New South Wales Supreme Court CITATION : Williams v Lawson [1999] NSWSC 844 CURRENT JURISDICTION : Equity Division Probate List FILE NUMBER(S) : 115918/98 HEARING DATE(S) : 20 August 1999 JUDGMENT DATE : 20 August 1999 Noel Heywood Williams (Plaintiff/Cross-Defendant) PARTIES : William Bernard Patrick Lawson (First Defendant/Cross-Claimant) National Heart Foundation of Australia (NSW Division) (Second Defendant) New South Wales Cancer Council (Third Defendant) JUDGMENT OF : Windeyer J at 1 Ms K Burke (Plaintiff/Cross-Defendant) COUNSEL : Mr J. Wilson (First Defendant/Cross-Claimant) Mr Graham (Second and Third Defendants) McIntosh McPhillamy & Co (Plaintiff/Cross-Defendant) SOLICITORS : King Cain (First Defendant/Cross-Claimant) Bartier Perry (Second and Third Defendants) CATCHWORDS : WILLS PROBATE AND ADMINISTRATION - informal wills -documents signed by deceased which if valid as testamentary documents, disposed of valuable rural property - some formal words used - evidence intended to have immediate effect - admitted to Probate under s18A ACTS CITED : Wills Probate Administration Act 1898 s18A Supreme Court Rules Pt52A r37A DECISION : 7 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST WINDEYER J Friday 20 August 1999 115918/98 NOEL HEYWOOD WILLIAMS v WILLIAM BERNARD PATRICK LAWSON & 2 ORS (THE ESTATE OF DOUGLAS KEITH CALLAGHAN) JUDGMENT 1 HIS HONOUR: Douglas Keith Callaghan died on 5 August 1998 aged eighty-four. He left a will dated 4 May 1988 which appointed the plaintiff, Mr Williams, and his solicitor Mr Dalziel, as executors, gave his property at Bathurst to his housekeeper Josephine Nairne, and gave the residue of the estate in equal shares to the National Heart Foundation of Australia and the New South Wales State Cancer Council. 2 By a codicil to that will dated 26 March 1990, he expressed the wish that William Bernard Patrick Lawson, who is the first defendant in these proceedings and the cross-claimant, be engaged by his trustees to advise them on any matters relating to the supply and reticulation of water and fencing on his rural properties. Otherwise he confirmed his will. 3 Mr Dalziel, as I have said, is a solicitor and had acted for the deceased for a long time. He, however, renounced probate. Mr Williams applied for a grant of probate of the will and codicil and disclosed in accordance with the rules that there were documents dated 22 April 1996 and 22 July 1998 which may have been documents embodying the testamentary intentions of the deceased, in this case, to amend his formal documents, namely the will and codicil. The documents are written on each side of one piece of paper which appears to have been torn from a journal. It is clear that part of the full page has been torn off but I do not think that anything turns on that. 4 The first document has a date at the top "Monday April 22 1996". After that appears the words "Wed. July 22/98. See over". It is obvious those words were added at a later date. The document then says: I Douglas Keith Callaghan make this order in the event of my death, and in consideration of the affairs of my estate, William Bernard Patrick Lawson (known as 'Bill') is to be paid $800 per week to attend to the work involved in the disposal of the said estate. Signed D K Callaghan. 5 At the foot of the document after the signature of the deceased there is a date "Oct. 5th 1996. Attention G Dalziel". It is obvious there was something written below that which has been torn off and it is equally clear that the date 5 October 1996 could not be part of the document admitted to probate. Apart from that, I do not think that anything turns on it. 6 On the reverse side of this piece of paper is the other document which is headed "Wed. July 22-98" in the following terms: All the Perthville property is bequeathed to the aforementioned W B P Lawson to have and to hold - and he is to be made a full executor in place of D L Dalziel who is to step down from this position but is to remain solicitor to the estate. D K Callaghan. DOUGLAS KEITH CALLAGHAN." 7 The deceased was a wealthy man who at the date of his death had assets estimated to be worth $3,300,000. Included in those figures are the Bathurst home of $180,000 and the Perthville property of $1,000,000. It is really the Perthville property which is the subject of the contest in this action before me. 8 The matter falls to be decided under s 18A of the Wills Probate Administration Act 1898. For a document to be admitted to probate under that section there must be: 1. A document. 2. That document must purport to state testamentary intentions of the deceased, or purport to record the testamentary intentions of the deceased. 3. The document must be intended at the time of signing that document or at some later particular time without more to constitute the will of the deceased or an amendment to the will of the deceased. 9 So far as this third matter is concerned, there must be an intention that the document become of immediate operation, not that it will constitute a will at some later undetermined time. 10 The evidence which is relevant to determine this question is perhaps more convincing than is sometimes available in cases of this kind. Section 18A provides that it is possible when determining the intention to consider statements made by the deceased, and any other evidence relating to the manner of execution or testamentary intentions which may assist in working out whether or not the court should be satisfied that the deceased person intended the document to operate as a will. 11 Mr Lawson was an old friend of the deceased. Without going into the details of their long relationship, he had worked with him on his properties over a long period of time, but normally on weekends or when he had some time off from his ordinary work as a field supervisor with the Department of Lands and Water Conservation. It is perfectly clear that he and the deceased were good friends and other witnesses attest to that. There is evidence of conversations between Mr Lawson and the deceased discussing the intentions of the deceased to leave him the Perthville property, or at least part of it, at some time. 12 There is evidence that just prior to his death there was a conversation about old ploughs when Mr Lawson asked the deceased not sell them as he would like to have them if he eventually got "my own place" and the deceased said to him, "Am I going to leave you this place or not?" Later on the deceased had said to him, "I will tell you one thing, Mr Billy Lawson, you are going to need a lot of capital to run this place", and he replied, "Is that right?", to which the deceased said, "Yes, that's right." 13 There was another occasion apparently some weeks before the conversation to which I have just referred when the deceased said to Mr Lawson that they had better have a good talk about things because he, meaning the deceased, had only got about five years left. 14 There is also evidence which relates to the provision of the $800 per week if Mr Lawson attended to work in connection with the disposal of the property, a conversation when the deceased asked him whether he would be willing to do this and he had said that he would, and the deceased said at the end, "Do you think $800 a week will be enough?" to which Mr Lawson had said, "Yes, that should cover me". 15 Probably the most crucial evidence is that given by Mr John Burke in his affidavits. He deposes to conversations with the deceased about Lawson running the property when he had died, and another conversation when the deceased told him about an argument he had had with Mr Dalziel over the land which he was selling to the council. He said that the year before he had died the deceased had said to him one day, "I am leaving the Perthville property to Bill and you will have to deal with him in relation to clay". This conversation took place because Mr Burke carted clay from the Perthville property to the Bathurst brickworks and subsequently when that company was taken over, to CSR. 16 Mr Burke said that not long before the deceased's death he was at the other property, namely, the Eglinton property, when the deceased handed him the handwritten note which is sought to be admitted to probate and said to him, "Read this", and that after he had read both sides of the document the deceased said, "Well, that is what is happening now. I want Billy to have the place. He will have to spend a few bob and fight for the place if he wants it". In my view those last words related to the need to expend substantial moneys on the property rather than fighting with anybody about keeping it. 17 There is also evidence from a Mr Barnes who stated that he had been told by the deceased, clearly earlier than the July 1998 date, that he would not sell part of the property to him, Barnes, because, "If I did I would be doing a mate of yours out of his inheritance. This will end up being Bill's property at some time". I consider that this evidence of intention is relevant to show that the deceased had in mind that he would leave the Perthville property to Mr Lawson and that, together with the document which came into existence after this express intention, is strong evidence that it was intended to be a document which would operate from its date as expressing what the deceased intended from his death. 18 It is now necessary to state how the document was found. The deceased was apparently late home a few days before his death and his housekeeper contacted Mr Lawson, and Lawson said that he would go to look for him. He then went out to the property, found the deceased's truck and dogs running around, looked in the shed and found the deceased lying on the floor, obviously very seriously ill. He summoned the ambulance and the deceased went to hospital. The next day Mr Lawson and Mr Stocks, who was also a good friend of the deceased, decided that in view of the serious illness of the deceased they should endeavour to get in touch with a number of people whom they thought should know of his serious illness. They therefore went out to the farm to try and find the telephone numbers of those people. They looked in the box on the back of the truck and they also looked through some documents which were in what is described as pigeon holes in a cabinet against one of the walls of the shed. 19 The documents, which for the most part appear to have been records of cattle sales, cattle purchases, equipment purchases and the like, were put on the table and amongst those documents appeared the document which is now sought to have admitted to probate. Mr Stocks read the document to Mr Lawson who, it is clear, did not know of its existence. Mr Stocks retained the document but after Mr Callaghan died he took it to Mr Dalziel when there was a meeting there with Mr Lawson, Mr Dalziel and Mr Williams. 20 Counsel for the charities says that this is one of the indications that the document was not treated by the deceased as a document which was operative, or a document which was a serious document because it was mixed up with what might be described as ordinary farm records. He also says that the conversations, and even the conversation with Mr Burke, are not sufficient to show intention by the deceased that this document was to operate as an amendment to his will. 21 For the reasons for the most part put forward by counsel for the cross-claimant I have come to the opposite conclusion. The documents are in relatively formal terms. They use legal terms and the later one removes the executor, and there is some reason given for this, although I am not to be taken as saying there is any justification for this. The documents are signed and on their face appear to be quite formally signed. They clearly embody what the deceased intended to happen and what he had stated would happen to other persons on many occasions. 22 There is also evidence in the expression which was used by the deceased when he showed the document to Mr Burke, namely, "Read this. Well, that is what is happening now", which would indicate that the document was considered by the deceased to have present effect. On that basis, in my view, the document ought to be admitted to probate and I will make the necessary orders for that. 23 I should add that if there were any doubt about the document of 22 April 1996 as being a testamentary instrument and in effect all that it does is to express a wish, although it is said to be an order, the fact is that this document has been incorporated by a reference in the later document and on that basis alone it ought to be admitted to probate. 24 I make the orders as sought in paragraphs (i) to (iv) of the cross-claim. I order the costs of all parties be paid out of the estate, those of the plaintiff and the cross-claimant on an indemnity basis pursuant to Pt 52A r 37A of the rules. 25 The exhibits, other than the testamentary documents, can be returned. 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