In the Estate of O'Dell [2010] NSWSC 678

New South Wales Supreme Court

CITATION : In the Estate of O'Dell [2010] NSWSC 678 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 21 June 2010

JUDGMENT DATE : 25 June 2010

JURISDICTION : Equity

JUDGMENT OF : Slattery J at 1

DECISION : See paragraph 42 of judgment

CATCHWORDS : SUCCESSION - Wills, probate and administration - the making of a will - testator executed a testamentary document with Succession Act s 6(1) - testator makes two subsequent sets of alterations to the testamentary document - the subsequent alterations displace any inference that the unaltered testamentary document was intended to form the deceased's will.

Probate and Administration Act 1898 (NSW) ss18, 18A LEGISLATION CITED : Succession Act 2006 (NSW) ss 6, 8, Sch 1 Supreme Court Rules 1970 (NSW) Part 78

CATEGORY : Principal judgment

Costa and Anor v the Public Trustee of NSW [2008] NSWCA 223 CASES CITED : Hatsatouris v Hatsatouris [2001] NSWCA 408 Re Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446

PARTIES : Plaintiff: Maria Cornish Defendant: Melissa Jaynne O'Dell

FILE NUMBER(S) : SC 2009/309381

COUNSEL : Plaintiff: Mr G McNally SC Defendant: Mr M Meek SC

SOLICITORS : Plaintiff: H J Palmer & Co Defendant: Bolster & Co

- 19 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

SLATTERY J

FRIDAY, 25 JUNE 2010

09/309381 IN THE ESTATE OF DEBORAH JOY O'DELL JUDGMENT 1 HIS HONOUR: Deborah Joy O'Dell, a nurse, of Kate Street, Narrabri, New South Wales died on 28 November 2008 at the age of 54. At some time between January 2005 and 25 November 2007 the deceased executed an undated form of holograph will appointing Maria Cornish, the plaintiff in these proceedings as her executrix. The deceased made two subsequent sets of alterations to the holograph document between 29 November 2007 and her death on 28 November 2008. The detail of those subsequent alterations is set out below. For convenience the original form of this document will be described as the "first version"; the form of the will after the first set of alterations was added will be described as "second version"; the form of the will after the second set of alterations was added will be described as "third version". 2 There is doubt as to whether the first version is witnessed in compliance with the formal requirements of Succession Act 2006, (NSW) s 6(1). The second and third versions of the document were not witnessed in conformity with the formal requirements of Succession Act, s 6(1). 3 The plaintiff identifies the real issue for determination in these proceedings is whether probate of the deceased's undated will in the form of the first version should not be granted because of the amendments made to it at a later date. This well describes the point at issue. 4 The deceased had two children, Melissa Jaynne O'Dell and Michael John O'Dell. Melissa O'Dell when served with notice of the proceedings, filed a notice of appearance and she thus became a defendant: Part 78 Rule 34H(1) Supreme Court Rules 1970 (NSW). 5 The plaintiff seeks probate of the first version. All three versions of the document are undated. Melissa O'Dell resists the plaintiff's application on the basis that the Court cannot be comfortably satisfied what the deceased intended regarding the final version of the testamentary document she executed by way of positive disposition. Melissa O'Dell submits the Court should be comfortably satisfied that various forms of crossing out or alteration to the document in the second and third versions express a level of general dissatisfaction with the content of the will and a real intention to change it. 6 In order to determine the matter in issue more background is required. Background 7 As the deceased died on 28 November 2008, these proceedings are governed by Succession Act s 8, rather than Probate and Administration Act 1898, s 18. Succession Act, s 8 applies to wills whether made before, on or after 1 March 2008, if a testator dies on or after that date: Succession Act, Schedule 1, Clause 3(3). 8 The deceased had two grandchildren. They are both children of Michael O'Dell. His two children are Liana Jaynne McCann O'Dell and Decoda Jay O'Dell, who was born on 29 November 2007. 9 The deceased made an earlier will on 19 November 1998 in which she gave the residue of her estate in equal shares to Melissa O'Dell and to Michael O'Dell, after providing specific gifts to Melissa O'Dell and Liana O'Dell. The current gross value of the deceased's estate is $593,144.91 and the net value is $512,098.35. 10 An inventory of property for probate purposes in summary was the following. " Property Estimated Value Kate Street, Narrabri $250,000.00 1/3 rd interest as tenant in common in Manning Street, Narrabri $70,000.00 Personal effects $2,000.00 Money in bank on deposit $1,438.12 Tower Australia life policy $200,000.00 Hasguard Supreannuation life insurance policy $ 43,528.31 Employee entitlements $ 100.00 $567,066.43" 11 It is now necessary to look at the evidence associated with the execution of each of the versions of the will. The First Version 12 The first version is set out below. The full text of the first version is reproduced. It is contained in and part of a green will kit (Exhibit 3). The only material alterations that the deceased made to the first version, in the second and third versions, were to clauses 5, 6, 7 and 13 of the document. When the second and third versions are set out, only clauses 5, 6, 7 and 13 are reproduced. "This and the succeeding 3 pages is the will shown and produced to Maria Cornish at the time of the swearing of her affidavit this 27 th day of May 2009 Last Will and Testament THIS IS THE LAST WILL AND TESTAMENT of me Deborah Joy O'Dell of [address suppressed] Kate St Narrabri NSW 2390 Australia 1. I REVOKE all prior wills and testamentary dispositions made by me and declare this to be my last Will and Testament. 5. I GIVE THE following gifts of specific assets: Jewelery to Melissa Jaynne O'Dell