In re the Will and Estate of McComb [1999] VSC 311 (27 August 1999)

(a) Did the deceased intend the informal will (being a document which has not been executed in the manner in which a will is required to be executed by the Wills Act 1997) to be his will?

(b) Does the Court have jurisdiction to grant Letters of Administration with the will annexed in respect of a document which meets the requirements of sub-s.9(1) of the Wills Act 1997 but does not name an executor?

Each of these questions will be considered in turn.

19. Section 9 of the Wills Act 1997 provides as follows (so far as relevant):

"9.(1) The Supreme Court may admit to probate as the will of a deceased person -

(a) a document which has not been executed in the manner in which a will is required to be executed by this Act; or

(b) ... -

if the Court is satisfied that that person intended the document to be his or her will.

(2) The Supreme Court may refuse to admit a will to probate which the testator has purported to revoke by some writing ...

(3) In making a decision under sub-section (1) or (2) the Court may have regard to -

(a) any evidence relating to the manner in which the document was executed; and

(c) any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.

(4) ...

(5) The Registrar may exercise the powers of the Court ...

(6) In this section 'document' has the same meaning as in the Interpretation of Legislation Act 1984."

26. The test prescribed by sub-s.9(1) is that the Court must be satisfied that the deceased "intended the document to be his or her will". In making a decision on that question the Court may, under sub-s.9(3), have regard to any evidence relating to the manner in which the document was executed, and any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.

29. It is submitted on behalf of the Applicant that the evidence by way of affidavit makes it abundantly clear that the deceased intended the informal will to be his will, and believed that it was his will up until the time of his death.

32. The applicant has deposed that at the time of the death of the deceased she and the deceased were not married and that the deceased had never been married. The deceased was survived by his father, Harold Keith McComb and his mother Athel Kathleen McComb who are the sole surviving next of kin of the deceased and the only persons entitled to share in the estate of the deceased if he died intestate. Following inquiries and searches the applicant has been unable to find any will of the deceased other than the informal will that is the subject of the application.

35. The applicant deposed that the deceased was born on 17 February 1962 and that she and the deceased first met in January 1989. In January 1990 the applicant and the deceased travelled overseas and commenced living as husband and wife in a de facto relationship. During 1994 whilst they were residing in Melbourne the deceased was diagnosed as suffering from acute cardiomyopathy. In early 1996 he was placed on the heart transplant waiting list at the Alfred Hospital. In about mid 1996 the deceased purchased a house at 1 Bank Street, Northcote ("the property"). The property was purchased as a result of financial assistance provided by his parents for the specific purpose of purchasing a house. The applicant assisted the deceased in the selection of the property. Furthermore, in the first half of 1996 the deceased told the applicant that he had discussed making a will with a solicitor but thought the cost too high and planned to make his own will using a "will kit". In May 1996 the deceased underwent a heart transplant operation on very short notice. Immediately before the deceased underwent the operation he was visited at hospital by the applicant. The deceased was holding a piece of paper with writing on it and he told the applicant that it was his will. The applicant is unable to say with certainty whether the piece of paper was the informal will that is the subject of the application save that the paper held by the deceased at the time was of the same general appearance as the informal will. The deceased said nothing to the applicant about the contents of the will.

38. Initially the operation upon the deceased was successful and the deceased and the applicant progressed their lives together. The purchase of the property was finalised on 31 July 1996. Thereafter the health of the deceased improved. In January 1997 the deceased and the applicant became engaged and planned to marry about the end of 1997. Sadly, during 1997 the health of the deceased deteriorated and he and the applicant delayed their wedding until the health of the deceased improved.

41. Shortly before 5 August 1998 the applicant asked the deceased if he had made a will. He told her that he retained the will he had written out prior to his heart transplant operation.

44. On 5 August 1998 the deceased and the applicant separated and she moved to live elsewhere. The applicant deposed that their separation came about due to the rapid deterioration of the health of the deceased. The applicant and the deceased continued to meet regularly and maintained a joint bank account. After the death of the deceased on 2 February 1999 the applicant moved back into the property. The informal will was located after the death of the deceased by his father. It provided:

"Statutory declaration 28.5.1996 I, David Richard McComb, hereby declare that I wish to leave all my wordly possessions to Joanne Louise Alach. In the event of her death I wish my possessions to go to the remainder of my immediate family, my brothers Robert, John and Peter McComb. This is my last will and testament, the twenty eighth of May, 1996. (Signed D.R. McComb)."

48. The date of the informal will accords with the date when the deceased underwent the heart transplant operation described by the applicant.

51. In an affidavit sworn by Joyce Woodland she deposed that she was employed as a cleaner by the deceased for about the three years before the date of his death at the property for two hours each week. Ms Woodland deposed that before the deceased died they had many conversations about various matters during the course of her performing her cleaning duties. She deposed that, in a particular conversation, on 18 January 1999 she mentioned to the deceased that her son had attended a funeral of a friend killed in an accident. Ms Woodland deposed that she told the deceased that before going to the funeral her son had made a will. She deposed that the deceased replied "That's something I have done at least". Ms Woodland deposed that she congratulated the deceased on making the will.

54. There are further affidavits filed by the surviving next of kin of the deceased, his parents, wherein they depose that if the applicant is not granted letters of administration with the will annexed for the estate of their son they will transfer the property to the applicant, in any event, subject to the payment of any costs and duties. In other words, the surviving next of kin of the deceased make no claim on the estate. The parents have identified the handwriting in the will as that of their son, the deceased.

57. Mr R. Brett QC who appeared for the applicant submitted that the evidence leads to the following conclusions:

(a) The terms of the informal will clearly indicate the deceased's intention that it should be his will. The last sentence contains the phrase, 'This is my last will and testament,' which is commonly understood to be found in all wills. The phrase is as clear as could be. In addition, the heading 'Statutary (sic) Declaration' appears to have been placed on the document in an attempt to make it more 'official''; the same may be said of the writing out of the date in words at the end of the document.

(b) The explanation for the deceased not having had a will properly prepared by a lawyer is understandable as it cost too much.

(c) It was natural for the deceased to think about making a will in 1996 in view of his extremely poor health, which made it likely that he might die at any time.

(d) It was quite natural for the deceased to have actually made a will on 28 May 1996. He was about to undergo a heart transplant operation, and the possibility that he might not survive the surgery must have been present in his mind in the starkest possible manner.

(e) The Applicant deposed that only six months before his death the deceased believed that the informal will was still in effect. This serves to confirm his intention that the informal will should be his will.

(f) The identification of the writing of the informal will as being the deceased's is more than adequate, coming as it does from his parents.

(g) The evidence of the deceased's former housekeeper, Joyce Woodland, as to their conversations also reinforces the conclusion that the deceased intended the informal will to be his will.

63. Mr Brett urged a finding that the evidence of the applicant regarding the circumstances in which the informal will was made is inherently credible. He submitted that although the applicant has an interest in the outcome of the application, her evidence ought not to be discounted substantially, because that interest is not as large as might at first appear. This is because the deceased's parents, who would take the deceased's property on an intestacy, intend to transfer the only substantial asset of the estate, the deceased's house, to the plaintiff in the event that this application is unsuccessful. The plaintiff, therefore, will receive the house in any event. The only substantial benefit that the plaintiff will gain from having the informal will accepted is a relatively small saving of transfer costs.

66. Finally, Mr Brett submitted that there is no evidence which points to any contrary conclusion, and that the court ought therefore to be satisfied that the deceased intended the informal will to be his will. I am satisfied on the uncontroverted evidence that it was the intention of the deceased that the informal will was to constitute his will.

69. Sub-section 9(1) of the Wills Act 1997 provides that the Supreme Court may admit "to probate" an informal will. From the requisitions made by the Registrar of Probates on 11 June 1999 it appears that the Registrar has taken the view that s.9 does not apply where there is an application for the grant of letters of administration with the will annexed, as opposed to an application for grant of probate as such. Mr Brett submitted that this interpretation of s.9 is unduly narrow and does not conform with the intention of the legislature. He submitted that s.9 does apply in such a case, essentially for four reasons:

(a) that the intention of Parliament, as it appears from the words of the Wills Act 1997 itself, was that an application for administration with the will annexed should be treated as within the scope of s.9;

(b) that at the very least the terms of the section are ambiguous;

(c) that the intention of Parliament, as apparent from the debates in the Parliament and the report on which the legislation is based, was to allow informal documents to be treated as wills in cases where the maker of the document intended it to be his or her will; and

(d) that absurd results would follow if the section were held to operate only where an application for probate is made, and not where there is an application for a grant of administration with the will annexed.

75. Mr Brett submitted that there is nothing in the nature of the legislation or in the circumstances in which it came to be enacted that discloses any intention on the part of the legislature to restrict the operation of s.9 to documents which name executors. He urged the view that s.9 is a piece of remedial legislation which should be interpreted so as to give effect to the remedy Parliament intended.

78. Section 35 of the Interpretation of Legislation Act 1984 provides as follows:

"35. In the interpretation of a provision of an act or subordinate instrument -

(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and

(b) consideration may be given to any matter or document that is relevant including but not limited to

(i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;

(ii) reports of proceedings in any House of the Parliament;

(iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and

(iv) reports of Royal Commissions, Parliamentary Committees,, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies."

85. It is always the function of the Court in interpreting legislation to seek to ascertain the intention of the legislature and then to give effect to it. The primary source from which the intention of the legislature is to be ascertained is, of course, the legislation itself. If the words are completely clear and unambiguous, then they must be given effect to. But if, when the Act in question is read as a whole, it appears that some part of it is open to alternative interpretations, then regard may be had to matters other than the mere words of the statute. Those other matters include -

(a) the mischief which the statute was intended to remedy (Heydon's Case (1584) 2 Co Rep 7a at 7b);

(b) any absurdity which will result from the adoption of one construction rather than another (the 'golden rule' see: e.g. Grey v Pearson [1857] EngR 335; (1857) 6 HLC 61,106 per Lord Wensleydale);

(c) extrinsic materials which shed light on the actual intentions of the legislature (Interpretation of Legislation Act 1984, s.35).

A remedial or beneficial statutory provision is one that gives some benefit to a person and thereby remedies some injustice. The view expressed by Isaacs J in his dissenting judgment in Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 at 384 has long been regarded as the orthodox view of the approach to be adopted in relation to the interpretation of remedial legislation:

"In the first place, this is a remedial act, and therefore, if any ambiguity existed, like all such acts should be construed beneficially ... This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow." (See also Statutory Interpretation in Australia, D.C. Pearce at 137-138).

92. In the present case the question for decision is, ultimately, whether Parliament, by providing in s.9 that an informal will may be "admitted to probate" in certain circumstances, used language which unambiguously confined the operation of that section to applications for grants of probate as such, and unambiguously excluded the possibility of an application for letters of administration with an informally executed will annexed. When the Wills Act 1997 is read as a whole, no such unambiguous confinement or exclusion appears. On the contrary, there are indications within the Act itself that such confinement was not intended. This view is founded on four bases:

(a) First, there is the subject-matter of the Act itself. It is an Act about wills, not an Act about the administration of estates. The substantive parts of the Act deal with the making, alteration, revocation and revival of wills (Part 2, in which section 9 appears), wills made or rectified under court authorisation (Part 3) and construction of wills (Part 4). Application for grants of probate or letters of administration (in any of their forms) are dealt with in the Administration and Probate Act 1958, not the Wills Act 1997. The subject-matter of the Wills Act is therefore such as to suggest that in enacting section 9, Parliament was intending to make provision for dispensing with the formalities of execution, and not to make provision about the essentially procedural matter of how an informally-executed document may be proved as the will of the testator.

(b) Section 9 appears in Division 3 of Part 2 of the Act, which is headed, 'Dispensing with requirements for execution'. By paragraph 36(1)(a) of the Interpretation of Legislation 1984 it is provided that such a heading forms part of the Act. The heading clearly indicates that Parliament's intention in enacting section 9 was to provide general power for the Court to dispense with the formal requirements for the execution of a will. I consider the Parliamentit was not intending to make special provision for applications for grants of probate.

(c) The intention of Parliament indicated by the heading of Division 3 is confirmed or reinforced by the marginal note describing section 9. It asks "When may the Court dispense with requirements for execution or revocation?" Although the marginal note is not actually part of the Act (Interpretation of Legislation Act 1984, sub-s.35(3)), consideration may be given to it by the Court for the purpose of interpreting the section (Interpretation of Legislation Act 1984, sub-s.36(4) and para 35(b)). The marginal note clearly indicates that section 9 is concerned with the execution of wills, not applications for grants of probate.

(d) Sections 31 and 32 clearly show that Parliament, in enacting the Wills Act 1997, treated references to probate as extending to letters of administration with the will annexed. Section 31 allows the Court to rectify a will in certain circumstances. Sub-section 31(2) provides that a person wishing to apply for rectification must do so 'within 6 months from the date of the grant of probate'. Paragraph 31(4)(b) provides that a personal representative who makes a distribution to a beneficiary is not liable (presumably to a person who becomes a beneficiary by virtue of a rectification order) if the distribution is made at least 6 months after 'the grant of probate'. If these references to probate were construed strictly, then rectification could not be ordered in respect of a will which did not name an executor, because the 6 month period from the 'date of the grant of probate' would never begin to run. However section 32 provides that where a rectification order is made, a certified copy must be attached to the 'grant of probate or letters of administration with the will annexed (as the case requires', and that 'the probate or letters of administration' must be retained by the Court until the copy is attached (emphasis added). Finally, on this point, Mr Brett submitted that it is therefore plain beyond argument that Parliament, although it referred in section 31 only to grants of probate, intended that reference to extend to grants of letters of administration with the will annexed; and Parliament had such an intention in relation to section 31 it almost certainly had the same intention regarding section 9. I accept the submission.

98. I am satisfied that when the Act is read as a whole, even without resort to extrinsic material or consideration of the consequences of the alternative interpretation, the references in s.9 to admission to probate were intended by Parliament to encompass a grant of administration with the will annexed. This view is supported by consideration of extrinsic material to which I now turn.

101. The Wills Act 1997 was assented to on 2 December 1997, and its substantive provisions came into operation on 20 July 1998. In her Second-Reading speech (Hansard, Assembly, 9 October 1997, p.433) the Honourable the Attorney-General stated:

"The purpose of the Bill is to repeal and replace the Wills Act 1958 and to make amendments to Part IV of the Administration and Probate Act 1958 to widen the category of persons who may apply for testator's family maintenance. For a number of years, there has been an acknowledged need for a new Wills Act to simplify and modernise the language of the Wills Act 1958, most of which is identical to the Wills Act 1837 (UK), and to implement useful reforms to the law of wills. In 1984 a Wills Working Party composed of academics, representatives from the Law Institute of Victoria and the Bar Council was established to review the Wills Act. The Working Party's review culminated in 1991 in a draft Wills Bill, which was the subject of a reference to the Parliamentary Law Reform Committee. In May 1994 the Committee tabled its report entitled Reforming the Law of Wills, which built on the work of the Wills Working Party. The report contained approximately 70 recommendations for reforming Victoria's law of wills. This Bill adopts a majority of the Committee's recommendations. The development of the Bill has also been influenced by the views of the Standing Committee of the Attorneys-General - initiated national committee for uniform succession laws which is composed of experts in succession law from most of the States and Territories".

105. Under the heading "Dispensing with the requirements for the formal execution of a will" the Honourable the Attorney-General said:

"At present, a failure to make a will in conformity with the formal requirements, however slight, will result in the will being invalidated because of the need for there to be strict compliance with the execution formalities ... This rule creates inequitable results. A document which for all purposes would be a will reflecting the dispositive intentions of a testator is considered invalid due to an oversight or inadvertent error by the testator or the attesting witnesses. In such situations, the deceased's estate would be distributed as an intestacy and may benefit people who the testator had no intention of benefiting under the terms of his or her will. To address this issue and provide a more equitable result the Bill enables the Court to admit to probate as the will of a deceased a document which has not been executed in conformity with the execution formalities, if the Court is satisfied that the deceased intended the document to constitute his or her will."

109. It can be seen therefore that the intention of the government in introducing the Bill was to prevent the "inequitable results" which flowed from failure to comply with the formal requirements for execution of a will. I consider it was not the intention of the Parliament to restrict the beneficial operation of the new provisions only to cases where there was an application for probate as distinct from administration with the will annexed.

112. Debate on the Second-Reading was resumed in the Legislative Assmely on 29 October 1997. Six members spoke; all supported the Bill (Hansard, Assembly, 29 October 1997, pp.802 ff.). Mr Hulls at p.804 described clause 9 as "a very good provision" and said -

"As the Attorney-General knows, I have argued time and again in this House for the absolute necessity of retaining judicial discretion in a whole range of areas. Clause 9 certainly gives the Courts appropriate discretion to decide whether a will that may not have been executed or signed in the manner required by the Act still sets out the intentions of the person executing that document."

116. Dr Dean (at p.807), who was a member of the Law Reform Committee which reported on the draft Bill, said:

"The whole object is not to get caught up with the words on a document and formal rules. The purpose of this exercise is to ensure that the wishes of the testator, the person who has died, in relation to his or her assets are carried out after his or her death."

"Clause 9 takes a different approach to previous law. It sets out the circumstances in which the Court may determine that a will is properly executed even though it is not executed within the strict provisions of the principal Act. ... If someone did intend a disposition to be a testamentary disposition, surely that is the intention that ought to come about rather than an artificial one that can be created by the striking down of a will as occurred in the old cases."

124. Mr John (p.818 ff.), although not specifically referring to clause 9, said at p.819:

"Through these reforms the government will make it easier to make a will and make the administration of wills and disposition of people's estates simpler, and we hope, fairer."

"One of the main concerns about the current Act is the requirements for the formal execution of a will, which will be dispensed with. At present a failure to make a will in conformity with those requirements will result, in most cases, in the will being invalidated."

132. The Bill was introduced into the Upper House on 12 November 1997 (Hansard, Legislative Council, p.447), where the Attorney-General's Second-Reading speech was repeated. Debate on the Second-Reading resumed on 20 November 1997 (Hansard, Legislative Council, p.724). Again, all speakers supported the Bill and expressed sentiments similar to those expressed in the Legislative Assembly.

135. I consider it is plain that Parliament's intention in enacting the Wills Act 1997, and in particular s.9, was to pass a piece of remedial legislation which would enable an informal will, which was nevertheless clearly intended to be the will of the deceased, to be treated as a valid will.

138. I observe that the explanatory memorandum which accompanied the Bill on its passage through Parliament is not very helpful. In respect of clause 9 it said:

"Clause 9 sets out the circumstances in which the Supreme Court may dispense with the requirements for the execution of revocation of a will as specified by this Act. The Court is empowered to admit to probate as a will of a deceased person a document that has not been executed as required by this Act if the Court is satisfied that the deceased person intended the document to be the person's will. The Court may also refuse to admit to probate a will which is purpoted to have been revoked by the testator." This does little more than paraphrase section 9.

142. Arising from the history of the legislation, the report of the Law Reform Committee of the Parliament Reforming the Law of Wills (Government Printer, May 1994) requires some consideration. Before turning to the report in detail, it is necessary to mention the various steps which ultimately resulted in the 1997 Act.

145. In 1991 a draft Wills Bill was prepared by the Wills Working Party to which the Attorney-General referred in her Second-Reading speech. This may be found at p.179 of the Law Reform Committee's report. The Law Reform Committee considered the 1991 Bill and reported upon it, and as part of their report prepared a revised form of Act, which appears at p.xxxv of their report under the heading "Recommendation: Wills Act 1994". This differed in a number of significant respects from the 1991 Bill. The Wills Bill 1997, which (without significant alteration) became the Wills Act 1997, differed in some substantial respects from the Law Reform Committee's proposed Wills Act 1994. Clause 9 of the Wills Bill 1991, which ultimately because s.9 of the 1997 Act, at all times dealt with the same subject manner, but underwent significant changes before assuming its final form. However, nothing in the manner in which those changes occurred shows any intention to confine the operation of the remedial provisions to cases where probate, as distinct from administration with the will annexed, was applied for.

148. Clause 9 of the Wills Bill provided as follows:

"9. When may the Court dispense with requirements for execution or revocation? (1) The Supreme Court may admit to probate as the will of a deceased person, a document which has not been executed in the manner in which a will is required to be executed by this Act, if the Court is satisfied beyond reasonable doubt that that person intended the document to be his or her will. (2) The Supreme Court may refuse to admit a will to probate which the testator has purported to revoke by some writing, where the writing has not been executed in the manner in which a will is required to be executed by this Act, if the Court is satisfied beyond reasonable doubt that the testator intended to revoke the will by that writing. (3) The Supreme Court may admit to probate a will which has been altered, in its altered form, where the alteration has not been executed in the manner in which an alteration to a will is required to be executed by this Act, if the Court is satisfied beyond reasonable doubt that the testator intended to make the alteration to the will."

152. It may be seen that the basic form of the clause is similar to that of the present s.9. the most material differences are:

(a) The powers of the Supreme Court may be exercised only upon proof "beyond reasonable doubt"; under the 1997 Act the requirement is only satisfaction on the balance of probabilities.

(b) The ancillary provisions now found in sub-section 9(3) regarding what evidence may be taken into account were not in the 1991 Bill.

The 1991 Bill contained no definition of "probate". It contained (in clause 37) rectification provisions similar to those now in section 31. Those provisions contained references to the "grant of probate", but there was no equivalent of the existing section 32 and no reference to administration with the will annexed.

158. Clause 9 of the Wills Bill 1991 was considered by the Law Reform Committee at pp.67-80 of its report. It may be seen that the Committee compared clause 9 with provisions that had been enacted in other jurisdictions including South Australia, the Northern Territory, New South Wales, the ACT, Queensland, Tasmania and the United States. The forms of provision varied quite significantly in their wording and in the requirements which they imposed. Although the Committee's discussion was quite detailed, the particular question of whether an informal will should be capable of recognition only in the context of an application for probate (as distinct from administration with the will annexed.) was not considered. The main question considered was the standard of proof to be applied by the Court in deciding whether to dispense with the formalities.

161. At p.78 of its report, the Committee made the following recommendation (No. 25):

"The Committee recommends that - * There should be a dispensing power; * The standard of proof should be the civil standard; * The Registrar should be able to deal with cases where the parties consent, or cases involving small estates; and * The Registrar's power should be governed by Rules of Court, for which the Wills Act should make provision."

165. At p.79 the Committee recommended the following form of provision:

"Draft s.9 - When may a Court dispense with the requirements for execution of wills? (1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, the exercise of a power of appointment, and amendment of such a will or the revocation of such a will if the Court is satisfied that the person intended the document to constitute his or her will, the exercise of the power of appointment, and amendment to his or her will or the revocation of his or her will. (2) In forming its view, the Court may have regard (in addition to the document) to any evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person. (3) This section applies to a document whether it came into existence within or outside the State. (4) Rules of Court may authorise the Registrar to exercise the powers of the Court -

(a) without limit as to the value of the interests affected, in all cases in which those affected consent; and

(b) even if there is no consent, in all cases in which the value of the interests affected does not exceed a sum specified in the Rules."

172. Hence, it is seen that the Committee's draft s.9 and its recommendation would have applied to informal wills which were not the subject of an application for admission to probate.

175. It is necessary to mention in this connection that the Committee also recommended the inclusion of a definition of "probate" in the following terms:

"'probate' includes the grant of letters of administration, where the context allows." (See part of annexure "B2".)

As noted already, proposed s.37 dealt with rectification of a will and required an application to be made within six months of the "grant of probate" (also part of annexure "B2"). The proposed definition of "probate" would have included a grant of letters of administration within the concept of "probate".

"The Committee acknowledges that this extended definition would have application in proposed s.37(2) only."

This statement appears to have been accurate; the Committee's proposed s.9 contained no reference to "probate".

183. The reasons for the removal of the definition from what became the Wills Bill 1997 and ultimately the Wills Act 1997 are nowhere explained. While the removal of this definition from the Committee's recommended draft of 1994 might be thought to indicate an intention on the part of Parliament to exclude letters of administration from the concept of a "grant of probate", this inference is contradicted by s.32 of the 1997 Act. As noted already, this section expressly refers to letters of administration with the will annexed in terms which indicate that Parliament clearly intended the reference in s.31 to "probate" to extend to administration with the will annexed. It is submitted that no conclusions can be drawn from the introduction and subsequent removal of the definition.

186. In summary, the following conclusions can be drawn from the draft legislation, reports and debates which accompanied the enactment of the Wills Act 1997 and, in particular, s.9 thereof:

(a) Firstly, the Act was designed to loosen many of the formal restraints which hitherto prevented courts from giving effect to the testamentary intentions of deceased persons;

(b) Secondly, and in particular, s.9 was designed to enable an informal will to be treated as valid, notwithstanding the failure of the deceased to comply with the formal requirements of s.7 of the Act;

(c) Thirdly, Parliament intended letters of administration with the will annexed to be included within the concept of "probate" where reference is made to it in ss.9 and 31 or, at least, did not intend to exclude cases where an application was made for letters of administration with the will annexed from the operation of those sections.

192. In addition to the preceding analysis, I consider that a construction of s.9 of the Wills Act that did not allow for grants of administration with an informal will annexed would lead to absurd results. If, for example, in the present case the will had named an executor, but the executor had died before an application for a grant of probate had been made, then, if the narrow construction of s.9 were adopted, the informal will would not be capable of being given effect to, whereas if the executor had survived, it would. That is to say, the very same document might be effectual or ineffectual depending entirely upon whether the executor predeceased the testator. Similarly, if an executor were named in the will but refused to prove it, then, on the narrow construction, s.9 would not be able to be relied upon, so that the clear intention of Parliament would be defeated by the unwillingness of the named executor to do his or her duty. Mr Brett submitted and I accept that such absurd results cannot have been intended by the legislature.

195. Within s.9 itself, provision is made for the Court to give effect to informal alterations to a will (para 9(1)(b)). If a will was executed with all proper formality but did not name an executor, and that will was altered informally, then on the narrow construction of s.9 the Court would be obliged to grant letters of administration with the will annexed in respect of the original will, but not recognise the alteration; whereas if the will had named an executor, the alteration could be given effect to. Again this absurd result cannot have been intended.

198. The most patent absurdity flowing from the narrow interpretation of s.9 is simply the illogicality of treating one document as a valid will, even though informally executed, and not treating another document as equally valid, even though it is executed in precisely the same manner and contains precisely the same provisions, merely because the former names an executor and the latter does not.

201. Much of the preceding analysis proceeds on the basis that a will which does not name an executor is nevertheless a will. Halsbury (4th ed., vol. 50) states in para 202 that a will is "normally made for the purpose of making dispositions of property to take effect on or after the testator's death, but it may also be made for the purpose of appointing executors or other persons whom the testator wishes to manage or assist in managing any part of his estate ... ". That is to say, the appointment of executors is simply one of the things which may be done by will. At paras 251ff. A number of "requisites for formal validity" are listed; these include writing, signature and attestation, but they do not include the appointment of an executor. (See also the discussion in para 201, especially footnote 1, where the terms "will" and "testament" are said to have been synonymous at least since 1540.) The title "Wills" in Halsbury was written by the eminent jurist Sir Raymond Walton.

204. Theobald (14th ed.) Ch. 2 treats all "testamentary instruments" as the same. In William on Wills (6th ed.) at p.4 under the heading "Definition of a will" it is stated that the legislature and the judiciary have "refrained from making any definitive statement" as to the definition of a will. The text goes on to say:

"However in general terms it can be noted that a will is a document in writing executed in accordance with certain formalities which is generally subject to probate and which contains statements regarding the disposition of a person's property on death. It can alternatively or additionally appoint executors, trustees or guardians and revoke previous wills." (Emphasis added.)

At p.5 it is stated, under the heading "Distinguishing features of a will" that:

"All that is necessary is that the document shall be testamentary, i.e. not taking effect until death, and that the document, or such part of it as is testamentary, shall be executed in accordance with the statutory requirements." There is no reference to the appointment of an executor being a necessary characteristic of a will.

210. In The Law of Wills by Ford, Hardingham and Neave, it is stated in para 1 that the "usual will" is one in which the maker both appoints some designated person as executor and disposed of property to designated persons. However the same paragraph goes on to state that if a testator "has made a will disposing of his property but there is no executor ... because the testator failed to appoint one", then the Court will grant letters of administration with the will annexed.

213. In Re Oliphant (1860) 1 Sw.& TR 524 (164 ER 843) application was made for a grant of probate in respect of a document by which the deceased left all his property to his wife, but failed to appoint an executor. Application was made by the widow to be appointed as executrix. The Court held that the Probate Act 20 & 21 Vict. C. 77 s.29, which directed that the "practice of the Court of Probate" should be applied in the Prerogative Court prevented the widow from being appointed as executrix, but granted administration to her with the will annexed. It is apparent from the judgment that the Court regarded the document as a will, and the question of the nature of the appointment as being one of procedure only.

216. By providing in sub-s.9(1) of the Wills Act 1997 that an informal will may be admitted to probate, Parliament was by necessary implication providing that the informal will should be treated as a valid will and conferring a jurisdiction upon the Supreme Court to deal with it as such. This conclusion is consistent with the terms of s.25 of the Administration and Probate Act, which, in its concluding words, directs that in a case where administration is granted with the will annexed, the will of the deceased "shall be performed and observed in like manner as if probate thereof had been granted to an executor".

219. Following from my analysis of the legislation and its history I am satisfied that the deceased intended the informal will to be his will. I am further satisfied that the court has jurisdiction to grant letters of administration with the will annexed in respect of a document which meets the requirements of s.9(1) of the Wills Act 1997 notwithstanding that the document fails to name an executor.

222. It follows that the Court will grant the application for letters of administration with the will annexed.