PAHLOW-SILADY v SILADI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, MASON P and POWELL JA 18 March 1997, 22 April 1997 [1997] NSWCA 241 Wills Probate and Administration - Testamentary instruments — Informal document — Document entitled "Statutory Declaration" — Document drafted by wife of deceased on own initiative — Whether embodying testamentary intentions of deceased — Whether deceased intended document to constitute his will. Wills Probate and Administration Act 1898, s18A. Gleeson CJ I have had the benefit of reading in draft form the judgments of the other members of the court. The disposition of the appeal which I favour is that reflected in the first of the two alternative sets of orders proposed by Powell JA. In short, I consider that the appeal should be allowed and the matter should be remitted to the Probate Division. I also agree with the order for costs proposed by Powell JA. During the course of argument I became convinced that Santow J did not have before him a sufficiently clear and cogent account of the facts relevant to the issues which arose for determination. The document, entitled Statutory Declaration, at the centre of this litigation refers to assets described as "my one-third share in the business of Derwent Thermostats Pty Ltd and Derwent Controls, 27 Higginbotham Road, Gladesville" and "my half-share in the business of Derwent Properties". So far as appears from the record of the proceedings before Santow J, the evidence at first instance contained no clear description of the nature of those assets. Some of the observations made by Santow J in his reasons for judgment suggest that his Honour had reference to an Affidavit of Assets and Liabilities in the court file, but that document does not appear to have been tendered in evidence, the meaning of some of the information in it is unclear, and the evidence did not include any attempt to explain or elaborate upon its contents. When this court sought to elicit from counsel information concerning the nature of the assets which were the subject of the Statutory Declaration, what we were told was contradictory, confusing and incomplete. Although the deceased had no legal advice in relation to the preparation of the Statutory Declaration, he was evidently an astute and successful businessman, and there seems no reason to doubt that he would have had a reasonable understanding of the nature of his assets. The Statutory Declaration refers only to property connected with businesses in which he was associated with other members of his family. The deceased expressed certain intentions as to what should happen in connection with that property in the event of his death or his illness or mental incapacity. There may have been a good reason why the deceased would have intended to deal, in a testamentary fashion, with that property separately from all his other assets. Before reaching a conclusion about that, however, I would want to be sure that I understood the nature of the property in question, and the family and commercial background against which the 2 UNREPORTED JUDGMENTS Statutory Declaration was prepared. That would include the terms of any relevant partnership agreement, and the structure of any relevant corporation. It would be dangerous to make a judgment about whether the document constituted a will, by virtue of s18A of the Wills, Probate & Administration Act 1898 without appreciating what the deceased's understanding would have been of the nature of the property to which he was referring. To take an example not directly related to the central issue in the present case, what did the deceased have in mind when he said that, in the event of illness rendering him incapable of conducting the business, his share of the business was to be conducted by John Siladi? The meaning of that statement or direction is obscure, and in the absence of reasonably clear evidence as to the nature of the asset or assets to which the deceased was referring it is difficult to reach any confident conclusion as to what he had intended. It may be that, when the Probate Division has before it, in appropriate detail, the best evidence that is available as to the nature and extent of the assets referred to in the Statutory Declaration, the conclusion reached by Santow J will be seen to have been correct. I do not understand Mason P and Powell JA to disagree as to the legal principles to be applied. In the absence of better evidence of the relevant facts I prefer to express no view as to the application of those principles to the circumstances of the present case. Mason P This appeal challenges a finding that a Statutory Declaration executed by Stephen Silady (the deceased) constituted the will of the deceased by application of s18A of the Wills, Probate and Administration Act 1898. Letters of administration with the will annexed were granted to the appellant, the widow of the deceased. The document was in the following form: STATUTORY DECLARATION I, STEPHEN SILADY, Company Director, of 152 Greville Street, Chatswood West, in the State of New South Wales, do hereby solemnly declare that in the event of my death, my one-third share in the business of Derwent Thermostats Pty Ltd and Derwent Controls, 27 Higginbotham Road, Gladesvillle, is to be given to my brother, John Siladi, to be kept operating as a going concern and a family business. In the event of my illness and mental incapacity rendering me incapable of conducting the business, my share of the business is to be conducted by my brother, John Siladi, and in the event of his illness, mental incapacity or death, by my brother, Anthony Siladi, and his two sons Edward Siladi and John Siladi as a going concern and a family business. In the event of my death, my half-share in the business of Derwent Properties is to be given to my brother John Siladi, including rents accrued and owing at that date by Derwent Thermostats Pty Ltd or others. In the event of my illness or mental incapacity, my half-share of the rent of the premises, 27 Higginbotham Road, Gladesville, to be paid to me as half owner, for the duration of such illness or incapacity per calender month. Signed "Stephen Silady' 9/4/83 Witness: 'Pauline Silady' 9.4.83 URJ PAHLOW-SILADY v SILADI (Mason P) 3 This Statutory Declaration had been prepared by the appellant, the deceased's wife, who witnessed the deceased's signature. The deceased returned the document to the appellant, who placed it in her writing desk where it remained until after her husband's death. The deceased died on 4 August 1991. He was survived by the appellant whom he had married in 1967. The couple had no children. The deceased and two of his brothers, John and Anthony, owned equal shareholdings in a family company originally called Derwent Tool, Engineering and Plastic Co Pty Ltd, subsequently renamed Derwent Thermostats Pty Ltd. Anthony was the managing director. The deceased and Anthony also held equal interests in what the Court was informed were partnerships known as Derwent Controls and Derwent Properties. These three entities are referred to in the Statutory Declaration. The Court was informed that the two partnerships had ceased to exist by the date of the deceased's death, although the Affidavit of Assets and Liabilities in the estate file (to which Santow J appears to have made reference) indicates that the "Derwent Properties" partnership was in existence at the date of the deceased's death. It is a matter of regret that no clear evidence was made available either at trial or on appeal about the nature of these partnerships. The 1983 Statutory Declaration had been prepared by the appellant, who disclosed in an affidavit that she had "always been interested in the study of law and harboured a wish to become a lawyer'. She had acted as the deceased's secretary in the family business, before and after their marriage The document had been prepared by the appellant following discussions between the deceased and herself about his position in the family company, and as to how the eventualities of his illness, mental incapacity or death might affect his position. The terms of the Statutory Declaration reflect those concerns. In her oral evidence, the appellant said that the preparation of the Statutory Declaration was her idea, and that the document had been typed up by her following a disagreement between the deceased and his older brother Anthony. According to the appellant, she never discussed the Statutory Declaration with the deceased again. He died unexpectedly at the age of 68 in 1991. The appellant described the deceased as a fairly astute business man who was careful about his property. He was an engineer by training. "He could read, but he spelt in a wonderful way, phonetically....he didn't have time to learn to spell. He was too busy with his factory." The deceased left no formal will, apart from a 1964 will which had been revoked by marriage. By that will, the deceased had appointed his brother John as his executor, given certain real estate at Chatswood to the appellant (to whom he was not then married); given certain shares and other monetary assets as to one half to the appellant and as to the other half to named members of his close family; and given the residue of the estate, subject to payment of debts, funeral and testamentary expenses and duties, to his brother John, with gifts over. The appellant applied for a grant of letters of administration. The whole of the estate passes to her on intestacy. As required by the Rules (Supreme Court Rules, Pt78 134E), the appellant gave notice of the Statutory Declaration to John Siladi. He propounded the Statutory Declaration as a testamentary instrument entitled to recognition as a will pursuant to s18A of the Wills, Probate & Administration Act 1898. He relied upon the evidence of the appellant which has already been related, together with the evidence of Rudolph Dominic. Mr Dominic had been a foreman who worked with the three brothers in the family business between 1957 and 1971. He maintained contact with the brothers after that date, calling 4 UNREPORTED JUDGMENTS regularly at the factory at Gladesville to socialise with them. He gave evidence of a conversation in about 1985 with the deceased in which the deceased said to him: "TI have fixed things up so that if anything happens to me then the business goes to my brother John". The deceased asked him not to say anything about this to John, and Mr Dominic respected this wish during the deceased's lifetime. S18A provides: 18A(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a win or the revocation of such a win if the Court is satisfied that the deceased person intended the document to constitute his or her will, an amendment of his or her win or the revocation of his or her will. (2) In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person. The mischief to which this provision is directed is clearly identified in the Report of the New South Wales Law Reform Commission, Wills - Execution and Revocation, LRC 47, 1986. See also In the Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446. The section applies in relation to a document (whenever made) if the maker dies on or after 1 November 1989: see Fifth Schedule, cl2. Santow J held that the Statutory Declaration constituted the will of the deceased by application of s18A. He ordered that administration with the will annexed be granted to the appellant. Referring to Kirby P's remarks in In the Estate of Masters (at 449), Santow J held that s18A stipulates three main requirements for a document to qualify for validation: (i) It must be in documentary form; (ii) It must embody the testamentary intentions of the deceased; (iii) Although the document has not been executed in accordance with the statutory formality, it must nevertheless constitute "a will of the deceased person". Santow J found that all three requirements were satisfied. As developed in oral argument, the appellant's case had two strands. First it was said that the evidence did not satisfy the requirements of the section, for two reasons: (a) The document embodied the testamentary intentions of the appellant, as distinct from the deceased; and (b) The Court could not be satisfied that the deceased intended the document "to constitute his... will". Secondly, it was contended that Santow J erred in rejecting the tender of the Memorandum and Articles of Association of Derwent Tool, Engineering and Plastic Company Pty Ltd. I would reject these contentions. There is no force in the submission that the executed document did not embody the testamentary intentions of the deceased. The fact that the initiative for preparing the document came from the appellant, who retained the document in her possession between its execution and the date of the deceased's death, is not inconsistent with the document embodying the deceased's testamentary intentions. It was not suggested that the deceased did not know or understand the URJ PAHLOW-SILADY v SILADI (Mason P) 5 document which he had executed. It arose out of his concerns (expressed to the appellant) about his older brother Anthony, his desire to maintain the family business as a going concern, and his expressed wish to favour his younger brother John. The deceased was literate, albeit idiosyncratic in his spelling ability. In the appeal it was accepted by the appellant that the deceased had signed that document as a serious act. The fact that the appellant was the moving party in the preparation and execution of a document, which in a technical sense was against her interest, does not show that the document was not adopted by the deceased, who signed it, had it witnessed, and handed it to the appellant for safe-keeping. I respectfully agree with Kirby P in Masters that s18A stipulates three distinct requirements before an informal "will" may qualify for recognition. In requiring that there must be a document, s18A stipulates that there is to be a minimal evidentiary standard. The Law Reform Commission's recommendation that there should be a "document" as a threshold requirement was made in order to avoid the uncertainty and difficulty of oral wills. This was considered a reasonable price to pay to avoid the problems inherent in disputes about oral wills. "The need for a document will substantially assist in the resolution of disputes as to whether particular statements were expressions of merely deliberative as distinct from final testamentary intent" (Report, para6.28). Secondly, the document must purport to embody the testamentary intentions of the deceased person. As Mahoney JA pointed out in Masters (at 455), this means the deceased's wishes or intentions as to how, voluntarily, his or her property is to pass or be disposed of after death. (The fact that it also may do other things is not fatal: see further below.) This second requirement is obviously satisfied as regards the Statutory Declaration. What then of the third, and distinct, requirement that the Court should be satisfied that "the deceased person intended the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will"? The principal argument of the appellant was that the Court could not be satisfied that the deceased intended the Statutory Declaration "to constitute his... will". It was said that s18A draws a distinction between the document itself, which must purport to "embody the testamentary intentions of [the] deceased person" and the Court's satisfaction that the deceased person "intended the document to constitute his or her will". The distinction may be conceded, but it does not follow that the same evidence may not satisfy the two limbs. There may be a document which on its face purports to have all of the formality and finality of a will (thus satisfying the first two requirements), yet it may have been prepared, written or even signed by the deceased without the intent that it should be immediately operative as a testamentary instrument. (In saying "immediately operative" I am not denying its revocability.) "If the fact is plainly and conclusively made out, that the paper which appears to be the record of a testamentary act, was in reality the offspring of a jest, or the result of a contrivance to effect some collateral object, and never seriously intended as a disposition of property, it is not reasonable that the Court should turn it into an effective instrument... There must be the animus testandi.": Lister v Smith (1863) 3 Sw & Tr 282 at 288; 164 ER 1282 at 1285 per Sir J P Wilde. Thus a document which is shown to be no more than a draft (cf Baumanis v Praulin (1980) 25 SASR 423; Masters at 448-9, 455F, 460-1) or a form of instructions (cf Re Application of Crown; Estate of Springfield (1991) 23 NSWLR 535) will not satisfy s18A. The second and third of Kirby P's requirements are therefore distinct. The language of the section makes this plain. 6 UNREPORTED JUDGMENTS But it does not follow that some evidence (including the form of the executed document itself) may not perform a double function. That evidence may demonstrate not only that the document purports to embody the testamentary intentions of the deceased, but also that the deceased intended the document to constitute his or her will. Obviously the signing of a document which is complete on its face may provide clear evidence that will satisfy the second and third requirements. It would be a mistake to regard the third element in s18A as requiring evidence that the deceased consciously turned his or her mind to the legal formalities for will-making, or even that the deceased was aware of the legal concept known as a will. If Monsieur Jourdain could speak prose without realising it, a person may execute a document which operates as a will without realising it, provided there is the requisite "animus testandi" and the surrounding facts satisfy the formal requirements of the Wills Act or s18A. Thus s18A may validate a document which the deceased must have known not to have purported to be a will in the traditional sense: see In the Estate of Slavinskyj (1988) 53 SASR 221 (where the "will" was written on a plasterboard wall) and the Estate of Madzay (Powell J unreported 25 October 1991 (where letters of administration were granted with respect to a letter which "evokes [sic] my previous will... and gives you... the full estate"'). In taking this stance s18A, reflects the previous law. It is well established that it is not necessary that the testator should intend to perform or be aware that he has performed a testamentary act: see Milnes v Foden (1890) 15 PD 105 at 107, where Hannen P said: "The true principle... appears to be that if there is proof either in the paper itself or from clear evidence debtors, first, that it was the intention of the writer of the paper to convey the benefits by the instrument which would be conveyed by it if considered as a will; secondly, that death was the event that was to give effect to it, then whatever may be its form it may be admitted to probate as testamentary. It is not necessary that the testator would intend to perform or be aware that he has performed a testamentary act." See also Re Berger [1990] Ch 118 at 129-30 per Mustill LJ. Accordingly, a document in the form of a deed may be considered a will if its terms and manner of execution reveal a testamentary intention. It will be admitted to probate if executed as a will (Morgan (1866) LR 1 P & D 214; In the Estate of Pearce (1894) 4 BC(NSW) 60; Milnes) but treated as void if not (Re Carile (1920) VLR 263). On a similar principle, a document in the form of a letter has been admitted to probate: see eg Bathern [1941] SASR 266. It must be executed with the formalities of a will (Baker v Simes (1902) 21 NZLR 184) except in jurisdictions (like New South Wales, since the enactment of s18A) where unattested holograph wills may be accepted in certain situations (Re Stobie Estate [1942] 3 WWR 414). See generally Williams on Wills 7th ed, 1995, pp111-3. In Masters (at 455-6) Mahoney JA said that: "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". Referring to a lay person not fully familiar with the notion of a will or with the way in which the law in this regard operates, he gave as an example of a person executing a will "unknowingly" (my expression) a deceased who might say: URJ PAHLOW-SILADY v SILADI (Mason P) 7 "T do not understand the nature or requirements of a will as a legally operative document but it was my intention that this statement of my testamentary wishes or intentions should have legal consequences of the kind set forth in it. I intended it to have legal effect according to the terms of it, that is, to pass my property after my death. I did not know whether that would make it a will but that is what I intended the effect of it to be. " In my view, the Statutory Declaration is a document which purports to embody the "testamentary intentions" of the deceased and, at the same time, to satisfy the Court that the deceased intended the document "to constitute his... will". The required standard of proof is the civil standard. The fact that the document was prepared in the form of a Statutory Declaration in which the deceased did "solemnly declare" his wishes in a document that was signed by him, witnessed by his wife, and handed to his wife for safe keeping all support this conclusion. The evidence of Mr Dominic tends in the same direction: it is admissible pursuant to s18A(2). That the Statutory Declaration is testamentary, at least in part, and reveals an intention, at least in part, that the deceased intended that it should "constitute his... will" is indicated by the dispositions "in the event of my death" of the deceased's one-third share in the business of Derwent Thermostats Pty Ltd and Derwent Controls and of his half-share in the business of Derwent Properties, in each case in favour of the deceased's brother John Siladi. In my view these matters tend firmly in favour of the document having a testamentary as distinct from a merely precatory intent, and they support Santow J's conclusion that he was also satisfied that the deceased intended the document to constitute his will. Against this conclusion, the appellant argued that it is unlikely that the deceased (as an astute businessman) would have set out to deal only with part of the assets he owned in 1983. There are several answers to this argument, although (like the appellant's argument itself) some involve an element of speculation: (a) The simple fact is that the deceased did just that, as the terms of the Statutory Declaration made plain. A rational explanation for this is that he was concerned about the break-up of the family business in the event of death or serious illness. Accordingly, he addressed that problem, intending to deal with his remaining assets on another occasion. (b) The deceased may not have realised that his 1964 will had been revoked by marriage. (c) Such evidence as we have indicates that the only other assets owned by the deceased in 1983 (apart from those referred to in the Statutory Declaration) were a bank account of uncertain size, and home properties that had by then been placed in the appellant's name because of fears that Anthony's "spend-thrift" ways might lead to bankruptcy. The deceased may well have thought that all assets of any value were covered by this arrangement with his wife, and by the Statutory Declaration itself. The mere fact that some of the Statutory Declaration deals with eventualities other than the death of Stephen Silady, ie his illness or mental incapacity, does not preclude so much of the document as is testamentary from being admitted to probate: see Doe d Cross v Cross (1846) 8 QB 714, 115 ER 1041; Re Anziani [1930] 1 Ch 407 at 424. The appellant's second complaint concerned the rejection by Santow J of the tender of the Articles of Association of Derwent Tool, Engineering & Plastic Co Pty Ltd (later known as Derwent Thermostats Pty Ltd). To the extent that I was able to follow the appellant's argument on this matter it went thus: Article 6 of 8 UNREPORTED JUDGMENTS the Articles precludes the transfer of any share of a deceased member by his executors or administrators to a class of relatives which includes a brother. Accordingly the Statutory Declaration must have failed in its intended effect of transferring the deceased's shareholding in the family company to his brother John. Since this was the case, and since the deceased was an astute businessman, he must not have intended the Statutory Declaration to operate in a testamentary way (ie by way of a binding legal direction upon his legal personal representative). The tender of the Articles (Article 6 in particular) would support the argument that the deceased did not intend the Statutory Declaration to operate in this way. It was suggested that it would bolster the alternative submission that the Statutory Declaration was intended to have a merely predatory effect, binding the conscience of members of the deceased's family but not purporting to effect a legally effective disposition of the deceased's shareholding. To understand this submission, and my response to it, I set out Articles 5 and 6: "5. Notwithstanding anything contained in these Articles or in Table 'A' a share may be transferred by a member selected by the transferor but save as by these Articles expressly provided no shares shall be transferred to a person who is not a member so long as any member or any person selected by the directors as one whom it is desirable in the interest of the Company to admit to membership is willing to purchase the same within a period of one month at the value fixed by the intending transferor. If any such shares are not purchased within a period of one month by any member or any person selected by the directors then the intending transferor shall be at liberty to sell them to any person at the same or at a greater value but if such intending transferor is desirous of transferring the shares at any lesser value than they shall first be offered at such lesser value in accordance with the provisions of this Article. 6. Any shares may be transferred by a member to any other member or to any son, daughter, grandson, grand-daughter, or other issue; son-in-law, daughter-in-law, father, mother, brother, sister, nephew, niece, wife, husband, sister-in-law, brother-in-law, or cousin of a member and any share of a deceased member may be transferred by his executors or administrators to any son, daughter, grandson, grand-daughter, or other issue; son-in-law, daughter-in-law, widow, widower, sister-in-law, brother-in-law or cousin of such deceased member (to whom such deceased member may have specifically bequeathed the same) and shares standing in the name of the trustees of the will of any deceased member may be transferred upon any change of trustees to the trustee for the time being of such will. " It is far from clear that the ground advanced on appeal for tendering the Articles of Association was advanced before Santow J. In any event the rejection of the tender did not, in my view, result in any miscarriage, for a number of reasons. The deceased may never have read Article 6; if he had, or had it in contemplation in 1983, he may (probably with good cause) have formed a view that, when read with Article 5, Article 6 did not restrict the capacity to transmit the shares in the family company to a fellow member, the deceased may have been ignorant of the law; the deceased may (with good cause) have formed the view that Article 6 would not have impeded his legal personal representative from holding the deceased's shares in trust for his brother John; the deceased may have thought it likely that the surviving brothers would have been prepared to URJ PAHLOW-SILADY v SILADI (Powell JA) 9 waive the possible effect of Article 6 and, by amending the Articles or otherwise, to permit John to become registered in accordance with the deceased's "testamentary" wishes. For these reasons I would dismiss the appeal with costs. Powell JA Prior to this appeal from a Judgment of Santow J, delivered on 21 November 1994, when his Honour was sitting in the Probate Division, coming on for hearing, it appeared that there were two principal questions which called for determination, they being: 1. whether his Honour erred when (A/B 16) he rejected the tender by counsel for the Appellant of a copy of the Memorandum and Articles of Association of a company, Derwent Tool, Engineering & Plastic Co Pty Ltd ("the Company'); and 2. whether his Honour erred when (A/B 51) he held that the document to which I will later refer was intended by Stephen Silady (to whom I shall refer as "the deceased'), after severing what his Honour described as the non testamentary portion thereof, to constitute his will, and, thus, to that extent, was, by virtue of the provisions of s18A of the Wills Probate and Administration Act 1898 ("the Act'), to be regarded as constituting a will of the deceased. However, as the result of the information which emerged in a very gradual, and confused, fashion during the course of the hearing of the appeal, which information tended to suggest that Santow J had been misled as to, or had misunderstood, some of what appeared to be the relevant facts, there appeared to emerge a third question for determination by the Court, that question being: 3. whether, in the light of the matters to which I have just referred, the hearing before Santow J miscarried, in consequence of which the appeal, if for no other reason, ought to be upheld and the matter remitted to the Probate Division for rehearing. The deceased, who appears to have been an engineer by trade, died on 4 August 1991 aged 67 years. The deceased had married once only during his life, namely, to the Appellant, who had formerly been his secretary, on 1 July 1967. There were no issue of the deceased's marriage to the Appellant. According to the Affidavit of Assets and Liabilities sworn by the Appellant in support of her application for a Grant of Letters of Administration of the Estate of the Deceased, which Affidavit, although not recorded in the transcript of the hearing before Santow J as having been tendered before his Honour, and which Affidavit was not reproduced in the appeal papers, but which Affidavit was clearly available to, and was referred to by, Santow J, the estate of the deceased was a substantial one, the nett value of the estate being said to be $1,964,618.60. The major items in the deceased's estate were said to be five parcels of real estate, the estimated value of which was about $1,300,000.00, moneys on deposit with the Commonwealth Bank of Australia or the Commonwealth Savings Bank of Australia, the total value being about $300,000.00, a parcel of shares in a company described as Derwent Thermostats Pty Ltd valued at $112,010.24, and what was described as a one-half interest in a partnership "Derwent Properties" between the deceased and his elder brother, Anthony Siladi, excluding the value of the interest in the partnership real estate, the interest to that extent being valued at $93,732.00. Although there was evidence which suggested that the deceased may have had other assets, in particular an interest in a company, or a business, seemingly known as "Derwent Publishing Co" or "Derwent Book Co", which were not 10 UNREPORTED JUDGMENTS disclosed in the Affidavit of Assets and Liabilities, that fact does not, as it seems to me, bear on the questions which the Court is called upon to determine on this appeal. The deceased, who appears to have been of Yugoslav origin, appears to have had three brothers, his elder brother, Anthony, to whom I have earlier referred, John and George and a sister, Frances Ajduk. The company, Derwent Tool, Engineering & Plastic Co Pty Ltd, of which I have earlier made mention, was incorporated on 14 October 1948 pursuant to the provisions of the Companies Act 1936, the corporators being Anthony Siladi and the deceased, each of whom, on executing the Memorandum and Articles of Association, subscribed for one share in the capital of the Company. So far as is relevant to the matters arising on this appeal, the Articles of Association on incorporation contained the following: "1. The regulations contained in Table 'A' in the Schedule 2 of the Companies Act, 1936 shall be the Articles of Association of the Company, in so far as same are applicable to a proprietary company and with the following additions and variations. TRANSFER OF SHARES 4. The directors may refuse to register any transfer of shares without assigning any reason therefor. 5. Notwithstanding anything contained in these Articles or in Table 'A' a share may be transferred by (sic) a member selected by the transferror but save as by these Articles expressly provided no shares shall be transferred to a person who is not a member so long as any member or any person selected by the directors as one whom it is desirable in the interest of the Company to admit to membership is willing to purchase the same within a period of one month at the value fixed by the intending transferor (sic). If any such shares are not purchased within a period of one month by any member or any person selected by the directors then the intending transferor (sic) shall be at liberty to sell them to any person at the same or at a greater value but if such intending transferor (sic) is desirous of transferring the shares at any lesser value then they shall first be offered at such lesser value in accordance with the provisions of this Article. 6. Any shares may be transferred by a member to any other member or to any son, daughter, grandson, grand-daughter, or other issue; son-in-law, daughter-in-law, father, mother, brother, sister, nephew, niece, wife, husband, sister-in-law, brother-in-law, or cousin of a member and any share of a deceased member may be transferred by his executors or administrators to any son, daughter, grandson, grand-daughter, or other issue; (sic) son-in-law, daughter-in-law, widow, widower, sister-in-law, brother-in-law or cousin of such deceased member (to whom such deceased member may have specifically bequeathed the same) and shares standing in the name of the trustees of the will of any deceased member may be transferred upon any change of trustees to the trustee for the time being of such will. 8. Article 64 of Table 'A' is hereby deleted and the following substituted therefor: - 'The number of directors shall be not less than four and not more than seven and the first directors shall be Anthony Siladi, Stephen Siladi, Bessie Paterson Henricks, and Eileen Joyce Richardson who shall be called 'Permanent URJ PAHLOW-SILADY v SILADI (Powell JA) 11 Directors'. All other directors shall be called 'Ordinary Directors'. The said Anthony Siladi shall be managing director.'" The material, such as it is, which is before the Court does not permit one to know whether the Articles of Association remained unchanged after incorporation. Although, at one stage during the course of the hearing of the appeal (Transcript p3), we were informed that Derwent Tool Engineering & Plastic Co Pty Ltd was not the same as the company now known as Derwent Thermostats Pty Ltd, we were later (Transcript p4) informed that the two companies were identical - the date on which the name adopted by the Company on its incorporation was changed does not appear from the material which is before the Court. Although, as I have earlier recorded, the corporators of the Company were Anthony Siladi and the deceased, each of whom subscribed for one share in the capital of the Company, such material as is before the Court suggests that, at some time which does not appear, the Respondent, John Siladi became a shareholder and that, either then or later, each of the three brothers came to hold one-third of the issued capital in the Company - although the material which is before the Court does not establish that this was so, we were informed (Transcript p13) that the hearing before Santow J proceeded upon the basis that each of Anthony Siladi, the deceased and John Siladi held six hundred and sixty-eight shares in the issued capital of the Company. Whether or not, at any relevant time, the deceased and his two brothers also had an interest in a company known as Derwent Controls Pty Ltd, or a partnership business known as "Derwent Controls", is anything but clear as, during the course of the hearing of the appeal, we were informed both that "Derwent Controls" was a company (Transcript p4) and that it was not (Transcript p10), and, as well, both that "Derwent Controls" ceased to exist in 1971 (Transcript p23) and that, although it existence on 9 April 1983 - the relevance of which date will later appear - "Derwent Controls" no longer exists (Transcript p11). It would appear that the business of the Company - and of any associated company or companies - was originally conducted from premises in Glebe, but that, in 1971, the Company moved its activities from those premises to premises at 27 Higginbotham Rd., Gladesville, from which premises, so it would seem, the Company still carries on its business. The premises at Gladesville were not, and are not, owned by the Company, but were owned by "Derwent Properties". The material in the Affidavit of Assets and Liabilities to which I have earlier referred would indicate that "Derwent Properties" is the business name adopted by Anthony Siladi and the deceased in relation to a partnership business which they conducted, which partnership business involved the letting to the company of the factory premises at Gladesville. Such material as is before the Court is, however, so sparse that it is not possible to know whether or not the partnership between Anthony Siladi and the deceased was regulated by a partnership agreement; whether or not the partnership business was for a fixed term or at will; or whether or not, in the event of death of one or other of the partners, the surviving partner had, either, an option, or, an obligation, to purchase the share of the deceased partner, In the absence of any evidence on any of these matters, one can but assume, first, that the partnership was one which would have been dissolved on the death of one or other of the partners, (Partnership Act 1892 s33); that, as between the partners 12 UNREPORTED JUDGMENTS (including the representatives of a deceased partner), and also as between the heirs of the deceased partner and his executors or administrators, any land owned by the partnership was to be treated as personal, or moveable, and not real, or heritable, property (Partnership Act 1892 s22); and that, in the absence of any agreement between the surviving partner and the personal representative of the deceased partner, the latter was entitled to apply to the Court to have the partnership business wound up and the deceased's share paid to him or her. The material contained in the Affidavit of Assets and Liabilities, coupled with oral evidence given by the Appellant on the hearing before Santow J (A/B 13), would suggest that, although the Company was liable to pay rent to "Derwent Properties", the obligation to pay, in fact, was not strictly enforced and that rents were, from time to time, allowed to accrue - it would seem probable that, as at the date of the death of the deceased, the accrued, but unpaid, rents amounted to $197,464.00. In July 1964, the deceased executed a will which appears to have been drafted for him by his solicitor, DG Stuart Esq, who appears then to have carried on his practice in the city, the deceased's execution of which will appearing to have been witnessed by neighbours, and which will, after execution, appears then to have been returned by the deceased into the care of his solicitor. At the time of the deceased's execution of this will, the Appellant had been his secretary for some 15 years, or thereabouts, a fact which may explain the provisions in favour of the Appellant made in cl3, cl4(a) of the will. For present purposes, it is sufficient to record that the will contained the following (inter alia) "2. I APPOINT as the sole executor and trustee (hereinafter called 'my Trustee') of this my will by brother JOHN SILADI but if he shall predecease me then by brother ANTHONY SILADI but if both of them shall predecease me then my sister FRANCES AJDUK but if all four shall predecease me then the eldest child over the age of 21 years then living of the said Anthony Siladi 3. I GIVE AND DEVISE my two parcel of real estate being the property known as 152 Grenville Street, Chatswood and my block of vacant land at Leura unto PAULINE PAHLOW of 24 John Street, Concord for her own use and benefit absolutely. 4. I GIVE AND DEVISE my Shares in Email Ltd and my Deposit with Hastings Deering Ltd and my money on fixed deposit at the Commonwealth Trading Bank to: - (a) As to one half thereof to the said PAULINE PAHLOW (b) As to the other half thereof in equal shares to such of the following persons as shall be living at the date of my death namely my said brothers JOHN SILADI, ANTHONY SILADI. GEORGE SILADI, my sister FRANCES AJDUK and my mother MARIA SILADI and children of the said Anthony Siladi such children if more than one to take per capito and not per stirpes. 5. I GIVE DEVISE AND BEQUEATH all the rest and residue of my real and personal estate after payment thereout of all my debts funeral and testamentary expenses and all death estate and succession duties State or Federal payable upon the whole of my dutiable estate UNTO the said JOHN SILADI if he survives me but if he predeceases me and the said Anthony Siladi survives me then to the said ANTHONY SILADI bot if both the said John Siladi and Anthony Siladi predecease me and the said George Siladi survives me then to the said GEORGE SILADI but if the said John Siladi, Anthony Siladi and George Siladi all predecease me and the said Frances Ajduk survives me then to the said URJ PAHLOW-SILADY v SILADI (Powell JA) 13 FRANCES AJDUK but if all four of the said John Siladi, Anthony Siladi, George Siladi and Frances Ajduk predecease me and my mother Maria Siladi survives me then to the said MARIA SILADI but if all five of the said John Siladi, Anthony Siladi, George Siladi, Frances Ajduk and Maria Siladi predecease me THEN to such of the children of the said Anthony Siladi as shall be living at the date of my death and if more than one in equal shares." The Appellant has said (A/B 14) that she was not aware, at the tune, of the execution by the deceased of this will and (A/B 15) that she had no idea of its existence until after the deceased's death. As I have earlier recorded, the Appellant and the deceased married on | July 1967. There is no evidence before the Court to suggest that the deceased either then, or later, appreciated that the effect of the provisions of s15 of the Wills Probate and Administration Act 1898, as they then were, was that the will which he had made in 1964 was revoked by that marriage. It would seem that, despite the marriage of the Appellant and the deceased, the Appellant continued to act as the deceased's secretary. In the course of her oral evidence (A/B 12) the Appellant gave the following evidence: "Q. How long were you a secretary for? A. Since I first met him. Q. How long was that? A. 1949, when he made the Boomerang die. I always remember that.. He was, as you know, the champion boomerang thrower. I always remember the boomerang molding (sic) die. I was a writer, and I was preparing research on the boomerang. That was the beginning of our courtship and later marriage in 1967. I wrote all his letters, I typed - because he being Yugoslavian he had difficulty in spelling, he was too busy running his business to learn to spell properly, he could only spell phonetically - I typed all his letters and composed them." The evidence would suggest that, if not earlier, then by no later than April 1983, tensions, or disagreements, had arisen between Anthony Siladi and the deceased as to the conduct by the former in relation to the company's business. That evidence would also seem to suggest that the deceased had discussed with the Appellant his concerns in the matter. In the course of her oral evidence (A/B 12-13) the Appellant gave the following evidence: "Q. If I could take you to 9 April 1983. Did you have discussion concerning the preparation of a statutory declaration? A. No, it was just my idea. I didn't have anything to do, I was a bit bored. I went upstairs and I typed that thing, and you could say - Q. Could you stop there, please. When you say you typed it, as to the contents of the document did you receive any instructions from Stephen Silady? A. No, I just composed it all myself. Q. Had you had any discussion with Stephen Silady prior to you preparing the statutory declaration concerning his wishes in relation to the business? A. Well, the fact that at that time he had a disagreement with his older brother Tony - and Tony was a bit of spend-thrift with money - and at that stage it was his intention, in 1983, that John would have his controlling interest rather than Tony, because Tony spends too much money. Stephen made sure that about $200,000 of accrued rents would never be cashed. I've still got the cheques at home where he kept them in the Commonwealth Bank at Ryde, because he was a very good business man. He said he didn't want the bank manager breathing 14 UNREPORTED JUDGMENTS down his neck, so he had a disagreement - he didn't want Tony - it was just between the two brothers. He did prefer John than Anthony. Q. Was this disagreement around the time you prepared the statutory declaration? A. Yes, about that time. Q. After you prepared the statutory declaration what did you do with it? A. I put it upstairs in my writing desk where I write all my stories and poems. Iam a poetess. I have had a lot of poems published, and it stayed there until he died, which I didn't expect him to die at 68. I never mentioned it again. He never mentioned it again. Q. As at 1983 how was your husband's ability to read and write in English. A. He was an astute business man. He could read, but he spelt in a wonderful way, phonetically. I have kept a lot of his writings, because it is very important. He didn't have time to learn to spell. He was too busy with his factory. Q. When you prepared the statutory declaration, when you typed it out, what did you do with it then? A. Oh well, I came downstairs, and as you can see, it is quite evident, that it was signed and I witnessed it. I knew it wasn't a will." The document which the Appellant says that she composed and had the deceased sign was in the following form (A/B 10): - "T, STEPHEN SILADY, Company Director, of 152 Greville Street, Chatswood West, in the State of New South Wales, do hereby solemnly declare that in the event of my death, my one-third share in the business of Derwent Thermostats Pty Ltd and Derwent Controls, 27 Higginbotham Road, Gladesville, is to be given to my brother, John Siladi, to be kept operating as a going concern and a family business. In the event of my illness and mental incapacity rendering me incapable of conducting my business, my share of the business is to be conducted by my brother, John Siladi, and in the event of his illness, mental incapacity or death, by my brother, Anthony Siladi, and his two sons Edward Siladi and John Siladi as a going concern and a family business. In the event of my death, my half share in the business of Derwent Properties is to be given to my brother John Siladi, including rents accrued and owing at that date by Derwent Thermostats Pty Ltd or others. In the event of my illness or mental incapacity, my half share of the rent of the premises, 27 Higginbotham Road, Gladesville, to be paid to me as half owner, for the duration of such illness or incapacity per calender month Signed (Stephen Silady) 9/4/83 Witness (Pauline Silady) 9. 4.83" Irecord, for whatever relevance it might be thought to have, that it is a measure of the Appellant's understanding of matters legal, that she did not appreciate that the form of the "Statutory Declaration" did not conform to that provided for by the Oaths Act 1900, or that, not being a person authorised by law to take and receive a Statutory Declaration, she, in all probability, committed an offence against the provisions of the Oaths Act 1900 when she witnessed the document. In an Affidavit which he swore in connection with the application before Santow J, one Rudolph Dominic, who had formerly been employed by the Company when it conducted its business from the premises at Glebe, but who URJ PAHLOW-SILADY v SILADI (Powell JA) 15 continued to see the deceased regularly after the Company had moved its business to the factory at Gladesville, deposed (inter alia) as follows (A/B 8-9): "5. [recall at some time in about 1985 having a discussion with Stephen Silady about wills. I recall the conversation came about as my mother had recently died in Yugoslavia and there had been problems with her Estate. In order to resolve the problems my sister and I had made a decision to divide our mother's Estate equally between ourselves and I was relating the problems to Stephen Silady. I recall Stephen Silady said to me, 'I have fixed things up so that if anything happens to me then the business goes to my brother John.' He also said 'Don't say anything about this to John.' 7. Stephen Silady died in August 1991. About two or three weeks after Stephen Silady's death, John Silady visited me at my home. I recall a conversation in which I said to him, 'You are now going to be richer I suppose' John Silady replied. 'I don't know anything about that. ' I then related to him the conversation with Stephen Silady deposed to in para5 above." (One notes, here, that, had the 1964 will not been revoked by the deceased's marriage, the effect of the residuary clause in that will would have been that the deceased's share in the Company, and his "share" in Derwent Properties would pass to John Siladi.) The deceased's death - apparently of a massive stroke (A/B 14) - on 4 August 1991 appears to have been unexpected. The Appellant says that, following the death of the deceased, she carried out a search of the house, and made extensive inquiries, with a view to ascertaining whether or not the deceased had made a will, but that, except for the document that was signed on 9 April 1983 - which document she forwarded to her solicitor - she was unable to discover any will, or other like document, which had been executed by the deceased. These proceedings were commenced on 9 June 1993 when there was filed on behalf of the Appellant a Summons in which she sought the grant to her of Letters of Administration of the Estate of the deceased. Thereafter, in compliance with the provisions of the Rules (SCR Pt78 Div SB) there was served upon the Respondent a Notice to Affected Person (Form 106F), following which the Respondent entered an appearance in the proceedings (SCR Pt76 134H), and thereby became a party to the proceedings for so much of the proceedings as related to the Court declaring whether it was satisfied under s18A of the Act that the deceased intended that the "Statutory Declaration" should constitute his will (SCR Pt78 1341). The proceedings came on for hearing of such much thereof as related to that question before Santow J on 6 July 1994, at the conclusion of which hearing his Honour reserved his decision, which decision, as I have earlier recorded, he delivered on 21 November 1994. On the hearing before Santow J the evidence consisted of two Affidavits which had been sworn by the Appellant, which Affidavits were supplemented by the Appellant's oral evidence and the Affidavit which had been sworn by Mr Dominic. Each of the Appellant and Mr Dominic was cross-examined. At the conclusion of the Appellant's oral evidence, counsel then appearing for the Appellant sought to tender the Memorandum and Articles of Association of the Company. Counsel then appearing for the Respondent objected to the tender of the Memorandum and Articles of Association upon the grounds: 16 UNREPORTED JUDGMENTS 1. that the Appellant had not discovered the document, an objection which, given the nature of the hearing before Santow J, I find puzzling; 2. that the Memorandum and Articles of Association would not be of any probative value as far as the proceedings were concerned; 3. that there was no evidence that the deceased was familiar with the terms of the Memorandum and Articles, a submission which, given the fact that the deceased had been one of the corporators of the Company, I find surprising. In rejecting the tender, Santow J said (A/B 16): "In these matters it is, of course, open to the Court, based on the Court's determination of what the interests of justice require, to permit material of that sort to be included. But I am satisfied on the material before me that the interests of justice are better served by excluding it." Before turning to record what appear to be the essential elements in his Honour's Judgment, it is convenient to set out the provisions of s18A of the Act which provisions are as follows: "18A (1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the court is satisfied that the deceased person intended the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will. (2) In forming its view, the court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intention of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person." In the light of what I have earlier written as to the possibility that Santow J was misled as to, or misunderstood the evidence as to, the make-up of the deceased's Estate and, in particular, the nature and value of the deceased's assets which would be affected by the "Statutory Declaration" if it were held to operate as a will, it is as well to record that, at the commencement of his Honour's Judgment, when dealing with the "Background", Santow J wrote (A/B 44,41): "Stephen Silady ('Mr Silady') died on 4 August 1991 without children. He was not legally trained but was an engineer by training. The Plaintiff in these proceedings is his wife. She would take on an intestacy. The Defendant is his brother John Siladi. Mr Silady left an estate worth about $1,964,618.60. Mr Silady was described as an 'astute businessman' as is evident from the assets he left on his death. Mr Silady was, among other things, a champion boomerang thrower. This is how he and his wife met. She worked for him from before her marriage as his secretary in the business referred to below. He was also a director of and ran, with his brothers, the family engineering and manufacturing company Derwent Thermostats Pty Ltd. He owned 668 shares in that company or a one-third share. These are valued at $112,010.24. His brothers Anthony and John Silady (sic) owned the balance, also working in the business. Those shares are the principal object of contention of this case. They are, as can be seen, well short of his total assets, though significant." If, for the moment, one leaves to one side what would be the effect, in law, of the provisions of "Statutory Declaration" in so far as they relate to the deceased's shares in the Company and the deceased's interest in Derwent Properties, it will be seen that the value of those assets as recorded in the Affidavit of Assets and Liabilities is, not $112,010.24 - or 5.7% of the total value of the estate - but URJ PAHLOW-SILADY v SILADI (Powell JA) 17 $355,742.24 - or 18.1% of the total value of the assets in the Estate - the latter figure not being apparent to me even during the course of the hearing of the appeal and only becoming apparent to me after I had an opportunity to consider at leisure the contents of the Affidavit of Assets and Liabilities. What would have been his Honour's reaction if he had appreciated that the assets which might be affected were not, as he thought, but a small proportion of the deceased's assets, is difficult to know. The burden of Santow J's Judgment is to be found in the following passages (A/B 50-S1) which appear at the end of his Honour's Judgment: - "Thus it was logical enough for the 1983 document to deal not only with dispositions on death, but also with the future conduct of the business in the contingency of illness and mental incapacity. The primary thrust of the document is directed at the former. Indeed the reference to illness and mental incapacity simply trigger a transfer to John Siladi of 'the conduct of the deceased', share of the business, whilst only rent in those circumstances is to be paid to the deceased as half owner during the duration of illness or incapacity. Thus I am satisfied that this feature did not preclude evincement (sic) of testamentary intention nor prevent the document pro tanto operating as a will, if otherwise saved by s18A of the Act. It might be said that because in 1964 Mr Silady had made a will in the conventional way, he must have been aware of what a formal will required. He could thus on this argument not have intended the statutory declaration to operate as such, when it quite obviously differed in form and execution from a conventional will. While that is a consideration that has some weight, it is not self-evident that a lay-man who did sign a formal will some nineteen years earlier would recall the formalities that then attended the process or would necessarily assume, even if they were recalled, that these formalities were essential to validity. Finally, although conventional testamentary language was not used, there is to be found the crucial dispositions expressed to take effect on death. The earlier cases cited demonstrate that it is the latter feature which is generally determinative of a testamentary intention. In weighing up the indications to which I have earlier referred as to whether the 1983 document embodied the testamentary intentions of the deceased and was intended to operate as his will I am, on the balance of probabilities, satisfied that the 1983 document was intended by the deceased to constitute his will after severing the non-testamentary portion. In so doing I have had regard to such limited extrinsic evidence as is available regarding the testamentary intentions of the deceased including statements made by him. Accordingly I am satisfied that those provisions of the 1983 declaration which could operate prior to death were severable from the testamentary dispositions. Thus I do not consider this a fatal impediment to the application of s18A to the 1983 document." In the Notice of Appeal filed on behalf of the Appellant, the grounds of appeal were, to say the least, less than happily expressed. However, in the Written Submissions which were filed on behalf of the Appellant the substantial grounds of appeal were reduced to two, they being: 1. that his Honour erred in rejecting the tender of the Company's Memorandum and Articles of Association; and 2. that his Honour erred in holding that the "Statutory Declaration" embodied the testamentary intentions of the deceased and that the deceased intended the "Statutory Declaration" to constitute his will. 18 UNREPORTED JUDGMENTS So far as the first ground is concerned, the submission - thoroughly confused though the manner of its being advanced was - appeared to be that, as the provisions of Article 6 of the Company's Articles of Association - so it was said - precluded the transfer of a deceased member's shares to (inter alia) that deceased member's brother, so much of the "Statutory Declaration" as appeared to be directed toward transferring the deceased's shares in the Company to the Respondent would have been ineffective, a matter which was relevant to the question whether the "Statutory Declaration" embodied the testamentary intentions of the deceased, and the further question whether the deceased intended the "Statutory Declaration" to be his will. So far as the second matter is concerned, the submission - again, advanced in a thoroughly confused and confusing fashion - appeared to be that, given the circumstances which gave rise to the drafting of the "Statutory Declaration"; the fact that the drafting of the "Statutory Declaration" was undertaken by the Appellant of her own initiative and not at the request of the deceased; and the fact that the deceased gave no instructions as to, and had no input to, the terms of the "Statutory Declaration', it could not be held that the document "embodied the testamentary intentions of the deceased", and, still less, that the deceased intended the "Statutory Declaration" to constitute his will - the "Statutory Declaration", so it seemed to be suggested, did not more than reflect what were then the deceased's wishes if there were to be some family dispute as to the conduct of the businesses in either of the events referred to in it. Although counsel who had appeared for the Respondent on the hearing before Santow J had objected to the tender of the Company's Articles of Association, and although counsel who appeared for the Respondent on the hearing of the appeal, at first, opposed the reception into evidence of the Company's Articles of Association, in the end counsel for the Respondent, in the course of his oral submissions, took the course of tendering the Articles of Association for the purposes, as I understood them, of demonstrating, first, that Article 6 did not have the effect contended for by the Appellant, and, second, of demonstrating that, that being so, the hearing before Santow J did not miscarry when his Honour rejected the tender at the hearing. So far as the second matter was concerned, the submission was that, having regard to the totality of the evidence and, in particular, the evidence of Mr Dominic that the deceased had told him that "(he had) fixed things up so that if anything (happened) to (him) then the business (would go) to (his) brother John", it was clearly open to Santow J to find that to the extent to which it dealt with what was to occur in the event of his death, the "Statutory Declaration" embodied the deceased's testamentary intentions, and that the deceased intended that, to the same extent, it should constitute his will. Despite the fact that, during the course of the hearing of the appeal, each of the Chief Justice (Transcript p23) and I (Transcript p22) expressed our respective concerns at the fact that Santow J appeared, either, not to have had complete and accurate information as to what appeared to be matters of some significance, or, that he misunderstood what was the true position in relation to those matters, and, further, that it appeared that this Court might still not be in possession of complete and accurate information as to those matters, both counsel appeared to resist the suggestion that the matter might need to be remitted to the Probate Division for rehearing, and, rather, submitted that the material which was before the Court was sufficient to enable the Court to determine the questions arising on the appeal in favour of their respective clients. URJ PAHLOW-SILADY v SILADI (Powell JA) 19 In In the Estate of William Frederick Masters!) I wrote (inter alia): "As I have, on a number of occasions (see, for example, The Application of Brown (1991) NSWLR 535; The Application of Kencalco 23rd October 1991 (unreported); Clothier v Rampling 9th December 1991 (unreported); Recent Developments in New South Wales in the Law Relating to Wills 67 ALJ 24, 38-39) sought to record, it is my view - and neither Mr Hill nor Mr Butcher sought to submit the contrary - that the questions arising on applications such as this are essentially questions of fact, the particular questions of fact being: - 1. is there a document? 2. does that document purport to record the testamentary intentions of the relevant deceased? 3. does the evidence satisfy the Court that, either, at the time of the relevant document being brought into being, or, at some other time, the relevant deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, operate as her, or his, will? The only qualification - if qualification it be - which I have more meetly made to that often stated view is that, if the Court be satisfied that there once was a document which can no longer be found, then, so long as what might be called the presumption of destruction animo revocandi ought to be regarded as having been rebutted, it would be open to the Court, in an appropriate case, to make a declaration pursuant to the provisions of s18A of the Act in relation to that document (Whiteley v Clune: The Estate of Brett Whiteley 13th May 1993 (as yet unreported))." Although the conclusion to which I then came as to one, but not as to the others, of the documents then being propounded was, by majority (Kirby P, Priestley JA; Mahoney JA (as he then was) diss), overruled by this Court in In the Estate of Masters (deceased)? I do not understand that any of the then members of the Court dissented from the view which I had recorded at first instance. In the course of his Judgment? Priestley JA wrote: "Powell J stated that in the application of this section the questions arising are essentially questions of fact, the particular questions of fact being whether there is a document, whether that documents purports to record the testamentary intentions of the deceased and whether it was the intention of the deceased that the document should operate as his or her will. This seems to me to be an appropriate way of understanding the section." If, as seems to be accepted, the questions to be determined upon an application such as this are questions of fact, then, as it seems to me, it follows that, in any case in which the Court has been misled as to, or has misapprehended, or misunderstood, what are, the material facts, the hearing of the application will, in all probability, have miscarried, so that the result of that hearing ought to be set aside. While it may be that, in many such cases, an appellate court, on determining what were the true facts, would be in a position to make that order which ought to have been made at first instance, in the present case, I remain to be persuaded that, even now, this Court is in possession of all the relevant facts - in this regard it is sufficient to point out that the effect of the death of the deceased upon the partnership between his brother Anthony and himself is not [mown. This being so, it seems to me that, rather than endeavour to determine 1. 25 June 1993 (unreported) 2. (1994) 33 NSWLR 446 3. supra at 466 20 UNREPORTED JUDGMENTS this application for itself, the better course for the Court to adopt is to remit the matter to the Probate Division for re-hearing. However, as it may be that that view is not shared by other members of the Court, it is as well that I express what would be my view if the other members of the Court are of the view that the application should be determined upon the basis of such material as is now before the Court. In the event supposed, I would not be satisfied that the "Statutory Declaration" embodied the testamentary intentions of the deceased, or that it was the deceased's intention that, insofar as it dealt with matters consequent upon his death, the "Statutory Declaration" should, without more, constitute his will. My views thus stated are not dictated by the facts that the document is headed "Statutory Declaration" nor that it commences with the words "I... do hereby solemnly declare...", for, while the form of a document the subject of an application such as this is a matter to be considered by the Court on the application, it is by no means determinative of the result of such an application; merely by way of example, I record that in The Estate of John David Madzay+ Theld that a letter written by the deceased, when in hospital, to his mother, which letter read in part: "Tf I survive, I will do my best to serve Jehovah, however, if I do not survive, my desire is that Robynne Bell runs the business (sic), not Joy. This letter evokes my previous Will and Testament and gives you, being my mother the full estate of my home, bank accounts, cars and all belongings not Joy or Donald as previously indicated. I am potting everything in trust for you, to decide for yourself, who, if anyone, is deserving at all, in this country. I want you to know, that i (sic) love you very much and thank you for your loyal support during this unhappy time in my life. I have expressed my desire to Robynne, my faithful! (sic) friend, that if things don't turn out right during the operation, my wish is that my body be cremated as indicated and dictated in my previous will. Then its up to Jehovah, but I sure love him, I never left him. I only hope that I see you in the resurrection." was intended by the deceased to constitute his will, which will he intended to revoke his prior will and to dispose of the whole of his estate. The matters which lead me to the view which I have recorded above are: 1. the "Statutory Declaration" appears to have followed from some informal discussion between the deceased and the Appellant as to matters which, at that time, appear to have been causing some tension between the deceased and his brother Anthony in the running of the "family business"; 2. the "Statutory Declaration" was not drafted at the request of the deceased, but was drafted by the Appellant of her own initiative; 3. the deceased appears to have had no input, whatsoever, into the drafting, or the content, of the "Statutory Declaration"; 4. it would appear that, in drafting the "Statutory Declaration", the Appellant relied entirely on her own understanding of the deceased's business affairs, which understanding, it would appear, was, at best, incomplete; 5. the drafting and the execution of the "Statutory Declaration" appear to have been very casual acts, undertaken on the spur of the moment, and occupying very little time, on what appears to have been a Saturday afternoon or evening at home. 4. 25 October 1991 (unreported) URJ PAHLOW-SILADY v SILADI (Powell JA) 21 Given that the "Statutory Declaration" was drafted, and executed, in such circumstances, and in such a casual manner, I find it difficult to accept, either, that the "Statutory Declaration" represented the considered testamentary intentions of the deceased, and, still less, that it was the deceased's intention that, in so far as it dealt with matters consequent upon his death, the "Statutory Declaration" should, without more, constitute his will. On the contrary, it seem to me that the "Statutory Declaration" was intended to be no more than a record of what were the deceased's then wishes. In the result, the orders which I would favour are: - 1. ORDER that the appeal be allowed. 2. ORDER that the Orders made by Santow J on 8 February 1995 be set aside. 3. ORDER that, insofar as they deal with the question of the application of s18A of the Wills Probate and Administration Act 1898 to the document entitled "Statutory Declaration" and executed by the deceased on 9 April 1983, the proceedings be remitted to the Probate Division for re-hearing. In the event that the other members of the Court are of the view that the matter ought not to be remitted as I have suggested, the Orders which I would propose are: 1. ORDER that the appeal be allowed. 2. ORDER that the Orders made by Santow J on 8 February | 99S be set aside. 3. DECLARE that the Court is not satisfied that the deceased intended that the document entitled "Statutory Declaration" executed by him on 9 April 1983 constitute his will. 4. ORDER that, subject to compliance with the Rules of Court, Letters of Administration of the Estate of the Deceased be granted to the Appellant. 5. REMIT the matter to the Registrar to complete the Grant. 6. ORDER that within 7 days of this day the parchment of the existing Letters of Administration c.t.a. be returned to the Registry for cancellation. Since the present appears to be one of those cases in which it might properly be said that the deceased has, or the Appellant, as the one entitled either on intestacy or to the residuary estate, in any event, has, been the cause of the litigation, it seems to me that this is one of those cases in which, even if it be held that the Appellant is entitled to the whole of the Estate on intestacy, the costs of the Respondent might properly be ordered to be paid out of the Estate of the deceased (see, for example, In the Estate of Paul Francis Hodges deceased; Shorter v Nodges5). I would propose that, whatever be the fate of the appeal, there should be made a further order: ORDER that the costs of each of the Appellant and the Respondent of the hearing before Santow J and of the appeal be paid, or retained, as the case may be, out of the Estate of the deceased. 1. ORDER that the appeal be allowed. 2. ORDER that the Orders made by Santow J on 8 February 1995 be set aside. 3. ORDER that insofar as they deal with the questions of the application of s18A of the Wills Probate and Administration Act 1898 to the document entitled "Statutory Declaration" and executed by the deceased on 9 April 1983, the proceedings be remitted to the Probate Division for rehearing. 5. (1988) 14 NSWLR 698 and cases there cited 22 UNREPORTED JUDGMENTS 4. ORDER that the costs of each of the Appellant and the Respondent of the hearing before Santow J and of the appeal be paid, or retained, as the case may be, out of the Estate of the deceased. 5 Counsel for the Appellant: JA Jobson Solicitors for the Appellant: DG Stuart (Penrith) Counsel for the Respondent: DL Davies SC 10 Solicitors for the Respondent: O'Connor Filewood & Co (Hunters Hill)