In the Estate of Kiepas (Deceased); Twemlow v Kiepas [2004] NSWSC 452

New South Wales Supreme Court

CITATION : In the Estate of Kiepas (Deceased); Twemlow v Kiepas [2004] NSWSC 452 HEARING DATE(S) : 24 May 2004 JUDGMENT DATE : 2 June 2004

JURISDICTION: Equity Probate List JUDGMENT OF : Campbell J DECISION : Grant concerning informal document refused

CATCHWORDS : SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - probate and Letters of Administration - whether grant to be made under section 18A Wills, Probate and Administration Act 1898 concerning informal document - no question of principle LEGISLATION CITED : Wills, Probate and Administration Act 1898 CASES CITED : Hatsatouris & Ors v Hatsatouris [2001] NSWCA 408 In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446 Michael Frederick Twemlow - First Plaintiff PARTIES : Waldemar Kiepas - First Defendant Jerzy Kiepas - Second Defendant FILE NUMBER(S) : SC 117955/03 P O'Loughlin - Plaintiff COUNSEL : Unrepresented - Defendants M Provera - Catholic Mission J Wilson SC - Guide Dogs NSW/ACT James A Moustacas & Co - Plaintiff SOLICITORS : Nowacki & Company - Defendants Makinson & d'Apice - Catholic Mission Holman Webb - Guide Dogs NSW/ACT

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

CAMPBELL J

2 JUNE 2004

117955/03 IN THE ESTATE OF KIEPAS (DECEASED); TWEMLOW v KIEPAS JUDGMENT 1 HIS HONOUR: This is an application under section 18A Wills, Probate and Administration Act 1898, seeking to have admitted to probate an informal document dictated by the Late Walcaw Kiepas ("the Deceased"). 2 The Deceased died on 17 May 2003, aged 79. He was born in Poland, and had been in Australia for 53 years at the time of his death. He had never married. The evidence discloses no de facto relationship or children. He was often called by the first name Walter. 3 On 8 May 1992 the Deceased executed a Will. That Will appointed the Deceased's friend, Mr Branko (also known as Frank) Lapajne as executor. It made a substitutionary appointment of two executors if Mr Lapajne predeceased the Deceased. In summary, it made the following specific gifts. · Personal possessions to St Vincent de Paul Society, Charing Cross Branch · Mr Lapajne $20,000 in lieu of commission · The Deceased's solicitor, Mr Michael Twemlow, $5,000 · The two substitutionary executors, a legacy if they performed executorial duties · The Deceased's accountant, Mr Kimmorley, legacy of $2,000 · Mary Immaculate Catholic Church, Waverley, $10,000, and · Catholic Mission Office – Overseas Mission Fund, $10,000. 4 The residue was given on trust for payment of debts, with the balance to be paid: · One quarter to Royal Blind Society of New South Wales, · One half to Guide Dog Association of New South Wales, · One quarter to the Deceased's brother and sister, Jan and Staska, in equal shares, with the share of either of them to go to that person's children if that person predeceased the Deceased leaving children, and to the survivor (or the children of the survivor) if one of them predeceased the Deceased leaving no children. 5 The Will gave directions for the disposal of the Deceased's physical remains, and directed that Mr Twemlow be employed to act for the estate. 6 At the time of making that Will the Deceased was in some uncertainty about the whereabouts of his brother and sister. The Will said, after naming them, "who I understand reside at 35 Zalesie Street, Skaresup, Via Radom, Poland". Mr Lapajne, who had been a friend of the Deceased since 1952 recalls that many times the Deceased had said to him "I've got three brothers and a sister but I do not want to know them." 7 In fact the Deceased's brother Jan had died in April 1970, and his sister Staska had died in July 1969. Staska left no children, but Jan left three children surviving him. One of those three children, Jadwiga Stachowicz also predeceased the Deceased, leaving two children surviving her. 8 The Deceased had significantly impaired sight. At the time of his death he had a guide dog, and from the early 1980's he was assisted every six to eight weeks by Ms Gertrude Drysdale, who worked as a volunteer for a Low Vision Group which assisted blind people. Ms Drysdale took the Deceased to the offices of Mr Twemlow on 8 May 1992, and read the Will to him before he executed it. She did not discuss the contents of that Will with him, nor did she discuss any later testamentary disposition with him. 9 About twelve months before his death the Deceased said to Mr Lapajne "I want Michael and you to be my executors. I trust Michael and you are in the same position as I am healthwise." 10 On 13 March 2003 – a date a little more than two months before the Deceased died - the Deceased telephoned Ms Drysdale, and asked if she could take him to Mr Twemlow's office at 10:30 the next morning. The next day, before she went to meet the Deceased, Ms Drysdale looked up Mr Twemlow's address in the telephone book (he had moved since 1992), went to that address, and found that the premises appeared to be unoccupied. A woman in adjoining premises told her that Mr Twemlow was not there any more. 11 Ms Drysdale then went to the Deceased's house, and said that she could not take him to see Mr Twemlow because Mr Twemlow was not longer at the office. The Deceased said that he would have to get in touch with Mr Twemlow at home, located a telephone number which he gave to Ms Drysdale, and asked her to dial that number. She did so, spoke to someone, said she was ringing for Mr Kiepas, and then passed the telephone to the Deceased. 12 Ms Drysdale had successfully rung the mobile phone of Mr Twemlow. At the time, Mr Twemlow was in South Africa. The Deceased said he wanted to see Mr Twemlow. Mr Twemlow replied that that could not be done immediately, but that he would be back in Australia in April and would call the Deceased when he got back. 13 After the Deceased got off the telephone, he said to Ms Drysdale "he is in South Africa, I'll get in touch with him when he returns". 14 The Deceased then got up, got a piece of paper and a pen, and said, "Would you write down what I tell you?" He then dictated to Ms Drysdale the informal document which is the subject of the present application. It says: "I appoint as my executors M F Twemlow, Solicitors. One quarter of the residue of my estate after all debts (and bequests) have been paid, to Royal Blind Society. One quarter to Guide Dogs Association. Ten thousand dollars to Mary Immaculate Church, Waverley. Ten thousand dollars to St Vincent de Paul, Waverley. Two thousand to Barry Kimmorley, Accountant. Twenty thousand dollars to Branko Lapajne of Burwood. All furniture, clothes and personal items to St Vincent de Paul Society. Two thousand dollars to Jean Drysdale of Paddington I direct that I be cremated and my ashes be located at Waverley Cemetery." 15 When the Deceased got to the part where Ms Drysdale was mentioned, she said, "You don't have to do that Walter", he said, "Yes, I want to". 16 After the document was completed, Ms Drysdale read it back to him. He said "I'm not leaving anything to my brother because I don't know where he is or if he's alive". He also said, "I don't want Frank to be the executor because he's not well and like the rest of us, he's getting on and it might be a bit much for him. Mr Twemlow has experience in these matters." 17 Ms Drysdale then handed the document to the Deceased, and he put it into one of the drawers in his desk near the phone. She observed at the time that there were other papers in the drawer where he put the document, although she did not know what they were. The Deceased did not attempt to sign the document in her presence. She stayed with him for about half an hour chatting, and then left. 18 Ms Drysdale maintained contact with the Deceased after preparation of the instrument. She saw him every Thursday at Bondi Junction with Mr Lapajne, who took the Deceased shopping every week. The Deceased did not mention to Ms Drysdale, after the document was prepared, anything more about it, or anything concerning his testamentary wishes. She continued to see him until the day before he died. 19 When Mr Twemlow returned to Australia at the end of March or early April 2003 he telephoned the Deceased, said he was back, and that he was calling because the Deceased had said he wanted to see him. The Deceased said, "Yes, I'll get back to you, I'm busy now." Mr Twemlow did not see the Deceased or speak to him after that telephone call. 20 The Deceased died in St Vincent's Hospital, where he was for at least a few days before he died. Mr Lapajne saw the Deceased on the Monday, Tuesday, Wednesday, Thursday and Friday before he died. The Deceased did not mention his Will or testamentary intentions. 0 21 On 17 May 2003 Mr Lapajne, with another friend, Mr Ludvik Laurencic, went to the house of the Deceased, soon after the Deceased had died, to collect some documents to take to the Deceased's solicitor. Mr Laurencic looked in a small desk or cabinet like a chest of drawers next to the phone, opened the top drawer, and found the document which Ms Drysdale had written out. It was with a copy of the Will of the Deceased. Mr Laurencic and Mr Lapajne also located and collected other papers such as bank statements, and chequebooks. Some of them were in the same drawer where the Will and informal document were found, but the evidence does not make clear precisely which were in that drawer. All these papers were taken to Mr Twemlow's home, and given to him. 22 Mr Lapajne has renounced the executorship of the Will of the Deceased. Of the two substitute executors who were named in the May 1992 Will, one is deceased, and the other lacks capacity to take a grant. No family member seeks a grant, nor any creditor. In those circumstances Mr Twemlow seeks, primarily, a grant of the informal document, or of both the 1992 Will and the informal document (on the basis that there will be later litigation to resolve, as a matter of construction, how those two documents should be read together). Alternatively, he seeks a grant of letters of administration with the Will annexed, of the 1992 Will. 23 Section 18A of the Wills, Probate and Administration Act 1898 provides: "(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." 24 In Hatsatouris & Ors v Hatsatouris [2001] NSWCA 408 at [56] Powell JA (with whom Priestley and Stein JJA agreed) said: "… the questions arising on applications raising a question as to the applicability of s18A are essentially questions of fact, the particular questions of fact to be answered being: (a) was there a document, b) did that document purport to embody the testamentary intentions of the relevant Deceased? (c) did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will?" 25 In In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446, at 462 Mahoney JA said: "Secondly, s 18A should, as I have indicated, be given a beneficial application. There are, in the history of this branch of the law, many cases in which the intention of the deceased has not been able to be given effect. That is an evil which should be remedied as far as may be. It may be understood why the legislature decided not to give testamentary effect merely to any statement of testamentary wishes, however casually stated and even if it was not contemplated that legal results would follow. The consequences of that, as far as concerns proof and otherwise, can well be imagined. But the benefits of the change should not be withheld by requiring too rigid a manner of proof that what was put in a document should have legal effect. If a document is on its face such as contemplates legal effect, ordinarily it should be given effect unless – as in this case – there are contexts or circumstances that lead to the contrary conclusion." 26 The informal document was a document which purported to embody at least some of the testamentary intentions of the Deceased. However, I am not persuaded that the Deceased intended that the informal document should, on the day it was written out, without more on his part, operate as either his Will, or as a codicil to his Will. 27 The informal document contains many provisions such as are found in a will or codicil – appointment of an executor, direction for disposal of his body, and granting of legacies and shares in residue. The Deceased checked that it was accurately written out by having it read over to him. However he said nothing which indicated he regarded it as, then and there, his Will or a codicil to his Will. He did nothing, like executing it, to show that he approved it. The Deceased had enough sight to have been able to sign his name on each page of the 1992 Will, and to initial one crossing out of part of the typed text of that Will. The evidence is silent about whether his sight had deteriorated since 1992. Even if his sight had deteriorated to the extent that he could not sign his name, he still said nothing, and did not ask Ms Drysdale to write anything, which showed adoption or approval of the document. 28 His action in placing the informal document with his Will is equivocal – if his intention was to make a formal new will or codicil with Mr Twemlow when Mr Twemlow returned from South Africa, it would have been quite sensible for him to place a note about the provisions he wished to include in his new testamentary instrument in the same place as his 1992 Will. 29 The informal document only disposes of half of the residue of the Deceased's estate. There is no reason to believe that he had a positive intention to die intestate as to the other half of his estate. Yet the task of reading the 1992 Will, and the informal document together is by no means an easy one. That difficulty of construction is in itself a factor against the informal document being intended to operate as a codicil to the 1992 Will. 30 When Mr Twemlow returned from South Africa, and contacted the Deceased, the Deceased's statement to him "I'll get back to you. I'm busy now" is consistent with the Deceased having wanted to see Mr Twemlow for the purpose of making a new Will. Significantly, the Deceased did not say to Mr Twemlow that there was now no need to see him. 31 The informal document does not contain any title or other statement to the effect that it is a will, or a codicil to the Will of the Deceased. It is not dated. While dating a document is not necessary for it to be adopted by a person who causes it to be produced, dating is often an indication that the document is in its final form and intended to be operative. 32 Nothing in the conversation that the Deceased had with Ms Drysdale involved him saying that the document she wrote was to be his Will or codicil, rather than notes for a will or codicil to be drawn by his solicitor. That his previous Will had been drawn by Mr Twemlow, and that Mr Twemlow was someone the Deceased had known for years and trusted, and that the informal document was drawn immediately after the Deceased found he could not get a prompt appointment with Mr Twemlow, are all facts consistent with him having been thinking about what instructions he wanted to give his solicitor, and wanting to record those thoughts while they were fresh in his mind. There is no evidence which leads one to believe that, at the time the informal document was made, the Deceased believed that he might die quite soon, so that it was important to make his Will, even in an informal fashion, then and there. 33 In all these circumstances, I am not persuaded that, at the time the Deceased dictated the informal document and then put it in the drawer, it was his then intention that it should, without more on his part, operate as his Will, or as a codicil to his Will. 34 Thus, there should be a grant of probate of the 1992 Will. Orders