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Estate Yee [2015] NSWSC 1574 (19 October 2015)

Last Updated: 23 October 2015



Supreme Court
New South Wales

Case Name:
Estate Yee
Medium Neutral Citation:
Hearing Date(s):
19 October 2015
Date of Orders:
19 October 2015
Decision Date:
19 October 2015
Jurisdiction:
Equity - Probate List
Before:
Lindsay J
Decision:
A layman’s handwritten “will” admitted to probate with, and as a codicil to, an earlier professionally prepared, typed will
Catchwords:
SUCCESSION – Probate and letters of administration – Grants of probate and letters of administration –Construction and effect of testamentary dispositions – Ascertainment of testator’s intention – Layman’s will predicated on prior professionally drafted will – Effect of revocation clause in layman’s will – Layman’s will intended to operate as codicil to professionally drafted will – Testator’s intention given effect
Legislation Cited:
Cases Cited:
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [236]- [283]
Fawcett v Crompton [2010] NSWSC 219 at [23]- [26]
Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 at 273-276
In the Will of Page [1969] 1 NSWR 471 at 474-475 and 477; (1969) 90 WN (NSW) (PT1) 6 at 10-11 and 14
Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153 at 158-159
Re Barker [1995] VicRp 64; [1995] 2 VR 439 at 445-448
Schneider v Sydney Jewish Museum Inc [2008] NSWSC 1331 at [106]- [110]
Singh v Singh  [2008] NSWSC 715  at  [31] -  [35] 
Texts Cited:
-
Category:
Principal judgment
Parties:
First Plaintiff: Mary Chebbo
Second Plaintiff: George Yee
Defendant: Darunee Jarat
Representation:
Counsel:

Plaintiffs: L Byrne
Defendant: J Brown

Solicitors:

Plaintiff: Southern Waters Legal
Defendant: Koffels Pty Ltd
File Number(s):
2014/158084

JUDGMENT – EX TEMPORE (REVISED)

  1. Before the Court are two competing applications for a grant of representation relating to the estate of Victor Yee who died, at his Chatswood home, between 28 and 29 May 2013, aged 43 years.
  2. At the time of his death the deceased was married to, but estranged from, the defendant. She is one applicant for a grant. The second, competing application is that of the first plaintiff, supported by the second plaintiff, siblings of the deceased.

FAMILY RELATIONSHIPS

  1. The deceased and the defendant married, in Thailand, on 24 March 2011. There were no children of the marriage. Indeed, the deceased died without issue.
  2. He died by suicide.
  3. Apart from the defendant, he was survived by five siblings (all adults), only three of whom have an actual interest in his deceased estate: Mary Chebbo (the first plaintiff); George Yee (the second plaintiff); and Janet Vallely. The other two siblings (Edward Yee and Margaret Yee) support the plaintiffs’ application that a grant be made in favour of the first plaintiff. The parents of the deceased and his siblings predeceased him.
  4. All persons interested in the making of a grant of representation (including, particularly, those with an interest potentially adverse to the making of a grant as sought by the plaintiffs and the defendant) having been given notice of the proceedings, and a fair opportunity to participate in them, the Court is in a position, upon determination of the proceedings, to make a grant in solemn form: Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153 at 158-159; Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [236]- [283].

TESTAMENTARY INSTRUMENTS : THE FIRST, TYPED; THE SECOND, HANDWRITTEN

  1. The deceased left behind two testamentary instruments, the proper construction and characterisation of which (the parties are agreed) is determinative of the competing applications for a grant of representation.
  2. The first instrument, in time, is a typewritten "will" dated 21 February 2013 (so described) drawn by a solicitor. The second instrument, in time, is a handwritten "will" dated 1 May 2013 (also so described) ostensibly prepared by the deceased himself without professional assistance.

THE TYPED INSTRUMENT

  1. In substance, so far as presently material, the typed document (dated 21 February 2013):
  2. In terms, the instrument contemplated the possibility that the deceased and the defendant might have children together; but, beyond noting that fact, the provisions relating to prospective children have no operative effect in the light of subsequent events.
  3. The terms upon which the deceased made provision for the defendant in clause 8(c) of the typed instrument, by way of a conditional gift, require specific notice. By clause 8(c) the deceased expressed an intention "[to] give to my wife, if the marriage has not broken down at the time (the definition of broken down shall mean separated for at least 14 days) the sum of $50,000 provided she survive me and if not this gift shall form part of the rest and residue of my estate".

THE HANDWRITTEN INSTRUMENT

  1. The handwritten instrument (dated "1/5/13") was headed "Will of Victor Yee". It comprised five unnumbered paragraphs which, for convenience of analysis, I here number consecutively as set out hereunder:
“(1) I hereby revoke all former wills and testamentary dispositions previously made by me and declare this to be my last will and testament.
(2) This house of [a domestic address at Chatswood] I give all with contents to my brother George Yee and Mary Yee (Chebbo), Janet Yee (Velleley) as of today.
(3) My wife Darunee Jarat is not a wife, even though we legally married, she was here to take all my money and assets, from Day 1.
(4) She cheated and lyed about herself and why she stayed in Thailand also before she left 15 April 2013 when we found evidence of her still communicating with Vinnie.
(5) I therefore need only this inherited house from my parents Kai Gee Yee and Low Kuei Oay given back to my brother and sisters.”
  1. This instrument was witnessed by the first plaintiff, her husband (Kaled Chebbo) and a third person (Camille Allam). The fact that the first plaintiff was both a witness to, and beneficiary under, the handwritten “will” constitutes no impediment to the validity of the document because two other witnesses (neither being an "interested witness") also witnessed the deceased's execution of the document: Succession Act 2006 NSW, section 10(3)(a).

PARAMETERS OF THE PARTIES’ DISPUTE

  1. The parties are agreed that, viewed independently of each other, each of the typewritten instrument and the handwritten instrument constitutes a will duly executed in accordance with section 6 of the Succession Act.
  2. Differences between the parties are driven by the facts that:

ANALYSIS

  1. I approach the construction of the deceased's expressions of testamentary intention (focussing particularly on the handwritten instrument) with the principles enunciated by Isaacs J in Fell v Fell (1922) 31CLR 268 at 273-276 in mind.
  2. The language of the handwritten document is awkward in a number of respects but, principally, it seems to me, in its exact reproduction (in paragraph 1) of a standard form of revocation clause found (as clause 1) in the typewritten instrument, coupled with provisions that can be seen as both an incomplete appropriation of the deceased’s estate and inconsistent with any intention to die, in any respect, intestate.
  3. I do not accept the plaintiffs' primary contention that paragraph 2 of the handwritten instrument is expressed in terms capable of being fairly read as disposing of the whole of the deceased's estate. It does no more than give the deceased's house and contents to the plaintiffs and their sister Janet.
  4. However, reading the handwritten instrument as a whole and in the context of the typewritten instrument, I accept the plaintiffs’ alternative submission that the handwritten instrument is to be read, in substance, as a codicil to the earlier, typed will.
  5. That is because:
  6. In my opinion, the handwritten instrument (though expressed to be a "will") was intended by the deceased to take effect, and takes effect, as a codicil to the typed instrument. In expressing that opinion I expressly forbear from a determination whether the gift for which clause 8(c) of the typed instrument provides has, in fact, failed.
  7. Paragraphs 3 and 4 of the handwritten instrument may, as I have suggested, explain in part the provenance of the handwritten document. They do not, in my opinion, go so far as to displace any entitlement the defendant might otherwise, upon an objective investigation of the facts, have under clause 8(c) of the typed instrument.
  8. If there is any dispute about the question whether the deceased's conditional gift of $50,000 has failed in accordance with its terms, that dispute can be determined as an incident of the defendant's application (in proceedings numbered 2014/338217) for Family Provision relief.
  9. In substance, the testamentary intention of the deceased as manifested in the typed instrument, amended by the handwritten instrument, was as follows:
  10. In substance, the parties before the Court agree that, by his support for the first plaintiff’s application for a grant, the second plaintiff has renounced, and is entitled to renounce, probate in favour of the first plaintiff. Absent a compelling reason to do otherwise, the Court can, and should, act upon that agreement.

PROPOSED ORDERS

  1. Subject to any submissions as to the form of the relief to be granted, or as to costs, I propose to make orders to the following effect:

ORDERS (AFTER HEARING SUBMISSIONS ON PROPOSED ORDERS)

  1. There is no dispute that all the parties should get their costs out of the estate.
  2. It is appropriate that each party have costs on the indemnity basis.
  3. These proceedings have been determined without fuss and in circumstances in which it was necessary for there to be a resolution of questions as a precondition for determination of what might ultimately prove to be the real dispute: namely, the defendant’s claim for Family Provision relief.
  4. Accordingly, I make the four orders that I have foreshadowed, including the order for costs to be paid on the indemnity basis.

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