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  • Unreported Judgment

Trust Company Ltd v Oates


[2009] QSC 282




No 9197 of 2009


(ACN 004 027 749)



















DATE 02/09/2009


HER HONOUR:  This is an application by Trust Company Limited and Maureen Gilby to obtain orders pursuant to section 18 of the Succession Act 1981, that a page entitled 'Trust Use Only Additional Notes', including the handwriting on the reverse of that page that is Exhibit CC3 to the affidavit of Carmelo Cacciola filed on 21 August 2009, forms the will of the late Noel Pierce.

Trust Company Limited and Ms Gilby are shown as executors in that handwritten note, and it is on that basis that they have made this application.  The application was served on the sister of the deceased, Ms Valarie Oates, the niece of the deceased, Ms Barbara Pierce and Mr Keith Gilby, Mr Peter Gilby and Mr James Gilby.

The latter three persons are the brothers of Ms Maureen Gilby.  Ms Maureen Gilby and her brothers are the children of Margaret Gilby, who was Mr Pierce's de facto partner for many years.  Mr Pierce had made a will with Trust Company of Australia in 2003 in which he appointed Trust Company of Australia Limited and Margaret Gilby as his executors. 

Under that will he gave $5,000 to Ms Oates, $5,000 to Ms Pierce and the rest and residue of his estate to Ms Margaret Gilby.  If she did not survive, then the residue went to Ms Maureen Gilby, and if Ms Maureen Gilby did not survive, it went to her brother, Mr James Gilby.  Ms Margaret Gilby died in August 2008. 

On Thursday 25 February 2009 Mr Pierce contacted Mr Cacciola, an employee of Trust Company, and said that he was pretty crook, going to hospital next week and wanted to make a new will.  Mr Cacciola went to Mr Pierce's home on 26 February 2009 and took instructions for a new will.  Mr Cacciola made notes of Mr Pierce's instructions.  They are Exhibit CC1 to the affidavit of Mr Cacciola that was filed on 21 August 2009.  Those handwritten original notes form the exhibit and are notated that they were read to Mr Pierce.

Mr Cacciola then transcribed those instructions onto page 9 of a document that he was provided with by his employer that is a printed document that is called 'Estate Planning Fact Finder'.  The printed document shows Mr Pierce's name on the front as the client and has Mr Cacciola's signature on the front page.

The document has a series of headings and questions that have been completed, including asset details, bank accounts and various instructions.  Page 9 of that document has been taken out of CC1 and is in fact a separate exhibit to Mr Cacciola's affidavit filed on 21 August 2009.  It is Exhibit CC3.  It summarises the instructions for the will. 

The instructions were, in summary, to appoint Trust Company and Maureen Gilby as executors; to grant Maureen Gilby a right to reside in Mr Pierce's house; upon Ms Gilby vacating the house to sell it and to give one half of the sale proceeds to Ms Gilby and the other half to be divided between Ms Gilby's three brothers who were named as the third respondents to this application.  On the hearing of this application, two of the three brothers attended, Mr Keith Gilby and Mr Peter Gilby.  Mr James Gilby did not attend because of work commitments.

The last instruction was to give the residuary estate to Ms Maureen Gilby.


HER HONOUR:  It appears that there were instructions in relation to a fund of $30,000 to be created to enable expenses of the administration of the estate to be met.  Mr Cacciola read back to Mr Pierce what he had written.  Mr Pierce agreed to it and said that that was what he wanted.  Mr Cacciola tested Mr Pierce's understanding of the instructions by asking him to explain some parts of it in his own words.  Mr Cacciola was satisfied that Mr Pierce could do so.

The last page of the Fact Finder document is a disclosure statement.  That disclosure statement was read out by Mr Cacciola to Mr Pierce and he was asked if he was happy with it, and Mr Pierce signed it.  I can see that it is arguable as to whether or not the signature of Mr Pierce was an acknowledgement in relation to the privacy disclosure statement and consent to disclose personal information that is set out on that page, or whether it is some endorsement of the written instructions that had been recorded for the will and had been confirmed by Mr Cacciola with Mr Pierce.

I note that the privacy disclosure statement concludes with this note that is immediately below Mr Pierce's signature.  "We will be unable to complete the required work unless we receive a printed and signed copy of the Fact Finder."

Mr Cacciola told Mr Pierce that he would arrange for the will to be prepared urgently and for it to be brought to the hospital for him to execute.  Mr Pierce told Mr Cacciola that he was being admitted to hospital on 2 March 2009 for surgery scheduled the following day.  Mr Cacciola records that Mr Pierce telephoned him later that day and told him that he had been thinking about Valarie and Barbara, and that if he did not provide for them, one of them would cause trouble.

Mr Cacciola said that he asked Mr Pierce what provision he wanted to make for them and that Mr Pierce then responded with, "Leave it the way that we discussed this morning and he would give each of Valarie and Barbara $5,000 next week."  It appears that Mr Pierce may have, in fact, even made arrangements with Ms Maureen Gilby for the relevant sum of money to be withdrawn and given to Ms Oates to divide between her and her niece.

The conversation that Mr Cacciola has recorded that he had with Mr Pierce on the 26th of February 2009 was consistent only with Mr Pierce intending to make an inter vivos gift of $5,000 to each of Ms Oates and Ms Pierce and not to alter the instructions that he had given earlier that day to Mr Cacciola for the making of a will.  Although the draft will was then prepared on 27 February 2009, Mr Pierce died on 2 March 2009 before Mr Cacciola had made arrangements for the will to be executed. 

When the disclosure statement was signed by Mr Pierce, it was attached to the rest of the Fact Finder document, including the instructions that are now the subject of the application for a grant of probate as an informal will.  Mr Whiteford of counsel, who appears for the applicants, has helpfully summarised the law in his written submissions.

Proof of an informal will requires proof of three matters:

(1)There must be a document.

(2)The document must purport to state the deceased's intentions as to how voluntarily his property is to pass after his death.

(3)The document must constitute the will of the deceased; that is it is not to operate during his or her life, but must be intended to constitute the deceased's will.

Reference is made to the decision in Macey v. Finch [2002] NSWSC 933 at paragraph 10.  Mr Whiteford referred me to the decision of her Honour Justice White in In the Will and Codicil of Cleland (deceased) [2009] QSC 189.  He submitted that the subject application is an even stronger case for making an order in reliance on section 18 of the Succession Act 1981 than Cleland.

I agree with Mr Whiteford's submission.  Not only is there clear evidence from Mr Cacciola's affidavits of the intentions of Mr Pierce to make a will in accordance with the detailed written instructions recorded by Mr Cacciola, but Mr Pierce signed a document that was attached to those instructions and subsequently expressed in a later telephone call on the same day an intention to adhere to those instructions.

Mr Keith Gilby and Mr Peter Gilby who appeared today, together with Ms Oates and Ms Pierce, thought it would have been fairer if it was the 2003 will of Mr Pierce that was the subject of the grant of probate.  The problem is that once I am satisfied that there is a written document that records the testamentary intentions of the deceased such as to permit section 18 of the Succession Act 1981 to be invoked, then it is not a matter of the Court of expressing preference for an earlier will rather than the informal will. 

I must give effect to the intentions of Mr Pierce by granting the probate in relation to the informal will despite its informality and the fact that the earlier will remained in existence and contained gifts that were acceptable to Ms Oates and Ms Pierce.  All I could do in the course of the hearing was to exhort the Gilby family members to consider the intentions of Mr Pierce to make a gift of $5,000 to each of Ms Oates and Ms Pierce before his death intervened. 

I therefore make an order in terms of the amended draft initialled by me and placed with the file.



Editorial Notes

  • Published Case Name:

    Trust Company Ltd & Anor v Oates & Ors

  • Shortened Case Name:

    Trust Company Ltd v Oates

  • MNC:

    [2009] QSC 282

  • Court:


  • Judge(s):

    Mullins J

  • Date:

    02 Sep 2009

Litigation History

No Litigation History

Appeal Status

No Status