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. Mrs Rita Lillian McBurney. R. McBurney (signed) N J Metters. 8 McBurney Ave Mascot". 8 It is common ground that the first document was signed by the deceased and that her signature was witnessed by Ms N J Metters. 9 The second document is in the following terms: " My estate to be sold to pay for funeral etc, at Eastern remains at Bulls harbour Newtown Suburbs crematorium reservation and paid for along side my 2nd Hub Roy Henry Kent Niece (next of Kin) Kensington Park Road. London (Mrs. Suzanne Lesley Lawrence) 2/3 of my estate Mrs Norma Messer 181 Bransgrove Road Panania Dianne Kerr Daughter Kerry Messer 181 Bransgrove Road Panania $5000each Diane Lantizar $4000. Elaine $5000 Liverpool piano to be given to Salvation Army Heart Foundation Blind institute training of seeing eye dogs & talking Books Cancer research. $5000 R.S.P.C.A $4000 Norma Messer [Friend No 8 McBurney Ave Mascot." The Facts, Matters and Circumstances. 10 The deceased had been married to Mr Edward Walker McBurney who had died on 18 August 1989. A convenient family tree was prepared by Ms Kerr and annexed as annexure DK1 to her affidavit of 4 July 2001. That family tree is annexed to this judgment as Appendix "A". 11 The deceased having become ill had been admitted to St Vincents Hospital on 7 September 1999. 12 Mrs Norma June Metters was a neighbour and friend of the deceased and had known her for approximately ten years. Evidence was given by Ms Metters that the deceased had told her before the deceased wrote the first document that she wanted to go to the solicitor to change her will. Mrs Metters had said, "Let me know when you're ready to go". Her further evidence was that the deceased never made a definite arrangement with her to take her to a solicitor but had said words to a similar effect a couple of times again to Mrs Metters in the following weeks. 13 Mrs Metters' evidence was that on the day in question she visited the deceased at her home and the deceased said to Mrs Metters "I wrote out how I want to change my will. Would you witness it for me". Mrs Metters' evidence was that document 1 had already been written out and that the deceased signed the document in front of her. She could not recall whether the deceased had dated the document at the same time or not. Mrs Metters' evidence had been that after the deceased signed the document Mrs Metters signed her name as witness directly below the signature of the deceased and also wrote in her own address. Her further evidence was that after she had witnessed the document the deceased said: "I'm glad I've done this now I'll put it in the tin with the will. The tin is in [or 'on top of'] the wardrobe". 14 Mrs Metters' evidence was that following the signing of the document in question she and the deceased had had some other general conversation and that she had not seen the deceased put the document in the tin which she had spoken of. When Mrs Metters left the deceased's house the document was still on the table where Mrs Metters and the deceased had signed it. 15 Mrs Metters' evidence had been that in about 1989 she first became acquainted with the deceased and began to develop a friendship with the deceased and that in the last six or seven years of the deceased's life she had had almost daily contact with her and used to call in to see her or telephone her to check that she was all right. Mrs Metters' evidence was that between about 1995 and 1998 the deceased said to her over a series of conversations that Suzanne Lawrence was her niece; that Suzanne Lawrence lived in England at that time and had been there for a long time and that Suzanne "is like a daughter to me". Mrs Metters' evidence was that from time to time the deceased used to say to her words to the effect "I was talking to Suzanne last night. We are on the phone for such and such amount of time". 16 Mrs Metters' evidence was that the deceased would then say things to her about what Suzanne was involved in at the time. The deceased would then say things to her about what Suzanne was involved in at the time. Mrs Metters remembered that the amount of time which was indicated for the telephone call impressed her as a long telephone conversation but she could not recall the times which had been stated by the deceased. 17 From time to time Mrs Metters had seen beautiful flower arrangements in the deceased's home and the deceased had said to her on those occasions that she had received these flowers from Suzanne. Sometimes Mrs Metters had read the cards attached to the flowers and recalled that they had the words "from Suzanne" written on them. A couple of times the deceased had said to "could you take a photo of me with the flowers. I would like to send it to Suzanne" and Mrs Metters, as asked, had taken photos of the deceased with the flowers on those occasions using the deceased's camera. 18 Mrs Metters' clear recollection was that the deceased had written the first document before the deceased had asked Mrs Metters to witness it. Mrs Metters was cross-examined on this and a number of other matters. The deceased had asked Mrs Metters to witness document 1. The effect of Mrs Metters' evidence as I understood it under cross-examination was that she could not independently recall the date when she had signed the document but she did recall actually signing the document. As I have said the signature of Mrs Metters appears on the document as she witnessed the deceased's signature, the deceased having signed document 1 in her presence. 19 Evidence was also given by Mr Lopez who is the trust clerk in charge of the administration of the estate. His evidence was that when the estate was reported to the Public Trustee by Mr Ivan McBurney who was the deceased's brother-in-law, a copy of the Will dated 16 May 1989 and the two documents purporting to be codicils to the original will were handed in. Mr Lopez subsequently carried out a thorough search of the property at 1 McBurney Avenue Mascot but failed to locate any other document that the deceased had prepared as a later will or codicil. Mr Lopez gave evidence that the deceased had not had a solicitor who acted for her in her lifetime and that inquiries at the various banks where she operated accounts resulted in confirmation that no documents were held on her behalf. 20 Evidence was given by Mr Paul Ryan, clerk of Lismore, to the effect that the Will was signed on 16 May 1989 in his presence and that of Ms Gilder present at the same time and then that at the request of the deceased, attested and subscribed by himself and Ms Gilder in the deceased's presence and in the presence of one another. He identified his signature and that of Ms Gilder. 21 Evidence was given by Ms Diane Kerr who was a great niece of the deceased and had known her as her aunt all her life. Her evidence was that the deceased was her grandfather's sister. For many years prior to her death Ms Kerr used to telephone the deceased from time to time. After she had children the deceased regularly sent gifts of money to them each Christmas and for their birthdays. In January 1996 the deceased had given her $1500 for airfares and legal costs in relation to a custody application for her children. 22 Evidence was given by Ms Kerr in two separate affidavits in relation to a particular conversation which she had had with the deceased. 23 In her affidavit of 25 August 2000 she had deposed that: "Approximately three years before the deceased died, in 1997, the deceased told me that she wanted to see a solicitor in Sydney to change her will. The deceased had failing eyesight and needed me to take her to a solicitor in Sydney". 24 In her later affidavit of 4 July 2001 Ms Kerr had deposed as follows: "In about 1997, I had a conversation with the deceased: The deceased: 'I want to see a solicitor in Sydney to fix up my will. Will you come with me?' Ms Kerr: 'Aunty Rita, I can't with the kids and work at the moment'. Deceased: 'All right I'll leave it for the moment". 25 The further evidence given by Ms Kerr was that from the late 1980s to early or mid 1990s the deceased said to her on at least three occasions: "I will leave something to you, your sister and your mother". 26 Ms Kerr gave further evidence that after the deceased's admission, possibly as much as a week, a group of persons attended the deceased's residence at Mascot. As far as Ms Kerr was concerned the purpose of the visit was to locate and secure the deceased's personal papers. That visit had followed a group conference with a social worker with St Vincents Hospital. The people who had attended the deceased's home on that occasion were Ms Kerr, Arthur McBurney, Norma Messer who was Ms Kerr's mother, Elaine, who was Ms Kerr's mother's sister and Elaine's husband Peter, and Thelma and Carolyn Manhood who were distant cousins of the deceased. Ms Kerr's evidence was that when the group arrived at the deceased's home she went to the deceased's bedroom and started searching. There were three wardrobes there. One of them dated from the 1940s. It was divided into three sections, hanging space, shelving and drawers. On about the middle shelf of this wardrobe she located a tin and she pulled it out and opened it. It appeared to contain all the deceased's important personal papers including a copy of the deceased's Will dated 16 May 1989, the document which I have referred to as document 1, the Certificate of Title to the deceased's house at Mascot, the deceased's Birth Certificate, bank passbooks, investment statements and the insurance policy for the house and contents. 27 Ms Kerr's evidence was at the time she found the tin both her mother and Arthur McBurney were in the bedroom. She had given the tin and all the documents that it contained to Arthur McBurney. At that time she had thought that Arthur McBurney would be taking over the management of the deceased's financial affairs. 28 Her evidence was that at about the end of September, her mother, Norma Messer, showed her another handwritten document being the document to which I have referred as document 2. Ms Messer had said to Ms Kerr at that time "I found this at the back of the shelf where you found the tin". Ms Kerr's evidence was that over many years she had received many letters and cards from the deceased. Her further evidence was that over many years when she rang the deceased from time to time the deceased said to her that she had heard from Suzanne Lawrence and had related to Ms Kerr things which Suzanne Lawrence was apparently involved in. In the early 1990s the deceased had spoken of Suzanne Lawrence's divorce to her and had said to Ms Kerr a number of times during the 1990s: "I am very very fond of Suzanne, she is special". 29 When Ms Kerr visited the deceased's house in September 1999, she saw a number of greeting cards which were signed Suzanne, including a Mothers Day card addressed to "Mama Rita". 30 Evidence was given by Mr Potter, a trust clerk, employed by the Public Trustee who has the carriage of the administration of the Estate. His evidence was that on 2 July 2001 he had attended at the deceased's home together with another trust officer. They had made a thorough and diligent search of the deceased's home looking for anything relevant to the deceased's relationship with Suzanne Lawrence and had found a large number of letters, cards and photographs in and on top of a sideboard in the kitchen and found more letters, cards and photographs in a set of drawers in the lounge room estimating that there were about 200 such cards, letters and photographs in all. Those letters, cards and photographs had been placed into a plastic bag. They were tendered before the Court on this application. 31 An Affidavit of Executor was made by Mr Peter Mack on 3 October 2000. This is a formal affidavit, reading as follows: "1. The documents, dated 16 MAY 1989 and 5 MAY 1996, and signed in the margin by me and by the person before whom this affidavit is sworn are, I believe, the last Will and codicil t that Will of RITA LILLIAN McBURNEY, the deceased. 2. The means of identifying the Will and codicil are contained in the affidavits of PAUL FRANCIS RYAN and NORMA METTERS. 3. The attesting witnesses to the Will are PAUL FRANCI RYAN and LYNETTE GILDER. 4. The attesting witness to the codicil is NORMA METTERS. 5. The deceased died on 7 DECEMBER 1999, aged 88 years and I believe that the deceased is RITA LILLIAN McBURNEY referred to in the certificate of registration of death which is annexed and marked "A". 6. To the best of my information, knowledge and belief: · The deceased did not marry after the Will and codicil were made. · The deceased did not leave any person who at the time of her death was a partner with her in a de-facto relationship. · The deceased was not the parent of any child nor ever adopted any children. 7. The deceased left assets within New South Wales. 8. The Public Trustee is the executor named in the Will. 9. If granted probate the Public Trustee will administer the estate according to law. 10. Notice to this application was published on 14 September 2000 in the SYDNEY MORNING HERALD, which is a newspaper circulating in the district where the deceased resided at the date of the deceased's death, as evidence by the tear sheet annexed and marked "B". 11. A statement of names, ages, and entitlements of the persons entitled in distribution of the estate of the deceased (signed by me and by the person before whom it is sworn) is annexed and marked "C". 12. A statement of all assets of the deceased of which I am presently aware (signed in the margin by me and by the person whom this affidavit is sworn) is annexed and marked "D". I will disclose to the Court any other asset which comes to my notice. 13. A statement of liabilities of the deceased of which I am presently aware (signed by me and by the person before whom this affidavit is sworn) is annexed and marked "E". 14. The estate has a gross value of $598,154.87 and a net value of $589, 154.87. 15. The reason for the delay in this application is the time taken to investigate the validity of the purported codicils to the Will. 16. I am not aware of the circumstances which raise doubt as to the Public Trustee's entitlement to a grant of probate of the Will of the deceased." 32 An affidavit was made by Ms McEwen on 9 October 2000, she being a solicitor in the employ of the Public Trustee. That affidavit is again a formal affidavit and a copy of that affidavit is annexed to the judgment as Appendix "B". Dealing with the issue 33 It seems clear that the questions which arise are essentially questions of fact, the particular questions being whether there is a document, whether that document purports to record the testamentary intentions of the deceased and whether it was the intention of the deceased that the document should operate as his or her will [see Estate of Masters (1994) 33 NSWLR 446 at 466 per Priestley JA]. 34 In my view there are reasonably strong indications in the evidence presently before the Court to support the proposition that document 1 satisfied the terms of s 18A of the Act. 35 One begins with the terms of document. In that regard the commencement reading "On this day 5 May 1996 I bequeath to my next of kin" is a pervasive indication both of formality and most importantly of the intent that the document should operate as a will or an amendment of a Will. It refers to "my previous Will" and clearly by using those words contains an indication that the document itself should be regarded as a Will. Whilst the use of words in a document referring to "my previous Will" might in many contexts simply be just that, namely a reference to a previous will without an intent of the draftsperson to refer to the document then being drafted as a will, the context in which the wording of document 1 begins "I bequeath to my next of kin", taken into account together with the reference to "my previous will", suggests to me that there is this indication by use of the words "my previous will" that the document itself should be regarded as a will. 36 Very importantly indeed, the document is executed formally and before a witness. 37 The defendant's submission was that the document was intended to be instructions for the preparation of either a new will or a codicil to the existing will, probably to be prepared by the Public Trustee but possibly by a solicitor ["the primary submission"]. An important pointer against the acceptance of this submission is the simple fact that the document was executed formally and before a witness. That is not the way in which one would commonly expect to find a document intended to be instructions being treated with by someone intending to approach a solicitor to furnish such instructions. 38 The most crucial aspect as it seems to me of the background to the signing of document 2 and of the assessment of that document in relation to s 18A, which properly requires to be assessed concerns the evidence, such as it is, of conversations between the deceased and the two persons to whom I have already referred in relation to the deceased's desire to see a solicitor. The evidence of Mrs Metters has already been referred to and was to the effect that some two months before document 1 was signed the deceased said that she wanted to go to the solicitor "and change my will" and that Mrs Metters responded that the deceased should let her know when the deceased was ready to go. A similar comment was made by the deceased to Mrs Metters a couple of times, again in the following weeks, but never again after the signing of document 2. One simply does not know on the evidence whether Ms Metters was proposing herself to drive the deceased to see a solicitor or otherwise simply planning to accompany the deceased on the occasion when she would go to a solicitor. 39 Importantly, also, once the document had been signed the deceased said to Mrs Metters, "I am glad I've done this now". 40 The other witness as already indicated in relation to this issue is Ms Kerr. As I have said she had given two versions of speaking with the deceased in relation to approaching a solicitor. The first version in the earlier affidavit was when she had deposed that it was approximately three years before the deceased died that the deceased told her that she wanted to see a solicitor in Sydney to change her will. The second and more detailed version appears in the later affidavit where the conversation is set out in the first person and on this occasion the description of when the conversation took place uses the words "in about 1997". 41 The reference to the conversation taking place approximately three years before the deceased died or taking place "in or about 1997" is simply given without reference to any particular event which ex facie could assist Ms Kerr to fix the date. The matter is quite important in the present circumstance because, as it seems to me, if the proper inference is that the conversation on the probabilities likely occurred before the signing of document 2, then there is simply no evidence that after the signing of document 2 the deceased spoke to any witness again about still wanting to see a solicitor. That would be consistent, as it seems to me, with the deceased having formed the intent that the document should operate as her will or as a codicil to her will. It would lessen very considerably the weight to be given to the defendant's alternative submission to which I now turn. 42 The defendant's alternative submission was that document 2 was intended to operate as a stopgap codicil to the will pending the deceased having had the opportunity to make a formal new will at a later date. The proposition for which the defendant contends is that because the deceased lived for some three and half years after she signed document 2 : "and had ample opportunity to make a formal new will (either by consulting the public trustee or a solicitor or by having an officer of the Public Trustee or a solicitor make a house call to her to do so during that period) and because as she was aware of the requirements for the making of a formal new will, having had her solicitor make the will for her on 16 May 1989, the informal document ceased to have effect as a stopgap measure shortly after it was made ('the alternative submission')". 43 Certainly, if it be that the proper inference from the evidence is that following the execution of document 2 the deceased continued to seek to have assistance in being taken to see a solicitor, the alternative submission has substance. Whilst such an inference may also support the defendant's primary submission, to my mind the terms of document 2 suggest that the document, seen in context, satisfied s 18A. Such an inference as to a continued expressed desire to see a solicitor, however, would permit a Court to reasonably infer that document 2 was intended to operate as a stopgap codicil pending the deceased being taken to see a solicitor. The defendant's further argument which may well succeed in that regard would be that between the date of the signing of document 2, and the date of the deceased's death, there was ample time for the deceased to somehow make arrangements to see a solicitor or for a solicitor to come out to see her. Notwithstanding the evidence before the Court to the effect that the deceased had failing eyesight and needed Ms Kerr to take her to a solicitor in Sydney, and the evidence given by Mrs Metters that the deceased was not in very good health, it does seem to me that there is real substance in the submission put strongly by Mr Bevan of counsel to the effect that the period of time between the date of document 2 and the date of the deceased's death ought properly be regarded as a sufficient period of time in which the deceased, had she desired to do so, would have been in a position to make some sort of arrangement to see a solicitor. 44 My own view is that on the probabilities gleaned from the evidence presently before the Court the deceased, following the signing of document 2, never again asked to see a solicitor. That being the case the stopgap analysis, that is to say the defendant's alternative argument, has no substance and can be disregarded. 45 Whilst I accept that the finding of fact that there were no further occasions following the signing of document 2 when the deceased asked to see a solicitor, by no means falls four square with the evidence given by Ms Kerr, in terms of the date when she had the relevant conversation with the deceased and ex facie seems to be somewhat inconsistent with that evidence, it seems to me that notwithstanding the failure of either side to require Ms Kerr to give evidence in the witness box, the inference is clearly open to the effect that Ms Kerr was unable to be absolutely certain as to the date of the conversation, merely in effect referring to 'some years before the date of death of the deceased'. 46 For the above reasons the Court's holding is that document 2 satisfies section 18A of the Act in each of the relevant parameters which are necessary. There was no issue at the bar table as to the fact that there is a document and the document purports to record the testamentary intentions of the deceased. The issue which was joined at the bar table was whether the evidence before the Court was sufficient to satisfy the Court, as in my findings it certainly is, that at the time document 2 was brought into existence, or at some later time, the deceased evinced her intention that the document, should, without more, constitute her will or an amendment to her will. In my view the evidence before the Court is sufficient to satisfy the Court that at the time the document was brought into existence the deceased evinced her intention that the document should, without more, constitute an amendment to her Will. 47 Had I found that the deceased had had the relevant conversations concerning a desire to see the solicitor with Ms Kerr after the signing of document 2, it seems to me that I would likely have found that document 2 was intended to operate as a stopgap codicil in the way contended for by the defendant in the alternative submission. In that regard I would certainly have accepted that the proper approach to somewhat awkward questions is to be found in Permanent Trustee Company v Milton (1995) 39 NSWLR 30. In Permanent Trustee Hodgson J at 334-335 dealing with a s 18A issue was required to deal with the following difficult questions. '(1) What if the deceased having evidenced the requisite intention in relation to an existing document, subsequently changes that intention and clearly manifests that change of intention without actually altering the document. (2) What if the intention which is initially manifested is in effect, an intention that the document be a stop gap measure, which is to apply only until the testator or testatrix has had an opportunity to make a formal will, and the opportunity passes without a formal will being made.' 48 In relation to the first question, Hodgson J expressed the view that subsequent vacillation of intention or a change of intention as to part of a document could not be sufficient to prevent a s 18A document continuing to have effect. It seemed to his Honour that such a document, like a duly executed will, would operate in toto or not at all. By analogy with a duly executed will, it seemed to his Honour that a mere manifestation of a change of intention, which did not result in another document or the alteration of the document in question, could not be enough to affect the operation of the s 18A document, at least unless the intention which was manifested was an intention to revoke the whole document. 49 In relation to the second question his Honour referred to Estate of Masters (1994) 33 NSWLR 446 particularly at 469 where Priestley JA made clear that there can be the necessary intention in relation to an informal document, even if it was proposed that that document be superseded by a properly executed will. As Hodgson J, pointed out Estate of Masters had not dealt with the circumstance which would arise if the intention which was manifested was to have a document as a stop gap until a formally executed will, and no formally executed will was ever made despite ample time and opportunity to do so. His Honour's opinion was that there can be cases in which the intention which is disclosed is that a document operate only as a stop gap until the deceased has an opportunity to make a formal will and in his Honour's opinion that would be the relevant intention in relation to s 18A. If in those circumstances the deceased died before there was that opportunity, then on his Honour's holding the document would satisfy the provisions of s 18A; while if the deceased subsequently had the opportunity contemplated by that intention and did not take advantage of it, then his Honour's holding was that the s 18A intention was not established. 50 I certainly accept that it is very difficult to deal with document 2 for the simple reason that it is impossible to tell when it was prepared. For that reason had I found that the probabilities favoured an inference that the deceased had spoken to Ms Kerr about seeing a solicitor after document 1 had been signed, the fact that document 2 was brought into existence at some point in time would likely not assist in requiring the defendant's alternative submission to be rejected. 51 As to document 2, my own view from the evidence presently before the Court is that document 2 was no more than either a note or a draft. Whilst the document was certainly found in the vicinity of the tin box containing many important and formal documents, an examination of document 2 itself shows that it was not signed by deceased. Nor is there any evidence that the deceased ever told anyone that she had written the document. 52 In so far as the holding in relation to document 1 is concerned, one of the factors which it seems to me is appropriate to be borne in mind on the s 18A issue concerns the fact that the deceased had placed document 1 in the tin to which reference has been made, the fact that formal documents of the type already mentioned including a Certificate of Title and a copy of the deceased's Will reposed in that tin and importantly the fact that the deceased told Mrs Metters where she was going to place the document, namely, either in or on top of the wardrobe. 53 Another of the important relevant considerations as it seems to me in relation to the s 18A question qua document 1 are the very words used by the deceased when speaking to Ms Metters, the deceased saying "I wrote out how I want to change my will. Would you witness it for me". Whilst in some circumstances such a comment might be seen as referrable to an intention to change a will in the future and might be referrable to a note setting out detail of how a person may in the future intend to change their will, in the present context all of the circumstances already set out in this judgment including the particular request for Mrs Metters to "witness it for me" and the fact that the witnessing of the document was followed by the deceased saying "I'm glad I've done this now", suggest to me a poignancy in the exercise which the deceased was about in these particular circumstances. 54 For those reasons the appropriate course is for 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. 55 The question of costs has arisen. Both counsel have addressed on costs. I accept as correct the analysis put by counsel for the defendant that costs are in the discretion of the Court which is not an unfettered discretion but a judicial one and must be exercised in accordance with the established principle. I accept that in the field of probate litigation, although the general principle to be applied is that costs follow the event where a testator has or those interested in residue have been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate. In general terms there is indeed a principle that where the litigation has been necessitated by the conduct of the deceased, as in my view in this case by the making of the informal document 1 and creating the basis for a disputes s 18A, the costs of all parties to the proceedings should come out of the estate. It is the case that the plaintiff, a statutory corporation, was obliged to make the application as there was an arguable case. In my view there having clearly on the findings been an arguable case and not a specious case pursued by the defendant, the appropriate course is to make an order that the defendant's costs be paid out of the estate. The defendant is of course a charitable institution and defended its interest under the Will for the sake of fulfilling its public charitable objects. As one of two residuary beneficiaries in the Will in any event such a result on the question of costs will still see the defendant bear portion of the costs orders. 56 The appropriate orders are an order 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. I certify that paragraphs 1 – 56 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 15 March 2002ex tempore and revised on 9 April 2002 ___________________ Susan Piggott Associate 9 April 2002 Last Modified: 05/01/2002 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. 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