James v Gaye & Ors; Estate of Lee [2012] NSWSC 857

Supreme Court New South Wales

Medium Neutral Citation: James v Gaye & Ors; Estate of Lee [2012] NSWSC 857 Hearing dates: In chambers Decision date: 31 July 2012 Jurisdiction: Equity Division - Probate List Before: White J Decision: Proceedings stood over to 13 August 2012 for further submissions. Catchwords: WILLS, PROBATE AND ADMINISTRATION - probate - application for grant of probate in solemn form - where deceased made multiple testamentary instruments - later informal testamentary instruments not duly executed as a will - question as to both intention and capacity of deceased at time of creating informal testamentary instruments - whether beneficiaries of informal instruments to be provided with opportunity to object to grant of probate to properly executed will Legislation Cited: Succession Act 2006 Succession Act 1996 (NSW) Cases Cited: Re Grey Smith [1978] VR 596 Wheatley v Edgar [2003] WASC 118; (2003) 4 AS TLR 1 Buckley v Buckley [2011] WASC 184 Category: Interlocutory applications Parties: Brian James (Plaintiff) Leila Barreto (1st Defendant) Orla Gaye (2nd Defendant) Norette Leahy (3rd Defendant) Catriona Horan (4th Defendant) Representation: Counsel: L Ellison SC (Plaintiff) Solicitors: Hilton King Lawyers (Plaintiff) Adam Stack & Co (Defendants) File Number(s): 2011/106561

Judgment 1HIS HONOUR: The plaintiff seeks the grant to him of probate in solemn form of a will dated 22 September 2000 of Phillip Michael Lee, deceased. 2Phillip Michael Lee died on 20 March 2011. He left a will dated 22 September 2000. That will revoked all testamentary dispositions. The will appointed the plaintiff as the deceased's executor and named the plaintiff as sole beneficiary of the deceased's estate. The due execution of that will is proved by the affidavit of an attesting witness. 3The deceased also made three other documents that were not duly executed as a will in accordance with the requirements of s 6 of the Succession Act 2006. In respect of each document a question might arise as to whether the Court should be satisfied that the deceased intended it to form his will, or intended it to form an alteration or revocation of his will (Succession Act 1996 (NSW), s 8). 4The first such document is dated 8 October 2010. It states: "This is the last will and testament of PHILLIP MICHAEL LEE. I leave all my possessions to Leila Barreto, Orla Gaye and Catriona Horan, Norette Leahy" 5This document was signed by the deceased and his signature was witnessed by one person. The named beneficiaries have filed appearances. However, they did not file a defence and none has sought to propound the instrument of 9 October 2010. 6The plaintiff deposes that at some time between 8 October 2010 and 9 December 2010 the deceased prepared another document that did not appoint an executor and left the deceased's whole estate to the plaintiff, except for a $5,000 legacy to a film-making organisation, the precise name of which the plaintiff said he could not recall. The plaintiff deposed that the legacy was provided in order for the legatee to make a film about the deceased. He deposed that this document was shredded in his presence by a clinical psychologist, Ms Esme Nasser. 7It appears from an affidavit of Kathryn Butcher that the document stated words to the effect that the deceased left $5,000 to an Aaron Burton to make a documentary about his life and left the rest of his estate to the plaintiff. Ms Butcher deposed that the document was signed by the deceased and by Aaron Burton and possibly by a Tosca Lloyd. There is no evidence that notice of these proceedings has been given to Aaron Burton. 8Esme Nasser deposes that in February 2011 she was shown a document by the plaintiff on which there was handwriting she did not recognise and that the plaintiff said it had been written by his flatmate (i.e. the deceased). To the best of her recollection it included a notation that the flatmate was leaving $5,000 to somebody (whose identity she does not recall) to make a movie about the deceased's life and that the deceased bequeathed the remainder of his estate to the plaintiff. Ms Nasser deposed that "Brian James was quite disturbed by the document because he had been repeatedly told by Phillip Lee that he was to be the sole beneficiary of his estate. I recall asking him: 'If it bothers you so much why don't you just get rid of it?' I said this because it did not appear to me to be a formal or legal document. It had no witnesses nor do I recall seeing a date. As a result the document was shredded in my office." 9The document was not revoked by being destroyed by the deceased. 10The plaintiff produced another document written and signed by the deceased dated 9 December 2010. This document was written on the back of a menu. It said: "To Brian James, all possesons [sic] 9th Dec 2010". The document was signed by the deceased. 11Kathryn Butcher deposed that in January 2011 the washing machine at the house at which the plaintiff and the deceased lived broke down and she took their washing to her house in Thirroul. While she was going through the deceased's jeans before washing them, she found the piece of paper and gave the original of it to the plaintiff. This was the piece of paper containing the handwriting of 9 December 2010. 12If no beneficiary who might take under any of the informal testamentary instruments seeks a declaration that any of those instruments forms the will, or the amendment or revocation of a will, of the deceased, then the plaintiff is entitled to a grant of probate in solemn form of the 2000 will. Whilst there is evidence that the deceased suffered a mental illness, there is no evidence to displace the presumption of capacity in 2000 arising from the due execution of that will. The deceased's then capacity is attested to by the solicitor who prepared the will. There would be questions concerning the deceased's capacity to make wills in 2010 as well as whether the deceased intended the documents to form his will. If none of the potential beneficiaries under an informal instrument seeks to propound it, there is no reason not to make a grant of probate in solemn form in respect of the 2000 will (Re Grey Smith [1978] VR 596; Wheatley v Edgar [2003] WASC 118; (2003) 4 AS TLR 1; Buckley v Buckley [2011] WASC 184). 13None of the beneficiaries named in the instrument dated 8 October 2010 claims a declaration or order made under s 8 of the Succession Act in relation to that document. However, Aaron Burton may have an interest under the now-destroyed document that is said to have left him a legacy. There is no evidence that Aaron Burton is aware of the creation of that document. 14Accordingly, I will stand the proceedings over to Monday, 13 August 2012 to hear submissions as to whether Aaron Burton (if he can be identified) should be served with a citation to see the proceedings. 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: 02 August 2012