McCann v McCann; Estate of Michael Robert McCann [2013] NSWSC 78

Supreme Court New South Wales

Medium Neutral Citation: McCann v McCann; Estate of Michael Robert McCann [2013] NSWSC 78 Hearing dates: 29 and 30 January 2013 Decision date: 30 January 2013 Jurisdiction: Equity Division - Probate List Before: White J Decision: Counsel for the plaintiff to bring in short minutes of order consistent with reasons. Catchwords: WILLS, PROBATE AND ADMINISTRATION - validity of informal testamentary notes under Succession Act 2006 - whether deceased intended informal document to form part of a will - whether party disentitled from taking a grant of letters of administration - application of Briginshaw standard of proof to allegation of destruction of a will Legislation Cited: Succession Act 2006 Probate and Administration Act1898 Civil Procedure Act 2005 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Gertsch v Roberts; Estate of Gertsch (1993) 35 NSWLR 631 Texts Cited: Mason and Handler, Succession Law and Practice in New South Wales Category: Principal judgment Parties: Ranita McCann (1st Plaintiff) David Griffiths (2nd Plaintiff) Janet (Jyana) McCann (Defendant) Representation: Counsel: J Heazlewood (Plaintiffs) In Person (Defendant) Solicitors: David Griffiths Lawyers (Plaintiffs) File Number(s): 2010/390283 2011/344986

Judgment 1HIS HONOUR: These proceedings concern the estate of Michael Robert McCann who died on or about 18 August 2010 aged 50. Mr McCann had not married. He was survived by his daughter Ranita McCann, by his sister Janet McCann (to whom I will refer as Jyana), by five brothers and his father. The deceased had been in a de facto relationship with a Vanessa Canavan, but that relationship had ceased in the early 1990s. Ranita McCann was their child. She was born in 1990. No will of the deceased has been located. 2In these reasons I will refer to Ms Ranita McCann and Ms Jyana McCann by their first names intending no disrespect, but for ease of comprehension. 3On 24 August 2010, Ranita found amongst the deceased's possessions an informal handwritten document in the deceased's hand. It is dated August 1, 2010. The note is unsigned. It states the deceased's name (M McCann), and his address, and then reads as follows: "ALL MY ASSETS ARE TO BE DEVIDED UP AS FOLLOWS $ 20,000 TO MY SISTER JANA ALL THE REST OF MY ASSETS TO GO TO MY DAUGHTER RANITA MY ASSETS ARE $75,000 FROM MY BROTHER WHO WAS ENTRUSTUSTED WITH AN ENHERITENCE. TO GO TO RANITA. $20.000 FROM MY TO SISTER ENVESTMENT ACCOUNT WITH ING TOTAL $50000 ALL OTHER MONEY TO MY DAUGHTER RANITA. [sic]" 4Ranita seeks a grant of letters of administration of the deceased's estate on intestacy. She submits that the note dated August 1, 2010 was not intended by the deceased to form his will. If it is declared that the deceased intended the informal document to form his will, she seeks a grant of letters of administration with that document annexed. Jyana's principal contention is also that the deceased did not intend the informal document to form his will. She contends that it should be found that the deceased had made a proper will, that is, one duly signed and witnessed. She submits that it should be inferred that the will of the deceased may not benefit Ranita and that Ranita, in the company of her maternal aunt and uncle, Mr and Mrs Norris, destroyed that will. Jyana makes a number of other claims. She contends that Ranita is disentitled by what is said to be her improper conduct from obtaining a grant of letters of administration. She also contends that Ranita has improperly taken possession of what is said to be a substantial asset of the estate, and has improperly commenced litigation against the deceased's brother, David. She says that Ranita without legal authority took possession of the deceased's chattels. She also contends that Ranita improperly took possession of chattels that belonged to her and seeks the return of those chattels. She also seeks a declaration in relation to the construction or maintenance of a grave for the deceased. 5The two principal questions are inter-related. They are whether I should find that the deceased did leave a will other than the informal testamentary note dated August 1, 2010, and if so whether I should find that Ranita, with or without the assistance of Mr and Mrs Norris, has destroyed that document. The other principal question is whether the informal document should be declared to be the deceased's will pursuant to s 8 of the Succession Act 2006. That section provides: "8 When may the Court dispense with the requirements for execution, alteration or revocation of wills? (cf WPA 18A) (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)." 6There is evidence that the deceased had made a will. Mrs Norris deposed that on Christmas Day in 2009 the deceased said to her words to the effect, "My will is all sorted." She gave evidence that the deceased made that statement in the context of general discussions about wills as her uncle had recently died without leaving a will and this caused many problems for the family. The deceased's landlady, Mrs Valerie Jensen, gave evidence that she discussed wills with the deceased on a number of occasions and about six months before he died, the deceased said to her words to the effect, "Yes I do have a will". This was in the context of her having said to him that he should make sure that he had a proper will, and the deceased's then saying that he had got everything sorted out and that he did have a will. 7The deceased's brother, David McCann, deposed that about six to eight weeks before the deceased's death, that is, about June 2010, he had a conversation with his brother in which the deceased said to him words to the effect, "David have you got a will?", and he replied, "Yes I have. Have you got a will?", and the deceased responded, "Yes of course. I've got you covered in mine. I just want to make sure you have me covered in yours." David then said, "I have taken everything into account if I die in relation to your loan to me to help me out, your [sic] fully covered." The deceased responded by saying, amongst other things, that that took the weight off his shoulders. 8Jyana McCann gave evidence that in early August the deceased commented to her that, "I've changed my will. I had to. I want to get things straight." Jyana McCann submits that I should find that at this time it was the deceased's intention not to make provision for his daughter because at that time he was experiencing doubts as to his paternity. The evidence would not warrant such a conclusion. The informal document of August 1 is contrary to that. I accept the evidence which I have recited of the statements made by the deceased that indicate that he had made a will. I can see no reason in the context in which those statements were made why the deceased might have not told the whole truth. In some cases one might infer that a deceased person would not be wholly frank about his or her testamentary dispositions, so as to deflect inquiry. But nothing of that kind appears in this case. The context in which the questions about a will were raised would indicate that if the deceased did not have a will, he would have said so. Instead, he said to the contrary. Except for the informal note, no such document has been found. I am asked to infer that the reason why no such document has been found is that it has been destroyed by Ranita, or her maternal aunt and uncle. There is no direct evidence of that. They each deny having destroyed a will. They each deny having found any document containing a statement of the deceased's testamentary intentions other than the one sheet of paper, the text of which I have set out at para [3] above. The allegation made against them is a serious allegation of having committed a serious criminal offence. Whilst the civil standard of proof applies, namely that the case must be proved on the balance of probabilities, in applying that standard, I must take into account amongst other things the gravity of the matters alleged. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362, Dixon J said: "... when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. ... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 9Here I am asked to infer that the will was destroyed after the deceased's death from the following matters, as I understood the submissions made for Jyana McCann. First, there was friction between members of the deceased's family and members of his former de facto partner's family. The deceased had not had custody of Ranita. There was litigation in the Family Court in the 1990s between him and his de facto partner, Ranita's mother, which was the cause of upset and friction. This, as I understand it, is said to provide a motive for the destruction of a will which might have made substantial provision for the deceased's family other than his daughter. 10Secondly, Jyana McCann points to the circumstances in which Ranita entered the deceased's house and took possession of documents without consultation with Jyana, and it was said without any legal right. The circumstances of the deceased's death were distressing. He died by his own hand. The police were involved and Ranita, with Mr and Mrs Norris, drove from the South Coast to the deceased's house in Warriewood without informing Jyana that they intended to go through his belongings. It was said that without at that stage having obtained a grant of administration, even a temporary grant, they had no right to do so. It is unnecessary in these reasons to form any view about the correctness of that proposition, which could turn on the somewhat vexed interpretation of ss 44 and 61 of the Probate and Administration Act1898. Whether or not Ranita had the legal right to take that course, she believed that she did because she was the deceased's daughter. I would not infer from her exercise of what she believed to be her right, that she would not keep any document of importance that she found. The principal purpose of the visit was to see whether or not the deceased had left a will. The absence of prior consultation with Jyana speaks to the friction between the families, but would not, by itself at least, provide a basis for inferring destruction of documents. 11Then I am asked to infer that a will was destroyed from evidence that was given by Mr Jensen. Mr Jensen gave evidence that he let Ranita and Mr and Mrs Norris into the property to see if there was a will. He gave evidence that they told him that there was no will, but that they did find a note which left $20,000 to Jyana and the rest to his daughter. Mr Jensen said that he did not sight the note, but was told what the note said, and that he was shown a yellow ruled notepad with what was said to be the testamentary note at the top of the pad. He said that it looked as if there were some 20 pages in the notepad, but he could not tell from five feet away how many of the pages, if more than one, had been written on. There had been some other hearsay evidence that Mr Jensen had told others that he had been told, or had seen, that there were some three or four pages of handwritten testamentary notes that had been found by Ranita. He denied that in his oral evidence. The note that Ranita has produced is not on yellow paper and is not on a ruled page. Hence, it is said that I should infer that there was another testamentary document, namely the yellow notepad, which has not been produced. Ranita McCann and Mr and Mrs Norris gave evidence that they did not see anything on yellow paper and did not see a pad, and that the only document containing any statement of testamentary wishes was the single page which is on white paper. 12The next matter relied upon by Jyana for her contention that I should find that Ranita destroyed a will is that in her initial affidavit in support of an application for letters of administration, Ranita deposed as follows: "I believe that the deceased did not leave a will or document purporting to embody the testamentary intentions of the deceased." 13That was not true. Ranita did believe that the informal document she saw purported to embody the testamentary intentions of the deceased. It is clear that whether or not the document is a will and should be declared to be such, it expresses the deceased's testamentary intentions. 14Jyana relied on two other matters as supporting an inference of destruction. They arise from the application for letters of administration and from dealings with the estate. It is said that the inventory of property attached to the application for administration is inaccurate and that assets of the estate are not recorded. It is also said that without any grant Ranita has taken possession of an asset of the deceased, namely, as I understand the evidence, a superannuation benefit. I think it is submitted that in not properly describing the estate and in taking possession of an asset, I should infer that Ranita is determined to seize possession of the deceased's property whether entitled to it or not. I would not draw any such inference from those matters. It is not established that the statement of assets was not accurate. It has not been established that the superannuation benefit was an asset of the estate. Rather, the evidence is that it was paid directly to Ranita as a dependent by the superannuation trustee without ever forming part of the deceased's estate. In any event, I would not regard those matters as indicating a likelihood of a will having been in existence, but having been destroyed. 15The fundamental difficulty with the contention that the will was destroyed is that if that had been done, it is quite unlikely that Ranita would not have also destroyed the informal note. But she did not. She gave it to her solicitor, Mr David Griffiths, on 27 August 2010. If she was prepared to commit a crime in order to inherit, then it is quite improbable that she would have destroyed the will, but not that informal note. But I do not draw any inference that Ranita was prepared to commit any crime. The fact that her original affidavit was wrong does not lead to that inference. The affidavit was prepared for her by her solicitor. Her solicitor mistakenly took the view that because he considered that the document was not a testamentary document, its existence did not have to be disclosed. Mr Griffiths took that view because of the form the document took and the fact that it was unsigned. The form of the document certainly raises a serious doubt as to whether a declaration could be made under s 8 of the Succession Act that it was intended to form the deceased's will. Nonetheless, it was incumbent on Ranita and on her solicitor to have disclosed the document. But I do not draw an adverse inference against Ranita's credit for having acted as she did on legal advice. 16As to Mr Jensen's evidence that the note he saw was on yellow ruled paper, in the face of contradictory evidence of Mr and Mrs Norris and Ranita, I am not satisfied that that was so. It is not a question of whether Mr Jensen had any motive for lying about this matter. I do not infer that he was lying, simply that he was mistaken. In coming to that conclusion, I take into account that his evidence of what he was told is consistent with the note that was produced as the informal note. That is to say, he was told that the deceased had left a document leaving $20,000 to Jyana and the rest to his daughter. If there were a different document containing the deceased's intentions on yellow ruled paper, then one would expect one of two things: either that he would have been told what appeared on the yellow ruled paper, or he would not have been shown yellow ruled paper at all. I think he was simply mistaken about that. 17I am certainly not satisfied that the deceased left a will which was destroyed by Ranita or Mr and Mrs Norris after his death. 18The question then is whether I should make a declaration under s 8 of the Succession Act that the deceased intended the informal document to form his will. 19It was common ground that the deceased was a tidy and fastidious man. The position of both parties, at least initially, is that it is unlikely that he intended the informal document to be his will because, being a meticulous person, he could be expected to make a will properly. Moreover, the document is in handwriting. It is unsigned. There are spelling errors in the document and it could be said that parts of it look more like a rough draft of his intentions, rather than a document which he intended to have a present operation as his will. If one had regard only to the text of the document and its physical form, I would not be satisfied that he intended it to operate as his will. 20However, there is a context to be considered. Part of that context is Mrs Jensen's evidence that from about April 2010, the deceased was very upset. She said that from the time the deceased had been to his grandmother's funeral which was some months before his own death, he was not the same person as he had been before. That change in personality might explain the physical form of the document. 21Next, there is the fact that the deceased had made a will, but no such will has been found. Having rejected the contention that the will was destroyed after the deceased's death, I am left with the presumption that it was destroyed by the deceased with the intention of revoking the will. That is a presumption of fact, varying in weight according to the circumstances. In the present case the presumption is confirmed, particularly from Jyana McCann's evidence that in early August 2010, her brother told her that he had changed his will. As the note bears the date August 1, 2010, I think it can be inferred that the deceased considered he had changed his will by preparing the note of his testamentary wishes that bears that date. If that was his intention, as I think it was, then the absence of a more formal will is explained. That is, I would infer that the deceased destroyed the earlier document with the intention of revoking it. 22For these reasons, notwithstanding the form of the document, I am satisfied that the deceased intended it to form his will and I will make a declaration accordingly. 23The estate is a small one. The principal beneficiary under the informal document is Ranita. Prima facie, she is entitled to a grant of letters of administration with the informal document annexed. It is said that no grant should be made to her because of disentitling conduct. I do not accept that submission. I do not consider that the untrue statement in her first affidavit seeking administration is a reason for withholding the grant because she was acting in accordance with the legal advice she then had. Nor do I consider her having entered into the deceased's property and having taken possession of his documents and goods is a reason for withholding the grant. If a grant is made it will operate retrospectively to the deceased's death (Probate and Administration Act, s 44). 24Another ground upon which it was said that Ranita should be disentitled from taking a grant was that she commenced legal proceedings only a couple of weeks after the deceased's death against David McCann for recovery of a debt arising from a loan made by the deceased to David McCann. In her statement of claim Ranita alleged that she was the administrator of the deceased's estate although no grant of administration had been made. Again, she was acting on legal advice. There may be an interesting question, which will fall for decision in those proceedings, as to whether the grant of administration would have retrospective effect. The reason the proceedings were commenced when they were was because Ranita's solicitor considered that a limitation period was about to expire. I do not consider that this is a reason for thinking that if appointed as administrator, Ranita would not properly carry out her duties. So far as Jyana's interest in the estate is concerned, Ranita's only obligation would be to pay the legacy provided for the will. 25A further question concerns the deceased's grave. Jyana says that no proper steps have been taken to provide a headstone for the grave or to properly finish the gravesite. She seeks orders that would compel proper steps to be taken in that regard. She seeks an order that the rights in respect of the gravesite be transferred or conveyed to her. I do not think there is any power to make such an order. The administrator is responsible for providing a proper grave for the deceased. Although I do not think it has any particular legal relevance, when the parties are considering the merits of the opposite parties, they should have regard to the fact that until a grant of administration is made, Ranita would have been in real doubt as to her legal entitlement to provide a proper grave and headstone. 26The other principal question concerns Jyana's complaint that her property was removed from the deceased's house. By her amended summons, she provided particulars of possessions which are said to be her possessions which were in the deceased's house and improperly removed. The item of most concern is a photo of Jyana's and the deceased's late mother, Dorothy McCann. Jyana claims the photo was removed by Ranita. Ranita says that she had not seen the photo, nor had any discussion about it. The evidence is, as I understand it, that the goods that were removed from the property were put into boxes and transferred to Ranita's mother's house in Genoa in Victoria. I understand Ranita's position now to be that if any of the goods claimed in paragraph 6 of Jyana's affidavit of 25 January 2013 are in her possession, custody or control, and I include in that if they are amongst the goods and boxes at Ranita's mother's house, then she will return such things to Jyana. 27Jyana, by her amended summons, seeks an order for damages. The evidence in relation to removal of goods does not justify any particular award of damages, although Jyana asserted that certain things had monetary value. There was no real evidence to establish what that money value was and I would refuse a claim for damages. However, in the light of the position taken by Ranita, I will make an order that Ranita deliver to Jyana any of the goods referred to in paragraph 6 of Jyana's affidavit of 25 January 2013 that may be in Ranita's possession, custody or control. 28Subject to hearing from the parties I think those reasons deal with all of the issues. If there is any issue with which I have not dealt, I will deal with it now and I will stand the matter over to a convenient date for counsel to bring in short minutes of order in accordance with these reasons and hear the parties on costs. [Counsel addressed.] 29There are remaining issues concerning a claim made against Mr David Griffiths which also concerns Ranita's authority to deal with assets of the estate. Jyana seeks a declaration that Mr Griffith had no legal authority to commence collecting the assets or to distribute assets to Ranita McCann until letters of administration had been granted. She also seeks a declaration that Mr Griffiths was negligent in collecting the assets or distributing the estate with no legal authority to do so. It would not be appropriate to make any such declarations, even if the ground for them were established. Such declarations would not resolve any claim for principal relief by way of injunction or damages. In any event, pursuant to s 44, the effect of the grant of administration which will be made will be that the deceased's assets will be taken to have become vested in Ranita as administrator from the deceased's death. There may well be a question as to whether that section authorised Ranita McCann to institute proceedings against David McCann (see the commentary to Mason and Handler, Succession Law and Practice in New South Wales, at [1213.2]; and particularly Gertsch v Roberts; Estate of Gertsch (1993) 35 NSWLR 631 at 635). But that is a question that will have to be decided in the proceedings between Ranita McCann and David McCann. 30Jyana also seeks orders that Mr Griffiths pay to the court appointed administrator of the estate or into court all moneys held on trust by him from the estate. As I understand Mr Griffiths' evidence, the estate moneys are held in bank accounts which are still in the name of the deceased. If any such assets are in Mr Griffiths' control, upon the making of the grant of letters of administration in favour of Ranita, he should transfer such assets to Ranita. I have no doubt that that is what he would do in any event. 31Orders for costs are also sought against Mr Griffiths. I will deal with all questions of costs including the application that has been foreshadowed pursuant to s 99 of the Civil Procedure Act 2005 when I deal with the costs of the proceedings on the next occasion. The claims for the substantive relief sought against Mr Griffiths should be dismissed. 32I direct that counsel for Ranita McCann bring in short minutes of order consistent with these reasons. I will stand the matter over to a convenient date to make those orders and to deal with questions of costs. 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: 13 February 2013