New South Wales Supreme Court CITATION : Public Trustee v Alexander - Estate of Alexander [2008] NSWSC 1272 HEARING DATE(S) : 20/11/08 JUDGMENT DATE : 20 November 2008 JURISDICTION : Equity JUDGMENT OF : White J EX TEMPORE JUDGMENT DATE : 20 November 2008 1. Declare that under s 18A of the Probate and Administration Act that exhibit B constitutes a will of the deceased; 2. order the grant of letters of administration 106534/2007 be revoked; 3. order that letters of administration with the Will annexed be granted to the Public Trustee; 4. remit the application to the Registrar to complete the grant; 5. declare that upon the true construction of the will of the deceased the first cross-defendant is entitled to the estate DECISION : 6. order that the plaintiff's costs of the proceedings be paid out of the estate on the indemnity basis and the costs of the defendant/cross-claimant and of the cross defendant be paid out of the estate on the party/party basis. 7. direct that the exhibits other than exhibits A & B be returned after 28 days. CATCHWORDS : WILLS, PROBATE AND ADMINISTRATION – informal wills – whether suicide note should be characterised as the deceased's will - WILLS, PROBATE AND ADMINSTRATION – construction – meaning of 'all my belongings' – informal will drafted by a layman – no real property – words sufficiently wide to bequeath whole estate LEGISLATION CITED : Probate and Administration Act 1898 (NSW) In the Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446 Costa v Public Trustee of NSW [2008] NSWCA 223 In re Bradfield [1914] WN 423 In re Mills Will Trusts (1937) 106 LJ Ch 159 CASES CITED : In re Price Deceased [1950] Ch 242 In re Schott's Will Trust (1968) 112 SJ 335 Simson' Trustees v Simson [1922] SC 14 Public Trustee v Young (1980) 23 SASR 239 Jenkins v Stewart (1906) 3 CLR 799 Fell v Fell (1922) 31 CLR 268 TEXTS CITED : Macquarie Dictionary, revised 3rd ed (2001) Oxford Concise Oxford Dictionary Public Trustee PARTIES : v Graehame David Alexander - the Estate of Justin Michael Alexander FILE NUMBER(S) : SC 106958/08 Plaintiff: M Meek with Ms Christofis COUNSEL : Cross-Claimant/Defendant: L Ellison SC Cross-Defendant: I Rugless (solr) Plaintiff: General Counsel and Solicitor for the Public Trustee SOLICITORS : Cross-Claimant/Defendant: Adrian Holmes, Lawyer Cross-Defendant: Clinch Long Letherbarrow IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WHITE J Thursday, 20 November 2008 106958/08 Public Trustee v Graehame David Alexander – the Estate of Justin Michael Alexander JUDGMENT 1 HIS HONOUR: On 27 April 2007 letters of administration of the estate of Justin Michael Alexander were granted to the Public Trustee. On 29 April 2008 the Public Trustee filed a summons seeking a declaration as to whether or not an unsigned document of the deceased constitutes his will and if so, for the grant to the Public Trustee of letters of administration with the will annexed and revocation of the present grant. The document is a suicide note and was made shortly before the deceased's death. 2 The first issue is whether that note should be admitted to probate as the will of the deceased pursuant to s 18A of the Probate and Administration Act 1898 (NSW). If the document is admitted to probate, the second issue is whether a gift to the deceased's mother of "All my belongings" was a gift of the deceased's entire estate or only of his personal chattels. The deceased only had personal estate. If the document constitutes the deceased's will, but disposes only of his personal chattels, then the only assets of any monetary value will pass on intestacy. 3 The deceased died by his own hand some time between 24 and 26 April 2006, aged 27. He was unmarried. He had no children. He is survived by his parents, who separated in the early 1990s, and a sister. If he died intestate his estate will be shared equally between his parents. If the suicide note constitutes the deceased's will and disposes of all his property, then his mother will inherit the estate. 4 The deceased's property consisted partly of personal effects, which were not included in the inventory of property, presumably because they had no, or no significant, monetary value. He died leaving cash in a building society of a little under $5,000 and some shares valued at $938. He was owed wages of $395, and was entitled to a tax refund of $3,419. The estate has also been paid, or is entitled to be paid, three sums from AMP consisting of retirement savings of $1,500, another superannuation amount of $1,460, and what is called group life insurance of $80,000. These represent superannuation death benefits from a superannuation fund, of which the defendant was a member, paid to the estate as a consequence of his not having nominated any beneficiaries, and of the operation of default provisions of the fund's trust deed requiring the trustee to pay the benefit to the estate. 5 The estate has also received, or is entitled to receive, from Nationwide Superannuation Fund, an insurance benefit of $52,800 and an account of approximately $1,543. These are also superannuation death benefits paid out of a superannuation fund of which the deceased was a member to the estate. These sums were paid as a consequence of the trustee of the fund making a determination to pay the benefits to the estate. 6 A sum of $10,233, described as a death benefit, has been or will be paid to the Public Trustee by the trustee of a superannuation fund called Australian Super, to be held by the Public Trustee on a bare trust either for the residuary beneficiaries, if any are named in a will of the deceased, or for the persons who benefit on intestacy. 7 A death benefit of $192,111 has been paid to the deceased's mother by United Group Ltd Staff Superannuation. The defendant to these proceedings, the deceased's father, says that this benefit should have been paid to the estate of the deceased and recovery of the amount from the deceased's mother is a matter to be dealt with during the administration of the estate. 8 Section 18A of the Probate and Administration Act provides: " 18A Certain documents to constitute wills etc (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. " 9 To be admitted to probate under s 18A, the document in question must purport to express the testamentary intention of the deceased and the deceased must have intended the document to constitute his will. The document must not only set out what the deceased wished or intended should happen to his property after his death, but he must have intended that the document should cause that to come about, that is, to operate as a will (In the Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446 at 455 per Mahoney JA). As Kirby P said to the same effect in that case (at 452), the deceased must intend the document to govern the disposition of his or her property after death. (See also Costa v Public Trustee of NSW [2008] NSWCA 223 per Hodgson JA at [26], and Basten JA at [108] and [110].) 10 The deceased killed himself in the garage of a house in which he lived. He left a note on top of the bar fridge in the garage which said: "I have left some letters in my bedroom in the bedside draw for the people I love and will miss. Please make sure they get them". In the bedside table were six handwritten letters. They were folded and addressed to "Carolyn/Mum", "Natalie/Sister", "Stace", "Wilson family", "My rowing crew 6 & 8s" and "School mates". The letter addressed to the deceased's mother, which is alleged to be the informal testamentary instrument, is eight pages long. I will not set it out in its entirety. Much of the document is not even arguably testamentary. 11 The deceased tried to explain the reasons for his intended suicide. He told his mother she was the best mother he could have had and thanked her for the sacrifices she made for him and his sister. He explained at some length his gratitude towards his mother and the reasons for that. It appears from the document that the deceased was not adept at using written language precisely or correctly. He said: " As you know with my problem it makes life a bit hard going threw school was not easy at all. I had to think very very hard all the time. What come easy to most people I found very hard ... . " 12 This must be borne in mind when attempting to discern from the document what was the deceased's intention, and in construing the document if it is admitted to probate. 13 On page 6 of the document the deceased said: " I have not left you with a great deal nowhere near the amount I have take from you but enough to pay for the stuff when I am gone I hope. Mum can you please have me burnt and put out at Nobby's along with nan ... . " 14 He then went on to explain his reasons for his request to be cremated and his ashes be disposed of in that way. 15 After expressing concern about the grief which his death would cause and repeating his expressions of love for his mother, the deceased wrote: " You should sell this house & build a new life in Sydney for you & Natalie. This house needs little work & sell it. Sell my stuff or give it to my mates my clothes all the boy stuff to my mates they will get use of out them. All my belongings I give to you to do what you see fit ... ". 16 Shortly after writing this, it appears that the deceased completed the note but then resumed with what is apparently a postscript in which he added: " Please help Stace. She will need a lot give her what wants [sic]. The T.V. in my room is hers. Can you play Powderfinger these days at the funeral. I want to be cremated & the ashes put in the water at Nobbys with Nan ... ". 17 In his letter to "Stace", his girlfriend, the deceased wrote, amongst other things: " The TV in my room is yours you take it. I do not have a lot but ask Mum if you need other stuff. " 18 The explanation for the deceased's saying nothing about giving property to his father is presumably found in the letter written to the Wilson family in which he said, amongst other things: " You have been my Dad I wish I had. You were always there & had helped me through a lot of hard times ... ". 19 The letters also contain wishes as to how the deceased's dog should be taken care of. 20 Mr Meek of counsel who appeared for the Public Trustee, submitted that by these letters the deceased was making arrangements to settle his affairs after his death, which is consistent with his intending the dispositive parts of the letter addressed to his mother to operate as his will. In that letter he plainly revealed why he regarded his mother as the proper object of his testamentary bounty. 21 No earlier will of the deceased has been identified, and I can infer he made none. In writing to his mother he said that he had not left her with a great deal. In my view, he was expressing his belief that he had left his mother at least some of his property. I will deal later with the question of whether the letter reveals an intention to give all of his property to his mother or only some of it. However, in the absence of any other testamentary instrument, those words indicate a belief that by the document in question the deceased was leaving property to his mother. 22 There is a number of indications in the document, and the surrounding circumstances, that the deceased was expressing his testamentary intentions and that he intended the document to be operative as his will. First, he uses dispositive language in saying to his mother that "All my belongings I give to you". Those are not merely precatory words. Secondly, he earlier expressed his belief that he was leaving his mother with property, although he repeated that it was not a great deal of property that was being left. Thirdly, the document was prepared on a solemn occasion. He took steps to ensure that the document would be brought to others' attention. Fourthly, as Mr Meek submitted, the whole of the letter and some of the other letters set out arrangements he hoped could be made to wrap up his affairs. Further, he stated his wishes in relation to the disposal of his body, which is also consistent with his intending the document to operate as his will. 23 Against those considerations, there is the fact that the document was not signed. In the note left in the garage he refers to having left some letters in his bedroom, without describing the letter to his mother as a will. 24 Perhaps, most significantly, as Mr Ellison SC for the defendant submitted, the substantial bulk of the letter is a narrative dealing with matters other than the disposition of his property after his death. Mr Ellison submitted that on reading the document as a whole, it should be inferred that the deceased did not intend it to have a legal status. 25 There is no doubt that just because the document is properly characterised as a suicide note, it does not mean that it cannot also be characterised as the deceased's intended will. I think the document could be properly given a number of characters other than the deceased's will. In part, it is an explanation for his intended action. In part, it is a prayer for forgiveness. In part, it is an advice or exhortation to his family as to how they should act in the future. But the fact that the document has these additional characters does not mean that it was not also intended to be the deceased's will. I think the dispositive words and the other matters I have mentioned show that the deceased intended the document to constitute his will. It also embodies his testamentary intentions. It is, therefore, to be admitted to probate pursuant to s 18A of the Probate and Administration Act. 26 The question then is what is disposed of: in particular, what meaning should be given to the words "All my belongings". The Macquarie Dictionary, revised 3rd ed (2001), defines the word "belongings" as meaning "possessions; goods; personal effects". Mr Ellison submitted that is also its popular meaning. In that sense, it would be apt to pick up the deceased's personal chattels such as his clothes, and what he called his "boy stuff". It could also pick up any other chattels that he owned, but would not refer to his other assets such as his cash, shares, savings accounts or superannuation entitlements. 27 Whilst the Macquarie Dictionary gives a limited definition to the word "belongings", it is not at all clear to me why a natural meaning of the expression "all my belongings" is not simply "all that belongs to me". "Belong", as a verb refers to ownership of property. 28 There is a number of cases which have dealt with the expression "belongings" when used in wills. References to earlier cases which have concerned wills which use the same language as the language to be construed in this will can lead to confusion or error, because the task is to ascertain what the testator intended by the words he used. Nonetheless, those cases are instructive as showing that the word "belongings" can have a far wider meaning than given in the dictionary. Thus, in In re Bradfield [1914] WN 423, a homemade will, after leaving particular articles, left "all other belongings" to the testatrix's sister. The report says: " Eve J held that 'belongings' must be given its primary meaning of 'property' and 'all other belongings' covered all that the testatrix did not specifically dispose of ". 29 In In re Mills Will Trusts (1937) 106 LJ Ch 159, Bennett J held that a bequest of "all my home and personal belongings except my piano" was a disposition of the entire residuary personal estate with the exception of the piano. 30 In In re Price Deceased [1950] Ch 242, Romer J held a gift of "all my belongings to my daughter" extended to the deceased's entire personal property, although it did not extend to realty. 31 In In re Schott's Will Trust (1968) 112 SJ 335, Stamp J said that a gift of "the rest and residue of all my belongings" passed the residue of both real and personal estate. His Lordship held that the words "all my belongings" meant "all that belonged to me". His Lordship referred to a definition of "belongings" in the Oxford Concise Oxford Dictionary. Although the definition is not set out, it appears from the report that his Lordship was of the view that the meaning he gave, that is to say, "belongings" meant all that belongs to the testatrix was the ordinary sense of the word. (See also Simson' Trustees v Simson [1922] SC 14.) 32 In Public Trustee v Young (1980) 23 SASR 239, Jacobs J said (at 248-249): " Expressions such as 'personal belongings', 'personal effects', and 'personal possessions', have been given widely different meanings in the cases, depending upon the context and surrounding circumstances. At one end of the scale stand cases such as In re Bradfield; Bradfield v Bradfield ; and Re Mills' Will Trusts; Marriott v Mills , in which the connotation was in the circumstances so wide as to cover, in effect, the whole of the personal estate of the testator. At the other end are such cases as Re Leury , deceased [1975] VR 601, where it was held, in the absence of a controlling context, that the words should be taken to include only those things that can properly be treated as personal effects, that is to say, physical chattels having some personal connection with the testator such as articles of personal or domestic use or adornment, clothing, furniture and so forth ( Joseph v Phillips [1934] AC 348). " 33 Re Leury was concerned not with the expression "belongings" or "personal belongings" but "personal possessions". 34 I do not suggest that the sense given to the word "belongings" in these cases in any way controls the sense to be given to the word in the letter written by the deceased. But the cases show that the word can be used in a wider sense than personal effects or goods, or things capable of physical possession. 35 In construing the testator's words, one should apply the presumption against intestacy (Jenkins v Stewart (1906) 3 CLR 799 at 804; Fell v Fell (1922) 31 CLR 268 at 275-276). It would be contrary to the concerns expressed by the deceased for his mother, and the feelings he expressed for her, for him not to have disposed of all of his estate. 36 Mr Ellison submitted that when the deceased said: "I have not left you with a great deal nowhere near the amount I have take from you but enough to pay for the stuff when I am gone I hope", he was recognising that he had left his mother only with assets of little value. It may well be that the deceased thought the assets he had to leave were of little value, and he did not have in mind that moneys might become available to the estate, or to the beneficiary, from life insurance policies. I do not consider that one can infer from those words that he intended only to deal with his personal effects. Rather he was expressing regret that he did not have more to give. 37 Mr Ellison also submitted that the sense in which the word "belongings" was used can be gleaned from the context in which it appears, namely, that the deceased was asking his mother to "Sell my stuff" or give it to his mates and he referred to his clothes and his "boy stuff". The deceased referred also to not having photos, and to a television in his room. However, I do not consider the reference to "all my belongings" can be defined by the context of the deceased's expression as to what should be done with some of his personal chattels. So far as the television is concerned, I do not understand the letter to be in any way dispositive of it. Rather, I understand the letter to say that the television, which was in the deceased's room, belonged to his girlfriend Stace. 38 The defendant, by his cross-summons, sought a declaration that the proposed gift or gifts in the words "Sell my stuff or give it to my mates my clothes all the boy stuff to my mates they will get use out of them. All my belongings I give to you to do what you see fit" failed for uncertainty. I take it that the defendant contends that there is either uncertainty as to what is constituted by "stuff" or "belongings", or there is an inconsistency as to how "belongings" are to be dealt with. 39 For reasons I have given, I do not think there is any inconsistency in what is encompassed by "stuff" and "belongings". I think that all of the deceased's belongings, that is, all his property, is given by this instrument to his mother, and that in the same instrument he expresses his wishes, which are not intended to be binding, as to how she should deal with his "stuff" including his clothes. His "stuff" is his personal effects. 40 It was submitted for the defendant that the superannuation benefits paid by the AMP, Nationwide Superannuation Fund and the United Group Staff Superannuation Plan, only came into existence after the deceased's death and could not be described as his "belongings". With respect, I think that misses the point. If, as I consider to be the case, the deceased's mother is entitled to all of the estate because all of the estate is encompassed in the word "belongings", then she would be entitled to the benefit of moneys paid by the trustees if they are paid for the benefit of the residuary beneficiaries or otherwise paid to the estate. That is so whether or not it could be said that there was something which "belonged" to the deceased prior to his death to which those moneys were referable. 41 For these reasons, I decline to make either of the declarations sought in the defendant's cross-summons. Instead, I will declare on the true construction of the document to be admitted to probate pursuant to s 18A of the Probate and Administration Act the first cross-defendant is entitled to the deceased's estate. 42 On the question of costs, it appears to me the Public Trustee should have its costs out of the estate on the indemnity basis and that the costs of each other party in relation to both to the Public Trustee's summons and the defendant's cross-summons should be paid out of the estate on a party and party basis. The probate action and the construction summons were brought because of the circumstances in which the document admitted to probate was signed, the absence of compliance with the formal requirements of a will, and the ambiguity of the words used. It was desirable for the defendant to appear so that there was a proper contradictor. The cross-defendant was joined on the defendant's cross-claim and she was also a proper party to the proceeding. She has been successful. 43 I propose the following declarations and orders subject to any submissions counsel may wish to make as to their precise form. 1. Declare under s 18A of the Probate and Administration Act 1898 (NSW) that exhibit B constitutes the will of the deceased. 2. Order that letters of administration with the Will annexed be granted to the Public Trustee. 3. Remit the application to the Registrar to complete the grant. 4. Order the grant of letters of administration number 106534/2007 be revoked. 5. Declare that upon the true construction of the will of the deceased, the first cross-defendant is entitled to the estate. 6. Order that the plaintiff's costs of the proceedings be paid out of the estate on the indemnity basis and the costs of the defendant/cross-claimant and of the cross-defendant be paid out of the estate on the party and party basis. 7. Exhibits, other than Exhibits A and B, may be returned after 28 days. (Orders accordingly.) ****** 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.