Supreme Court New South Wales Medium Neutral Citation: Ackerley v Felton [2012] NSWSC 1468 Hearing dates: 1 November 2012 Decision date: 04 December 2012 Before: Young AJ Decision: 1. Declare that the document commencing "My will Kevin J Ackerley" dated 4 June 2007 is entitled to be admitted to probate. 2. Order that the court assigns the plaintiff as guardian of Corey Gates to take the grant of administration during the minority of Corey Gates for the latter's use and benefit. 3. Refer to the Registrar to complete the issue of letters of Administration cum testamento annexo durante minore aetate to the plaintiff limited until Corey Gates attains 18 years of age. 4. Refer to the Registrar as to whether the grant under s 41A of the Probate and Administration Act 1898 ought to be recalled. 5. Reserve questions of costs with the intent that the judge hearing the pending applications under the Family Provision Act 1982 in the estate of Kevin James Ackerley may deal with such costs when making orders in those proceedings. Catchwords: WILLS, PROBATE AND ADMINISTRATION - informal will - whether the document constitutes a will of the deceased person - whether the document embodies the deceased's real testamentary intentions - whether the deceased was of sound mind, memory and understanding at the time he executed the document- appointment of guardian for grant of will Legislation Cited: Family Provision Act 1982 Probate and Administration Act 1898 Succession Act 2005 Supreme Court Rules 1970 Cases Cited: Bailey v Bailey [1924] HCA 21; (1923) 34 CLR 558 Boughton v Knight (1873) LR 3 P & D 64 Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295 Dew v Clark (1826) 3 Add 79; 162 ER 410 Du Maurier v Wechsler [2001] NSWSC 34 Easter v Griffith (1995) 217 ALR 284 Estate of Hodges (1988) 14 NSWLR 698 King v Hudson [2009] NSWSC 1013 Nichols v Nichols (1814) 2 Phill Ecc 180; 161 ER 1113 Re Beech [1923] P 46 Re Knibbs [1962] 1 WLR 852; [1962] 2 All ER 829 Ryan v Kazacos (2001) 159 FLR 452 The Estate of Masters; Re Hill v Plummer (1994) 33 NSWLR 446 Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277 Wechsler v Du Maurier [2002] NSWCA 13 Whyte v Pollok [1882] 7 AC 400 Category: Principal judgment Parties: Darren Ackerley (Plaintiff) Charlene Felton (Defendant) Representation: S J Chapple (Plaintiff) D W Elliott (Defendant) Legal Aid Commission of NSW (Plaintiff) McIntosh Barr & Gordon (Defendant) File Number(s): SC296455 of 2008 Publication restriction: None Judgment 1These reasons concern the question as to whether a note found in the shirt pocket of the late Kevin Ackerley shortly after he died on 5 June 2007 should be admitted to probate as an informal will under s 18A of the Probate and Administration Act 1898. For convenience, and without intending any disrespect, I will refer to the deceased as "Kevin" and to other members of his family and his associates by their first names. 2There are a number of pieces of litigation involving the parties to the present proceedings. These include three applications under the Family Provision Act 1982. However, all I am to decide in the present proceedings is the question of the informal will and whether the plaintiff should be appointed cum testamento annexo minore aetate of Kevin's estate. 3I heard the proceedings on 1 November 2012. Mr S J Chapple of counsel appeared for the plaintiff, Darren (Kevin's younger brother), and Mr D W Elliott, of counsel, appeared for the defendant, Charlene. 4Kevin lived in the Lismore district in a house owned by Charlene who claims that she was Kevin's de facto wife at the time of his death. This is disputed by Darren. 5The paper found in Kevin's pocket at his death was torn from a pocket sized notebook and read as follows: "My will Kevin J Ackerley (sgd) K J Ackerley 4.6.2007 Will Everything coes to My Granson Coory Gate 'Becky's Boy No Service, to be put in ground, Charlene is not to go Nor Ryan I've got a shed at Wallmurrry in my name privet service Darren and Kym not to come 2 accounts at St george to go to Corrye Beck No 0407 xxxxxxx St Georges account my name And correy name My land in North Lismore to go to Correy + Murwillumbah land to go to Coorey Lot 46 xxxx Rd ¼ share Good by, Kevin Ackerley (Sgd) K J Ackerley" 6The deceased had a daughter Rebekkah (Becky). Becky is the mother of Corey Gates, who was born on 23 May 2002 and is now 10 years old. Kym is the deceased's sister. Ryan is Charlene's son. 7The relationship between Kevin and Charlene was not a smooth one. According to Charlene's Centrelink records, she was in a de facto relationship for seven months in 1995, separated in September 1995, but re-entered a de facto relationship in August 2004 until February 2005 and resumed de facto status in October 2006. 8It is a tad difficult to work out how Kevin spent the last two days of his life. 9On 4 June 2007, Kevin was living in North Lismore with Charlene and Charlene's father and son. 10According to Charlene's statement to the police to be tendered to the Coroner, on 4 June 2007, Kevin told her that he was depressed because he had forgotten Corey's birthday and that Becky had not brought Corey round to see him. She wrote: "Kevin was a bit mad about me not helping him on the computer with his spelling. I left the house to visit my sister because I told Kevin I didn't want to argue". 11However, Senior Constable Brooke Devine in her report wrote: On the morning of Monday the 4th June 2007 the nok (= next of kin, ie Charlene) and the deceased were involved in a verbal argument. The nok informed police that this argument involved their relationship and the possibility of the deceased undergoing a medical procedure in efforts to improve their relationship. The nok declined to specify the type of medical procedure. During the argument, the nok informed the deceased that undergoing the surgery would not guarantee that they would stay together. At this time, the deceased and nok argued further, with the deceased informing the nok that he would pack his bags and move out of the house. He also stated that he did not want to live any more, and had nothing to live for. The nok informed police that it is not unusual for the deceased to verbalise his intention to kill himself. She states that the deceased often makes similar threats without following through with them. The nok left the house about 10.00am in an attempt to calm down and have the deceased calm down. She visited her sister, a short distance away, and then returned to the house about 10:30am." 12The statements are consistent that, on Charlene's return to the house, Kevin was sitting at the kitchen table drinking wine. He said: "What does it matter anyway? I'll probably be dead in two hours anyway." Charlene says that she thought this was just one of his moods as he had said the same sort of thing previously. She again left the house and saw her sister (Dawn). 13Charlene and Dawn returned to the house about half an hour later. Kevin was affected by alcohol, he said he wanted to lie down. Charlene and Dawn said they thought he would sleep it off as had happened previously. Kevin went to his bedroom, fully clothed and went to sleep. 14Charlene says that during the afternoon, Kat, a friend of Kevin's called and spoke to him. Charlene says that Kat told her that Kevin felt sad about his relationship with Becky and Corey and that he loved Charlene. 15What happened after then is even more unclear. It would seem that Kevin, who had been on drugs earlier in his life, took too much of a drug and that is what caused his death. The police found a fresh needle mark on his arm after his death. However, it is unclear whether that in fact happened, or, of it did, Kevin intended to suicide or not. 16The women listened at his door from time to time. There was evidence that Charlene or Dawn heard him snoring about 8 pm and heard him breathing at 7 am on 5 June. When he was checked at 10 am, he was dead. 17Charlene was cross examined. Strangely, she answered "I can't remember" to almost all the significant questions. She was asked whether the medical procedure was "rhinoplasty or a nose job." The answer was "I can't remember". 18However, from the cross examination, it would appear that Kevin had packed his bags preparatory to leaving the house two days earlier and the bags had not been unpacked. She agreed that she and Kevin both thought that the reason why Becky and Corey had not visited the deceased was because Charlene would be at the house. 19Constable Devine's statement is more likely to be the accurate account of what happened that morning as she would have no reason to write what she did except that Charlene gave her the information recorded. The repeated "I can't remember" to the incident of the last 24 hours of the life of the man she claims was her de facto husband reinforces this approach. However, even if the argument was about the non visiting by Becky and Corey, Kevin would have been having negative feelings towards Charlene. 20I now need to turn to consideration of legal principles. 21As Kevin died before the relevant part of the Succession Act 2005 took effect, the case must be assessed under s 18A of the Probate and Administration Act 1898. 22That section provides in subs (1): A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person... if the court is satisfied that the deceased person intended the document to constitute the person's will ... 23In the Court of Appeal in The Estate of Masters; Re Hill v Plummer (1994) 33 NSWLR 446 (at 449) Kirby P held that in order to satisfy the requirements of s 18A of the Probate and Administration Act 1898 it must be shown: (1) The purported will must be in documentary form; (2) It must embody the testamentary intentions of the deceased; (3) Although the document has not been executed in accordance with statutory formality, it must nonetheless constitute "a will of the deceased person". 24In the instant case, prima facie, these three criteria appear to be satisfied. However, it is in contest: (a) whether Kevin really intended the document to be his will; (b) whether Kevin was of sound mind, memory and understanding at the time he executed the document. I will deal with each of these contentions in turn. (a) Whether Kevin really intended the document to be his will 25This contention really is that the document does not embody Kevin's real testamentary intentions. 26Charlene seeks to make the case that on many occasions in the past, Kevin has said he would commit suicide and would not be leaving her any property in his will. He was baiting her. On this occasion, he was trying the same trick, but accidentally overdosed so that he really did die. She argues that on the balance of probabilities, he only wrote the note as a furphy and never intended it should operate. 27In Whyte v Pollok [1882] 7 AC 400 (at 405) Lord Selborne said: I lay it down that it is, in my judgment, a proposition universally true that nothing can receive probate which was not intended to be a testamentary act by the testator. Of course, it my happen that something he did not originally intend to be a testamentary act was converted into a testamentary act by a subsequent and sufficient manifestation of intention on his part: but either at the time when the act was originally done or at some other time, he must, in a sufficient way, manifest his purpose that it should be a testamentary act. 28The court must thus be satisfied that at least at some point before he died, Kevin intended the paper to constitute his will. 29I need to deal with the onus of proof. The onus of proving a will is on the person who propounds it. In the case of a formal will, the fact that the testator has signed the document in the presence of two witnesses who have not noticed signs of incapacity is sufficient prima facie to discharge that burden (Bailey v Bailey [1924] HCA 21; (1923) 34 CLR 558). 30Where the case comes within s 18A, there is no such easy discharge of the propounder's burden of proof. However, in practice there is little difference as the court always takes account of the surrounding circumstances and watches closely facts raising suspicions. The propounder clearly bears the onus of proof. 31The present argument is one that is rarely raised. There are cases in the books such as Nichols v Nichols (1814) 2 Phill Ecc 180; 161 ER 1113 where the so called will has been made as a joke, but there are very few such reported cases. What there is mainly arises with nuncupative wills, (see, for example, Re Beech [1923] P 46; Re Knibbs [1962] 1 WLR 852; [1962] 2 All ER 829). 32In Nichols, it was put to the Probate Court that the deceased at dinner had written a short will as a demonstration as to how a drafter could be brief and still produce an effective will. The judge was shown a verbose will to the same effect including an obscure reference to a certain religious group and this helped him hold that the "will" in question was only made in jest and was not intended to be the testator's real will. However, he said that it was proper for the court to assess the evidence against admitting a document which, on its face, was a will, "with jealousy". 33The facts as set out above show that there was no doubt some ill feeling against Charlene held by the deceased in the day before his death. It matters not whether that had been building up over a period (the bags had been packed) or whether it arose (or exacerbated previous ill feeling) on 4 June 2007 either because of the deceased's sadness because of the lack of visits from his daughter and grandson or over his possible rhinoscopy operation. 34Significance must be accorded to the fact that Kevin entitled the document, "my will" and that the contents of the document shows that it was part of a package relevant to the aftermath of Kevin's death. Further, if Kevin intended to die, it is significant that the page was torn out of the notebook and was placed on his person. 35Further, I agree with Mr Chapple's submission that there is significance in the fact that the note ended "Good by" and was left in Kevin's pocket in that state: as previously noted, it was not destroyed. 36Against this is the evidence of Charlene that on previous occasions, Kevin had threatened suicide and excluding Charlene from benefit under his will. 37The principal evidence was that on two occasions after 2005, Kevin prepared notes purporting to be his will leaving his property to his daughter and waved them in front of Charlene. He subsequently tore them up. 38There are two inferences that can be drawn, one, that this was a method of taunting Charlene and two that Kevin actually created a testamentary document but then changed his mind. 39As at least impliedly noted earlier, I was not impressed with Charlene as a witness. Her "I can't remember" was unimpressive and her evidence conflicts with what Senior Constable Devine informed the Coroner she was told at the time of death. 40I accept that there may have been previous times when Kevin had threatened suicide and exclusion. However, the circumstances and precisely what occurred are not too clear from Charlene's affidavits. 41Mr Chapple submitted that it could not be said in the instant case that Kevin's intention was to taunt Charlene with the alleged will. It was clear he never even showed it to her despite the opportunity to do so late in the morning of 4 June 2007 when she returned to the house. 42I consider that the points raised by Mr Chapple are valid and significant and that the evidence is sufficient to satisfy me, and does satisfy me that Kevin intended the document to have testamentary effect. (b) Whether Kevin was of sound mind, memory and understanding at the time he executed the document 43As to the question of sound mind memory and understanding, it is clear from the authorities (see, for example, Estate of Hodges (1988) 14 NSWLR 698 and Ryan v Kazacos (2001) 159 FLR 452 at [50]) that the mere fact that the testator committed suicide shortly after making the alleged will is insufficient to show that the document was made without sound mind memory and understanding. 44Mr Elliott puts that this is a case of delusion. He says that Kevin suffered a delusion that he had some reason to ill treat and exclude from his affections and bounty his child and wife. He puts that there was indeed a loving and supportive relationship between Kevin and Charlene and the venom expressed in the handwritten document is irrational and unreasonable. The case against the document being the will of a testator of sound mind memory and understanding is exacerbated by the deceased's level of intoxication. 45Delusion in Probate Law was defined by Sir J Nicholl, Judge in Probate in Dew v Clark (1826) 3 Add 79 (at 90); 162 ER 410 (at 414). After noting the significant difference between "mere folly" and "phrensy" the learned judge said: Wherever the patient once conceives something extravagant to exist which has still no existence whatever but in his own heated imagination, and where ever at the same time, having once so conceived, he is incapable of being, or at least permanently reasoned out of that conception, such a patient is said to be under a delusion in a peculiar half technical sense of the term. 46More recently, and for us more authoritatively, the High Court said in Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295 (at 339) that a delusion in the present context was a "fixed and incorrigible belief which the victim could not be reasoned out of". 47I do not consider this to be a case of delusion. One must be very careful in using that term. In the usual case, if there is ever a "usual case" in this area of the law, a delusion is with respect to a state of imagined fact. The discussion by Gleeson CJ in Easter v Griffith (1995) 217 ALR 284 (at 291) (with which Handley JA agreed) shows that delusions may occur in other situations as well, but that with such other situations, "great care needs to be exercised before concluding that a harsh or unreasonable treatment of another amounts to a delusion." 48The authorities show that there is a vital and significant distinction between spite and prejudice on the one hand and a delusion on the other (Easter v Griffith at 290-291). 49In Boughton v Knight (1873) LR 3 P & D 64 (at 66), Sir James Hannan, Judge of the Probate Court directed the special jury in these terms: Now you will naturally expect from me a definition, or, at any rate an explanation of the legal meaning of the words "sound mind".....I must commence, however, by telling you what those words do not mean. They do not mean a perfectly balanced mind. If so, which of us would be competent to make a will? Such a mind would be free from all influence of prejudice, passion and pride. But the law does not say that a man is incapacitated from making a will if he proposes to make a disposition of his property moved by capricious, frivolous, mean or even bad motives.....Accordingly ...every one is left free to choose the person upon whom he will bestow his property after death....He may disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and we must give effect to his will, however much we may condemn the course he has pursued. 50In contradistinction, a material delusion which has influenced a testator's testamentary dispositions may invalidate a will or part thereof (Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277 and King v Hudson [2009] NSWSC 1013 at [77]). 51The law was well summed up by Ward J, as her Honour then was in King v Hudson at [92]. In particular, her Honour noted that mistaken belief is not a delusion (Du Maurier v Wechsler [2001] NSWSC 34 at [40] and affirmed on appeal in Wechsler v Du Maurier [2002] NSWCA 13). 52In my assessment, the evidence in the present case does not go further than to show that, on the day in question, Kevin was not well disposed towards Charlene and that that fact may have influenced his testamentary writing, but it is not shown that he was suffering from a delusion in the relevant sense. 53Accordingly, letters of administration cum testamento annexo minore aetate should be granted of the will. 54Darren asks that he be appointed guardian for the purpose of taking out the grant. Such a guardianship is that provided for in Rule 78.31 of the Supreme Court Rules 1970 which only operates for the purpose of taking a grant durante minore aetate (during the age of minority). Otherwise, Corey remains in his mother's care. 55A grant is usually made to the person with the largest interest in the estate. That person is Corey. He is only 10 years of age. 56If a person appoints a minor as his or her executor, the court makes a grant durante minore aetate and then makes a final grant when the minor comes of age. 57The reason why Darren seeks the grant is that Corey's mother, Becky, has made a Family Provision claim against the estate. This seems a good enough reason not to appoint Becky as the administrator. In my view, Darren is the next best person to act for Corey until he obtains his majority. 58Thus an order should be made appointing Darren as an assigned guardian to take the grant under Rule 78.29 of the Supreme Court Rules. 59There is already a s 41A Probate and Administration Act 1898 grant of administration to Charlene for the sole purpose of her presenting a Family Provision application. That grant appears now to be otiose. The Registrar should recall it unless it appears to him to be of some continuing value. 60The parties have agreed that I should not deal with orders for costs, but that they should be dealt with by the judge hearing the Family Provision Act proceedings. I agree that this is a sensible course. 61Accordingly, I make the following orders: 1. Declare that the document commencing "My will Kevin J Ackerley" dated 4 June 2007 is entitled to be admitted to probate. 2. Order that the court assigns the plaintiff as guardian of Corey Gates to take the grant of administration during the minority of Corey Gates for the latter's use and benefit. 3. Refer to the Registrar to complete the issue of letters of Administration cum testamento annexo durante minore aetate to the plaintiff limited until Corey Gates attains 18 years of age. 4. Refer to the Registrar as to whether the grant under s 41A of the Probate and Administration Act 1898 ought to be recalled. 5. Reserve questions of costs with the intent that the judge hearing the pending applications under the Family Provision Act 1982 in the estate of Kevin James Ackerley may deal with such costs when making orders in those 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: 04 December 2012