prior to Daniel's death, on 1 September 2010.
(vii) The precise form of the edits to Will.doc cannot now be determined by
expert analysis, because the track changes feature in Microsoft Word was not
enabled as the editing occurred.
(viii) Because Microsoft Vista neither updates access times nor keeps file location
history as part of the file system metadata, it could not be determined
whether Will.doc had either been copied or moved. If it had been copied,
the copy was not left on the hard drive.
(ix) Will.doc was not sent by email - either attached to an email sent via
Microsoft Outlook or Hotmail (access via http://login.live.com/).
17
(x) There is no upload or download activity specific to Will.doc suggesting that
Will.doc was either uploaded to or downloaded from the internet.
52. What did the technical findings mean? There was no evidence other than Mr Snell's
technical findings about how Daniel created and edited Will.doc. But using the
technical findings a reasonably clear picture was traced of what Daniel did with the
document. He was leaving for Mykonos on the 14 July 2009. The date was fixed
because his passport showed he arrived at Heathrow in the United Kingdom on 15 July
2009. On an evening three days before, 11 July 2009 at about 7.08pm, he commenced
to construct Will.doc, initially just as an unentitled Microsoft Word document. He
worked on the document for 27 minutes and then saved it for the first time when he
closed it at 7.35pm, apparently choosing the document title "Will.doc". The Court
found this was the time when the bulk of the text of Will.doc was likely to have been
created.
53. Between closing Will.doc at 7.35pm on the day that he created it, 11 July, and leaving
for Mykonos, Daniel spent a total of another 7 minutes in editing the document, which
he last saved at 1.35pm on 14 July 2009. He must have caught his flight to Mykonos
within 12 hours of closing the document. But just when between the evening of 11
July and the early afternoon of 14 July he did that 7 minutes of editing and how
extensive it was is not now possible to say. All that could be said was that in the
course of so editing the document, he saved his changes a further three times. It did
not appear during this period that he emailed the document anywhere. But it would
not be now determined what changes he made in the editing process and whether he
may have made copies that did not now remain on the computer.
54. This evidence tended to suggest a logical plan of completing the document right up
until just before he left to catch his flight to Mykonos. Daniel considered the
document over a period of just under three days. The recency of the computer activity
objectively supported Mr Girgis' version that Daniel told Mr Girgis on the way to the
airport that he had left a will in his computer. The co-incidence in time between his
statement to Mr Girgis and what he was doing on the computer was sufficient
18
evidence to found the inference that he was speaking to Mr Girgis about the very
document that he was then creating and which is now Will.doc.
55. Mr Snell's first report also dealt with the issue of whether Daniel printed Will.doc. But
the forensic contest between the parties revealed more detail about this issue and Mr
Snell modified the findings he made in his first report about whether Will.doc may
have been printed. In his 16 March 2012 report Mr Snell found there was no record of
the electronic copy of Will.doc being printed either to a physical or to a virtual printer.
Mr Snell also found that the metadata suggested that the electronic copy of Will.doc
was not printed. His final opinion about whether Will.doc was printed is set out below
under the heading "Mr Snell's Third Report - Was Will.doc Printed?"
The Second (Addendum .01) Report - Daniel's Last Access and Data Integrity
56. Mr Snell's first and second reports made findings about the integrity of the data on
Daniel's laptop. Mr Snell found that no relevant data was deleted from Daniel's
laptop after 19 September 2010.
57. Mr Snell added further findings in his second 11 April 2012 report, addendum.01
about Daniel's final relevant usage of the laptop and more detailed findings about the
integrity of the laptop's data after Daniel's death and before Mr Snell's technical
investigation. The report set out the chronological sequence of actions with respect to
access to Daniel's laptop and access to the electronic copy of Will.doc. The
chronological sequence Mr Snell found was: (1) 1st September 2010, a user [most
likely Daniel] accessed the laptop and opened the relevant file; (2) 18th September
2010, a user [most likely Daniel] accessed the laptop but did not open the relevant file;
(3) 7th October 2010, the police accessed the laptop and opened the relevant file; and
(4) 7th September 2011, Sparke Helmore accessed the laptop but did not open the
relevant file.
58. Mr Snell also clarified in his second report that although Daniel's laptop might have
been accessed after 1 September 2010, Will.doc was definitely not accessed after 1
September 2010. Mr Snell notes that user discretion dictates which programs or files
19
are accessed; and that after 1 September 2010, the laptop's user apparently chose not
to access Will.doc.
59. His Honour inferred from this evidence that Daniel opened Will.doc on 1 September
2010 and looked at it. He did not wish to make and save any changes that day. He
was content to leave Will.doc on his laptop as it was and as it was later found. Daniel
had not saved on 1 September 2010 any changes that he may have made that day to
Will.doc.
60. Mr Snell answered further questions in oral evidence about the copying and printing of
Will.doc from both Daniel's laptop computer and from a desktop he kept in his office
at the restaurant business.
Mr Snell's Third Report - Was Will.doc Printed?
61. Mr Snell concluded that, based on the computer's operating system, Microsoft Vista,
event logs and the metadata properties for the Will.doc file, Will.doc had not been
printed out. But Mr Snell's later view was that it was not possible conclusively to state
that the document was not printed out. But the defendants could not establish from
the expert evidence that Will.doc was printed. They relied, instead, on the evidence of
Mr Girgis and general inferences about computer users habits in dealing with
documents on computers, to have the Court infer that the document was printed.
62. Mr Snell conceded that his first report should be modified and that Will.doc may have
been printed but that any such act of printing perhaps could not now be detected
among the residual electronic data left on the computer, because Will.doc was not
saved after such printing. His cross-examination explored the technical evidence
based probabilities of whether it was printed and how and when it may have been
printed. Mr Snell's third report undertook further technical analysis and expanded his
reasoning about whether Will.doc was printed. His findings then extended to deal
with the desktop in the deceased's office.
63. Printing from the Laptop. Daniel's Toshiba laptop had a Microsoft Vista operating
system and the Microsoft Word application installed. In certain predictable
20
circumstances, Daniel's combined computer software and hardware would allow the
printing of a Microsoft Word ("MS-Word") document such as Will.doc to be recorded
in the MS-Word metadata property "Last Print Date" for the document. But in other
circumstances, even though the MS-Word document has been printed its printing
would not be recorded in the documents Last Print Date metadata. Because the Court
accepted Mr Girgis' evidence and inferred, from that evidence alone, that Daniel
printed Will.doc, it was ultimately not necessary to rest the inference of a printing on
the technical material. But the material did show that there was not a major technical
obstacle to Daniel having printed the document as Mr Girgis said he did. And it is
consistent with printing having occurred that there was nevertheless no residual
electronic trace of that printing.
64. Whether the Last Print Date metadata in Daniel's laptop recorded the printing of a
document such as Will.doc depended on the user's particular use of MS-Word. The
Last Print Date metadata would not record any Last Print Date metadata, unless
Will.doc had been saved after giving the print command.
65. MS-Word's Last Print Date metadata property recordeds the last date and time that
the document was printed. The Last Print Date metadata would only alter if the
document was saved. Whether the document was saved in turn will depend on the
user's choice. After the document is created there is no setting for the Last Print Date
metadata property. But after the user had edited the document or had used a number
of file options the user will be prompted (upon closing the file) to choose to save the
document. If the user saved the document then the Last Print Date metadata property
would be set according to the time the document was last printed. Otherwise it would
remain unchanged. If the user did not saved the document after being prompted to
do so, the Last Print Date metadata would not be saved.
66. The key relevant operating principle of Daniel's configuration of software and
hardware was that an operator manually saving changes to a MS-Word document,
cancelled any prior saving of the Last Print Date metadata; metadata which would
otherwise be retained. Thus, if a user made editorial changes to a MS-Word document
(in this configuration) and saved the document before printing, the user's manual
21
saving would erase any evidence of a prior printing in the Last Print date metadata.
But if the user made editorial changes, then printed and then saved, the Last Print
Date metadata for the MS-Word document would be retained. Put another way, the
key factor was whether the MS-Word document was manually saved before or after
the last printing of the document. If before, any prior printing of the document would
be erased. If after, the evidence of the last printing would be preserved.
67. The Court could not say from the technical evidence alone, whether Daniel, given his
capacity as a user was more likely to preserve or erase the Last Print Date in his
dealing with the document. In the range of possible computer users, Mr Snell
described Daniel as "merely an ordinary user" based on his analysis of the laptop.
Daniel was not a "power user". Nor was he a "novice". Mr Snell explained a "novice
user" as someone that used the computer for home use and did not have any business
documents on it. From the laptop's internet history, Daniel was browsing, logging on
to different internet sites, and using several of the applications on the system, for his
day-to-day use including business activities. He was a reasonably well-versed user.
But he was not a "power user". He had not altered settings of the computer's
operating system to suit his own needs. Typically, a power user would change a lot of
settings on the system. In summary, Mr Snell judged that an ordinary user, like Daniel,
would use the computer for business and personal purposes, and use a variety of the
facilities that the laptop provides.
68. It was open to the defendants to contend that Daniel did print Will.doc but that he
may have saved Will.doc before such printing, so that evidence of that printing had
not been preserved, even though printing occurred. But the Judge inferred from Mr
Girgis' evidence that the deceased did print Will.doc, probably on 14 July 2009, and
from the technical evidence, that he must have printed Will.doc after saving it on that
day.
69. But it was also possible to infer from the technical evidence what the 14 July 2009
printed copy of Will.doc must have looked like. It was identical to the Will.doc that the
police found on the laptop. and that is now in evidence. This followed from the way
that the deceased dealt with the document on 1 September 2010. Mr Snell said that
22
the deceased only accessed Will.doc, but did not save any changes he may have made
to Will.doc on that day. Its content therefore did not change from the time that it was
printed 14 months before. This became quite a significant finding in the Court's later
reasoning about whether the deceased continued up until his death to intend Will.doc
to form his will.
70. The Court accepted the whole of Mr Girgis' evidence as to what Daniel said to him on
14 July 2009. This meant that the printed copy of Will.doc was then at Daniel's home,
in addition to the soft copy on the laptop computer.
Is Will.doc an Informal Will?
71. The plaintiff sought an order for the Court to dispense with the requirements for
execution of Will.doc as a will in exercise of the Court's jurisdiction under Succession
Act, s 8.
72. The requirements for execution under Probate and Administration Act, s 18A and
therefore Succession Act, s 8 are well established: (a) there must be a document; (b)
which purports to state the testamentary intentions of the deceased; and, (c) which
the deceased intended to form his will. These principles are discussed in Estate of
Masters (1994) 33 NSWLR 446 per Kirby P and Hatsatouris v Hatsatouris [2001]
NSWCA 408, at [56] per Powell JA.
Whether Will.doc is a Succession Act, s 8 "document"?
73. The parties agreed that Will.doc is a document for the purposes of Succession Act, s 8.
But to exercise its jurisdiction the Court must be satisfied of this element. Succession
Act, s 3 provides that the definition of "document" for Succession Act, s 8 is the
meaning given to the term by Interpretation Act 1987 (NSW), s 21, which provides:-
"21 Meanings of commonly used words and expressions
"document" means any record of information, and 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, or
23
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or
(d) a map, plan, drawing or photograph."
74. The plaintiff relied on the meaning of "document" provided in Interpretation Act, s 21,
"anything from which sounds, images or writings can be reproduced with or without
the aid of anything else". An audio tape has been held to be a document within the
meaning of Interpretation Act, s 21, being something from which sound could be
reproduced with the aid of a cassette player: Treacey & Ors v Edwards; Estate of
Edwards (2000) 49 NSWLR 739 at [27] per Austin J. The plaintiff's argument was
accepted that Will.doc is "something from which images or writings can be reproduced
with or without the aid of anything else". Will.doc can be reproduced either with the
use of Microsoft Word or by printing Will.doc using Microsoft Word's command and
the operating system to print a copy of the electronic file.
75. Once Will.doc is printed out, the printed document would also be a "document" within
Succession Act, s 8, as would Will.doc itself.
Whether "Will.doc" purports to state Daniel's testamentary intentions?
76. Testamentary intentions are an expression of what a person wants to happen to his or
her property upon death: Re Trethewey [2002] VSC 83 at [16] per Beach J. In the
context of informal wills "a document in which a person says what that person intends
shall be done with that person's property upon death seems...to be a document which
embodies the testamentary intentions of that person": Re Estate of Masters (1994) 33
NSWLR 446 at 469 per Priestly JA. Furthermore, although dissenting in the decision,
Mahoney JA defined testamentary intentions as "how property is to pass or be
disposed of after...death": Re Estate of Masters (1994) 33 NSWLR 446 at 455 per
Mahoney JA.
77. His Honour concluded that Will.doc purported to state Daniel's testamentary
intentions for a number of reasons. First, the terms of Will.doc purported to distribute
the significant parts of Daniel's estate, including his real estate, motor vehicles, bank
accounts and superannuation. Daniel's gifts in Will.doc: (1) accounted for a high
proportion of the total value of his actual estate; (2) represented a well-considered
24
survey of each significant asset in his estate and disposed of many of such asset to
persons who have an existing connection with the assets they were to receive, with
the possible exception of his parents; and (3) dealt with the expected principal claims
on Daniel's bounty.
78. Secondly, the deceased saved Will.doc using the Microsoft Word "Save as" function
and in doing so gave it the Microsoft Word document title "Will.doc". The Court
inferred that Daniel selected this document name, from the many possible document
names he could have selected, for a reason. A "will" is a very commonly understood
means of recording testamentary intentions.
79. Thirdly, the deceased used the arresting words "I want to say that it was an absolute
pleasure to be part of this family in this life", to introduce the distribution of his assets.
The deceased speaks of his own life as only existing in the past. These are words of
thanks for that past. His description of the role of his parents in his life operates the
same way, "I want to say to mum and pop that I could not ask for more in a parent". A
strong inference arises from these words that the deceased intended the subject
matter that he was to enter upon in the letter as a subject matter which should apply
at his death, and not to operate as a gift during his lifetime. The document showed
other unmistakeable signs that the deceased believed he would not be alive at the
time that the document would be read. He said to his brothers and sister "thank you
for everything and every memory that I have of you all" and "I want to tell you all that I
love you all and will miss your company in every way". In his 'Ps' he thinks of his
friends, and says to his family, "I want you to tell of my friends that I love then (sic) and
will miss them all". The Judge inferred that the deceased intended that the terms of
Will.doc were to operate on his death.
80. Fourthly, Will.doc is written in the form of a letter to Daniel's family, commencing with
the words, "Dear family", and concluding with an ethereal salutation, "Love and light,
Daniel Yazbek". The testator's embedding of these poignant messages to his family
into a single letter with the detailed individual dispositions of his property, reinforced
the idea that the contents of Will.doc were testamentary in character.
25
81. Some of the considerations which supported the inference that Will.doc stated the
deceased's testamentary intentions also supported the inference that it was intended
to be his will. Moreover, the printed document must have been in the same form as
Will.doc. Therefore, the considerations that support the inference that Will.doc
satisfies this Succession Act, s 8 requirement, also supported the same requirements in
respect of the printed document.
Whether Daniel intended "Will.doc" to form his will?
82. The third Succession Act, s 8 requirement is that the deceased intended the document
to form the will.
83. Judicial authority has explained this third requirement. In a number of cases the
Courts have said this requirement will be met if there is evidence, whether in the form
of the contents of the document itself, or evidence as to the circumstances in which
the document came into being, such as to satisfy the Court that the deceased, by some
act or words, demonstrated that it was his or her intention that the document in
question should, without more, operate as his or her will: Application of Kencalo; In
the Estate of Buharoff (Unreported, NSWSC, Powell J, 23 October 1991); Hatsatouris v
Hatsatouris [2001] NSWCA 408 at [56] per Powell JA (Stein JA agreeing); Bell v Crewes
[2011] NSWSC 1159 at [43]-[44] per White J. It has been observed that the deceased's
relevant intention may exist either at the time the document in question came into
existence, or any time subsequent to the time the document in question was created
but before the death of the deceased: Bell v Crewes, at [28].
84. Whether the Succession Act, s 8 third requirement was satisfied raised issues about
the deceased's creation and management of Will.doc as an electronic document and
about the content of Will.doc as in part, a "suicide note".
85. A feature of Will.doc was there was no evidence that it was ever signed; that the
printed document was ever signed. In the application of Succession Act, s 8 this can
sometimes assist an inference that the deceased did not intend the document to
operate as a will.
26
86. Suicide Notes - the Authorities. A number of authorities have considered whether
what is in substance a suicide note might constitute a will: Costa v The Public Trustee
of NSW [2008] NSWCA 223, Public Trustee v Alexander - Estate of Alexander [2008]
NSWSC 1272 and NSW Trustee and Guardian v Pittman - Estate of Koltai [2010] NSWSC
501.
87. In Costa v The Public Trustee of NSW, the Court of Appeal considered whether the
deceased intended a suicide note to constitute his will. The Court of Appeal concluded
that the deceased did intend the suicide note to be his will. Hodgson JA gave weight
to the making of the document on a solemn unique occasion, that the document was a
last message to his parents and that the intended recipients of the document were
apparently close to the deceased: at [27]. Moreover, Hodgson JA emphasised that, if
the suicide note was no more than an emotional expression of wishes, the deceased
would not have sought to dispose of his house which was the subject of a prior will: at
[29]. Hodgson JA gave less weight to the precatory language of the will, the
deceased's apparent knowledge of the requirements for the execution of a valid will,
the lack of a signature and the form of the document (at [26]), factors which would
indicate that the suicide note document was not a will. Ipp and Basten JJA agreed with
the inferences Hodgson JA drew as to whether the suicide note constituted the
deceased's will (at [52] and [114]).
88. In NSW Trustee and Guardian v Pittman - Estate of Koltai White J considered whether
an undated document constituted the will of the deceased. The Court there found
that there were conflicting indications in the undated document of whether it
operated as a will: at [32]. White J found that the use of the words "of sound mind"
indicated that deceased intended to make a testamentary instrument: at [33]. But
several other factors outweighed that conclusion. White J found that the statement
that the deceased's mother or brother should pay her debts was more consistent with
the document being an expression of her wishes as to how her family should act after
death rather than being intended to be a will (at [34]); the gift of the stallion used
precatory and not dispositive language (at [35]); that the gifts of real property, of
debts owed to the deceased and the stallion did not deal with all her property (at
[36]); and, the looseness of language in the terms of the document (at [36]) were
27
consistent with an intention that the document not be a testamentary act.
Furthermore, White J found that the language including "this is not negotable" [sic]
and "do not disregard my last wishes" were consistent with the document being an
expression of the deceased's wishes and not emblematic of a testamentary disposition
(at [37]).
89. Similarly, in Public Trustee v Alexander - Estate of Alexander [2008] NSWSC 1272 the
issue was whether a suicide note should be characterised as the deceased's will.
White J there balanced several factors leading to the conclusion that the deceased was
expressing testamentary intentions and that the deceased intended the document to
be operative as his will. The Court found the use of dispositive language - "All my
belongings I give to you" (at [22]), that the deceased had the belief that he was leaving
his mother with property (at [22]), that the document was prepared on a solemn
occasion (at [22]), that the deceased took steps to ensure that the document would be
brought to the attention of other people (at [22]), that the letters set out the
arrangements the deceased hoped would wrap up his legal affairs (at [22]) and that
the deceased stated his wishes in relation to the disposal of his body were consistent
with the intention that the document operate as his will: at [22]. Against these
considerations, White J weighed the fact that the document was unsigned, that the
deceased did not refer to the purported will as a "will" in the note the deceased left
referring to the letters, including the purported will and that the bulk of the letter is a
narrative dealing with matters other than the disposition of his property after death:
at [23]-[24]. But White J noted that merely because a document should be
characterised as a suicide note does not mean that it cannot also be characterised as
the deceased's intended will: at [25]. His Honour found that case here. Will.doc did
send messages to Daniel's family upon his death. But that was consistent with its
record of his testamentary intentions still operating as a will.
90. Two arguments were advanced by the defendant: that Will.doc only operated as an
interim will; and that Willl.doc was only a draft.
28
Did Daniel Intend that Will.doc Operate as an Interim Will?
91. The defendants argued that Will.doc, or the printed document should be characterised
only as holding documents. Their argument was that Daniel intended that Will.doc
only stand as his will until he returned from Mykonos in 2009.
92. The law in relation to informal wills acting as interim measures is stated in Permanent
Trustee v Milton Estate of Herma Monica Brooks (1996) 39 NSWLR 30 and in Public
Trustee v New South Wales Cancer Council; Re Estate of McBurney [2002] NSWSC 220.
Those cases consider two circumstances in which informal wills acting as interim
measures may arise, being, as Hodgson J said in Permanent Trustee v Milton Estate of
Herma Monica Brooks, "(1) What if the deceased having evidenced the requisite
intention in relation to an existing document, subsequently changes that intention and
clearly manifests that change of intention without actually altering the document. (2)
What if the intention which is initially manifested is in effect, an intention that the
document be a stop gap measure, which is to apply only until the testator or testatrix
has had an opportunity to make a formal will, and the opportunity passes without a
formal will being made": Permanent Trustee v Milton Estate of Herma Monica Brooks
at 334-335 per Hodgson J and Public Trustee v New South Wales Cancer Council; Re
Estate of McBurney at [47] per Einstein J.
93. In this case, the defendants' argued that Will.doc was a mere interim measure,
intended to have effect until Daniel returned from Mykonos. But nothing either in the
terms of Will.doc or in the other evidence of how Daniel referred to it or dealt with it
suggested that he intended Will.doc should operate only until he returned from
Mykonos. Moreover, the reason as to why Will.doc was not an interim measure, was
also reasons that showed that Daniel continued up until the time of his death to state
his testamentary intentions and to form his will, within Succession Act, s 8.
94. First, the Court accepted Mr Girgis' evidence as to what the deceased said about the
document before leaving for Mykonos. Nothing in that evidence suggested that the
document would only operate as a will whilst Daniel was travelling. Overseas travel
and the possibility of encountering the unexpected can be an occasion to prompt an
29
individual to make a will. But that did not mean that the will so made must only
operate whilst the person is overseas.
95. Secondly, the internal evidence of Will.doc did not support a conclusion that it was
only a stop gap. Will.doc did not refer to the trip to Mykonos, or place any time
restriction on its effect. It had only one internal time-specific reference point, the end
of Daniel's life. It had messages within it to Daniel's family that he was unlikely to have
wanted to change.
96. Thirdly, the expert evidence was that Daniel accessed Will.doc on 1 September 2010,
about 14 months after he first created it, and did not delete it. Nor did he remove the
expressions of testamentary intention within it. He was a sufficiently sophisticated
user to either delete the document if he had wished to do so. He was quite able to
remove the testamentary character of the document without deleting it. This was a
basis to infer that he continued to regard Will.doc as his will and that it was not an
interim measure.
Did Daniel Intend that Will.doc was a draft?
97. The defendants put their argument another way, such that Will.doc only really
operated as a draft. The argument supported the defendants' wider contention that
Daniel only intended the printed (and they submitted then executed) document to
form his will.
98. The Courts have recognised that Succession Act, s 8 will not apply to draft wills. In
Estate of Masters (1994) 33 NSWLR 446 at 455F Mahoney JA said: "a document which
is in form a will will not operate as such if it is, for example, a draft or 'trial run', not
intended to have a present operation. A person may set down in writing what are his
testamentary intentions but not intend that the document will operate as a will. This
may occur, for example, in informal circumstances, in a letter or a diary or the like.
What is to be determined in respect of a document propounded under s18A is
whether, assuming it to embody the testamentary intentions of the deceased, it was
intended by the deceased as his testamentary act in the law, that is, to have present
operation as a will".
30
99. Daniel did not intend Will.doc to operate only as a draft. Nothing in the terms or form
of Will.doc suggested that it was intended only to operate as a draft. It was not
headed "Draft". It contained no internal evidence that Daniel was yet to complete or
add to any part of it. The messages to Daniel's family appeared to be well-formed final
statements. Though written in the form of a letter it did not have a street address
such as might indicate that Daniel intended to print it out and post it, possibly after
signing. Moreover, it being printed did not relegate it to mere draft status.
Conclusion - Whether Daniel Intended Will.doc to form his will
100. His Honour concluded that Daniel intended Will.doc to form his will for the following
reasons. First, Daniel named the electronic file "Will". This was his choice, not a
default option associated with saving the document. This act of naming the electronic
file also supported the second Succession Act, s 8 requirement that the document
state testamentary intentions. But it went further and supported the third
requirement too.
101. Secondly, Daniel told people that he had a "will". The tenor of the conversation with
Mr Girgis was that the will-making process was complete: "there is a will on my
computer and also one at home in a drawer".
102. Thirdly, in 2009 Daniel's imminent international travel was a reason for him to prepare
an instrument which would operate, without more, upon his death, namely a will. His
Honour inferred from the technical evidence and Mr Girgis' evidence that Will.doc was
created just before Daniel's trip to Mykonos.
103. Fourthly, Daniel typed his name on the second page of the electronic document after
the final salutation. That represented a degree of adoption of Will.doc as operative.
This effect of typing the name was reinforced by the messages of affection to his
family in Will.doc, matters which are also relevant to the second Succession Act, s 8
requirement.
104. Fifthly, whenever Daniel referred to the existence of his will, he referred to it as being,
at least, on his computer and Will.doc was found undeleted on Daniel's computer.
31
Daniel's computer was in his custody at his death; the computer was password
protected and not accessible without the password. Although the password was not
challenging to discover. Thus he had continued to keep what he told others was his
"will".
105. Sixthly, Daniel opened Will.doc just over a fortnight before his death, supporting the
inference that he then reviewed and was prepared to leave Will.doc in the place that
he had told others that his will was. He did not delete it on this occasion, nor change
its testamentary elements. He reaffirmed it as his current will by telling Matthew at
about the same time that he had a will.
106. Other matters suggest that Daniel did not intend Will.doc to form his will: the informal
language used in Will.doc; and, the words in Will.doc - "Following is the list of things
that I have accumulated over the years and would like to hand out to the follow
persons" arguably do not specifically convey testamentary intentions. Daniel also kept
printed copies of other important documents. The defendants argued this suggested
that if Daniel intended the printed copy to be his will he would have kept that printed
copy with his other important documents.
107. The Court found that Daniel intended Will.doc to form his will. Consequently, because
Will.doc was (1) a document, (2) expressing Daniel's testamentary intentions, (3)
which Daniel intended to operate as his will, the Court exercised its power under
Succession Act, s8 to dispense with the requirements for the execution of wills.
Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275
108. Vasilka Janakievska (also known as "Vasa Janakievska") ("the deceased") died on 29
May 2009. At the date of her death, she was aged 87 years. The central questions
concerning the validity of the 2004 Will, were whether the deceased validly executed
the 2004 Will; whether she had testamentary capacity, and whether that Will was
produced as a consequence of undue influence. The deceased's lack of knowledge and
approval of the 2004 Will, although not alleged, initially, by way of defence to the
validity of the 2004 Will, was relied upon as a result of a further amended Defence to
32
Cross-Claim which was filed, in Court, without opposition, on the second last day of
the hearing.
109. The first Plaintiff was named as one of the executors in each of the two Wills.
110. The deceased's estate in New South Wales, at the date of death, comprised both
movable, and immovable, property, being real estate in Rockdale ($555,000) and in
Erskineville ($565,000), shares ($571) and cash in bank ($125,496). No liabilities were
disclosed in the Plaintiffs' affidavit of executors sworn 11 July 2009. Thus, the estate,
at the date of death, had an estimated total gross value of $1,246,067.
111. The Defendant stated that the 2004 Will was made by the deceased and that it was
"the last will and testament of the deceased which revoked all previous testamentary
instruments".
112. The plaintiffs pleaded that the 2004 Will was not duly executed and/or valid, and have
the following particulars:
"(a) The deceased at the time was 82 years of age and senile;
(b) At the time the deceased had been suffering from defective memory;
(c) The deceased in December 2003 suffered a stroke that caused her to be in poor health physically and mentally; defective memory and incapable of understanding the nature and effect of the act of execution of a will;
(d) The deceased did not speak, read or write in the English language and the document purporting to be a later will does not appear to have been translated into the Macedonian language;
(e) The execution of the document purporting to be a later will was obtained by undue influence on the part of the Defendant taking advantage of the deceased's ill health, poor memory and unfit mind to misrepresent and pressure the deceased to the point where the influence was such that the execution of the purported will was not of her own volition."
113. The Plaintiffs' solicitors provided further particulars of undue influence:
"(a) That the Defendant had threatened to take court action against the deceased if she refused to transfer her property at Erskineville to him;
33
(b) That the Defendant continually harassed and demanded that the deceased transfer to him the Erskineville property;
(c) That the Defendant instructed a solicitor as to the terms of the will of the deceased without the deceased's authority;
(d) That the Defendant took the deceased to a solicitor to sign the said will;
(e) That the Defendant instructed the solicitor in relation to the preparation of the will without the consent, understanding and/or knowledge of the deceased;
(f) That the Defendant through his instructions to the solicitor caused the solicitor to forward to the deceased a letter dated 28 October 2004 which letter it will be alleged the deceased believed to be the commencement of proceedings by the Defendant that the Defendant had threatened against the deceased;
(g) The Defendant was present with the deceased and the solicitor when the will was executed and as such no opportunity was afforded to the deceased to seek confidential and independent legal advice in the absence of the Defendant;
(h) That the Defendant was aware and/or ought to have been aware that the deceased was frail, unwell, and had difficulties with her memory and particularly was not of sound mind."
114. In the further amended Defence to the Cross-Claim, the Plaintiffs relied upon the
following particulars in support of the defence of lack of knowledge and approval:
"(a) There is an absence of an appropriate translation clause in the 2004 Will.
(b) The 2004 Will did not reflect instructions given by the Defendant.
(c) The 2004 Will did not reflect instructions as were given by the deceased.
(d) To the extent the Defendant gave instructions consistent with the deceased's state of mind, he was not authorized to do so.
(e) The name of the deceased was spelt incorrectly in the introductory words of the 2004 Will.
(f) The Defendant was not authorised to give instructions as to the terms of the 2004 Will.
34
(g) The deceased did not provide instructions as to the terms of the 2004 Will.
(h) The deceased did not authorise the Defendant to give instructions for the 2004 Will.
(i) The deceased did not approve the 2004 Will.
(j) The terms of the will drafted and presented by solicitor, Dobrinka Zlatevska, did not reflect such instructions (or the tenor of those instructions) as may have been given to the solicitor by the deceased.
(k) The deceased did not understand the term 'executors and trustees' and the functions associated therewith.
(l) The deceased did not know she was signing a Will."
115. They added, as particulars of lack of testamentary capacity:
"(c) The deceased in August 2004 suffered a stroke that caused her; to be in poor health physically and mentally; defective memory and incapable of understanding the nature and effect of the act of execution of a will.
(d) The deceased was incapable of understanding the nature and effect of the act of execution of a will and/or lacked testamentary capacity."
and particulars of undue influence:
"(i) That the Will effected a substantial change to the deceased's long-standing testamentary intentions;
(j) That the Defendant was involved in procuring a will that substantially benefits him;
(k) That the Defendant had a motive for influencing the deceased to make a will in his favour;
(l) That the deceased was vulnerable and submissive to domineering behaviour;
(m) That there were irregularities in preparing the will;
(n) The Defendant attending the deceased's solicitor's office only days after the deceased attended the solicitor believing the Defendant had instituted legal proceedings against her and the Defendant making enquiries as to the testamentary intentions of the deceased at that time.
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(o) The differences in the nature of relationships with the deceased between the Plaintiffs and the Defendant."
116. Petar Janakievski was the husband of the deceased. He died in September 1993.
Probate of his Will was granted to the deceased. The whole of his estate passed to
her.
117. Pavle Petrovski was the nephew of the deceased.
118. Alexander Attapallil is a solicitor who was admitted to practice in 1998. He purchased
the firm Edward Kassis & Associates. The firm acted for the deceased, in about 1994,
following the death of her husband, to obtain Probate of Petar's Will.
119. Mr Attapallil had been the principal of the firm when the 1999 Will was prepared by a
solicitor in the firm, but had nothing to do with its preparation or execution. He did
not meet the deceased until about 2004. By that time, the firm's name had been
changed to Lexes Lawyers.
120. Gordana Bozinovska is a solicitor who completed the Legal Practitioners Admission
Board course in 2004 and was admitted to practice in February 2005. She is a lawyer
formerly admitted, and practising, in Macedonia. She worked with Mr Attapallil. She
is able to speak Macedonian and when the deceased attended upon Mr Attapallil, she
translated for them.
121. Dobrinka Zlatevska is a solicitor who was admitted to practice in 1975. She made the
acquaintance of the deceased as a member of the same congregation of the
Macedonian Orthodox Church. She had seen the deceased at Church on the main
religious festivals over the years. She and the deceased were aware of one another.
They exchanged greetings and customary pleasantries. They did not visit one
another's homes. She had never acted for the deceased, in respect of any legal
matters, prior to 2004.
122. Ms Zlatevska had been, and in 2004, was, one of the solicitors who had acted for Alek
and Katia in relation to his, or their, legal matters. In fact, Alek had retained Ms
Zlatevska's firm to act for him, at different times, from the early 1980s.
36
123. She was the author of the 2004 Will and one of the attesting witnesses of the
deceased's signature on that Will. She met with the deceased and Alek on 17
December 2004, on which day the 2004 Will was executed by the deceased.
124. The deceased and Petar arrived in Australia in about 1963, having been sponsored by
Alek. Initially, they lived in a house at Croydon Park, which Alek had purchased and
had registered in the name of Petar and his sister, Zaharia. Alek lived there with the
deceased and Petar. For some time between 1964 and 1968, the deceased and Petar
lived at a house, in Enmore, whilst they were able to save enough money to purchase
the property at Erskineville. They did this with the further assistance of funds from
Petar's share of the sale of the house in Croydon Park.
125. In about 1974, the deceased and Petar purchased a house at Herbert Street, Rockdale.
They moved into this house, together with Pavle, and then rented out the Erskineville
house.
126. In 1993, Petar became sick, and, in September 1993, he died. The deceased and Petar
had no children.
127. Upon her husband's death, the deceased became the sole legal owner of the Rockdale
property and the Erskineville property.
128. Following her husband's death, the deceased lived, alone, in the Rockdale property.
129. Mr Attapallil met the deceased, initially, in about September 2004, when she sought
advice regarding converting the title of the Erskineville property from Old System to
Torrens title. At that time, she had said to him words to the effect that a Torrens title
is much easier to deal with than an Old System title and that that was the modern way
of doing things.
130. Following the making of the 2004 Will, Alek did not see the deceased again. He did not
visit the deceased, at any time, whilst she lived with Pavle, he explained, because of
the state of his relationship with Pavle's daughter. Katia last saw the deceased a few
days prior to the making of the 2004 will (on 12 December 2004), at a christening, held
37
in the Macedonian Church. They had lunch together and Alek and Katia drove the
deceased home.
131. In January 2005, the deceased suffered a stroke. When she was released from
hospital, she lived, for the rest of her life, with Pavle and his wife.
132. From the time of her discharge from the hospital, the deceased was, essentially, chair
bound and bed-ridden and required assistance with all activities of daily life, which
assistance was provided by Pavle and Loza and members of their family. Following the
stroke, the deceased lacked testamentary capacity.
The Deceased's Wills
133. In the 1999 Will, a one-page document (with a back page), the deceased appointed the
Plaintiffs as executors. The essential terms of the Will provided:
(a) for a revocation of all former testamentary dispositions;
(b) a specific devise of the Rockdale property, as well as the furniture,
furnishings and contents to Elli (referred to in the Will as Elica) absolutely;
(c) a specific devise of the Erskineville property, as well as the furniture,
furnishings and contents, to Gordana absolutely;
(d) a bequest of the rest and residue of the estate, including the proceeds of any
life insurance policy, after the payment of debts, funeral and testamentary
expenses, to Pavle absolutely;
(e) in the event that any beneficiary died before the deceased leaving children,
then those children, on attaining their respective majorities, would take
equally the benefit that their parent would otherwise have taken.
134. The Will had the following translation and attestation Clause:
"The Testatrix not being able to read or speak the English language this Will was
read over to her translated into the Macedonian language by John Stojcevski of ...
who then informed us that the Testatrix has said that she approved of the Will. It
38
was then signed by the Testatrix in our presence and attested by us in the presence
of her and each other"
135. The attesting Witnesses were identified as John Stojcevski, Nicholas Pertsoulis and Eva
Harb. The back page identified solicitors, Edward Kassis & Associates, of Rockdale.
136. The circumstances surrounding the preparation and execution of the 1999 Will were
not in dispute.
137. In the 2004 Will, which was a two-page document (with a back page), the deceased
revoked all former Wills and testamentary dispositions and appointed Alek and Pavle
as joint executors and trustees. She left the whole of her estate to the executors, on
trust, to pay debts, funeral and testamentary expenses, probate and estate duty, and
any other duties payable in consequence of the deceased's death, and then provided:
(a) a specific devise of the Erskineville property, to Alek "because he helped me
out and it was my husbands (sic) wish";
(b) a specific devise of the Rockdale property to Pavle;
(c) a gift of the rest and residue of the estate to Alek and Pavle "who shall
survive me as tenants in common in equal shares";
(d) if either Alek or Pavle failed to survive the deceased, then the share to which
he would have been entitled had he survived, passed to his surviving child, or
children.
138. The Will then provided "I wish D Stanefska & Associates to be employed by my
executors as their solicitor in connection with the execution of the provisions of this
Will and any codocil (sic) to it".
139. The attestation Clause, in the 2004 Will, stated:
"Signed by the Testatrix as and for her last Will and testament in our presence and
attested by us in the presence of her and of each other."
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140. The attesting Witnesses were Ms Zlatevska and Ms Bogdanovski. The deceased and
each of the two attesting witnesses signed each page (except the back page).
Circumstances surrounding the preparation of and execution of the Wills
141. Hallen AsJ was satisfied that the circumstances surrounding the preparation, and the
execution, of the 1999 Will, were as follows:
(a) The deceased requested Elli to make an appointment to see her (the
deceased's) solicitor, who was a solicitor at the firm, Edward Kassis & Co, for
the purpose of making a Will.
(b) After confirming the name of the deceased's solicitor, Elli organised the
appointment for, and attended with, the deceased upon Mr Pertsoulis. She
translated the instructions given by the deceased to Mr Pertsoulis. However,
the Will was not prepared and executed immediately. Mr Pertsoulis stated
that he "will need an independent witness and translator to go over the Will
again".
(c) Elli took no further part in the making, or execution, of the 1999 Will.
(d) Following her meeting with the solicitor, the deceased telephoned John
Stojcevski and informed him that she had given instructions for the
preparation of a Will and of Mr Pertsoulis' request for an independent
witness and translator. Mr Stojcevski agreed to attend, with the deceased,
upon the solicitor.
(e) Mr Stojcevski did attend, with the deceased, at the offices of Edward Kassis &
Associates, on 15 April 1999. The offices were situated above the
Commonwealth Bank at Rockdale. He recollects that the 1999 Will had
already been prepared when he arrived. Mr Pertsoulis read the contents of
the Will, in English, paragraph by paragraph, and as each paragraph was read,
Mr Stojcevski translated what he had heard read from the English language
40
to the Macedonian language. The Will was then signed by the deceased and
by each of the other persons whose signature appears on the Will.
(f) The deceased explained why she did not leave the whole of her estate to
Pavle. She confirmed that since he had told her that he would probably have
to pay "lots of taxes and you would leave everything you have to the girls
anyway", she had left part of her estate to Gordana and Elli.
142. In relation to the surrounding circumstances for the preparation of the 2004 Will, His
Honour found:
(a) In about October 2004, Alek went to the office of D Stanefska & Associates
and had a conversation with Ms Zlatevska.
(b) Ms Zlatevska prepared a draft Will, which, at least in part, was based upon
what she had been told by Alek.
(c) Ms Zlatevska caused a letter, dated 28 October 2004, addressed to the
deceased, at the Rockdale address, to be sent, which stated, in English:
"... [Y]our Will has now been prepared in accordance with your instructions and
awaits your signature.
Kindly arrange an appointment to attend our office at your early convenience for the
purpose of completing this document."
(d) A copy of the Will that had been drafted by Ms Zlatevska was not enclosed
with the letter.
(e) Subsequently, Elli telephoned Ms Zlatevska to discuss the contents of the
letter and the draft Will, but Ms Zlatevska informed her that she could not
speak to her, but only to the deceased, about these matters. The deceased
did not speak to her at this time.
(f) In mid-to-late November 2004, Ms Zlatevska telephoned the deceased's
home. She spoke to Robert saying that she wished to speak with the
deceased who "has to come to my office to sign something". Robert did not
41
allow Ms Zlatevska to speak with the deceased on this occasion referring to
the deceased being "not a well person, old and scared", and a person who
had her own solicitor.
(g) Shortly after the conversation with Ms Zlatevska, Robert telephoned Ms
Zlatevska's office to ascertain what the deceased was required to sign, but he
was not able to speak with her.
(h) A few weeks later, on 17 December 2004, the deceased executed the 2004
Will.
(i) Alek went with the deceased to the appointment, at the offices of D
Stanefska & Associates. He remained, and was present, whilst a conversation
occurred between the deceased and Ms Zlatevska. Also present was Ms
Zlatevska's secretary, Julie. She remained present in case amendments to the
Will drafted by Ms Zlatevska were required.
(j) The deceased and the two attesting witnesses signed the 2004 Will at the
conclusion of this conference, which was thought to have lasted at least 45
minutes.
(k) Following the execution of the Will, Ms Zlatevska sent a memorandum of
costs for the work done to Alek and he paid the amount of those costs.
(l) The Plaintiffs did not know of the events of 17 December 2004, until after the
death of the deceased. Whilst they were aware that a will had been
prepared by Ms Zlatevska, they were never informed, during the lifetime of
the deceased, that the deceased had executed the 2004 Will.
143. On 3 December 2004, the deceased went, with Pavle, to Lexes Lawyers, at Rockdale.
She conferred with Mr Attapallil whilst Pavle waited for her outside his office. Ms
Bozinovska was present and she translated the conversation from the Macedonian
language into the English language, and vice versa, as Mr Attapallil did not speak
Macedonian.
42
144. In the conference, the deceased referred to, and showed, Mr Attapallil, the letter
dated 28 October 2004 that she had received from D Stanefska & Associates. He gave
the following evidence:
"6. I recall a few months later on 3 December 2004 I had a conference with the late Vasa Janakievska who attended my office with her nephew Pavle Petrovski. I took Mrs. Janakievska into my office and with the assistance of my employed Solicitor, Gordana Bozinovska who translated in the Macedonian Language I conferred with Mrs. Janakievska. Mrs Janakievska said to me:
"I got a letter from Stanefska, she's my brother-in-law's Solicitor. She is suing me for my house".
I said:
"Let me see".
I then read the letter which was translated by my employed Solicitor, Gordana Bozinovska. The letter was requesting Mrs. Janakievska attend Stanefska's offices to sign a Will that had been prepared by her. I said:
"This is not a Court document, no one is suing you, it's a letter from the Solicitor who wants you to go to her office to sign a Will. Did you ask her to make a Will for you?"
Mrs. Janakievska said:
"No I didn't, my brother-in-law is suing me over one of my houses. He said that if I don't give it to him he's going to get Stanefska to take me to Court".
I said:
"Do you have a Will and do you want to change your Will?"
Mrs. Janakievska said:
"I have a Will and I've let (sic) everything to my nephew. Pavle's family, they looked after me and they will get everything. I do not want to change any Will".
I said:
"Your houses are yours, you can leave them to whoever you like. In some cases people can make a claim on your Estate but if that was to happen you should come and see me straight away. Nobody is allowed to push you to make another Will. If he threatens you call the Police or call me".
I then escorted Mrs. Janakievska out and in the reception area Mr. Pavle Petrovski said to me:
"Did you tell her that her house is hers and she can do what she likes with it? can (sic) her brother-in-law take her to Court for the house?"
43
I said:
"As I've explained to your Aunty, her houses are hers and she can do what she likes with them. In some cases people can claim against an Estate but if that was to happen then you should come and see me immediately"."
145. On about 6 December 2004, Alek and Katia attended, without an appointment, at
Lexes Lawyers. They spoke, in the Macedonian language, with Ms Bozinovska first, as
Mr Attapallil was not there. She gave the following evidence:
"12 .... Whilst Mr. Nasev and his Wife were waiting for Mr. Attapallil in reception I introduced myself and spoke to Mr. And Mrs. Nasev in the Macedonian Language.
During our discussions I became aware that Mr. Nasev and his Wife were there to see Mr. Attapallil in relation to Mrs. Janakievska who was in the office only a few days before. Mr. Nasev amongst other things said words to me to the effect:
"Vasa has been ringing us constantly saying that she wanted to change her Will and prepare a new Will leaving one of her properties to me".
I did not respond to this comment. He then said:
"I got Stanefska to prepare the Will. I don't like to deal with Stanefska anymore. She stuffed up some work for me which cost me over $30,000.00. She told me to make a Claim against her under her insurance but I didn't. Although I didn't want to have anything more to do with her there was no one else in Rockdale who I knew that spoke Macedonian and so I went to her. She agreed to prepare the Will. She has prepared it and now wants Vasa to come in to her office to sign the Will".
I did not make any comment or reply to what Mr. Nasev had said.
I recall Mrs. Nasev who was with him saying to me words to the effect:
"We just want this to be finalised. The other day we were having dinner with Family and we were contacted by Police. I don't want to have any further dealings with the Police, her or that Family anymore"."
146. After Mr Attapallil arrived, they conferred with him. Ms Bozinovska was also present.
They showed Mr Attapallil the exemplification of Probate relating to Petar's Will, but
refused to allow him to take a copy.
147. Mr Attapallil made a contemporaneous file note of their attendance on 6 December
2004. Its contents were instructive:
"6/12/04. Alek Nasev and Mrs Nasev came to see me. Says Vasa rings you constantly because she can't sleep because she wants to do a new will giving property to Alek Nasev, brother of her husband.
44
148. Alek and Mrs Nasev want the will to be original as her husbands (sic), i.e., they want
one house to be given to Alex, and as he paid for it, or or give to it to the church."
149. Professor Daniel Chan's evidence, following cross-examination, was that the deceased
had long standing hypertension that could cause amyloid angiopathy and intracerebral
haemorrhages. These changes could occur subtly, resulting in cognitive impairment,
which impairment may not have been noticed by lay persons. He accepted that on 17
December 2004, she was very depressed and physically unwell, with infections in the
left middle ear and left eye. He said that having an eye and ear infection was likely to
affect cognitive function of an elderly person who had some cognitive impairment. If
she was a Serepax user, this would be likely to have further impaired her capacity to
understand the contents of the 2004 Will. Within 2 weeks or so, she suffered a
significant stroke. He thought that this was probably preceded by a brain bleed, 1 or 2
days before the stroke.
150. Professor Chan also accepted there was no evidence that the deceased's mental
capacity was actually clearly tested on 17 December 2004. When asked about her
being "very depressed" on 17 December 2004, he answered that "a person who is very
depressed can actually present with cognitive impairment that is sometimes very
difficult to separate out from acute confusion or delirium ...". He thought that on that
day, "there probably was acute delirium happening" but that another diagnosis might
be that "she could be very depressed with all the stressors happening around her".
151. Professor Chan's evidence, overall, raised, sufficiently, that the deceased had some
cognitive impairment that is relevant to the determination of the question whether
she had testamentary capacity.
152. Pavle gave evidence that, in the last three months of 2004, the deceased appeared
extremely stressed, nervous and anxious. He described this as being "put under
pressure".
45
Solicitor's Duties in Will-Making
153. Because it played a major part in the submissions, ht e Court said something about the
duties of a solicitor who takes instructions for and who has a will executed.
154. In Jarman on Wills , 8th ed (1951) London, Sweet and Maxwell, Vol. 3, page 2073, it is
said:
"Few of the duties which devolve upon a solicitor, more imperatively call for the
exercise of a sound, discriminating, and well-informed judgment, than that of taking
instructions for wills."
155. In Pates v Craig & Anor; The Estate of Cole (NSWSC, 28 August 1995, unreported),
Santow J, made some general comments regarding circumstances where a legal
practitioner receives instructions from an established client to prepare a will on behalf
of another person, where that client is to be principal, or major, beneficiary under the
proposed will and, in particular, where the client instigates that will. His Honour said:
"There do not appear to be rules of professional conduct specifically governing the
first situation. Thus r 22 of the Professional Conduct and Practice Rules deals with
situations where a solicitor receives instructions to prepare a will in which that
solicitor or an associate of that solicitor is to receive a substantial benefit. Whatever
'associate' may mean, it probably falls short of including a conventional
solicitor/client relationship. Reg 28 of the old Legal Profession Regulation 1987 is to
a similar effect. That does not, however, mean that no ethical considerations arise
in such circumstance. The essence of a solicitor's fiduciary obligations to a client is
the unfettered service of that client's interests. This will require the solicitor to
avoid acting for more than one party to a transaction where there is a likelihood of a
real conflict of interest between the parties. As Wootten J stated in Thompson v
Mikrelsen (Supreme Court of NSW, 3 October 1974, unreported), in the analogous
context of conveyancing transactions: 'The reasonable expectations of a client
instructing a solicitor [is] that the solicitor will be in a position to approach the
matter concerned with nothing [in mind] but the protection of his client's interests
against [those] of another party. [The client] should not have to depend on a person
who had conflicting allegiances and who may be tempted either consciously or
unconsciously to favour the other client, or simply to seek a resolution of the matter
in a way which is least embarrassing to himself.'
The same considerations may arise in the context of preparation of wills. It is clear
that a conflict of interest may arise between the interests of an intended principal
beneficiary seeking to procure a will in his, or her, favour and the interests of the
testator. The testator should be assisted by his legal or her legal adviser only in
46
making a valid will. This means, inter alia, that the natural objects of the testator's
bounty must be capable of being appreciated, by the testator, even though the
testator may choose to exercise that capacity so as to omit such objects or disfavour
them. In such circumstances, the legal practitioner would be expected to give
advice to the intended testator on a number of matters. Some of these may be
potentially contrary to the interests of the proposed beneficiary. The legal
practitioner should take such steps as are reasonably practicable to enable that
practitioner to give proper consideration to any matters going to the validity of the
proposed will and then should advise and act in conformity with that consideration.
Such a conflict will especially arise where there is a reason to fear lack of
testamentary capacity on the part of the testator by reason such as fragility, illness
or advanced age. Further, in such context, the solicitor could not prudently rely on
the informed consent of both clients to act in such a transaction where their
interests conflict, there being doubts about the capacity of the testator to give such
informed consent...
There is an additional consideration, not dependent on the question of conflict of
interest. That is, the duty of the solicitor taking instructions from an obviously
enfeebled testator, where capacity is potentially in doubt, to take particular care to
gain reasonable assurance as to the testamentary capacity of the testator. It is
clearly undesirable to attempt to lay down precise and specific rules as to what that
necessarily entails for every case. Such rules may lead to a perfunctory, mechanical
checklist approach. What should be done in each case will depend on the apparent
state of the testator at the time and other relevant surrounding circumstances. Any
suggestion that someone, potentially interested, has instigated the will, whether or
not a client of the will draftsperson, should particularly place the solicitor
concerned, on the alert. At the least, a solicitor should ask the kind of questions
designed to probe the testator's understanding of the basic matters which connote
testamentary capacity... For this purpose, and subject to the earlier caveat
concerning checklists, the advice concerning the taking of instructions contained in
Mason & Handler's "Wills, Probate and Administration Service NSW (Butterworths)
[at 10,019] is a useful guide:
'[10,019] TAKING OF INSTRUCTIONS - ISSUES OF TESTAMENTARY CAPACITY
If any doubts do rise as to the testator's capacity the following procedures on the
taking of instructions will assist significantly in the avoidance of potential problems
for the estate as well as for the solicitor in the discharge of his duties:
(i) The solicitor who is to draw the will should attend on the testator personally
and fully question the testator to determine capacity - the questions should
be directed to ascertain whether the testator understands that he is making
a will and its effects, the extent of the property of which he is disposing and
the claims to which he ought to give effect;
47
(ii) One or more persons should be present, selected by the solicitor having
regard to their calibre as witnesses if required to testify whether the issue of
capacity is raised. Where possible, one of the witnesses should be a medical
practitioner, preferably the doctor who has been treating the testator and is
familiar with him, who should in making a thorough examination of the
testator's condition, question him in detail and advise the solicitor as to the
capacity and understanding of the testator. The presence of other persons
at this time would require the testator's consent;
(iii) A detailed written record should be made by the solicitor, the results of the
examination recorded by the medical practitioner and notes made by those
present.
If after careful consideration of all the circumstances the solicitor is not satisfied that
the testator does not have testamentary capacity he should proceed and prepare
the will. It is a good general practice for the solicitor who took instructions to draw
the will and be present on execution and this practice should not be departed from
in these circumstances. On execution, the attesting witnesses should, where
possible, come from those persons (including the solicitor) referred to above who
were present at the time of instructions and, again, as at every stage, detailed notes
of the events and discussions taken.'
If those questions and the answers to them, leave the solicitor in real doubt as to
what should be done, other steps may be desirable. This may include obtaining a
more thorough medical appraisal or, if the testator declines, considering whether
the will can be properly drawn, should assurance on testamentary capacity fail to
satisfy the test just quoted."
156. In Nicholson v Knaggs , Vickery J, at [664], recommended a "considered and
appropriately structured interview with the testatrix" and emphasized 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' (at [387])". Hallen AsJ agreed with this approach.
157. The Court was satisfied that Alek, alone, had given the initial instructions to Ms
Zlatevska, which were used by her to prepare most of the draft Will, and that he had
done so prior to 28 October 2004, and was not satisfied that he had been asked to do
so, then, by the deceased. There had been no evidence, given by Alek, as to any
conversation he had with the deceased, in which she had requested him to give
instructions to Ms Zlatevska to prepare a will, whether in the form of the 2004 Will or
otherwise.
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158. The letter dated 28 October 2004, forwarded to the deceased, by D Stanefska &
Associates, made clear that instructions for a will had been provided to her, and that a
draft had been prepared in accordance with those instructions. Alek could not identify
any other person who could have provided instructions to Ms Zlatevska at that time.
159. Importantly, Ms Zlatevska, herself, gave evidence of such a conversation with Alek.
She says:
"...
In approximately October 2004 Mr Nasev came to my office. He said words to the
effect:
"I am the brother of Petar Janakievski who is now deceased. Petar and his wife
Vasilka had the same wills. Vasilka made a new will after Petar died but now wants
to go back to what they originally had. She wants to change her will. It is worrying
her that she has not left me anything. She told me what she wants in her new will."
160. There then followed some discussion which I cannot particularly recall regarding an
earlier will that the deceased had made."
161. Ms Zlatevska also states that she "prepared a draft will based upon what Mr Nasev
told me". That draft must have been prepared at, or about, the time of the letter
dated 28 October 2004, as it is referred to in that letter.
162. It was clear that any instructions for the 2004 Will given to Ms Zlatevska were given by
Alek and by nobody else. The deceased did not request him to give any instructions to
Ms Zlatevska.
163. Importantly, Alek's evidence on this topic was inconsistent with the evidence of Dr
Mihajlov:
“In this period subsequent to her husband's death, Mrs. Janakievska would often
discuss with me her personal affairs including a constant and regular reference to
her husband's brother pressuring her to give property she owned to him. She would
often say to me words to the effect:
"My brother-in-law is pushing me to give him one of my houses. He keeps telling me
that because Petar and I didn't have kids one of the houses should go to him and the
49
other one I could do whatever I liked with and give it to my side of the family. He
keeps saying that he will take me to Court and will take my property off me"."
164. Alek's evidence was also inconsistent with Pavle's evidence, which the judge accepted
regarding a conversation that he had with Alek about going to a lawyer "to organize
for the old lady to transfer the houses, Rockdale to you and Erskineville to me".
165. It was also inconsistent with Robert's evidence that he had overheard Alek suggesting
to the deceased that she sell the Erskineville property and give him the proceeds of
sale, so that she could apply for the pension.
166. Another aspect of Alek's evidence which the Court did not accept relates to his alleged
lack of concern about whether the deceased would leave the Erskineville property to
him. It seems clear, from all of the evidence, that he was very concerned to receive
this property. His efforts to achieve this included repeated requests, to the deceased,
a conversation with Pavle about ensuring this result, giving instructions to a solicitor to
prepare a Will, and as will be seen, taking the deceased to have that Will executed. In
my view, he was determined not to let the matter rest, which he did, only after the
execution of the 2004 Will.
167. Alek's evidence about the circumstances in which he came to go with the deceased to
the office of Ms Zlatevska on 17 December 2004: He said that he was sitting in
Rockdale drinking coffee, when John Sturevski approached him and said that the
deceased was looking for him. He went to find the deceased, which he did, at the local
Chemist shop, and she said that she had come to Rockdale to pick up some medicines
and that she would "like him to come with me to see Dobrinka". The clear thrust of his
evidence was that this was an unplanned, and a somewhat spontaneous, meeting with
the deceased, and that he had accompanied her to the offices of the solicitor, at her
request.
168. This was inconsistent with Ms Zlatevska's evidence, which is to the effect that an
appointment had been made for the deceased to attend the offices of D Stanefska &
Associates at 1:00 p.m. on 17 December 2004 (as disclosed on the page of her diary
for that date). She thought that Alek had made the appointment.
50
169. Alek's apparent lack of interest about what had occurred at the conference on 17
December 2004, also provided a curious feature of his evidence, in this regard:
"18. I accompanied Vasilka to the offices of D. Stanefska and Associates. I think we
arrived sometime mid morning. Dobrinka sat in one chair, the secretary sat or stood
next to Dobrinka, Vasilka sat on one chair and I sat on the other. I did not take part
in the conversation. I considered it was a matter for Vasilka. I sat silently and did
not pay attention to what was being discussed. I do recall that Dobrinka asked a
number of questions in Macedonian and I do recall that at one stage a document
was produced by either Dobrinka or the secretary."
170. The fact that he is unable to give any evidence about what was discussed in the
conference on 17 December 2004 did not assist his case.
171. This led the Court to find:
(a) The deceased did not give instructions to Alek to have a will prepared for her;
(b) The deceased did not give any instructions to Alek about the terms of any
Will;
(c) The deceased did not request Alek to convey any instructions to Ms
Zlatevska, which instructions were included in the 2004 Will;
(d) Alek's instructions for the preparation of a Will were given without the
knowledge or approval of the deceased;
(e) Alek did not give any instructions to the solicitor as to some parts of the 2004
Will, namely the substitute beneficiary clause and the clause relating to the
deceased's wish to have D Stanefska & Associates act;
(f) The deceased did not request Alek to accompany her to the office of the
solicitors on 17 December 2004;
(g) It was Alek who made the appointment with the solicitor at 1:00 p.m. on 17
December 2004 and he took the deceased to the office of the solicitors on
that date;
51
(h) Alek was very keen to have the deceased leave the Erskineville property to
him and to ensure that a Will was prepared that would achieve this;
(i) Alek had many conversations with the deceased in which he requested her to
leave the Erskineville property to him and the Rockdale property to Pavle;
(j) Once the 2004 Will was executed by the deceased, Alek and Katia did not
ever see her again.
(k) In the will-making process, he consistently put his own interests ahead of the
deceased's.
172. Ms Zlatevska did not give any evidence of any usual, or regular, practice in relation to
the way in which she took instructions, drafted, or had the wills she had drafted,
executed. Nor did she give any evidence of a practice in relation to questioning an
elderly person prior to a will being executed, by for example, asking questions that
would elicit general, or other, knowledge. She was not asked any questions about her
knowledge, in 2004, of Banks v Goodfellow (1870) LR 5 QB 549 and the Court did not
know whether she had "the Banks v Goodfellow tests at the front of her mind"
(Hutley's Australian Wills Precedents, 7th ed, (2009) LexisNexis Butterworths at [1.14]).
She gave no evidence of having taken any special precautions when seeing the
deceased on 17 December 2004.
173. She did refer to discussing "the usual sort of pleasantries" and "common courtesies"
with the deceased. How long this lasted is not clear. In any event, other than
enquiring about her state of health, Ms Zlatevska did not state, with specificity, what
had been discussed, or how the deceased responded to any questions asked. Whilst
she may have met the deceased in Church, this was not a case in which instructions for
a contested will were taken by a solicitor who was very familiar with the deceased.
174. Ms Zlatevska did not say that what she spoke with the deceased about was designed
to test the deceased's cognitive powers, or was otherwise for the purpose of
ascertaining her testamentary capacity. She did not say that the deceased's responses
led her to form the view that she ultimately expressed. One might have expected the
52
evidence of the solicitor relying upon such pleasantries or courtesies, if relied upon to
determine capacity, to be more expansive about what had been said.
175. Ms Zlatevska gave her oral evidence reasonably confidently and clearly. She stated
that she considered herself experienced and competent in drafting wills. She also gave
evidence that she had drafted many wills for people whose first language was not
English. From the mid to late 1990s, she had commenced to draft wills for clients of
her firm, and that she had drafted about 50 wills per year.
176. The contemporaneous documents that formed the contents of her will file, which had
been the subject of a subpoena to produce, were sparse. The documents produced
were a draft Will (in the form that was subsequently signed by the deceased) which
had been prepared following the instructions given to her by Alek, a copy of the letter
dated 28 October 2004 that she had written, and caused to be sent to the deceased,
one file note (consisting of two pages, the contents of which I shall set out in full), a
copy of one page of a practice diary that revealed that her conference with the
deceased, at which conference the 2004 Will was executed, was to occur at 1:00 p.m.
on 17 December 2004, and a letter to the Registrar of this court under cover of which
the copy of the diary page was enclosed.
177. There was no file note of the instructions given to her by Alek in October 2004. This
was despite Ms Zlatevska acknowledging that it was "good practice" to create a file
note in the context of taking instructions for, and the execution of, a will.
178. On this topic, Ms Zlatevska's evidence was that the initial instructions came from Alek
to her about what the deceased wanted in her will. And as Ms Zlatevska read the will
to the deceased, she did not disagree with its contents.
179. There was nothing in Ms Zlatevska's affidavit that fleshed out any enquiries she made
of Alek, or the deceased, to demonstrate how Alek had helped the deceased out, or
what her husband's wish had been. She said that the deceased said "He helped us
initially and then later helped with the purchases. He helped with the paperwork." No
investigation of the extent, context, or the time when these matters occurred, appears
to have taken place.
53
180. The deceased said "she wasn't feeling right about having changed the will that she had
made with her husband". Ms Zlatevska made no enquiry to confirm whether "Petar
and his wife, Vasilka, had the same wills". (There was no evidence at the hearing of
any will that the deceased had made with her husband, or that the deceased and her
husband had ever had mirror wills.)
181. In relation to the deceased's "husband's wish", Ms Zlatevska acknowledges having
seen the exemplification of Probate of Petar's Will on a date after she prepared the
draft of the 2004 Will (inferred after 9 November 2004, which is the date the
exemplification bears) but before 17 December 2004, the date on which the 2004 Will
was executed. Despite Clause 3(ii), which had been inserted on instructions from Alek,
she did not pay close attention to the terms of Petar's Will, which, did not make a
specific devise of the Erskineville property to Alek or of the Rockdale property to Pavle.
182. What is said to be the contemporaneous file note of the events that occurred on 17
December 2004, which is in Ms Zlatevska's handwriting, is in the following form:
"FILE NOTE: 1.00PM 17 DECEMBER 2004
Conference Mrs Vasilka Janakievska and Alek.
Confirmed her telephone instructions, showed me her medicare card.
Does not receive pension. Signed Will
Discussed Will want us (sic) place in safe custody
Do not write to her home or give anything to anyone."
183. The most curious feature about the file note is that Ms Zlatevska accepted that she
had never had any telephone conversation with the deceased, and that the reference
"Confirmed her telephone instructions" should not have been written in it.
184. Mr Dubedat's evidence was that the words "Confirmed her telephone instructions"
were written at a later time than the words "or anything". She admitted that it was
probable that the words had not been written on the file note on the date it bears, as
she was well aware, then, that she did not have any telephone conversation with the
deceased. She was unable to explain when, or the circumstances in which, the words
54
were written on the file note. She could not explain, otherwise, how those words
came to be written by her in the file note. She agreed that it would be unsafe to rely
on the accuracy at least of that part of the file note.
185. Ms Zlatevska also acknowledged that she had known for some time that the file note
was inaccurate, at least to the extent that it referred to confirming the deceased's
telephone instructions. She was unable to explain why, despite having sworn an
affidavit as recently as 29 September 2011, in which affidavit she specifically dealt with
aspects of the file note, she had not corrected this error.
186. Importantly, the file note lacks almost all of the details that Ms Zlatevska was able to
include in her affidavit sworn on 11 May 2010, that is almost five and a half years after
the event and in her evidence in the witness box, almost seven years after the event.
The file note does not even include a statement to the effect that she translated the
contents of the 2004 Will to the deceased. (I note also, in this regard, that the 2004
Will does not include any similar statement as appeared in the 1999 Will to the effect
that the Will had been translated to the deceased before it had been executed by her.)
187. The only reference to the deceased's knowledge of her assets in the file note relates to
the deceased not receiving a pension. Yet, Ms Zlatevska's affidavit refers to the
deceased informing her that she had two properties, one in Erskineville and one in
Rockdale (that she lived in) and money in the bank. I think it is more probable that
Alek had provided this information to her.
188. There was no evidence, in the affidavit, of any enquiry as to the value of either
property or how much money was in the bank.
189. There was nothing about persons who had a claim on the bounty of the deceased in
the file note. In her affidavit, however, Ms Zlatevska was able to state that the
deceased, in answer to the question "Are there other people whom you might wish to
benefit", nominated only Pavle, "... because he has been my life, I want him to have
the same share" as Alek. Later, the deceased had said that Alek "deserved something
because he is my late husband's brother".
55
190. There was no mention of any of Pavle's daughters, two of whom had been
beneficiaries named in the 1999 Will.
191. The letter dated 28 October 2004 was written in English. Ms Zlatevska took no steps,
prior to sending that letter, to ascertain whether the deceased could, in fact, read
English. More significantly, it referred to "your instructions" when, clearly, as
acknowledged by her, the only instructions that she had received about the contents
of the draft Will had been given to her by Alek. It was not until 17 December 2004,
that she even spoke with the deceased about a will.
192. Ms Zlatevska gave evidence that she was aware that the deceased had made a will
with another solicitor. Robert's evidence about his telephone conversation with Ms
Zlatevska also informed her about the deceased's age and state of health at some
time before 17 December 2004. Alek, too, informed Ms Zlatevska that the deceased
had a solicitor who could look after her, had not identified the solicitor but had told
her where that solicitor's practice was. At the meeting with the deceased, Ms
Zlatevska says that she was told by the deceased that she had another will that she
had prepared with another solicitor.
193. Ms Zlatevska took no steps to ascertain whether what she had been told was correct
prior to, or even at, her meeting with the deceased. She made no attempt to ascertain
the identity of the deceased's solicitor or to obtain a copy of any prior will that the
deceased had made. She did not even ask when the prior will had been made. She did
not seek to ascertain the identity of the executors named in that will. When she asked
the deceased to identify the beneficiaries named in that will, the deceased was
"sketchy with details". Whether any beneficiary had a continuing claim upon the
bounty of the deceased was not explored.
194. Ms Zlatevska said that the deceased had said that she would like Alek "to come in".
She does not say that she provided any explanation to the deceased of the reasons
why, in the circumstances, he should not. She also said "I spoke to them in
Macedonian".
56
195. Ms Zlatevska said that the deceased had told her that Alek had not been provided for
in her prior will. She said that the deceased's "only concern seemed to be that she had
left Mr Nasev out of something, his entitlement". Again, at this point, she did not
suggest to either the deceased, or to Alek, that even though the deceased might have
wanted him with her during the discussions, he should wait outside so that she could
confer with the deceased alone.
196. Ms Zlatevska did not reasonably investigate the nature of any prior wills of the
deceased and/or the reasons why the deceased wished to change her Will. Speaking
with Mr Attapallil might have presented a different picture and provided her with
more information upon which she could obtain instructions from the deceased.
197. She took no steps to ascertain whether the deceased was suffering from any medical
condition that might affect her capacity. Her conversation on this topic appears to
have been limited to the enquiry "How are you" as part of the "general pleasantries".
Ms Zlatevska did not enquire whether the deceased was under the care of any
particular doctor, when she had last seen a doctor, or whether she was taking any
medication. She acknowledged that the deceased was "elderly".
198. In discussing the contents of the Will with the deceased, Ms Zlatevska appears to have
been satisfied with asking the deceased whether that was what she wanted (after
reading out the clause) and with the deceased nodding, or indicating affirmatively.
She gave oral evidence that the deceased, apart from nodding, only said "that's right"
in relation to the remainder clause, if anything happened to Alek or Pavle.
199. Ms Zlatevska agreed that the deceased never stated to her expressly that she wished
the Erskineville property to go to Alek; or that the deceased had said she wished to
appoint executors, or that she wished to appoint Alek and Pavle as the executors and
trustees. Yet, she said that the deceased enquired about "trustees" but could not
recollect the exact question asked. In any event, the answer Ms Zlatevska provided
did not explain the nature of the role of executors or trustees, but simply identified
that the person appointed "had no power to change things during your lifetime".
57
200. The answer to this question suggesteds, that even at her interview with Ms Zlatevska,
the deceased had a concern about things being altered during her lifetime.
201. Ms Zlatevska gave no evidence of having discussed the Clause in the 2004 Will
expressing the wish that her firm be employed by the executors "as their solicitors in
connection with the execution of the provisions of the Will or any codicil (sic) to it"
with, or indeed having obtained such instructions, from the deceased.
202. In relation to the substitute beneficiary Clause, there had been no evidence of
instructions by the deceased for such a clause. However Ms Zlatevska says that when
it was read to the deceased, the deceased said "That is right, I do not want anyone else
to take".
203. Ms Zlatevska gaves no evidence about making enquiry as to whether either Alek or
Pavle had any children who might benefit in the circumstances contemplated by that
clause, and if each did, how many children there were.
204. The reason why the deceased said that the Will should be kept by Ms Zlatevska in safe
custody, that "private and confidential" and that phrase should be written on it, and
that it should not be sent or given to anybody, was not the subject of her affidavit
evidence. When asked, she stated that "many in our community are very secretive".
205. Hallen AsJ said: Even if all of the clauses of the 2004 Will were translated to the
deceased, there is no unyielding rule of law that all other enquiry is to be ignored. All
the above aspects are matters in relation to the circumstances under which the 2004
Will was prepared and executed, that assume importance.
206. There were many aspects of Ms Zlatevska's conduct in relation to the 2004 Will that
were open to criticism. Although she displayed no visible partiality when giving her
evidence, she must have appreciated that the claims being made in these proceedings
would, if upheld, be likely to reflect upon her firm's professional competence.
207. His Honour formed the view that she was attempting to portray a far greater level of
care than was demonstrated by the objective facts. Importantly, she took initial
instructions from a third party, who was otherwise a client of hers, about the
58
deceased's will; she did not investigate matters that, objectively, required
investigation, or at least detailed consideration; she permitted the person from whom
she had taken initial instructions and to whom reference had been made by others as
someone who was causing a problem for the deceased (to the extent that there had
been Police involvement), to remain in the conference whilst she discussed the terms
of the 2004 Will with the deceased; she included a Clause in the 2004 Will that does
not appear to have been discussed; she relied upon "nodding" by the deceased and
does not appear to have asked any questions to establish the deceased's
understanding of the terms of the 2004 Will.
208. The circumstances should have inspired a more prudent professional approach by the
solicitor. She seems to have been completely unaware of the risks that she was
running, not only in conferring with the deceased at a meeting attended by a
beneficiary who, initially, had given her instructions, but also a beneficiary who had
been the subject of a complaint to the Police, and a beneficiary who was also her
client.
209. There was no explanation why she forwarded the memorandum of costs (a copy of
which was never produced despite service of a subpoena to produce documents, one
of which was the memorandum of costs) to Alek, rather than to the deceased, or why
Alek paid the amount claimed in it.
210. There is no suggestion in the evidence that the deceased asked Ms Zlatevska to take
this course, or that she had even discussed such a course with Alek or the deceased.
211. Hallen AsJ was satisfied that her affidavit evidence was the product of unconscious
reconstruction on her part, based on the 2004 Will as executed, as to the process
whereby she had obtained the deceased's instructions.
Undue Influence
212. Undue influence in probate is to be distinguished from the equitable doctrine of undue
influence. In order to render a will void, there must be influence which can justly be
described by the court to have caused the execution of a testamentary document
59
pretending to express the deceased's mind, but which really does not express her, or
his, mind, but something else which she, or he, did not really mean: Boyse v
Rossborough (1857) 6 HL Cas 2; 10 ER 1192, at page 1205; Craig v Lamoureux [1920]
AC 349 at 357.
213. In probate, "persuasion, or influence, or importunity is not sufficient unless it amounts
to coercion, that is, unless the testator is prevented by the persuasion, influence, or
importunity from exercising free will". (See: "Wills and Intestacy in Australia and New
Zealand", Hardingham, Neave and Ford (2nd Ed).)
214. Perhaps, in light of submissions made in this case, what was said by Sir John Nicholl in
Williams, formerly Cook v Goude (1828) 1 Hag Ecc 577 (at 581) is relevant:
"The influence to vitiate an act must amount to force and coercion destroying free agency - it must
not be the influence of affection and attachment - it must not be the mere desire of gratifying the
wishes of another, for that would be a very strong ground in support of a testamentary act. Further,
there must be proof that the act was obtained by this coercion - by importunity which could not be
resisted: that it was done merely for the sake of peace, so that the motive was tantamount to force
and fear."
215. In relation to the degree of coercion required, Hannen P stated in Wingrove v
Wingrove (1885) LR 11 PD 81 at p 82-83, in a passage quoted in Winter v Crichton
(1991) 23 NSWLR 116 at 122:
"The coercion may, of course, be of different kinds, it may be in the grossest forms
such as actual confinement or violence, or a person in the last days or hours of life
may have become so weak and feeble, that a very little pressure will be sufficient to
bring about the desired result, and it may even be that the mere talking to him at
that stage of illness and pressing something upon him may so fatigue the brain that
the sick person may be induced, for quietness sake, to do anything. This would
equally be coercion though not actual violence."
216. Coercion is pressure that overpowers the volition of the deceased. It is to be
distinguished from mere persuasion, appeals to ties of affection or pity for future
destitution, all of which are legitimate. Pressure which causes the deceased to
succumb for the sake of a quiet life, if carried to an extent that overbears her or his
free judgment, discretion or wishes, is enough to amount to coercion in this sense:
60
see, for example, Miller v Jones [1999] NSWCA 467; Edwards v Edwards [2007] WTLR
1387 at [47].
217. Where the Plaintiffs allege undue influence, the onus of proof lies upon them to prove
the allegation. They must prove it on the balance of probabilities. However, an
allegation of undue influence is a serious one, and it is necessary to remember s 140 of
the Evidence Act 1995 which says that a Court may take account of the gravity of the
matters alleged when deciding if a case has been proved.
218. Vickery J explained in Nicholson v Knaggs [at 130]:
"An allegation of testamentary undue influence is a serious matter with potentially
significant consequences for the expression of the will of a testator and for the
testamentary dispositions made under it. Further, the exercise of undue influence in
a testamentary context may also be regarded as an inherently unlikely event in the
circumstances of most cases. Expectant beneficiaries do not ordinarily put pressure
on elderly testators in an endeavour to change their minds against their will.
Bearing these matters in mind, in the assessment of the evidence which has been
marshalled in support of the allegation made in this case, and in arriving at the
ultimate conclusion, I adopt and apply the approach of Dixon J in Briginshaw v
Briginshaw and the majority in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd ."
219. Following this reference to Nicholson v Knaggs , Brereton J in Tobin v Ezekiel; Estate of
Lily Ezekiel [2011] NSWSC 81, at [43], added:
"That said, undue influence need not be proved by direct evidence: the question
must be decided upon all the circumstances of the case [ Callaghan v Myers (1880) 1
NSWLR 351 - a case which, incidentally, refutes the contention, frequently heard in
probate circles, that the defence has never succeeded in New South Wales]. In the
context of civil proceedings, it is of course not necessary that the circumstances
admit of no rational hypothesis inconsistent with undue influence; but undue
influence must more probably than not be the true explanation. This accords with
well-established authority: in Craig v Lamoureux [1920] AC 349, Viscount Haldane
explained (at 357):
As was said in the House of Lords when Boyse v Rossborough (1856) 6 HLC 2 (at 49)
was decided, in order to set aside the will of a person of sound mind, it is not
sufficient to show that the circumstances attending its execution are consistent with
the hypothesis of its having been attained by undue influence. It must be shown
that they are inconsistent with a contrary hypothesis."
61
220. As the Plaintiffs' case was said not to be a circumstantial one, direct evidence of the
exercise of undue influence by Alek was relied upon. In such a case, the question to be
answered by the court is whether the will of the deceased was overborne, to the
requisite degree, by the conduct of the influencer, proved by direct evidence:
Nicholson v Knaggs at [116].
221. In looking at the question of undue influence, one must bear in mind the
circumstances of the individual deceased. What may not constitute undue influence in
the case of a person with a strong will and ordinary fortitude, may constitute undue
influence in the case of a more susceptible individual.
222. The starting point is that the burden of proving testamentary capacity lies on Alek,
who seeks to uphold the 2004 Will. Due execution of the 2004 Will was established.
There was no dispute, then, that the Plaintiffs had discharged any evidentiary onus,
and that the evidence, as a whole, raised doubts as to the deceased's testamentary
capacity. It was conceded that Alek had to affirmatively establish that the deceased
had testamentary capacity. The question argued was whether he had discharged that
burden.
223. There was no evidence, by any witness, that he, or she, actually heard Alek making a
threat to take the deceased to Court if she did not leave him the Erskineville property.
In this respect, it is the deceased who conveyed what he said to her to a number of
different people. She may, or may not, have been confused about what he had said.
The Judge said at [309] – [304]:
“Whilst I have some grave concerns that he may have done so, I cannot be satisfied, on the balance of probabilities, on such a serious matter, that Alek, in fact, threatened the deceased with court action if she did not make a will in the terms he was advocating.
However, even if he did not expressly threaten the deceased with court action, his requests, which in my view, were in the nature of demands, between September and December 2004, that she make a will in which there would be a gift of the Erskineville property to him, lead me to the view that it was his pressure which caused the deceased to succumb, for the sake of a quiet life, and, therefore, her free judgment, discretion and wishes were overborne.
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The physical and mental strength of the deceased are relevant factors in determining how much pressure is necessary in order to overbear the will. I am satisfied that there was importunity that the deceased could not resist on or about 17 December 2004, and that she made the 2004 Will merely for the sake of peace. It was the product of his consistent, and repetitive, action that had commenced some time before but had become more pronounced from at least September 2004. During this period, his conduct was not merely an appeal to her sentiment or affection.
I am satisfied that because of his belief that he was entitled to the Erskineville property, Alek exerted pressure upon the deceased to make the 2004 Will which she did, the terms of which Will were contrary to the wishes she had expressed a few weeks earlier. What he did amounted to coercion. As a result, the deceased's mind was, in effect, a mere channel through which what Alek wanted, operated.
I am satisfied, as Sir James Wilde put it in Hall v Hall at 482, that the deceased was not led but driven; and that the 2004 Will was not the offspring of her own volition, but the record of Alek's.
Accordingly, I am satisfied that the Plaintiffs have established undue influence.”
63
Rectification of Wills
Dawson v Brazier & Ors [2012] NSWSC 117 Black J
224. This was an application brought by one of the executors of the Estate of the late Henry
Fletcher Brazier ("the deceased") for, inter alia, an order that clause 3(d) of the
deceased's will dated 13 March 2009 ("the Will") be rectified by adding the words "to
be paid out of the monies held by me in banks or other financial institutions" after the
words "(250,000) in that clause.
225. The application for rectification was brought under s 27(1) of the Succession Act 2006
(NSW) which permits the Court to make an order to rectify a Will to carry out the
testator's intention if, relevantly, the Court is satisfied that the Will does not carry out
the testator's intentions because it does not give effect to the testator's instructions.
Such an application must be made within twelve months after the date of the
testator's death; however, the Court may extend the time for making an application if
it considers it necessary and the final distribution of the estate has not been made:
Succession Act s 27(2)-(3).
226. The parties consented to an order extending the time for the bringing of the
rectification application under s 27(3) of the Succession Act. The circumstances in
which an extension of time should be granted under that section were considered in
NSW Trustee and Guardian v Ritchie [2011] NSWSC 715, where Rein J noted that
matters relevant to necessity include whether rectification is required to give effect to
the testator's wishes and granted such an extension in circumstances that the
defendants had not objected to the exercise of the Court's jurisdiction. Black J also
considered that the question whether such an order was necessary was also to be
determined by reference to the interests of justice and was satisfied that such an
order was necessary to allow a proper determination of the issues in the five other
family provision proceedings seeking provision from the deceased's estate, where the
proper construction of the relevant clause of the Will must be determined in order to
permit those proceedings to be determined.
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227. The issue as to which rectification was directed turned on two paragraphs of the Will.
Clause 3(d) of the Will provided for a legacy of $250,000 to one of the deceased's sons,
Mr Anthony Brazier. Clause 3(i) of the Will provided for the executors to hold the
estate upon trust, relevantly:
"To pay out of all other moneys held by me in banks or other financial institutions and any superannuation entitlement all of my just debts funeral and testamentary expenses and to divide the balance remaining equally among my daughters PATRICIA MARGARET FAINT, VALERIE ELIZABETH DAWSON and JOSEPHINE LOUISE O'BRIEN."
228. There arose a possibility that the assets falling within cl 3(i) of the Will would not be
available to meet any unpaid part of the legacy to Mr Anthony Brazier under cl 3(d) of
the Will. Therefore rectification was sought to avoid that potential outcome by
making clear that the legacy to Mr Anthony Brazier under cl 3(d) of the Will is also to
be paid out of monies held by the deceased in banks or other financial institutions.
229. Mr Atkinson was the solicitor who prepared the Will. He gave an affidavit for the
plaintiff. He gave evidence of the instructions which had been given to him by the
deceased in respect of the preparation of the Will, which included being provided with
a marked-up copy of an earlier will and a handwritten note setting out additional
aspects of the deceased's intended disposition of his assets among the intended
beneficiaries, and of the process by which draft wills were prepared and reviewed by
the deceased before the Will was signed by the deceased on 17 March 2009. The
handwritten note which had been provided by the deceased to Mr Atkinson referred
to his giving Mr Anthony Brazier the sum of $250,000 from "money which I may have
at the time of my death".
230. Black J found there was a compelling case for rectification of the Will under s 27 of the
Succession Act. The deceased's handwritten note closely corresponded to the
relevant provisions in the final Will with the omission of the reference to "money
which I may have at the time of my death" which was contained in the handwritten
note in respect of the legacy to Mr Anthony Brazier but not included in the Will. Mr
Atkinson's evidence was, in effect, that the omitted words were not included in the
final Will because he considered that the Will would in any event operate in that
manner.
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231. The handwritten note provided clear and convincing proof on the balance of
probabilities as to the deceased's intention: Rawack v Spicer [2002] NSWSC 849 at
[26]ff. There was no suggestion that the deceased had changed his intention so as to
form any view that the legacy to Mr Anthony Brazier should not be paid from money
which he had at the time of his death. It was plain from the deceased's handwritten
note that he did not intend that the funds would be found by a proportionate or
rateable contribution from non-monetary assets in the estate or that the gift would
fail in the absence of a specific fund, notwithstanding that he in fact held money
within his accounts from which it could have been satisfied. The fact that the legacy to
Mr Anthony Brazier was to be satisfied from the same source as the legacies to Ms
Patricia Faint, Ms Valerie Dawson and Ms Josephine O'Brien dealt with in cl 3(i) of the
Will was indicated by the fact that the handwritten note provided in successive lines
for the legacy to Mr Anthony Brazier "from money which I might have at the time of
my death" and in the next line for "all other money which I may have at the time of my
death" to be given in equal shares to Ms Patricia Faint, Ms Valerie Dawson and Ms
Josephine O'Brien (emphasis added). It seemed plain to Black J that the deceased
intended that both legacies should be sourced from the money which he had at the
time of his death and the Will failed to give effect to that intention. The form of words
included by rectification corresponded to the concept contained in the deceased's
handwritten note, in circumstances that the deceased then held substantial amounts
on deposit with several Australian banks, and to the language adopted in the parallel
provision of Cl 3(i) of the Will.
232. It was ultimately not necessary for His Honour to determine whether, as a matter of
construction, cl 3(d) of the Will would in any event have been read so as to provide for
the legacy to Mr Anthony Brazier to have been paid from the same source as the
legacy under cl 3(i) of the Will. Rectification can be ordered out of an abundance of
caution even if it would result in the Will having the same meaning as it would have
been construed to have: Re Application of Spooner; Estate of Davis (Hodgson J, 28 July
1995, unreported).
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Removal of Executors
Graham Davis v Ian Andrew Davis; Robyn Davis by Her Tutor Sandra Arnold v Ian Andrew Davis [2012] NSWSC 201 - Per Slattery J
233. John Joseph Davis died on 6 December 2007. His estate had not yet been
administered at the time of hearing. One of the deceased's six children, Graham Davis,
brought proceedings for the administration of the estate against the executor, named
in the deceased's will, Ian Davis, another sibling. The administration proceedings wer
heard together with Family Provision Act 1982 proceedings that another of the
deceased's children, Robyn Adele Davis, brought against the executor, Ian Davis.
234. Robyn Davis had an intellectual disability. On 26 September 2011 the Guardianship
Tribunal appointed the Public Guardian as her guardian under the Guardianship Act
1987 and appointed the NSW Trustee as financial manager of her estate. Robyn Davis
commenced her Family Provision Act proceedings by her tutor, Sandra Arnold. But
since September 2011 the NSW Trustee has acted as her tutor.
235. The executor Ian Davis resisted relief in both proceedings.
236. For the reasons set out in this judgment I have decided that relief should be granted to
both Graham Davis and Robyn Davis. Relief in the administration proceedings is
required because the executor has refused to carry out the terms of the will or to
administer the estate.
The Davis Family, the Will and the Estate
The Davis Family
237. The deceased, John Joseph Davis and his wife Jocelyn had six children, Ian Davis,
Robyn Davis, Graham Davis, Jeffrey Davis, Helen Davis and Peter Davis. Jocelyn died in
1984. All six children survived the deceased. Peter died in 2010 and is survived by his
wife, Iris Tait, who has been notified of these proceedings. Peter and Iris had two
children.
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The Will of John Joseph Davis
238. The deceased made his will on 17 February 1984, shortly after Jocelyn's death, and a
long time before his death in December 2007. The will appoints Ian Davis as executor
of the deceased's estate. In making the will the deceased recognised that his daughter
Robyn would need special care after his death. He provided a testamentary structure
to provide some stability for Robyn's future. He then divided the balance of the estate
equally. The will relevantly provided as follows:-
"3. My executor shall hold the whole of my estate upon trust and after payment of all my funeral and testamentary expenses:-
(a) to pay one-third of my estate to my son Jeffrey John Davis should he survive me but if he does not survive me leaving children then those children shall upon attaining the age of twenty-one years take equally the share which their father would otherwise have taken;
(b) to divide the residue of my estate equally between those my children who survive me and attain the age of eighteen years but if any child of mine dies before me or before attaining the age of eighteen years leaving children then those children shall on attaining the age of eighteen years take equally the share which their parent would otherwise have taken.
4. I appoint my son Jeffrey John Davis of [address not published], North Haven, Adelaide in the State of South Australia as testamentary guardian of my daughter Robyn Adle Davis. In recognition of my son Jeffrey John Davis undertaking to care for and provide for my daughter Robyn Adle Davis after my death I have in this Will provided for my son to receive one-third of my estate.
5. My executor shall have the following powers:
(a) in respect of all property vested in him the powers of a trustee for sale;
(b) to apply for the maintenance education or benefit of any beneficiary as my executor thinks fit the whole or any part of the executor thinks fit the whole or any part of the capital or income to which that beneficiary is entitled or may in future be entitled provided that on becoming absolutely entitled he shall bring into account any payments received under this clause;
(c) to invest and change investments freely as if he was beneficially entitled and this power includes the right to invest in property for occupation or use by a beneficiary;
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(d) to postpone the sale conversion and calling in of any or all of my estate for such time as he thinks fit."
239. Clause 5 of the will became controversial. Mr Ian Davis offered his opinion to the
Court, uninformed by any legal advice, that clause 5 meant he could do whatever he
liked with the Cordeaux Road property. His persistence in this incorrect view and his
self professed unwillingness, or incapacity, to seek legal advice about issues related to
the administration of the estate, caused the Court to have doubts as to his possible
fitness to continue as its executor. Ian Davis was given notice in the course of these
proceedings that this was a matter to which the Court might return at the time of
giving judgment.
Probate and the Estate
240. Probate of the will of the deceased was granted to Ian Davis in this Court on 24 March
2009. Ian Davis as executor swore as to the inventory of property of the estate. His
affidavit recorded the only assets of the estate as the Cordeaux Road property, at the
executor's then estimated value of $325,000, together with a Commonwealth Bank
account containing only 39 cents. The estate's inventory of property did not record
any liabilities.
241. Graham Davis alleged in the administration proceedings that Ian Davis had not
accounted for one other chattel, said to be an estate asset, a 1971 V8 Ford Fairmont
XY motor vehicle worth.
242. Family members paid for the deceased's funeral. The executor did not adduce any
evidence of having created any accounts in relation to his administration of the estate
after the grant of probate to him in March 2009. Nor did he hold any receipts for
income or expenditure resulting from his administration of the estate, either before or
after the grant of Probate. Ian Davis seemed unperturbed about this state of affairs.
The absence of any such accounts was a matter that Graham Davis raised in the
administration proceedings as a basis for the relief he sought against the executor.
243. The Summons in the administration proceedings sought: declaration the power to
postpone sale of the Cordeaux Road property only be exercised in the best interest of
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the estate; that Ian pay the estate an occupation fee in respect of his occupation of the
property for the period since 6 December 2008 in respect of one half of its rental
value; that Ian Davis take steps to sell the Cordeaux Road property for the best price
reasonably attainable; that Ian Davis pay the debts, funeral and testamentary
expenses of the estate; that the defendant give an account of his administration of the
estate within 6 months; and other consequential orders. The Summons did not seek
Ian Davis' removal as executor of the deceased's will. But in opening his case in the
administration proceedings, Graham's counsel foreshadowed the bringing of amended
relief for the removal of Ian Davis as executor.
244. The Court has inherent jurisdiction to remove an executor where it is necessary for the
due and proper administration of the estate: Pogorzelska v Kazas - Rogaris [2010]
NSWSC 1436 at [7] - [8] per Tamberlin AJ; Sullivan v Craig [2008] NSWSC 1189 at [2]
per White J; and In the Goods of Loveday (1900) P 154 at 156, Bates v Messner (1967)
67 SR (NSW) 187 and Mavriderdos v Mack (1998) 45 NSWLR 80. Even where as here a
concern arises as to whether this inherent power should be exercised, with an
unrepresented litigant as executor, I have decided it is not appropriate to exercise the
power without proper advance notice of the application being given to the plaintiff.
For that reason the Court made the directions that it did. This question can be
considered after the Court gives this judgment. It does appear, on my findings, that
there is an arguable case for the revocation of the grant of probate and the removal of
Ian Davis as executor. But Ian Davis has not had a full opportunity to answer that case.
He will have that opportunity, once judgment has been given. It is undesirable for the
Court to press any other views upon the issue of his removal at this stage other than
that the case appears on the Court's other findings to be responsibly arguable. Some
of the material that raises concern about Ian's continued role as the executor of the
estate is identified below under the heading "Ian's Role as Executor".
245. Pursuant to that jurisdiction, the Summons asks the Court to consider four principal
matters of the estate's administration: (1) meeting the estate's liabilities, specifically
funeral and testamentary expenses; (2) accounting for the whereabouts of the
deceased's car at the time of his death; (3) the failure to sell the Cordeaux Road
70
property in a timely way; and, (4) the payment of an occupation fee by Ian Davis. Each
of these matters is considered below.
(1) Funeral and Testamentary Expenses.
There was no evidence of any current demand by any service provider against the
estate for the payment of outstanding funeral and testamentary expenses. The
only direct evidence on the matter came from Jeffrey's letter dated 16 May 2011
to the solicitor for Robyn, Angela Melouney, in which he stated that he is the
"person who paid for my father's funeral expenses and probate fees". Probate was
undoubtedly obtained and Court fees paid. On this evidence the judge inferred
that there are no outstanding funeral and testamentary expenses and that there
has been no failure in the defendant's administration by reason of their non
payment. This issue was not a basis for the Court to make orders in relation to the
administration of the estate.
(2) The Ford Fairmont XY Motor Vehicle .
Graham claimed that at the time of his death the deceased had a 1971 Ford
Fairmont XY V8 motor vehicle with a value of approximately $25,000. Graham's
evidence was that the vehicle was given to Peter Davis and it was not, but should
have been, included in the inventory of the estate. Graham sought that the value
of the motor vehicle be taken into account when distribution is made to Peter's
children. Graham tendered evidence of the value of the motor vehicle at $25,000.
There were several problems with this aspect of the administration case. On this
issue His Honour accepted Ian's oral evidence that the motor vehicle was "a wreck"
and that it had been given to Peter "to fix it" because it was undriveable. Although it
was registered at the time the deceased died, the registration ran out shortly
afterwards. If the vehicle was in "A1" condition, as Ian described it, the vehicle
might have been valuable. But the Court found in fact it was of inconsequential
value. An unmaintained vehicle of that age is likely to rapidly lose value.
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Accordingly, its non inclusion in the inventory was not a significant breach of duty on
the part of the executor.
(3) Failure to Sell the Cordeaux Road Property .
Ian has failed to sell the Cordeaux Road property since the deceased's death. Ian
Davis admitted that it had not been sold. But he says that between December
2007 and May 2011 it remained unsold because Robyn was living in the house.
Ian's obligation is to administer the estate within 12 months of the death: McCathie
v Taxation (1944) 69 CLR 1. He may postpone realization without the need for the
Court's intervention: Trustee Act 1925 (NSW), s 27B(1). But such a power must be
exercised in good faith, with reference to relevant considerations including the rights
of beneficiaries inter se: Perpetual Trustee Co Ltd v Noyes (1925) 42 WN (NSW) 56.
Whilst it was true that Robin was living in the house for this period (apart from about
six months in 2009) the difficulty with the defendant's argument in delaying the sale
on this ground was that that is not what was authorised by the will. The will merely
authorised that Jeffrey would care for Robyn as her testamentary guardian, with
Jeffrey being given one third of the estate. The will did not authorise Ian caring for
Robyn at the Cordeaux Road property. If Ian was seeking as executor to delay the
sale of the Cordeaux Road property for a period, to permit Robyn to reside there
when she returned from Adelaide in mid 2009, whilst her future was determined,
that should have been at the least the subject of some formal communication with
the other beneficiaries or indeed some application to the Court. But that did not
happen. Rather, Ian seemed merely to have decided on his own that he would live
at the Cordeaux Road property indefinitely, taking care of Robyn. The provisions of
clause 5 of the will did not authorise a complete departure from the scheme of the
will. Ian Davis has not offered an adequate reason why he did not put the Cordeaux
Road property up for sale or explain to the beneficiaries why a temporary delay on
sale was being sought pending the making of appropriate arrangements for Robyn's
future. There has been no communication between Ian as executor and any
beneficiary about the reasons for delay and sale of the property. Ian appeared
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merely to have decided for himself that the sale would be delayed. As he explained
the reasons in evidence, this was because he formed the view that he could decide
for himself what would or would not happen under the will in Robyn's interests.
This situation had continued for almost three years since mid 2009. The judge had
no confidence it will not continue unless the Court makes orders for the sale of the
Cordeaux Road property. In the meantime Ian enjoys the property at the expense of
all other beneficiaries. There is no basis to defer sale of the Cordeaux Road property
any longer, upon the hypothesis that Robyn might return to live there with Ian. That
is now a wholly unrealistic scenario. So the Court made such orders.
(4) The payment of an Occupation Fee.
Graham contended that Ian was obliged to pay an occupation fee for his
occupation of the Cordeaux Road property from December 2007. Whilst it is
strictly true that Ian may be liable to the estate for his occupation of the Cordeaux
Road property, it must be recognised that such occupation was always
accompanied by his role as Robyn's carer. Although the Court has found that his
role as carer fell short of appropriate standards in a number of respects, it must be
recognised that it would be difficult to fulfill that role and do what he did in
Robyn's interests without him occupying the same property that Robyn did and in
very close proximity to her. If he had not fulfilled this role, the estate would have
been put to the expense of finding care and accommodation for Robyn pending
final administration of the estate. His taking that voluntary role has financially
benefited the estate, although quantification of the benefit is difficult. It seems
now to be quite unfair to recognise a liability of Ian to the estate for his occupation
of the Cordeaux Road property without giving him credit for the benefit he has
conferred on the estate. Also, no-one contended Robyn should be charged with
any obligation to the estate for her occupation of the property. All parties seemed
to be appropriately anxious to ensure that Robyn does not suffer that liability. It
seemed equally inappropriate that her carer should suffer that liability.
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246. Thus whilst it is strictly correct that Ian could be charged an occupation fee for his
occupation of the Cordeaux Road property since December 2007, making an order
that this be allowed for in the administration of the estate, would only generate in Ian
an arguable counter claim against the estate in respect of his services to Robyn, over
and above his carer's allowance. In a small estate such as this, the generation of such
a dispute is undesirable. The better course was to not make any order in the estate's
administration in respect of Ian's occupation of the Cordeaux Road property since
December 2007.
247. The Court has broad powers under Family Provision Act, s 15(1)(b) to make
consequential and ancillary orders to give effect to an order for provision out of the
estate of the deceased. The same result may be achieved in the exercise of those
powers. In this case, those orders should include making an order in Ian's favour
sufficient to compensate him from the estate for his support of Robyn in the last four
years, to neutralise any claim that the estate may have against him.
Ian's Role as Executor
248. There was material in the evidence from which it may be inferred that Ian has failed to
discharge the ordinary functions expected of an executor who has taken probate.
There was also material suggesting he has expressed an attitude as executor that is
incompatible with the orderly future administration of the estate. Subject to such
submissions as Ian may wish to put, the material may provide grounds for the making
of an order for the revocation of the grant of probate to Ian and his removal as
executor. The matters for such concern are his failures to account, his intermingling of
his own assets and those of others to whom he is a fiduciary, and his refusal to accept
that he may need legal advice.
249. Failure to Account. By his own admission the defendant has not prepared any
accounts for the estate for any period between the deceased's death and the hearing.
This is so notwithstanding probate was granted on 24 March 2009, about 15 months
after the deceased died. Mr Davis did not advance any accounts in evidence. He did
not say he had filed any accounts. No other party tendered any accounts. He gave no
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explanation for not having filed any accounts. Accounts were ordered in the
administration proceedings.
250. But upon closer analysis of Ian's attitude in relation to his sister Robyn's affairs, the
judge said that Ian did not seem to believe he had any obligation to account to anyone
for his expenditure of money, which came into his hands to be applied on behalf of
others.
251. Ian Davis did not keep his own assets and income separate from those of Robyn, when
he was caring for her at Cordeaux Road, prior to her departure in May 2011. Nor did
he see any need to keep them separate. This does raise a serious question as to
whether, were he to continue as executor of the estate, that he is capable of
understanding the need to separate his own financial affairs from those of the estate.
The evidence on this subject paints a potentially concerning picture.
252. Ian summarised concisely just how he perceived his own dealings with Robyn's and his
money, "Used everything to pay for everything". There was a complete and
unconstrained intermingling of their funds. It was open for the Court to infer that if
Ian continued as the executor of the estate that he will administer the estate's funds in
much the same way, as he has administered Robyn's funds.
253. In relation to the administration proceedings, the Court found there had been
unexplained delay in effecting the sale of the Cordeaux Road property. As a result the
Court ordered that that property be sold. No orders were made in respect of Ian
Davis' occupation of the Cordeaux Road property nor in respect of the 1971 Ford
Fairmont XY motor vehicle.
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Construction of Wills – “My nieces and nephews”
Parry v Haisma [2012] NSWSC 290 per White J
254. The plaintiff was the executor of the will of the late Hinka Haisma who died on 19
September 2009. The deceased left a will dated 1 October 2003. She appointed her
de facto partner, Mr Richard Brewer, and her solicitor, Mr Parry (the plaintiff) as her
executors and trustees. The will relevantly provided:
"3. I GIVE the whole of my estate to RICHARD JAMES BREWER contingent upon
him surviving me by 90 days, and if he does not survive me by 90 days, then
and only then, clause 4 will apply.
4. I GIVE the whole of my estate to such of my nephews and nieces as survive
me by 90 days, and if more than one in equal shares.
5. MY EXECUTOR has the following powers:
a. In respect of property vested in them, the powers of a trustee for
sale;
b. With the consent of the recipient beneficiary, to appropriate in full or
partial satisfaction of a share of my estate, any asset at a value
acceptable to my Executor, without the necessity to obtain the
consent of any other beneficiary. The exercise of this power will
constitute a specific bequest by me of such asset to the beneficiary
entitled, in lieu of the share of my estate it replaces;
c. In their absolute discretion, to apply all or part of the income
attributable to a share of my estate to which a beneficiary under 18
will become entitled to receive on attaining that age, for the benefit
of that beneficiary;
d. To invest in any shares or security quoted on the Australian Stock
Exchange;
e. To place money on deposit with any Bank in Australia or in
acquisition of a bill of exchange on which any such Bank is liable."
255. Richard Brewer survived the deceased, but he did not survive her by 90 days. Clause 4
is the operative provision of the will.
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256. The plaintiff sought the following relief:
"1 A determination of the following questions in relation to the estate of the late Hinka
Haisma ('the deceased') who died on 19 September 2009 leaving a Will dated 1
October 2003 ('the Will'), probate of which was granted to the Plaintiff on 4 March
2010, namely whether on the true construction of the Will and in the events which
have occurred, the gift by the deceased in clause 4 of the Will of 'the whole of my
estate to such of my nephews and nieces as survive me by 90 days, and if more than
one in equal shares' is a gift which includes:
(1) Nephews and nieces of the whole blood (which includes the First to Seventh
Defendants) and
(2) Nephews and nieces of the half blood (which includes the Eighth to Twelfth
Defendants) and
(3) The children of Peter Brewer the brother of the deceased's (now deceased)
partner Richard James Brewer (being the Thirteenth and Fourteenth
Defendants).
2A An order pursuant to section 63 Trustee Act 1925 that the Plaintiff is justified in
distributing the net estate to the parties determined by the Court to be the nephews
and nieces of the deceased within the meaning of clause 4 of the will."
257. The deceased was born on 11 January 1948. Her father Jan Pieter Haisma married
twice. His first marriage was to the deceased's mother, Klaske Liezenga. They had
four children, namely the deceased and her twin sister Trijnitje, also known as
"Nynka", and two sons, Haye Haisma and Romke Haisma. The deceased did not have
any children. Neither did her twin sister Nynka. The deceased's brother Haye had
three children, being the first, second and seventh defendants, and her brother Romke
had four children, being the third to sixth defendants. They are nephews and nieces of
the deceased and entitled to inherit under clause 4 of the will.
258. The deceased's parents separated in the early 1960s and divorced some time later.
Her father remarried. There were two children born of that marriage, namely
Elisabeth and Tjalling Haisma. Tjalling and Elisabeth each had children. Those children
are the eighth to twelfth defendants. They are the nephews and nieces of the half-
blood of the deceased.
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259. It was common ground that the expression "my nephews and nieces" in clause 4
included nephews and nieces of the half-blood. Haines, Construction of Wills in
Australia, LexisNexis Butterworths 2007 states at [16.28] that:
"The ordinary and natural meaning of 'nephews and nieces' means 'nephews and
nieces by blood' ... The words do not include relatives by half-blood."
260. The inclusion of the words "do not" may be a typographical error. The only authority
for the proposition is a reference to para [16.19] of the same text where the learned
author states:
"A gift to A's nephews and nieces means prima facie the children of brothers and
sisters including those of the half-blood."
261. The latter proposition, but not the former, is well supported by authority (Grieves v
Rawley (1852) 10 Hare 63; (1852) 68 ER 840; Re Hammersley, Kitchen v Myers (1886) 2
TLR 459; In re Cozens, Miles v Wilson [1903] 1 Ch 138 at 141).
262. The deceased was married to a John Lindsay Walker, but that marriage was dissolved.
In about 1994 she commenced living with Mr Richard Brewer. They did not marry, but
lived in a de facto relationship until her death. Richard Brewer had a brother, Peter
Brewer, who has two children, Sam and Tess. They are the thirteenth and fourteenth
defendants. There is evidence that from time to time the deceased described them as
her nephew and niece. The question was whether they also were entitled to share in
the deceased's estate.
263. There was no real controversy about the admissibility of extrinsic evidence for the
purpose of construing the will. In Higgins v Dawson [1902] AC 1 the House of Lords
said that evidence of surrounding circumstances could only be adduced where there
was ambiguity (at 7, 8 and 11) and endorsed a very narrow approach to finding
ambiguity (at 10). That approach is not consistent with the current approach to
construction of wills (Perrin v Morgan [1943] AC 399) and was not urged in the present
case. Evidence of the circumstances surrounding the testatrix was admissible to assist
in the construction of the will so that the court could place itself "so to speak, in [the
testatrix's] arm-chair and consider the circumstances by which [she] was surrounded
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when [she] made [her] will to assist ... in arriving at [her] intention" (Boyes v Cook
(1880) 14 Ch D 53 at 56; Allgood v Blake (1872-73) LR 8 Exch 160 at 162). As it was put
in Allgood v Blake (at 162):
"The general rule is that, in construing a will, the Court is entitled to put itself in the
position of the testator, and to consider all material facts and circumstances known
to the testator with reference to which he is to be taken to have used the words in
the will, and then to declare what is the intention evidenced by the words used with
reference to those facts and circumstances which were (or ought to have been) in
the mind of the testator when he used those words. ... the meaning of words varies
according to the circumstances of and concerning which they are used."
264. Pursuant to this principle the court may admit evidence of the testator's habits and
knowledge of persons or things, including the testator's habit of referring to persons
by particular names.
265. It was on this principle that evidence of the deceased's describing the children of her
de facto partner's brother as her nephew or niece, and the circumstances in which the
statements were made, was admitted.
266. The first to twelfth defendants sought to lead evidence that the deceased intended
her blood relations, but not relations of Mr Brewer, to benefit from her estate if he
could not. The evidence was objected to. Part of it was not read. I rejected evidence
of the deceased's having told a witness words to the effect of "I worked very hard for
my money and I want to make sure it stays in my family as Richard and his brother
Peter Brewer come from a well-to-do family". At common law such direct evidence of
testamentary intention is only admissible in the case of an equivocation, that is to say,
a case when the words of the will, when considered in relation to the testator's
surrounding circumstances, apply accurately and equally to two or more persons or
things (Hiscocks v Hiscocks (1839) 5 M & W 363; (1839) 151 ER 154 at 156; Gord v
Needs (1836) 2 M & W 129 at 140-141; (1836) 150 ER 698 at 703; Public Trustee of
New South Wales v Herbert [2009] NSWSC 366 at [33]). Evidence of surrounding
circumstances is admitted in order to assist the determination of the testator's
probable intention. Direct evidence of the testator's actual intention is admissible in
cases of equivocation because "while it is forbidden to allow extrinsic evidence of
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intention to come into competition with the terms of the document on the same
subject and possibly to prevail against the document, in the case of equivocation no
such result follows from resort to extrinsic evidence of intention." (Re Smith [1939]
VLR 213 at 218; Phipson "Extrinsic Evidence in Aid of Interpretation" (1904) 20 LQR 245
at 268-271). This was not a case of equivocation.
267. By s 32 of the Succession Act 2006 direct evidence of the testator's intention is
admissible to assist in the interpretation of the language of the will if, among other
circumstances, the language makes the will or any part of it ambiguous on the face of
the will, or ambiguous in the light of surrounding circumstances (s 32(1)(b) and (c)).
However, that section applies only to wills made on or after 1 March 2008. It did not
apply to the present will.
The evidence of surrounding circumstances
268. The evidence of the circumstances surrounding the deceased focused on her
relationship with Sam and Tess Brewer. At the time of the will Sam was seven years of
age and Tess was two years of age. Sam was a child of Peter Brewer's first marriage
and Tess was a child of his second.
269. Peter Brewer gave evidence of contact between the deceased and his children. His
brother Richard and the deceased attended at his home for birthday celebrations and
Christmas. He and his family also stayed in a house that the deceased had at Lennox
Head, staying for about ten days at a time. On one occasion the deceased looked after
Tess at Lennox Head for approximately ten days. Richard Brewer had a boat and Peter
Brewer and his wife and children sailed with them from time to time and would sleep
overnight. He said that the deceased had close relations with his children. Peter
Brewer did not give evidence that the deceased described Sam and Tess as her
nephew and niece.
270. Peter Brewer's wife, Miriam, deposed that the deceased did not refer to Tess and Sam
as niece and nephew in conversations with her, but often introduced them to other
people as her niece and nephew. She said that she remembered occasions on which
they were on Richard's boat when he tied the boat to other boats on the water so that
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they could talk and the deceased introduced Sam and Tess to the people on the other
boats as "This is my nephew Sam and this is my niece Tess".
271. Ms Bronwyn Murphy was a friend of the deceased since 1999. She met the deceased
and Richard Brewer at the home of Peter and Miriam Brewer and thereafter saw her
approximately three or four times per year, and sometimes more frequently until the
deceased became ill. She corroborates Mr and Mrs Brewer's evidence of the
deceased's being present at all birthdays and significant celebrations. Ms Murphy
deposed "I observed Hinka to treat Tess and Sam as part of her family". The sentence
was not objected to, but it is not clear what facts Ms Murphy was intending to convey
by that statement. She deposed that she was present at Tess Brewer's second
birthday party, that is, 16 March 2003, and speaking to the deceased when Tess came
toddling up to them and the deceased said "ah, here comes my beautiful niece".
272. This was the only evidence of the deceased's having described either Sam or Tess as
her nephew or niece before she made her will.
273. A Mr Ivan Benko gave evidence of the deceased's so describing Sam and Tess from
2004. Mr Benko was married to the deceased's god-daughter and first met the
deceased in 1999. The deceased was matron of honour at their wedding in 2001. Mr
Benko and his wife moved to Sydney in 2004. He deposed that in 2004 the deceased
attempted to explain her family and during the explanation said words to the effect of
"... Richard has a brother Peter. He and his wife Miriam have two children, my niece
Tess and my nephew Sam ...". He said that in the summer of 2006 the deceased told
him that "Peter and his family, including our niece and nephew, were here last
weekend. They came up to visit. We had a lovely time on the beach and the boat, the
kids, Tess and Sam really loved the water." He said that the deceased described Tess as
her niece in 2007 when she described a shopping trip and having bought Tess a dress.
He said that on other occasions when the deceased visited their apartment, she would
speak of Sam and Tess who also lived in the eastern suburbs by saying words to the
effect of "We have been to visit Peter, Miriam and our niece and nephew, Sam and
Tess". He said that similar descriptions of Sam and Tess as being nephew and niece
were made at other times in 2007.
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274. Ms Melinda Dunn, a friend of Richard Brewer and the deceased, deposed that in 2008
she had lunch with the deceased where there was a conversation to the following
effect:
"Hinka said 'I've just been out with my niece'. I said 'which one?'.
Hinka said 'brother Peter's daughter'. I said 'Oh, you mean Tess? They're a bit more
like your grandchildren aren't they?'
Hinka laughed and said 'I'm happy to call them my niece and nephew, makes me
sound younger!'"
275. Ms Dunn also deposed that whenever she asked the deceased how her family was, the
deceased mentioned Sam and Tess and said things such as "My niece and I went
shopping the other day" (referring to Tess). Ms Dunn said that on several occasions
she recalled the deceased referring to Sam and Tess as niece and nephew.
276. A Mr Geoff Douglas, who was a business partner of Richard Brewer and a friend to
both him and the deceased, gave evidence of the deceased introducing the children to
people by saying words to the effect of "This is my niece and nephew".
277. None of the first to twelfth defendants resided in Sydney. They were not
geographically close to the deceased. Zera Haisma, a niece, deposed that when she
visited the deceased in 2003 she met the Brewer family, including Sam and Tess
Brewer. She deposed that at no point was Sam Brewer or Tess Brewer referred to by
the deceased as her nephew or niece. They were introduced to her as "Peter Brewer's
children" and subsequently referred to in the same way, or as Sam and Tess.
278. None of the deponents of affidavits was cross-examined. One is entitled to be
skeptical about the ability of any witness to recall accurately casual conversations
which at the time could not have been thought to have any particular importance in
which slight differences in language could have significant implications for the issues
to be decided. For example, Ms Murphy gave evidence of a conversation that
occurred eight years before she swore her affidavit. She recalled the deceased saying
"ah, here comes my beautiful niece". One is entitled to be skeptical as to whether she
could be sure that those were the precise words used as distinct from, for example,
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"Here comes our beautiful niece" or "Here comes our beautiful girl". Nonetheless, in
the absence of cross-examination, the judge accepted the evidence of each of the
witnesses and accepted that the deceased regularly, although not universally,
introduced Sam and Tess Brewer to others as her nephew and niece and otherwise
from time to time referred to them as nephew or niece. He also accepted Ms Dunn's
evidence that the deceased said she was happy to call them niece and nephew as it
made her sound younger. In other words, the deceased used the description "niece
and nephew" as something of a courtesy title, just as children might call a family friend
"uncle" or "aunt".
279. Another surrounding circumstance that was arguably relevant was that the deceased
and Richard Brewer made wills on the same day. Each will named Mr Parry as an
executor and trustee. However, he did not prepare the wills. So far as it appears, the
wills were prepared by one or both of Richard Brewer and the deceased. Clauses 3
and 4 of Richard Brewer's will provided as follows:
"3. I GIVE the whole of my estate to HINKA HAISMA contingent upon her surviving
me by 90 days, and if she does not survive me by 90 days, then and only then, clause
4 will apply.
4. I GIVE the sum or $500,000 to PAULINE BREWER provided she survives me by 90
days and I GIVE the balance of my estate to my brother PETER BREWER providing
that he survives me by 90 days, and if he does not survive me by 90 days I GIVE that
balance of my estate to the daughter of PETER BREWER, TESS BREWER, to be held in
trust by my executors as to capital and income for her education and advancement
at their absolute discretion."
280. Clause 5 of Richard Brewer's will was in the same terms as the will of the deceased.
281. There was a slight indication from a comparison of the two wills that the deceased
may have intended to leave her estate to blood relations if Richard Brewer did not
inherit. That is because it is clear he then intended to leave his estate to his blood
relations if the deceased did not inherit his estate.
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Gifts to nieces and nephews
282. The Court was referred to many cases and have considered others where courts have
had to construe gifts in a will to nieces and nephews. Most often the contest has been
as to whether nieces and nephews of the testator's spouse are included in the gift.
Reference to such authority is of limited utility. The question is what the testatrix
meant by the words she used, not how other judges have interpreted the same words
used by other testators. Many of the cases applied the literal approach to
construction of wills advocated by Sir James Wigram rather than the intentionalist
approach advocated by Francis Hawkins. (For an analysis of the two approaches see
Kerridge and Rivers, "The Construction of Wills" (2000) 116 LQR 287; Hawkins on the
Construction of Wills (Sweet & Maxwell, 5th ed, 2000, Ch 2.) Since Perrin v Morgan, it
is the intentionalist approach that has prevailed. The force of the literal approach is
that except in exceptional circumstances a will must be in writing. It is the writing and
not the testator's intention gleaned independently of the writing that constitutes the
will. The question is, what do the words used by the testator mean. On the literal
approach prima facie words are to be given their "natural" or "ordinary" or "correct"
or "primary" meaning and that meaning can be departed from only where it appears
from the will itself that words have been used in a different sense, or the words
cannot be given a sensible meaning when applied to the facts (James Wigram, An
Examination of the Rules of Law Respecting the Admission of Extrinsic Evidence in Aid
of the Interpretation of Wills (Sweet & Maxwell, 5th ed by Charles Sanger, 1914) 9, 16
(Proposition I), 18 (Proposition II)). The alternative approach that has prevailed is to
ask what meaning, having regard to the terms of the will and admissible extrinsic
evidence, the testator intended by the words used.
283. Nonetheless, the authorities are instructive. Courts have consistently construed gifts
to relatives as meaning relatives by blood, except where there is a clear contrary
indication. This reflects a judicial assessment that when people leave gifts to relatives
in their will, they usually intend to benefit their relations by blood. This is not just a
now discarded literalist approach to interpretation that applies an artificial rule. It is
based on a presumption of what testators intend. The presumption must give way to
a contrary intention.
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284. In Smith v Lidiard (1857) 3 K & J 252; (1857) 69 ER 1102 the testatrix gave legacies to
several persons whom she named, describing each of them as her niece. She
bequeathed her residuary personal property to her "nephews and nieces". Two of the
persons named in the will as nieces were nieces of her late husband. It was held that
notwithstanding that two persons who were nieces of the testatrix's late husband had
been described in the will as being her niece, the gift of residue to "nephews and
nieces" did not extend to nieces by affinity. Even those who were described as nieces
in the gifts of pecuniary legacies in the will did not take under the residuary bequest.
285. In Grant v Grant (1870) LR 5 CP 380 the testator devised property "to my nephew
Joseph Grant". The testator's brother had a son named Joseph Grant. His wife's
brother also had a son of the same name. Extrinsic evidence was admitted to show
which Joseph Grant was meant by the testator. That evidence showed that the
testator did not know the name of or the existence of his nephew by blood, but that
he had adopted his wife's nephew at a very early age and brought him up as a member
of the family. The testator was in the habit of calling him his nephew (at 387-388).
Bovill CJ, giving judgment of the Court of Common Pleas, said (at 388):
"In all cases of wills, the surrounding circumstances as they existed at the time of the
will, including the state of the testator's family and the nature of his property, may
generally be proved in order to place the Court as nearly as possible in the same
condition as the testator; so that they may understand the language of his will and
apply it in the same sense in which he used it. We are of opinion that evidence may
be given of a testator having been in the habit of using expressions in a particular
sense; though, whether such evidence will affect the will, or its application, will
depend upon the particular circumstances and the language of the demise in each
case; and it would not generally be admissible to alter the natural meaning and legal
effect and construction of the words, where they have a definite and clear
meaning."
286. His Lordship added (at 389-390):
"If, then, this head of evidence be admissible, as we think it is, it distinctly appears ...
that the testator in this case was in the habit of calling the defendant his nephew;
and, as his name was Joseph Grant, he would in this view also answer the
description in a testator's will of 'my nephew Joseph Grant'.
The defendant has thus, as it seems to us, satisfactorily shewn that the words of the
will may apply either to him or to the plaintiff; and then, as there is nothing in the
85
will itself, or upon the evidence to which we have hitherto adverted, to shew which
of them was the person intended to be described and to whom the testator
intended the words to apply, the further parol evidence as to the testator's
knowledge and other circumstances became admissible, and upon such of that
evidence as was properly admissible, it is not disputed that the defendant was in
fact the person intended to be described by the testator."
287. This decision was upheld in the Court of Exchequer Chamber (Grant v Grant (1870) LR
5 CP 727).
288. In Adney v Greatrex (1869) 38 LJ Ch 414 the testator left the residue of his estate to
"all my nephews and nieces equally". The testator had only one nephew and one
niece of his own blood and there was no possibility of his having anymore nephews
and nieces in the future. In the will nephews and nieces of his wife were described as
nephews and nieces. It was held that the use of the plural "nephews and nieces"
showed that the testator intended to include nephews and nieces by affinity as well as
those by blood in the will.
289. In Sherrat v Mountford (1873) LR 8 Ch App 928 the gift was to nephews and nieces.
The testator had none. Therefore to give the will a sensible construction it could only
mean nephews and nieces by affinity. Those who would take on intestacy argued that
the will should nonetheless be construed in the primary sense of the testator's
nephews and nieces by blood so that the gift failed. To support that construction they
sought to adduce evidence that the testator was on bad terms with his wife's family.
That evidence was rejected on the basis that it was direct evidence of intention,
although it is difficult to reconcile that conclusion with the admission of evidence of
good relations admitted in the later case of Charter v Charter (1874) LR 7 HL 364.
290. In Wells v Wells (1874) LR 18 Eq 504 the testatrix left the residue of her property to "all
my nephews and nieces". She had given a specific bequest to her husband's niece
whom she described in the will as her niece. The testatrix's husband had nine
nephews and nieces, one of whom was described in the will as the testatrix's niece.
The question was whether she was entitled to share in the residuary gift as one of the
nieces of the testatrix. Sir George Jessel MR said (at 505-506):
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"Where a word has a primary signification those who allege that the testator used it
in another signification cannot show it by parol evidence extrinsic to the will. Here,
there is a gift in these terms, 'Unto all my nephews and nieces'. Have these words a
primary signification? The Court of Appeal has so decided in two cases. In the case
of In Re Blower's Trust LR 6 Ch 355 Lord Justice Mellish observed: 'It is clear that the
single words "nephews and nieces" prima facie mean the children of brothers and
sisters;' and in Sherrat v Mountford LR 8 Ch 928 at 931 the same learned Judge
observed: 'There is no doubt a man's own nephews and nieces are primarily his
nephews and nieces, but I am of [the] opinion that his wife's nephews and nieces
are his nephews and nieces according to the ordinary meaning of the words in [a]
secondary sense'. If that is so, the words 'my nephews and nieces' must, according
to these decisions, mean nephews and nieces in the primary sense, unless there is
something in the context to give the words a different meaning. ... I am of the
opinion that you cannot import the secondary meaning of the word into the
residuary gift merely because it has been used in the former part of the will, and in
this I agree with the view taken by Vice Chancellor Wood in Smith v Lidiard."
291. Sir George Jessel then disapproved of Grant v Grant.
292. Wells v Wells took both the literal approach to the construction of wills and a
restrictive view of the admission of extrinsic evidence that would not now be
supported.
293. In Seal-Hayne v Jodrell [1891] AC 304 the testator left his residuary estate equally
between "his relatives thereinbefore named". He had left legacies to persons by
name, some of whom were described as his cousins and others as his nieces. The
persons described as his nieces were his wife's nieces, and not his nieces by blood.
Some of the persons described as cousins were illegitimate relatives. The House of
Lords held that all of the persons so named took under the residuary bequest because
the testator had described them as relatives.
294. In The Goods of Ashton [1892] P. 83 the testator appointed "my nephew George
Ashton" as one of his executors. He had a nephew George Ashton who was the
legitimate son of his brother and there was a George Ashton who was the illegitimate
son of his sister. The question was whether parol evidence could be admitted to show
who was intended. Jeune J expressed a preference for Grant v Grant to Jessel MR's
decision in Wells v Wells. His Lordship found that the testator had made his own
dictionary by describing an illegitimate grand-nephew as his nephew and an
87
illegitimate niece as his niece. The evidence as admitted to resolve what was found to
be ambiguous.
295. In Re Cozens; Miles v Wilson the words "nephews and nieces" were held to mean
prima facie the children of brothers and sisters, including those of the half-blood. The
expression "my own nephews and nieces" restricted the class to persons who were the
lawful nephews or nieces of the testatrix of the whole or half-blood to the exclusion of
great-nephews and great-nieces and to the exclusion of nephews or nieces of the
testatrix's husband. The construction depended on the particular descriptions given in
the will to the different relatives.
296. In Re Green; Bath v Cannon [1914] 1 Ch 134 the testatrix appointed "my nephews" AB,
RHL and WHH to be the executors and trustees of her will. She gave her residuary
estate upon trust for division "between my nephews and nieces living at the date of
my decease" and the children then living of her nephews and nieces who had
predeceased her. AB was the son of the testatrix's brother. RHL and WHH were
nephews of her first husband. Sargent J held that only the testatrix's own nephews
and nieces and the children of such of them as had predeceased her took under the
gift of residue. Sargent J said that the use of the word "nephews" in the appointment
of RHL and WHH as executors did not extend the class of those who took the gift of
residue to nephews and nieces by affinity. RHL and WHH were also held not to be
included in the gift. His Lordship applied Smith v Lidiard and Wells v Wells.
297. In Re Winn; Burgess v Winn (1916-17) All ER Rep 758 Eve J reached the same
conclusion in finding that a gift to nephews and nieces did not include nephews and
nieces by affinity.
298. In Re Davis; Douglass v McPhee (1933) 33 SR (NSW) 330 a testatrix left her estate to
her husband for life thereafter to be equally divided among "all the nieces then living
after his death". Long Innes J held (at 332) that:
"The conclusion to which I have come is that there is not here a context sufficient to
deprive the word 'nieces' of its legal signification as meaning nieces by blood and
not by affinity."
88
299. In Attorney-General v The Commonwealth (1962) 107 CLR 529 Dixon CJ said (at 545):
"We are all familiar with the rule that in any disposition of property whether
testamentary of inter vivos a reference to son, daughter, nephew, niece, sister or
any ordinary descriptive term implying blood relationship is to be construed as
confined to those filling the description by legitimate blood relationship: only a very
strong context or a context aided by extrinsic circumstances leaving no logical
escape will authorize any other interpretation. The rule when it became settled was
not considered artificial but to accord with the intention expressed in the words."
300. In Re Watson [1949] VLR 185 the gift was to the testator's grand-nieces and grand-
nephews who were living at the time of his death. There were 26 such persons. The
gift was construed as a gift to great-grandchildren. The reason for this was that in the
will the testator had referred to his great-grandchild as his grand-niece. He had two
great-grandchildren and had taken a special interest in the great-grandchild whom he
named in the will, but wrongly described as a grand-niece. It did not appear whether
he knew of the existence of all of his grand-nephews and nieces. Herring CJ concluded
that the testator intended to benefit the named person and any who stood in the
same relation to him as she did, thus making his own dictionary, so that the expression
"grand-nieces and grand-nephews" was held to mean "great-grandchildren".
301. In Trustees Executors and Agency Co Limited v Johnston [1970] VR 587 the gift was to
nephews and nieces and the question was whether this included nephews and nieces
by affinity. In the will the testator had appointed a niece and nephew of his wife as
executors and described them as "my niece and my nephew". Nonetheless, it was
held that the gift to "nephews and nieces" meant only nephews and nieces by blood
and not by affinity. Adam J said (at 589):
"... it is not uncommon practice for one to apply the description 'my nephew or my
niece' inaccurately in association with the naming of a particular nephew or niece by
affinity as a term of affection where there has been a close and friendly relationship
between a husband and such relatives of his wife's. The use of such inaccurate
descriptions in such a context appears to me to provide no sure guide to the
meaning to be attached to a gift by him to a large class generically described by him
as 'my nephews and nieces'."
302. In the Estate of Wilson; Pickering & Anor v Jones & Ors (Murphy J, Supreme Court of
Victoria, unreported, 15 October 1987) a gift to "all my Nephews and Nieces" was held
89
not to include nephews and nieces by affinity. There was insufficient context to
displace the prima facie meaning of nephews and nieces as meaning only nephews
and nieces of the full blood or the half-blood.
303. In Morgan v Moore [2000] VSC 94 the gift was to "my grandchildren". The testatrix
had been married twice and had an ex-nuptial child. She was aware that her children
of her first marriage themselves had children, but had disowned them. Warren J (as
her Honour then was) held that the grandchildren who were born of the children of
the first marriage did not take. The will provided for the grandchildren to take
increasing proportions of the estate as they turned 21, 22, 23 and 24. The
grandchildren from the first marriage were over 25. This, coupled with extrinsic
evidence that she was estranged from the children of her first marriage, that she did
not inform her solicitor of the existence of grandchildren from her first marriage, and
that she denied her relationship with such grandchildren, led to the conclusion that
the gift should be read down so as not to apply to grandchildren born to the children
of the testatrix's first marriage.
Construction of clause 4 of the will
304. The construction of clause 4 is not to be approached on the basis that the words "my
nephews and nieces" are to be given a "strict and primary meaning" of nephews and
nieces by blood, unless the extrinsic circumstances of the case would show that those
words would not make sense (compare Wigram, An Examination of the Rules of Law
Respecting the Admission of Extrinsic Evidence in Aid of the Interpretation of Wills,
propositions I (page 16), II (page 18) and III (page 47)). Instead the question is, having
regard to the admissible extrinsic evidence, what did the testatrix mean by the words
"my nephews and nieces"? In Perrin v Morgan, Viscount Simon LC said (at 406):
"... the fundamental rule in construing the language of a will is to put on the words
used the meaning which, having regard to the terms of the will, the testator
intended. The question is not, of course, what the testator meant to do when he
made his will, but what the written words he uses mean in the particular case - what
are the 'expressed intentions' of the testator."
305. Lord Atkin said (at 414):
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"... the construing court has to ascertain what was meant, being guided by the other
provisions of the will and the other relevant circumstances, including the age and
education of the testator, his relations to the beneficiary chosen, whether of kinship
or friendship, the provision for other beneficiaries, and other admissible
circumstances. Weighing all these, the court must adopt what appears the most
probable meaning. To decide on proven probabilities is not to guess but to
adjudicate. If this is to decide according to the 'context', I am content, but I cannot
agree that the court is precluded from looking outside the terms of the will. No will
can be analysed in vacuo. There are material surroundings such as I have suggested
in every case, and they have to be taken into account. The sole object is, of course,
to ascertain from the will the testator's intentions."
306. Sam and Tess Brewer did not have a relationship with the deceased that would
ordinarily be described as a relationship of aunt and nephew and niece. They were not
the children of a brother or sister of the deceased. Nor were they the children of a
brother or sister of a husband of the deceased. They were not related to her by blood
or by marriage. Dictionaries cannot be used as a substitute for judicial determination
of the meaning of the words used by the deceased (Provincial Insurance Australia Pty
Ltd v Consolidated Wood Products Australia Pty Ltd (1991) 25 NSWLR 541 at 560-562;
House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at
[25]-[29]), but they can provide valuable assistance in ascertaining current usage. The
Macquarie Dictionary published in 2001 and reprinted in 2003 was the edition in print
at the time the deceased made her will. It gave as the primary meaning of nephew
and niece; a son or daughter of one's brother or sister. It gave as the secondary
meaning; a son or daughter of one's husband's or wife's brother or sister. A son or
daughter of one's de facto partner's brother or sister was not included. For some
purposes laws have been passed which give de facto partners the same or similar
rights as husbands or wives. Nonetheless, there are fundamental and substantial
differences between relations between spouses and relations between de facto
partners; most notably the absence of a formal commitment (Evans v Marmont (1997)
42 NSWLR 70 at 79). This makes it unsafe to conclude, in the absence of other
supporting material, such as a dictionary, that an ordinary meaning of nephew or niece
extends to the nephew or niece of one's de facto partner.
307. That is not the end of the issue. Just as a testator might show from the text of the will
that he is using a particular word in an unusual or even an unnatural sense (e.g. In Re
91
Watson), so extrinsic evidence admitted under the armchair principle can give either
an extended or a restricted meaning to the words in a will where that is shown to be
the testator's intention (e.g. Morgan v Moore). Extrinsic evidence can show that the
testator uses a word in other than its natural sense. Nonetheless, as Bovill CJ said in
Grant v Grant in the passage quoted at [33] above, the effect of such evidence
depends on the particular circumstances and the language of the will in each case.
Extrinsic evidence will not generally be allowed to alter the natural meaning and
construction of words which have a definite and clear meaning. It is the intention
expressed by the testator by the words in the will which governs.
308. It is one thing to use a particular description in a social context to convey affection. It
is another to assume that the testatrix when making a will to dispose of her property
intended to use the description other than in its ordinary meaning. It is reasonable to
assume that the deceased would have asked herself how the words she used would be
understood by someone called on to administer the will which, in the case of clause 4
taking effect, would be Mr Parry. He was not a party to conversations in which she
described Sam and Tess Brewer as her nephew and niece. Further, it does not appear
that within her own family the deceased referred to Sam or Tess Brewer as her
nephew and niece. Peter Brewer gave no evidence of her doing so. His wife Miriam
said that the deceased did not so describe the children to her, as distinct from
introducing them to others in that way. Zera Haisma said that the deceased did not so
describe the children in discussions with her.
309. I do not consider that the evidence that the deceased from time to time (and mostly
after she made her will) referred to Sam and Tess Brewer as her nephew and niece,
means that she intended that they be included in that description in her will.
Describing them so made her sound younger and it conveyed affection. Whilst the
deceased so described them from time to time, she understood that they did not
come within the ordinary conception of nephew or niece. I do not conclude that the
deceased intended that the class should be extended to them.
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310. The costs of the executor were ordered to be paid from the estate on the indemnity
basis, and the costs of all defendants were ordered to be paid from the estate on the
ordinary basis.
311. The Court made the following declaration:
Declare that on the true construction of the will dated 1 October 2003 of the late Hinka Haisma who died on 19 September 2009 and in the events which have occurred the gift by the deceased in clause 4 of the will of "the whole of my estate to such of my nephews and nieces as survive me by 90 days and if more than one in equal shares" is a gift to:
(a) nephews and nieces of the whole blood (being the first to seventh defendants); and
(b) nephews and nieces of the half-blood (being the eighth to twelfth defendants); and
(c) does not include the children of Peter Brewer, the brother of the deceased's (now deceased) partner Richard James Brewer (being the thirteenth and fourteenth defendants).
Family Provision and Notional Estate Under the Succession Act 2006
Kastrounis v Foundouradakis [2012] NSWSC 264 per Hallen AsJ
312. Max Kastrounis and Maria De Chellis, the son and daughter of Erini Kastrounis ("the
deceased"), applied for a family provision order under Chapter 3 of the Succession Act
2006 ("the Act"). The Defendants named in the Summons were three of the
grandchildren of the deceased, namely Anna, Connie and Irene, the daughters of the
deceased's daughter, Jasmine Kastrouni (who made no claim).
313. The deceased died aged 88 years. She married her husband, Nikitas, in the early
1940's and remained married to him until his death in August 2005. Together they had
purchased a property at Brighton-Le-Sands. Upon Nikitas’ death, the deceased was
the sole registered proprietor.
314. The deceased left a Will that she made on 19 June 2009, in which she appointed the
Defendants as executors and trustees. They obtained a grant of Probate of the
deceased's Will.
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315. The deceased's Will provided for a pecuniary legacy of $10,000 for each of the
deceased's children, Max, Jasmine and Maria. The rest and residue was to be held on
trust, to be divided and distributed equally between two of the Defendants, namely
Anna and Irene. Each of the pecuniary legatees has been paid.
316. In the Inventory of Property, the deceased's actual estate, at the date of death, was
disclosed as having an estimated, or known, gross value of $51,530. No liabilities were
disclosed. After the payment of probate costs ($211) and the distribution of the
legacies ($30,000), the value of the deceased's actual estate was estimated to be
$21,319. The interest that has accrued on this amount, since death, is $3,059.
Accordingly, the value of the actual estate, at the date of hearing, is estimated to be
$24,378.
317. The Plaintiffs sought an order designating the Brighton-Le-Sands property, or the
proceeds of sale thereof, or other property of each of the Defendants, as notional
estate.
318. On 30 March 2009, the deceased instructed Mr Jordan, solicitor, to cause the
Brighton-Le-Sands property to be transferred to Anna, Connie and Irene as tenants in
common in equal shares.
319. A valuation, dated 19 May 2009, disclosed that the value of the Brighton-Le- Sands
property, for stamp duty purposes, was then $500,000.
320. The deceased and Anna, Connie and Irene, entered into a Contract for Sale in June
2009. The purchase price disclosed on the Contract was $500,000. The Contract and
Transfer was stamped in July 2009 and the Transfer was registered in August 2009.
Anna, Connie and Irene paid the stamp duty of $17,990. However, none of the
purchase price was paid to the deceased.
321. Anna, Connie and Irene sold the Brighton-Le-Sands property in about May 2010, for
$549,000. The net proceeds of sale amounted to about $538,950. (The share of each
of the Defendants was, therefore, about $179,650.)
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322. Using the above estimates, at the hearing, the parties agreed that the estimated value
of the actual, and the total amount of property that may be designated as the
notional, estate of the deceased (subject to the payment of the costs of the
proceedings), is about $563,328. For the purposes of the hearing, the estimated net
distributable actual estate, and what may be designated as notional estate, was about
$439,670, after the payment of costs.
323. The deceased was in poor health in the last year or so of her life. Her health
deteriorated considerably in 2009, at which time she had serious heart problems. She
did not, then, have long to live.
324. At the time of the deceased signing the Contract, she had the following conversation,
in the Greek language, with Mr Jordan:
"I said: "This is the Contract that you wanted me to prepare. You understand that
you are transferring your house to your three granddaughters, Anna, Connie and
Irene?"
She replied: "Yes I understand that."
I said: "I know that you have instructed me to do this but I need to ask you some
questions. Do you understand what the transfer means?"
She replied: "I know that they can throw me in the street if they want. But they
won't."
I said: "You know that you are not getting any money for the transfer of the house to
your granddaughters?"
She replied: "That's alright. The girls will feed me and look after me. They have
been doing it for years anyway."
325. The following special conditions appeared in the Contract:
"The Vendors and Purchasers agree that the consideration listed on the face of the
Contract is the market valuation for stamp duty purposes.
The Vendor will not require the Purchasers to pay any consideration to the Vendor
for the transfer in gratitude for and acknowledgement of the purchasers' (sic) taking
care of the Vendor's welfare since the death of the Vendor's husband.
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The Purchasers hereby agree that they will allow the Vendor to reside within the
property for the whole of her lifetime for no consideration and the Purchasers
further agree that they will pay for all outgoings, utilities and maintenance for the
property during the occupation of the property by the Vendor.
This clause shall not merge upon completion."
326. At the time of the hearing, Irene had used her share of the proceeds of sale of the
Brighton-Le-Sands property to reduce, by $65,000 to $70,000, the debt secured by
mortgage on her Carss Park property; to pay legal expenses of these proceedings
($40,000); to assist in purchasing a car for each of her children (in total, about
$20,000) and the balance, to renovate the Carss Park property.
327. Anna had retained about $90,000 of her share of the proceeds of sale in a term
deposit (said to be "for her children"). She had spent the balance in reducing the debt
secured by mortgage on their home, to pay off other debts, and for her and her
family's living expenses.
328. Connie had retained, from her share of the proceeds of sale between $160,000 and
$170,000. She has used the balance to pay family expenses.
329. By letter dated 24 March 2010, the Plaintiffs' solicitors advised the Defendants'
solicitors of the Plaintiffs' intention to commence proceedings under the Act. By letter
dated 27 May 2010, the Defendants' solicitors wrote to the Plaintiffs' solicitors
acknowledging that the Plaintiffs "intend to file a Summons for provision out of the
estate".
330. At the time of the sale of the Brighton-Le-Sands property by the Defendants (May
2010) and at the time when each of them received, and subsequently, spent all, or
part, of her share of the proceeds of sale, she knew that a claim for a family provision
order was to be made by each of the Plaintiffs.
Notional Estate
331. The notional estate provisions of the Act are dealt with in Part 3.3 of the Act.
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332. It has been said, in respect of the notional estate provisions in the former Act, that an
applicant for provision "may now apply in the same proceedings for orders for relief
and designating property as "notional estate" thereby compelling the "disponee" of a
"prescribed transaction" to provide money or property for the purpose of making
financial provision for the applicant": Kavalee v Burbidge; Hyland v Burbidge (1998) 43
NSWLR 422 at 441. Although the terminology in the Act is different, the same
principle applies under the Act.
333. Section 63(5), relevantly, provides that a family provision order may be made in
relation to property that is not part of the estate of a deceased person if it is
designated as notional estate of the deceased person by an order under Part 3.3 of the
Act.
334. Importantly, the power to make a notional estate order does not arise unless the
Court is satisfied that (a) the deceased person left no estate, or (b) the deceased
person's estate is insufficient for the making of the family provision order, or any order
as to costs, that the Court is of the opinion should be made, or (c) provision should not
be made wholly out of the deceased person's estate because there are other persons
entitled to apply for family provision orders or because there are special circumstances
(s 88).
335. The Court must not designate as notional estate, property that exceeds what is
necessary, in the Court's opinion, to allow the provision that should be made, or, if the
Court makes an order that costs be paid from the notional estate under s 99, to allow
costs to be paid as ordered, or both (s 89(2)).
336. Section 74 of the Act provides that "relevant property transaction" means a
transaction, or circumstance, affecting property and described in s 75 or s 76.
"Property" includes "any valuable benefit".
337. Subsection 75(1) of the Act provides:
"A person enters into a relevant property transaction if the person does, directly or
indirectly, or does not do, any act that (immediately or at some later time) results in
property being:
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(a) held by another person (whether or not as trustee), or
(b) subject to a trust,
and full valuable consideration is not given to the person for doing or not doing the
act.
338. Section 76 of the Act provides a description of some, but not all, of the circumstances
that constitute the basis of a relevant property transaction for the purposes of s 75.
Any such circumstance is "subject to full valuable consideration not being given".
Importantly, a distinction must be drawn between "valuable consideration" and "full
valuable consideration": see, for example, s 76(4) of the Act.
339. Important, also, is the omission of the words "in money or moneys worth" after "full
valuable consideration" which had appeared in s 22 of the former Act. Furthermore,
the phrase "is not given" rather than "is not received" is also significant.
340. Hallen AsJ said: “The expression "subject to full valuable consideration not being
given", in my view, has the effect of imposing a requirement, wholly separate from the
result, which is property being held by another person or subject to a trust.”
341. One such circumstance identified in s 76(2)(f)), is if the deceased enters into a contract
(full valuable consideration not having been given) disposing of property out of his, or
her, estate, whether or not the disposition is to take effect before, on or after, her, or
his, death, or under her, or his, will, or otherwise.
342. The test whether the consideration given is full valuable consideration or not is not set
out in the Act.
343. The meaning of the expression has been the subject of discussion in a number of cases
under the former Act and other legislation, which were referred to by Young J (as his
Honour then was) in Wade v Harding (1987) 11 NSWLR 551 at 554-555. His Honour
concluded that in determining whether full valuable consideration was given for an
act, or omission, for the purpose of s 22 of the former Act, it was legitimate to look to
the nature of the transaction and consider whether what was given is a fair equivalent
for what is received.
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344. Respectfully, I adopt these views as to the meaning of that expression. I accept that
"full valuable consideration" means such valuable consideration as amounts to,
approximates, or is broadly commensurate with, or is a fair equivalent of, the value of
that for which it is given.
345. Whether full valuable consideration is given is a question of fact and involves no
exercise of discretion. In my view, the court should determine the question applying a
commonsense approach and "avoiding finely balanced mathematical computations
involving the value of normal exchanges of support in the domestic sense": Jelley v
Iliffe [1980] EWCA Civ 4; [1981] 2 All ER 29.
346. The omission of the words "in money or moneys worth" raises the question whether,
in the appropriate circumstances, personal services by way of care and attention,
which are motivated by love and affection, moving to the deceased, can, as a matter
of law, count as full valuable consideration given to her or him, under the Act.
347. However, assuming that it does, balancing the value of imponderables, such as
companionship and other personal services, on which the court has somehow to put a
financial value, against the consideration that is shown in a contract in which the
deceased disposes of her, or his, property, is likely to be a hard task. No doubt, for this
reason, the value of the property the subject of the contract and the full valuable
consideration given for it do not have to exactly agree.
348. The evidence as to the latter matter is quite plain, that is the whole of the household
expenses, the provision of the accommodation and rates, everything of that sort as
well as the grocery bills and the other items which went to make up the domestic
regime were wholly and exclusively, outside the ambit of purely personal expenditure
of the applicant, paid for by the deceased. So on the one hand one has the measure
on the receiving side of what has to be considered as to whether it is or is not a full
valuable consideration for the other. I do not, of course, know the standard at which
these ladies lived; I cannot put any precise amount of money on that provision. It was,
however, a full provision; the whole of the household was run at the expense of the
deceased.
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349. The onus of establishing that full valuable consideration was not given lies on the party
asserting that proposition. Where, however, that party establishes a prima facie case
of inadequacy of the valuable consideration given, the evidential burden will pass to
the other party to establish that there was, indeed, consideration given, and the
extent of that consideration.
350. Where, for example, as here, the Transfer of the Brighton-Le-Sands property disclosed
a monetary consideration (the purchase price), but it is common ground that no part
of that monetary consideration was paid by the Defendants to the deceased at the
time, an evidential onus passes to them to demonstrate that there was full valuable
consideration given to her.
351. In determining the answer to the question, I am inclined to the view that when the
relevant transaction involves a contract for the disposition of the deceased's property,
the first inquiry must always be, what is the actual value of that property? The second
question is whether the monetary consideration, if any, identified in the contract, is
commensurate with that value. The next question is what consideration is given by
the other party or parties to the deceased? The final question is whether the
consideration given amounts to full valuable consideration?
352. Where the monetary consideration identified in the contract the subject of the
relevant property transaction is the actual value of the property being disposed of by
the deceased, but all of that consideration is not given to the deceased, there may be
some difficulty in establishing that "full valuable consideration" has been given, even if
other consideration, in money or moneys worth, is provided by the person, or persons,
to whom, or for the benefit of whom, the contract is made, or by any other person. In
those circumstances, the monetary value of the other consideration given to the
deceased should be the subject of evidence.
353. Section 77(1) provides that for the purposes of Chapter 3 of the Act, a relevant
property transaction is taken to have effect when the property concerned becomes
held by another person, or subject to a trust, or as otherwise provided by the section.
Sub-section (4) provides that a relevant property transaction that involves any kind of
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contract for which valuable consideration, though not full valuable consideration, is
given for the deceased to enter into the transaction is taken to be entered into, and
take effect, when the contract is entered into.
354. Section 78 of the Act provides:
"(1) The Court may make an order designating property as notional estate only:
(a) for the purposes of a family provision order to be made under Part 3.2, or
(b) for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid from the notional estate of the deceased person.
(2) The Court must not make an order under subsection (1) (b) for the purposes of an order that the whole or part of an applicant's costs be paid from the notional estate of the deceased person unless the Court makes or has made a family provision order in favour of the applicant."
355. Section 80(1) provides that the Court may, on application by an applicant for a family
provision order, or on its own motion, make a notional estate order designating
property specified in the order as notional estate of a deceased person, if the Court is
satisfied that the deceased person entered into a relevant property transaction before
his, or her, death and that the transaction is a transaction to which this section applies.
356. Section 80(2) provides for the section to apply to the following relevant property
transactions:
(a) a transaction that took effect within 3 years before the date of the death of
the deceased person and was entered into with the intention, wholly or
partly, of denying or limiting provision being made out of the estate of the
deceased person for the maintenance, education or advancement in life of
any person who is entitled to apply for a family provision order;
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(b) a transaction that took effect within one year before the date of the death of
the deceased person and was entered into when the deceased person had a
moral obligation to make adequate provision, by will or otherwise, for the
proper maintenance, education or advancement in life of any person who is
entitled to apply for a family provision order which was substantially greater
than any moral obligation of the deceased person to enter into the
transaction;
(c) a transaction that took effect or is to take effect on or after the deceased
person's death.
357. It is not essential that the applicant be able to rely upon the provisions of more than
one of the subparagraphs identified. It is sufficient if he or she is able to establish the
matters in any of them.
358. Section 80(2)(a) requires the relevant property transaction to be entered into with the
intention, wholly or partly, of denying or limiting provision being made out of the
estate of the deceased for the maintenance, education or advancement in life of any
person who is entitled to apply for a family provision order.
359. Whether the deceased has the necessary intention is a question of fact to be decided
upon consideration of all the circumstances. One might expect there to be some
language, written or oral, used, or adopted, by the deceased, from which the court is
able to find, as a fact, the necessary intention prior to, or at, the time of, the relevant
property transaction.
360. It is the intention with which the transaction was entered into, rather than the effect
of that transaction, which is important. If that intention cannot be established, that
the effect of the transaction is to wholly or partly, deny, or limit, provision, does not
matter. It is not enough that the relevant property transaction has that particular
result. In other words, what the subsection requires is not cause and effect, but
intention and effect: Wilson v Wright (NSWSC, 25 February 1992, unreported), per
Windeyer J.
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361. Section 80(2)(b), requires a comparison of "the moral obligation to make adequate
provision, by will, for any eligible person ("a person who is entitled to apply for a
family provision order") with "the moral obligation of the deceased to enter into the
relevant property transaction", without full valuable consideration having been given.
The latter expression focus upon moral obligation surrounding the particular
transaction in question.
362. The expression "moral obligation" is no more than a simple and convenient way of
referring to the obligation resting upon a deceased to make a wise and just
assessment of the interests of any person who is able to ask to be taken into account
in determining what adequate provision for proper maintenance, education and
advancement in life, should have been made for him or her: Collicoat v McMillan
[1999] 3 VR 803.
363. With this in mind, it is difficult to read the words "the moral obligation of the deceased
to enter into the property transaction" literally. In determining whether this element
is satisfied, the moral obligation of the deceased owed to any eligible person must be
compared with the moral obligation to enter the transaction for the benefit of the
party, or parties, to whom the property of the deceased is disposed by the relevant
property transaction, and who does, or who do, not give full valuable consideration. If
there was, then, a substantially greater moral obligation for the deceased to preserve
the estate for the benefit of any eligible person to whom the deceased had a moral
obligation to make adequate provision for his, or her, proper maintenance, education
or advancement in life, than to arrange his, or her, affairs with the result that the
property would be disposed of out of his, or her, estate, the sub-section would be
satisfied.
364. Unlike s 80 (2)(a), the deceased's intention is irrelevant in making this assessment:
Ebert v Ebert; Ebert v Ebert [2008] NSWSC 1206 at 133.
365. The court's decision must be made having regard to the circumstances at the time of
entry into the transaction, since, in its terms, s 80(2)(b) requires an assessment of any
competing moral obligation "when" the deceased entered into the transaction.
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366. The word "substantially" is one of indefinite meaning and lacks precision. The word is
quantitatively imprecise, but it must be given its natural meaning, which I take to
mean real and not trivial, minimal, imaginary, ephemeral, or nominal.
367. However, by adding the word "substantially...", the section requires the relevant moral
obligation to any eligible person to be of real substance, compared with the moral
obligation to enter the relevant property transaction.
368. Halen AsJ said he must consider, since each of the Plaintiffs, is a child of the deceased,
whether the deceased, in about June 2009, had a moral obligation to make adequate
provision for his, and her proper maintenance, education and advancement in life,
which was substantially greater than her moral obligation to transfer the Brighton-Le-
Sands property to the Defendants, in circumstances where she had made a Will in
which she had provided for that property to pass to them as tenants in common in
equal shares.
369. Section 80(3) provides, so far as is relevant:
"(3) Property may be designated as notional estate by a notional estate order under
this section if it is property that is held by, or on trust for:
(a) a person by whom property became held (whether or not as trustee) as the
result of a relevant property transaction, or
(b) ...
whether or not the property was the subject of the relevant property transaction."
370. Section 83 of the Act relevantly provides that the Court must not, merely because a
relevant property transaction has been entered into, make an order under s 80, unless
the Court is satisfied that the relevant property transaction, or the holding of property
resulting from the relevant property transaction, directly or indirectly disadvantaged
the estate of the principal party to the transaction or a person entitled to apply for a
family provision order from the estate or, if the deceased person was not the principal
party to the transaction, the deceased person (whether before, on or after death).
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371. The effect of a notional estate order is that "a person's rights are extinguished to the
extent that they are affected by a notional estate order" (s 84).
372. The Court's power to make a notional estate order is also circumscribed by other
sections. Section 87 provides:
"The Court must not make a notional estate order unless it has considered the
following:
(a) the importance of not interfering with reasonable expectations in relation to
property,
(b) the substantial justice and merits involved in making or refusing to make the
order,
(c) any other matter it considers relevant in the circumstances."
In John v John [2010] NSWSC 937 at [118] - [120], Ward J said:
"[118] What amounts to "reasonable expectations in relation to property" was
considered in Petschelt v Petschelt [2002] NSWSC 706, at [68], by McLaughlin M (as
the Associate Justice then was), who said:
That phrase does not, however, indicate the person by whom those reasonable
expectations are held. Clearly the Court must consider the reasonable expectations
of the First Defendant in relation to property. By the same token, however, the
Court should also consider the reasonable expectations of the Deceased herself in
relation to property, and also, possibly, the reasonable expectations of the Plaintiff.
[119] In D'Albora v D'Albora [1999] NSWSC 468, at [53], Macready M (as the
Associate Justice then was) gave examples of the circumstances which might give
rise to reasonable expectations for the purposes of this section:
Under s 27(1)(a) the Court has to consider the importance of not interfering with the
reasonable expectations in relation to the property. Such reasonable expectations
may well occur in a number of circumstances. For example, a beneficiary who
receives a property may have spent money on the property or worked on the
property ... Another common area where one often sees in this matter is where
there is a promise in relation to the property and the acting by an intended
beneficiary on the fact of that promise.
[120] Similarly, in Wentworth v Wentworth [1992] NSWCA 268, Priestley JA, with
whom Samuels AP and Handley JA agreed, referring to the "more general
precautionary provisions" in ss 26 and 27 of the Family Provision Act, said:
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S 27(1) for example, says the Court shall not make an order designating property as
notional estate unless it has considered, amongst other things, the importance of
not interfering with reasonable expectations in relation to property. If someone is in
possession of property, otherwise than by gift, after having given up something of
equivalent value in order to obtain that property, it would be entirely reasonable for
that person to expect to remain in possession of it."
373. The "substantial justice and merits" referred to in s 87(b) of the Act are linked to the
making, or refusing to make, an order designating property as notional estate: Smith v
Woodward (NSWSC, Macready M (as his Honour then was), 9 September 1994,
unreported).
374. The position of the persons entitled to apply for a family provision order from the
estate, as well as the persons involved in the relevant property transaction, should be
considered in respect of s 87(b) and (c) of the Act.
375. Section 89(1) of the Act, relevantly, provides that in determining what property should
be designated as notional estate of the deceased, the Court must have regard to (a)
the value and nature of any property the subject of a relevant property transaction; (b)
the value and nature of any consideration given in a relevant property transaction; (c)
any changes in the value of property of the same nature as the property referred to in
paragraph (a), or the consideration referred to in paragraph (b), in the time since the
relevant property transaction was entered into; (d) whether property of the same
nature as the property referred to in paragraph (a), or the consideration referred to in
paragraph (b), could have been used to obtain income in the time since the relevant
property transaction was entered into; and (e) any other matter it considers relevant
in the circumstances.
376. If the Court has made, or proposes to make, a family provision order designating
certain property as notional estate, s 92 of the Act enables the Court, on application by
a person who offers other property in substitution ("the replacement property"), to
vary the notional estate order by substituting the replacement property for the
property designated as notional estate by the order, or make a notional estate order
designating the replacement property as notional estate instead of the property
proposed to be designated as notional estate by such an order, as appropriate.
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However, such an order may only be made if the court is satisfied that the
replacement property can properly be substituted.
377. I must consider whether there was a relevant property transaction, and, if so, the
value and nature of any property which is the subject of the relevant property
transaction.
378. As a result of the Contract for the sale of the Brighton-Le-Sands property and the
registration of the Transfer of that property, the Defendants were registered as
tenants-in-common in equal shares. Prior to the Contract being entered into, the
consideration stated in the Contract was determined by independent valuation (albeit
for stamp duty purposes).
379. The Plaintiffs submitted that since the deceased, upon the transfer of the Brighton-Le-
Sands property to the Defendants, did not receive the consideration set out on the
face of the Contract for Sale ($500,000), there is a relevant property transaction for
which there was not full valuable consideration given. The only amount that the
Defendants paid was the stamp duty ($17,790).
380. However, the solicitor's conversation with the deceased reveals that the deceased
acknowledged, and the Contract specifically provided, that the Defendants were not to
give her any of the purchase price for the transfer to them of the Brighton-Le-Sands
property. She expected them "to feed me and look after me" as they had done for
years. In addition, whilst she would no longer be the registered proprietor, she would
be entitled to remain in occupation, relieved from any obligation to paying outgoings,
utilities and maintenance. The promises made by the Defendants as well as the
payment of the stamp duty must also be regarded as part of the valuable
consideration provided by them: Vaysbakh v Vaysbakh [2007] NSWSC 1223 at [86] -
[87].
381. But, I have earlier noted that the words "in money or money's worth", appearing in
the former Act after the term "full valuable consideration", have been omitted from
the Act. Possibly, this is because the balancing of imponderables such as
companionship and other services to be provided, on which the court has, somehow,
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to put a financial value, against the consideration identified in the contract is a difficult
task.
382. In this case, in any event, there is no evidence of the value of such imponderables that
were to be provided by the Defendants. Natural love and affection on its own would
not suffice. Nor is there evidence of, for example, what it would cost to feed and
house the deceased and what the outgoings to be paid were likely to be.
383. Importantly, the Act requires "full valuable consideration" and not just "valuable
consideration". The word "full" must be given meaning and effect. The valuable
consideration given must be, therefore, approximately equivalent to the value of the
property that is disposed of by the deceased.
384. In this regard, I must also bear in mind the medical records, which reveal that the
deceased was not likely to live very long. Thus, the financial, and other, obligations of
the Defendants would cease within a relatively short period of time.
385. In all the circumstances, it is unlikely, that the value of housing and feeding the
deceased, as well as paying for all outgoings, utilities and maintenance, for the
Brighton-Le-Sands property during her occupation would amount to, approximate, be
broadly commensurate with about $500,000.
386. Because no part of the monetary consideration identified in the Contract was given by
the Defendants to the deceased, and because the value stated therein appears to have
been the value of the Brighton-Le-Sands property at the relevant time, and because of
the matters stated above, I am of the view, in this case, that "full valuable
consideration" was not given for the relevant property transaction.
387. Even if one were to include the Defendants' care of the deceased's welfare following
her husband's death (which is past consideration), I am not satisfied that "full valuable
consideration" was given by them to the deceased for her entering into the relevant
property transaction which resulted in the Defendants' ownership of the Brighton-Le-
Sands property.
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388. The evidence, given by Mr Jordan, satisfied the court that the intention of the
deceased was to reward the Defendants, not to deny, or limit, any claim that any
eligible person might have.
389. In those circumstances, the requisite intention of the deceased is not established and s
80(2)(a) does not apply.
390. The transfer of the Brighton-Le-Sands property to the Defendants took effect within
one year before the date of the death of the deceased.
391. The next consideration was whether it was a transaction that was entered into when
the deceased "had a moral obligation to make adequate provision, by will, or
otherwise, for the proper maintenance, education or advancement in life of any
person who is entitled to apply for a family provision order" (in this case, either of the
Plaintiffs) "which was substantially greater than any moral obligation of the deceased
... to enter into the transaction".
392. His Honour found that the deceased, in June 2009, did have a moral obligation to
make adequate provision, by will, for the proper maintenance and advancement in life
of each of the Plaintiffs and of Jasmine. She, herself, realised this, by making each of
them a pecuniary legatee in her Will, which she then made.
393. That obligation was substantially greater in circumstances where she had made a Will
in which she provided for a devise of the Brighton-Le-Sands property to the
Defendants absolutely, which meant that they would have distributed to them that
property on her death, subject to any claims made for provision out of the deceased's
estate.
394. There was no relevant reason advanced, other than to reward the Defendants, for the
deceased entering into the Contract with, and then subsequently transferring the
property to, the Defendants. Their position would not have been materially different
had they received the Brighton-Le-Sands property following the deceased's death.
This is so, particularly because of the contractual right granted to the deceased to live
there as long as she wished.
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395. Anna, Connie, and Irene, is each a person whose "reasonable expectations" should be
considered since, in the events that happened, each is a person who received the
deceased's benefaction by transfer to her of an interest in the Brighton-Le-Sands
property.
396. No doubt, they expected to inherit the Brighton-Le-Sands property. However, there
was no evidence that they expected to receive that property before the death of the
deceased. The earliest such an expectation could have been held by each was when
she attended, with the deceased, at the Centrelink office. If any of them had such an
expectation prior to that time, the reasons for doing so was not explained in the
evidence. Even then it was possible for the deceased to change her mind.
397. At the time the Defendants sold the Brighton-Le-Sands property, they were well aware
of a claim for provision to be made by each of the Plaintiffs. Whether each Defendant,
then, had an expectation that she would be able to retain the whole of her share of
the proceeds of sale was not explored in the evidence. If she did, such an expectation,
considering the financial and material circumstances of each of the Plaintiffs, could not
have been a reasonable one.
398. His Honour was satisfied that the substantial justice and merits require the Court to
make a designating order. In this regard, the Act is not one that "punishes".
399. His Honour said that in this case, it is difficult to see what disadvantage there is to the
estate in the deceased having entered into the Contract and transferred the Brighton-
Le-Sands property to the Defendants. There was sufficient money in the actual estate
to pay the pecuniary legacies in the Will and also to satisfy the debts, funeral and
testamentary expenses (other than costs of the proceedings). There remained a small
amount in residue. Of course, the value of the deceased's actual estate was
significantly reduced by the relevant property transaction, but I do not think that the
estate has been disadvantaged in those circumstances.
400. However, s 83(1)(a), alternatively, requires the Court to be satisfied that each of the
Plaintiffs, as a person entitled to apply for a family provision order from the estate, has
been disadvantaged. I am so satisfied since the actual estate was reduced significantly
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by the Brighton-Le-Sands property no longer being property of the deceased thereby
reducing the value of the actual estate and thereby preventing the deceased from
being able to make greater provision for them, with the result that he and she must
seek an order designating property as notional estate from which to satisfy a family
provision order and any order for costs.
401. Max received a lump sum legacy of $65,000 plus costs and Maria an additional amount
of $35,000 plus costs.
Adult Children and Estrangement
Keep v Bourke [2012] NSWCA 64
402. The appellants, Gwendoline and Graham are two of the children of Joyce Winifred
Keep who died on 29 August 2009 aged 82 years. They are also the executors of her
will. The deceased had three children. The respondent, Marion, is her other child.
403. Mrs Keep's last will was made on 7 July 1992. She appointed Gwendolene and Graham
as executors and gave the whole estate to them in equal shares. She said in the will:
404. "I HAVE made no provision in this my Will for my daughter MARION GAY BOURKES
[sic] because of her complete lack of concern or contact with me and other members
of my family over a long period of time".
405. A state of estrangement, at the time of the hearing of the appeal, existed between
Mrs Keep and Marion for some 38 years and continued at Mrs Keep's death in 2009.
406. Mrs Keep's estate consisted of a house and cash of $86,105. After allowing for
estimated costs of the proceedings and assuming that all costs would be payable out
of the estate, the primary judge worked on the footing that $20,826 cash would
remain so that the total value of the estate was $620,826.
407. The legacy given to Marion by the primary judge's order was $200,000, that is, a little
less than one-third of the net estate.
408. Gwendolene and Graham appeal on the grounds that the primary judge erred:
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(1) in failing to find, as a matter of jurisdiction, that Marion was not entitled to provision under s 59, having regard to:
(a) the estrangement;
(b) the statement in the will; and
(c) the overriding competing claims of Gwendolene and Graham on Mrs Keep's testamentary bounty;
(2) in holding, notwithstanding the estrangement, that Marion was not barred from making a claim because Mrs Keep had "stridently refused to make any attempt at reconciliation on at least two opportunities when this could have occurred";
(3) in failing to reduce the provision in favour of Marion by reference to a finding that there was "a sense of a child treating her parent callously by not taking any steps to end their estrangement"; and
(4) in the context of the value of the estate, in fixing the quantum of Marion's entitlement at $200,000 when
(i) there is no principle that the community expects a parent to leave her child in a position to own a home;
(ii) the claims of Gwendolene and Graham to remain in the deceased's house should have been taken into account; and
(iii) regard was not had to the absence of evidence that Gwendolene and Graham would be able to acquire alternative accommodation with the balance of the estate remaining to them.
409. The words quoted in (2) above are as they appear in the notice of appeal. What the
primary judge actually said (at paragraph [81] of the judgment) was:
"Although there was no state of hostility between Marion and the deceased there is
a sense of a child treating her parent callously by not taking any steps to end their
estrangement. The same can be said of her mother's stringent refusal to make any
attempt at reconciliation. At least two opportunities occurred when this could have
happened. Because of the later aspect I do not think that the plaintiff should be
barred from making a claim. But the plaintiff's conduct means that her moral claim
on the testator's bounty is reduced."
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Brief Chronology
410. Marion left school in February 1966 aged 14 years and commenced work. All the
children left school at about the same age.
411. Marion met her future husband, Robert, in 1968. They became engaged in late 1970
and married in November 1971 when Marion was 20. She left the family home shortly
before the marriage and went to live with Robert's parents.
412. Marion has four children, born in 1973, 1976, 1978 and 1989.
413. In 2002 or 2003, Marion and her husband Robert separated. They were later divorced.
414. As part of the property arrangements associated with the divorce, Marion received
$120,000 from Robert for her share of the matrimonial home at Charmhaven.
415. Mrs Keep was admitted to St George Hospital in July 2009 and was later moved to
Calvary Hospital at Kogarah where she died on 29 August 2009.
416. Probate of Mrs Keep's will was granted to Gwendolene and Graham in November
2009.
417. Neither Gwendolene nor Graham married. Neither had children or dependants. They
lived in the Hurstville house for the whole of their lives. Neither was is in employment
and there was no realistic prospect that either will gain employment. Marion was
unemployed at the time of the appeal. At the time of the trial, all three parties had
significant health problems and were of very modest means.
418. The estrangement between Marion and Mrs Keep - indeed, between Marion on the
one hand and her parents and siblings on the other - began at the time of Marion's
marriage in November 1971 at the age of 20. Marion wished to marry but her parents
thought she should not do so. Robert, Marion's prospective husband, had been
conscripted into the army during the Vietnam war and the parents said they were
opposed to her marrying someone who ran the risk of injury or premature death. The
parents were also worried about the cost of a wedding. They also expressed an
opinion that Marion, as the younger daughter, should not marry before Gwendolene.
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419. Marion remained strong in her resolve to marry. During the engagement, Robert
learned that he was to be posted to Singapore. Marion was keen to accompany him.
The army would not let her do so unless they were married. She told her parents that
she could afford to pay for the wedding from her savings. Being under 21 she could
not, as the law then stood, marry without her parents' consent or an order of the
court. As her parents refused their permission, she had no choice but to take steps
towards obtaining such an order but her parents eventually gave permission and the
marriage took place. The parents did not contribute to the cost of the wedding. Nor
did they attend. The invitation sent to them was returned with a note saying “we do
not want anything to do with you". A neighbour gave her away at the wedding.
420. Soon after she left home, Marion received a rather bizarre letter dated 4 February
1972 from her parents threatening to sue her if she did not pay for the upkeep of a cat
she had left behind when she left home. It was signed "Mr & Mrs C Keep".
421. On the primary judge's findings, Marion and Mrs Keep saw one another on only five
occasions after Marion left the family home shortly before her marriage in November
1971.
422. They encountered one another by chance while shopping shortly after the birth of
Marion's first child in 1973 (Marion had not told her parents that she had had a child).
Marion had the baby with her in a pram and, when she saw her mother, covered the
child so that her mother could not see it. They did not speak.
423. The second encounter occurred when Marion, together with her husband and
children, visited Mr Keep in a nursing home shortly before his death in 1986. Mrs
Keep was there, as was Gwendolene. Mr Keep asked Mrs Keep to buy sweets for the
grandchildren but she said she did not have her purse with her. The primary judge
found that she probably did. On this occasion, Gwendolene spoke abusively to Marion
and called her a "vulture".
424. Marion and Mrs Keep next saw one another soon afterwards at Mr Keep's funeral.
They did not speak and neither Marion nor her children were mentioned in the course
of the funeral service.
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425. The fourth occasion was a meeting in passing at a relative's funeral at a crematorium
when Marion asked Mrs Keep where Mr Keep's remains were and Mrs Keep answered
with a gesture in the relevant direction.
426. The last meeting occurred when Marion, her daughter Joanne and Joanne's daughter,
visited Mrs Keep in hospital a matter of hours before Mrs Keep's death and at a time
when she was unconscious. Mrs Keep did not regain consciousness while Marion was
there.
427. Therefore, on the primary judge's findings about events during the period of some 38
years after Marion left home in circumstances of disagreement about her forthcoming
marriage, Marion sought out her mother only once (when she was unconscious and on
the point of dying) and Mrs Keep did not seek out Marion at all.
428. Counsel for Gwendolene and Graham submitted that the estrangement between
Marion and Mrs Keep, viewed in context, should properly have led to a finding that the
pre-condition to jurisdiction under s 59(1)(b) had not been satisfied. It was submitted
that a combination of the estrangement, the statement about Marion in Mrs Keep's
will and a proper assessment of the circumstances and needs of Gwendolene and
Graham should have led to a conclusion that zero provision for Marion, in accordance
with the will, was adequate. Barratt J did not accept those submissions.
429. The judge's findings favourable to Marion's claim at the jurisdictional stage were made
after a full consideration of the circumstances of both Gwendolene and Graham. His
Honour recognised that neither of them works, that both are in bad health and on
social security support and that they have lived in the Hurstville house all their lives
and wish to continue doing so. In addition, each is single, has no dependants and is of
very modest means. That assessment was made in company with a like assessment of
Marion's situation: that she is divorced with four children one of whom is a son with
disabilities who lives mainly with his father (although Marion wishes to have him stay
with her periodically), that she too is of very modest means and lives in a small rented
house on the Central Coast which is in poor repair, that she receives some social
security support and that she too has health problems. At the time of trial, Marion
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was in part-time employment but, as I have said, evidence received without objection
on the appeal was that an injury has made it necessary for her to give up that
employment.
430. It is sufficiently shown, in my opinion, that the primary judge had appropriate regard
to all these matters, as well as the estrangement, in approaching the matter as a
whole; and that he therefore could not have failed to take them into account in
making the inquiry that was necessary at the "jurisdictional" or "first stage".
431. Mrs Keep must be seen as the instigator of the separation. It is true that Marion did
not attempt reconciliation. She apparently took at face value her parents' decision -
conveyed in hurtful terms - that, by marrying as she wished, Marion had made herself
unworthy of continuing as a member of the family.
432. The primary judge was right when he referred to Mrs Keep's "stringent refusal to make
any attempt at reconciliation" and to two occasions on which such reconciliation could
have been attempted. His Honour's conclusion that, because of this, Marion should
not be barred from making a claim reflected a finding that there was not, on Marion's
part, a withholding of support and love "without justification" in the terms used by
Bergin CJ in Eq in Ford v Simes.
433. Bergin CJ in Eq in Ford v Simes [2009] NSWCA 351 at [71]:
"It is one thing to make provision for a child, even an adult, where the Court is able
to better balance the obligations of the testator with the adequacy of the provision
made by the testator. However in my view it is very important for the maintenance
of the integrity of the process in these types of applications that this Court
acknowledge once again the entitlement of testators, in certain circumstances, to
make no provision for children: The Pontifical Society for the Propagation of the
Faith and Saint Charles Seminary, Perth v Scales (1961) 107 CLR 9. This is particularly
so in respect of children who treat their parents callously, by withholding without
proper justification, their support and love from them in their declining years. Even
more so where that callousness is compounded by hostility."
434. Having reached a conclusion favourable to Marion at the first stage of the inquiry, the
primary judge was called upon to decide to decide what, if any, order should be made
under s 59(2). In approaching that task, a court must pay attention to s 60(2) which
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sets out matters to which it may have regard in deciding whether to make a family
provision order and the nature of that order
435. The aspects of the grounds of appeal designated (3) and (4) in the above summary
identify four ways in which the primary judge is said to have taken into account
considerations not material to the discretionary decision or failed to take into account
considerations material to the discretionary decision:
(a) there was no due recognition of "a child treating her parent callously by not
taking any steps to end their estrangement";
(b) there was resort to a principle (in truth non-existent) that the community
expects a parent to leave her child in a position to own a home;
(c) there was no due recognition of the claims of Gwendolene and Graham to
remain in the Hurstville house; and
(d) there was failure to recognise that Gwendolene and Graham would be
unable to acquire alternative accommodation with the balance of the estate
remaining to them.
436. As to the first of these matters (item (a)), it is true that the judge referred, at [81] of
his judgment, to "a sense of a child treating her parent callously by not taking any
steps to end their estrangement". But that is far from the totality of the judge's
assessment. He recognised that it was Mrs Keep who initiated the separation and did
not take up opportunities to heal it: first, when Mr Keep asked her to buy sweets for
the grandchildren when Marion and her husband took their children to visit Mr Keep
at the nursing home and Mrs Keep's response was merely that she did not have her
purse with her; and, second, when, at the crematorium, Marion asked Mrs Keep
where Mr Keep's remains were and Mrs Keep chose to answer with no more than a
gesture. The passage at [81] of the judgment also needs to be read with the following
more comprehensive finding at [78]:
"Marion did stay in contact with her Aunt Eleanor and Uncle Arthur. When she was
young she might not have been mature enough to consider making an approach to
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her mother, but one would have expected that as she matured and had more
children who may have been a joy to her mother, she would have wished to end
their estrangement. Marion did make contact with her family four times and she
was either treated with hostility or ignored on those occasions. Equally it is plain
that the deceased refused to approach Marion for some reconciliation even though
she knew of the existence of her grandchildren. Once Marion was married there
was arguably no other reason to continue the estrangement from her daughter."
437. If there was in truth "callousness", it was probably Mrs Keep who exhibited it to a
greater extent than Marion. But Marion was not blameless in the matter of the
estrangement and, as the primary judge found at [81], her conduct in that respect
meant that her claim on the testator's bounty was reduced.
438. But the primary judge did not give effect to that finding in the order he made. The
order, as made, effectively gave Marion one-third of the estate and reflected the
treatment that one of three adult children might have been afforded by the will of the
surviving parent when no negative or diminishing factor was at work. Marion's
conduct in relation to the estrangement was found to amount to a negative or
diminishing factor warranting reduction, but no reduction was actually recognised.
439. 51In relation to items (b), (c) and (d), it is relevant to quote [82] - [84] of the judgment
of the primary judge:
"It is useful that at this stage to consider how Marion says she has been left without
adequate and proper provision for her maintenance, education and advancement in
life. I note that Marion seeks a legacy of $250,000. This would enable her to buy a
relocatable home at a cost ranging between $139,500 and $215,000. This would
allow for contingencies and would supplement her modest income.
The defendants' situation is difficult as plainly if no order is made they would wish to
stay in the Hurstville home and Gwendolene would have her savings of $61,000.
However, the home is run down and it is difficult for the defendants to maintain
their lifestyle in the home. The likely progression of Gwendolene's illness will
probably mean that she will need further care that cannot be provided at home. In
these circumstances there is every likelihood that the home will need to be sold in
the near future.
If the sale of the home is necessary then those funds could be used to secure further
accommodation for the defendants. However, because of their determination to
stay in the home there is no relevant information before the court as to what would
be involved in such a process."
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440. As to item (b), this passage makes it clear that the judge did not espouse a principle
that the community expects a parent to leave her child in a position to own a home.
The need for all three children to own a home, if that was financially possible, was
recognised; so too, implicitly, was the reality that, with each child having very little
money and the estate being only some $620,000, that goal could very likely not be
achieved. As to item (c), the strong desire of Gwendolene and Graham to remain in
the Hurstville house was clearly taken into account and, while any "claim" of theirs to
do so was not recognised, submissions made on their behalf did not elucidate any
basis on which an adult child who lives with the deceased in the deceased's house,
apparently rent free, can assert any form of "claim" to continue living there
indefinitely after the deceased's death. As to item (d), there was express reference by
the judge to the absence of evidence about the ability of Gwendolene and Graham to
acquire alternative accommodation. He noted that their choice not to lead evidence
about that matter made it impossible to know what would be involved in their
obtaining alternative accommodation. He also noted that Gwendolene, because of
her various health problems, would likely soon need care that could not be provided in
the home, thus recognising that her expressed wish to stay there might very well be
overtaken in the short term by a need for institutional care in which the Hurstville
property played no continuing part.
441. The judge did not, in my opinion, deal with the second stage of Marion's statutory
claim in a manner involving House v The King error in relation to any of the matters (b)
to (d) above. Those matters were all matters relevant to the discretionary judgment
to be made. They were all addressed and evaluated. But there was, in my view, House
v The King error in relation to matter (a) in that, as already mentioned, the reduction
the judge recognised as being called for by Marion's conduct in relation to the
estrangement was not actually made. In that respect (but that respect only), the
discretion miscarried.
442. There must be a reduction recognising Marion's contribution to the estrangement.
But given the factors mentioned by the judge at [78] of the judgment and the hurtful
way in which her parents expelled Marion from the family, the reduction should not
be great. The discretion ought to be re-exercised so that the legacy is $175,000
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instead of $200,000. The Appellants were ordered to pay the Respondent’s costs of
the appeal.
443. Tobias AJA agreed with Barrett JA. Macfarlan JA agreed with the judgment of Barrett
JA but disagreed with the order that the legacy should only be reduced by $25,000.
His view was that the legacy should be reduced by $100,000, leaving Marion with only
a legacy of $100,000, which represented about 1/6th of the estate. A legacy of
$175,000 would leave the respondent with not much less than one-third of her
mother's estate, close to an equal share with her two siblings who maintained a close
relationship with their parents throughout their lives. Although his Honour considered
that provision should be made for the respondent, in his view, by reason of the very
lengthy estrangement and the respondent's partial responsibility for it, the
approximate equivalence of the needs of the three siblings and the desire to exclude
the respondent expressed by the deceased in her will, the respondent's entitlement
should be substantially less than and be reduced by $100,000, to $100,000.
Wills and Ademption of Specific Gifts RL v NSW Trustee & Guardian [2012] NSWCA 39
444. If a testator, before death, disposes of property that was specifically gifted in a will,
the gift is adeemend. But what happens if the testator becomes incapable and the
disposal is done by someone managing the estate, like a manager or attorney?
445. In RL v NSW Trustee and Guardian [2012] NSWCA 39, Justice Campbell extensively
reviewed the law concerning the issue of ademption of a specific gift in a Will. In the
particular case, the testatrix was a protected person, an order having been made by
the Guardianship Tribunal pursuant to section 83 NSW Trustee and Guardian Act 2009.
446. Campbell J (with whom Young JA agreed) considered the line of cases stemming from
Re Viertel [1996] QSC 66 which held that if the property of an incapable person was
disposed of pursuant to an enduring power of attorney, the disposition would not
affect an ademption of a specific gift of that property in the Will of the incapable
person. In other words, the beneficiary could trace in the assets of the estate the
proceeds of sale of the asset. Re Viertel held that a common law exception to the
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general rule of ademption applies where an attorney, exercising power under an
enduring power of attorney, disposes of property of an incapable person. The
scholarly analysis of Campbell J shows that the common law exception is limited to
situations where the disposal is tortious or otherwise unlawful. Where the power of
sale is lawfully given and exercised, the general rule of ademption still applies, subject
only to statutory exceptions. (such as s22 of the Powers of Attorney Act 2003 and s83
of the NSW Trustee and Guardian Act 2009).
447. Following his review of the law as to ademption, and whilst the comments were
obiter, Justice Campbell concluded that when the attorney sold the property the
subject of the specific gift, the sale would have effected an ademption of that gift in
the will were it not for the existence of statutory power in section 83 NSW Trustee and
Guardian Act 2009, and that Re Viertel does not represent the law.
448. In the appendix to the decision, Justice Campbell traced the history of ademption
including the early English cases and legislation, and the statutory power in the Powers
of Attorney Act 2003 in which section 22 now provides legislative relief.
Ms Ramena Kako Barrister
13 Wentworth Selborne Chambers DX 394 Sydney
Ph: 02 9232 7750 E: [email protected]
Disclaimer: This paper should not be relied upon for legal advice. It is issued only for the purposes of education. The author acknowledges the copyright of the respective judges quoted in this paper and the NSW Attorney General’s Department.