Elliot & Gregory v Murdoch [1995] QSC 281

r ( IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE Writ No. 188 of 1995 BETWEEN: PETER RICHARD HUTTON ELLIOTT AND ALAN GREGORY ~: RAYMOND JOHN MURDOCH Plaintiffs Defendant ii~,~-9 NOV 19i§f FlLEO':.i:11~;c: · · TOWNSVILtt .. REASONS FOR JUDGMENT - CULLINANE J. .. :;l~~]}.:{t: -·" DE IVERED THE NINTH DAY OF NOVEMBER 1995. . '' ... ''. '-~;.:·:~ In this matter the Plaintiffs have instituted proceedings seeking to prove in solemn form. a document which is alleged to be a copy of the last will of the deceased Lesley Howard Murdoch. The deceased died on the 1st January, 1995. Mr. Elliott, one of the Plaintiffs, is a solicitor and was a friend of the deceased. During a period when the deceased was a resident of Townsville she discussed with Mr. Elliott her desire to make a will. It appears she was transferred at the end of 1990 to Noumea and informed Mr. Elliott that after she arrived in Noumea she would contact him and give him instructions for her will. On the 5th December, 1990, Mr. Elliott received by way of facsimile transmission a copy of a document, which is said to be a copy of the will the subject of the action. It is clear that this document was sent to Townsville prior to the -- 1 of 8 -- ( \ . / c.! 2 deceased leaving for Noumea. Exhibit 8 of Mr. Elliott's affidavit filed on the 30th August, 1995, is a copy of the document and an accompanying letter. The letter starts: "Dear Peter, Here is a 1 Copy of my Will; 2 Address in Noumea." As will be seen the document clearly envisages that a further document in formal terms would be drawn. The document is headed: "LAST WILL AND TESTAMENT". It commences: "This is the New Will, November, 1990, of Lesley Howard Murdoch of 5 Queen Street, Stanton Hill, Queensland, which will be formally drawn up and jointly executed by my Solicitor, Mr. Peter Elliott Townsville and Dr. Alan Gregory, Master of Ormond College, Melbourne University." It makes provision for a life interest in the deceased's home for her father (who predeceased her) and then makes provision for the sale of rental properties, the proceeds of which are to be placed into a trust fund together with superannuation payouts. Clause 3.1 provides as follows: "Income from (2) to support (1) and residue to establish a Residential Scholarship at Ormond College Melbourne for women from country or disadvantaged situations who show -- 2 of 8 -- 3 outstanding academic ability." There is some question as to the effect of this clause. The Plaintiffs in the actions seek by way of summons a determination of the construction and effect of this clause. The will went on to make some provisos to Clause 3.1, the effect of which was to specify certain persons who would be ( entitled to benefit from the provision for a scholarship on \, satisfying certain requirements. ( 'i The document was signed by the deceased arid two witnesses. Before me there was no dispute that the requirements of the Succession Act had been complied with. The document concludes with the following: "N.B. (1) None of the above children are to be told of their possible provisions until after my death/i.e. reading of Will. This Will is witnessed by the undersigned that I, Lesley Howard Murdoch, am of sound mind and body on this day 28th November, 1990". The Defendant contended that the document was not a testamentary document. It is in my view not possible to accept this. There are a number of cases in which documents which clearly -- 3 of 8 -- ( 4 envisaged the preparation of a more formal document have been admitted to Probate as valid Wills. Some of these such as Re: Cowin (deceased) [1967] Q.W.N. 3 and Re: Greenwood [1918] St. R Qd 58 involved printed forms used by the Public Curator or one of the Trustee Companies which were used for the purposes of taking instructions for wills. Those forms provided that the document would take effect as the last will and testament in the event of death before a further testamentary instrument was executed. In each case the formalities were complied with. In Re: Meynell (deceased) [1949) W.N. 273 the deceased dictated instructions for his will to a solicitor. He was gravely ill and being aware of that added an attestation clause to the foot of the instructions and signed the instructions and his signature was witnessed in conformity C I with the requirements of the relevant legislation. The formal document which was to be prepared was not in fact prepared from the instructions before the sudden death of the deceased. The document was admitted:to Probate as the last will of the deceased. The report states that it was the opinion of Barnard J. that: "If since the passing of the [Wills Act] a person troubled to comply with its formalities and had a document, whatever its form, duly executed, there was a very strong presumption that that document was intended to be a will." In my view it is impossible to avoid the conclusion when one -- 4 of 8 -- ( 5 looks at the circumstances here that the document in question constitutes a valid will. Of special significance is the compliance with the formalities of the Succession Act and the language used. I do not think that the fact that another document was to be executed which would become the will of the deceased can in any way affect this conclusion. The second question which arose was whether the Plaintiffs had been appointed as executors according to the tenor of the will. The Defendant took the view that it was immaterial whether the Court concluded that they were or were not so appointed as 'if they were not it was accepted that they shou1d obtain a Grant of Administration. There was no express appointment of the Plaintiffs as executors, however I think_ that the deceased in the language of the first paragraph of the will effectively committed to them the rights and duties which pertain to executors. Mr. Elliott was of course to draw up the further document and it is plain that Dr. Gregory, the Master of Ormond College, would have no role in this regard. ( Where the deceased used the words "jointly executed by my solicitor Mr. Peter Elliott Townsville and Dr. Alan Gregory, Master of Ormond College, Melbourne University" I think it is sufficiently clear that she is conferring upon them the role of executors of her will. The original document was retained by the deceased and has never been found. There is an affidavit from one Gaylene Denise Robinson, a friend of the deceased. Although paragraph 3 of her affidavit is somewhat equivocal, it was common ground between the parties and was stated as such for purposes of the -- 5 of 8 -- 6 record, that this deponent received a copy of the will. In late 1993 and early 1994 she spent some time with the deceased. During this time the deceased spoke of matters which concerned Ormond College and the Plaintiff/Alan Gregory. These are matters which have received a great deal of publicity and are mentioned by the Plaintiff/Alan Gregory in an affidavit filed by leave at the trial. The deceased expressed reservations as to whether the will was still appropriate because of that and other circumstances. Gaylene Robinson's children were expressly mentioned as persons to J ·take a benefit, subject to the conditions already referred to under the will. The deceased spoke with her about a new will and asked her to be an executor. However she at no time saw any other will and in discussions with the deceased in late 1994, no reference was made by the deceased to.any further will. In his affidavit the Plaintiff/Allan Gregory says that the deceased had told him that she had been following the events concerning sexual harassment charges made against him \ and the attendant publicity and that she was dismayed by the '· treatment of him. He says she was in regular contact with him and with his wife and was sympathetic and supportive. He says she told him she was disenchanted with Ormond College. There is evidence of enquiries having been made of solicitors and of the banks and trustee companies in the Townsville area and of a public notice requesting that any person having any knowledge of a will of the deceased contact the solicitor for the Defendant. The Defendant is the deceased's brother and the person entitled in the event of an intestacy. -- 6 of 8 -- ( i \ ' .' 7 There is evidence that a search was carried out at the deceased's office. Mr. Elliott deposes to the belief that the original will has been lost or destroyed. It was common ground that I should proceed upon the basis that the document cannot be found. The position is then that the deceased retained the original of the document and that it cannot now be found. There is no evidence that she ever parted with possession of it and there is no evidence which would allow any conclusion to be drawn as to the circumstances in which it ceased to be in her possession. There is a presumption which is rebuttable that, where a will duly executed and last seen in the testator's possession is not forthcoming at that person's death, it was destroyed by the testator animo revocandi. (See McCauley -v- McCauley (1910)10 CLR 434). In the present case there is simply no basis it seems to me upon which I can conclude that the presumption has been rebutted. Counsel for the Plaintiffs frankly conceded that there was no evidence which he could point to in this regard which would enable me to find that the will remained unrevoked by the deceased, nor it seems to me is there any evidence upon which I might conclude that if the deceased destroyed the will she did so in circumstances which might amount to dependent -- 7 of 8 -- ( 8 relative revocation. See In the Will of Broomhead (1947) VLR 319. The absence of any evidence to the contrary leaves the presumption undisturbed. It is often the case that the absence of any change in the circumstances of the testator's life or relationships is relied upon to rebut the presumption. In the present case there is evidence of some changes which might have the effect of strengthening the presumption, but it is not necessary to rely upon this evidence to conclude that the document sought to be propounded cannot be admitted to Probate. It is not necessary in these circumstances to consider the question of construction although I am inclined to think that the better view is that contended for by the Plaintiffs. In the result the Plaintiffs' action will be dismissed. I think that in the circumstances the appropriate order to make as to costs is to order that the costs of each party be taxed as between solicitor and client and paid out of the estate. -- 8 of 8 --