New South Wales Supreme Court CITATION : Hough v Harris; Estate of Graham [2004] NSWSC 958 HEARING DATE(S) : 11 October 2004 JUDGMENT DATE : 18 October 2004 JURISDICTION: Equity Division Probate List JUDGMENT OF : Windeyer J at 1 DECISION : Section 18A document admitted to probate. CATCHWORDS : SUCCESSION - probate - informal wills - testamentary intention - application for letters of administration with document annexed pursuant to s18A Wills Probate and Administration Act 1898 - informal document handwritten and signed by the deceased - document found under paper lining in cupboard - where evidence of conversations between deceased and beneficiaries prior to death supports intention of deceased that the document constituted her will - evidence of deceased's statement that she did not have a will, and intended to make a formal will at some future time insufficient to show that document was not intended by deceased to operate as her will. - SUCCESSION - probate - informal wills - amendments - where deceased made notes and alterations from time to time regarding amounts due and owing, including gifts made to her children prior to her death - effect of these amendments upon the main document. - LEGISLATION CITED : Wills Probate and Administration Act 1898 s18A Carolyn Claire Hough (First Defendant) PARTIES : Gary Miller (Second Defendant) Frank Henry Harris by his tutor Joyce Mary Fuller (Defendant) FILE NUMBER(S) : SC 102536/04 COUNSEL : Mr Legg (Solicitor) (Plaintiffs) Mr P O'Loughlin (Defendant) SOLICITORS : Burridge & Legg (Plaintiffs) Bowring Macaulay & Barrett (Defendant) - 3 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST WINDEYER J MONDAY 18 OCTOBER 2004. 102536/04 CAROLYN CLAIRE HOUGH & GARY MILLER V FRANK HENRY HARRIS by his tutor JOYCE MARY FULLER IN THE ESTATE OF GLORIA CLAIRE GRAHAM JUDGMENT 1 The plaintiffs seek a grant of administration with a document annexed of the estate of Gloria Claire Graham, deceased. They seek to propound the document under s18A of the Wills Probate and Administration Act 1898. A copy of the document is set out as an appendix to this judgment. 2 Mrs Graham died on 14 September 2003 aged 79. She had five children. The plaintiffs, Mr Gary Miller and Mrs Carolyn Hough are two of those children. Two more of those children have consented to the application. The fifth child, Mr James Graham has been served with notice but has not appeared. Mr Frank Harris is the de facto husband of the deceased. He has been served with notice and filed an appearance and has been represented on the hearing. He has a substantial interest in the matter because, if the document put forward is not admitted to probate, he will take the major part of the estate on intestacy. That is because of an estate with assets of an estimated valued of $478,000, the deceased's one third interest in the home she and Mr Harris lived in, was estimated to be worth $334,000 and Mr Harris owned the other two thirds interest in that home. Mr Harris is a protected person under the Protected Estates Act 1983. An order that his estate be subject to management was made by the Guardianship Tribunal on 20 February 2004. His sister, Mrs Joyce Fuller is managing his estate and she is his tutor for the purposes of this action. 3 The document propounded was found a few weeks after the death of the deceased in her home at Pheasant's Nest. It was in a cupboard in her bedroom with other papers and bank books. It was found under a piece of paper lining. There is evidence the handwriting on the document is that of the deceased. All evidence was on affidavit and there was no cross-examination. Mr Gary Miller said in an affidavit sworn on 19 August 2004 that he had visited his mother at Pheasant's Nest in winter one year, but he did not remember the date. His mother was sitting in the kitchen surrounded by papers. She had shown him and his wife a piece of paper on which she had written, which he identified as the document now propounded. The deceased had said to him and his wife "this is what I want. I cross off items when loans are repaid or I give things to you children such as jewellery". He had said, "You should see a solicitor and have a proper will drawn up" to which the deceased had responded, "This is adequate for my purposes" and a short while later "Alright I will go and see a solicitor and maybe make a formal will". Mrs Carolyn Hough, the other plaintiff, in an affidavit sworn 16 August 2004, said that in June or July 2003, the deceased visited her at her home at Padstow Heights. They had discussed a loan, which her mother was to make to her brother, Jimmy, of $40,000 and the deceased had said to her "What do you think?" and she had said "It's your money for you to do with what you wish". Her husband had said to the deceased "What happens if you die?" and the deceased had said "Everything will be split equally with my family. What Frank does is up to him. He has no children". On another occasion the deceased had said to her "My property will go five ways". There had been some discussions from time to time about the property owned by the deceased and Mr Harris and the relationship between them and the way their financial affairs were managed, separately from each other. Jill Lyons, another daughter of the deceased, who was present when the document was found, said that when the deceased and Mr Harris had bought a farm at Pheasant's Nest, it was purchased in shares of two thirds to Mr Harris and one third to her and the deceased had said "You five children will get my share of the property. Don't worry about that. It's all taken care of". She said that on a couple of occasions over recent years she had asked her mother about her will and that the deceased had said "Don't you worry about. It is taken care of. You children will be looked after. Don't worry about it". 4 Mrs Robyn Woodward, the third daughter, said that she had spoken to the deceased a number of times about her will and that her mother had said "I don't have a will. Look it's OK. My share will go to my children. I haven't worked all these years for nothing. What Frank does with his is up to him" and she had said "Just write it out on paper, even toilet paper, what you want". There is no evidence of when these conversations took place. Mr Martin Woodward, the husband of Mrs Woodward, said the deceased had said to his wife on a number of occasions "I intend leaving my share of the property to you and my other children". 5 Mr Legg is the solicitor for the plaintiff. He made enquiries of solicitors who had some contact with the deceased as to whether they held a will. One of these solicitors responded saying that on two occasions in March and April 2003 he had discussed with the deceased the need for a will and she had said, "Yes, I must do something about making a will". 6 The basis on which the court considers applications under s18A has been decided in a number of cases. It is accepted that these requirements are (1) that there must be a document; (2) that the document purports to record the testamentary intentions of the deceased; and (3) the court must be satisfied that the deceased intended that the document, at the time it was brought into existence, or at some later time, without more to constitute her will. 7 There is no doubt that there is a document. On its face it appears to embody the testamentary intentions of the deceased. Its main provisions are dispository. It made some attempt to explain the relationship with Mr Harris. For the most part it provides for the deceased's interest in the home and all her other property to be shared, so far as the interest in the home is concerned, equally among the five children and so far as the balance of the estate is concerned, among the children amicably. 8 The language used in some provisions is of a type not unusual in home made wills. There may be some problems of construction although that is unlikely, but that does not mean that the instrument was not intended to be a testamentary instrument. It contained various instructions, but once again that is not unusual. It contains various reminders of amounts due by the deceased and amounts owing to the deceased. An explanation of these is given by one of the children. Leaving aside the amendments, which appear to have been made at later dates, and some of which bear dates to indicate when they were made, I would have little doubt that the document did record the testamentary intentions of the deceased and that she intended it to operate as a will. The only evidence against this is the statement that she made to one of her children that she did not have a will and the statement which she made to the solicitor, Mr Izzard, that she must make a will. These statements should, I think, be read together with the evidence of the conversation with her other daughter when she said that she might make a formal will but what she had would do for the time being. 9 The question then is what should be done with the amendments and whether the complete document should be admitted to probate. I have come to the conclusion that the amendments, so far as they are dispository, should be treated as testamentary in the form of codicils or amendments to the main document. Insofar as there are deletions, I consider in the same way that these should be considered as testamentary, but they may indicate that the items have already been given away. I am satisfied that the document as a whole embodies the testamentary intentions of the deceased. I conclude that the deceased intended the alterations to operate so as to vary terms of the will, as those terms existed from time to time with the amendments from time to time. I consider this fulfils the requirements of s18A of the Act 10 As no executors are appointed by the document a grant of letters of administration with the document annexed should be made to the plaintiffs. Orders 11 Order that letters of administration with the document (a copy of which appears as appendix A) annexed of the estate of the deceased be granted to the plaintiffs. 12 Order that the matter be referred to the Registrar in Probate to complete the grant. 13 Order that the costs of the plaintiffs and of the defendant, Mr Harris, be paid out of the estate of the deceased, those of the plaintiffs on the indemnity basis. Appendix A ********** Last Modified: 10/28/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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