Following Registrar Earles’ recent session on will-making at the NZLS CLE Ltd Legal Executives Conference in August, the following case here in New South Wales may be of interest.

In The Estate of Drummond; Drummond v Drummond [2017] NSWSC 856, a document purporting to be a codicil or informal testamentary document was ruled not to be so by the Court.

Mrs Margaret Drummond died on 19 April 2016 aged  90 years old. She had a 2012 will prepared by her solicitor (Richard Yeo) which appointed her two sons as executors and equal beneficiaries. Her estate was worth approximately A$7.5 million.

The two sons were plaintiffs in the case and were seeking probate of their mother’s 2012 will. The two grandchildren were defendants who wanted the 2016 document to be included in the probate.  The 2016 document included notes to distribute proceeds from the home to the sons and the grandchildren in various percentages and, likewise, with a shop she also owned.

There was absolutely no argument between any of the parties that Mrs Drummond was a very capable person and who had been meticulous with her financial and legal affairs. In March 2016, when she had been told by doctors that her health was deteriorating, there wasn’t any suggestion that her mental capabilities were diminished.

A document which purported to be a codicil appeared about a month before Mrs Drummond passed away. At that time, she had been visited by her friend and previous accountant Mr Ahern. According to Mr Ahern, the two of them discussed amending her will. He made a note entitled, ‘the 2016 document’ which included various changes and amendments that Mrs Drummond required to be made to her will. This note was signed by both Mrs Drummond and Mr Ahern and dated.

The judgment

Justice Kunk detailed parts of the Succession Act 2006 (NSW) Section 8: ‘When may the court dispense with the requirements for execution, alteration or revocation of Wills?’ His Honour noted various past cases and commented:

“For the following seven reasons, the Court is unable to accept Mr Wilson’s submission and, accordingly, is unable to be satisfied to the requisite standard that Margaret intended the 2016 Document to be immediately effective as an alteration to the 2012 Will. Those reasons are:

  1. In its own terms the 2012 Document is incomplete. She indicated to Mr Ahern that she would think about how much money she intended to leave Martin.
  2. Three times during her conversation with Mr Ahern, Margaret — who, the Court readily infers from Mr Yeo’s evidence of drawing her two previous wills, was familiar with the formalities of will-making — expressly said that she would be approaching Mr Yeo:

a) “So I am going to phone my solicitor about the changes”;
b) “When you get back I will call Richard [Yeo] to come over and arrange the changes”;
c) “Yes, that will see us over and then until we can both see Richard Yeo“.

  1. It was Mr Ahern, rather than Margaret, who suggested the creation of the 2016 Document.
  2. It was Mr Ahern, rather than Margaret, who suggested that the 2016 Document be signed by her and that he “witness” her signature. There was some criticism of Mr Ahern by Mr Kirby that while Mr Ahern said in his affidavit that he would “witness” her signature on the 2016 Document, there was no reference to that in an earlier statement he had prepared. Nothing turns on that difference.
  3. Margaret did not ask Mr Ahern to keep the 2016 Document or to make any special arrangements concerning it, for example that it be kept safe or be provided to Mr Yeo in the event of her death. I infer from Mr Ahern’s evidence of how he took the 2016 Document to Mr Yeo that Mr Ahern had in fact taken the 2016 Document with him after it had been created. The point, however, of this and the preceding two reasons, is that nothing in Mr Ahern’s evidence (other than that, at his suggestion, Margaret signed it) bespeaks that she placed any particular significance on the 2016 Document that would justify the Court in inferring that she intended it to have immediate testamentary effect.
  4. There is no suggestion that Margaret thought her death was imminent. She was obviously content to wait until Mr Ahern had returned from New Zealand so that Mr Yeo could come to her home and make the changes to the 2012 Will with Mr Ahern present.
  5. The terms of the 2016 Document are not consistent with Margaret’s meticulous nature. It is important to note that the 2016 Document is advanced as an alteration to her 2012 Will, but it is not entirely clear how the alterations would operate on the 2012 Will. Mr Kirby, in my view correctly, submitted that if the 2016 Document were to be admitted as an alteration to the 2012 Will, then a construction suit would be required to determine how the two documents sat together. That would be inconsistent with the picture which the Court has gleaned of Margaret, who even three weeks before her death appeared to be, as Mr Yeo’s evidence noted, as “sharp as a needle”.
PUBLICATION: ENVOY – The newsletter of The New Zealand Institute of Legal Executives
DATE: Envoy, October 2017
AUTHOR: Andrew Johnstone, APEARS, Sydney, Australia

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