Wills Act 1970, s 34

Document revoked earlier will but was not a testamentary disposition

Appointed Representative : Ms L N Sue as appointed representative of beneficiaries of will dated 12 November 1991

Re Berger [1989] 1 All ER 591

1 SCOTT J: By an application dated 31 July 2001, the Public Trustee has sought declarations and orders that:

(1) There be no reasonable doubt that Donald Lee Hudson, deceased, intended the undated document referred to in the affidavit of Lynette Marie Hey sworn 18 November 1999 to constitute his will.

(2) The cost of the application be paid from the estate of the deceased.

2 The applicant had been directed by a registrar of this Court to bring this application before a judge pursuant to r 4(3) of the Non-Contentious Probate Rules.

3 At the hearing of this application Ms Finch, who appeared on behalf of the Public Trustee, accepted that the standard of proof to be applied to this application is the balance of probabilities. Previously under s 34 of the Wills Act 1970 the standard of proof was beyond reasonable doubt, but those words having been removed from the section, it was accepted that the balance of probabilities is now the appropriate standard of proof. The application is therefore incorrect in its present form.

4 The history of this matter is revealed in the affidavits filed in relation to the application. That evidence establishes that Donald Lee Hudson ("the deceased") had entered into a de facto marital relationship with Kathryn Andrea Drayton ("Mrs Drayton") from Christmas 1994. On 3 April 1997 Ms Drayton gave birth to Katelyn Rose Drayton ("Katelyn"), being the child of Ms Drayton and the deceased.

5 It would appear that the deceased was concerned about some police inquiries being conducted prior to his death. The inquiries concerned allegations against the deceased. Ms Drayton's evidence is that on 11 March 1998 police searched the unit occupied by herself and the deceased in relation to the alleged offences. The deceased was at that time in Perth, having delivered some property to his sister's place.

6 After the police search the deceased returned to Geraldton. On the way back, in the evening, he phoned Ms Drayton and, amongst other things, told her that he felt like driving under a truck. He also told her that he had written a note, told her what was contained within the note, and what he wanted to happen with his possessions.

7 The deceased arrived home at about 7.30 pm on Wednesday, 11 March 1998 and showed Ms Drayton the note. He was, at that time, depressed.

8 The following morning, 12 March 1998, the deceased told Ms Drayton that he had only come home to hold Katelyn and herself one more time.

9 At or about 7.30 am on that day the deceased told Ms Drayton that he was going to see the police and that he wanted to see them alone. Before he left he put the note that he had written on the breakfast bar. He reversed the car out of the driveway, drove slowly past the house and waved to Ms Drayton. That was the last time Ms Drayton saw the deceased alive.

10 At about 9.50 am on that morning Ms Drayton was advised that the deceased had been killed in a car accident south of Geraldton.

11 Ms Drayton has deposed to the fact that she knew the deceased's handwriting well and that the note which was left on the kitchen bar was in the deceased's handwriting. That is not in issue.

12 The note which is central to these proceedings need not be reproduced in full. The important part of the note, so far as this matter is concerned, is the following:

"I told Liza last night that Katelyn and you were to get everything and my will which was made before Katelyn was born and is no longer my wishes. There is a policy of some type with Tower Life and Predencial [sic] plus my state super and Byrnecut super. This should help you look after Katelyn."

13 As I have said, the question that falls for consideration is whether by that document the deceased made an informal will in the terms of s 34 of the Wills Act 1970 ("the Wills Act"). That section provides:

"34 Informal Wills

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."

14 It is not in dispute that the deceased had made an earlier will on 12 November 1991.

15 Two issues arise from the note which the deceased left, a portion of which has been extracted in these reasons:

(a) Whether the deceased by the note intended to revoke the earlier will; and

(b) Whether the deceased intended by the note to make a further disposition of his property in accordance with the terms of the note so that the document constituted an informal will within the meaning of section 34 of the Wills Act set out earlier in these reasons.

16 The two principal cases dealing with this issue in Western Australia are: The Estate of Kevin John Hines & Anor v Hines [1999] WASC 111 and Hennessey v Osborne & Ors, unreported; SCt of WA; Library No 7970; 4 December 1989.

17 In the first of those cases Owen J had occasion to consider a case where a deceased had obtained a will kit and had partly completed his will. From the terms of the will kit the deceased was aware of the need to obtain two witnesses to his signature. The evidence established that the deceased had spoken to his partner concerning that requirement, suggesting that they call upon some nearby friends for that purpose. That step was never taken.

18 Just prior to his death the deceased's partner visited him at a motel after the deceased had a minor surgical procedure. On that occasion the deceased said to her that she should have brought the will so that he could finish it. The following day the deceased died.

19 The question that arose in that case was a little different to the question in this in that an issue arose in that case as to whether the will was regarded as unfinished and, therefore, whether the deceased intended the document to constitute his will.

20 Owen J analysed the elements of s 34 of the Wills Act and said at [12]:

"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."

21 In dealing with the third of those elements, Owen J said at [20]:

"The final element is that the Court must be satisfied that the deceased person intended the document to constitute his will. This part of the Act is remedial in the sense that it seeks to provide a mechanism by which the true intention of the person can be put into effect even though statutory formalities have not been complied with."

"Words used in the statute must, wherever possible, be given their natural and ordinary meaning. However, as a remedial statute the Act is to be given a broad as opposed to narrow construction and one which will serve to achieve the broad objects and purposes which Parliament had in mind."

23 His Honour went on to say that applying the broad meaning it is necessary to recognise that "the inquiry is not directed at whether the deceased's intention was that the document constitute a will as such. It is directed at whether the deceased intended the document to have effect as a "testamentary instrument". Authority for that proposition is to be found in the second of the two cases above cited where Mr Commissioner D R Williams QC expressed that view at page 7.

24 It is to be noted that in Hines' case the document concerned was a will form which was, of course, of some assistance in determining the question of whether the deceased intended the document to be a will, c.f. Re Application of Brown, Estate of Springfield (1991) 23 NSWLR 535 at 540.

"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."

26 Owen J finally concluded that he was not satisfied on the balance of probabilities that the deceased intended the document to take effect as his testamentary instrument.

27 In Hennessey's case Williams C was concerned with a handwritten note attached to a will found in a safe custody box at a bank. The note was addressed "To all of you" and in the note the deceased referred to a number of specific items and made specific dispositions of them. The note was signed "love mum".

28 In that case Williams C concluded that the deceased probably wrote the note after she had executed her will and that the subscription "mum" was a signature for the purpose of s 8(b) of the Wills Act.

29 The question for consideration in that case was whether the note constituted a codicil to the deceased's will in the sense that it embodied the deceased's testamentary intention. Williams C concluded that the deceased in that case was, in effect, giving directions as to the disposition of her property to be effective on her death. Because of that, he concluded that the document was testamentary in character. Williams C concluded that in that case the deceased intended the document to have effect as a testamentary instrument.

30 With those principles in mind, it is then necessary to consider the terms of the note in question here.

31 The first thing to note about the way in which the note is formulated is that the passage referred to above purports to be confirmation of a conversation with "Liza" the previous evening. The evidence contained in the affidavits would lead to the conclusion that "Liza" is a reference to the deceased's sister. There is an affidavit from Liza Nancy Glaser (now Mrs Sue) of 12 September 2001 filed in these proceedings which supports that conclusion.

32 The relevant passage in the note set out earlier in these reasons, in my opinion, falls into two parts. The first part relates to the disposition by the deceased of his assets and the second part relates to the question of the revocation of the earlier will.

33 As to the latter question, in my view, the note clearly evidences an intention of the part of the deceased to revoke his earlier will. His words "My will which was made before Katelyn was born and is no longer my wishes" clearly, in my view, evidences the fact that the deceased's intention was to revoke his earlier will.

34 As to the first issue, however, I am of the view that the deceased did not intend the note to have effect as a testamentary instrument. There is nothing about the note which would lead to the view that the deceased was, by the note, disposing of his property. The note purports to confirm a conversation of the previous evening. Whilst that conversation reveals a testamentary intention, there is nothing about the note which purports to have the effect of disposing of property.

35 It follows, in my view, that, by the note, the deceased intended to revoke his former will, but I am not satisfied that, by the note, he intended to make a disposition of his property upon his death.

36 The effect of these findings, I am told by counsel, is that the deceased's estate will fall to be administered under the provisions of the Administration Act 1903, the effect of which will be that his estate will pass to his daughter Katelyn.

37 In the course of this hearing Ms Sue, on her own behalf and on behalf of the beneficiaries under the earlier will of the deceased, indicated that she desired the deceased's estate to be preserved for his daughter Katelyn. She did not contend that the earlier will of the deceased should stand.

38 I will hear from counsel as to the orders necessary to give effect to these reasons so that the estate of the deceased can be administered.