Wills Act 1970 (WA), s 34

Barclays Bank Plc v O'Brien [1993] UKHL 6; [1993] 4 All ER 417

Baumanis v Praulin (1980) 25 SASR 423

Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447

In the Will of Lobato Shields v Caratozzolo (1991) 6 WAR 1

Martin & Ors v Fletcher & Ors [2003] WASC 59

Re Will and Estate of Robert Emanuel Trinidad (decd); Ex parte the Public Trustee, unreported; SCt of WA (Templeman J); Library No 980504; 28 August 1998

Silvester & Ors v Tarabini & Ors, unreported; SCt of WA (Anderson J); Library No 960062; 13 February 1996

1 COMMISSIONER ODES QC: In this matter the plaintiffs approach the Court in their capacities as executors and trustees under an unexecuted Will. The plaintiffs seek an order which "pronounces and enforces the validity of the unexecuted Will in solemn form of law". The circumstances giving rise to this claim for relief can briefly be summarised as follows. Francesca Belcastro ("the deceased") died on 1 June 2001. On or about 28 May 2001 she had instructed her solicitors to draw a Will. Acting on those instructions the solicitors drew a Will which was forwarded on 30 May 2001 to the first named plaintiff for execution by the deceased. The deceased died before the Will could be executed. Prior to the events described above the second named plaintiff who is the daughter of the deceased had made arrangements for the Will to be executed before witnesses and an interpreter on 3 June 2001.

2 The affidavits before me reveal that prior to the unexecuted Will the plaintiff had executed a Will on 27 September 2000 ("the 2000 Will"). The defendants in the action (all children of the deceased) are named beneficiaries under the provisions of both the unexecuted Will and the 2000 Will. The defendants had originally filed a defence in which they referred to a number of previous Wills executed including the 2000 Will referred to above. The affidavits of Scripts evidence the existence of four Wills executed prior to the unexecuted Will.

3 The defences raised by the defendants purport to vitiate the validity of not only the 2000 Will and the unexecuted Will but also Wills executed prior thereto. For present purposes it suffices merely to indicate that those defences rely on an alleged mental incapacity of the deceased at the relevant times, allegations of undue influence by the second named plaintiff who it is alleged acted as the deceased's attorney pursuant to an enduring power of attorney, was responsible for the management of her financial affairs and exercised control over those affairs. It is not necessary for present purposes to canvass the validity of the various defences raised because by a letter addressed to the Court by the solicitors of the defendants it appears that the defendants' instructions to them were "not to attend at the hearing ... as the distribution of the estate and costs of the action as between the beneficiaries has (sic) been resolved by mediated agreement". The defendants accordingly indicate that they will abide the determination of the Court "as to which Will is to be proven for the purpose of a grant of probate". In this connection it is important to note that initially the relief claimed by the plaintiffs was limited to a claim for the grant of probate of the unexecuted Will, but by an amendment to its statement of claim granted by me on the day of the hearing, they seek to admit the 2000 Will to probate in solemn form as alternative relief.

4 The power of the Court to grant the relief claimed by the plaintiffs in relation to an unexecuted Will is to be found in Pt 10 of the Wills Act 1970 (WA) in which s 34 dealing with "Informal Wills" provides as follows:

"A document purporting to embody the testamentary intentions of a deceased person is a will of that person, notwithstanding that it has not been executed in accordance with section 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his will."

The issue to be determined is whether the unexecuted Will falls within the reach of these dispensing powers. The various sections of Pt 10 of the Wills Act have received judicial attention on a number of occasions.

5 The legislative purpose and intent in enacting Pt 10 of the Act were remedial in the sense that the provisions contained therein were introduced "to avoid the hardship and injustice which has so often arisen from a strict application of the formal requirements of a valid Will as dictated by s 8 of the Act". (In the Estate of Vauk (decd) (1986) 41 SASR 242 at 246; In the Estate of Williams (decd) (1984) 36 SASR 423 at 425, 433; The Estate of Kevin John Hines & Anor v Hines [1999] WASC 111 at [20 - 21]).

6 While a remedial statute must be given a broad interpretation to achieve the objects which the legislature intended, care must nevertheless be taken to ensure that the statutory formalities enshrined in the Act are not unduly relegated in importance.

7 The criteria to be established in order to trigger the dispensing powers are conveniently analysed in the decision of Owen J in Hines (supra) where at par 12 the learned Judge states as follows:

"There are three elements in s 34. First, there must be a document purporting to embody the testamentary intentions of the deceased, or to be put in the terms in which it is put by counsel for the applicant in this case, whether the deceased knew and approved the contents of the document in question. The second element is that the document must not have been executed in accordance with s 8. Thirdly, the Court must be satisfied that the deceased person intended the document to constitute his will."

8 While the second element referred to above is not germane to the problem at hand the first and third elements do call for a consideration in light of the authorities discussed below.

9 Before I analyse the provisions of s 34, it should be noted that the degree of satisfaction or standard of proof required in regard to the above elements is a balance of probabilities. The elements with which this application is concerned require evidence or proof of the intention and knowledge of the deceased in relation to the document and its contents. Such proof may be established not only from the ipsissima verba of the testator but also from the circumstances surrounding the drafting and receipt of the subject document, from which inferences of such intention and knowledge may reasonably be drawn. If there is one of several reasonable inferences open to be drawn which is more probable than the remainder, that inference will satisfy the elements in s34 to the requisite degree of proof.

10 The authorities applying the dispensing provisions of s 34 require the court to be satisfied that the particular document said to be the deceased's Will was either prepared and seen by the deceased prior to his or her death (Henwood v Public Trustee (1993) 9 WAR 22) or, if prepared but not actually seen by the deceased, there be evidence of word or deed on the part of the deceased which manifests his or her intention that that particular unexecuted document represents his last Will and testament. (Vauk (supra); Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535).

11 In Henwood instructions were furnished to a solicitor by Mr and Mrs Henwood on 19 November 1990. The solicitor dictated the wills according to their instructions the following day. However, two days later, before he had seen the document dictated by his solicitor, Mr Henwood died. His daughter, having informed the solicitor of her father's death, instructed him to proceed to engross her father's Will according to the instructions given by the deceased to him. Walsh J refused to admit the prepared document to probate, holding that "the plain meaning of the legislation as set out in s 34 ... flies clearly in the face of this situation where a document is sought to be proved which was not prepared at the date of the death and which was not seen by the deceased, therefore, prior to his death" (at page 26).

12 In Vauk (supra), the deceased gave instructions for a Will to be drawn by the officer of the Public Trustee's Office. The instructions were written but not signed. The officer then drafted a Will on the basis of those instructions. The deceased committed suicide shortly thereafter but a note was found under his head which the Court found had confirmed the document which the deceased had dictated to the draftsmen constituted his Will even though he had not seen the Will itself. The Court admitted the Will to probate, holding that the contents of the note manifested an intention that the document drawn by the officer of Public Trustee should constitute his Will.

13 In Springfield the Court accepted the concept that an unexecuted document could be admitted to probate even though unseen by the testator. However, Powell J (as he then was) held that the document in question prepared by a third party on the deceased's instructions but never seen by the deceased did not attract the dispensing provisions of s 34. In the course of his judgment the learned Judge expressed himself as follows:

"Where however the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased was in truth no more than 'instructions' ... for a Will ... I would ... find it very difficult indeed to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his Will." (At page 540).

14 What these above authorities reveal is that in order to trigger the dispensing provisions of s 34 there must be evidence apart from the contents of the unexecuted document itself which is sufficient to indicate that the testator has actually adopted or authenticated the contents of the particular document which is sought to be admitted to probate. As was stated by Owen J in Hines (supra) at [26]:

"I do not suggest that in the absence of independent evidence an unsigned Will could never be regarded as a testamentary instrument to which s 34 applies. But it seems to me that the Court must be able to infer from the circumstances that the deceased adopted or authenticated the document such as to show that he or she intended the document to take effect as a testamentary instrument. The availability of independent evidence (and by that I mean evidence apart from the document itself) makes the task of proving the Will considerably less difficult."

15 It will be seen from the above that it will depend upon the facts of each particular case whether the deceased "by some act or words demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his part, operate at her, or his will" (original emphasis per Powell JA) in Hatsouris v Hatsouris [2001] NSWCA 408 at [56]; Springfield (supra) at 539F-G; Perpetual Trustees (WA) Ltd v Gailey & Anor [1999] WASC 61; Estate Donald Lee Hudson (Dec) [2002] WASC 146; see also Hockley, MacMillan Curthoys: "Wills Probate and Administration Service WA", vol 1, [24, 165.1 et seq].

16 The evidence in this matter is provided, by agreement between the parties, by way of affidavit. There is regrettably a paucity of evidence in relation to the circumstances surrounding the instructions given by the deceased to her solicitor relating to the unexecuted Will and in particular in relation to the events thereafter. It is clear that arrangements had been made with certain witnesses to attest the Will. The affidavit of the first named plaintiff gives details as to the manner in which the deceased was cared for by her daughter the second named plaintiff which are not strictly relevant for present purposes. He does however depose, that before her death on 1 June 2001 the deceased contacted him and requested that he arrange an appointment with the solicitors on 28 May 2001 "so that she could amend her Will". He then deposes to the fact that after the deceased had provided instructions for her new Will he received a letter from the solicitors dated 30 May 2001 enclosing a copy of the unexecuted Will which is annexed. The annexure is a letter addressed by the solicitors to the first named plaintiff enclosing the unexecuted Will and requiring the first named plaintiff to "ensure that the interpreter Domenico Germano is one of the independent witnesses to the signing of the Will". Instructions as to the execution of the Will were attached. He does not however state what he did after the receipt of the letter and the unexecuted Will nor whether he contacted or communicated with the deceased thereafter. A supplementary affidavit filed by him on the day prior to the hearing takes the matter no further.

17 The second named plaintiff also deposed to an affidavit which deals exclusively with the nature and extent of the care given by her to the deceased, details of which are irrelevant for present purposes.

18 An affidavit which touches on the circumstances surrounding the dispositions made in the unexecuted Will is by one Georgio Raso who states that on 27 May 2001 he visited the deceased at her home and recalls the conversation which he conducted with her. The relevant portions of his affidavit for present purposes are to be found in paragraphs 6, 7 and 8 in which he states that on that occasion the deceased told him that she was going to change her Will. He recalls her telling him that she was upset with her children, (the three defendants) and "that she would be reducing Nancy and Clementina's portions under her Will to $30,000 each and Domenic's portion to $60,000 with the balance of the estate being left to her eldest daughter, Teresa Zarelli ... as she was the one who attended to her every need". The deponent recalled further that the deceased "even expressed her reluctance to leave $60,000 to Domenic (the first defendant) because she had given $20,000 to Domenic before and he had failed to account to her". But for the immediately preceding sentence, the contents of paragraphs 6, 7 and 8 of Raso's affidavit are confirmed in supplementary affidavits of the two plaintiffs filed the day before the hearing. Further confirmation of the nature and extent of the bequests which the deceased said she had in mind is contained in affidavits of Guiseppe Zito, a friend of long standing and Seng Fai Chan, the solicitor to whom instructions to draw the Will was given. These affidavits were filed at the same time as the supplementary affidavits.

19 Despite the allegation made in the plaintiff's statement of claim that the deceased had prior to her death "read and approved the contents of the unexecuted Will" there is nothing to that effect in any of the material placed before the Court. It is clear from the annexure attached to the affidavit of the first named plaintiff that the solicitors had required him to ensure that there was an interpreter present for the execution of the Will. There is no affidavit from the interpreter before me nor is there any indication whether the deceased had actually seen the unexecuted Will or had its contents related and explained to her. The first named plaintiff who received the copy of the unexecuted Will does not state that he ever showed the Will to the deceased or that he explained the contents to her. There is nothing before me from which it can be inferred that she was even aware that the Will had been drafted.

20 On the basis of the authorities referred to by me, the plaintiffs have failed to satisfy me that the deceased intended the unexecuted Will to constitute her Will and that the provisions of s 34 of the Act have been complied with. I accordingly dismiss the plaintiff's claim to grant probate in solemn form of the unexecuted Will.

21 As indicated above the plaintiffs have sought, in the alternative, a similar order in relation to the 2000 Will. That Will, on its face, appears to have been duly executed by the testator in the presence of the two witnesses whose signatures appear thereon. I am satisfied to the requisite degree of proof, on the basis of the affidavits before me, as well as doctor's certificates dated 28 August 2000 and 27 May 2001, that on the date of the execution of the 2000 Will, in September 2000, the deceased had the testamentary capacity to dispose of her estate.

22 The medical certificates were obtained before and after the execution of the 2000 Will, presumably to assuage any concerns about her capacity by reason of two strokes which she suffered prior to 1996, which according to the second named plaintiff who cared for her throughout, affected the use of her left arm and leg but left her mental faculties unimpaired.

23 Nothing has been placed before me by way of affidavit to refute or contradict the conclusion of testamentary capacity.

24 Counsel for the plaintiffs had in his outline of submissions dealt fully with the allegations of undue influence raised by the defendants. In light of the fact that the onus of proof of such allegations lay on the defendants who led no evidence in support thereof, counsel for plaintiff conceded, correctly in my view, that it was unnecessary for the Court to deal with them in these proceedings.

25 While I am not prepared to make any order in relation to the unexecuted Will, I order that the Will executed by the deceased, Francesca Belcastro, dated 27 September 2000 be admitted to probate in solemn form. Counsel for the plaintiffs requested an order that costs of these proceedings be borne by the estate of the deceased and it is so ordered.