Fawcett v Crompton [2010] NSWSC 219 (22 March 2010)

Last Updated: 29 March 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Fawcett v Crompton [2010] NSWSC 219


JURISDICTION:


FILE NUMBER(S):
2009/290844

HEARING DATE(S):
22 March 2010

JUDGMENT DATE:
22 March 2010

EX TEMPORE DATE:
22 March 2010

PARTIES:
Joan Fawcett (Plaintiff)
Susanne Ursula Crompton (Defendant/ Cross Claimant)

JUDGMENT OF:
Smart AJ

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
JR Wilson SC (Plaintiff)
P Hallen SC (Defendant)

SOLICITORS:
O'Brien Connors & Kennett (Plaintiff)
WP McElhone & Co (Defendant)


CATCHWORDS:
Revocation of French will by later Australian wills not intended
intention of deceased to dispose of the whole of his estate including his residuary estate
sufficient cause shown for failure to make application for rectification within 18 months after death of deceased testator
rectification of will granted to reflect deceased's intention

LEGISLATION CITED:
Wills Probate and Administration Act 1898 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Re Barker [1995) 2 VR 439
Estate of Cross, Deceased (NSWSC, unreported, 9 May 1996)
Re Page (1969) 1 NSWR 47
Mortensen & Eassie v State of New South Wales (unreported, NSW Court of Appeal 12 December 1991)
Rawack v Spicer [2002] NSWSC 849
Schneider & Anor v Sydney Jewish Museum Inc & Anor [2008] NSWSC 1331
Spooner & Anor: Estate JJ Davis (NSWSC, Hodgson J, 28 July 1995 – BC 9505381)

TEXTS CITED:


DECISION:
French will not revoked by later Australian wills and in particular deceased'swill of 11 February 2007.
Leave granted under s 29A(3) of Wills Probate and Administration Act 1898.
Rectification of deceased's will of 11 February 2007 granted by deleting the words "in Australia" from the residuary clause.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION



Smart AJ

Monday 22 March 2010


2009/290844 Joan Fawcett v Susanne Ursula Crompton

JUDGMENT

1 The plaintiff is the executrix of the will of the late Kenneth Clair Crompton, who died on 4 June 2007 aged eight-five years. Probate of his last will of 11 February 2007 was granted to her on 10 December 2007.

2 The deceased left property in New South Wales, Queensland and France of considerable value. He made a series of wills. There are two principal issues: firstly, whether the later wills made in New South Wales, where the testator was domiciled at his death and for many years before that, revoked an earlier will made in Paris about 8 October 2003 dealing with the apartment he owned there; secondly, whether the will of the testator of 11 February 2007 should be rectified pursuant to s 29A of the Wills Probate and Administration Act 1898 so as to amount to a disposition of the whole of the testator’s residuary estate. On one approach this would involve the deletion of the words “in Australia” in clause numbered 9 of the will of 11 February 2007.

3 That will relevantly provides, omitting names and addresses:

“1. I REVOKE all previous wills and testamentary dispositions.

2. I APPOINT my sister-in-law [JF] of ...Collaroy, New South Wales as executrix hereof.

3. I GIVE AND BEQUEATH to my sister-in-law [JF] of ...Collaroy, New South Wales any of my personal effects that she may want.

4. I GIVE AND BEQUEATH to my daughter-in-law [SUC] my

5. townhouse situate at ...Birchgrove, New South Wales.

6. I GIVE AND BEQUEATH an amount of $50,000 to [N and PV] of...Cammeray, New South Wales.

7. I GIVE AND BEQUEATH a cottage situate at ...Paddington, Queensland to [RMW] of ..., Potts Point, New South Wales.

8. I REQUEST the executor of this will to sell the apartments located at ...Paddington Queensland and to give half the proceeds to [RMW] of ...Potts Point, New South Wales and the other half to RF of ...Berowra, New South Wales.

9. I GIVE DEVISE AND BEQUEATH the rest of my estate in Australia of whatever nature after payment of debts, funeral and testamentary expenses to my daughter-in-law [SUC].”

4 About 20 November 2006, the deceased consulted a solicitor who prepared a simple will appointing SUC as executrix and providing for some bequests. It contained these provisions:

“1. I REVOKE all my previous wills and testamentary dispositions.

...

5. I GIVE DEVISE AND BEQUEATH the rest and residue of my estate both real and personal of whatsoever nature and wheresoever situate after payment thereout of all my debts, funeral and testamentary expenses to [SUC].”

The will was executed by the deceased in accordance with the required formalities.

5 In January 2007 the deceased told a close friend, RMW, that he wanted to make some changes to his will and RMW at his request copied the 20 November 2006 will into her computer, making the changes requested by the deceased. She then made a computer disk with the amended will recorded on it and gave it to the deceased. Subsequently, that will was printed and formally executed about 14 January 2007. That will contained different dispositive provisions. It dealt with the deceased’s unit at Birchgrove, a pecuniary legacy and with the disposition of realty in Queensland. It provided:

“1. I REVOKE all my previous wills and testamentary dispositions.

...

5. I GIVE DEVISE AND BEQUEATH the rest of my estate of whatsoever nature after payments of all my debts, funeral and testamentary expenses to [SUC].”

6 Some time after the deceased had executed his will of 14 January 2007, the deceased decided that he wanted to make some further changes to his will. He made some dispositive changes in relation to his Queensland apartments. I have earlier set out the terms of the revocation clause and the clause dealing with his residuary estate. He asked RMW to help with the changes he wanted. She made the changes he requested to the will using her personal computer. She again made a computer disk with the will as amended recorded on it and gave it to the deceased, who arranged to have the will printed and for its formal execution. She did not know why the deceased inserted the words “my estate in Australia” into the residuary clause in the will of 11 February 2007. She believed the will dated 11 February 2007 was the will she typed into her computer and gave to the deceased recorded on the disk.

7 About 8 October 2003 the deceased executed a document referred to as a will. It is a handwritten document in the French language and appears to have been written by the deceased. It is signed by the deceased, although his signature on it was not witnessed. The document bears the stamp of a notary in France. An English translation of the French document reads:

“I, the undersigned, Kenneth Clare (sic) Crompton declare by this document, while I am living and in full possession of my physical and intellectual faculties, that I freely make the following disposition:

I give the apartment that I own in Paris ... to my daughter-in-law [SUC] ...so that she freely disposes of it after my death in full ownership..

Drawn up in Paris, ... on 8 October 2003.”

8 Between early September 2004 and 29 September 2006, the deceased made a number of wills in which he appointed the Public Trustee as his executor. The wills were made with the assistance of officers of the Public Trust Office. Each will contains this clause:

“This is my only will. This will sets out completely who I want to give my property to after my death. I cancel any earlier wills and codicils.”

That appears to be a standard clause used in wills drafted in the Public Trust Office.

9 The deceased’s will of 3 September 2004 contained an outright gift of all his property after payment of estate liabilities to SUC. The wills of 15 and 21 October 2004, 6 October 2005, 13 December 2005, 28 September 2006 and 29 September 2006 contain varying dispositive provisions, taking a different form, but each will contains a gift of the deceased’s residuary estate (the rest of my property) to SUC.

10 I interrupt the narrative to record that, as on one view there is a possible intestacy as to part of the deceased’s estate in France, I have to be satisfied that no further party should be joined. The following facts were established:

(a) The deceased was born in England and came to Australia in about 1955. In 1955 he married Audrey Firman in Sydney.

b) The deceased’s wife, who died in 2002, was the plaintiff’s sister.

(c) The deceased and Audrey had two children, Peter and Roger.

(d) Peter was married to [SUC] (the defendant). There was no issue of the marriage.

(e) Peter Crompton and the defendant were divorced in about 2003.

(f) Peter Crompton died between 24 August 2004 and 28 August 2004.

(g) Roger Crompton died on 22 July 1982, aged 20, in a motor vehicle accident.

(h) Roger did not marry and left no issue.

(i) The deceased was the only child of his parents’ marriage. His parents and grandparents are dead. He had an aunt who lived in Bournemouth, England, but she is deceased.

(j) The deceased owned an apartment known as No 57 Rue Damremont, Paris, France at the date of his death. He also had some money in a bank account with BNP Paribas in Paris.

(k) In recent years the deceased had travelled to France each year and stayed for about three months.

(l) The defendant moved into the deceased’s apartment at Birchgrove after the death of Audrey in about 2003. Prior to that time the defendant had been living in a flat at Neutral Bay.

11 After probate was granted, the plaintiff, by her solicitors, made enquiries of a French lawyer, Sophie Gargaro, who, she understood, had acted for the deceased when he purchased the apartment in Paris. Miss Gargaro suggested that the plaintiff consult M.Hubert-Emmanuel Flusin, who conducts a legal practice in Paris as a notaire (French legal practitioner). Mr Flusin, a French notaire, has advised:

(a) The immovable assets (real estate) of properties the deceased held in France will be governed by French law. This applies to the rents and profits earned from the immovable assets located in France (see his letters of 22 April 2008 and 6 February 2009).

(b) The movable assets, (i.e. the bank account) left in France will be governed by the law of the country where the deceased had his latest domicile (see his letters of 22 April 2008 and

6 February 2009).

(c) Mr Le Rossignol, the notaire who drafted the deed of acquisition of the apartment rue Damremont, has confirmed that he holds the will drafted by the deceased after completing this acquisition (see email 27 September 2008).

(d) (i) Under French inheritance law the administration of a will falls to the forced heirs (i.e. the deceased’s children, when applicable) who must hand over the assets bequeathed to the legatees, provided the will does not override their rights.

(ii) Where there are no protected heirs, a copy of the will is sent by the notaire to whom the document was entrusted to the Greffe du Tribunale d’Instance for verification of its formal validity. It is a substantial condition which must be fulfilled before the legatees can dispose of the assets bequeathed (see letter 25 June 2009).

12 It would seem from the materials after making a will in France, if there are no protected heirs, it is often deposited with a notaire. It would seem that there are no protected heirs. It is not my task to deal with the requirements of French law and practice.

13 In his letter of 12 March 2009, Mr Flusin advised that the Australian will appeared to be valid in France, including the revocation clause. Mr Flusin raised the question whether the Australian will of 11 February 2007 effectively revoked the French disposition of the deceased. Reference was made to The Hague Convention of 5 October 1961. Mr Flusin commented that the Australian will made no provision for the assets of the deceased located in France. He wrote:

“As far as French assets are concerned, Mr Crompton therefore died intestate. Unfortunately, in this situation, unless blood relatives are known or can be found, the estate is vacant and passes on to the State.”

14 In his letter of 22 April 2008 Mr Flusin advised that:

“One part of the estate will be ‘reserved’ to her (sic) children (or, if not grandchildren), and if not, to her parents or grandparents. We call this ‘la reserve’, which is a system of forced heirship rules.”

At that stage Mr Flusin assumed that the deceased was a lady.

15 It seems reasonably clear that the deceased had no blood relatives and that further representation before the Court is not required.

16 [JF], the executrix, on being shown the will of the deceased of 11 February 2007, that day asked him, “What have you done about the Paris apartment?” She said that he replied, “Don’t worry about it, it’s all taken care of. All the information is in the National Australia Bank. I’m telling everyone I’ve sold it. I’m sick of everyone sticking their noses into my business.”

17 In paragraph 5 of her affidavit of 1 March 2010, RMW said that during a visit of the deceased and her to Paris in August 2006, he said to her on one occasion:

“I went to see a notaire in France some years ago and I made a will leaving my apartment in Paris to [SUC]. I have been told that the will may not have been valid at French law if my son was still alive but since my son has died I believe that the will is valid. I believe that my French will is not valid in Australia and that my will I made in Australia would not be valid in France.”

In paragraph 24 of her affidavit RMW said that she didn’t know what the deceased intended in relation to dealing with his apartment in Paris.

18 SUC in her affidavit of 9 November 2009 said:

“6. Ken went to Paris some months after Audrey died. When he came back he said to me, ‘Because of the condition of my son I want to be sure that you get the French property’.

7. I knew that a Georg Riediger was the managing agent of the Paris unit for Ken...Ken said to me, ‘Georg pointed out a lawyer to me and I went to the lawyer and made out the property to you.’ Ken gave me a copy of the document written in French dated 8 October 2003 signed by him, which is part of annexure H to the affidavit of [JF] sworn 28 September 2009 ... At that time Ken said to me, ‘I have deposited the will in a safety security box at National Australia Bank Balmain branch. I want you to know where it is. It is in a sealed envelope addressed to you.”

19 SUC said that she didn’t go to the National Australia Bank after the deceased’s death.” The matter was left to the executrix. She has given evidence before me that she went to the bank on two occasions; that she was handed an envelope and that contained and only contained the deceased’s will of 11 February 2007. There were no other papers.

20 SUC said in paragraph 9 of her affidavit:

“9. Some considerable time after the events described in paras 6 and 7 above, Ken was talking about a will he made or was making in Australia. He said:

‘All has been taken care of you will get Queensland and I will make sure you get Balmain. I will also make sure you get the property in Paris. The wills are being kept separate. I have been advised by a lawyer to keep the two wills separate.’”

21 According to paragraph 6 of the affidavit of 19 November 2009 of NV of Cammeray he held a conversation in January 2005 in Luntorf, Germany with the deceased who said: “The Paris unit is for [SUC] and I made a separate will in French so it is all legal. I have also given her the keys.”

22 According to NV, on 26 January 2007 the deceased told him, NV, the French will was in Paris and that he was redoing (or had redone) his legal will for his Australian assets, and that he, the deceased, was keeping his wills separate because of taxes.

23 The relevant principles as to revocation are of long standing. They have been revisited by Tadgell J in Re Barker [1995) 2 VR 439 and Sackville AJ in Schneider & Anor v Sydney Jewish Museum Inc & Anor [2008] NSWSC 1331. At [106], Sackville AJ accepted that in a court of probate the whole question of revocation is one of intention. The judge continued:

“Thus, although a general revocation clause ordinarily revokes all prior testamentary acts, probate may be granted of a prior will or testamentary disposition if the court is satisfied that it was not the deceased’s intention to revoke the earlier document.” (citations omitted)

24 In Re Barker at p 445, Tadgell J said:

“It has been recognised for 150 years and more that a general revocation clause in a will is not sufficient to revoke a prior will if a court of probate is satisfied that the testator did not intend by the later will to revoke the earlier.” (citations omitted)

At p 446, Tadgell J stated:

“There is now, however, ample authority for the view that evidence ought to be generally admitted such as may throw light on the intention with which a testator included a general revocation clause in a later will. Langton J summed it up simply in Lowthorpe-Lutwidge v Lowthorpe-Lutwidge [1935] P 151 at 157: ‘It really is a question in each case for the court to decide: Is there evidence, and sufficient evidence, to establish that the testator did not intend to revoke? I do not think really the law is more complicated than that.’”

and

“The very existence of a revocation clause in a will is, however, prima facie solemnly eloquent of the testator’s intention. Evidence sufficient to rebut it must be clear and unequivocal. Nevertheless, if there is receivable evidence which is sufficient to rebut it, there can be no doubt that it is the duty of a court of probate to give effect to it.”

25 Tadgell J referred at 447 to the comments of Helsham J in Re Page (1969) 1 NSWR 47 at 474 to 475 and emphasised this comment at 447:

“For one is not seeking to ascertain what was meant by a deceased from what he said in a document as in the case of construing a will, but what he intended that the document should do or be.”

26 In my opinion, upon a review of the evidence, much of which I have previously summarised, this is a case where, despite the general words of revocation, the deceased did not intend to revoke his French will. That resolves the first principal issue.

Rectification

27 SUC, the defendant/ cross-claimant, seeks rectification of the deceased’s will of 11 February 2007. Section 29A of the Wills Probate and Administration Act 1898, which was in force at the time of the deceased’s death, being the relevant time, provides, inter alia:

“(1) If the Court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, it may order that the will be rectified so as to carry out the testator’s intention.

(2) An application for an order under this section shall not be made after the expiration of the period of 18 months after the death of the testator, except as provided by subsection (3).

(3) The Court may grant leave to make an application for an order under this section after the expiration of the 18-month period if the Court is satisfied that sufficient cause is shown for the failure to make the application within that period.

...”

28 Section 29A(1) is cast in very wide terms. Section 29A was enacted following a recommendation of the New South Wales Law Reform Commission. It did not recommend restricting the power of rectification other than as stated in the section. As Sheller JA said in Mortensen & Eassie v State of New South Wales (unreported, NSW Court of Appeal 12 December 1991):

“The Court’s discretion, assuming it is satisfied that the will is so expressed that it fails to carry out the testator’s intention, is limited to rectifying the will in such a manner as to carry out the testator’s intention.”

29 The principles relating to the construction of s 29A were summarised by Campbell J in Rawack v Spicer [2002] NSWSC 849 at [26]- [31].

30 In all his many wills made in Australia the deceased purported to dispose of the whole of his property and there was either a gift of all his property subject to payment of all debts and expenses or a gift of the residue. He did not refer to his French apartment or French bank account specifically. With so many wills and so much attention being paid to the disposition of his estate and so many provisions disposing of the residue, it is improbable that the deceased intended that there would be an intestacy as to part of his estate.

31 The beneficiary of the apartment under the French will and the residuary beneficiary of his estate throughout his wills up to 14 January 2007 was SUC.

32 From the materials, it is probable that the deceased believed that separate wills were desirable, if not necessary, to deal with his French apartment and the rest of his estate which was mostly in Australia.

33 The deceased is unlikely to have understood and to have been aware of the intricacies of private international law and the difference at law between immovable property and moveable property especially if the money in his bank account came from the net rents of his Paris apartment.

34 The parties (JF and SUC) do not know and may not be able to prove the sources of the funds in the Paris bank account and tracing is an expensive exercise. There is the authority of the application of Spooner & Anor: Estate JJ Davis (Hodgson J, 28 July 1995 – BC 9505381) to the effect that rectification may be granted for more abundant caution. This decision was followed by McLelland CJ in Eq in the Estate of Cross, Deceased (unreported, 9 May 1996). Further, I am unaware whether French law would apply a principle akin to tracing as to the moneys in the bank account. That may be an unnecessarily complex and costly process, especially having regard to the Bank’s requirements.

35 It is probable that the deceased mistakenly believed when executing the will of 11 February 2007 that he had disposed of his French apartment by his French will and the whole of his estate including his residual estate. In that he was mistaken. The deceased intended to dispose of all his property wherever situated. He did not realise that as a result of inserting the words “in Australia” in the residuary clause of the will of 11 February 2007 he had not done so. The words “in Australia” were inserted by mistake.

36 There is a further matter which is outstanding having regard to the terms of s 29A(3) of the Wills Probate and Administration Act 1898 in that the cross-claimant/defendant [SUC] in substance requires an extension of time in which to seek rectification. I am satisfied that sufficient cause has been shown for the failure to make the application for rectification within 18 months after the death of the deceased testator for these reasons:

a) proceedings were commenced on 1 October 2009 and the Cross Claim was filed on 30 November 2009, that is, promptly; and

b) the estate was a complex one particularly having regard to the difficulties with the French will, the apartment and the bank account of the deceased with a Bank in France and the need to investigate and elucidate the position as to these matters; and

c) there is no relevant prejudice to anyone; and

d) the plaintiff’s case for an order for rectification is substantial.

37 Accordingly, I would grant the requisite extension of time in which to bring proceedings for rectification, that is, I grant leave under s 29A(3) and I make an order for rectification of the will of 11 February 2007 of the deceased by deleting the words “in Australia” from the residuary clause, being the clause numbered 9 in the deceased’s will. At the request of the parties I stand over the granting of relief. It is desired to see what declarations and orders maybe needed to satisfy the requirements of French law in the light of the views I have expressed.

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LAST UPDATED:
26 March 2010