Informal Will proved in solemn form and probate granted

Banks v Goodfellow (1870) LR 5 QB 549

Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295

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

Malatesta v Scott, unreported; SCt of WA; Library No 940291; 15 June 1994

Nock v Austin [1918] HCA 73; (1918) 25 CLR 519

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

Re Jennifer Gay Strickland (Dec); Ex parte Varian [2004] WASC 261

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

The Estate of Kevin John Hines & Anor v Hines [1999] WASC 111

1 JOHNSON J: On 27 March 2006, I heard and determined an application in relation to the Estate of Edna Mae Doyle ("the Deceased") who died on 1 June 2004 leaving a Will dated 17 January 1983 ("the 1983 Will") and a Will instruction sheet dated 20 May 2004 ("the informal Will"). The 1983 Will bequeathed the Deceased's Estate to her husband, with her three daughters to benefit equally in the Estate, in the event that the testator was pre-deceased by her husband, as she was. The informal Will identifies the Deceased's two surviving daughter as the beneficiaries. The effect of the change, should the informal Will be validated, is to exclude the Deceased daughter's children from benefiting under her Will.

2 An application by writ of summons for the Court to pronounce the force and validity of the informal Will and for a grant of probate in solemn form was brought by the executors and legatees named in the informal Will on 10 January 2005. The action was defended by those who would be excluded as beneficiaries if the informal Will was validated.

3 An application was brought on behalf of the defendants in the action under O 73 r 18(2) which is in the following terms:

"Where at any stage of the proceedings in a probate action the plaintiff or any party who has entered an appearance therein applies by summons for an order for discontinuance of the action, the Court may so order on such terms as to costs and otherwise as it thinks just and may further order that a grant of probate of the will ... of the deceased person, which is the subject of the action be made to the person entitled thereon."

4 It can be seen that, once the order for discontinuance is granted, the Court may proceed to deal with the application for a grant of probate.

5 In this case the defendants had pleaded that the informal Will, did not comply with the requirements of Pt III of the Wills Act 1970. It was also alleged that the Deceased was not in a fit state of mind to provide instructions for the informal Will and that the Will was ambiguous. At the hearing, counsel for the defendants advised that the issues between the parties had been resolved at mediation and the defendants now sought leave to discontinue their defence of the writ.

6 The affidavit material filed in support of the application for leave to discontinue revealed that the defendants do not now dispute that the informal Will embodies the testamentary intentions of the Deceased and have conceded that they have no evidence of any lack of capacity on the part of the Deceased to make a valid Will. The defendants also concede that the question of ambiguity is a matter for a court of construction and not a matter for a court of probate.

7 On that basis I granted leave for the defendants to discontinue their defence of the action with no order as to costs.

8 It remained then for me to consider the application brought by the plaintiff. Having been taken to the affidavit evidence in support of the application and heard the submissions of counsel for the plaintiff, I made the following ruling:

"I am satisfied to the appropriate standard that the document that I have been provided with, that is the will instruction sheet, incorporates the testamentary intentions of the deceased and was intended by her, as recognised in the final paragraph on the last page of that document, that the instructions would stand as her last will and testament in the event of her death before a formal execution of the will."

9 I then indicated that I would, at a later time, provide formal reasons for that decision and for the granting of the orders that I then made.

10 When the Court is asked to pronounce for the force and validity of a Will a number of considerations essential to the exercise of testamentary capacity come into play. They are:

(1) Whether the testator understands the nature of the act and its effects;

(2) Whether the testator understands the extent of the property of which he is disposing;

(3) Whether the testator is able to comprehend and appreciate the claims to which he ought to give effect;

(4) Whether the testator has mental capacity at the time.

Banks v Goodfellow (1870) LR 5 QB 549 (at 565) per Cockburn J.

11 However, a duly exercised Will, rational on its face, is presumed in the absence of evidence to the contrary to be that of a person of competent understanding: see Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295 (at 343). I can see no reason why the same principle would not apply to an informal Will once the Court is satisfied of the requirements of s 34 of the Wills Act which provides for the proof of an informal Will. In Nock v Austin [1918] HCA 73; (1918) 25 CLR 519 (at 528) Isaacs J stated that, in general, where there appears no circumstances exciting suspicion that the provisions of the instrument may not have been fully known to, and approved by, the testator, the mere proof of his capacity and of the fact of due execution of the instrument, creates an assumption that he knew of, and assented to its contents. Again, I consider the principle to be of equal application to an informal Will proved under s 34 of the Wills Act.

12 As I have observed, on the pleadings, a number of issues were raised by the defendants with respect to the validity of the Will, in particular, the issue of capacity. However, it is clear from the information provided on the application by the defendants to discontinue that these issues have effectively been withdrawn and require no further consideration. In some cases, the fact that an allegation of incapacity has been raised, even where a defendant chooses to withdraw the allegation, requires close scrutiny of the available evidence as to testamentary capacity. However, in this case, the material supporting the application to discontinue makes it clear that the defendants concede that they have no evidence as to the testator lacking capacity to make a valid Will. On that basis, and in the absence of any other evidence suggesting incapacity, I am content to rely on the presumptions to which I have referred.

13 It remains then to address the requirements for proof of an informal Will.

"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 her will."

15 Section 34 can be found in Pt X of the Wills Act which 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: In the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1 (at 11) per Nicholson J. A remedial statute 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: The Estate of Kevin John Hines & Anor v Hines [1999] WASC 111 (at 5 - 6). However, it remains the case that words used in the statute must, wherever possible, be given their natural and ordinary meaning.

16 In the Estate of Hines (at 6), Owen J set 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 ... 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."

17 Indeed, it is apparent from the simple words of the section that in determining whether an informal Will operates as a Will of the Deceased it must be established that the Deceased intended the document to constitute her Will. Of course, it is implicit in that issue that the Deceased knew and approved the contents of the document. Of course, it is only where the document does not meet the formal requirements for validity set out in s 8 of the Wills Act that reliance need be placed on s 34.

18 As Owen J observed with respect to the first element of s 34, the intention required by s 34 that the document constitute the Deceased's 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: Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 (at 539); Re Jennifer Gay Strickland (Dec); Ex parte Varian [2004] WASC 261 (at [9]). Further, the document on the face of it must appear to embody the testator's intentions: Malatesta v Scott, unreported; SCt of WA; Library No 940291; 15 June 1994 (at 4 - 5).

19 It is also important to be reminded of the burden and standard of proof which apply in a matter such as this. It is the applicant who bears the onus of proving that the Deceased intended the document to constitute her Will. The onus must be satisfied on the balance of probabilities: Silvester v Tarabini, unreported; SCt of WA; Library No 960062; 13 February 1996, per Anderson J, (at 20).

20 The informal Will is a document headed "Will Instruction Sheet" which contains a series of numbered questions for completion. The final un-numbered paragraph is in the following terms:

"I/We intend that if I/we die before executing the Will for which these instructions have been given, these instructions constitute my/our Last Will and Testament."

21 Under that statement is a space for two people to sign and date the document. The Deceased has signed the document in one of those spaces. The date which is inserted beneath her signature is "26/5/04". On viewing the document it is immediately apparent that the document has not been attested and subscribed by two witnesses in the presence of the testator as required by s 8(d). On that basis alone, the document does not meet the formal requirements for validity.

22 Most of the questions in the informal Will have been completed including the Deceased's name, address, occupation and marital status. Question 2(b) requests the full name and ages (if minors) of all the Deceased's children. The names of the plaintiffs are inserted under that question as well as the statement "one daughter died 7 years ago". That daughter is not named anywhere else in the document. The document nominates both the Deceased's surviving daughters as executors. A number of specific questions are asked with respect to the extent of the Estate. The Deceased has identified her unit in which she resided immediately before her hospitalisation, and the fact that it was held under a strata title. A Bankwest savings account was identified as her only other asset.

23 The question in the informal Will which addresses the issue of the beneficiaries is in these terms:

"16. If you are leaving any property of any type to your children, and any of those children die before you or before receiving that property, do you want the property that child would have taken to be equally divided between his or her children? (Be aware of and discuss possible inequity in farming families)

Yes No

If no, what do you want done with the share that would have gone to the deceased child?

Divide it between my surviving children

Treat it as a Residue

Other (please specify to

Whom it is to be given):"

The word "yes" which appears in the fifth line above, is circled. The phrase "Divide it between my surviving children" is partly circled and completely underlined.

24 The affidavit evidence of the daughter and executor, Christine Mae Gellatly, is to the effect that the Deceased was diagnosed with cancer on 6 May 2004 and on 14 May 2004 she was admitted to St John of God Hospital in Geraldton. Although initially admitted as a day patient, the Deceased developed kidney failure and the prognosis was that she would not survive for long. According to Ms Gellatly, the Deceased was aware that she was dying. However, by 17 May 2004 the Deceased had improved quite considerably. Ms Gellatly, who resided in Perth, visited the Deceased during this period, returning home on 20 May 2004.

25 Ms Gellatly deposes to the fact that, during this period of hospitalisation, the Deceased had been approached by a hospital social worker about her last wishes. As a result, the Deceased spoke to her daughter about making a Will. It is said that the Deceased was particularly concerned that the existing Will made provision for her daughter, Dawn, who had died. Other than Dawn's daughter, Taryn, Dawn's children had little contact with the Deceased for many years. Ms Gellatly stated that Dawn had left her family for another man and there had been a split in her family over the separation of the parents and, consequently, Dawn's children took their father's side and did not remain in contact with Dawn or the Deceased.

26 After the Deceased died, Ms Gellatly contacted Garry Nixon, a solicitor in Geraldton and was advised that he had the Will instructions sheet signed by the Deceased from which a Will was drafted, but could not be signed by the Deceased because of her condition. Ms Gellatly obtained the original of the informal Will and confirmed in her affidavit that that the signature on the last page of the document belongs to her mother.

27 Based on all the information to which I have referred, I am satisfied that there are no circumstances exciting suspicion with respect to the signing of the informal Will and that the considerations essential to the exercise of testamentary capacity existed in this case. It is for these reasons that I pronounced the force and validity of the informal Will and made a grant of probate in solemn form.