In the Estate of Mary Ellen Robbie [2024] ACTSC 208 (3 July 2024)

Section 9 of the Wills Act sets out the basic requirements for a valid will. Section 11A allows the Supreme Court to make an order that the purported will does constitute the will of the deceased person if the court “is satisfied that the deceased person intended the document … to constitute his or her will …”.

The document appears to be a standard form “Last Will and Testament” of the type that might be purchased from, for example, a newsagent, or perhaps be available in a retirement institution.

There are five unusual features to the document. (1) The signatures of the witnesses are on a separate piece of paper attached to the document over the part of the form where the witnesses’ signatures would normally appear. (2) Under the heading “Gifts” there is written: “See attached list.” No list is attached. (3) The deceased appears to have used different pens in the completion of the document. (4) A different pen is used to add a name of a residual beneficiary. (5) A witness signature has been crossed out and a different signature has been inserted.

The application is supported by the following affidavits: (1) Mr Richard Baker, affirmed on 3 June 2024. Mr Baker is the plaintiffs’ solicitor. (2) Ms Kiri Robbie, affirmed on 3 June 2024. (3) Ms Nicole Horne, affirmed on 30 May 2024.

The primary bequest in the will is to leave the residue of the estate “[t]o be divided equally between Tracy Fear, Nicole Horne & Kiri Robbie”. These three beneficiaries, as already noted, are the only surviving children of the deceased. They would receive the estate in equal shares on intestacy.

Mr Baker’s affidavit sets out the unsuccessful attempts to locate any alternative testamentary documents.

Ms Robbie, in her affidavit, says that she does not know of any other persons who might be interested in the estate other than herself and her two sisters. She confirms that no other document purporting to be a will or stating testamentary intentions on the part of the deceased has been found.

Ms Robbie says that the signatures of the persons who have purported to witness the document are their signatures. She has seen an affidavit from one of the witnesses, Ms Eivers, to this effect. In her affidavit, Ms Robbie gives this explanation for the added signatures: [17] It is my belief that the deceased affixed the piece of paper containing the witness details to the document at the time the document was executed. [18] Underneath the piece of paper taped to the document are the names Nicole Horne and Allan Roach. [19] I believe the names mentioned in paragraph 15 above (Jacinta O’Neill and Deborah Eivers) were written onto the document as my mother probably intended for them to be witnesses to the document, and that she crossed out their names when Deborah Eivers and Jacinta Maria O’Neill agreed to act as witnesses. [20] I believe that my mother will have affixed a piece of paper with the names of Deborah Eivers and Jacinta Maria O’Neill to the document as the section intended to record the witness details was already full. [21] It is my belief that both Jacinta Maria O’Neill and Deborah Eivers were employees of Goodwin Retirement Village where the deceased resided at the time the document was executed.

Ms Horne gives precisely the same explanation in her affidavit. The explanation is also consistent with the crossing out of a witness name, suggesting the two formerly proposed witnesses, or at least one of them, were not available at the time of execution. I note that Ms Horne, in her affidavit says that she was not present when the document was signed. She was one of the witnesses first named in the document.

I think the explanation given by Ms Robbie and Ms Horne is reasonable and consistent with Ms Horne not being present, and the services of employees at the retirement village being utilised for convenience. I have no doubt that employees at retirement villages witness very many documents.

There is also a reasonable explanation given in respect of the absence of an “attached list”. Ms Robbie has attached a list to her affidavit which she believes is the missing list. After noting the absence of the “attached list”, Ms Robbie states: Instead, the annexed list was kept on mum’s computer and I am aware as a result of conversations with my mother, that it had been amended over the years as a working document. When mum moved into George Sautelle House about four months prior to her death, she distributed the bulk of the items marked on the list between myself, Tracy and Nicole. The remaining items were then either sold or gifted to family friends. As a result, there were no items on the list remaining to be distributed by the time of mum’s death.

Ms Robbie states that she recognises her mother’s handwriting on the documents as well as her mother’s signatures. She does not know why different pens have been used but states: I believe that my mother probably would not have comprehended the significance of using different coloured pens when drafting and executing the document.

I specifically take into account the following: (1) There are reasonable explanations for all of the anomalies. (2) No other statements of testamentary intentions have been found. (3) The terms of the ‘will’ are consistent with both intestacy and the expectations of a deceased person leaving her estate to her children in equal shares. (4) There are no other persons identified as possible claimants of the deceased’s estate. (5) There is no opposition to the terms of the document.

In light of the matters expressed in the preceding paragraph, I am of the view that “the deceased person intended the document … to be her will.” I also note that the three questions posed in Re Letcher (1993) 114 FLR 397 as constituting the test to be applied for s 11A purposes are all answered in the affirmative.

I make the following orders: (1) Pursuant to s 11A of the Wills Act 1968 (ACT), the document dated 16 November 2020 entitled “Last Will & Testament” and annexed to the affidavit of Kirri Elizabeth Robbie affirmed 3 June 2024 and marked ‘B’ constitutes the last will of Mary Ellen Robbie. (2) The Registrar is directed to do all things and take all steps necessary to grant probate of the document referred to in Order 1 to Kiri Elizabeth Robbie.