Dowling v Ierino [2025] TASSC 27

In the Estate of Williams (Deceased) (1984) 36 SASR 423

Hatsatouris v Hatsatouris [2001] NSWCA 408

Judgment Number: [2025] TASSC 27

WENDY LYNETTE DOWLING and ALVIN BRUCE DOWLING v ORLANDO IERINO (as representative of the next of kin of the late Nesta Yolandis HILL)

1. By originating application filed 1 December 2010, the applicants apply for the following orders:

(i) That Letters of Administration with the will annexed be granted to the said Wendy Lynette Dowling and Alvin Bruce Dowling.

(ii) That the costs of and incidental to this application be paid by the estate on a solicitor and own client basis.

(iii) Such further or other consequential orders as the Court deems appropriate.

1. Before granting letters of administration, the Court must first be satisfied there is no reasonable doubt that the late Nesta Yolandis Hill (the deceased), intended the testamentary writing signed by her and dated 3 September 1993 to constitute her last will: Wills Act 1992, s 26.
2. The application is not opposed. The applicants submit that the evidence shows that it is beyond any reasonable doubt that Nesta Yolandis Hill (the deceased) intended the informal will to be her last will.
3. The evidence establishes the short facts set out in the applicants' submissions. The deceased Nesta Yolandis Hill is late of Spencer Nursing Home, Wynyard in Tasmania. She was born on 10 July 1902 and died on 7 May 2004, aged nearly 102 years. The deceased's estate consisted entirely of the real property situated at New Road Franklin, described in the purported will as "my property situated on New Road Franklin, Deed title number 2674-66" and the will provides for only one gift, being the New Road property bequeathed to the applicants.
4. On 3 September 1993, she purported to make her last will. The witness Julie Annette Evans signed the purported will at the same time as the deceased, but the other person who purported to sign as witness did not. That person, Marie Louise Phillips, was not present when the deceased and Ms Evans signed the will, but she signed it later the same day in the presence of the deceased. Therefore, the will does not comply with the required formalities associated with the Wills Act.
5. The Wills Act required that a will must be signed by a testator in the presence of two witnesses, both present at the time of the signing. Obviously, in this case, s 10 was not complied with because Ms Phillips was not present at the time of the signing by the deceased. However, the Wills Act 1992_,_ s 26, confers power on this Court to dispense with that formal requirement for the execution of a will if the Court is satisfied there can be no reasonable doubt that the deceased intended the document to constitute her will.

1. The remedial nature of the judicial dispensing power is recognised in the comments of King CJ in In the Estate of Williams (deceased) (1984) 36 SASR 423, one of the earlier South Australian decisions that dealt with the informal wills regime:

"[The dispensing power] is a remedial provision designed to avoid failure of the testamentary purpose caused by non-compliance with the formalities required by s 8 arising out of ignorance or inadvertence."

1. The three elements that need to be proven in order that the Court may grant letters of administration (or admitted to probate) in solemn form were concisely stated by Powell JA in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]:

"It is, and has long been, my view that the questions arising on applications raising a question as to the applicability of s 18A are essentially questions of fact, the particular questions of fact to be answered being:

(b) did that document purport to embody the testamentary intentions of the relevant Deceased?

(c) did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant 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 as her, or his, Will?"

1. There is no need to recite all the submissions of fact appearing under the heading "Long Facts - The Providence of the Informal Will" between pars [19] and [21] in the applicants' written submissions, filed on 21 March 2025, but I accept that each of those submissions of fact are fully supported by the evidence contained in the affidavits which were read at the hearing of the application. The details of those affidavits are contained in the index to the papers for the use of the judge, filed 29 November 2024, items 2-12 inclusive. That material satisfies me beyond reasonable doubt that the deceased made the purported will, the original of which is annexed to the affidavit of testamentary scripts, sworn by Paul Andrew Conde and filed on 1 May 2019.
2. In addition to the questions identified in Hatsatouris, the Court must also be satisfied that the deceased had testamentary capacity at the relevant time the relevant document was made: Schlesinger v Bowman & Ors [2007] TASSC 57, 16 Tas R 350, see the approach taken by Tennent J at [7]. That can be inferred in this case. The deceased instructed Ms Phillips to draft the will for her, correctly identifying the sole asset of her estate. She identified the applicants as persons who might naturally be contemplated as the recipients of such a gift. While the deceased had failing eyesight and was physically in a state consistent with her great age, she is not reported to have any cognitive problems according to those close to her at the time of the making of the will. I am satisfied that the deceased had testamentary capacity when she signed the purported will on 3 September 1993.
3. The single respect in which the will does not comply with the formalities required by the Wills Act is that the witness, Ms Phillips, was not present when the deceased and Ms Evans signed it. Ms Phillips says that in about August 1993, the deceased obtained a will kit which "was subsequently written out by me at her request". She recalls driving the deceased to Huonville on 3 September 1993, at which time the deceased went in to the Westpac bank where she knew Ms Evans was working. Later that same day, Ms Phillips says that the deceased showed her a copy of the will which had been signed by both the deceased and Ms Evans. Ms Phillips states that she signed the document at the request of the deceased, but did so only in the presence of the deceased - not Ms Evans.
4. I accept the submission that there is no evidence which might support any suspicion that there is any subsequent testamentary script. The deceased was 90 years of age at the date upon which the purported will was executed. There can be no doubt as to the authenticity of the purported will. I am satisfied from the evidence filed and contained in the affidavits read on the hearing, that this was the last testamentary act of the testatrix prior to her death. It is clear from the evidence that the family were in contact with the testatrix until her death and they understood her intentions. There is no evidence giving rise to any suspicion that the deceased made any other will; nor that she intended to do so.
5. I accept the submissions put by Mr Barrett: there is an abundance of evidence which proves that the purported will embodies the testamentary intention of the deceased. There is nothing to cast any doubt on the proposition that the deceased intended that the document would be her last will. The affidavit of Ms Phillips, as the witness who wrote out the will and subsequently signed it in the presence of the deceased (but not in the presence of Ms Evans), puts this beyond doubt. I am satisfied beyond reasonable doubt, for the purposes of the Wills Act, s 26 (1), that the deceased intended the purported will to constitute her will. The document is thereby taken to be her will, notwithstanding that it was not executed in accordance with Division 3 of Part 2 of the Wills Act. I therefore propose to make orders granting letters of administration with the will annexed in solemn form.
6. It is ordered:

(1) That pursuant to s 26 of the Wills Act the will exhibited to the affidavit of Paul Andrew Conde, sworn and filed on 1 May 2019, be taken to be the will of the deceased (the said will) and is admitted to proof in solemn form of law.

(2) That the said will be uplifted from file 1007 of 2010 and transferred to the Probate Registry of the Supreme Court of Tasmania.

(3) That a certified copy of the said will be placed on the civil registry file 1007 of 2010.

(4) That Wendy Lynette Dowling and Alvin Bruce Dowling be excused from giving notice under Probate Rule 33.

(5) That letters of administration with the said will annexed in solemn form of the last will of the late Nesta Yolandis Hill, dated 3 September 1993, is granted to Wendy Lynette Dowling and Alvin Bruce Dowling.

(6) The parties have liberty to apply for any further orders required to complete any grant of letters of administration or to give effect to that grant.