New South Wales Supreme Court CITATION : ROSS V FLETCHER ESTATE LAYCOCK [2004] NSWSC 603 HEARING DATE(S) : 5 July 2004 JUDGMENT DATE : 5 July 2004 JURISDICTION: Equity Division Probate List JUDGMENT OF : Windeyer J at 1 DECISION : Grant of probate to the plaintiffs. CATCHWORDS : WILLS - construction Alan William Ross (First Plaintiff) PARTIES : Betty Elaine Cairncross (Second Plaintiff) Brian James Fletcher (First Defendant) Susan Joy Lithgow (Second Defendant) FILE NUMBER(S) : SC 102428 of 2002 COUNSEL : Mr B Townsend (Plaintiffs) Mr J Van Aalst (Defendants) SOLICITORS : Leitch Hasson Dent (Plaintiffs) Thomas S Curran (Defendants) - 2 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J MONDAY 5 JULY 2004 102428/02 ESTATE OF WILBERT SAMUEL LAYCOCK – ALAN WILLIAM ROSS & BETTY ELAINE CAIRNCROSS v BRIAN JAMES FLETCHER & SUSAN JOY LITHGOW JUDGMENT 1 HIS HONOUR: Wilbert Samuel Laycock died on 19 June 2000 aged 81 years. 2 He left a will dated 5 April 1994 apparently written in his own handwriting as follows: " 5-4-94 I want my Australian cousens to each have a Equel share in my estate accounts in Punchbowl commonwealth Bank." 3 This was signed by the deceased and his signature was witnessed by two persons as required by law for a valid will. There is no suggestion that this document was not a valid will. 4 Underneath the signatures of the attesting witnesses, appears the following, also, it seems, written in the handwriting of the deceased: "Please Hand this will to Alan Ross 14 GOODWIN AV GREENACRE." 5 The deceased had been married, but his wife had predeceased him. They had a child who predeceased the deceased and died without issue. There were no children or grandchildren. 6 The parents of the deceased predeceased him. His grandparents predeceased him. He had no brothers or sisters who survived him or who predeceased him leaving issue. His only next of kin entitled on intestacy was an Aunt Rosanna Filamina Margaret Fletcher. She survived the deceased but died on 25 March 2001. Probate of her will was granted to the now defendants in these proceedings Brian James Fletcher, Janice Lorraine Hamilton and Susan Joy Lithgow they being her three children who, in the events which have happened, are the persons entitled in equal shares to her estate. 7 If the will disposes of the whole estate of the deceased, then the estate will be shared equally among 14 persons, those persons being the Australian cousins of the deceased who survived him. If there is a partial intestacy, then those persons will take, in equal shares, the moneys which the deceased had in various term deposits and other accounts with the Commonwealth Bank of Australia and the balance of the estate, which is represented by the deceased's property in Charlescotte Avenue, Punchbowl, will go to the estate of the deceased's aunt, and ultimately to the three executors of that aunt's will. Two of those persons argue for a partial intestacy. Mrs Hamilton, who has appeared in person this morning, does not so argue, she considering that the whole estate should be shared equally between the Australian cousins. 8 The evidence shows that the deceased had little or no connection with most of his cousins. 9 The significant feature of the will is that if there were no words after the word estate the will would be clear; if there were a stop or pause indicated after the word "estate" the meaning would be clear. The question is whether the format of the document results in there being a partial intestacy. 10 A retired panel beater does not ordinarily refer to bank accounts as estate accounts. That would be a quite unusual use of language. The ordinary expression would be "bank accounts". There was every reason for the deceased to dispose of his whole estate, not part of it. The presumption against intestacy is a strong one in a case such as this. 11 In what are often described as "home-made wills", it is common for testators to identify the location of their assets. I consider that what was done in this document. On that basis, I consider the meaning is clear and that the deceased disposed of his whole estate by the document. 12 If there were an ambiguity - which I think is doubtful - this is, I think, decided by the surrounding circumstances as to his cousins and as to the use of the word "estate" where it appears. 13 In all the circumstances, I find that the will disposes of the whole and that, therefore, the estate will go in equal shares to the fourteen Australian cousins, who have been identified in evidence required for by the probate registry. 14 I should add that the two defendants opposing this order do not oppose a grant of letters of administration with the will annexed being granted to the plaintiffs, they having had notice of that application. Their argument and contention was that the estate should be administered on the basis of a partial intestacy as I have pointed out. I only say this because, in any event, it would be proper, on the evidence now before the Court, for a grant to be made to the plaintiffs. 15 I make the orders sought in paragraph 3 of the amended summons. Order the file be referred to the Registrar to complete the grant. Make the determination in paragraph 1(a) of the amended summons. The costs of all parties be paid out of the estate of the deceased, those of the plaintiffs on an indemnity basis. The exhibit may be returned. ********** Last Modified: 07/16/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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.