In the matter of an application in the estate of Pischner [2004] ACTSC 129 (3 December 2004)

Last Updated: 31 January 2005

IN THE MATTER OF AN APPLICATION IN THE ESTATE OF

WOLFGANG RICHARD HERMANN PISCHNER [2004]

ACTSC 129 (3 December 2004)

EX TEMPORE JUDGMENT

No P 445 of 2004

Judge: Crispin J

Supreme Court of the ACT

Date: 3 December 2004

IN THE SUPREME COURT OF THE )

) No P 445 of 2004

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION IN THE ESTATE OF WOLFGANG RICHARD HERMANN PISCHNER

ORDER

Judge: Crispin J

Date: 3 December 2004

Place: Canberra

THE COURT ORDERS THAT:

1 the former will remains un-displaced;

2 the will executed on 16 November 1999 is the will of the late Wolfgang Richard Hermann Pischner;

3 all parties costs be paid out of the estate.

1. This is an application for declaratory relief in relation to an issue as to which of the two wills forms the last will of the estate of the late Wolfgang Richard Hermann Pischner ("the deceased").

2. Prior to his death the deceased had executed a will dated 16 November 1999 in which he appointed the Public Trustee of the Australian Capital Territory and Anton Aalbers, as executor. Approximately one week prior to his death, which occurred on 19 February 2003, he had made an appointment with the office of the Public Trustee, coincidentally to occur on 19 February 2003. Regrettably he died before he was able to attend the appointment.

3. There is evidence from Antonios Jakubus Simon Aalbers ("Mr Aalbers"), that earlier during the month of February 2003 the deceased said words to him to the effect of, "I need to change my will again. It needs to be changed because Junior Investments has been wound up and we have purchased a new home since my last will was written, and I need to ensure that you will still inherit the bulk of my estate". It was in that context that the deceased made the appointment with the Public Trustee to which I have already referred.

4. Mr Aalbers and the deceased had enjoyed a long-term relationship and regarded each other as their life partners. Furthermore the deceased had for a long period, between 1963 and 2002, been the sole shareholder and a director of a private investment company known as Junior Investments Pty Ltd. During the course of 1999 he informed Mr Aalbers that he intended to leave Junior Investments Pty Ltd and all its investments to him in his will. That company had, however, been liquidated following a resolution of the directors, who were the deceased and Mr Aalbers, in August 2002.

5. Following the discussion between the deceased and Mr Aalbers concerning the proposed change of his will, a further, more detailed discussion concerning the intended amendments took place on 12 February 2003. This involved the deceased going through a considerable volume of jewellery and telling Mr Aalbers that he was checking all of the jewellery which had come from his mother and asking Mr Aalbers if he would sit down and help him. He explained that he had made some changes to a copy of his last will and wished to present those amendments to the Public Trustee at the pending appointment.

6. At the conclusion of that discussion, and after writing some comments on the copy of the earlier will, the deceased said to Mr Aalbers words to the following effect: "Can you please print out a typed amended copy for me on the computer? I want it to be completed so that I can hand it over to the ACT Public Trustee. This is the way I want my will to be. I want to ensure that my will is all in order in case anything happens to me". Mr Aalbers explained that they had long adopted the procedure of having the deceased make notes of what he had in mind, having Mr Aalbers type it out for him and then having the deceased carefully read the printout to ensure that it was what he wanted. On this occasion, after typing and printing out a copy of the amended will, Mr Aalbers left it with the deceased together with other papers and jewellery and commenced preparing dinner.

7. He said that the deceased looked at the printed copy and checked it. There was some subsequent conversation between them concerning the value of shares but it does not seem to me that the terms of that conversation casts any clear light on the issues with which I am presently concerned.

8. There is an abundance of evidence to support the contention that the deceased clearly intended to change his will for Mr Aalbers' benefit. A copy of the original will, that had been executed in 1999 and bears the notations made by the deceased in February 2003, has been tendered together with a copy of the re-typed version of that document.

9. Mr Andrews, who appears on behalf of the Public Trustee, seeks a declaration as to whether that re-typed will should be accepted as the effective will of the deceased or whether, alternatively, the executed will in 1999 should be accepted as his true will.

10. Mr Barnett, who appears on behalf of Mr Aalbers, seeks a declaration pursuant to section 11A of the Wills Act 1968 (ACT) ("the Wills Act") to the effect that the typed copy of the will is in fact a true will.

11. Section 11A of the Wills Act is in the following terms:

1 A document, or a part of a document, purporting to embody testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the formal requirements of this Act, constitute a will of the deceased person, an amendment of the will of the deceased person or a revocation of the will of the deceased person if the Supreme Court is satisfied that the deceased person intended the document or part of the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will respectively.

2 In forming a view of whether a deceased person intended a document or part of a document to constitute his or her will, an amendment of his or her will or a revocation of his or her will, the Supreme Court may, in addition to having regard to the document, have regard to -

(a) any evidence relating to the manner of execution of the document; or

(b) any evidence of the testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or not) of statements made by the deceased person.

12. In the present case, there can be no doubt that the deceased person intended that his will be amended to incorporate substantially the provisions set out in the typed amended will. However, Mr Hubert, who appears for Dr Bartell, who is another beneficiary, submits that whilst that may be so, the document was essentially a draft document rather than a document that the deceased intended to be his final will. Mr Hubert stresses the requirement of s 11A - that the court be satisfied that the deceased person intended "the document" to constitute his or her will.

13. I have been referred to some authorities, most notably a decision of the New South Wales Court of Appeal In the Estate of Masters (Deceased) Hill v Plumber; Plumber v Hill (1994) 33 NSWLR 446 in which Kirby J, at 451, referred to the background of the enactment of a comparable provision in s 18A of the Wills, Probate and Administration Act 1898 (NSW). His Honour observed that, by adopting the amendment encapsulated in that provision, Parliament had intended to achieve an important reform. It had acknowledged the injustices which the strict application of the law as to formalities of wills had occasioned in particular cases and accepted, by inference, a criticism of the New South Wales Law Reform Commission that "the rule of literal compliance can produce results so harsh that sympathetic courts are inclined to squirm". Whilst s 18A had not followed precisely the Queensland or South Australian precedents, it still required that the propounded document constitute the will of the deceased person. His Honour said that, "self-evidently, this could not mean a "will" in the full formal sense of the word. Otherwise the propounded document would be admitted to proof and there would be no need for the remedial operation of [the section]." Too rigid insistence that a document should have formalities or other characteristics necessary to constitute it as the deceased's will would narrow significantly the operation of the intended reform. Yet, by the requirement that the document which embodied the testamentary intentions of the deceased person should be described as constituting his or her will, the legislature had plainly drawn a distinction between those documents of testamentary intentions which constitute the deceased's will and those which did not.

14. In the present case, the decisive question is whether the document that was produced by Mr Aalbers on the instruction of the deceased and provided to the deceased should be regarded as a document which the deceased had intended to be his last will. It is true that the document was not signed, though that is not an indispensable requirement for the recognition of the will under s 11A. It is also true that, notwithstanding the preparation of that document, the deceased had apparently made no attempt to cancel the conference with the Public Trustee which was due to occur within a few days. Mr Hubert submits that these factors indicate that this document was to be merely a draft. On the other hand, of course, the mere fact that a person who had prepared a testamentary document which he wished to represent his final will and testament may have wanted a solicitor to review it and ensure that it was in adequate form and witnessed by an independent person or persons, does not take the document outside the scope of section 11A. The real question, it seems to me, is essentially was this a document which, in the words of the section, "the deceased person intended to constitute his or her will"?

15. There are several pieces of evidence that must be considered. First, in asking Mr Aalbers to type up the document, the deceased said words to the effect, "This is the way I want my will to be. I want to ensure that my will is all in order in case something happens to me."

16. Secondly, having had that document produced, the deceased proceeded to check it.

17. Thirdly, a perusal of the document reveals some likelihood of addition and amendment. There is one blank space on the document. Clause 2 contains provision for the appointment of Mr Aalbers and another person whose name remained to be inserted as executors and trustees. There are also some hand-written notations on the second page of the will which suggests that the deceased had realised that there was a problem in the drafting of a subclause because the percentages of the residual estate specified in that subclause and the proceeding subclause would have exceeded 100%. The subclause has not been redrafted by the deceased, though the marginal notes contain some hint as to the manner in which he had contemplated redrafting the clause.

18. Regrettably, it seems to be an inescapable conclusion that the deceased had intended that another document would be produced following his meeting with the Public Trustee in order to give effect to his intentions. I accept that the document that has been drafted substantially reflected his intentions and that, subject to some amendment to sub cl 4(m)(2), it is overwhelmingly likely that a will would have been produced in terms that are co-extensive with this document. However, I am unable to be satisfied that the deceased intended this actual document to constitute his will. That being the case, the former will remains un-displaced and I am obliged to declare that the will executed on 16 November 1999 is the will of the late Wolfgang Richard Hermann Pischner.

19. I order that all parties costs be paid out of the estate.

I certify that the preceding (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 15 December 2004

Counsel for the applicant: Mr W Andrews

Solicitor for the applicant: Sneddon Hall & Gallop

Counsel for the first respondent: Mr R Barnett

Solicitor for the first respondent: Rod J Barnett & Associates

Counsel for the second respondent: Mr K Hubert

Solicitor for the second respondent: Capon & Hubert Solicitors

Date of hearing: 3 December 2004

Date of judgment: 3 December 2004