MATTER : In the Will and Estate of KEVIN GREGORY OGLEY late of 4 Earlsferry Green, Kinross, Western Australia, Social Trainer (Dec)

Probate - Whether Will of deceased contained in signed instructions - Turns on own facts

Estate of Treloar (1984) 36 SASR 41

Goods of Fisher (1869) 20 LT 684

Hines v Hines [1999] WASC 111

Re Barnes (Dec) [1954] NZLR 714

Re Meynill; Meynill v Meynill (1940) WN 273

Whyte v Pollok (1882) 7 App Cas 400

In the Estate of Kelly (1983) 34 SASR 392

Re Cowin (Dec) (1967) QLR 6

1 MASTER SANDERSON: By motion lodged 4 June 2004 the Public Trustee sought the following order:

"Under Section 8 of the Public Trustee Act, 1941 that Probate of the Will of the abovenamed deceased be granted to the Public Trustee in and for the State of Western Australia the Executor named in the said Will".

2 In fact, this was a Will said to be contained in instructions. The matter was referred to Registrar Watt. The learned Registrar considered the motion and the affidavits in support thereof. After reviewing the evidence he was not satisfied that the deceased "intended the document in question to be his Will". He therefore declined to grant probate in common form. From that decision the Public Trustee appealed. At the hearing of the appeal I indicated that I would allow the appeal and grant probate of the Will in common form. I indicated that I would publish reasons at a later date. These are those reasons.

3 The motion was supported by eight affidavits, two of which were lodged subsequent to requisitions issued by the learned Registrar on 11 June 2004. The picture that emerges can be summarised in this way. The testator had been treated for oesophageal cancer since August 2002. He was diagnosed on 20 June 2003 as suffering from secondary cancer. On 23 June 2003 the Public Trust Office was contacted. Mr John Johnstone, a Wills Manager with the Public Trust Office, visited the deceased on 4 July 2003. At that time everyone involved with the deceased anticipated that he had three to six months to live.

4 When Mr Johnstone attended at the deceased's premises he was met by Susan Ogley, the deceased's wife. Mrs Ogley advised Mr Johnstone that her husband was in bed and not feeling up to an interview. Mr Johnstone advised that he would need to speak with her husband. However, prior to doing that he took instructions from Mrs Ogley. He says that Mrs Ogley had no written notes about what the deceased wanted to write in his Will. However, in conformity with Mrs Ogley's instructions, Mr Johnstone completed a form which is headed "Will Instructions". This document is what it purports to be. It is a standard form used by officers of the Public Trustee to take down instructions from a testator with the intent that a formal Will will be drawn up at a later date. A copy of this document appears as annexure "A" to the affidavit of Mr Johnstone, sworn 10 May 2004. It is this document which the Public Trustee seeks to have admitted to probate.

5 In his affidavit, Mr Johnstone describes how he completed the form. He details how and why various matters were included. He says that after receiving instructions from Mrs Ogley he went to speak to the deceased. Mr Johnstone particularly notes that he wanted to see the deceased because the instructions anticipated the Will giving a greater share of the estate to the children of the marriage of Mr and Mrs Ogley than the share of his children from a previous marriage, who took the name "Sutcliffe".

6 Mr Johnstone found Mr Ogley sitting up in bed. He says he was alert and they discussed Mr Johnstone's wife, who Mr Ogley thought he knew from their mutual careers in social training. Mr Johnstone then read through the instructions. His evidence is that he explained what was in those instructions in some detail to Mr Ogley. Mr Ogley then confirmed that what was written was in accordance with his wishes. Mr Ogley, Mrs Ogley and Mr Johnstone then signed the form at the bottom of the final page. It was dated by Mr Johnstone. The signatures of Mr and Mrs Ogley were then witnessed and Mr Johnstone explained to them the effect of the Inheritance (Family and Dependants Provision) Act.

7 Mr Johnstone said that in having Mr and Mrs Ogley sign the form and witnessing their signatures, he did not intend that the form would constitute their respective Wills. He says that he did not advise Mr and Mrs Ogley of that fact, that is, he did not tell them that the form did not constitute their respective Wills. This was not an issue which was discussed.

8 Mr Johnstone then returned to his office and prepared formal Wills in line with his instructions. These Wills arrived at the deceased's residence on 18 July 2003. The deceased passed away on 17 July 2003.

9 The notes taken by Mr Johnstone indicate that all of the deceased's estate is to go to the deceased's wife, should she survive him for 30 days. If she does not, then the house and land, with the mortgage having been discharged, is to go to the three children of his marriage to his wife Susan, with the residue divided equally between the six children from both marriages. As I have indicated above, the handwritten notes also contain an explanation for the more favourable treatment of the children from the later marriage. It is worthy of note that the instructions were relatively simple and straightforward and there is nothing at all in the evidence to indicate either that the deceased did not understand what was contained in the instructions, or that they did not represent his wishes for the disposition of his estate.

10 The application is also supported by an affidavit of Matthew John Thornton, sworn 16 January 2004. Mr Thornton says that he had known the deceased for 20 years and regarded him as a best friend. Mr Thornton says that in June 2003, shortly after the deceased had been diagnosed with secondary cancer, he visited the deceased at his home. They discussed the Will. The deceased did not go into details but Mr Thornton was left with the impression that pursuant to the Will, the deceased's home was to go to his wife and if she predeceased him, everything was to go to the children. Mr Thornton says (at par 15):

"From what Kevin told me, I believe that Kevin thought he had completed his will."

11 After a requisition from the Registrar, Mr Thornton swore another affidavit on 18 August 2004. In this affidavit, Mr Thornton was able to be more specific. He says that he visited the deceased on or about 5 July 2003 between 10 am and 12 noon. Mr Thornton says (at par 3):

"Kevin said to me: 'a bloke came around the other day and did my will. It's all signed and sorted', or words to that effect. Kevin appeared to me to be very happy and I believe that he thought he had finalised his will and organised his affairs."

12 It is worth observing that there is nothing in the affidavit evidence that suggests in any way at all that the notes taken by Mr Johnstone do not accurately reflect the intentions of the deceased. All of those swearing affidavits are satisfied that the deceased's intentions are accurately reflected in the instructions taken by Mr Johnstone. There is, of course, no suggestion that the deceased lacked testamentary capacity.

13 The circumstances in which a Will can be contained in instructions were discussed by Legoe J in the Estate of Treloar (1984) 36 SASR 41. His Honour refers to Tristam & Coote, Theobald and Halsbury's Laws of England, in setting out the circumstances when instructions for a Will may have effect as a Will: see pages 43 - 44. These include:

(a) if it can be shown that the instructions represented how the testator intended to dispose of the estate;

(b) if the instrument was intended to take effect in the absence of a more formal document;

(c) if the document should be depository and operate provisionally until a more formal will was prepared.

14 In the Goods of Fisher (1869) 20 LT 684, Lord Penzance directs that a presumption arises when instructions are executed that it is intended will take effect as a Will, even where in future a more regular form is intended. In Re Meynill; Meynill v Meynill (1940) WN 273, Barnard J accepts that the presumption arises where formalities have not been complied with. In Re Barnes (Dec) [1954] NZLR 714 Turner J expressed the view that if the document has been executed animo testandi and the formalities observed, it becomes the last Will and testament of the deceased and was not revoked by any "mere change of intention". It is to be noted that the authorities suggest that a Will is not to be regarded as contained in instructions in the absence of evidence of animus testandi: see Lister v Smith (1863) 3 Sw & Tr 282; Torre v Castle (1836) 1 Curt 303; Whyte v Pollok (1882) 7 App Cas 400.

15 It is also important to remember that as a general rule it is the role of the Court "to help his (the deceased) intention for the settlement of his affairs": see Lord O'Hagan in Whyte v Pollok (supra).

16 Having said all of that, it is clear that each case must be decided on its merits "because so much depends on the particular circumstances": see Hines v Hines [1999] WASC 111 per Owen J at 25. In that same case his Honour pointed out (at 26) that determining whether the document is a testamentary instrument is a less difficult task when independent evidence is available.

17 When the learned Registrar was considering the motion he was clearly not satisfied that the evidence established that the deceased intended that the signed instructions would be an "interim Will". He was particularly concerned that the evidence was consistent with the production of formal Wills which would be signed in due course.

18 I am so satisfied. I would accept that the evidence in favour of the document being regarded by the deceased is thin, but I am satisfied in the circumstances it is sufficient. It is clear the evidence does not establish that Mr Johnstone thought that the deceased, by signing the instruction sheet, intended its contents should be a Will. He had been given to understand that the deceased had some months to live. But the deceased, by his conduct, seems to have indicated to all concerned that he had signed a Will. He was satisfied that what he was signing was consistent with the way in which he intended to dispose of his property. In my view that is sufficient.

19 It must be borne in mind in an application such as this that it is the Court's role to facilitate, rather than hinder a deceased's intention to settle his affairs. That is what Lord O'Hagan said so long ago and it is as true today as it was then. In my view, there is no justification for coming to any conclusion other than that the signed instructions contain the Will of the deceased. For these reasons I indicated that I would allow the appeal and make orders in terms of the Public Trustee's motion.