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 Nan's (Grace) jewellery to Michael John O'Dell Liana Jaynne McCann ODELL Jewelery * Above jewelery Bagged & Named * House at [address suppressed] Kate Street, Narrabri – NOT TO BE SOLD Kids can live in it or rent it. 6. I GIVE the following gifts of money: from Life Insurance $50,000 to Michael John O'Dell $50,000 to Melissa Jaynne O'Dell $50,000 to Liana Jaynne McCann O'Dell 7. I GIVE the balance of my estate (both real and personal and wherever it may be located) ("my Remaining Estate") to: - Superannuation. * Any Bank accounts As to 1/3rd to son – M.J. ODell As to 1/3rd to daughter M.J. ODell As to 1/3rd to grandday (sic) Liana McCann O'Dell held in trust until she is 25 years old. 8. IF ANY BENEFICIARY does not survive me by at least 30 days but leaves descendants alive at the time of my death, the descendants of the deceased beneficiary will take per stirpes as tenants in common in equal shares the share of my estate that the deceased beneficiary would otherwise have taken. 9. I DECLARE that my Trustee will have the power, in addition to any other powers conferred by this Will or the law applicable to succession or trusts, to pay or apply, transfer, appropriate or hand over to any beneficiary any part of my estate in specie or in its actual state of investment in or towards satisfaction of such beneficiary's entitlements under this Will and whether with or without his or her consent or the consent of any other person. 10. I DECLARE that my Trustee will have the power to postpone the payment or giving to any beneficiary of a gift under this Will until such beneficiary has attained [blank] years of age. 11. MY TRUSTEE will have an absolute discretion in respect of all decisions made by my Trustee and may exercise such discretion even though my Trustee may derive a benefit from such discretion. My Trustee will not be laible for any loss or damage arising from the exercise or failure to exercise any power however the loss or damage may arise (other than dishonesty). My Trustee must be indemnified for all costs, expenses and losses incurred by my Trustee in respect of my estate. 12. IF MY TRUSTEE performs services for my estate, my Trustee is entitled to charge reasonable fees for performing those services and that charge takes priority over all gifts to beneficiaries. 13. I DIRECT that my body be buried and my wish for a funeral – is a (following coffin) – simple graveside service bouqet (sic) only. Dried Australian native flowers and when they lower me into the ground play Wish Me Luck as YOU WAVE Me Goodbye." 13 The first version was witnessed by Kathleen Foster and Leah Foster (Kathleen Foster's daughter). Kathleen Foster confirms that she is a witness to the first version and her signature appears on it. She does not recall the date the first version was executed other than that it was "somewhere between 3 years and 18 months prior to the [deceased's] death". Kathleen Foster has no recollection of any conversation leading to her witnessing the document nor does she recall seeing inside the first version. 14 Leah Foster confirms that she too is a witness to the first version. Leah Foster identifies her signature on the first version. Her belief is that the first version was made in late 2007. 15 Leah Foster's evidence causes the plaintiff to conclude that all proper formalities were probably not observed at the time of execution of the first version. She seeks by her amended summons a declaration that the first version is the last will of the deceased within the meaning of the Succession Act s 8. Leah Foster says that she attended at [address suppressed] Kate Street, Narrabri as Kathleen Foster said to her "Debbie wants you to sign a new will". Leah Foster says that when she attended the deceased had a green book with her and the deceased asked her in words to the effect "can you witness my will?" By the time this question was asked the deceased had already signed the will. Leah Foster does not remember whether her mother had already signed the document. She too did not see any of the inside parts of the will. 16 The combination of Kathleen and Leah Foster's evidence strongly suggests that the first version was first signed by the deceased at Kathleen Foster's house only in Kathleen Foster's presence. The first version was then signed by the other witness, Leah Foster. But Leah Foster was not present when either the deceased or Kathleen Foster signed. I find this is what occurred. Succession Act s 6(1)(b) was not complied with on execution of the first version because the deceased's signature was not made or acknowledged by the testator in the presence of both Leah and Kathleen Foster, present at the same time. 17 The circumstances of the execution of the first version, fell short only very slightly from the requirements of Succession Act, s 6(1). If this case were not complicated by the second and third versions, it would present a strong case that under Succession Act, s 8 that the first version was intended to form the deceased's will. I accept Mr McNally's submissions that the formalities associated with the execution of the first version allow me to be satisfied that the deceased intended it to form her will. 18 That there are actually two more versions of this testamentary document has only come to light in recent times. Originally the plaintiff sought to prove the third version of the document in its fully altered form. But the plaintiff engaged an expert, Michelle Novotny, to analyse the handwriting in the document. Ms Novotny's work revealed that three different ballpoint pens were used in the document, one for the first version and that there were two other versions each using a different pen. Michelle Novotny's evidence is not contested. Before looking at the two remaining versions of the will and in an attempt to understand them it is useful to look at the contemporaneous evidence that the deceased was contemplating making alterations to the first version. That evidence is the following. None of it was contested. I make findings in accordance with it. 19 Ms Hardman refers to a conversation with the deceased after 28 June 2005, the date of Ms Hardman's husband's death. Ms Hardman remembers speaking with the deceased whilst finalising her husband's estate. The deceased responded to her question "Do you have a will? with the statement "No I don't. I'll get a funeral plan". 20 About 6 months later the deceased telephoned Ms Hardman and said to her words to the effect "I've got a funeral plan and I've got a free Will". Some months later a conversation took place between the deceased and Janet Hardman to the following effect: "Deceased: 'I've made that Will'. Janet: 'Who did you put down as the executor'. Deceased: 'Oh, Maria. If something happens to Maria, I've put Kate'." 21 In early to mid 2007 Ms Hardman was at the deceased's home. On that occasion the deceased brought what she described as "her Will" to Ms Hardman and said to her "that's my Will". Ms Hardman did not read the Will but does recall that the document that she was shown was in book form. 22 On 29 November 2007 Ms Hardman further recalls the deceased saying to her words to the effect "I've changed my Will from Michael to Decoda". A short time after that she showed Ms Hardman the document and although Ms Hardman did not read it she recalls that there were some alterations written on it. 23 In about February 2008, Ms Hardman was at the home of the deceased. She observed that the deceased was in a distressed state. The deceased showed Ms Hardman a document, which was sitting on the coffee table on the lounge room. Ms Hardman noticed that it had more alterations on it this time. She read the document she was being shown and there was a conversation between Ms Hardman and the deceased about it to the following effect: "Ms Hardman: 'The Will is not any good'. Deceased: 'I've had enough. I've left everything to the grandkids'. Ms Hardman: 'That's not right but if that's what you want to do, OK'". 24 As best Ms Hardman can recall the document was in the form of the third version of the document. The Second Version 25 Ms Novotny's evidence reveals that a single ballpoint pen was used to make the first of two sets of alterations to the first version of the testamentary document. The only alterations were to clauses 5, 6, 7 and 13 of the first version. Clauses 5, 6, 7 and 13 of the second version are set out below. The alterations made in the second version are shaded with a grey background in the text:- "5. I give the following gifts of specific assets: Jewelery to Melissa Jaynne O'Dell Nan's (Grace) jewellery to Michael John O'Dell Liana Jaynne McCann ODELL Jewelery * Above jewelery Bagged & Named * House at 7 Kate Street, Narrabri – NOT TO BE SOLD can be rented Kids can live in it or rent it. money to be given evenly to LJOD, DJOD & invested till age 25. Mel can live in it – or LJO DJO 6. I give the following gifts of money: from Life Insurance $50,000 to Michael John O'Dell $100,000 – put any extra $50,000 1/3 to Melissa Jaynne O'Dell $50,000 1/3 $50,000 to Liana Jaynne McCann O'Dell $50,000 1/3 Decoda Jay O'Dell 7. I give the balance of my estate (both real and personal and wherever it may be located) ("my Remaining Estate") to: - Superannuation. * Any Bank accoun ts As to 1/3 rd to son – M.J. ODell Decoda Jay ODell As to 1/3 rd to daughter M.J. ODell As to 1/3 rd to grandday (sic) Liana Jaynne McCann O'Dell held in trust until she they is 25 years old. 13. I direct that my body be buried and my wish for a funeral – is a (following coffin) – simple graveside service bouqet (sic) only. Dried Australian native flowers and when they lower me into the ground play Wish Me Luck as YOU WAVE Me Goodbye – no or minimal bible readings." 26 The precise time at which the deceased made the alterations that constitute the second version is unclear. But it can be inferred that the second version was created on or probably shortly after 29 November 2007, the date of Decoda's birth. The second version refers to Decoda for the first time. The Third Version 27 The third version contains some crossing out of and additions to the earlier versions. It was probably made in about February 2008. That is the month that Ms Hardman says she last conversed with the deceased about her Will. I infer from the content of Ms Hardman's conversation with the deceased that the deceased was in the course of making alterations to this testamentary document. The changes that constitute the third version are in bold. Clauses 5, 6, 7 and 13 of the third version are set out below:- "5. I give the following gifts of specific assets: Jewelery to Melissa Jaynne O'Dell Nan's (Grace) jewellery to Michael John O'Dell Liana Jaynne McCann ODELL Jewelery * Above jewelery Bagged & Named * House at 7 Kate Street, Narrabri – NOT TO BE SOLD can be rented Kids can live in it or rent it. money to be given evenly to LJOD, DJOD & invested till age 25. Mel can live in it – or LJO DJO If sold invest money either of kids – Mick, Mel can live in. * Any – Super – other – finance & pay any debts 6. I give the following gifts of money: from Life Insurance DJO $50,000 Mick $50,000 to Michael John O'Dell $100,000 – put any extra $50,000 1/3 to Melissa Jaynne O'Dell $50,000 1/3 $50,000 to Liana Jaynne McCann O'Dell $50,000 1/3 Decoda Jay O'Dell 7. I give the balance of my estate (both real and personal and wherever it may be located) ("my Remaining Estate") to: - Superannuation. * Any Bank accoun ts As to 1/3 rd DOD Mick % to son – M.J. ODell Decoda Jay O'Dell As to 1/3 rd DOD % to daughter M.J. ODell As to 1/3 rd DOD % to grandday (sic) Liana Jaynne McCann O'Dell held in trust until she they is 25 years old – Decoda J – trust till 25 . 13. I direct that my body be buried and my wish for a funeral – is a (following coffin) – simple graveside service bouqet (sic) only. Dried Australian native flowers and when they lower me into the ground play Wish Me Luck as YOU WAVE Me Goodbye – no or minimal bible readings." 28 It is necessary to identify the principles that apply to the Court's analysis of these various versions of the document. Applicable Legal Principles 29 Succession Act s 8 provides as follows:- "8 When may the Court dispense with the requirements for execution, alteration or revocation of wills? (1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will—if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will—if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will—if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will. (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to: (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2). (5) This section applies to a document whether it came into existence within or outside the State." 30 The authorities relevant to s 8 Succession Act were principally decided under its predecessor provision, Probate and Administration Act 1898 (NSW) s 18A. Although their structures differ, there is no difference of substance between Probate and Administration Act 1898 s 18A and Succession Act s 8. The test in s 18A was whether the Court "is satisfied that the deceased person intended for the document to constitute the person's will". Under the Succession Act, the question is whether "the Court is satisfied that the person intended [the document] to form his or her will." The near identity of language allows the authorities in respect of the former Act to be used in respect of the later Act. 31 The matter for determination is whether the testator intended the informal document "to form" his will. The authorities on s 18A Probate and Administration Act 1898 identify three questions that must be asked upon such a determination. Powell JA explained in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56] these questions are: "(a) Is there a document? (b) Does the document embody the deceased's testamentary intention? (c) Did the deceased intend the document, without more, to operate as a will or codicil?" 32 In the present case the document is the document which may be the subject of a s 8 Succession Act order. The issues in these proceedings, as they usually do, relate to the second and third of Powell JA's questions in relation to the first version and then the second and third versions. 33 Succession Act s 8 should not be applied with too stringent a requirement of proof that a propounded document otherwise clearly embodying the testamentary intentions of the deceased does constitute his will: Re Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446 at 452V per Kirby P. It would be a mistake to regard the third element of Powell JA's elements as requiring evidence that the deceased consciously set his or her mind to the legal formalities for will making. It is now necessary to analyse the evidence. The law in relation to the application of Probate and Administration Acts 18A was by the Court of Appeal in Costa & Anor v The Public Trustee [2008] NSWCA 223. Probate and the First Version 34 The plaintiff propounds the first version on the basis that the alterations of the second and third versions do not have testamentary effect. The plaintiff says that the only reason not to admit the first version to probate would be if the second and third versions were admitted to probate under Succession Act, s 8. 35 But for the effect of the alterations in the second and third versions, I would be satisfied that the deceased intended the first version to form her Will (Succession Act, s 8(2)(a)) despite its execution not complying with Succession Act s 6(1)(b). This conclusion is to be inferred from: the formality of arranging the first version to be witnessed; the deceased described the contents of the green booklet as her "will" to others; and the first version is an intelligible testamentary instrument. The creation of the first version was inconsistent with the 1998 will substituting as a valid document. Clause 1 was revocation clause. I agree with the defendant's submission that the first version was sufficient to revoke the deceased's 1998 will. 36 The thrust of the plaintiff's submissions was that the alterations in the second and third versions, though probably made by the deceased, were not alterations that the deceased intended to constitute her will. The plaintiff supports this argument by pointing to: (1) the uncertainty created by these alterations; (2) to Ms Hardman's evidence of what the deceased said in February 2008 that the will as amended (by then probably to the third version) was "not any good", and: (3) that the second and third versions did not correspond with the deceased's stated testamentary intentions that she wished to leave "everything to the grandchildren" (the later versions, for example, still leave property to Melissa O'Dell). 37 The plaintiff's submissions can be accepted as correct. I agree that the deceased did not intend the alterations of the second and third versions to form her will. But the defendant takes the plaintiff's submissions even further. She says that the alterations of the second and third versions taken together not only leave real doubt about what the deceased intended about the alterations in so far as they might be dispositive of her estate. But the alterations also show the deceased's dissatisfaction with what she had earlier recorded. I agree with the defendant's further submission for the following reasons. 38 First, the deceased altered the first version twice. The deceased expressed her dissatisfaction with the first version by taking the trouble to alter it on separate occasions. This shows a degree of persistence in the idea that the first version did not conform with the deceased's then current testamentary intentions. 39 Second, the deceased's statement to Ms Hardman in February 2008, "I've had enough. I've left everything to the grandkids", said with the third version in her presence, shows her willingness to declare to others that the first version did not conform with her testamentary intentions. Although the deceased did not really engage with Ms Hardman's statement that "this will is not any good", the apparent forcefulness of what she said and the distress in her that Ms Hardman witnessed at the time are evidence of real disquiet about the first version. The first version did not leave everything to the grandchildren, Liana and Decoda. Although the third version left substantial parts of the estate to Michael and Melissa O'Dell this feature of the third version shows the ineffectiveness and incompleteness of the third version as an expression of the deceased's testamentary intention, without undermining the inference that the deceased was rejecting the first version. 40 Third, the change effected by the second version which altered the first version, was partly confirmed by the statement that the deceased made to Ms Hardman about that alteration on 29 November 2007, "I've changed my will from Michael to Decoda". That statement corresponds at least to the change to Clause 6 deleting a gift of $50,000 to Michael O'Dell from the proceeds of the deceased's life insurance policy and the addition to the Clause of a gift in the same sum to Decoda. The deceased describes what she did as a change to her "will". Although this alteration was ineffective it was a rejection of a significant component of the first version, confirmed to Ms Hardman, a person with whom the deceased seemed ready to share such information. 41 Fourth, the third version is difficult to follow. This might be said to found an inference that the deceased was really using the form of the document recording the first version to plan a more formal alteration to the first version without revoking it. That hypothesis, in my view, cannot be reconciled with the deceased's firm and separate statements to Ms Hardman about changing the first version. The difficulties in comprehending what is meant by the third version is because those changes are more akin to notes than the earlier version, for example "DJO $50,000 Mick all of super- other financial". But these are notes in my view that build on the second version as a rejection of the first version. Most of the changes of the second version survive into the third version. The subsisting theme in the deceased's conduct of the rejection of the first version is a strong one. Conclusions and Orders 42 For these reasons I agree with the argument the defendant advances. I am satisfied as to the following that:- (a) the first version revoked the 1998 will; (b) the alterations commenced by the second version and furthered by the third version are inconsistent with the first version remaining an effective disposition of the deceased's estate; and (c) by her making of the second and third version the deceased intended that the first version be a full revocation of the first version within Succession Act s 8(2)(c). 43 I direct the parties to bring in short minutes of order to give effect to these reasons. Short Minutes of Order 44 Later the same day the parties brought in short minutes of order which gave effect to my reasons: "The Court declares that: (1) Pursuant to section 8(2)(a) Succession Act 2006 the first version of the undated form of holograph will as set out in annexure A to the Amended Summons and more particularly identified in paragraph 12 of the reasons for judgment of His Honour Justice Slattery dated 25 June 2010 ('the first will'), executed by Deborah Joy O'Dell ('the Deceased'), was effective to: (a) Appoint the Plaintiff as executrix of the Deceased's estate; (b) Revoke the Deceased's will dated 19 November 1998; and (c) Dispose of the Deceased's estate. (2) Pursuant to section 8(2)(c) Succession Act 2006 the second and third versions of the undated form of holograph will as set out in annexure A to the amended summons and more particularly identified in paragraphs 25 and 27 of the reasons for judgment of His Honour Justice Slattery dated 25 June 2010, executed by the Deceased, was effective to fully revoke the dispositive provisions of the first will. (3) The estate of the Deceased is to be administered on intestacy. The Court orders that: (4) Probate of the first will annexed be granted to the Plaintiff. (5) The proceedings be remitted to the Registrar to complete the grant. (6) The costs of the Plaintiff on the indemnity basis and the Defendants on the party-party basis be paid or retained out of the estate. " ********** 25/06/2010 - cover sheet appearances incorrect - Paragraph(s) cover sheet 25/06/2010 - Agreed short minutes of order sent by the parties added to the end of judgment. - Paragraph(s) 44 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.