In the Estate of the Late Stanley Trafford Fry [2015] NSWSC 598

Supreme Court New South Wales

Medium Neutral Citation: In the Estate of the Late Stanley Trafford Fry [2015] NSWSC 598 Hearing dates: 27 April 2015 Date of orders: 20 May 2015 Decision date: 20 May 2015 Jurisdiction: Equity Division Before: Bergin CJ in Eq Decision: Probate granted in respect of the deceased's Will dated 28 September 2012. Summons otherwise dismissed. Catchwords: SUCCESSION – whether unsigned and undated documents written by the deceased were intended by him to be or to operate as his Will. Legislation Cited: Succession Act 2006 (NSW) Wills Probate and Administration Act 1898 (NSW) Cases Cited: Estate of Francis Collins [2000] NSWSC 407 Hatsatouris v Hatsatouris [2001] NSWCA 408 In the Estate of Masters (deceased); Hill v Plumber (1994) 33 NSWLR 446 Yazbek v Yazbek [2012] NSWSC 594 Texts Cited: The New Oxford Dictionary of English (1st ed 1998, Oxford University Press) Category: Principal judgment Parties: Susan Louisa Margaret Garratt (Plaintiff) Alison Bentlin (1st Defendant) Karin Bentlin (2nd Defendant) Representation: Counsel: EA Cohen (Plaintiff) AL Hill (Defendants)

Solicitors: G.H. Healey & Co (Plaintiff) Angus Begg (Defendant) File Number(s): 2014/52691 Publication restriction: Nil

Judgment 1. The plaintiff, Susan Louisa Margaret Garratt, is the executor of the estate of the late Stanley Trafford Fry (the deceased). 2. The deceased was born on 22 July 1928 and died on 19 August 2013 aged 85 years. His last Will was made on 28 September 2012 (the Will). The value of the deceased's estate made up of real property, cash accounts, shares and securities is approximately $4.34 million. 3. The plaintiff seeks declarations that: (1) the deceased intended his copy of the Will with notations upon it to be a Codicil to his Will; and (2) the deceased intended that the document entitled "Guide" be a Codicil to his Will. 4. The plaintiff notified all the beneficiaries under the Will of these proceedings. Only two of the beneficiaries have appeared. Alison Gai Bentlin is the first defendant and her sister Karin Lee Bentlin is the second defendant. I will refer to the defendants by their first names for ease of reference and without intending any discourtesy. 5. The proceedings were heard on 27 April 2015 when Ms EA Cohen, of counsel, appeared for the plaintiff and Mr AL Hill, of counsel, appeared for the defendants. The parties were granted leave to file additional written submissions by 2 May 2015, the date upon which judgment was formally reserved. 6. The plaintiff's claim is made pursuant to s 8 of the Succession Act 2006 (NSW) which relevantly 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). 1. In the Estate of Masters (deceased); Hill v Plumber (1994) 33 NSWLR 446 was a case involving an application under s 18A of the Wills Probate and Administration Act 1898 (NSW). However it is accepted by the parties that the applicable test in respect of the plaintiff's application under s 8 of the Succession Act is as identified by Mahoney JA in that case at 455 as follows: There is, in principle, a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will. A will, like, for example, a contract, a deed, and a sale, is, as it has been said, "an act in the law". It is something to which the law attaches the legal consequences of that kind of transaction: see Salmond and Williams, Principles of the Law of Contracts, 2nd ed (1945) at 4 et seq, citing Salmond, Jurisprudence, 7th ed (1924) at 360. Ordinarily, a transaction will or will not be an act in the law of the particular kind according to whether it was of the relevant form or nature and was intended to operate as such. Thus, a document which is in form a will will not operate as such if it is, for example, a draft or "a trial run", not intended to have a present operation. A person may set down in writing what are his testamentary intentions but not intend that the document be operative as a will. This may occur, for example, in informal circumstances, in a letter or a diary or the like. What is to be determined in respect of a document propounded under s 18A is whether, assuming it to embody the testamentary intentions of the deceased, it was intended by the deceased as his testamentary act in the law, that is, to have present operation as a will. 1. The principles in respect of s 18A of Wills Probate and Administration Act have been applied in cases under s 8 of the Succession Act: Yazbek v Yazbek [2012] NSWSC 594 at [77]-[78]. The issue in such cases is whether the deceased intended that the documents in question would be or operate as his or her Will: Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]. 2. What is to be determined in this case under s 8(2) of the Succession Act is whether it was the deceased's intention that the copy Will with notations and/or the Guide was to form his Will or form an alteration or Codicil to his Will.