New South Wales Supreme Court CITATION : Baird v Huang; Estate of Robin Sydney Williams [2001] NSWSC 409 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 105747/99 HEARING DATE(S) : 15/05/01 JUDGMENT DATE : 15 May 2001 PARTIES : Terence Peter Baird (P) Lilly Huang (D) JUDGMENT OF : Young CJ in Eq COUNSEL : L J Aitken (P) C M Simpson (D) SOLICITORS : Gray & Perkins (P) Turner Freeman (D) CATCHWORDS : SUCCESSION [58]- Dependent relative revocation- Assumption of future fact- Assumption becomes invalid- Whether revocation of part of earlier will revoked conditionally on basis of continuing truth of assumption. Adams v Southerden [1925] P 177 In re Carey (1977) 121 So Jo 173 CASES CITED : In re Jones [1976] 1 Ch 200 Re Riordan [1961] VR 271 Re Tait [1957] VR 405 DECISION : Orders made. THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST YOUNG CJ in Eq TUESDAY 15 MAY 2001 105747/99 - BAIRD v HUANG; ESTATE OF ROBIN SYDNEY WILLIAMS JUDGMENT 1 HIS HONOUR: On 7 December 1998 the testator, Robin Sydney Williams, made his last will and testament. The capacity of the testator was in doubt in these proceedings for a while but it is no longer an issue. Given the fact that all other aspects of the case are in order, apart from the matter which I will consider below, probate should be granted at least of that will to the plaintiff in due course. 2 The defendant is the testator's de facto wife. Clauses 3 and 4 of the will provide in summary that the testator and the defendant were in the process of purchasing a property at North Strathfield as tenants in common. The defendant's contribution was to be $128,000. Essentially, the will provided that the defendant would have the right to reside in the North Strathfield property for life, and the will specifically said that the testator had made no other provision for the defendant because she would be provided for by the North Strathfield property and from her being the surviving joint tenant with the testator of some property in the Port Stephens area. 3 The will expressly provided in cl 1: "I REVOKE all former Wills." 4 The testator's previous will was made on 8 April 1993. In the events which have happened, had that will been the testator's last will, the defendant would have received the testator's house at Rodd Point where she is presently living, plus she would receive some half of the residue although an argument may be mounted that she would have only received one-fifth of the residue. 5 The defendant says that by the doctrine of Dependent Relative Revocation, the revocation of the 1993 will should be read as conditional on the North Strathfield property being purchased. 6 The facts of that matter are essentially that the testator had the contract terminated during the cooling-off period. It would seem that two factors led to that termination; whether one alone would have been sufficient, or whether both put together were the real cause I am unable to say. The factors were: (a) That the defendant was unable or unwilling to make her intended contribution of $128,000; and (b) There was an adverse report received with respect to termites. 7 The evidence of the solicitor who prepared the will is that on 4 December 1998, ie three days before the signing of the will, he took instructions from the testator at his home. The testator said: "I want my estate to go to the children. I am selling Rodd Point and Lil (the defendant) and I are buying another house. She is contributing $128,000. I would like her to be able to stay there for the rest of her life if she wants to and then my share in the house can go to the children. I think that the value of the Fern Bay land, which I paid for, and that the additional value of the place we are purchasing apart from her contribution and letting her live there for life, that she is well taken care of." 8 The solicitor then says that a few days after the will was executed he became aware that the defendant was not going to contribute $128,000, and he then spoke to the testator about the matter. The testator said that he did not think he could proceed and, as the contract was still in the cooling-off period, he had better terminate it. He did so. 9 The evidence of the defendant is that the relationship had subsisted for about twenty years prior to the will being made; that the testator had indicated that the parties should find a little house and that when the house was found they would sell their present property. The testator, she says, told her in August 1998: "If we get a little place we'll be able to get rid of the mortgage." 10 The defendant found the North Strathfield property in November 1998 and the testator said "Let's get it." The defendant put a holding deposit on the house and the agent informed the testator and the defendant that he had a buyer for the Rodd Point house. 11 The general flavour of the evidence is, both in the will and from the plaintiff's evidence, that it was a matter of concern for the testator that the defendant have a roof over her head. 12 Unfortunately the deceased died suddenly shortly after the will was made. He did not, when the North Strathfield property contract was terminated, appear to direct his mind as to whether he needed to make further testamentary provision. 13 The doctrine of Dependent Relative Revocation is a strange one and its actual operation has been considered by academic lawyers as bizarre: even Mr F C Hutley, as he then was, considered that to be so in his seminal article Dependent Relative Revocation and Mistake (1948) 22 ALJ 259. However, by this 21st century the doctrine is well established, though its exact scope and its relation to relief on the ground of mistake is perhaps still a matter for discussion. 14 Theobald on Wills 14th edition (Stevens & Sons, London, 1982) at p 84 states that the doctrine of Dependent Relative Revocation is of general application and: "…applies if the testator destroys his will, intending to revoke it conditionally on the existence, or future existence, of a particular fact: if this condition is not satisfied the will is not revoked. But the doctrine is not applicable simply because the testator made a false assumption when he revoked his will. The true view is that a revocation grounded on an assumption of fact which is false takes effect unless ... the truth of the fact is the condition of the revocation, or, in other words, unless the revocation is contingent upon the fact being true." 15 An earlier version of this passage was approved by Pollock MR in Adams v Southerden [1925] P 177, 182. 16 The classic statement of the principle is by Atkin LJ in the same case at p 185 where his Lordship said of Dependent Relative Revocation: "The question in each case is, had the testator the intention of revoking the will? The intention may be conditional, and if the revocation is subject to a condition which is not fulfilled, the revocation does not take effect. Cases of dependent relative revocation are mostly cases where the testator has supposed that if he destroyed his will his property would pass under some other document. But the condition is not necessarily limited to the existence of some other document. The revocation may be conditional on the existence or future existence of some fact. If that is proved full effect can be given to the Wills Act ... You must prove there was in fact a condition. It is a question of fact in each case." 17 The Southerden case was a case where the testator had been going for an overseas trip. It appears the testator was concerned that both he and his wife might die in the one disaster and so he made a will leaving all his property to his wife with provision if the wife should pre-decease him. When the couple returned from their trip the husband said that the problem was now over, that his wife would take the whole lot anyhow and he burnt the will. This was, of course, a mistake, but the Court said that the revocation was conditional on the wife taking the whole of the property, that condition had not been fulfilled, therefore the revocation was ineffective. 18 The Full Victorian Supreme Court considered the doctrine in detail in Re Tait [1957] VR 405. That was a completely different sort of case for a copyist's error meant that two dispositions in a will which the testatrix had intended should be repeated in a later will were not in fact repeated. The Full Victorian Supreme Court made an order that part of the earlier will being the two dispositions that had been omitted from the later will were not revoked. 19 Mr Aitken of counsel, who appears for the plaintiff, has strongly put that the doctrine of Dependent Relative Revocation cannot assist the defendant in the instant case. He puts that this is a situation where the testator deliberately revoked his earlier will in a situation where he knew that the North Strathfield property had not been purchased, that there was a mere contract of purchase in its early stages and it may well be terminated. That this is so is confirmed by what happened with his solicitor a few days after the will was made when he did not make any substitute provision for the defendant, even though he must have known at that time that because of what he had done a few days earlier the defendant would be without a roof of her own over her head. He says that there is no case in the books where, because the deceased had in mind a transaction which may or may not take place in the future, the transaction did not take place, that the Court should imply that there was a condition on the revocation. I am not completely sure that this statement is correct. Re Riordan [1961] VR 271 and In re Carey (1977) 121 So Jo 173 appear to be such cases. 20 On the other hand, Mr Simpson for the defendant puts that the doctrine does extend to situations where there is an assumption of a future set of facts which has made the condition of revocation. In my view, the general principle as noted in Theobald supports such a submission. Furthermore, Mr Simpson puts that when one looks at the background of this particular case, the fact that the Rodd Point property was being sold, and the North Strathfield property purchased as a substitute, the fact that the will itself shows a clear intention that the testator directed his mind to the provision and proper provision for the defendant, and that that proper provision included that she should have a right to live in a property as for life, that when one can see that the provision for the defendant to have a right to live for life at Strathfield was the provision for a home for the defendant, one can see that this was probably in substitution for the gift at Rodd Point. 21 Of course, there is a little confusion in the 1998 will as a tenant in common may have a right because of her interest in the land to live in the property as long as she likes without being bound by the condition in the 1998 will, but that is really of no moment. 22 It is clear that the onus of proof lies on the defendant. That follows from Southerden's case itself plus various other cases such as In re Jones [1976] 1 Ch 200, 218, but I would agree with Mr Simpson's submission that that is not some heavy onus and that indeed it is relatively unimportant in the instant case where the basic facts are almost common ground. 23 In my view, the defendant has made out her case and that the proper order should be that the 1993 and 1998 wills should be admitted to probate. There should be a declaration that clause 1 of the 1998 will did not revoke the gift to the defendant of the Rodd Point property. The matter should be referred to the Registrar to complete the grant. There should be further consideration reserved. 24 The appropriate order for costs is that the costs of both parties should be paid out of the estate of the testator, save and except the costs of obtaining medical evidence, for which each party is to pay his or her own costs. **************** Last Modified: 05/22/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.