Leslie v McDowell; Estate of Joyce Wilhelmina Commins [2000] NSWSC 727

New South Wales Supreme Court

CITATION : Leslie v McDowell; Estate of Joyce Wilhelmina Commins [2000] NSWSC 727 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 118714/98 HEARING DATE(S) : 30/06/2000 JUDGMENT DATE : 30 June 2000

Douglas Kevin Leslie (P) Norma Phyllis McDowell and Ian Wray Leslie (D1) PARTIES : Elizabeth Ann Cocks (D2) Kerril Ann Grun (D3) Wendy Hamilton (D4) JUDGMENT OF : Young J

G M Colman (P) COUNSEL : J Needham (D1 & 2) D R Pritchard (D3) D Fitzsimons (D4) Staunton & Thompson (P) Alderdice & Clarke (D1) SOLICITORS : Booth & Boorman (D2) Garland Hawthorn Brahe (D3) C R Fitzsimons (D4) CATCHWORDS : SUCCESSION [48]- Informal will- Draft written out before deceased took long journey by air- Whether intended only as stop gap- On balance, probate granted. LEGISLATION CITED : Wills Probate and Administration Act 1898, s 18A In the Estate of Masters (1994) 33 NSWLR 446 CASES CITED : Permanent Trustee Company Ltd v Milton (1996) 39 NSWLR 330 Public Trustee v Commins (Wray's case) - 19 June 1992 unreported Read v Chown (1929) 46 WN 154 DECISION : See para 50

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST YOUNG J FRIDAY 30 JUNE 2000

118714/98 - LESLIE v McDOWELL & ORS; THE ESTATE OF JOYCE WILHELMINA COMMINS

JUDGMENT

1 HIS HONOUR: This is an application under section 18A of the Wills Probate and Administration Act 1898 as amended, for a declaration that an informal document constitutes the last will of the late Joyce Wilhelmina Commins (the "deceased"). If that declaration is made then there will need to be a reference to the Registrar in Probate to complete the grant. 2 The deceased was one of six siblings, only one of whom, Norma McDowell, survived her. The plaintiff is a nephew of the deceased, being the son of the deceased's sister, Olive. He is the person named as executor in the document being propounded. Mr G Colman of counsel appeared for him. 3 Apart from the informal document, no other will that has any effect has been found amongst the property of the deceased. She had a will of 1961 which left all her property to her sister, Gwen Wray, who predeceased her. 4 The informal document is written on the reverse side of an envelope addressed to the deceased from the Cunard World Club. It has been analysed by Mr Anderson, a forensic document examiner. In Mr Anderson's affidavit, there is a copy of the document which has been highlighted in different colours to indicate three writing sessions at different times which went into creating the final document. 5 Mr Anderson has highlighted in green what appears to be the original text. He has highlighted in blue some additions made in a black ballpoint pen and highlighted in pink additions and alterations that were made in a blue ballpoint pen. In these reasons I will refer to the green part, the blue additions and the pink additions when necessary. 6 The informal document makes it clear that the deceased wished to leave the residue of her estate to her nephew, Kevin Leslie (the plaintiff), and her niece, Kerril Grun (the third defendant), for whom Mr Pritchard appears. The document scornfully leaves a 10 cent legacy to the deceased's surviving sister and ascribes a reason for this. There are various legacies to other persons. 7 The document also describes the principal assets of the deceased, her bank accounts and where the title deeds to her major properties are kept. 8 If the informal document is admitted to probate, the practical consequences of that will be that the nephew and niece, whom I have mentioned, take the whole estate, subject to certain small legacies. On the other hand, if the deceased died intestate the deceased's sister, Norma (one of the first defendants), for whom Ms Needham of counsel appears (she also appears for the other first defendant, Ian Wray Leslie and the second defendant) and the fourth defendant, who is Kerril Grun's sister, for whom Ms Fitzsimons appears, will also take a one-eighth share. 9 The question then is whether the informal document should be admitted to probate. Section 18A of the Wills Probate and Administration Act 1898 is 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 will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute the person's will, an amendment of the person's will or the revocation of the person's 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." 10 All the counsel have been content to adopt the approach to questions that arise under that section which was adopted by Powell J in Public Trustee v Commins (Wray's case) (19 June 1992, unreported). His Honour says at pages 14 and 15 of the judgment: "...the issues which the Court is called upon (to decide) whenever the provisions of section 18A are invoked are, ultimately, questions of fact, those questions being:-