Supreme Court New South Wales Medium Neutral Citation: Suzanne Margaret Lawrence v Australian War Memorial [2014] NSWSC 757 Hearing dates: 3 March 2014 Decision date: 10 June 2014 Jurisdiction: Equity Division Before: Young AJA Decision: Probate of 2009 Will granted. Costs of all parties to the proceedings to be paid out of the deceased estate. Catchwords: SUCCESSION - deceased's duly executed last will was lost - whether lost will should be treated as destroyed and revoked - whether deceased therefore died intestate - whether probate of final will should be granted on terms identical to those recorded in the carbon copy of the will found amongst the deceased's possessions - doctrine of dependant relative revocation - whether doctrine has been excluded by Succession Act 2006 s 8(2) and s 15(1) - whether revocation of earlier duly executed will was conditional on replacement by a later operative will - whether earlier will can revived under the doctrine. Legislation Cited: Succession Act 2006 (NSW), s 8(2)(c), s10 (3)(c), s 15(1) Cases Cited: Adams v Southerden [1925] P 177 Allan v Morrison [1900] AC 604 Matter of Estate of Ausley 818 P.2d 1226 Baird v Huang; Estate of Robin Sydney Williams [2001] NSWSC 409 Cahill v Rhodes [2002] NSWSC 561 Cassie v Koumans [2007] NSWSC 481 Curley v Duff [1985) 2 NSWLR 716 In re Jones (Deceased) [1976] Ch 200 Re Ralston, Supreme Court of NSW, 12 September 1996, unreported Sheen v Sheen [2005] 6 WWR 627 Sugden v Lord St Leonards (1876) LR 1 PD 154 Tracey v Edwards (2000) 49 NSWLR 739 Texts Cited: FC Hutley, Dependant Relative Revocation and mistake" (1948) 22 ALJ 259 G L Certoma, "The Law of Succession in New South Wales" 4th ed 2010 Category: Principal judgment Parties: Suzanne Margaret Lawrence (plaintiff) Australian War Memorial (defendant) Representation: Counsel: Mr Ellison (plaintiffs) Mr Stretton (third defendants) Solicitors: Bartier Perry (plaintiffs) Hunter Flood (third defendants) File Number(s): 2012/255756 Publication restriction: None Judgment 1These pleadings concern the grant of administration in the estate of the late Allen James North who died on 1 June 2011 aged 83. Mr North who was called by everybody in the case "Jim" and I will, with respect, use that appellation, died never having married nor lived in a de facto relationship and without issue. His parents pre-deceased him. His only sibling died unmarried and childless in 1978. 2Jim was an accountant by profession. He worked from his residence on Anzac Parade Maroubra. 3He died alone. It would seem that the Police were called when he was not seen for a few days and they found him dead. His death was certified by a Coroner so it would seem that there were no suspicious circumstances. Indeed his diary for 2011, the last entry of which was made on the 24th of May 2011 shows that he was having trouble sleeping, so I assume that he just passed away of old age. Certainly his death certificate suggests this. 4The Police found in his premises a red folder, which was marked AJN's Will. That folder which is part of SML1 and CJ1 contained a series of wills made by Jim over the last six years of his life and I will refer to it in more detail later. 5Jim had a number of friends and cousins. In particular his cousin Mrs Suzanne Lawrence lived a couple of blocks away and called on him frequently and she and her husband William often had him for dinner. 6In the red folder there is a typed note which so far as relevant is as follows: If Jim North were to be "deceased" tomorrow 16th July 2005, and had failed to make a valid Will, he would be described as dying "Intestate". In that circumstance, the Probate on the Estate to be paid out by the Executors would be of the order of $; 1,250,000 which would leave approximately $3,000,000 to go to the relatives on an established government formula. 7The memorandum ended: So, the formal making of a detailed Will is imperative, and has, with guidance from Christopher Bone, been commenced. 8Christopher Bone was one of Jim's cousins he was also a Lawyer, being at the relevant time the Stipendiary Magistrate at Ballina. 9Very wisely, Mr Bone thought that will making was not his forte and asked a local solicitor in Ballina to assist Jim to prepare a first draft of a will which he sent to Jim to be finalised and hopefully executed. 10However, the first will that seems to have been created by Jim and which is in the file is one which bears date 27 May 2007 which he appears to have created himself. This will deals with the capital of the Estate by making a capital gift postponed for 21 years to the Sydney Maritime Museum and the Australian War Memorial. The income is split up into percentages and the usual way that Jim has approached his testamentary documents over the years was to name the same seven beneficiaries with one or two others added from time to time with a percentage against each name. In the 2007 Will his cousin Mrs Lawrence is given 25% and his friend Mrs James 20% with other percentages to other friends and relations. The evidence shows that that will was validly signed by Jim and also was witnessed by Mrs James' husband and son. 11The next documents of interest are apparently drafted in November and December 2008. These again make capital gifts after 15 years to the Sydney Flying Squadron and the Sydney Maritime Museum with the bulk to the Australian War Memorial though the percentages with respect to income has differed from the 2007 Will. In one of the drafts in the meantime, Christopher Bone's name appeared for a small amount but it vanished again in the 2008 drafts. 12I should note here that because Jim's father had fought at Gallipoli it would seem that the benefaction for the Australian War Memorial was a very significant matter in his life. The evidence shows that he had a great interest in the memorial and had donated some of his father's war medals, which had been gratefully accepted by the Australian War memorial. 13There is no doubt that one of these 2008 drafts was executed as a will and it was executed with William Lawrence and Suzanne Lawrence as witnesses. Mr and Mrs Lawrence thought that they witnessed this will in 2008 but after being shown Jim's 2009 diary they changed their evidence to witnessing it in July 2009. This is probably correct but it makes little difference, the only oddity being that a draft would be held by Jim for 6 or 7 months without it being properly executed when it would seem that he was almost obsessive in his desire to die testate and to continually review his will. 14The document which Mr and Mrs Lawrence witnessed is in the file but it is torn in halves. This normally would indicate that it had been revoked. What increases the probability of it having been revoked is that there is stapled to the back of the file a document headed "This is the last Will and Testament of me Allen James North" which has a 2009 date. The 2009 Will (as I will call it even though this is loose language) adopts the same scheme that is income is payable to nominated beneficiaries for 15 years and then the capital goes to the Sydney Maritime Museum and the Australian War Memorial. There is also a gift to the Sydney Flying Squadron of part of the income. The income is split into percentages between the 7 usual beneficiaries and the gift to the Sydney Flying Squadron, the percentages varying slightly for some beneficiaries as compared to previous drafts. 15The 2009 Will does contain a couple of typing errors. Australian War Memorial is typed as "Australian Was Memorial" and there is a bit of overtyping in the concluding formal wording. 16There is a carbon copy of the 2009 Will in the file, stamped with the word "copy". 17I should mention at this stage that Jim used an electronic type writer with a golf ball so that he would produce a clear original typed script and the copies would be carbon copies. This is significant because if there was a duly executed 2009 Will it is strange that what appears to be the original typed script is stapled to the file. 18I should also mention that the first defendant the Australian War Memorial is actually a corporation which was incorporated by the Australian War Memorial Act (Cth). 19Jim's Estate is approximately $5,000,000. 20As I mentioned earlier, Jim had no close relations when he died. An Aunt survived him but later died. Accordingly, if next of kin are to take, there are a number of more remote relations. These people were notified of the death and the present problem as to whether Jim died testate or intestate. Some of them joined together and filed a defence and cross claim alleging that Jim died intestate. 21I heard the proceedings on 3 April 2014, at which time Mr Lindsay Ellison SC appeared for the plaintiffs being the executors named in all the wills Mesdames Lawrence and James. Mr Dean Stretton of counsel appeared for the next of kin, the third defendants. The first defendant the Australian War Memorial and the second defendant Mesdames Anne Munsie and Marlene Branley filed a submitting appearance. 22There was a little cross examination of Mr and Mrs Lawrence and Mrs James, but that really did not advance the matter at all. 23The evidence that may have some significance disclosed that it was Jim's practice to carry around with him a leather satchel wherever he went and that his friends and relations believed that this contained his most important papers. Despite the fact that the plaintiffs looked through his house and also his safe deposit no trace of the satchel has ever been found. A quite possible scenario is that an original will was in the satchel and the satchel has been lost. 24One of the important pieces of evidence was the affidavit sworn by Mrs Thea Kouznetsoff. She swore that she had known Jim since her childhood. On one occasion she remembers that while she was at her parents home with Jim he said: Thea, I have prepared a new Will. As you are a JP and a young person, I would like you to witness my Will. Can you drop in to my home sometime and be the witness. 25The deponent said she would do that and sometime later she telephoned Jim and arranged to meet him at his unit. When she arrived she says that Jim was in the foyer of the building holding a file of documents and said: I've got my Will and I just want you to witness my signature. 26Jim sat down with her at a small table in the foyer of the unit and Jim took out a document from the file and said: I have prepared my Will. I will sign it and you can witness my signature. 27Jim then signed the document and Mrs Kouznetsoff signed it, she did not read it and she then left. Mrs Kouznetsoff was not cross-examined. She also deposed to the fact that Jim usually carried his satchel around with him. 28There is one further fact I should mention before analysing the evidence and that is that when Mr and Mrs Lawrence witnessed the will in probably July 2009, Mrs Lawrence queried whether it was proper for a beneficiary to witness the will. Jim's diary contains an entry of the 18th of July 2009 which indicates that he is again considering his will. A possible scenario which Mr Ellison asked me to consider is that in view of the remark made by Mrs Lawrence the testator was thinking of making sure that his will was kosher and this led to the 2009 Will or the will that Mrs Kouznetsoff witnessed (which Mr Ellison puts are the same). On the other hand Mr Stretton says that the inference is simply that Jim was reconsidering his will as he seemed to do from time to time from 2005 onwards. 29It is of some significance that an original typed script is found stapled to the back of the folder. As Jim used an old-fashioned typewriter he is only going to produce one original and various carbon copies whenever he types a document. The fact that there is an original typed script in the folder would tend to suggest that this is not the will that Mrs Kouznetsoff witnessed. On the other hand the fact that the original typed script is stapled to the folder shows that it must have some significance. Added to this is the fact that there is a copy in the file. 30Mr Stretton says that this tends to show that he was merely considering his latest thoughts as to whether the 2009 Will should actually be executed. This may be consistent with the fact that the draft dated 2008 wasn't in fact executed for 7 months later in July 2009. 31However this is really speculation. I would have thought it was equally speculative to say that Jim was dissatisfied with the presentation of the 2009 typed script the misspelling of the Australian Was Memorial and the overtyping of the formal parts and so re-typed it. However if this is correct it is strange that a carbon copy of the original draft was kept and not the re-typed version. Of course Mrs Kouznetsoff never read the document so she cannot identify what it was she witnessed. 32Mr Ellison puts that it is to be inferred by the apparent revocation of the 2008 Will by tearing it in half, that the deceased made a subsequent will which cannot be located. He submits that that subsequent will was identical to the 2009 Will. He admits the possibility that Jim revoked the 2008 Will without making a subsequent testamentary document but submits that because of the meticulous and detailed nature in which Jim approached his testamentary affairs on the balance of probabilities he would not have wanted to die intestate. 33Such intestacy would not only have disinherited all his main beneficiaries but also the Australian War Memorial which, for the reasons I gave earlier would be extraordinary. 34There is also the evidence of Mrs Newnham who swore: 35On the last occasion I met with Jim on 18 May 2011, we had a cup of coffee at a café in Maroubra near where he lived. During the course of our conversation, after Jim said words to me about his assets and how he intended to leave his estate I said "Jim do you have a Will? You know it is very important to have a proper Will, otherwise you can leave behind a mess" to which Jim replied "Yes, I have prepared it and it is all done." 36That was only a fortnight before Jim died. Mrs Newnham was not cross examined and I accept her evidence. 37Mr Ellison also points to the entry in Jim's diary dated 14 March 2010 which reads "Search for my Will. Did I send it to Christopher or leave it with Suzi". "Suzi" is Mrs Lawrence. Does this mean that Jim realised in 2010 that his final will was actually missing? 38Mr Ellison also submits that by stapling together the torn pieces of the 2008 Will, Jim intended to republish it. I think that this is a bit of long-shot and I do not accept that submission. However a more important question is whether, if I am not satisfied that there was a 2009 Will, whether the 2008 Will was revoked on condition that a new will replaced it, and therefore, that because that did not happen the Doctrine of Dependant Relative Revocation applies so that I can grant probate of the 2008 Will. 39I mentioned this possibility during oral argument. It did not seem to have been considered by Counsel and so at the end of the oral argument on the 3rd of April I gave leave for further written submissions to be made respecting the Doctrine. If the Doctrine applies then even if I am not satisfied about a 2009 Will the cross claim for intestacy must fail. 40Both counsel relied on the decision of Campbell J in Cahill v Rhodes [2002] NSWSC 561. That decision did not make any fresh law but is a useful compilation of the authorities though one particular paragraph, paragraph 55 which is set out later in these reasons is extremely useful. 41Following what I said in Curley v Duff (1985) 2 NSWLR 716 at [718] - [19] Campbell J said at [55] that: Five matters must be established when probate of a lost will is sought. (1)That there actually was a will; (2)That that will revoked all previous wills; (3)That the presumption that when a will is not produced it has been destroyed is overcome; (4)Evidence of the terms of the will; and (5)Evidence of due execution. 42Campbell J added to the fifth point that it is sufficient that the deceased person intended the document to constitute his or her will in view of subsequent amendments to the Succession Act. The standard of proof is a civil standard but as Hodgson J said in Re Ralston, 12 September 1996, unreported: 43There should be clear and convincing proof similar to that appropriate to other classes of case where the court is asked to give effect to parol arrangements in circumstances where the law requires, or the parties have chosen, that a particular matter be recorded in some formal way. 44There is a clear presumption that when a will has not been produced it must be presumed to have been destroyed (Allan v Morrison [1900] AC 604) but that is a rebuttable presumption. In the Cahill case Campbell J said at [68] that the cases show: If a testator has made a Will which makes a careful and complete disposition of his property, and an examination of the circumstances relevant to the Deceased's testamentary intentions between the time of the making of that Will and the time of his death does not reveal anything which shows that the testator had any reason to revoke the Will be destroying it, the strength of the presumption is weakened to such an extent that it is overcome. 45To my mind the facts and circumstances of this case show that the presumption is rebutted. There is strong evidence that the testator was very conscious that he should not die intestate. He was almost obsessive about making wills. Mrs Newnham's evidence shows that he believed that he had a will even a fortnight before his death. There is no reason why he would have changed the gifts to the Australian War Memorial or indeed to the main beneficiaries although he may have fiddled with the percentages of the income they were to get. Everything points to the fact that Jim intended to die testate. 46Accordingly the third of the propositions in Curley v Duff as updated in Cahill's case is no problem in this case. But what about the other four. It would seem that the 2009 Will or whatever will was made after the 2008 Will revoked all previous wills, accordingly I need to consider (a) whether the evidence satisfies me that there was a will after the 2008 Will; (b) evidence of the terms of that will and (c) evidence that it was either executed or intended to be treated by Jim as constituting his last will. 47As far as (c) is concerned Mrs Kouznetsoff's evidence seems to me to be sufficient to satisfy the matter. 48So then, considering (a), is the existence of a will established, and if so what are its terms? 49There is no direct evidence of either of these matters. Mr Ellison asked me to infer that the missing will was identical in terms to the will that is stapled to the back of the red folder. In favour of that submission is the fact that the 2009 Will certainly fits the sort of will that one would have expected Jim to have made, secondly that he deliberately kept an original draft and a copy of the 2009 Will, and that no other later will was found in the file. Then he had Mrs Kouznetsoff witness a will, then he wrote in his diary that he was missing his will and was it with Mr Bone or Mrs Lawrence and finally he said to Mrs Newnham shortly before he died that he had made a will. Even on the basis that one must be confident that there is clear and convincing proof on the balance and probability standard that the testator left a will it would seem to me that in the absence of any contrary evidence (though I admit, as I have said, there are some speculative matters that can be put against the proposition) there is a lost will. That satisfies (a). 50As to (b) the only rational conclusion is that the will is in the same terms as the 2009 Will. The fact that no print of it exists is not fatal see for instance Sugden v Lord St Leonards (1876) LR 1 PD 154 where Lord St Leonards' butler gave oral evidence as to what his master had often read to him from the document. Furthermore it is quite possible that the 2009 Will was re-typed to correct engrossing errors and this is not at all unlikely. 51Accordingly in my view, on the balance of probabilities, I should grant probate of the 2009 Will. 52If I were wrong on this, then it seemed to me during the oral argument that under the Doctrine of Dependant Relative Revocation I might grant probate of the 2008 Will. This did not seem to have occurred to counsel, thus I granted leave for submissions to be made on the point in writing. 53Both counsel availed themselves of this leave. 54Mr Stretton put, much to my surprise, that the doctrine of Dependant Relative Revocation had been excluded by ss 8(2)(c) and 15(1) of the Succession Act, 2006. 55This thought does not seem to have occurred to any of the commentators or textbook writers on the Act. Of course, whilst that is not necessarily a reason for not accepting the submission, it is a relevant consideration when evaluating the submission. 56However, there is no substance in this submission. The Succession Act was an attempt to provide uniform succession laws throughout Australia. The attempt did not completely succeed, but it did produce considerable uniformity. This was helped by the fact that the legislation of the Australian States and Territories concerning wills all had a common origin. In each of the State Wills Acts, revocation was a well recognized term and in each it was clear that revocation covered both unconditional revocation and conditional (including dependant relative) revocation. The term "revocation" in the Succession Act, 2006, bears the same meaning. 57Mr Stretton then put that it was not every case where a new will failed that a former will could again become operative under the doctrine of dependent relative revocation. I accept that proposition. 58In Re Jones [1976] Ch 200, Buckley LJ noted four propositions applicable to this type of case which can be summarized as follows:- 1. If a will is torn up, was that done to revoke it? 2. I "yes" to question 1, was that revocation conditional or unconditional? 3. If the revocation was conditional, what was the nature of the condition? 4. Has the condition occurred? 59His Lordship then went on to say at p206: It is consequently necessary to pay attention to the circumstances surrounding the mutilation or destruction of the will to discover whether any intention that the testator then had of revoking the will was absolute or qualified, and, if qualified, in what way it was qualified. 60Mr Stretton took me to that quotation and then submitted that on the facts of the present case, the tearing of the will was an act of revocation and there was insufficient material to show that that act was conditional upon setting up a new will. 61Mr Stretton cited a decision of the Manitoba Court of Appeal in Sheen v Sheen [2005] 6 WWR 627 at [41] stating that it may be very difficult for a court to justify application of the doctrine of dependent relative revocation where the court does not know when the testator destroyed the will as it is at that point that his or her intention must be gleaned. He also quoted obiter dicta from a decision of the Supreme Court of Oklahoma in Matter of Estate of Ausley 818 P.2d 1226 at 1233 (1991) that the doctrine "should not be applied in the absence of judicial knowledge of a definite plan which would normally be expressed in the subsequent will." 62However, these statements merely point to the need to take care when applying the doctrine. Each case will be different factually. 63It is unusual for North American cases to be cited in the area of trusts and wills as the law there has often departed from that in Australia and England. However, the statements I have quoted do reflect the Australian position. 64There are a number of local cases on the doctrine. The early cases are considered by FC Hutley in his article "Dependant Relative Revocation and mistake" (1948) 22 ALJ 259 and the topic generally is well reviewed in Certoma, "The Law of Succession in New South Wales" 4th ed 2010 [7.180] et seq. The doctrine was considered by Austin J in Tracey v Edwards (2000) 49 NSWLR 739. However, that was an ex tempore judgment which was given after argument on only one side and its main finding has been justly criticized by Professor Certoma at [6.90] (cf Cassie v Koumans [2007] NSWSC 481) and I doubt whether it is a good precedent generally. 65Mr Stretton then put that the facts of the present case were not strong enough for me to find that the tearing up of the will was conditional. 66The strong points in favour of the doctrine are that this was a testator who was almost obsessed with the idea of dying testate and who had a strong feeling that he must give to the Australian War Memorial. Moreover, he kept the torn up will stapled in his wills folder. He made a new will. That will has been lost, but despite the presumption that it has been destroyed, the evidence shows that it is more likely that it has been mislaid. This would indicate a desire that Mr North still intended to die testate. The explanation may be that the new will was merely a retype of the earlier one with typographical errors corrected. 67On the other hand, as Mr Stretton points out, there are also strong indications the other way. The onus is on the plaintiff to show the doctrine applies (Adams v Southerden [1925] P 177), though the burden is not heavy (Baird v Huang [2001] NSWSC 409 at [22]). The facts show that it was not unusual for the testator to delay many months before he entered into a fresh valid will. The testator wished to change his will, possibly to adjust the shares of income beneficiaries would receive. The most simple explanation of the facts is that the 2008 Will was unconditionally revoked and that the later will came into operation. The torn document was merely retained for record purposes. 68Similar submissions were made with respect to the application of the doctrine to the 2007 Will, but I can see little purpose of examining those submissions. 69It is a borderline case. However, if a decision had to be made, I would consider that the case for Dependant Relative Revocation just succeeds. In the circumstances of course, it is of academic interest only. 70Of course, if the 2008 Will was still operative, there would be a problem in that the will was witnessed by a beneficiary. However, under s 10 (3)(c) of the Succession Act 2006, the gift is validated if the court is satisfied that the gift to the witness was made freely and voluntarily by the testator. The course of the testator's will making shows that this is made out. 71Accordingly (1)I grant probate of the 2009 Will and refer to the Registrar to complete the grant. (2)The costs of all parties are to be paid out of the estate of the late AJ North. ********** 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: 17 June 2014