MATTER : The Will of JENNIFER GAY STRICKLAND late of 6 Camboon Road, Morley in the State of Western Australia (Dec)

Wills Act, s 34, s 36

Estate of Hines v Hines [1999] WASC 111

In the Estate of Vauk (1986) 41 SASR 242

Malatesta v Scott and Ors, unreported; SCt of WA (Murray J); Library No 940291; 15 June 1994

Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535

Re Estate of Hudson (DEC); Public Trustee [2002] WASC 146

Re Estate of Nicholls (DEC) [2003] WASC 85

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

1 JOHNSON J: On 17 September 2003 the Probate Registrar refused to make a grant of probate of an informal Will of Jennifer Gay Strickland ("the deceased") bearing the date 21 February 2003 ("the 2003 Will"). Dennis Keith Varian, the executor nominated in the 2003 Will, brings this appeal against the Probate Registrar's decision pursuant to r 5 of the Non-Contentious Probate Rules. An appeal under the Non-Contentious Probate Rules is an appeal de novo which allows the Judge on the hearing of the appeal to hear the matter afresh: Re Estate of Nicholls (DEC) [2003] WASC 85 at 6. Consequently, this is, in effect, an application for the proof of an informal Will under Pt X of the Wills Act 1970 ("the Act") and, in particular, s 34.

2 On 19 February 2003, the deceased, who had been admitted to the Cancer Foundation Cottage Hospice, requested Maria Camilla Nicola Ciffolilli, a friend and a qualified solicitor, to arrange for a solicitor to prepare her Will. On the same day Ms Ciffolilli contacted Paula Annette Martino and asked her to contact the deceased. Ms Martino spoke to the deceased on that day. She arranged to meet with the deceased at the Hospice on the following day. At the meeting on 20 February 2003 Ms Martino found the deceased's speech to be slurred, but her instructions were understandable. Further, the deceased was able to identify the members of her family and the content of her estate. On this basis, Ms Martino was prepared to proceed to take instructions for the preparation of a new Will.

3 Mr Varian was present when Ms Martino attended and the deceased consented to Mr Varian remaining in the room whilst Ms Martino took her instructions. During this meeting the deceased asked Mr Varian to find her the Will she had brought with her to the Hospice. The Will was dated 3 November 1992 ("the 1992 Will"). The original and a copy of the 1992 Will was provided to Ms Martino. She retained the copy and returned the original to the deceased. Ms Martino read the copy of the 1992 Will to the deceased. She held the 1992 Will up to the deceased and asked her if the contents of the 1992 Will reflected how she wanted her assets to be dealt with following her death. The deceased said, "No." She then provided to Ms Martino instructions as to specific bequests, including a bequest to her husband from whom she had been separated for some time. She also indicated that she no longer intended leaving certain artwork to her brother Neil. The deceased was then asked what she wished to do with the balance of her estate. She said that she was unsure, but would think about it and let Ms Martino know. The meeting concluded with an agreement to meet on 22 February 2003.

4 On the morning of 21 February 2002 Ms Martino received telephone calls from Mr Varian and Ms Ciffolilli to the effect that the deceased had deteriorated through the night and wanted to sign her Will. The Will was then drafted in accordance with the instructions taken on 20 February 2003. However, as those instructions did not identify the beneficiary of the residuary estate, Ms Martino attempted to obtain some further instructions. She spoke to Mr Varian who advised her to finalise the Will by leaving the residue to the deceased's sister, Justine Riley, but to verify this with the deceased when they met to finalise the Will. Following that conversation, Ms Martino amended the Will by deleting the specific bequest to Justine Riley and including her as the beneficiary of the residuary estate.

5 When Ms Martino attended the Hospice in the afternoon of 21 February 2003, Ms Ciffolilli was visiting the deceased. In her presence, Ms Martino read the 2003 Will to the deceased and after each paragraph the deceased said "yes". The deceased was too weak to sign, but placed her mark on the final page of the 2003 Will. Ms Martino and Ms Ciffolilli both then affixed their signatures as witnesses and Ms Martino dated the Will. Earlier that morning, Mr Varian witnessed the deceased destroy the 1992 Will by tearing it up. Following the deceased's death, and acting in his capacity as executor, Mr Varian searched through the deceased's personal papers and located a Will dated 7 August 1998 ("1998 Will"). Prior to then he was unaware that there existed an earlier Will other than the 1992 Will.

6 The issue for this Court arises from the fact that there is evidence of a lack of testamentary capacity affecting the execution of the 2003 Will. Larry Chee Wooi Liew, a medical practitioner employed at the Cancer Foundation Cottage Hospice who was responsible for the deceased's care, deposes to the fact that he saw the deceased on 20 February as part of his routine afternoon ward round. His clinical notes of that date indicate that the deceased was not confused, although he did not specifically assess her testamentary capacity. However, the clinical notes made at the time of reviewing her on 2 February 2003 indicate that the deceased was confused for most of the day from 10 am onwards. The entry in his clinical notes states that, in his opinion, the deceased was not fit to sign any legal documentation on account of her confusional state. The appellant does not dispute Dr Liew's opinion. As a result, the appellant cannot and does not rely on any act of testamentary intention of the deceased on 21 February 2003; either the execution of the 2003 Will or the revocation by destruction of the 1992 Will.

7 Consequently, the appeal raises two issues: whether the instructions given by the deceased on 20 February constitute an informal Will pursuant to s 34 of the Wills Act; if not, whether the events which transpired on 20 February 2003 constitute a revocation by the deceased of her previous Wills.

8 As to the first issue, s 34 of the Wills Act provides that 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 s 8, if the Court is satisfied that the deceased intended the document to constitute his Will. Section 8 of the Act sets out the formal requirements which must be met for a Will to be valid. The requirements all relate to the execution of the Will. Section 34 is in Pt X of the Act headed "Informal Wills". Part X came into operation in 1987 and was introduced to allow a document which purports to be a testamentary instrument to be treated as the last Will and testament of the deceased even though it has not been executed in accordance with s 8 of the Act: Estate of Hines v Hines [1999] WASC 111 at 5 - 6. Part X of the Act is remedial in the sense that it seeks to provide a mechanism by which the true intention of a person can be put into effect even though statutory formalities have not been complied with. It remains the case that 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 broad, as opposed to narrow, constructions and one which will serve to achieve the broad objects and purposes which Parliament had in mind: Estate of Hines (supra) at 7.

9 The intention required by s 34, that is, the intention that the document "constitute his will", must be an intention possessed in respect to an actual document. Hence, the inquiry begins at the time at which the document came into existence and not before: Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 539; Malatesta v Scott and Ors, unreported; SCt of WA (Murray J); Library No 940291; 15 June 1994. See also Silvester & Ors v Tarabini, unreported; SCt of WA; Library No 960062; 13 February 1996, per Anderson J, at 20; Estate of Hines (supra), per Owen J, at 7.

10 It is the applicant who bears the onus of proving that the deceased intended the document to constitute his Will. The onus must be satisfied on the balance of probabilities: Silvester v Tarabini (supra), per Anderson J, at 10.

11 In the Estate of Hines (supra) at 6, Owen J sets out the three elements which must be satisfied before s 34 can take effect:

"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."

12 His Honour elaborated on the third element to the following effect (at 7):

"However, applying a broad meaning I think it is necessary to recognise that the inquiry is not directed at whether the deceased's intention was that a document constitute a will as such. It is directed at whether the deceased intended the document to have effect as a testamentary instrument: In the Will of Osborne; Hennessey v Osborne, unreported, SCt of WA (Commissioner Williams QC); Library No 7970; 4 December 1989 at 7."

13 Having conducted a review of other authorities on the issue of informal Will, Owen J said:

"There is, in each of these factual situations, evidence apart from the document itself, which could lead to a finding that the deceased ... 'authenticated or adopted' the will. I do not suggest that in the absence of independent evidence of 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 form 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."

14 The appellant submits that "the instructions taken on 20 February 2003 took effect as a testamentary instrument". This conclusion is said to flow from the following factors:

• The deceased intended to make a new Will in that she had arranged an appointment and brought to the Shenton Park Hospice a former Will;

• Dr Liew's evidence that the deceased was not confused on 20 February 2003;

• The deceased knew the beneficiaries of her estate and, in particular, by including her husband, even though they had been separated for a period of six years, provided for her husband in her Will.

• The deceased remembered the names of the beneficiaries and, in particular, certain characteristics of the beneficiaries such as her brother Neil being a priest who would be unlikely to appreciate one of the paintings she had previously intended to bequeath to him;

• In terms of the residual estate the Will could have been completed on 20 February 2003. However, the deceased simply did not know to whom she wished to leave the balance of her estate.

15 The document purporting to embody the testamentary intentions of the deceased is the Will drafted by Ms Martino on 21 February 2003 which was presented to the deceased for signing on that day. As a result of the evidence of Dr Liew, the writing which constitutes the execution of the Will must be ignored for the purposes of determining whether the document complies with s 34 of the Act. The second element of s 34 is, therefore, clearly satisfied; the document has not been executed in accordance with s 8.

16 However, in my view, the appellant has failed to satisfy the first and third elements of s 34. The first element requires there to be a document purporting to embody the testamentary intentions of the deceased. Whilst I am prepared to accept for the purposes of this application that Ms Martino accurately recorded the deceased's instructions and incorporated them into the first draft of the Will, it remains a fact that the Will provided to the deceased for execution did not accurately reflect the instructions given. The inclusion of the deceased's sister, Justine Riley, as the residuary beneficiary and the removal of the specific bequest to her were based on the instructions of Mr Varian and not those of the deceased. The instructions were never verified or adopted by the deceased because by 21 February she was incapable of so doing. An alternative way of looking at the issue is that the document which does indeed embody the testamentary intentions of the deceased cannot constitute an informal Will because it fails to include a residuary beneficiary and is, therefore, incomplete.

17 In any event, even if there was evidence that the document embodied the testamentary intentions of the deceased, in my view, there is insufficient evidence from which the Court can conclude or infer that the deceased intended the document to constitute her Will. In order for the Court to be satisfied that the deceased intended the document to constitute her Will, there must be something more than evidence that the document accurately sets out the instructions given by the deceased for the preparation of a new Will. Even the deceased knew that she was required to sign the Will that Ms Martino was drafting for her. She also knew that she had to nominate a residuary beneficiary. In my view, the evidence does not support a conclusion that the deceased intended the document prepared by Ms Martino to have effect, without more, as a testamentary instrument.

18 The factors identified by the appellant from which it is said the conclusion flows that the instructions took effect as a testamentary instrument are, in my view, no more than evidence of testamentary capacity and an intention to make a new Will. They do not, individually or collectively, evidence authentication or adoption by the deceased of the document. Indeed, there is nothing in the available evidence which takes this document beyond a set of instructions. Indeed, counsel for the appellant conceded in argument that at no time when the deceased had testamentary capacity did she acknowledge the contents of the 2003 Will or adopt the document as her Will. The circumstances of this case can then be distinguished from those of In the Estate of Vauk (1986) 41 SASR 242, referred to in Estate of Hines at 8, where the deceased had given instructions to an officer of the Public Trustee to prepare a Will. A draft Will was prepared in accordance with those instructions, but the man committed suicide before seeing or signing the document. By his body was a piece of paper on which was writing referring to the Public Trustee and to an unsigned Will. The Court regarded these circumstances as sufficient to justify a finding in favour of validity. It can be seen that In the Estate of Vauk is not authority for the proposition that an accurate record of instructions falls within the scope of s 34. To the contrary, in that case a clear and unequivocal adoption of the document as a testamentary instrument was required.

19 For these reasons, I am not satisfied on the balance of probabilities that the deceased intended this particular document to take effect as her testamentary instrument. In view of that finding, it seems to me that the Probate Registrar was correct in refusing to make a grant of probate of the document which was on the 21 February 2003 presented to the deceased for execution.

20 I turn now to the second issue of whether the deceased revoked her earlier Will, thereby creating an intestacy. Section 15(1) of the Act relevantly provides:

"Subject to section 36, a will or a part of a will is revoked only by -

(a) .

(b) ...

(c) a writing declaring an intention to revoke it that is executed in the manner in which a will is required by this Act to be executed; and

(d) burning, tearing or otherwise destroying it by the testator or by some person in his presence and by his direction with the intention of revoking it."

21 Section 36 of the Wills Act provides that a writing declaring an intention of a deceased person to revoke a Will or part of the will has effect, notwithstanding that it has not been executed in accordance with s 15(1)(c) of the Act if the Supreme Court is satisfied that the deceased intended by the writing to revoke the Will or part of the Will, as the case may be, clearly applies to a written document rather than a physical act of revocation.

22 In this case, there is no formal or informal revocation in writing. The deceased's explicit act of revocation by tearing of the 1992 Will occurred on 21 February 2003 when she lacked testamentary capacity. It is clear that the deceased intended to make a new Will and that either through that act, or by destroying the prior Will, she intended that all previous testamentary instruments be revoked. However, the fact remains that, because of her intervening incapacity, no new Will took effect and her act of revocation had no effect.

23 The appellant relies on the following evidence of the deceased's intention to revoke her former Will:

• The deceased had arranged an appointment to make a new will and brought to the hospice a former Will.

• The deceased saying "no" when the former Will was read to her and the deceased being asked if the Will reflected how she wanted her assets to be dealt with following her death.

• The fact that specific items were discussed such as the painting and the instructions that such requests not be replicated in the current Will.

24 I am unpersuaded that these factors individually, or taken together, constitute a revocation of all earlier Wills. In my view, revocation requires more than rejecting the contents of a prior or existing Will, in the course of arranging for a new Will. In Re Estate of Hudson (DEC); Public Trustee [2002] WASC 146 the deceased committed suicide and left a note saying that his Will no longer represented his wishes. The Court held that the note clearly evidenced an intention on the part of the deceased to revoke his earlier Will: at par 33. In this case there is no such unequivocal statement of intention. Stating in the course of preparing a new Will that the terms of the existing Will do not represent the deceased's testamentary intention is not, in my view, the same as indicating a preference to die intestate should an intervening event prevent the execution of the new Will.