New South Wales Supreme Court CITATION : Carney v Neilson [2000] NSWSC 777 revised - 7/08/2000 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 104590 of 1999 HEARING DATE(S) : 27 July 2000 JUDGMENT DATE : 27 July 2000 PARTIES : Frances Clare Carney (Plaintiff) Geoffrey William Neilsen (Defendant) JUDGMENT OF : Windeyer J at 1 COUNSEL : J Millar (Plaintiff) J Robinson (Defendant) SOLICITORS : Messenger & Messenger (Plaintiff) Wilsons (Defendant) CATCHWORDS : SUCCESSION - WILLS - s18A Wills Probate and Administration Act 1898 LEGISLATION CITED : Wills Probate and Administration Act 1898 s18A DECISION : See paragraphs 18-23 1 THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST WINDEYER J THURSDAY 27 JULY 2000 104590/99 FRANCES CLARE CARNEY v GEOFFREY WILLIAM NEILSEN (THE ESTATE OF EDWARD PETER NEILSEN) JUDGMENT 1 HIS HONOUR: In this matter the plaintiff, Frances Clare Carney, seeks a declaration under s18A of the Wills Probate and Administration Act 1898 that the document which is Exhibit A in the proceedings is a document embodying the testamentary intentions of her uncle, Edward Peter Neilsen, who died some time between 28 August 1998 and 8 September 1998 and was intended by him to be his will. 2 The document is in the following form: This is the last will and testament of me Edward Peter Neilsen of Claredale Turill of New South Wales. 1. I revoke my former wills. 2. I appoint. 3. I devise and give the whole of my real estate and personal property unto my trustee neice [sic] Frances Carney. 4. I empower my Date this five day of August one thousand nine hundred ninety eight. Signed by E P Neilsen 5th August 1998 3 The document which it is sought to have admitted to probate was found in a box or packet which is labelled fire blanket which was inside a pot which the plaintiff had painted and given to her uncle. 4 After his death, the plaintiff's brother, Mr Steven Carney, and her uncle Mr Geoffrey Neilsen, went to the property called Claredale near Turill, which was owned by the deceased, to clean up the house and attend to the affairs of the deceased. They found the personal papers or some of them which Mr Steven Carney took home with him and he also took the box with the fire blanket, his uncle having said to him "Here, take this home with you in case the kids set fire to your house". Nothing really turns on that except that it was perfectly clear that nobody thought that the fire blanket box would contain the claimed testamentary instrument that it did. 5 The next morning Mr Steven Carney opened up the carton and the sheet of paper now sought to be admitted to probate came out of the box. He read it, thought it was a will, showed it to his wife and then took it to his sister, the plaintiff, and as a result of legal advice, she sought that that document be declared to be an instrument to which s18A applied. 6 The deceased had lived on the property first with his mother and brother and then after his mother died his brother, John Desmond Neilsen. After his brother died he lived there alone. 7 John Desmond Neilsen died on 23 January 1997. He left a will dated 19 September 1964 which is of some importance. Under that will he appointed his brother Robert sole executor and gave the whole of his estate to his brother Edward if he survived and if he did not to his brother Geoffrey if he I attained the age of 21 years. Clause 4 of that will contained a power to make advancements from the estate for the maintenance, education or advancement of Geoffrey during his infancy. That clause, of course, would have only operated had Edward predeceased John which he did not. 8 The Turill property was an asset in the estate of John and therefore on his death went to Edward and it seems that to a large extent Edward's assets consisted of those acquired from his brother's estate. 9 The evidence shows that the deceased lived as what might be described a lonely existence, not taking part in any social activities. The plaintiff's evidence, which I accept, was that she was closely associated with her uncles, that she often assisted them when they required, taking them to medical appointments and the like and going shopping with them, and she assisted the deceased after his brother died and made three loans to him because apparently he was without support until he received the assets from his brother's estate or perhaps until joint accounts which were frozen on the death of the brother became available to him. 10 It was not suggested that others had no contact with the deceased but while counsel for the defendant put it that the evidence was that the plaintiff did no more for the deceased than other members of the family, in my view the evidence is contrary to that. 11 The evidence shows, in my view, a reason for the deceased giving his property to his niece if he did so. It is important in these matters to understand that nobody is suggesting that Mr Geoffrey Neilsen is not a deserving person or that he had no contact with his brother or anything of the like nature. The question is whether or not the document in question embodies the testamentary intentions of the deceased and was intended by him to operate when he made it as his will. 12 It is clear that the deceased had a copy of his brother's will. On 15 July 1998 that Messrs Palmers solicitors wrote to the deceased reporting that the titles were now in his name and that the estate was more or less complete and that his brother's estate administration had more or less been completed. 13 The deceased of course was not the executor of his brother's will. His brother, Robert, was, and therefore the solicitors were responsible as far as the estate was concerned to the brother Robert but they were reporting to the deceased because, of course, he was interested in having the title to the Claredale property put in his name. In that letter in its last paragraph the solicitors suggested to the deceased that he should consider making a will if he did not have one, pointing out that a person dying intestate especially one owning real estate can cause anxiety and concern to those left to administer the estate. If you need any help in this direction, we will be glad to assist you. 14 The document that it is sought to have admitted to probate is dated 5 August 1998 in two places. On its face it is perfectly clear it was signed by the deceased on that date. It follows closely the form of the will of John Neilsen. The preliminary part is the same. Clause 1 is the same. Clause 2 which under John's will appointed his brother Robert as sole executor, as will be seen from what I have set out, has the words "I appoint" and nothing further. Clause 3 follows clause 3 of the will of John up to the words "unto my trustee". In John's will after that appear the words, "upon trust for my brother Edward Peter Neilsen absolutely ...", that trust not appearing in paragraph 3 of the document in question and, as I have said, paragraph 4 of John's will contained a power of advancement. On the assumption that the deceased wished to give all his property to his niece, Miss Carney, there was no requirement for a power of advancement. There had been I should say in his brother's will because Geoffrey was not of age at the date that will was made. In ordinary circumstances there would be a requirement for appointment of an executor but the deceased may not have known that and could well have thought that clause 3 achieved whatever was required by giving everything he had to his niece. 15 There is no evidence of any statements made by the deceased himself as to his intentions regarding the property so one must just have regard to the document itself and the place in which it was found and the evidence of the relationship of the plaintiff with her uncle. 16 In some ways it may seem strange that the document was placed in a box which contained a fire blanket. It may be that the deceased thought it was safe there but nothing can really be determined from this except perhaps that it was in a container given to the deceased by his niece. It is really the form of the document which, on its face, states that it is a will and is signed by the deceased which I think determines the matter, taken together with the fact that it is obviously taken from the will of his brother, and is more likely than not to have come into existence as a result of the letter from the solicitors sent just a few weeks earlier. The document does dispose of all the property of the deceased. It does not purport to give that property to the plaintiff on trust, although it does refer to her as "my trustee". I do not think that those words imply that the property is held by the plaintiff or was intended to be held by the plaintiff upon some trust rather than to be held for her. 17 This is a more formal document than one often finds in matters of this kind. The difference in this case is there is little in the way of extrinsic evidence, other than the relationship of the plaintiff with her uncle, which is of relevance in determining whether or not the document was intended at the time it was made to operate as a will as opposed to its having been a draft intended to be completed at some later time. The fact that it was signed and dated in my view supports a finding that it was intended by the deceased to operate as his will from the date it was signed and I so find. 18 It follows from this that the declaration sought should be made and a grant of letters of administration with the document annexed should be made to the plaintiff. 19 I declare that the document dated 5 August 1998, being exhibit A, constitutes a will of Edward Peter Neilsen, the deceased. 20 I order that, subject to the requirement of the Registrar, letters of administration with such document annexed be granted to Frances Clare Carney, the sole beneficiary named in the said will. I order that it be referred to the Registrar to complete the grant. 21 The final question is the question of costs. This was a matter where I consider it was proper for the defendant to seek to be joined in as a defendant and to contest the proceedings in the light of the somewhat strange place in which the will was found and the absence of extrinsic evidence of intentions. 22 Section 18 A applications are not matters necessarily easily determined. The Court should be careful not to discourage persons who have a proper basis to require the matter to be carefully approved from coming to court for that purpose. 23 I order that the costs of the plaintiff and the defendant be paid out of the estate of the deceased; those of the plaintiff on the indemnity basis. Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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