The Estate of Roger Christopher Currie, late of Balmain

These probate proceedings (2012/299480) were commenced on 21 February 2013 by David Roger Currie seeking letters of administration in respect of the estate of his late brother, Roger Christopher Currie (the deceased) who was born on 23 July 1960 and died aged 52 years between 25 and 26 July 2012.

On 20 March 2014 orders were made that the identity and designation of the parties to the proceedings were confirmed as: Mr Currie as the plaintiff, Cholmondeley Darvall as the first defendant, Eleanor Jane Leleu as the second defendant and Kate Shepherd as the third defendant.

Proceedings were heard on 3 and 4 August 2015. Mr M Evans of counsel appeared for Mr Currie. Mr D Stewart, of counsel, appeared for Ms Shepherd. Mr R Jefferis, of counsel, appeared for Ms Leleu. Mr G McGrath, of counsel, appeared for Mr Darvall on the question of final relief and costs.

On 7 April 2014 Ms Shepherd filed a First Cross-Claim seeking an order pursuant to s 8 of the Succession Act 2006 that probate be granted in respect of the document annexed to the First Cross-Claim, which was found on the deceased’s computer after his death (the Computer Document).

The deceased was the second son (the plaintiff being the first born) of Roger Audley Dalglish Currie and Lisa Brownlie Currie. There were two other children of that marriage, Eve Michelle Trefely and Andrew Currie (who died on 14 November 1983).

The deceased’s father died in 1987. There was controversy over his estate. However the distribution was finalised in 1992 pursuant to which the deceased received a property in Duke Street, Balmain, in which he had been living with his father at the time of his father’s death. The deceased remained living in that property until his death in 2012. The deceased’s mother died in 1994. There was also controversy over Mrs Currie’s estate involving an informal will which was ultimately admitted to probate.

The probate proceedings have been heard at the same time as proceedings (2013/207707) brought by Ms Leleu under the Succession Act for an order for provision out of the deceased’s estate on the basis that she was in a close personal relationship with the deceased. The defendants in those proceedings are Mr Currie, Ms Shepherd and Mr Darvall. Mr Darvall has entered a submitting appearance in both proceedings. These reasons relate to the probate proceedings.

The deceased, Mr Currie and Mr Darvall met in the mid-1970s. They were keen runners and would compete together in athletics carnivals for the Eastern Suburbs Amateur Athletics Club. The deceased and Mr Currie were both State champion runners in individual events over various distances. It was in these early years that the deceased informed Mr Darvall that he had “a heart problem” and that his doctors had advised him that he “might die early” if he did not look after himself. The three men retired from athletics in approximately 1980 and thereafter had irregular contact.

Mr Darvall described the deceased in the following way:

The deceased never married. However it is quite clear that he had many relationships with women over the years, some of which involved cohabitation. He appears to have had the capacity to maintain platonic friendships with a number of women with whom he had been romantically involved; one of whom is Ms Leleu (referred to by him as “Ellie”); and another of whom is Frederika Perey (referred to by him as “Freddie”). Indeed Ms Leleu and Ms Perey became close friends and maintained their close friendships with the deceased until his death. Ms Perey’s evidence paints a picture of the deceased as a man of enormous energy and verve for life.

In 2003 the deceased informed Mr Darvall that his “heart issues” had worsened and the doctors had advised him that he would need surgery. The deceased then said to Mr Darvall “with my heart problems, would you be my executor if something goes wrong?”. Mr Darvall said that he was willing to be the deceased’s executor.

Mr Darvall turned 50 in 2007 and held a large party at his former home in Coogee. Both Mr Currie and the deceased were at this party. Mr Darvall did not have any contact with the deceased after his 50th birthday except once or twice on the street. Mr Darvall subsequently moved to Waverley.

Ms Shepherd’s mother, Truda Gray, is related to the deceased. They were generally described as “distant cousins”. Ms Shepherd was born on 7 August 1984. From the age of six she could remember the deceased attending family Christmas events, birthdays and dinner parties hosted by her mother. Ms Gray also regularly took her to the parties that she attended at the deceased’s home in Balmain.

As a child Ms Shepherd lived with her mother in Coledale on the coast south of Sydney and from the age of fourteen she started to travel up to Sydney with friends to explore. The deceased would invite Ms Shepherd and her friends to visit him and suggested that she could stay in the spare room overnight. Kate took advantage of these offers a few times but usually travelled home with her friends.

When Ms Shepherd was in high school she discussed her plans to study with the deceased. The deceased suggested that if she were to study in Sydney she could “always stay” with him in the house in Balmain.

It appears that Ms Shepherd married very young and moved to New Zealand for about four years during which time she saw less of the deceased. She still visited Sydney around her birthday each year and saw the deceased on these occasions.

Although this was not explored in any detail in the evidence, it is apparent that Ms Shepherd’s marriage did not last and in 2006 she moved back to the family home in Bulli. She then saw the deceased more regularly. In 2008 she commenced studying at Macquarie University and moved into a house in Stanmore with a friend. During this period until 2011 she would meet the deceased for coffee or go to the markets with him. She often had in depth conversations with the deceased about his collections of vintage clothes, suitcases and kitchenware as well as travel, love of dance and costume parties. She also house-sat or looked after the deceased’s garden for him a few times in the period 2007 to 2011 when he was travelling and she sometimes stayed overnight at the Balmain house.

It is clear from Ms Shepherd’s evidence and indeed it is accepted by all parties that the deceased had an affinity with Ms Shepherd.

The deceased also discussed his heart condition with Ms Shepherd, informing her that he thought that the medical world would come up with a better method of surgery or treatment for his condition. It is clear that the deceased was resisting having the surgery that had been suggested until, in 2012, his condition deteriorated and he was booked in for surgery on 10 July 2012.

The deceased decided to have a party with his closest friends at his home in Balmain on 28 April 2012. Ms Gray, Ms Leleu and Ms Perey assisted in the preparations for the party and were all present at the house during the latter part of the afternoon/evening. The photographic evidence demonstrates that the house was not free of clutter but that there were some fine pieces of furniture, some older suitcases, books and records and computer equipment in various parts of the house.

Ms Gray was cooking in the kitchen with the deceased and asked him, “Are you worried?”. The deceased said:

It was around 5.00 pm that the deceased gestured to Ms Gray to join him in the room off the kitchen where there were “stacks of folded chairs, storage, musical equipment and computers (some on a desk)”. Ms Gray’s affidavit evidence was that the deceased said:

At the time that he said this, the deceased gestured over his left shoulder. Ms Gray’s affidavit evidence was as follows:

Ms Gray’s affidavit evidence continued:

Ms Gray’s affidavit evidence also included a claim that in the early 2000s, when the deceased was going overseas, he informed her that he had made a will and that it was located in “the antique wooden accountant’s box” described by the deceased as the “one with the secret compartment”.

In this regard Ms Leleu gave evidence that sometime between 2002 and 2004 when the deceased travelled overseas on holiday she looked after the Balmain house. Her evidence was that the deceased informed her that he had made a will and put it in a grey folder in his office. Whilst the deceased was on his holiday Ms Leleu looked at the will. She said that the will named her as the major beneficiary to receive the Balmain property. She was also asked in cross-examination whether she could remember the detail of that will and described it as various gifts of furniture and various other items to the deceased’s friends.

Ms Gray was cross-examined about the conversation that she claimed she had with the deceased on 28 April 2012 and gave the following evidence (tr 24):

The deceased was admitted to Royal Prince Alfred Hospital on 7 and 8 July 2012 suffering from chest pains. He was subsequently admitted to St Vincent’s Private Hospital for his surgery on 10 July 2012. Ms Leleu was named as next of kin in the admission papers. That surgery took place and he was discharged home on approximately 21 July 2012. Ms Leleu found the deceased in his bed on 26 July 2012.

After the friends and family were notified of the deceased’s death various people started searching the Balmain house for his will. The people who were present at the time included Ms Leleu (although she did not take part in the early searches), Ms Perey, Ms Gray and Mr Darvall.

Ms Gray agreed in cross-examination that she did not say anything at this time to anyone searching for the will that the deceased had informed her on 28 April 2012 that he had made a will and that it was encrypted. She said that she wasn’t “aware that a will on a computer was of any relevance” and she thought that a “paper will” had to be found (tr 25). She also said that she didn’t understand “the significance of a computer will” (tr 31). However Ms Gray did inform Ms Perey and Ms Leleu that the deceased had once told her that he “had kept a will in the old antique box upstairs”.

I should pause here to say that Ms Gray is an honours graduate in law with a post graduate diploma. Although she has never practised as a lawyer she had worked in a number of legal centres. She said that she had not had any experience in succession law.

Ms Perey found two USB sticks in a drawer in the Balmain house. She took them to two computer experts who were unable to “break the code” to get into their contents. She then took the USB sticks to George Raicevich, a friend of hers. Mr Raicevich was able to get past the password and discovered the Computer Document.

The USB sticks were then provided to Mr Darvall and a computer expert, Nick Klein, was jointly engaged by the parties. The forensic analysis completed by Mr Klein establishes that the Computer Document was last modified on 1 April 2009. It was last accessed on 13 May 2012. It is in the following terms:

Ms Shepherd’s claim is made pursuant to s 8 of the Succession Act which relevantly provides:

The applicable principles were identified in In the Estate of the Late Stanley Trafford Fry [2015] NSWSC 598 as follows:

Ms Shepherd relies upon the content of the document and the deceased’s conversation with Ms Gray on 28 April 2012 to submit that the deceased intended the Computer Document to operate as his will.

Mr Evans submitted that little weight should be given to the deceased’s conversation with Ms Gray on 28 April 2012. I should emphasise that it was not suggested to Ms Gray that the conversation did not happen nor was it submitted that I should not accept that the conversation occurred. However Mr Evans pointed to the fact that Ms Gray “only came out with this evidence” over two years after the event in her affidavit of August 2014. Mr Evans emphasised that Ms Gray did not tell anyone about this conversation in the weeks after the deceased’s death and searches were going on, some of which she participated in. He also emphasised the fact that Ms Gray is a lawyer and yet she did not consider the conversation of sufficient moment to make any written record of it. Nor did she ask any further questions of the deceased to attempt to clarify what he was saying. Ms Gray’s evidence was that she did not regard the conversation as being of any great significance.

Mr Evans also submitted that as Ms Shepherd’s mother Ms Gray must be seen as a person with an interest in upholding the Computer Document.

Mr Evans submitted that the facts of this case are “much closer” to those in Mahlo v Hehir [2011] QSC 243; (2011) 4 ASTLR 515. That was a case in which the deceased had typed a form of will on her computer in not dissimilar terms to the document in the present case. However it had an attestation clause. In that case there was no conversation of the kind that occurred in this case. McMurdo J referred to the decision in In the Estate of Masters; Hill v Plummer and said that the Court had to be satisfied that the document in question was intended to be the deceased’s will “rather than something which was brought into existence as a step towards the making of a will”.

Reference was also made to Yazbek v Yazbek [2012] NSWSC 594 a case in which Slattery J upheld as the will of the deceased a Microsoft Word document on the deceased’s computer. There are some similarities between the facts of that case and the present case. In that case as in this the electronic file included the word “will”. In both cases the deceased informed others (or another) that he had a “will”. In Yazbek v Yazbek the deceased was departing for international travel. In the present case the deceased was undergoing major surgery about which he had always been concerned. In each case the deceased typed his name at the conclusion of the document. The deceased in each case referred to the will being (expressly or by inference) on his computer and was found undeleted. In Yazbek v Yazbek the deceased opened the will document just over a fortnight before his death. In the present case the deceased opened the will document about nine weeks before his death.

Mr Klein found a number of identical copies of the Computer Document. He also found a very similar document dated 15 December 2007. It had only minor differences in the descriptions of the persons in respect of whom he was making provision. The other difference is that there were no paragraph numbers.

The date 1 April 2009 on the Computer Document was written in by Mr Klein to identify the date on which the document was created. It is apparent that the deceased activated the auto-updating facility which meant that every time the Computer Document was opened, the date on which it was opened would appear within it. It was submitted that the deceased’s activation of this facility militates against an intention that the Computer Document operate as his will.

Extracts from the deceased’s diaries between 2001 and 2012 (Ex D) include an entry on 1 April 2009, “to Balmain Library - printed A3 will”. Although careful and widespread searches have been made, no paper will has ever been found.

Although I have taken the matters raised by Mr Evans into account and although I do have some reservations about it, I am satisfied on the balance of probabilities that the conversation that Ms Gray claimed occurred on 28 April 2012 with the deceased took place. I am also satisfied that the deceased said those words to Ms Gray because he was concerned that he may not survive his surgery. This was a conversation at a party that for all intents and purposes may have been viewed by the deceased as his last opportunity to be with those closest to him in such a setting. He had gathered around him his closest friends at a time when he must have been very anxious. He had resisted the surgery for years and it appears he was only willing to undertake it by reason of the deterioration in his health.

Mr Evans’ submission that Ms Gray did not place any significance on the conversation is a matter to be taken into account. He submitted that the recipient’s reaction is a factor in determining the solemnity or otherwise of the conversation and whether it should be construed or interpreted as the deceased’s intention that the Computer Document operate as his will. It is true that the evidence supports the conclusion that the deceased was an inherently optimistic individual. However it also appears that he was realistic about the option that he had to take up by reason of his deteriorating health. Having regard to the years of avoiding the surgery with his friends trying to convince him to have it, I have little doubt that had the deceased’s health been better he would have continued to avoid the surgery. Once he realised that he had to have the surgery and the date was fixed, I think he took careful steps to ensure that he was “ready” for the surgery and its possible consequences. It is true that the deceased had some experience with estate matters. It is also true that the deceased was aware that an informal document (his mother’s informal will) could be admitted to probate.

One of the reasons Ms Gray moved on from the deceased’s advice to her that he had made a will and that it was encrypted, was to steer him away from the rather maudlin topic at the time they were preparing for a party. Ms Gray gave evidence that this was an unusual statement for the deceased to make. That claim has to be looked at in the light of the fact that Ms Gray had previously been told by the deceased in the early 2000s that he had a will in that box with a secret compartment. In prior years he had spoken to Ms Gray about various gifts that he was thinking of leaving to his erstwhile girlfriends and/or friends but had not been as specific as the statement that he made on 28 April 2012.

It is clear that the deceased trusted Ms Gray. He had informed Ms Perey in about 2003 that he had decided to give the Balmain house to Ms Gray. It was in later years, at least by 2007, that he had changed his mind and decided to leave the house to Ms Gray’s daughter, Ms Shepherd. Notwithstanding that change he clearly remained close to and trusted Ms Gray. Indeed it would appear that neither Ms Gray nor Ms Shepherd were aware of the contents of any will leaving the Balmain property to either Ms Gray or Ms Shepherd until after the Computer Document was discovered.

The last time the deceased accessed the Computer Document was a little over two weeks after his conversation with Ms Gray. It is apparent from Mr Klein’s evidence that no changes were made to the substance of the document on that occasion.

The language used in the Computer Document is clearly language of testamentary intention. Although Mr Darvall’s address is a combination of his old street address in Coogee with the new suburb in which he then lived, the deceased followed through in appointing him as sole executor and trustee of his estate. The deceased was careful to identify with precision those items that he had decided to “leave” to the named persons in the Computer Document. He was careful to deal with the residuary of his estate and to provide a choice of items to the named beneficiaries. He went further and set up a mechanism to resolve any disputes about the choices to be made in respect of the items by fixing the criterion of “the greatest financial need”. The deceased was also careful to provide reasons why his siblings and his nephew were not named as beneficiaries in the document. Additionally he provided that the document was “signed” by him on 1 April 2009.

I am satisfied that when the deceased informed Ms Gray that he had made a will and that it was encrypted and gave her the password, he intended that the Computer Document was to operate as his will.

I am satisfied in all the circumstances that the deceased intended the Computer Document to operate as his will. The orders sought by Ms Shepherd will be made.

I will stand the matter down so that the parties may have some discussions in respect of bringing in Short Minutes both in these proceedings to reflect these reasons and in what I apprehend in the circumstances may be consent orders in the proceedings brought by Ms Leleu under the Succession Act.