National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees, Late of Strathfield [2011] NSWSC 559

Supreme Court New South Wales

Medium Neutral Citation: National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees, Late of Strathfield [2011] NSWSC 559 Hearing dates: 1 June 2011 Decision date: 10 June 2011 Jurisdiction: Equity Division - Probate List Before: Windeyer AJ Decision: Declare the handwritten document on page 6 of Exhibit B is the last will of Nancy Elaine Lees, deceased Catchwords: SUCCESSION - whether informal document intended to be will at time written - whether intended to be will at later date Legislation Cited: Succession Act 2006 (NSW) Wills, Probate and Administration Act 1898 (NSW) Category: Principal judgment Parties: National Australia Trustees Ltd (plaintiff/cross-defendant) Janice Elizabeth Fazey (first defendant/first cross-claimant) John Derek Le Sage (second defendant/second cross-claimant) Malcolm Peter Le Sage (third cross-claimant) Representation: L Ellison SC (plaintiff/cross-defendant) M Meek SC (defendants/cross-claimants) Bartier Perry (plaintiff/cross-defendant) DibbsBarker Lawyers (defendants/cross-claimants) File Number(s): SC 2010/55158

Judgment 1The question for decision is whether an informal document should be admitted to probate as a will. Facts 2Nancy Elaine Lees ( the "Deceased" ) died on 17 August 2009. Her husband Arthur Edward Lees predeceased her, having died on 15 July 2009. 3The Deceased made a will on 17 May 1993, giving all her estate to her husband should he survive her by 30 days, in which event he was appointed the sole executor. If Mr Lees did not so survive her, the Deceased appointed National Australia Trustees Ltd as executor and trustee, gave items of personalty to the trustee with the request to distribute them in accordance with a written list, then directed that after payment of debts and testamentary expenses, the residue be divided into 12 equal parts and held for 12 named beneficiaries. The maiden name of Mrs Lees was Le Sage. The beneficiaries named were the Deceased's sister Evangeline Edith Le Sage ( "Evangeline" ); the five children of Evangeline, namely Ruth Ann Davies, Kevan Bruce Le Sage, Malcolm Peter Le Sage, David Kenneth Le Sage and John Derek Le Sage; two children of the Deceased's sister Katrina, namely Trina Ann Skarsmo and Janice Elizabeth Fazey ( "Janice" ); a brother and two sisters of Mr Lees; and a niece of Mr Lees. The will of Mr Lees was, in essence, a mirror will, giving everything to the Deceased on the same condition with the same substituted beneficiaries. The Deceased, having survived her husband for 32 days, took the whole of his estate. 4The plaintiff seeks a grant of probate on the 1993 will. 5The solicitor who acted for Mr and Mrs Lees was a Mr D Sharpe of Messrs DibbsBarker, formerly Dibbs Crowther & Osborne Solicitors. 6It is clear from notes made by the Deceased on a pad which went into evidence that she commenced dealing with her late husband's estate towards the end of July 2009. She made notes of contact with the Department of Veterans Affairs and the office of the coroner. She made contact with Mr Sharpe's office and ascertained he was on holidays. She ascertained that his firm was holding the two 1993 wills. On 29 July 2009, the Deceased made an appointment to see Mr Sharpe at 11am on 18 August 2009. On the same piece of paper as this information about the appointment is written, at the bottom of that page, is the following: "MY WILL - SUM OF MONEY TO EXECUTORS TO PAY FOR FUNERAL/CREMATION - NICHE PLAQUE etc." The next notepad page appears to list the names of people who had written to the Deceased after the death of Mr Lees. 7This is followed by a separate page written by the Deceased as follows: "MR SHARPE - MY WILL ALL MY REAL ESTATE SHARES, CASH DEPOSIT AND PERSONAL BELONGINGS ABSOLUTELY DIVIDED INTO 10 PARTS BETWEEN 8 BENEFICIARIES:- 1 EVANGELINE EDITH LE-SAGE - 1 PART 2 KEVAN BRUCE LE-SAGE - 1 PART 3 JOHN DEREK LE-SAGE - 1 PART 4 MALCOLM PETER LE-SAGE - 1 PART 5 DAVID KENNETH LE-SAGE - 1 PART 6 RUTH ANN DAVIES - 1 PART 7 BRONWYN ELLEN CARTER - 1 PART 8 JANICE ELIZABETH FAZEY - 3 PARTS 1. NO CONTESTING OF WILL 2. NO PRIOR CLAIM TO ACTIVATE 3. MY FUNERAL COSTS BORNE BY MY ESTATE 4. CREMATION ASHES PLACED IN 5. PRE-PAID NICHE AT ST ANDREW'S ANGLICAN CHURCH, STRATHFIELD NSW. 6. EXECUTORS JOINTLY - JANICE ELIZABETH FAZEY JOHN DEREK LE-SAGE MALCOLM PETER LE-SAGE" 8This is the document which, by cross-claim, the three persons named therein as executors seek to prove under s 8 of the Succession Act 2006 (NSW) . It can be seen that three of the beneficiaries on the Lees side and one on the Le Sage side have been deleted from those who would take under the 1993 will. 9On 6 August 2009, the Deceased told Mr Peter Pidgeon, the son of Mr Lees' sister Dorothy, that she was concerned she could not get her husband's probate underway as "our solicitor has been on holidays but I have made an appointment to see him on Tuesday 18 th ". 10One of the Deceased's nieces, Janice, had a conversation with the Deceased on about 11 August 2009. The Deceased had discussed matters concerning her husband's estate, and showed Janice and her daughter, Lauren Fazey ( "Lauren" ), into her bedroom to tell them where the safe was and that all the files could be taken to the solicitor if needed. Janice asked if she needed help to go to the appointment on 18 August 2009 but the Deceased said that was not necessary and she would be able to get to the solicitor on her own. 11The Deceased became ill and was admitted to Concord Hospital on 16 August 2009 at around about midday. Janice was advised and saw the Deceased in the emergency ward at Concord Hospital. In an affidavit sworn on 5 May 2010 Janice said that the following conversation took place: " Nancy Lees: I have a notebook in my bag. Can you see my belongings? Me: Yes. They have put everything together in a plastic bag. The bag is sitting under the bed. Nancy Lees: You have to make sure that you don't tear any pages off it and it remains in tact. These are my final wishes and you have to keep my appointment with the lawyer, David Sharpe, on Tuesday. Have you got a piece of paper and a pen? Me: Yes I do. Nancy Lees: David Sharpe is at DibbsBarker in Angel Place in the city. I can't remember the street number. Do you know where it is in the city? Me: Yes. I know where Angel Place is. I can find it. Nancy Lees: You need to take the notebook to David [Sharpe] on Tuesday and tell him that these are my final wishes. He will know what to do. You must keep my appointment. Me: I'm sure you will be able to keep the appointment yourself. Try to get some rest." 12Lauren, who is the daughter of Janice and a great-niece of the Deceased, said that she went to the hospital on 16 August 2009 with her mother. She said her mother was asked to complete some forms as she had been made next of kin. They saw the Deceased in the emergency department soon after her arrival at the hospital. In her affidavit sworn 3 May 2010, Lauren said the Deceased said to Janice "I have made you next of kin". She said the Deceased then said to Janice: " I want you to get a piece of paper and write this name down: 'David Sharpe, DibbsBarker, Pitt Street, Angel Place' I want you to keep that piece of paper." Later on in the evening, Lauren was present alone with the Deceased. Lauren said the following conversation took place: " Nancy: Lauren - I want you to remember the name David Sharpe and to make sure your mum keeps the piece of paper and my appointment with Mr Sharpe. I said: Yes Aunty Nancy Nancy: I also want you to remember where I showed you Arthur's papers were located in my room at home - his shares and paper work are in there. I said : Yes - I will remember." 13Hospital records and notes made in the emergency department record the following entry made at 14:30 on 16 August 2009 following a review of the Deceased by Dr Dwyer, an emergency department specialist: "Very poor prognostic outcome. ... - Discuss end of life issues with next of kin and patient" An entry made at 15:00 reads the following: "End of life issues discussed with patient and her next of kin [niece - JANICE FAZEY] Both understand poor prognosis. Patient wants to be made comfortable. Therefore, in the event of a cardiac arrest, Mrs Lees is not for CPR, ICU or MET Calls." 14At about 6:30pm that evening, the Deceased was transferred to Ward 5 from the emergency department. John Le Sage ( "John" ), a nephew of the Deceased, arrived at the hospital about that time. In his affidavit sworn 31 May 2010, John said the following conversation with the Deceased took place: "She said : John, I have made Jan next of kin. In my bag there is a notebook stating my wishes which must be carried out. This cannot be contested. I have made an appointment with David Sharpe, he is the solicitor I rang you about. I said: Yes, the solicitor David Sharpe - he is the one you asked me to take down his details and read back to you. She said: Yes. These are my wishes and they must be carried out. The notebook has to remain intact and be given to David Sharpe. I said: Nancy this is not the time to worry about this. Everything will be OK." Lauren was there at the same time. In her affidavit she said the conversation was as follows: " Nancy: John, I have told Jan I have made her next of kin and in my bag is a note book with what I want to happen. The pages are not to be torn off and she must take it to David Sharpe - you remember? John : Yes Nancy, I remember. I have the details written down at home. Nancy: I have made you, Jan and Malcolm executors. You must do as I ask and carry out my wishes. John: Yes Nancy, just try to get some rest." 15The Deceased died the following morning, namely 17 August 2009 at 3:35am. Law and Discussion 16Section 8 of the Succession Act is as follows: "(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." 17Although there are some differences from the wording in the old s 18A of the then Wills, Probate and Administration Act 1898 (NSW), the requirements so far as this case is concerned are the same. There must be a document which purports to state the testamentary intentions of the deceased and has not been executed in accordance with the requirements of the Succession Act; and the Court must be satisfied the deceased person intended it to form his or her will. The deceased may have that intention at the time the document is written or at some later time. 18Here, there is a document which at least appears to set out the testamentary intentions of the Deceased. The most difficult question here, as is usually the case, is whether the Deceased intended the document, without more, to form her will. Great care must be taken in determining this question. Many people write out proposals for their wills on pieces of paper headed "will" but often these are no more than present thoughts not testamentary intentions and certainly not intended to be wills. 19At the time the document was written out, I consider it was written as a list of instructions to Mr Sharpe for the preparation of a new will. The Deceased was familiar with wills as she hade made one before and Mr Sharpe was her solicitor. The note is addressed to him. It was not strongly contended by counsel that this was not the position. It is not clear when the note was written but it is more likely than not that it was written at some stage after 29 July 2009 and probably before 11 August 2009 when the Deceased was discussing with Janice the upcoming visit to the solicitor. The argument of Mr M Meek SC, for the cross-claimants, is that this position changed when the Deceased was told how ill she was and that her life was likely to end in the near future. In other words, it is put that she knew that she would not be leaving the hospital and therefore would not be able to keep the appointment which she had made with Mr Sharpe. The conversation the Deceased had with John while Lauren was present after she had been moved to Ward 5, particularly the statement "I have made you, Jan and Malcolm executors. You must do as I ask and carry out my wishes.", is significant. The question is whether it had the effect of turning a document containing last wishes to be given to Mr Sharpe for his further attention into a document intended to be a will. 20This is not an easy matter to decide. Changes to mirror wills after the death of either husband or wife appear to be unfair, but that is not the point. There can be no doubt, I think, that the document propounded, when written, at least sets out what the Deceased then intended to happen with her estate, although she intended a will to that effect to be drawn up by Mr Sharpe. The fact is, however, that testators often change their minds between the time when they write their instructions and the time when an actual will is executed. Mr Sharpe might have pointed out to the Deceased the change might have shown some lack respect for her late husband's wishes. But none of that really matters. The question really is whether, after the Deceased was told she had not long to live, she intended the page of instructions to be her will. I have taken into account the fact the document is not signed although at the end of the Deceased may not have been able to sign. I have come to the conclusion when she said "In my bag there is a notebook stating my wishes which must be carried out. This cannot be contested", she did at that stage have that intention and I so find. It follows that the informal document should be admitted to probate. 21This is a matter where the plaintiff quite properly required the validity of the informal document to be determined by the Court and where there was proper basis for propounding the formal 1993 will. In those circumstances the costs of all parties would come out of the estate, but in accordance with usual practice, it is only those of the cross-claimants which should be on the indemnity basis. If there are any submissions to the contrary I will hear them. 22Orders are as follows: (1)Declare, pursuant to s 8 of the Succession Act, the hand-written document headed "Mr Sharpe - My Will", being page 6 to Exhibit B, is the last will of Nancy Elaine Lees, deceased. (2)Order the probate of the said will be granted to Janice Elizabeth Fazey, John Derek Le Sage and Malcolm Peter Le Sage, the executors named in the said will. (3)Exhibit A and Exhibit B should be retained on the file. (4)Exhibits other than Exhibit A and Exhibit B may be returned.