Monday, 27 February 2017

Solving Tony Abbott"s boredom and income problem: He coulda been a publisher

The Owl drew attention recently to Tony Abbott's little problem of learning to live within the limits of a humble backbencher's income as an explanation of his apparent gunning for Prime Minister Malcolm Turnbull. Now, following Tony's recent critical outburst, others are suggesting that simple boredom of not having enough to do is the root cause of his hostility. Both of which reasons turned the Owl's mind to what might have been if his friend Christoper Pearson had died sooner. Tony Abbott could now have been happily at work publishing that notable publication The Adelaide Review.
The possibility of a publisher Abbott is outlined in a decision by the Honourable Justice Gray of the South Australian Supreme Court delivered in June 2014. Christoper Pearson in a typewritten and formally executed will dated 1 May 1996 made a specific disposition of his shares in The Adelaide Review Pty Ltd and his units in The Adelaide Review Unit Trust to his friend, Anthony John Abbott The residue of the estate was to be divided in equal parts between the deceased’s mother and Philip Geoffrey Jones, the person named as the sole executor and trustee. If either of those persons predecease the deceased, the will said, their share was to pass to the survivor. If both predeceased the deceased, the residue was to pass to Mr Abbott.
Before Pearson died he disposed of his shares in The Adelaide Review and units in The Adelaide Review Unit Trust, with the result that the bequest to Anthony John Abbott in the 1996 will "was adeemed."
In an informal document 13 May 2008 Mr Pearson changed the beneficiaries of his estate - estimated at the time to be $300,00 - but there was no mention of Anthony John Abbott and he was not a party to the proceedings before Mr Justice Gray as to which will should be followed.


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CHRISTOPHER JAMES PEARSON [2014] SASC 77 (19 June 2014)

Last Updated: 19 June 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated.
In the Estate of CHRISTOPHER JAMES PEARSON


Reasons for Decision of The Honourable Justice Gray

19 June 2014

SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - GENERALLY
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - OTHER CASES
Application under section 12(2) of the Wills Act 1936 (SA) for an order admitting an informal will to probate. In May 2008, the deceased instructed a solicitor in relation to the preparation of a new will. After taking instructions, the solicitor asked the deceased whether he wished to sign a handwritten will pending the preparation of a more formal document. The deceased agreed and signed the handwritten document. A typewritten draft will was subsequently posted to the deceased. However, the deceased did not reply to this correspondence and there is no indication as to what he did with the typewritten draft will. The deceased died in June 2013. The persons named as executors and trustees in the handwritten document applied to have that document admitted to probate as the will of the deceased.
Whether the handwritten document should be admitted to probate under section 12(2) of the Wills Act. Whether the deceased intended for the handwritten document to be a stopgap will, to have effect only until the deceased had the opportunity to make a formal will.
Held (granting the application):
1. The deceased intended for the handwritten document to operate as his last will and not merely to act as a stopgap will to have effect only until the deceased had the opportunity to make a formal will.
2. The handwritten document is to be admitted to probate as the last will of the deceased.
Wills Act 1936 (SA) s 8 and s 12(2); Probate Rules 2004 (SA) r 77, referred to.
Permanent Trustee Co Ltd v Milton (1995) 39 NSWLR 330; Leslie v McDowell [2000] NSWSC 727, considered.

In the Estate of CHRISTOPHER JAMES PEARSON
[2014] SASC 77


Testamentary Causes Jurisdiction

GRAY J.

Introduction

  1. This is an application under section 12(2) of the Wills Act 1936 (SA) for an order admitting an informal will to probate.
  2. The application has been referred to me by the Registrar of Probates pursuant to rule 77 of the Probate Rules 2004 (SA). On 26 March 2014, I granted the application and made orders admitting the document to probate as the will of the deceased. My reasons for doing so follow.
  3. Christopher James Pearson, the deceased, died on 7 June 2013. The deceased made a formally executed will dated 1 May 1996. The informal document the subject of the present application is dated 13 May 2008. The applicants, John James Snelling and Aaron Mark Russell, are the persons appointed as executors of the deceased’s estate in that informal document. The Court was informed that the net worth of the deceased’s estate at the time of the application was approximately $300,000.00.
  4. Several affidavits were filed in support of the application, including: affidavits of each of the applicants; affidavits of Mark Peter Jappe, the solicitor responsible for the preparation of the purported will; an affidavit of Gaetano Anthony Aiello, who appeared as counsel on behalf of the applicants on the hearing of the application; an affidavit of Emma Alexandra Wilkinson, a solicitor who had retrieved the purported will from storage following the deceased’s death; an affidavit of Father Michael McCaffrey, a minister of religion; and an affidavit of Philip Geoffrey Jones, the person named as the sole executor and trustee in the earlier referred to formal will of 1 May 1996. On the hearing of the application, Mr Jappe gave evidence. In recording the facts that appear later in these reasons, I have drawn from the contents of those affidavits and that oral evidence.
Background

  1. The will of the deceased dated 1 May 1996 was typewritten and appears to have been formally executed. In that document, the deceased appoints Mr Jones as sole executor and trustee. The deceased makes a specific disposition of his shares in The Adelaide Review Pty Ltd and his units in The Adelaide Review Unit Trust to his friend,  Anthony John Abbott . The residue of the estate is to be divided in equal parts between the deceased’s mother and Mr Jones and, if either of those persons predecease the deceased, their share is to pass to the survivor. If both predecease the deceased, the residue is to pass to Mr Abbott.
  2. Mr Snelling deposed that prior to the deceased’s death, he disposed of his shares in The Adelaide Review and units in The Adelaide Review Unit Trust, with the result that the bequest to  Anthony John Abbott  in the 1996 will was adeemed. Mr Snelling further deposed that the deceased’s mother predeceased him. If the 1996 will were admitted to probate as the will of the deceased, Mr Jones would therefore be appointed as executor and trustee of the deceased’s estate and would be entitled to the whole of the estate. The Court was informed that a compromise had been reached between the applicants and Mr Jones, whereby Mr Jones was to be paid $50,000.00 in consideration for agreeing to provide an affidavit of consent to the present application to admit the informal document to probate.
  3. On 13 May 2008, Mr Jappe, then an employee of the law firm Johnston Withers, attended at the home of the deceased to take instructions for a new will. This was the first occasion on which Mr Jappe had taken any instructions from the deceased. Mr Jappe recorded his instructions by hand. Mr Jappe gave evidence that the deceased appeared lucid, and Mr Jappe was satisfied of his testamentary capacity. The deceased told Mr Jappe that the terms of his then current will did not represent his testamentary intentions. In particular, the deceased’s mother had died. Mr Jappe deposed that the deceased said words to him to the effect that Aaron Russell’s younger brother, Joseph, was the deceased’s godson and suffered from Down’s Syndrome. The deceased wished to make some provision for Joseph. Mr Jappe asked whether he wished to do so by means of a trust. The deceased indicated that he was content to simply express the wish and to have Mr Russell use his discretion as to how to apply the assets, without formalising his intentions in a trust.
  4. Following the taking of instructions as to the content of the will, Mr Jappe asked the deceased whether he wished to sign a handwritten “stopgap” will pending the preparation of a more formal document. Mr Jappe told the deceased that the handwritten document would take effect as his will should he die before signing a typewritten version, and would have the effect of revoking the terms of his former will and making provision for the people he wanted to benefit. The deceased agreed. Mr Jappe informed the deceased that usually two witnesses were needed, but that as Mr Jappe was the only person present, he would witness the deceased’s signature.
  5. Mr Jappe handwrote the document. The deceased read the document and then signed it in the presence of Mr Jappe. Mr Jappe deposed that, prior to signing the document, the deceased read the document and appeared to thoroughly understand it and to have full knowledge of its contents. Mr Jappe was the only other person present and he also signed the document. The handwritten document provides:
I Christopher Pearson revoke all previous wills. This is my last will.
I appoint Jack Snelling and Aaron Russell as my executors.
I leave my entire estate equally to Jack Snelling and Aaron Russell.
Signed as my last will.
The signatures of both the deceased and Mr Jappe appear beneath this text, and the document is dated 13 May 2008. Mr Jappe then took the document with him.
  1. Mr Jappe subsequently prepared a draft formal will and sent it to the deceased on 16 May 2008. The deceased did not respond. Mr Jappe wrote to the deceased again in August and December 2008 and January 2009 to arrange a time for the execution of the will. The correspondence sent by Mr Jappe on 22 December 2008 contained the following:
While the handwritten Will prepared by me for you is valid and effective, it does not contain the detail of a typewritten will and accordingly I am keen to have the typewritten Will executed as soon as possible.
Again, there was no response. Mr Jappe sent an account on 17 February 2009. The firm’s accounts manager wrote to the deceased about the outstanding account on 30 April 2009. The account was paid on 20 May 2009. There is no evidence as to what the deceased did with the draft typewritten will.
  1. Following the deceased’s death, the handwritten document was located in storage at Johnston Withers. Mr Jappe deposed that it is this document that is the subject of the present application. Mr Jappe further deposed that the deceased was very clear in his instructions that he wanted the handwritten document to stand as his will should he die before executing a typed up version.
  2. Father McCaffrey deposed of having visited the deceased at his home on a number of occasions in the years prior to his death. On at least two occasions, the deceased informed Father McCaffrey that he had made a will which provided for his estate to pass to Mr Snelling and Mr Russell. He said words to the effect that he had done this as he wanted Mr Snelling and Mr Russell to own the assets and through such ownership look to using the assets for the benefit of Joseph Russell. Father McCaffrey deposed that the deceased took seriously his position as Joseph’s godfather, which he considered to be sacred.
  3. Mr Russell deposed that he had at least a dozen conversations with the deceased about his will since the death of the deceased’s mother in 2008. The deceased told Mr Russell that he had gone to see a lawyer and had made a new will. The deceased said that he had cancelled a previous will which had provided for Mr Jones. He used the words “[i]t’s all fixed” in reference to having made a new will. The deceased said that he had appointed Mr Snelling and Mr Russell as his executors and trustees, and that his estate would pass equally to them. The deceased said that he trusted that Mr Russell would use his share of the estate to look after Joseph. The discussions were that Mr Russell would get half of the deceased’s estate and it would be left up to him to look after Joseph.
  4. Mr Snelling deposed that during the last year of the deceased’s life, he had several conversations with the deceased regarding his testamentary intentions. During the course of these conversations, the deceased informed him that he had revoked a former will that had provided for Mr Jones and had made a new will which appointed Mr Snelling and Mr Russell as executors. The deceased expected Mr Snelling, as executor of his will, to arrange his funeral and informed Mr Snelling of the funeral arrangements he would like. The deceased had provided for Mr Snelling out of friendship. The deceased was concerned about his godson, Joseph, and hoped Mr Russell would provide care to Joseph. There was no discussion about the creation of a trust for the benefit of Joseph. Rather, the deceased said Mr Russell would receive his share outright and the deceased trusted that he would provide care to Joseph.
The Application

  1. It is clear that the informal document the subject of the present application was not executed in accordance with the formalities required by section 8 of the Wills Act. In particular, the document was not signed in the presence of two witnesses as required by section 8(c).
  2. The application is therefore brought pursuant to section 12(2) of the Wills ActSection 12(2) provides for the admission to probate of testamentary documents that have not been executed in accordance with the formalities required by the Act. Section 12(2) provides:
Subject to this Act, if the Court is satisfied that—
(a) a document expresses testamentary intentions of a deceased person; and
(b) the deceased person intended the document to constitute his or her will,
the document will be admitted to probate as a will of the deceased person even though it has not been executed with the formalities required by this Act.
  1. To my mind, the document clearly satisfies the criteria of section 12(2), save for one question as to the status of a “stopgap” will, which will be discussed below. It is clear on the face of the document and from the evidence of Mr Jappe that the deceased intended the document to express his testamentary intentions and to constitute his will.
  2. The question of a temporary or “stopgap” informal will has been considered on a number of occasions in New South Wales. Permanent Trustee v Milton[1] concerned an application to admit an informal document to probate as a codicil to the will of the deceased pursuant to section 18A of the Wills, Probate and Administration Act 1898 (NSW), which provided:
(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the court is satisfied that the deceased person intended the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will.
(2) In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person.
The deceased in that case left a properly executed will and two subsequent letters written by her to her solicitor when she was on holiday overseas. The first letter, dated some 30 years before the deceased’s death, sought cancellation of two beneficiaries from the will, stating:
My signature today shall be enough for this codicil in my last will - in case something should happen to me. When I will be home again I will visit you to make it proper. ...
  1. Hodgson J held that an informal testamentary document may be intended to take effect as a stopgap until a formal will is made. However, if a formal will is not made despite ample opportunity to do so, the informal document retains no testamentary force under section 18A at the date of death. His Honour observed:[2]
In my opinion, there can be cases in which the intention which is disclosed is that a document operate only as a stopgap until the deceased has an opportunity to make a formal will, and in my opinion that would be the relevant intention in relation to s18A. If in those circumstances the deceased died before there was that opportunity, then the document would satisfy the provisions of s18A; while if the deceased subsequently has the opportunity contemplated by that intention and does not take advantage of it, then the s18A intention is not established.
In my opinion, in this case, that is the nature of the intention which is clearly disclosed. The intention was to create a document which was to operate until the deceased had an opportunity to consult with Mr Tout to make a formally valid will. That opportunity existed from the time of the deceased's return in 1963 for some years, and was never availed of. In my view the appropriate inference is that the deceased did not make the contemplated formal will because she did not wish to do so. ...
Hodgson J went on to infer that as the result of a renewed friendship between the deceased and a beneficiary, provision for whom was removed from the deceased’s will by operation of the first informal document, the deceased in not seeing her lawyer to formalise the terms of the informal document intended the first document not to take effect. In these circumstances, Hodgson J held that although the letter would have been effective if the deceased had died before she had a reasonable opportunity to visit the solicitor, the intention disclosed in the letter was not an intention that the letter should constitute an alteration to the will 30 years later.
  1. In Leslie v McDowell,[3] Young J considered an argument that an elderly woman who prepared and executed an informal will without input from a solicitor prior to a trip to Antarctica would have intended the will to act as a stopgap will, to remain in force only while she was away and only for such a reasonable period as might be needed to execute a formal will on her return. In rejecting that argument, Young J observed:[4]
Milton's case is significant because it discusses "stop gap" wills. One theory that was canvassed during argument in this case was that the "will" was made as a stop gap for the trip to Antarctica and was not intended to operate apart from that. There may be some very special cases where a stop gap will ceases to have operation, such as a stop gap until the deceased has an opportunity to see a solicitor, and he has in fact seen a solicitor on many occasions (see Milton's case at p335). However, generally speaking, if one makes a will for a particular reason, that will remains a person's will until that person revokes it in a proper way, or by way of informal revocation under s18A.
  1. In the present case, I am satisfied that the deceased intended for the informal document to operate as his last will and not merely to act as a stopgap will to have effect only until the deceased had the opportunity to make a formal will. Whereas the relevant informal document in Permanent Trustee v Milton[5] had been prepared by the deceased herself without consulting a solicitor, the document the subject of the present application was prepared as a result of the deceased giving formal instructions to Mr Jappe. It may be inferred that the deceased understood the formality of seeking the advice of a solicitor and executing a document to embody his intentions. Had the deceased wanted to revoke the document as his will, it is likely that he would have attended upon a solicitor to do so given that both the 1996 will and the informal document were prepared in consultation with a solicitor.
  2. The evidence of Mr Jappe is that he discussed with the deceased the question of putting a document in place to stand in and for his will. There is no evidence before the Court that the deceased intended the execution of the will to be conditional upon the happening of another event such as the execution of a formal will. In signing the document, the deceased clearly expressed an intention to revoke all previous testamentary dispositions. Further, Mr Jappe’s letter to the deceased on 22 December 2008 made it clear to the deceased that a will was in place and had effect. The deceased subsequently paid his account to Johnston Withers, indicating that he had received Mr Jappe’s correspondence.
  3. The evidence of Father McCaffrey and of the applicants as to their discussions with the deceased concerning his testamentary intentions strengthens this conclusion. On that evidence, the deceased clearly expressed a belief that he had a valid and effective will, the terms of which were consistent with those of the handwritten document.
Conclusion

  1. For the above reasons, I made an order that the handwritten document being the exhibit marked “A” referred to in the affidavit of John James Snelling sworn on 18 September 2013 be admitted to probate as the last will of the deceased and that probate be granted to the applicants.

[1] Permanent Trustee Co Ltd v Milton (1995) 39 NSWLR 330.
[2] Permanent Trustee v Milton (1995) 39 NSWLR 330, 335.
[3] Leslie v McDowell [2000] NSWSC 727.
[4] Leslie v McDowell [2000] NSWSC 727, [43].
[5] Permanent Trustee v Milton (1995) 39 NSWLR 330.



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