Public Trustee v New South Wales Cancer Council - the Estate of Rita Lillian McBurney [2002] NSWSC 220

New South Wales Supreme Court

CITATION : Public Trustee v New South Wales Cancer Council - the Estate of Rita Lillian McBurney [2002] NSWSC 220 FILE NUMBER(S) : SC 100108/01 HEARING DATE(S) : 15/03/02 JUDGMENT DATE : 15 March 2002

PARTIES : Public Trustee (Plaintiff) New South Wales Cancer Council (Defendant) JUDGMENT OF : Einstein J

COUNSEL : Mr B Townsend (Plaintiff) Mr C Bevan (Defendant) SOLICITORS : PJ Whitehead (Plaintiff) Turner Freeman (Defendant) CATCHWORDS : Wills, Probate and Letters of Administration - Wills - Codicil - Informal documents - Whether two hand-written documents purported to be either Will, amendment to Will or revocation of Will - Whether made as stopgap pending formal Will - Testamentary intentions of the deceased LEGISLATION CITED : Wills Probate and Administration Act 1898 CASES CITED : Estate of Masters (1994) 33 NSWLR 446 Permanent Trustee Company v Milton (1995) 39 NSWLR 330 DECISION : The Court to make orders generally in terms of paragraphs 1, 2 and 3(a) of the amended summons with the slight amendment in that the words "constitutes a codicil" should be deleted from the declarations and the words "an amendment" inserted in their place. It is likely that the same change should take place in relation to 3(a) in the short minutes of order.; The Court orders that the plaintiff's costs come out of the estate on an indemnity basis and an order that the defendant's costs be paid out of the estate.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Einstein J

Friday 15 March 2002 ex tempore Revised 9 April 2002

100108/01 Public Trustee v New South Wales Cancer Council, The Estate of Rita Lillian McBurney JUDGMENT 1 HIS HONOUR: Mrs Rita Lillian McBurney ["the deceased"] late of 1 McBurney Avenue Mascot died on 7 December 1999 aged eighty-eight years. 2 The deceased made a Will dated 16 May 1989 appointing the Public Trustee as Executor. The Will was in the following terms: "1. I HEREBY REVOKE all Wills and Testamentary Dispositions at any time heretofore made by me and declare this to be my last Will and Testament. 2. I APPOINT THE PUBLIC TRUSTEE in and for the State of New South Wales (hereinafter called "my Trustee") to be the Executor and trustee of this my Will. 3. I EMPOWER my Trustee in is absolute discretion to sell call in and convert into money subject to such terms and conditions as he shall think fit all or any part of my real or personal estate BUT NEVERTHELESS I EMPOWER my Trustee to retain all or any part of my estate in the same form and condition or invested in the same manner as may exist at my death and to hold the same investments or any portion thereof for such time as my Trustee shall think expedient without being responsible for any loss occasioned thereby. 4. I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal to my Trustee UPON TRUST to pay thereout all my just debts funeral and testamentary expenses Probate Estate Death or other Duties AND THEREAFTER for my husband EDWARD WALTER MCBURNEY for his life he to pay all rates taxes insurance premiums repairs and other outgoings properly applicable to income in respect of any real estate owned by me at the time of my death and to the satisfaction of my Trustee in all respects AND FROM AND AFTER the death of the survivor of myself and my said husband to be held upon the following trusts and conditions namely:- (a) I GIVE AND BEQUEATH my piano to THE SALVATION ARMY (HEADQUARTERS FOR EASTERN AUSTRALIA) of 140 Elizabeth Street, Sydney AND I REQUEST that such piano be placed in one of the ARMY'S RETIREMENT VILLAGES absolutely. (b) I GIVE DEVISE AND BEQUEATH the rest and residue of my estate of whatsoever nature or kind and wheresoever situate to my Trustee UPON TRUST AND THEREAFTER for such of them in equal shares. THE NEW SOUTH WALES STATE CANCER COUNCIL of 10 Martin Place Sydney for the purposes of research into cancer and THE GUIDE DOGS ASSOCIATION OF NEW SOUTH WALES of 5 Northcliffe Street, Milsons Point for the purchasing and training of guide dogs. 5. I DECLARE that the receipt of the Secretary Treasurer or other proper person for the time being of the said Organisations shall be a full and sufficient discharge of my Trustee for the payment of this legacy and my Trustee shall not be required to see to the application thereof. 6. I DESIRE that my remains be cremated." 3 Questions have arisen as to the status of two documents either or both of which the Court may or may not be satisfied the deceased intended constitute her Will or an amendment of her Will or the revocation of her Will. 4 Section 18A of the Wills Probate and Administration Act 1898 ["the Act"] as amended is in the following terms: '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 a will or the revocation of such a Will if the Court is satisfied that the deceased person intended the document to constitute his or her Will, an amendment of his or her Will or the revocation of his or her 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.' 5 There is before the Court for hearing an amended summons brought by the Public Trustee as plaintiff and joining the New South Wales Cancer Council as defendant seeking relief as follows: '(1) A declaration under s 18A the Wills, Probate and Administration Act 1898 as amended that the document dated 5 May 1996, a copy of which is annexed and marked "A" constitutes a codicil to the will of the deceased dated 16 May 1989. (2) A declaration that the undated document, a copy of which is annexed hereto and marked "B" does not constitute a codicil to the will of the deceased dated 16 May 1989. (3) That probate be granted to him: (a) of the will dated 16 May 1989 and the codicil dated 5 May 1996; or in the alternative (b) of the will dated 16 May 1989 alone.' 6 It is convenient to refer for the purpose of this judgment to the document dated 5 May 1996 annexed and marked "A" to the amended summons as "document 1" or "the first document" and to the undated document annexed to the amended summons and marked "B" as "the second document" or as "document 2". 7 The first document is in the following terms "Public Trustee 5-5-96, On this day 5-5-96 I bequeath to my next of Kin, Suzanne Lawrence (nee McBurney) 2/3 of my estate. address 214 Kensington Park Road, London England W11-INR." The remainder as stated in my previous Will - as is My late husband Edward Walter McBurney died 18-8-89.