Albrow & Anor v Cunningham [2000] NSWSC 103

New South Wales Supreme Court

CITATION : Albrow & Anor v Cunningham [2000] NSWSC 103 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3977/98 HEARING DATE(S) : 24 February 2000 JUDGMENT DATE : 25 February 2000

Chris Albrow (First Plaintiff)

Marlene Albrow PARTIES : (Second Plaintiff)

v

Graeme Cunningham (Defendant) JUDGMENT OF : Davies AJ

COUNSEL : Ps - Mr R D Wilson D - Mr J Shaw SOLICITORS : Ps - Stacks Family Law Services D - Denis M Anderson CATCHWORDS : Wills - whether testator and another had entered into mutual wills - whether intention that wills not be revocable - whether provision should be made under Family Provision Act 1982. LEGISLATION CITED : Family Provision Act, 1982 ss 7, 9 CASES CITED : Hubbard v Mason (Santow J, unrep, 9.12.97) Theobald on Wills, 15th Edition DECISION : See paras 31 and 32.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

DAVIES AJ

FRIDAY 25 FEBRUARY 2000 3977/98 - Chris ALBROW & ANOR v Graeme CUNNINGHAM

JUDGMENT 1 HIS HONOUR: Mrs Louise Anne Albrow, to whom I shall refer as "Mrs Albrow", married Arthur Albrow. They had four children, Peggy, who now lives in the United Kingdom, Violet, Patricia and Sheila. Chris Albrow, the plaintiff, was born on 19 November 1950. He was brought up believing that Mrs Albrow and Arthur were his mother and father. His mother in fact was Patricia. His father is unknown. When he was about 11 years of age Patricia informed him that she was his mother. He nevertheless continued to refer to Mrs Albrow and Arthur as "Mum" and "Dad". 2 In 1959, Mrs Albrow and Arthur terminated their relationship. Mrs Albrow formed a relationship with Mr Reg Crowley. She and Mr Crowley lived together thereafter as husband and wife. Chris lived with them until he turned 19. He had not long been out on his own when he broke his leg and returned to live with Mrs Albrow and Mr Crowley. Chris married Karen in August 1970 and they had a child, Nathan. Chris, Karen and Nathan lived with Mrs Albrow and Mr Crowley for twelve months until Chris was fit enough to go back to work. 3 Again, Chris was not long away from his mother. In 1973, he separated from Karen and moved back with Mrs Albrow and Mr Crowley. In December 1974, he moved to live with Arthur, Violet and her husband. In 1977, Chris returned to Sydney, moving back with Mrs Albrow and Mr Crowley. He met Marlene, his present wife, and Chris and Marlene lived with Mrs Albrow and Mr Crowley for six to eight months. 4 During the many years while he lived with Mrs Albrow and Mr Crowley, Chris paid either no rent or only a token rent. After Chris and Karen had moved to their own premises, they kept in contact with and helped Mrs Albrow and Mr Crowley. 5 In November 1990, there was a conversation between Mrs Albrow and Mr Crowley and Chris and Marlene. I will deal later with that conversation in detail. At about that time, the date is not known, handwritten instructions for wills came into existence and they are Exhibits B and D. They were in relatively similar terms. The instructions in as far as they related to Mrs Albrow read: " AFTER MY DEATH I ANNIE LOUISA ALBROW. DO WILL ALL THAT BELONGS TO ME. MONEYS. FURNITURE. PROPERTY. & PERSONAL BELONGINGS, TO RALPH REGINALD CROWLEY OF NO 8 WEEMALA CRS BRADBURY. IF THE DEATH OF RALPH REGINALD CROWLEY, OCCURS PRIOR TO MY OWN. "THEN AFTER MY OWN DEATH " "EVERYTHING INCLUSIVE" I WILL " EQUALY " TO MR CHRISTOPHER ALBROW & WIFE "MARLENE" OF 140 SPITFIRE DRIVE RABY." 6 The instructions in relation to Mr Crowley were similar but he referred to the assets as, "MONEY. PROPERTY = (N8 WEEMALA CRS) FURNITURE, MOTOR VEHICLE, & PERSONAL BELONGINGS". Each will left the total assets to the other and provided that, if the death of the other occurred prior to the testator's own, then after the testator's death everything was to go equally to Chris and Marlene. Those instructions were written out by Mr Crowley. However, there were additional notations on them dealing with the executor or executrix and like matters which appear in Mrs Albrow's handwriting. 7 The instructions were taken in late January to Mr Denis Anderson who was Mr Crowley's solicitor. He prepared two wills which gave effect to the written instructions. The wills did not carry the title of mutual wills and they did not refer to each other. Mr Crowley's will was executed on 31 January 1991 and Mrs Albrow's on 5 February 1991. 8 Mrs Albrow died on 23 March 1991 aged 80 years. In the following years, Chris and Marlene kept in contact with Mr Crowley, mainly by telephone and by Christmas cards and the like. In 1988 or 1989, Mrs Albrow and Mr Crowley had moved from their then home at Newtown to Bradbury. Mr Crowley subsequently sold the home and moved to Swansea near Newcastle. Both places were inconvenient to visit as far as Chris and Marlene were concerned. During the 1990's, Sheila and her husband, Graeme, saw considerably more of Mr Crowley than did Chris and Marlene. I accept the evidence of Sheila and Graeme that they gave Mr Crowley considerable support. 9 Mr Crowley, as he grew older, became dissatisfied that he saw so little of Chris and Marlene. In 1994, Mr Crowley executed a will in which he gave half his estate to Chris and Marlene and half to Sheila and Graeme. 10 By a further will on 5 November 1996, Mr Crowley left the whole of his estate to Sheila and Graeme. Mr Crowley died on 19 March 1997. His estate consisted principally of the home at Swansea, which was given a value for probate purposes of $82,000, monies in the bank totalling a little over $12,000 and a Toyota motorcar valued at $4,000 for probate purposes. 11 At the present time, Chris and Marlene are in a very tight financial position. They have a house at Bowral which is valued at $260,000. On that home is a fixed mortgage of $100,000 and a variable mortgage of $109,000. They have a Visa card debit of just under $8,000 and a David Jones debit of a little under $5,000. They have a debit on their bank account of just under $3,000. Chris has a net wage of $620 per week and Marlene of $400 per week, a total of $1,020 per week. They estimate their expenses at $1,024 a week. It is clear that their income is low having regard to the expenses they have to meet by way of interest on monies owed. Chris suffers physical problems caused by a deterioration of the bone in his right foot and pain in his right hip. He has employment but is certainly not in either comfortable or secure circumstances. 12 Sheila and Graeme were in a much more comfortable position until Graeme suffered heart bypass surgery in 1997. Prior to that time, Graeme carried on his own business and he and Sheila owned a nice home on the Bilgola Plateau which was worth about $450,000. Since suffering the bypass surgery, Graeme has been disabled from working, save to a limited part-time extent. He has been troubled with both depression and anxiety and has suffered memory loss and an inability to concentrate. He has suffered other problems which include a gastro-oesophageal reflux, hypertension and hypercholesterolaemia. He takes many pills each day. He is not yet fit for work. He receives an invalid pension because of his ill-health. Sheila is also on a pension. They have a home and some assets and capital, but they had to sell their home on the Bilgola Plateau. Some of their capital went in the payment of outstanding debts. 13 The basic principles with respect to the law of mutual wills, is set out in the 15th edition of Theobald on Wills, at p 28, in these terms: "The term 'mutual wills' is used to describe joint or separate wills made as the result of an agreement between the parties to create irrevocable interests in favour of ascertainable beneficiaries. The revocable nature of the wills under which the interests are created is fully recognised by a probate court, In the Estate of Heys [1914] p 192; but in certain circumstances equity protects and enforces the interests created by the agreement despite the revocation of his will by one party after the death of the other without having revoked his will. Equity does not protect the beneficiary under mutual wills merely because they have been made in almost identical terms. There must be evidence of an agreement to create interests under the mutual wills which are intended to be irrevocable after the death of the first to die, Re Cleaver [1981] 1 WLR 939; In the Estate of Monica Dale, Proctor v Dale , The Times, February 16, 1993." 14 As the principles to be applied are not in dispute, it is convenient for me to incorporate in my judgment a part of the exposition of the relevant principles given by Justice Santow in Hubbard & Anor v Mason & Ors (unreported, 9 December 1997). His Honour said: "2. The agreement not to revoke is a key element in the concept of mutual wills. It may be implied from all the circumstances, but where implied, 'it will be important to identify with precision the nature of the implied promise'. In deciding whether to draw the relevant implication, the court will consider 'All the surrounding circumstances, the history, the factual matrix. The Court will look at all the circumstances and draw any proper inferences. And where … there is extrinsic evidence as to what was being effected and why - that is clearly a relevant factor.'