Background

Jeffrey Rogers died on 25 December 2010 a single man with no children. Jeffrey had made a will in 1994. By his 1994 will he appointed a friend Philip Byrne as executor and left the whole of his estate to him. Philip sought a grant of probate of that will.

In the will of 1994, if Philip did not survive Jeffrey by 30 days Jeffrey gave his estate to Alex.

Jeffrey was survived by his brothers David and Mark. Mark sought administration of Jeffrey’s estate on the basis that he died without a will with a view to then favouring, not himself and David, but Philip’s daughter Alex.

Concurrently, Alex claimed that Jeffrey made a will in 2009 leaving all of his estate to her. However no such will, or any copy of such a will could be located and produced to the Court. Alex submitted to the Court that the most likely explanation was that Jeffrey made the will himself but the document was removed from the house by Philip or his partner.

Alex then sought an order that there be a grant of probate or letters of administration to her as the sole beneficiary of a missing will of Jeffrey dated on or about 30 September 2009. Evidence was received by the Court that at the time he signed his will of 1994, Jeffrey also signed a document addressed to “To Whom it May Concern” explaining that he had not provided in his will for his brothers David and Mark because:

“Neither of them have provided me with any financial support, nor have I sort [sic] such financial support from them. They have not accepted my sexuality and have treated me in a homophobic and insulting way.”

The first and main question the Court had to consider was whether on the balance of probabilities that Jeffrey made a will after 1994 which named Alex as the sole beneficiary of his estate.

Alex gave evidence that on several occasions, Jeffrey had indicated that he wanted her to look at a document that he said was his will and said words to the effect “It was all in the will and that everything was left to me and I’d be taken care of.” She gave further evidence that Jeffrey went to his library and put it some place in there. He had a safe in the house but he did not put the document in that safe, at least at that time.

Alex’s evidence was corroborated by people for whom Jeffrey cleaned, a friend, and many other people who attested that it was Jeffrey’s intentions that if he were to die he would be leaving everything to Alex.  

However, the evidence about Jeffrey’s intentions were not uniform. A builder who worked on Jeffrey’s house on three occasions in 2003, 2005 and 2009 deposed that in 2005 Jeffrey told him he was ill and may not complete the house but if he died “I am leaving the house to Philip Byrne and he will engage you to carry out the work.” Similar evidence was given by other people and further, one witness deposed that “The property would be “willed” to Phil and in turn Phil would leave the property to Alex”.

Jeffrey died on Christmas Day 2010. That was a Saturday. He was taken to hospital by ambulance on the Wednesday or Thursday prior. That was not a planned admission. He had rung the ambulance but was unable to get down the steps to open the door for them. He rang Philip to give the ambulance access. He was then taken to hospital.

Alex and her mother resided in Queensland. They flew to Sydney on Christmas Day. Philip collected Alex from the airport. Alex and her mother, Beverley, had planned to visit Jeffrey in hospital. A Dr Young and Siri May first drove Beverley to Jeffrey’s house. They observed that in the study, there was a shredder full to the brim with shredded material.

A number of witnesses spoke of never having seen a shredder in the house or in Jeffrey’s possession. On the other hand, Philip gave evidence of Jeffrey having owned a number of shredders. Jeffrey was also said to be a meticulous man and it would be consistent with his being meticulous that he would have had a shredder.

It was found more likely that it was Jeffrey who was shredding documents in his study than Philip. The fact that the shredder and the shredded material were found in the state they were was consistent with Jeffrey having been shredding material when he suffered the emergency that required him to call the ambulance. He was then so incapacitated that he could not get to the door. If he were shredding documents at the time, then that would explain the state in which they were found.

On the other hand, if Philip were shredding documents for a nefarious purpose, it is highly unlikely that he would have left the evidence. He had time before collecting Alex from the airport to have removed the evidence if there was anything sinister in the shredding.

No shredded will was found.

A safe in Jeffrey’s home was opened by a locksmith on 27 or 28 December. Philip was not present. Dr Young gave evidence that she rang a locksmith and asked him to come and open the safe because they could not find the key. She gave evidence, which was accepted, that they found in the safe “an old outdated will” being a copy of the 1994 will by which Jeffrey left his estate to Philip. Notwithstanding the evidence of many witnesses that Jeffrey said that he intended to leave his estate to Alex and the evidence of some witnesses that he said he had done so, the Court was not satisfied on the balance of probabilities that Jeffrey did make a will in favour of Alex.

It may be that he said he had done what he intended to do. It may be that he said what he thought others would like to hear. It may be that he had mistaken the terms of the 1994 will and thought that under the terms of that will Alex would inherit if she attained her majority. Whatever the explanation for his statements the Court could not be satisfied that he made a later will.

Philip was awarded his costs out of the estate on an indemnity basis. Interestingly, the Court’s view was that the defendants should not be liable to pay the plaintiff’s costs and that the costs of both defendants, including the costs of their cross-claims, should be paid out of the estate on the ordinary basis. This was on the ground that the deceased was the cause of the litigation by his inconsistent statements that he had left his estate to Alex.

A salutary example of ensuring your will is securely located and that your executor knows of that location.