New South Wales Supreme Court CITATION : Re the Estate of V D Bolton [2002] NSWSC 235 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 109438 of 2001 HEARING DATE(S) : 10 February 2002 JUDGMENT DATE : 28 March 2002 Kelvin Henry Noldt (Plaintiff) PARTIES : George Edward Bolton (First Defendant) Lynette Dawn Brown (Second Defendant) JUDGMENT OF : Windeyer J at 1 COUNSEL : Mr R Marshall (Plaintiff) Mr D Charles (Defendants) SOLICITORS : Nash Allen Williams & Wotton (Plaintiff) Aubrey Brown Partners (Defendants) CATCHWORDS : SUCCESSION - Probate - Revocation - whether will revoked by writing "cancelled" with testator's signature across copy of will - whether s17(3) of the Wills Probate and Administraction Act 1898 can bear on actions involving copy - whether revocation under s18A LEGISLATION CITED : Wills Probate and Administration Act 1898, s17(3), s18A DECISION : See Paragraphs 11 and 12 - 5 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST WINDEYER J THURSDAY 28 MARCH 2002 109438/01 RE THE ESTATE OF THE LATE VALERIE DAWN BOLTON JUDGMENT 1 The plaintiff, Kelvin Henry Noldt, is the executor named in a will of Valerie Dawn Bolton deceased, who died on 24 January 2001. That will is dated 2 March 1994. The plaintiff seeks a grant of probate of that will. 2 In accordance with the requirements of the Rules the plaintiff has brought to the attention of the court three other documents. These are as follows: A. A typed copy of the will dated 2 March 1994. Across the first page of this is between parallel lines written the words: "Cancelled V. Evans" The same wording appears between two lines drawn across the second page and also on the cover page of the will. B. The second document is what was described in evidence as a "Quill" will form. It is in a form which at least at one stage was available from newsagents. The document is not dated and not signed. It does not purport to appoint an executor but in the handwriting which is probably that of the deceased there is the following statement, after the words "I give devise and bequeath" the words "all my property whatsoever both real and personal to my daughter Lynette Dawn Brown absolutely". C. The third document is what is described as "The National Will Kit" form. The National Will Kit is a document produced to assist people in making simple wills. It does give instructions as to the method of execution. The deceased completed this document in her own handwriting but it was not signed or witnessed. On its face had it been a valid document duly executed it would have appointed Mr Noldt as executor, but his name was wrongly spelt, it would have given all the household and personal effects to the deceased's daughter, Mrs Brown; it would have given her jewellery to her daughter, her niece, her granddaughters and her great grandchildren, one of whom was unborn, but whose name had been selected; and it would have given the residuary estate to Mrs Brown. 3 The evidence shows that the first document dated 2 March 1994 was validly executed and attested. Under it in the events which have happened the whole of the estate of the deceased is given to Mrs Gwenda Irene Noldt, the niece of the deceased, whose husband is named as executor. There is no evidence about what has been described as the "Quill" will form, other than it was found after the death of the deceased in what was described by her daughter as the "cake decorating room". In the absence of any further evidence it is not a document which could possibly be admitted to probate under the provisions of s18A of the Wills Probate and Administration Act 1898. 4 So far as the National Will Kit document is concerned, there is evidence from Mrs Brown and her daughter about this document. On 3 June 2000 Mrs Brown and her daughter, Donna Stuart and the deceased were present in the deceased's house. The deceased said "I want to talk to you about my will. I want to write out a new one." She then told her granddaughter Donna to go downstairs and "bring up the big envelope". This was an envelope containing the National Will Kit documents. The deceased said to Mrs Brown "As you know everything I own is yours, but I would like you to take my two diamond rings to a jewellers and have the diamonds taken out and split up between everyone, please don't leave Gwen out as her and Kel have been very good to me." She said she then observed her mother writing in the will kit document. Later she was asked by her mother to look at it, which she did. She pointed out a mistake which was corrected by her mother. The deceased then said, "In a couple weeks after Donna has had the baby I will make an appointment to get the will signed". It seems that the document remained in its then form. It was never signed. 5 This evidence, I think, makes it quite clear that the deceased did not intend that document to be her will and to operate as such from the time that it was made out. She intended to make an appointment, presumably with a solicitor, to get the will signed. Without that it was not intended to operate as her will without such signature. 6 I should state at this time that the plaintiff was not really propounding the National Will Kit document, but was putting it before the court. No one was seeking to propound it. Mrs Brown, and her father, who entered appearances and thereby became defendants, were not propounding any document. Their claim was that the will, of which the plaintiff seeks probate, was revoked by the action of the deceased in writing across the copy of it as she did. Had that been the position then on the evidence as it stands, the deceased would have died intestate, although I should say that there is no evidence before the court sufficient to justify a grant of letters of administration on intestacy. 7 To make the proceedings procedurally correct what was really required was for a cross-claim to be filed by those parties who have entered an appearance claiming a grant of letters of administration on intestacy. While that might have been the required procedural position, the fact is that the issue was properly raised and joined, that issue being whether or not the will dated 2 March 1994 was revoked. If revocation was established then an application for letters of administration could have been made if that were appropriate. The fact is that the issue has been properly ventilated before the court and I consider there is no reason why I should not proceed to judgment on that issue. 8 There is no evidence as to when the words written across the will were written. The document was found in what was described as the "computer drawer or desk" by Mrs Brown after her mother's death. 9 Counsel for Mrs Brown first claimed that the will was revoked by the method provided for in s17(3) of the Wills Probate and Administration Act, namely "By some writing on the will or dealing with the will with the intention of revoking the will manifested by the state of the will." In my opinion it is clear that the writing or dealing must be on or with the will itself not with a copy of it so that s17(3) does not apply. 10 The question then is whether or not the writing across the copy will can operate as a revocation of the will pursuant to s18A(1) of the Act on the basis that the court is satisfied that the deceased intended the document to constitute the revocation of her will. Section 18A(2) allows evidence to be given which would assist the court in coming to a conclusion under s18A(1). No such evidence is available in this case. There is no evidence as to when the words were written across the will or in what circumstances. The court would just be guessing if it came to any conclusion. The words may have been written because the deceased intended to make a new will and was about to go to a solicitor to arrange this or to go to some witnesses to have the document which she had written out properly executed. On the findings which I have made in connection with the National Will Kit document I do not think it could be said that the deceased wrote as she did because she considered that she had made a new will, thereby bringing the doctrine of dependent relative revocation into play. It is of course for those relying upon s18A for entitlement to establish their claim. In this case I cannot be satisfied that the writing across the will embodied the testamentary intention of the deceased to revoke her will and perhaps to leave herself intestate. In those circumstances, subject to the formal requirements of the registrar being satisfied I find that the plaintiff is entitled to have the will dated 2 March 1994 admitted to probate. Orders 11 Order that probate of the will dated 2 March 1994 of Valerie Dawn Evans be granted to Kelvin Henry Noldt, the executor named in the said will and it be referred to the Registrar to complete the grant. 12 Direct that the costs of all parties to be paid out of the estate, those of the executor on the indemnity basis. ********** Last Modified: 05/07/2002 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.