Campton v Hedges

HIS HONOUR: Neil Clive Hedges (hereafter called “the deceased”) died on either 2 or 3 July 2014, leaving property in New South Wales. He was then aged 76 years. At the date of his death, the deceased was a widower, his wife, Marie Hedges, having died in May 2006. They had no children. The deceased did not remarry after the death of his wife.

The present dispute before the Court concerns, principally, whether some or all of the formalities for making a will should be dispensed with, and whether Probate of a document signed by the deceased without all of those formalities should be granted.

On a date said to be between about 15 and 19 September 2008, the deceased signed a typewritten Will (“the typewritten Will”). Two witnesses, namely Bronwyn Patricia Sloss, and Angelique Sloss, each attested and signed the typewritten Will in the presence of the deceased. Each witness was also present when the other attested and subscribed the typewritten Will. Each witness states that she knew that the document she had attested and signed was a Will. (It is not in dispute that the typewritten Will was intended by the deceased to be his Will when it was made.)

After revoking all previous testamentary dispositions and declaring the typewritten Will to be his last Will and Testament, the deceased appointed his niece, Samantha Vera Campton, and his brother, Grahame Ross Hedges, as his executors and trustees. They are the Plaintiffs in the current proceedings before the Court. (In the typewritten Will each is identified without her, and his, middle name respectively.)

Ms Campton, who is a lawyer, says that she prepared the typewritten Will at the request of the deceased in late August 2008, and that she made some amendments to it a week later, following a conversation with the deceased and upon him handing to her a document which identified some named pecuniary legatees. She returned the original draft, as amended, to the deceased, on 13 September 2008.

On 20 September 2008, the deceased returned the original typewritten Will, duly executed, but undated, as set out above, to Ms Campton, with the request that she retain it for safekeeping. She retained the typewritten Will in her home, thereafter, for a number of years.

A copy of the typewritten Will is annexed to one of Ms Campton’s affidavits read in the proceedings, as well as to the affidavit of each attesting witness. The copy reveals that the bottom of each page of the typewritten Will bears only the signature of each attesting witness, but not the signature of the deceased; the last page is undated, except as to the year 2008; the deceased’s signature appears near the standard attestation clause, as does the signature of each attesting witness; and that under the signature of each attesting witness is her name, occupation and address. The copy also reveals that there are no alterations, interlineations or deletions, and the only handwriting on it is the signature of the deceased, the signature of each attesting witness and her printed name, address and occupation. A copy of the typewritten Will was marked as Ex. A in the proceedings.

It was not in contest that the typewritten Will was witnessed in conformity with the formal requirements of s 6 of the Succession Act 2006 (NSW) (“the Act”).

Ms Campton states that “subsequent to Easter 2014”, the deceased orally requested her to return the typewritten Will to him, which she did, about three or four weeks later. The deceased told her that he wished to make some amendments to it. I shall return to the conversation that took place in more detail later in these reasons.

Following the death of the deceased, Mr Hedges found the original typewritten Will. Without prejudging the issue which is to be determined in this case, I shall refer to this document as “the altered Will”. The altered Will was marked as Ex. B in these proceedings. The form and content cannot be reproduced entirely accurately by typescript. Accordingly, it is Ex. B that this Court must consider.

When it was found, the altered Will had a number of interlineations, obliterations and deletions, handwritten on it. Also, immediately underneath one handwritten addition was the deceased’s signature; next to most of the alterations, interlineations and deletions, there appears to be the signed initials of the deceased or his signature; and on the bottom of each page there appears the signature of the deceased. No date appears on the altered Will.

Whilst there is no specific evidence as to when the deceased made the alterations, interlineations, and deletions to the handwritten document, I am satisfied that the altered Will was created by the deceased at some time after Easter 2014 and before his death a few months later.

There does not appear to be any dispute that any handwriting on the altered Will, other than the signatures of the attesting witnesses and the Plaintiffs (for the purposes of identifying the altered Will) is that of the deceased. (Even if there were a dispute, I am satisfied that it was the deceased who made the alterations, interlineations and deletions to the typewritten Will.)

It was not in contest that the altered Will was not witnessed in conformity with the formal requirements of s 6 of the Succession Act 2006 (NSW) (“the Act”).

On 19 September 2014, and then again on 13 March 2015, Vicki Leone Hedges, who asserts that she is a person who was, at any particular time, wholly or partly dependent upon the deceased, and who was, at that particular time a member of the household of which the deceased was a member (a matter which is the subject of dispute in related proceedings), lodged a caveat calling upon the Plaintiffs to prove, in solemn form, the last valid Will of the deceased.

The Plaintiffs filed a Statement of Claim on 22 May 2015 in which they sought the following relief:

Relevantly, in her Defence, filed on 10 July 2015, Ms Hedges asserted:

It can be seen that in the Defence there is no allegation of a lack of testamentary capacity, a lack of knowledge and approval, or of undue influence. Nor is there any specific suggestion that the handwriting, the initials, or the relevant signatures on the altered Will are not that of the deceased.

The Defendant, who was represented at the hearing by counsel, submits that the Court:

The Defendant has not filed a Cross-Claim asserting that the deceased died intestate. (In any event, if neither the typewritten Will nor the altered Will is valid, Ms Hedges would receive nothing under the operation of the intestacy rules in relation to the estate of the deceased.)

At the hearing, counsel for the Defendant conceded that if the altered Will was of no testamentary effect, or if the Court is not satisfied that s 8 of the Act applies, there should be a grant of Probate of the copy of the typewritten Will.

It is difficult to comprehend the reason for Ms Hedges lodging the caveats and defending these proceedings in the manner that she has since it is only her entitlement to a pecuniary legacy of $2,000 under the typewritten Will that may be lost. It follows that she does not gain any personal advantage (other than as to $2,000) by opposing the grant of Probate of the altered Will.

In addition, Ms Hedges has commenced separate proceedings for a family provision order, and the continuation of those proceedings is being delayed until the completion of these proceedings.

In submissions, her counsel submitted that she wished to ascertain the identity of the beneficiaries in relation to her family provision claim. However, I do not consider that to be a valid reason for her lodging the caveats. Had there been no caveat lodged, the identity of the beneficiaries would have become clear upon the grant of Probate by the Court of the relevant testamentary instrument.

The hearing was conducted expeditiously and it was completed in less than one day. Each counsel provided comprehensive written submissions, which I have carefully considered and which shall remain with the court papers.

The following facts appear not to be in issue.

In late September 2015, there being pending proceedings touching the validity of the altered Will, by agreement of the parties, Mr Hedges was appointed as administrator pendente lite, with power to sell the deceased’s real property, but otherwise to preserve the assets of the deceased’s estate.

In the Inventory of Property, a copy of which is an annexure to the affidavit of the Plaintiffs, as executors, the deceased’s estate was disclosed as having an estimated, or known, value of $945,094. His estate then, was said to consist of real estate at Parramatta ($750,000), cash in various bank accounts and financial institutions on deposit ($188,973), shares in public companies ($5,521) and motor vehicles and a trailer ($600). No liabilities were disclosed in the Inventory of Property, but in the body of the affidavit there was a credit card debt ($1,145) disclosed. Accordingly, the estimated value of the net estate, at the date of the deceased’s death, was $943,949.

In her affidavit sworn 24 April 2015, Ms Campton deposes:

In his affidavit sworn 23 April 2015, Mr Hedges deposes:

Neither of the Plaintiffs was cross-examined on her, his, or their, affidavits.

It is clear, as will be read, that s 8(3) of the Act makes admissible statements by the deceased as to the existence, and content, of any alleged testamentary intention, that is, both an intention to dispose of the deceased's property in a specified way by Will and the details of the nature of the dispositions intended. It also permits evidence of relevant statements of other persons. Thus, the evidence, relied upon by each Plaintiff, of conversations that the deceased had with her and him, respectively, is admissible and material. Indeed, no objection was taken to that evidence by counsel for the Defendant.

However, evidence in that form is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the fact unless falling within an exception to the hearsay rule: s 59 of the Evidence Act 1995 (NSW). There was no objection to any evidence on this ground.

The Defendant did not read any affidavit at the hearing and tendered no other evidence.

The Plaintiff tendered (marked Ex. C) a document headed “Will and Hand Written Amendment Chronology”, comprising 3 pages, which detailed the alterations, interlineations and deletions, handwritten on the typewritten Will. (Both counsel had participated in the creation of this document.)

Exhibit C, with some amendments which I have made and underlined, is as follows:

In addition to the above, the following matters which are not in dispute, or which I am satisfied have been established, should be noted in respect of the altered Will:

If effective, the altered Will removes a number of the pecuniary legacies with the result that the residue of the estate is increased by about $53,000.

On 12 March 2015, the Plaintiffs caused notice of their intended application to be published in the New South Wales Online Registry Website.

Division 6 of Part 78 of the Supreme Court Rules 1970 (NSW) (“SCR”) “applies to proceedings on an application for the grant of probate or administration in relation to a will that comprises or includes an informal testamentary document”. “Informal testamentary document” is defined in Part 78 rule 1 SCR, as meaning “a document that (together with any amendments to it) purports to embody a deceased person's testamentary intentions, being a document that has not been duly executed”.

Part 78 rule 42 SCR provides:

There is evidence from Mr B L Maker, the solicitor acting for the Plaintiffs, about service of the relevant notice on each of the affected persons. Other evidence (Ex. D) is a bundle of Consents to Affected Persons. Other evidence (Ex. E) demonstrates that only 15 of the affected persons have not responded to the Plaintiffs’ solicitor.

The Act does not comprehensively define a Will. Section 3(1) simply defines “Will” as including “a codicil and any other testamentary disposition”. A testamentary document effects a “voluntary transmission on death of an interest [in property] which up to the moment of death belongs absolutely and indefeasibly to the deceased”: Russell v Scott (1936) 55 CLR 440 at [454]. “Disposition” is defined in s 3 of the Act to include (a) any gift, devise or bequest of property under a will, (b) the creation by will of a power of appointment affecting property, and (c) the exercise by will of a power of appointment affecting property. Other things that a will may do, without disposing of property, including appointing an executor and appointing a guardian for an infant, are not presently relevant: Romano v Romano [2003] NSWSC 436 at [6]-[8] (Bryson J).

It is not necessary that the document said to be a Will should assume any particular form, or be couched in language technically appropriate to its testamentary character. Nor is there any requirement to have a clear statement identifying the document as a will. It is sufficient if it is intended to dispose of property, or of rights of the deceased, in a disposition that is to take effect upon death, but, until then, is not to take effect but is to be revocable.

Chapter 2 of the Act deals with Wills. The relevant sections, to which reference is to be made, are to be found in Part 2.1, headed “The Making, Alteration, Revocation and Revival of Wills”. The Part applies to wills, whether made before, on, or after, 1 March 2008, the commencement of the Act, if the deceased died on, or after, that date: see cl 3(3) of Sch 1.

Section 6 of the Act deals with the basic statutory requirements for a will to be valid and how a will should be executed. It provides:

The signature of the testator on the Will is usually seen as authenticating the document, identifying the maker of the Will, and that he, or she, is prepared to accept the document as expressing his, or her, testamentary intentions. His, or her, signature at the end of the will and attestation usually provides some evidence of completeness, and acts as a safeguard against interpolation. No particular form of signature is required but it must be intended as execution, or authentication, by the testator of the will.

“Attest” means: “To bear witness to, to affirm the truth or validity of; testify, certify formally”: Shorter Oxford English Dictionary (6th ed 2007, Oxford University Press). The purpose of the requirement to have attesting witnesses is simply to verify the authenticity of the deceased’s signature and to ensure that it was made voluntarily.

There is no dispute that the typewritten Will was a valid Will. (There is no requirement that each page of the Will is to be signed at the foot or end. Nor is there any requirement that a Will bear a date: In the Estate of Kiepas (Deceased); Twemlow v Kiepas [2004] NSWSC 452 at [31].)

As stated, there was no dispute that the altered Will did not comply with s 6 in that the signature of the deceased on that document was not made or acknowledged by him in the presence of two or more witnesses present at the same time, and at least two of those witnesses attested and signed it in the presence of the deceased.

It is next necessary to refer to s 11 of the Act, which deals with when and how a will may be revoked. The section provides:

The Defendant relied upon s 11(1)(f) of the Act, submitting that the deceased, by writing as he did, on the typewritten Will, and by the state of the typewritten Will when found, would lead the Court to be satisfied that he had intended to revoke the typewritten Will.

Another alternative is that the typewritten Will could be revoked by a later will. This would require the Court, under s 8 of the Act, to be satisfied that the altered Will formed a full or partial revocation of the typewritten Will and that the deceased intended it to be a full or partial revocation of the typewritten Will.

Because of the content of the altered Will, it is necessary to also consider s 14 of the Act, which deals with how a will may be altered. That section provides:

Subject to s 8 of the Act, it is clear that the amendments made to the typewritten Will are not effective because those amendments were not executed in the manner in which a will is required to be executed in Part 2.1 of the Act. In particular, the signature of the deceased was not made or acknowledged by him in the presence of two or more witnesses present at the same time, and at least two witnesses did not attest and sign the altered Will in the presence of the deceased.

Section 8 of the Act provides:

The gateway into s 8 is by means of “a document”. Section 3 of the Act provides that the definition of “document” for the purposes of s 8 is the meaning given to the term by the Interpretation Act 1987 (NSW), s 21, which relevantly provides:

There is no issue, in this case, that there is a document (the altered Will). It appeared to be in dispute that it purports to state the testamentary intentions of the deceased, but no dispute that it has not been executed in accordance with Part 2.1 of the Act. At the hearing, as mentioned, counsel for the Defendant accepted that the altered Will purported to state the testamentary intentions of the deceased.

It can be seen that s 8 is in two parts, one characterising the document and the other, the intentions of the deceased. It is necessary to establish each to cause the section itself to produce the result that the document forms the deceased person’s will, or an alteration to the deceased person’s will or a full or partial revocation of the deceased person’s will.

It will be observed, also, that s 8(3) permits a wider enquiry than the analysis of the form and content of the relevant document. The sub-section enables the Court to consider evidence of the manner in which the document was executed as well as the deceased’s testamentary intentions and statements made by her or him. Those necessarily contemplate sources extraneous to the subject document itself.

It seems to me that I should bear the following principles in mind in relation to s 8:

I do not intend what I have described as “principles” to be elevated into rules of law, propositions of universal application, or formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined by statements of principle found in dicta in other decisions. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind.

Section 8 of the Act is the source of the applicable jurisdiction to determine the issues concerning the altered Will in this case, there being no dispute that if that document has no testamentary effect, then a copy of the typewritten Will is the last valid Will of the deceased.

As properly conceded by counsel for the Defendant, the Court may be comfortably satisfied that the altered Will does purport to state the testamentary intentions of the deceased. In my view, it is clear from the terms of the altered Will itself that it purports to state what the deceased wanted to happen to his property upon his death. In addition, the document revokes prior testamentary instruments and appoints the Plaintiffs as the executors.

Then, it is important to note the handwriting of the deceased on the altered Will and the reference to “regardless to anything he might receive due to this Will” (my emphasis) and the signature of the deceased immediately underneath that handwriting. This statement, and the deceased’s signature underneath it, provides a persuasive indication of formality and the intention of the deceased. A “will” is usually understood as the means of recording testamentary intentions.

I do not consider, as was submitted by the Defendant, that the use of the word “might”, in the passage quoted above, suggests “an incomplete determination”. To the contrary, I consider that the deceased used that word as the past tense of “may”, a word that is appropriate in circumstances where the deceased could not know what would pass to Mr Hedges under the residuary clause.

The second question is whether, on the evidence, the Court should be satisfied that the deceased intended the altered Will to form his Will, or an amendment of the typewritten Will, and also whether he intended it to be a full or partial revocation of the typewritten Will.

I am satisfied that the deceased was aware of the need for two attesting witnesses. However, it is to be noted that he telephoned Ms Campton late at night, and somewhat surprisingly to her, to request her to return the typewritten Will. It may be inferred that this demonstrates that the matter of altering his Will was of some concern to him. Clearly at this time, he had been contemplating making alterations to the typewritten Will because this is what he told Ms Campton in the telephone conversation. He had also mentioned that intention earlier to Mr Hedges. Furthermore, the state of knowledge of the deceased is obviously a relevant consideration in assessing intention, but the ultimate question is one of satisfaction as to that intention: Costa v the Public Trustee of NSW [2008] NSWCA 223 at [110] (Basten JA).

It is clear, then, from the form of the altered Will, that the deceased held an intention to revise some of the pecuniary legatees and the quantum of the pecuniary legacy that some legatees would take. This is demonstrated by the terms of what he wrote on the altered Will.

There is no suggestion that anyone, other than the deceased himself, provided the initiative for the preparation of the altered Will. It is significant that the deceased made the alterations himself and, in so doing, described the document as “this Will”. He also made the amendments in ink, rather than in pencil, which suggests that the alterations were not merely deliberative.

Furthermore, the amendments were made to the typewritten Will not to a copy of it, as had been suggested to the deceased by Ms Campton.

The fact that the deceased signed the bottom of each page, including the last page, of the altered Will, and initialled nearly all of the amendments, and placed a tick next to Clauses that he did not amend, demonstrates, in my view, that he intended to formally authenticate what he had done in such a way as to give it operative force. Each was a serious act engaged in by the deceased. It can be inferred, in any event, that by adding his signature on each page and his initials to almost every amendment, he intended the amendments be given some formal significance. It is also suggestive of an intention that the altered Will was then in its final form.

In my view, the amendments made are only consistent with an intention to change what was already in the typewritten Will and to revoke that Will so that the terms of the altered Will would guide the distribution of his property on his death. The altered Will, thus, set out new, and different, provisions which, as at death, the deceased intended should be implemented.

I reject the Defendant’s submission that the altered Will “was not formalised” if this means more than simply not duly executed.

Also, I reject the Defendant’s contention that the altered Will was intended by the deceased to be instructions for the preparation of either a new will or a codicil to the typewritten Will. Ms Campton, who had prepared the typewritten Will, gives no evidence of any conversation with the deceased, after she returned the typewritten Will, about the deceased requesting her to prepare a new Will or a codicil based upon the terms of the altered Will.

There is no other evidence that the deceased instructed solicitors to prepare a new Will or codicil. Again, an important pointer is the simple fact that the altered Will was signed and initialled by the deceased. One would not commonly expect to find a document intended to be instructions, or a draft Will, to bear initials near each alteration and the signature of the deceased on the bottom of each page.

Nor do I accept the Defendant’s submissions that the amendments were merely deliberative, or that they were “an incomplete determination and …were only a draft or a work in progress”. I do not share her concern that there is uncertainty created by the alterations that appear on the altered Will. To the contrary, I consider that, for the most part, the deceased’s intention is tolerably plain.

In these circumstances, I am comfortably satisfied that the deceased intended the altered Will to form his Will. The retention of Clause 1 in that document means that I am also satisfied that he intended to fully revoke the typewritten Will. That, coupled with the finding that the altered Will is one which purports to state the testamentary intentions of the deceased, causes s 8 of the Act to afford to the altered Will the character of a Will. Probate of the altered Will should be granted to the Plaintiffs.

It is next necessary to determine the question of costs. The Plaintiffs sought an order that the Defendant should pay their costs of the proceedings. They also sought an order, in the alternative, that their costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

The Defendant sought an order that her costs, calculated on the ordinary basis be paid out of the estate of the deceased. In the alternative, she sought an order that there be no order as to her costs, to the intent that she would pay those costs.

Neither party tendered any evidence on the costs application.

I dealt with the principles relating to costs in Probate proceedings in Romascu v Manolache (No 2) [2012] NSWSC 87 at [33]-[44]. I shall not repeat what I wrote there. In broad summary, in probate litigation, it is not only who succeeds in the litigation that matters. As well, the role a particular party has played in litigation, whether as plaintiff or defendant, is relevant. Further, facts about the knowledge available to each of the parties, and the reasonableness of their, or her, conduct in conducting the litigation, can be taken into account.

The Defendant submits that had the deceased, who was aware of the requirements for a valid will, obtained witnesses to attest and sign the altered Will in his presence, the proceedings would have been unnecessary as the altered Will would have been validly executed. Thus, it is the deceased who caused the litigation.

She also submits that a contradictor was required to enable the validity of the altered Will to be determined. She submits that she acted reasonably in defending the proceedings. She did not object to any part of the Plaintiffs’ evidence and did not seek to cross examine any of the witnesses whose affidavit was read.

Whilst it is true that it was the lodgement of the caveats by the Defendant that prompted the Plaintiffs to commence proceedings by Statement of Claim, I am satisfied that they have not really incurred any costs that would not have been incurred had the matter proceeded by way of a Summons.

It is also possible that the Court would not have determined the matter as an uncontested proceeding, with the result that an appearance before the Court would have been required. Otherwise, the evidence relied upon would have been the same. It follows that I do not consider that the Defendant should pay the Plaintiffs’ costs of the proceedings as those costs would have been incurred in any event. Accordingly, the Plaintiffs’ costs, calculated on the indemnity basis, should be paid out of the deceased’s estate. There was no dispute that the Court should make such an order.

The more difficult question is whether the Defendant should have her costs, calculated on the ordinary basis, out of the deceased’s estate. Whilst I respectfully agree that the Defendant did not conduct the proceedings in a strident, or adversarial, manner, she did do so, on one view, for personal advantage. That was to obtain the legacy of $2,000, or as her counsel put it, in the context of the Defendant’s claim for a family provision order, “[T]he end result would be, on one version or the other, there will be a substantially diminished, or increased, number of competing claims on the estate”: T4.31-T4.33.

None of the other affected persons sought to be heard, and had the Court found that there was an intestacy (a matter that the Defendant advanced as an alternative albeit without pleading it), most of the pecuniary legatees would not receive any legacy.

I am of the view that the Defendant should not recover her own costs out of the estate. I consider that the signature of the deceased in a number of places on the altered Will together with the fact that the deceased referred to the document as “this Will” are strong reasons to have led her to seriously consider the need to lodge the caveats and to defend the proceedings.

Put another way, even if the circumstances led reasonably to an investigation in regard to the document propounded, the usual principle is that costs may be left to be borne by those who respectively incurred them. In this case, in exercising my discretion on costs, I am of the view that the Defendant should bear her own costs of the proceedings.

The Court: