May 2019

Court finds notes dictated in hospital are a valid Will – the liberal decision of Borthwick v Mitchell [2017] NSWSC 1145

In Borthwick v Mitchell, the Court found notes dictated to one of the plaintiffs, shortly before the testator’s death, constituted the testator’s final Will.  The notes were not signed or read by the deceased once completed.  The only evidence surrounding the making of the notes came from the plaintiff, one of the estate’s residuary beneficiaries.  This case demonstrates the significance of the Court’s power to widely infer intention from the surrounding evidence and to dispense with important legal requirements for Wills to be properly signed and witnessed.

Facts

On 2 August 2015, Colin Crisp (the deceased) was admitted to Cooma hospital.  Upon his admission, he had hospital staff call Ms Grace Borthwick, the daughter of his predeceased wife and long-term family friend, and she visited him later that afternoon. 

The following day, the deceased and Ms Borthwick were advised of the seriousness of the deceased’s medical condition.  The deceased admitted he had no Will and that he had “stuffed up”.  He asked Ms Borthwick to get his notebook from his bag and write down a few notes.  Ms Borthwick titled the document “Dad’s wishes”.  She wrote down what the deceased said, which included a number of specific gifts and “you [the plaintiff] and Rinsie [the plaintiff’s brother] can keep or sell everything whatever you want…

The deceased also said words to the effect of:

“If we’re still here tomorrow, we’ll get the solicitor to come up. If we’re in Canberra, I’ll get you to get a will kit and bring it to the hospital.”

The notes were not signed by the deceased, nor, according to the plaintiff’s evidence, were they read to him or looked at by him before they were placed back into his overnight bag by Ms Borthwick.  The deceased died later that evening.

Ms Borthwick took the deceased’s personal effects, including the overnight bag containing the notebook, home.  She spoke to solicitors 2 or 3 days after the deceased’s death but did not mention the notes at the time.  The notes were disclosed to Ms Borthwick’s solicitor about two weeks later.  She and her brother commenced proceedings seeking to have the notes recognised as the deceased’s last Will notwithstanding non-compliance with the important legal rules for signing and witnessing Wills.  The defendants were the deceased’s cousins, entitled on intestacy.

Evidence

The plaintiffs relied on evidence from:

  • Ms Borthwick (the plaintiff and one of the residuary beneficiaries).

  • Rinsie Jamieson (Ms Borthwick’s brother, the second plaintiff and the other residuary beneficiary).

  • Dr Timothy Rumball (the deceased’s treating doctor at Cooma hospital).

  • Nicole Wakeling (Ms Borthwick’s former employer).

  • Emma Schlachter (the solicitor consulted by Ms Borthwick and legal representative in the proceedings).

  • Cooma Hospital – clinical notes.

Ms Borthwick’s evidence was the only evidence of the circumstances surrounding the making of the notes.  The evidence of Dr Rumball, Ms Wakeling and Mr Jamieson provided contemporaneous corroborations of discussions had with Ms Borthwick.  They confirmed her evidence, in particular, the events leading to the deceased’s death and the instructions given to her to make the notes. 

The clinical notes corroborated Ms Borthwick’s timeline of events on the afternoon of the deceased’s death, in particular, the reporting to the deceased and Ms Borthwick of the seriousness of the deceased’s medical condition which led to the deceased requesting Ms Borthwick to record and document his wishes.  It should also be noted that the deceased’s death was considered inevitable but not imminent.  There were discussions between Dr Rumball and Ms Borthwick about moving him to Canberra for surgery, sometime after the preparation of the notes.

The solicitor’s evidence supported Ms Borthwick’s evidence about her actions post-death and how she became aware the notes written by her could be considered an informal Will.

The Court accepted the plaintiffs’ evidence because:

  • Ms Borthwick presented as an honest witness.

  • Her account of what happened during the afternoon and early evening (prior to the deceased’s death and at the time when the notes were made) was not exaggerated and was corroborated by Dr Rumball, the treating doctor on the deceased’s admission to Cooma Hospital.

  • There was contemporaneous reference by Ms Borthwick to making the notes for the deceased (to Mr Jamieson and Ms Wakeling).

  • The way the plaintiff dealt with the notes (placing the notebook in the overnight bag and not immediately drawing them to the attention of her solicitor) is at odds with any suggestion she had concocted or fabricated the deceased’s instructions to her for the purpose of benefiting from his estate.

  • It held the inference to be drawn on the evidence was that the deceased intended the notes to take immediate effect as a record of his testamentary intentions to rectify the mistake of not having a formal valid Will. This was so despite the fact that he expressed his desire to have his testamentary intentions formalised in a will-kit or with the assistance of a solicitor.

The Court concluded Ms Borthwick overcame the Court’s suspicion in circumstances where she was a principal beneficiary having prepared the deceased’s Will.

Decision

The Court was satisfied the notes were the final Will of the deceased, because:

  • It was clear on the face of the notes, they were instructions to dispose of assets. In the circumstance where the notes were dictated after acknowledgement that he had no valid Will, the Court held the instructions recorded in the notes (disposing of everything the deceased owned) can “only sensibly be read as what was to be done after the deceased’s death”, as opposed to an inter vivos disposition.  This is despite the fact there was no reference to the document being a Will or appointing an executor.

  • Taking into account the context in which the notes were dictated, Ward CJ in Equity was “comfortably satisfied that the deceased intended this to be his “stopgap” will, pending the formalisation of his testamentary dispositions into, and execution by him of, a proper Will but one nevertheless to have a dispositive effect up until such time as a formal Will was validly executed”.

  • The deceased not making the notes, signing them, looking at them or having them read back to him, did not preclude a finding he intended the notes to be his Will. Her Honour noted a relevant consideration in this case was the closeness in time of death to the preparation of the document, which inferred an intention for the notes to record his testamentary intentions.

  • Furthermore, her Honour held the insistence to record and document his testamentary intentions was significant, stating at [85]:

“…had the notes simply been intended as instructions for the purpose of the preparation of a will the following day there would have been no need for anything to be dictated.  The deceased could simply have instructed Ms Borthwick to arrange for a solicitor to attend on him in hospital (if he had been moved to Canberra by then) or to obtain a will kit (if he remained in Cooma Hospital) the following day.  There would have been no need (and no urgency) for the notes to be dictated there and then.”

The importance of full compliance with Will formalities

This decision is a timely reminder of the Court’s power to draw a wide inference when it comes to deciding whether to accept evidence in support of informal Will applications.  The case emphasises the importance of having a formal Will in place to avoid costly litigation, in light of the parties’ substantial legal costs that came out of the estate.  It is clear there is no substitute for having a properly prepared, signed and witnessed Will.

Authors: Ron Aurelius and Danielle Verde