In the Estate of the late Ronald Robert Irvine; Evans v Gibbs

These proceedings concern the estate of the late Ronald Robert Irvine (“the deceased”).

The deceased died on 11 December 2013 at the age of 67 years. The deceased never married and had no children.

The deceased was born right handed. However, in 1985 he suffered severe injuries in a work place accident, losing his right arm, left leg and right leg below the knee.

On 1 February 1994 the deceased made a will (“the 1994 Will”).

At some time during 2012, the deceased wrote over five pages in a red covered notebook. The issue in these proceedings is whether, for the purposes of s 8 of the Succession Act 2006 (NSW), the deceased intended what he wrote in his red notebook to also be his will, thus revoking the 1994 Will. I will refer to the five pages as the “Informal Will”.

If the 1994 Will is to be regarded as the deceased’s last will, its effect, in the events that have happened since 1994, is that the plaintiff, Mr Peter Evans (a solicitor) is the deceased’s executor and the deceased’s estate is to be divided equally between the following eight people:

By summons filed on 29 May 2014, Mr Evans seeks a grant of probate of the 1994 Will.

By cross-summons filed on 20 February 2015, Mrs Gibbs seeks a declaration that the deceased intended the Informal Will to be his last will and a grant of probate of that document.

It is common ground that if Mrs Gibbs fails to make out the cross-summons, probate of the 1994 Will ought be granted to Mr Evans.

I have been greatly assisted by the measured and helpful written and oral submissions I have received from Mr Townsend, who appeared for Mr Evans, and Mr Marshall, who appeared for Mrs Gibbs. The precise focus and economy of those submissions has assisted me greatly in the resolution of this matter.

The Informal Will was in the handwriting of the deceased and constitutes the second to sixth pages of writing the red notebook.

Those pages read:

The note is in the handwriting of the deceased but not signed by him.

On the first page of the red notebook are notes over nine lines which appear to record a “standard pistol score” the deceased achieved on 26 February 2012 (the terms of the Informal Will suggest the deceased had an interest in target shooting) and what appears to be a reference to an appointment with a Dr Colin Tang for radiation therapy at the “Mater” on “Thurs 2nd 3 pm”. I discuss this below at [50].

The only other writing in the red notebook appears on the second page after the Informal Will (evidently a doctor’s name and telephone number) and on the last four pages (comprising some diagrams that the deceased made evidently related to a weaving hobby he enjoyed, and a reference to “Myst Tower” and a date in 1984, about which there is no explanation in the evidence). The remaining several hundred pages in the red notebook are blank.

It is common ground that the Informal Will postdates the 1994 Will. It refers to the “Argo” (an all-terrain eight wheel vehicle) which the deceased purchased in 2000.

An inventory of property annexed to one of Mr Evans’s affidavits as executor shows that the deceased had the following property when he died:

At the date of his death, the deceased had sundry debtors in the sum of $4,778.76.

It is common ground that if the Informal Will takes effect as the deceased’s last will, it does not purport to dispose of all of the deceased’s assets. The result is that the residue of the deceased’s estate would pass on intestacy to Mrs Gibbs (as the deceased’s sole surviving sibling) as to half, and to the three children of the deceased’s late brother, Colin, as to the balance (1/6th each). Mr Townsend did not suggest that this fact, alone, was a factor relevant to the question of whether the deceased intended the Informal Will to be his will.

In those circumstances, the persons entitled to share in the deceased’s estate under the Informal Will would, in the events that have happened, be as follows:

Section 8 of the Succession Act is, relevantly, in the following terms:

In Estate of Masters; Hill v Plumber (1994) 33 NSWLR 446, the Court of Appeal dealt with the predecessor to s 8 of the Succession Act (s 18A of the Wills, Probate and Administration Act 1898 (NSW)). It is common ground that there is no material difference between the wording of the two sections.

Kirby P said the section “clearly requires” that three characteristics be demonstrated “by a propounded document which otherwise lacks the necessary formalities of a will”, namely:

Kirby P said that the distinction to be drawn was:

Priestley JA said at 466:

In Hatsatouris v Hatsatouris [2001] NSWCA 408, Powell JA (with whom Priestley and Stein JJA agreed) said at [56] (repeating a view he had expressed many times as a trial judge):

Recently, doubt has been expressed as to whether Powell JA’s statement that it must be shown that the deceased intended that the document in question, “without more”, be his or her will adds anything material to the language used in s 8(2)(a) of the Succession Act: for example Hallen J in Estate of Floris Verzijden; Newman v Brinkgreve [2013] NSWSC 371 at [95] and Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 at [260]), and Lindsay J in Estate Moran; Teasel v Hooke [2014] NSWSC 1839 at [28].

In the latter case, Lindsay J said at [28]:

I agree with those observations. The relevant enquiry is whether the deceased intended that the document in question itself, and not some later iteration of it then within the contemplation of the deceased, would “form” (that is to say “be”) the deceased’s will.

It is common ground that the first two of the requirements identified by Kirby P and Powell JA are satisfied.

There is a document. The document plainly purports to embody the deceased’s testamentary intentions. Its opening words are “Will of Ronald Robert Irvine”. It uses the expression “I leave” in connection with specific bequests (for example, “the Argo I leave to my brother in law Graham Gibbs”; the “Rifle with all relevant equipment…I leave to Ross Taylor”). It gives directions as to the disposition of property (for example, “Rosehill and Kanya are to be sold”). It appoints Mrs Gibbs as executrix (“I know it is a big ask but I wish for Margaret to be executor”). It provides directions for the distribution of the proceeds of the sale of assets (“the procedds [sic: proceeds] of all sales are to be divided equally between my sisters [sic] four daughters except for $100.000 to be set up in a trust fund for Sarah Ingham until she is the age 30 years”).

The third requirement is that the deceased intended the Informal Will to form his will.

The language used by the deceased in the Informal Will points, strongly in my opinion, to the conclusion that he intended it to be his will, and not merely a draft, or an aide memoire, or a document to be later given to a solicitor for engrossment as a formal will. In addition to the matters set out at [31] above, the deceased apologised for leaving a “mess”, gave directions for the cancellation of his credit card and internet access (including revealing his password) and identified the location of his saving and pension accounts.

There are also objective circumstances, to which by s 8(3) of the Succession Act I may have regard, which point to the conclusion that the deceased intended the Informal Will to form his will.

First, the red notebook was found by Mrs Gibbs in the following circumstances:

Mrs Gibbs said that the deceased had many notebooks, and she found many such items at the deceased’s house after he died. But the deceased kept the red notebook, only, in the soft bag he carried with him. That evidence suggests that the deceased regarded the red notebook, and I would infer the Informal Will which is by far the most significant note within it, as being something of particular importance such that he usually carried it with him wherever he went. It seems unlikely that the deceased would behave this way if he saw his note as merely being a draft or something similar.

Second, as I have mentioned, the Informal Will states that $100,000 was to be “set up in a trust fund” for the deceased’s great-niece, and Mrs Gibbs’s granddaughter, Ms Sarah Ingham.

Ms Ingham gave this evidence:

That evidence suggests that, by the time of this conversation, not only had the deceased written the Informal Will, but that he thought its effect was to “set up” a trust fund for Ms Ingham. That points to the conclusion that the deceased did not regard the Informal Will as a mere draft or note.

Ms Ingham’s evidence is consistent with Mrs Gibbs’s (admittedly temporally imprecise) recollection that, “within a year or two prior to his death”, the deceased said to her “I want to leave a trust fund for Sarah”.

Third, the effect of the Informal Will, if valid as the deceased’s will, is to remove the daughters of the deceased’s late brother Colin (Ms Milgate, Ms Irvine and Ms Nelson) as beneficiaries, otherwise than to the extent of an intestacy.

There is evidence to suggest that this is what the deceased intended to do.

Mrs Gibbs said that Ms Milgate, Ms Irvine and Ms Nelson did not visit the deceased and that the deceased said to her, on more than one occasion:

Mr Townsend accepted in oral submissions that this was a factor pointing to the probability that the deceased intended the Informal Will to be his will and to thereby exclude Ms Milgate, Ms Irvine and Ms Nelson as beneficiaries of his estate.

As to when the deceased created the Informal Will, Mrs Gibbs said that on 24 July 2012, a short time after the deceased had been diagnosed with pancreatic cancer and was informed he needed surgery, he said to her “I should do something about my Will”. In response to Mrs Gibbs’s remark that “I thought you had a Will”, he said “No I don’t”.

That exchange suggests that the deceased had then forgotten the 1994 Will. It also suggests that the deceased had not then written the Informal Will.

I do not find that to be inconsistent with what I have said concerning Ms Ingham’s recollection. Ms Ingham placed her conversation with the deceased as being in “approximately June/July 2012” at the John Hunter Hospital. Mrs Gibbs gave evidence that the deceased was admitted to the John Hunter Hospital in approximately June 2012 and placed her 24 July 2012 conversation with him at that hospital. Mrs Gibbs said the deceased was discharged from the John Hunter Hospital on 30 July 2012.

In those circumstances, it seems likely that the deceased wrote the Informal Will at the hospital sometime between 24 and 30 July 2012, after his conversation with Mrs Gibbs and before his conversation with Ms Ingham.

In oral submissions, both counsel accepted that this conclusion accorded with the probabilities.

I do not see the entries on the first page of the red notebook (see [14] above) as casting any light on the question of when the deceased created the Informal Will. As I have mentioned, the first entry is dated 26 February 2012 and refers to a “standard pistol score” that the deceased evidently achieved that day. Immediately following is what appears to be a reference to an appointment with a Dr Tang on “Thurs 2nd” for “radiation” at the “Mater”. The next two occasions after 26 February 2012 when the “2nd” of the month was a Thursday were 2 August 2012 and 2 May 2013. Mrs Gibbs gave evidence that in “early 2013” the deceased had radiation treatment at the Mater Hospital in Newcastle “for approximately six weeks”. That suggests that the deceased’s note of an appointment with Dr Tang on “Thurs 2nd” may have referred to an appointment on 2 May 2013. That suggests, in turn, that the deceased did not make his entries in the red notebook in the order in which they appear.

Mr Evans gave evidence that, following the death of the deceased’s mother in late 2013, he received an enquiry from the solicitors acting for her estate as to whether he held the deceased’s will. Mr Evans retrieved the 1994 Will from his strongroom and then had the following telephone conversation with the deceased:

Mr Evans said he then summarised to the deceased the terms of the 1994 Will and the conversation continued:

Mr Evans said:

That evidence is, on the face of it, inconsistent with the deceased intending that the Informal Will be his final will.

However, as Mr Evans noted, the deceased sounded unwell and lacking in energy. Mrs Gibbs’s evidence establishes that the deceased was, in fact, in very poor health at this time. He died a little over a month later.

Mr Evans’s call to the deceased was unsolicited and, I infer, unexpected by the deceased. I think it probable that the deceased decided not to engage with Mr Evans and that his remark “the Will is acceptable as it is” meant no more than that.

It is true, as Mr Townsend submitted, that the deceased could very easily have signed the Informal Will, to make clear that he regarded it as a testamentary disposition. Mr Townsend submitted that “signature is a usual and commonly understood means of indicating an intention to give effect to a written document”.

However, as Mr Marshall pointed out, the deceased was not a lawyer or a businessman; he trained and worked as a painter and decorator before his 1985 injuries. He was born right handed but was obliged to use his left hand following his accident. Using his non-dominant hand (admittedly some 25 years after losing his dominant hand) he handwrote, neatly and with some structure, a document which bespeaks an intention to make a will, rather than a note which “idly put present thoughts down”.

Mr Townsend submitted that this is a “borderline” case. I do not find it so. I am comfortably satisfied that the deceased intended that the Informal Will would operate, “without more”, as his will.

I propose to make a declaration and order to the effect sought by Mrs Gibbs in the cross-summons and will now hear submissions as to what further orders should be made to finalise the deceased’s estate.