Quartermain Estate - Steggall v Quartermain [2009] NSWSC 553

New South Wales Supreme Court

CITATION : Quartermain Estate - Steggall v Quartermain [2009] NSWSC 553

HEARING DATE(S) : Determined in Chambers on the papers.

JUDGMENT DATE : 17 June 2009

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Sackville AJA

DECISION : Informal codicil admitted to probate.

CATCHWORDS : SUCCESSION – PROBATE – INFORMAL CODICIL – Whether document in handwriting of deceased was intended to have immediate testamentary effect – question of fact.

LEGISLATION CITED : Succession Act 2006 (NSW) – s 8

CATEGORY : Principal judgment

CASES CITED : Masters (dec'd), In the estate of; Hill v Plummer (1994) 33 NSWLR 446

PARTIES : John Warwick Steggall (Plaintiff) Bernice Patricia Quartermain (Defendant)

FILE NUMBER(S) : SC 123443/08

SOLICITORS : Roper & Steggall (Plaintiff) Collins & Thompson (Defendant)

123443/08 Quartermain Estate: Steggall v Quartermain

JUDGMENT

17 June, 2009

Introduction

1 This is an application in solemn form that there be admitted to probate a will, formally and duly executed, together with a handwritten document, not executed by the deceased, but said to be a codicil to the formal will. By consent of all parties, I have dealt with this matter in Chambers on the papers. I have read all affidavits filed by the parties and their written submissions. 2 The Plaintiff is the executor appointed by the deceased, Barry Quartermain, in a will dated 21 June 2005. That will was prepared by the Plaintiff, who was the deceased's solicitor for many years. The will is duly executed and witnessed. There is no issue as to its validity. I will call it the "formal will". 3 The deceased was admitted to hospital on 25 April 2008 and died there on 22 May 2008. After his death, there was found on the dining room table in the deceased's home a spiral bound notebook, about A5 in size, in which the deceased had written in his own handwriting. The writing, which occupies two and a half pages, is not dated but it is a fair inference from the evidence of the deceased's daughter and his ex-wife that it was written by the deceased between 24 March and 25 April 2008. There was no one else living in the deceased's home at that time. There are no words in the document which expressly state that the deceased intended it to operate as a will or codicil. The document has been referred to as the "informal codicil" and for convenience I will continue to refer to it thus. 4 The Plaintiff seeks a grant to him in solemn form of the formal will and a declaration, pursuant to s 8 Succession Act 2006 (NSW), that the informal codicil constitutes a valid codicil to the formal will. All beneficiaries under the formal will and the informal codicil, being six of deceased's eight children, have been given notice of these proceedings. Only one appears to oppose the declaration as to the validity of the informal codicil and her solicitors have provided written submissions. All beneficiaries consent to the matter being dealt with in Chambers. 5 The facts in addition to those which I have already noted are very sparse and are not in contest. 6 In October 2007 the deceased said to a solicitor in the Plaintiff's office that he intended to change the formal will. He did not say what changes he wished to make. He never asked the solicitor, with whom he had dealt for many years, to take instructions for a new will or a codicil. 7 One of the deceased's daughters, Kanisa (also known as Alicia and, familiarly, as PeeWee) received nothing under the formal will. The evidence is that over the years she was "in and out of favour" with the deceased. However, the evidence suggests that there was a reconciliation between the deceased and this daughter before the deceased's death. I accept that he expressed an intention to include her in his will. 8 The deceased was a successful company director and was obviously well acquainted with business affairs. I infer that he would have appreciated that it was highly advisable to have a solicitor assist him to change his will. Because of the size of his estate and his long term dealings with the Plaintiff and his firm, I infer that the deceased would have had no difficulty, in ordinary circumstances, in contacting the Plaintiff or his firm between October 2007 and April 2008 if he had wished to give instructions for a new will or a codicil. 9 The informal codicil commences without preamble or explanation thus: "Lyn & Mark NIL Bernice, her painting, also paintings of Paul, Adrian and Raquel to be sent to each." 10 Then there follows a list of personal items of relatively little value. At the conclusion of the list are the words "Bernice also receives A$250,000". It should be noted that under the formal will Bernice receives UK₤250,000 and a fifth of residue. 11 On the next line of the document appears "Paul", followed by a list of personal items amongst which appear the words "A$500,000 + family coat of arms" and then more personal items. Under the formal will Paul receives UK₤250,000 and a fifth of residue. 12 On the next line appears "Adrian As above" and a list of personal items amongst which are the words "A$250,000". Under the formal will Adrian receives UK₤250,000 and a fifth of residue. There appears to be some repetition in references to paintings. 13 There is a space of one line and then the words: "Raquel to received Leather products same as Bernice plus her portrait. In addition she is to receive A$400,000 + 10 paintings from my home". Under the formal will Raquel receives UK₤25,000 and a fifth of residue. 14 Then follows: "Jomphol (who is a son of the deceased) you have received so much but never enough I bequeath you A$500,000. You liked my leather jackets, black & red (2). There may be other clothes that Paul cannot use. You are welcome after Paul has helped himself." 15 Then follow the words: "PeeWee (Kanisa) Well kid, last but not least. I leave you A$500,000 and [undecipherable] furniture, fixtures, fittings + 3 4 paintings". 16 On the next page appears: "Gold. To be put into 6 piles. Gems to be valued and divied as evenly as possible between all. My watch collection to be divided between the three sons on a value basis. The ladies gold watch to go to Bernice." 17 On a new line appears: "The balance of value above what has been bequeathed after costs to be shared on an equal basis between Bernice Paul Adrian, Raquel, Kim and Alicia (6)". 18 There is nothing further written in the notebook. 19 It will be seen that the informal codicil gives expression to the deceased's stated intention of including Kanisa ("PeeWee"). 20 The question is purely one of fact: am I satisfied that the deceased intended the informal codicil, though not executed as a will, to form an immediately effective alteration to the formal will: In the estate of Masters (dec'd); Hill v Plummer (1994) 33 NSWLR 446, at 449 per Kirby P and at 466 per Priestley JA. 21 There are two possibilities. The first, for which Bernice contends, is that the deceased wrote the document merely as an aide memoire, or draft, of instructions which he might have wished to give his solicitors for the alteration of the formal will. If this is so, then it may be assumed that the deceased had no intention that any alteration of the formal will should be effective until embodied in a formally executed codicil. The second possibility, for which Kanisa contends, is that the deceased intended that the informal codicil be given testamentary effect even though he must have realised that it had not been executed formally. 22 I am satisfied that the second possibility is correct. It is true that the deceased had the opportunity to instruct his solicitors to prepare a formal codicil. It is true also that the deceased did not write anything at the commencement of the document to show that he intended it to have immediate testamentary effect. The document in part reads like an aide memoire in that it lists minor personal items that the testator would like the relevant beneficiary to have although it does not always make a gift of those items in so many words. If the document had contained no more than such lists I could not have concluded that it was anything more than a draft or an aide memoire. However, when the deceased came to deal with Jomphol and Alicia (Kanisa) it is very clear that he was addressing each of them directly. He intended Jomphol to read the document because he admonished Jomphol about his past conduct. Then, despite the admonition, the testator immediately made an effective disposition in the language of will-making: "I bequeath you A$500,000". 23 Likewise, the deceased clearly intended Kanisa to read and understand what he had written to her. As with Jomphol, he expressed himself in words of immediate gift in the language of will-making: "I leave you A$500,000", etc. 24 In the final paragraph, the deceased again uses the formal language of will-making, i.e. "bequeath" to refer to the specific dispositions which, he suggests, have been made earlier in the document. He then directs that the "balance of value" is to be divided equally between six of his children, including Kanisa. 25 I consider it to be of significance that the notebook containing the informal codicil was left by the deceased on the dining table, where it would doubtless be seen immediately, rather than left amongst other papers in some less visible or accessible place. As I have noted, in the weeks before he was taken to hospital the deceased was living alone in his home. There was nobody to whom he could easily give the informal codicil for safe keeping. It is highly possible, if not probable, that the deceased, realising that he would have to go to hospital very soon and that he might not have the opportunity of instructing his solicitors to draw a formal codicil, decided to write down his testamentary intentions in his notebook and leave it where it would easily be seen so that it could be given effect. 26 The informal codicil certainly contains vague terms as to the identity of various personal items to be given to various beneficiaries. This vagueness may give rise to problems of construction. However, there is nothing in the document as a whole to suggest that it is merely a rough draft or notes of instructions to be given to a solicitor. The document is written fluently and without multiple crossings out or insertions. Indeed, the deceased seems to have made an effort to control shaky handwriting and to write legibly. 27 For these reasons, I am satisfied that the deceased intended that the informal codicil form an alteration to the formal will. Both the formal will and the informal codicil will be admitted to probate. The proceedings are remitted to the Registrar to perfect the grant. – oOo –