Estate of Puruto [2012] NSWSC 827

Supreme Court New South Wales

Medium Neutral Citation: Estate of Puruto [2012] NSWSC 827 Hearing dates: 2 July 2012 Decision date: 02 July 2012 Before: White J Decision: Refer to paras [38] and [39] of judgment. Catchwords: WILLS, PROBATE AND ADMINISTRATION - wills - construction and execution of will - whether deceased intended document containing instructions for the preparation of a will, without more, to form will - later will prepared by solicitors based on instructions in document - no evidence that deceased was aware later will had been prepared - deceased unable to sign prepared will - consideration of circumstances of the deceased at time will preparation document was prepared and signed - held deceased intended the document to form her will to extent it recorded instructions as to deposition of her estate, appointment of executors and funeral instructions Legislation Cited: Succession Act 2006 Cases Cited: In the Estate of Masters (dec'd); Hill v Plummer, Plummer v Hill (1994) 33 NSWLR 446 Oreski v Ikac [2008] WASCA 220 Hatsatouris v Hatsatouris [2001] NSWCA 408 In Re Application of Brown, the Estate of Springfield (1991) 23 NSWLR 535 In the Estate of Winsome Spiers, Thompson; Laurence v Gorman & Ors (Supreme Court of New South Wales, Simos J, 17 November 1995, BC9506746) Category: Principal judgment Parties: Tehoo Tuake (applicant) Representation: Counsel: K Le Lievre, solicitor Solicitors: Collins & Thompson File Number(s): 2010/87294

Judgment 1HIS HONOUR: These proceedings concern the estate of Emily Puruto who died on 23 September 2009 aged 51. Her gross estate has been estimated at $25,921.14 and the net estate after funeral expenses is $16,150.64. 2On 7 February 2012 the principal Registrar made a declaration that the court is not satisfied that the deceased intended the document dated 10 September 2009 to form her will. The registrar was exercising power under Part 78 rule 5(1)(g1) of the Supreme Court Rules to make a declaration whether the court was satisfied under section 8 of the Succession Act. The registrar had power to make that declaration as the estate does not exceed $30,000. 3This is an application under rule 49.19 of the Uniform Civil Procedure Rules to review the registrar's decision. 4The plaintiff was the sister of the deceased. She seeks a declaration that a document signed by the deceased and dated 10 September 2009 entitled "- PERSONAL PROFILE - CONFIDENTIAL INFORMATION FOR WILL PREPARATION" forms the deceased's will. 5It appears that the deceased had five children born between 1975 and 1985. She was estranged from her husband. Her husband survived her, but he died on 27 March 2011. 6In 2000 the deceased assumed guardianship of a niece called Daijah Jontel Ahsin who had been born on 30 January 2000. She raised her niece as her own child. 7On 5 September 2009 the deceased's mother, Mrs Poitirere Ahsin, received a call from her brother, Mr Tangitamaine Tuaneiti, that her daughter had collapsed and had been taken to Westmead Hospital. Mrs Ahsin resides in Auckland. She travelled to Sydney on 9 September 2009. Her daughter was discharged from hospital but Mrs Ahsin was told that there was nothing that could be done for her at the time. 8Her daughter knew that she was terminally ill. After they returned home a conversation took place between them to the following effect: "6. After she returned home I asked her: 'What about the funeral?' (or words to that effect). 7. Emily said words to the following effect: 'Mum, don't worry about my expenses. It's all taken care of. But I want Daijah to have that money that is in the Bank.' 8. I said to Emily words to the following effect: 'Well you had better see that you have a Will, so everything is in place.' 9. Emily said words to the following effect: 'I don't have a Will'. I then spoke with my brother, Tangitamaine." 9Mr Tangitamaine Tuaineiti is a retired pastor of the Seventh Day Adventist Church. On 10 September 2009 he and Pastor Rodney Woods from that church arrived at the deceased's home and they saw her alone. Pastor Woods brought his laptop computer which incorporated a printer. He deposed: "6. The other persons, apart from Emily Puruto and Pastor Tuaineiti, then left the room. Emily was seated on the lounge. Emily was able to answer my questions with regard to her assets, liabilities and moral and legal obligations to her family as I put to her. Despite explaining to Emily the implications of the Succession Act 2006 (NSW) she was determined that Daijah become the sole beneficiary in the Estate as she was in the greatest need. I typed her instructions into my computer. The computer generated the document [entitled]: Personal Profile Confidential Information for Will Preparation - 10/09/2009." 10The document in question is a template obviously intended for the purpose of obtaining information or instructions from which a will can be prepared. So much is apparent from the heading of the document and also from its format. On the first page of the document there is provision for information to be inserted in respect of both "Principal" and "Spouse". 11Mrs Emily Puruto's details were inserted under the column "Principal". This included her name, telephone number, address, occupation and of her having been separated in 1996 from her husband. The next section of the document was headed "PRINCIPAL EXECUTOR/s". Under this heading Pastor Woods inserted the following: "I appoint as my Executor and Trustee and referred to as my Trustee: (1) My sister TEHOO TUAKE of [xxxx xxxxxx xxxxx], Otara, Aukland [sic], New Zealand, (secretarial supervisor). (2) sub my uncle TANGITAMAINE TUAINEITI of [xx xxxxxx xxxxxxx], Guildford, New South Wales, (retired minister of religion)." 12The next section was headed "SPOUSE'S EXECUTOR/s". Under that heading there appears the sentence "I appoint as my Executor and Trustee and referred to as my Trustee." Nothing further has been added. 13The next section is headed "CHILDREN". Here there were inserted the names and dates of birth of the deceased's five children. Also included was "Daijah (feeding child) daughter of brother" and her date of birth of 30 January 2000. Daijah was described as the deceased's daughter. 14The next section was headed "GUARDIANSHIP", but this was not completed. 15The next section was headed "ASSETS & LIABILITIES". This was completed as was a summary of net worth. The only assets referred to were bank accounts said to have a value of $30,000 and other assets being a motor vehicle of $2,000. 16There then followed a heading "INSTRUCTIONS FOR THE WILL". 17Immediately under that was another heading "DISPOSITION OF THE ESTATE". Underneath that there was inserted the following: "whole estate to my daughter DAIJAH JONTEL AHSIN. (has taken Daijah on as own daughter from birth)". 18The next heading was "FUNERAL INSTRUCTIONS". This was completed as follows: "Buried - SDA minister presiding". 19The next heading was "OTHER MATTERS", and after this on the last page of the document there was inserted the following paragraph in larger type: "Other children are all working. testator advised them that she would include them in estate if they stayed in school. They have not. Therefore she has left them out. I have explained to her her legal obligations in the context of the [S]uccession [A]ct NSW and that should another child of hers make a claim against her estate it is likely to be upheld in a court of law. She is still determined to have her Will drafted as she has stated to me. I advised her that I would need her to sign a document stating that these matters have been explained to her and that although with this understanding she is still wanting her will drafted with Daijah taking the whole estate. Daijah is of greatest financial need." 20There then followed in smaller type what I infer is a pre-formatted part of the document. It states: "Please incorporate the above Instructions in a Will which I understand will be prepared under the supervision of a solicitor. I understand also that: 1. This places me under no obligation whatsoever. 2. I can change my Will at any time. 3. I am at liberty to discuss my Will with any one I choose. 4. The Will needs to be signed and witnessed correctly before becoming a valid legal document. It should also be correctly dated. I accept full responsibility for ensuring that these things are done. 5. To the best of my knowledge the above information is correct. 6. The information contained in this form will be kept confidential 7. No person has exercised any undue influence in regards to these instructions which have been written with my full knowledge, approval and understanding." 21Below this there was a space for the date and the signature. The deceased signed the document and it was dated 10 September 2009. 22After Pastor Woods had prepared this document and it had been signed by the deceased, he and Pastor Tuaineiti left the deceased's home. After they had gone the deceased said to her mother words to the following effect: "I have put Tehoo in charge of my estate." 23Tehoo is the plaintiff and the deceased's sister. So far as Mrs Ahsin can recall, the deceased did not say anything further about the will. 24Pastor Woods forwarded the document, or a copy of the document, signed by the deceased to a firm of solicitors in Melbourne. A few days later they sent to him a draft will prepared in accordance with the instructions recorded in the document signed by the deceased. It is not clear exactly when this draft will was received by Pastor Woods. He spoke to a Pastor Tuaineiti, who is the deceased's uncle, but was told that Emily's mind was confused. Accordingly, neither Pastor Woods, nor Pastor Tuaineiti attended on the deceased to have her sign the draft will. There is no evidence that she knew that a draft will had been prepared. 25Pastor Woods later stated that the Melbourne solicitors had advised him that it might be possible to lodge the instructions with the Supreme Court and to seek assistance from a local solicitor to this end. It may well be that those solicitors had in mind that an application might be made to the court for an order authorising the will to be made on the terms approved by the court in terms that accorded with the deceased's instructions if she lacked testamentary capacity. No such application was made. 26Section 8 of the Succession Act 2006 provides: "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." 27The learned principal registrar considered that the document dated 10 September 2009 appeared to be instructions only. He was not satisfied that the deceased did intend it to be operative as her will. On 7 February 2012 he stated: "The document itself appears to acknowledge that it is not intended to be a will - at page 4 it refers to being instructions, refers to a will being prepared from the instructions and contains explicit acknowledgement as to signing and witnessing of the will; also, it does not contain, as instructions intended to operate as interim or 'stop gap' wills often do, a recital that the instructions are to operate as a will until a more formal document can be prepared and properly witnessed." 28The critical question in the present case is whether the court should be satisfied that the deceased intended the document to form her will. For that requirement to be satisfied, the court must be satisfied that the deceased intended the document to have present operation as a will. As it is sometimes put, the deceased must have intended that without more, the document should have effect as her will (In the Estate of Masters (dec'd); Hill v Plummer, Plummer v Hill (1994) 33 NSWLR 446 at 454-455; Oreski v Ikac [2008] WASCA 220 at 52-55; Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]. 29In In Re Application of Brown, the Estate of Springfield (1991) 23 NSWLR 535 Powell J said at 540: "Where the subject document, even if seen, or read, by the relevant deceased, was, in truth no more than 'instructions' on or a note of 'instructions' for a will' I would, I believe, find it very difficult, indeed to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be [their] will." (citations omitted) 30A person may intend a particular document to operate as his or her will notwithstanding that it has not been properly executed as such and notwithstanding that he or she still has it in mind to make a duly executed will at a later point in time (In the Estate of Winsome Spiers, Thompson; Laurence v Gorman & Ors (Supreme Court of New South Wales, Simos J, 17 November 1995, BC9506746) (at [19]). 31The format of the document makes it clear that its general purpose is that the document in that format be used to obtain information or instructions for the future making of a will. This is confirmed by the heading of the document, that is, that it is to contain confidential information for will preparation. One would not infer from a mere perusal of the document that it was intended by the deceased to form her will. Indeed, the last page of the document containing the paragraphs quoted above contains statements by Pastor Woods and not statements of the deceased. Then the printed words at the conclusion of the document are explicit that the document contains instructions for a will yet to be prepared. Nonetheless other statements have been inserted into the pre-formatted template that are not expressed merely as instructions but of immediate operation. In particular the document states: "I appoint as my Executor and Trustee and referred to as my Trustee: (1) My sister TEHOO TUAKE of [xxxx xxxxxx xxxxx], Otara, Aukland [sic], New Zealand, (secretarial supervisor). (2) sub my uncle TANGITAMAINE TUAINEITI of [xx xxxxxx xxxxxxx], Guildford, New South Wales, (retired minister of religion)." 32The critical part of the document relates to the intended disposition of the estate. This comes under the heading "INSTRUCTIONS FOR THE WILL". The relevant statement is "Whole estate to my daughter DAIJAH JONTEL AHSIN." Those words could be instructions, but the language would also be apt if the deceased intended the words to be immediately operative as her will. 33The question is, what were the deceased's intentions concerning the document. The text of the document is not necessarily determinative of that question. It must be remembered that the deceased was gravely ill and she had been sent home to die. She may well have thought that in giving instructions and in having them recorded and immediately typed up and printed and then signing the document that she was thereby making a will. In the circumstances in which she was placed that may have been her intention even though a third party would not draw that inference from the terms of the document. Considering only the terms of the document, I would agree with the Registrar that it does not appear from the document that it was intended to form the deceased's will. But there is more that has to be taken into account. The deceased told her mother words to the effect "I have put Tehoo in charge of my estate"; not "I will put", nor "I have said Tehoo is to be in charge", but "I have put". Those words suggest that the deceased thought that she had done something that had immediate operation as her will. 34Section 8(3)(b) provides that the court may in addition to the document have regard to evidence of statements made by the deceased that are evidence of her testamentary intentions. That statement coupled with Pastor Woods' recording of her instructions about the appointment of an executor in similar terms indicates to me that the deceased thought that she was giving instructions for a will that Pastor Woods would then prepare and which would be operative on her signing the document. It is true that Pastor Woods gives evidence that the deceased read the document. However, no reference was made to statements numbered 1-7 at the end of the document. Nor did the deceased ask any questions about the end of the document, or refer to it. 35Both Pastor Woods and Pastor Tuaineiti have sworn affidavits in which they attest to their belief that the document was a testamentary document of the deceased. This was so notwithstanding that Pastor Woods sent the document to a firm of solicitors in order for that firm to prepare a will. If that was their belief it is not at all unlikely that it was also the deceased's belief. At least I can infer that there was nothing further said that might have caused the deceased to form a contrary intention. 36Accordingly, on balance, I am satisfied that the deceased did intend the document to form her will insofar as it contains statements of her instructions. The paragraph quoted above which is the first paragraph on the last page of the document is, as I have said, a statement made by Pastor Woods. It relates to his position as to what he explained to the deceased and as to what advice he gave her. It is not a statement by the deceased. Other parts of the document, in particular the uncompleted sentence under the heading "SPOUSE'S EXECUTOR/s" and the information recorded under the headings "CHILDREN" and "ASSETS & LIABILITIES" also do not appear to be statements that the deceased intended to operate as her will. 37I infer that she intended the document to operate as her will only to the extent that it recorded her instructions as to the disposition of her estate and the appointment of executors and insofar as it contained funeral instructions. However, insofar as the document does do that, I am satisfied that the deceased intended it to form her will. 38For these reasons and subject to any submissions that Mr Le Lierve may have for the plaintiff as to the precise form of the declaration and orders to be made, I propose to make the following declaration and orders: 1. Declare that Emily Puruto who died on 23 September 2009 (the deceased) intended the following parts of the document entitled, " - PERSONAL PROFILE - CONFIDENTIAL INFORMATION FOR WILL PREPARATION - 10/09/2009" to form her will, namely: (a) The first page of the document down to and including paragraph 2 under the heading "PRINCIPAL EXECUTOR/s"; (b) The third page of the document from the heading "DISPOSITION OF THE ESTATE" down to the sentence "Buried - SDA minister presiding"; (c) The date and signature. 2. Order that Probate of the said will be granted to the plaintiff. 3. Remit the proceedings to the registrar to complete the grant. 4. Make no order as to costs. 39I make that declaration and those orders. 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. Decision last updated: 23 July 2012