Kedzier v Postle [2002] NSWSC 875

New South Wales Supreme Court

CITATION : Kedzier v Postle [2002] NSWSC 875 CURRENT JURISDICTION: Probate Division FILE NUMBER(S) : SC 119885/01 HEARING DATE(S) : 09/09/02 JUDGMENT DATE : 30 September 2002

PARTIES : Ruth Kedzier v Freda Postle (The Estate of Isadore Joseph Horne) JUDGMENT OF : Acting Justice Macready at 1

COUNSEL : Mr M. Willmott for plaintiff Mr F. Kunc for defendant SOLICITORS : Teece Hodgson & Ward for plaintiff Pryor Tzannes & Wallis CATCHWORDS : Succession: Wills Probate & Administration. Application under s18A of the Wills Probate & Administration Act. Codicil signed by the deceased but not witnessed. Testator believed a codicil needed to be witnessed. In the circumstances codicil not admitted to probate. LEGISLATION CITED : Legislation s18A Wills Probate & Administration Act CASES CITED : Estate of Masters (1994) 33 NSWLR 446 Estate of Parkinson (1988) 143 LSJS 336 DECISION : Paragraph 39

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

Acting Justice Macready

Monday 30 September 2002

119885/2001 Ruth Kedzier v Freda Postle – The Estate of Isadore Joseph Horne (Also known as Joseph Horne) JUDGMENT 1 His Honour: This is an application made under section 18A of the Wills Probate and Administration Act in respect of a codicil made by the late Isadore Joseph Horne on 9 July 2000. The deceased was also known as Joseph Horne. In her summons the plaintiff seeks a declaration that the document dated 9 July 2000 signed by the deceased, but not witnessed, constituted a codicil to his last will. The plaintiff sought a grant of probate of the will and the codicil to her with leave reserved to the defendant, the first named executor in the will, to come in and prove the will. 2 The deceased made his last will in February 1997. Under that will he appointed his two daughters, the plaintiff and the defendant, as executors and trustees. After eight legacies of $20,000 to his various grandchildren the deceased left the whole of his estate to be shared equally between his two daughters. 3 The document of 9 July 2000 is on a piece of note paper and has at the top right hand corner the deceased's address namely 141 Victoria Road, Bellevue Hill 2023. It is headed "Codicil dated 9 7 2000". The substance of the document is as follows: -- "This codicil is related to Isadore Joseph Horne owners & residence of 141 Victoria Road Bellevue Hill 2023, I hereby bequeath the said land and buildings of 141 Victoria Road Bellevue Hill 2023 to Ruth Kedzier of 30 Maitland Ave Kingsford 2032 for her own use. Furthermore upon transfer the said property to Ruth Kedzier: Freda Postle of 7 Eastern Ave, Kensington transfer the same sum of monies equivalent valuation of land and buildings as described as her share of my estate." 4 There then follows the word "signed" and next to that "J Horne". There is no doubt that the document is in the handwriting of the deceased. 5 The defendant filed an amended cross-claim on 15 August 2002. That cross-claim only falls for consideration if in fact the court admits the document of 9 July 2000 to probate. In respect of that cross-claim the relief in paragraph 1 is now no longer pressed. The parties are agreed on the way the will will be administered if the codicil is admitted into probate. Effectively they propose to administer the will on the basis that the plaintiff would take the house as part of her share of residue. Claim No 2 in the cross-claim which deals with the determination of the value of the house is consented to by the cross defendant. In relation to claim No 3 a question will arise as to the burden of any capital gains tax if a decision is not given before 9 November 2002. The plaintiff also consents to the relief sought in paragraphs 4 and 5 of the cross claim. The background history to the claim. 6 The deceased was born in 1911. He was married and had two children. They are the plaintiff and the defendant. The family home was at 141 Victoria Road, Bellevue Hill. There is little evidence of the deceased's background life but it is apparent that over the last years of his life his activities and interests were connected with his numerous investments. His estate was valued at $5,436,765.92 of which $2 million was the value placed upon his residence at Bellevue Hill. 7 The first will in evidence before me made by the deceased was one which was executed on 22 February 1968. It was drawn by a solicitor and executed before the solicitor and a secretary. It became the basis for the drafting by the deceased of numerous other wills for himself and members of his family. In fact that is the only will in this case which has been drawn by a solicitor. On 1 December 1987 the deceased made a will which he wrote out himself which substantially reproduced the terms of the 1968 will. It was made at a time when the deceased also prepared a will for his wife. 8 On 27 January 1992 Esther Horne the deceased's wife died. In the year 1999 the deceased suffered a number of heart attacks and in July was admitted to the Prince of Wales Hospital. Prior to that, in February 1997, the deceased executed his last will to which I have already referred. In August 1999 the deceased discharged himself from the Prince of Wales Hospital and he was then admitted to the Wolper Private Hospital. In September 1999 the deceased left hospital and went to live with the defendant and her husband at their home at Kensington. 9 In April 2000 the deceased left the defendant's home following a disagreement that he had with the defendant's husband. The disagreement seems to have been about the extent of the demands by the deceased upon his daughter. At the time the plaintiff collected the deceased from the defendant's home and took him to his own home at Bellevue Hill. He made statements to the effect that he did not want Ron, the husband of the defendant, to ever live in his house. 10 The deceased remained living by himself at his home until 2 June when the plaintiff took him to St Vincents Hospital. On that occasion when he was in hospital the deceased had the following discussion with the plaintiff. "I don't want Ron to live in my house. I want you to have the house. Freda will get the value of the house in shares. It is also sensible for you to live there because three of your children are in the area whereas Freda's children already live near her. The shares are more valuable than the house, but I think it makes more sense to do it this way. I will discuss it with Freda." 11 The plaintiff responded in the following terms: -- "Dad, I don't want to discus it. Whatever you do, just keep it even." 12 While he was in hospital the deceased was visited by his granddaughter Dana Kedzier and her partner Scott Hurst. They gave evidence of a conversation they had with the deceased in which he said that he wanted Dana's mother, the plaintiff, to have the house. Dana pointed out the need for there to be equality and asked if the deceased wanted her to arrange a lawyer. The deceased agreed and Dana obtained a quote for the lawyer's services but apparently the deceased did not contact him. 13 On 21 June 2000 the deceased was discharged from St Vincents Hospital and returned to his home at Bellevue Hill. On the 30 June he moved back to live with the plaintiff at her home at Kingsford. 14 The document in question was dated 9 July 2000 and at some stage after it was executed there was a conversation between the plaintiff and the deceased about the will. The conversation was in the following terms: -- "I have brought my will from home. Can I show it to you?" 15 The plaintiff responded: -- "I am not interested. What you put in it is your business. I don't want to look at it." 16 The deceased responded: -- "Where will I put it?' 17 To which the plaintiff replied: -- "In the document box." 18 The document box was a box which the plaintiff had purchased for the deceased so that he could organise his papers and put them in manila folders in the box. 19 At the conclusion of this discussion the deceased then placed the folded will vertically into the back of the box and it remained there until he died. On 20 October 2000 the deceased was again admitted to hospital and on the way to hospital he signed a power of attorney which had been prepared by a solicitor. The deceased died on 9 November 2000. 20 On the Tuesday after his funeral the plaintiff and the defendant met and the plaintiff took the will out of the box. When she opened it up she found folded inside the document of 9 July 2000. This was the first time that she had seen the document. The relevant legal principles. 21 Section 18A of the Wills Probate and Administration Act is in the following form: -- 18A. Certain documents to constitute wills etc (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 a 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. 22 The dominant test for the application of the dispensing power under the section is now well established in New South Wales. See Estate of Masters (1994) 33 NSWLR 446. It has three steps: