In the will of Mark Edwin Trethewey [2002] VSC 83 (14 March 2002)

Supreme Court of Victoria|2002-03-14|Before: BEACH, J. J

This is an application by Marian Grace Burford, who was the de facto wife of the late Mark Edwin Trethewey, pursuant to s.9 of the Wills Act 1997 for probate of a document which is said to be the last will of the deceased and which was made on 27 May 1998.

The application is a somewhat unusual one. The deceased died on 25 October 1998, aged 39. He had been previously married. There was one child of that marriage named Jess. However, his wife also had a further child named Molly who lived with the deceased, Jess and his former wife from the time she was six months old and who the deceased regarded as his own child.

For some time prior to his death the deceased was a lecturer in the Department of Applied Economics at Victoria University. On a number of occasions whilst he and the applicant were living together the deceased told the applicant that he had left a will on his computer.

In July 1998 the deceased was visited in Melbourne by his sister, Mary Alcorn. Mrs Alcorn has sworn an affidavit in support of the applicant's present application, the relevant paragraphs of which read:

"3. During the four days that I spent with the deceased in July 1998, we discussed, among many other things, what the deceased wanted to happen in the event of his death and whether he wanted me to look after his children, because the natural mother of the deceased's children had also passed away. 4. During our discussions, the deceased clearly stated to me that he did not want me to look after his children, he wanted his de facto partner, Ms Marian Burford, to become their legal guardian. The deceased also stated to me that he was, at that time, in the process of making a will. He told me that in his will he intended to leave one-third of his assets to Ms Burford and the remaining two-thirds, equally, to his two children, Molly Rose and Jess."

The deceased had also made similar statements to a long time friend, Martin O'Byrne. In his affidavit in support of the applicant's application Mr O'Byrne has sworn:

"11. I was a long time friend of the deceased. There were many occasions whereupon we had honest and frank conversations relating to personal matters. For this reason, I was not surprised, in any way, by the contents of the deceased's will, as left on the computer file. During the two to three years preceding the deceased's death, we discussed on at least 5 occasions the deceased's wishes and desires in terms of his children, estate and all other affairs in the event of his death. The deceased mentioned many times that he intended to change or re-write his will, as he had made a will in 1994, prior to him going overseas. The deceased said that he wanted his will to reflect his desire for Marian Burford to care for his two children, Molly and Jess and for Marian to be Executor of his affairs. The deceased did not tell me that he had written a will on his computer hard disc."

Following the death of the deceased Mr O'Byrne conducted a search of a computer hard drive unit which the deceased had removed from his computer at Victoria University and stored in his son's bedroom at home. In searching the hard drive Mr O'Byrne located a file containing the word "will". Mr O'Byrne opened the file and read its contents. The file reads as of 27 May 1998:

"In the event of my death my remaining wealth, including superannuation, leave and other work-related entitlements, any savings and any outstanding debts, to me to be transferred to Marian Burford, two-thirds to be to be (sic) held in trust for my two children by Marian, to be distributed to them when and as she sees fit, one-third to be retained by her. The amount of equity in 38 Henry Street to be handled in the said manner upon the decision of Marian and the children to sell the property. Mark Trethewey 27 May 1998.".

It is that file, or the document which has been produced from the file, which the applicant seeks to have admitted to probate.

Sub-sections (1) and (3) of s.9 of the Wills Act 1997 read:

"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) a document which has not been executed in the manner in which a will is required to be executed by this Act; or (b) a document, an alteration to which 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 that that person intended the document to be his or her will." (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 (b) any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator."

It is clear that s.9(1) of the Act establishes three criteria, all of which must be satisfied before an informal document will be admitted to probate: there must be a document; that document must record intentions which are testamentary intentions; and that document must have been intended by the deceased to be his will (see Estate of Masters, Hill v. Plummer (1994) 33 N.S.W.L.R. 446.

In my opinion those criteria have been satisfied in this case.

As to the first criterium, s.38 of the Interpretation of Legislation Act 1984 defines the word "document" as including:

"(d) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom".

The file which comprises the will consists of data on a disc which is capable of being reproduced from the disc, so that the will is a "document" within the extended meaning of the word.

As to the second criterium, the computer file clearly records intentions which are testamentary intentions.

Testamentary intentions are an expression of what a person wants to happen to his or her property upon death. In Russell v. Scott [1936] HCA 34; (1936) 55 C.L.R. 440 Dixon and Evatt, JJ. said at p.454 that the hallmark of a will is that it effects -.

"the voluntary transmission on death of an interest which, up to the moment of death, belongs absolutely and indefeasibly to the deceased."

In the context of informal wills, Priestley, J.A. said in Estate of Masters at p.469:

"A document in which a person says what that person intends shall be done with that person's property upon death seems to me to be a document which embodies the testamentary intentions of that person."

In my opinion the contents of this will file, or document produced from the file, do amount to testamentary intentions in the sense required.

Finally, the document was obviously intended by the deceased to be his will, that much is clear from its contents and the evidence of the applicant, Mrs Alcorn and Mr O'Byrne.

That the document is not signed by the deceased does not prevent the document being admitted to probate. In the unreported decision of Cohen, J. of the Supreme Court of New South Wales in Estate of Stewart delivered 12 April 1996, His Honour was required to consider admitting an unsigned altered document to probate. At p.12 he said:

"It is not necessary that the document be signed or otherwise authenticated by the deceased. See Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 per Powell, J. at 539. In that case it was pointed out, also at 539, that the ultimate enquiry remains whether the document and the circumstances of its making lead to the conclusion that the deceased intended the document to constitute his will."

In any event the deceased did type his name at the foot of the document and I consider that, in the circumstances of this case, that is the equivalent of his signature.

Finally, it is not essential that the word "executor" be used in a will. In the will of James Hollings (1878) 4 VLR (IPM) 46 Molesworth, J. said at p.47:

"It is not necessary that the word 'executors' should be used to constitute such; it is sufficient if it appears by the will that the persons named have to perform the duties of the office.".

In Estate of Williams Deceased (1984) 36 SASR 423, Legoe, J. said at 435:

"The appointment of an executor may be either express or constructive. If the construction of the will as a whole leads to the conclusion that the named persons are to carry out the functions of executors, then they are said to be called the executor according to the tenor. ... Firstly, a simple direction to persons to pay debts, funeral and testamentary expenses is an appointment of such persons as executors according to the tenor. ... Secondly, in order to constitute persons as executors according to the tenor of the will, it must, appear on reasonable construction thereof, that the testator intended that they should collect the assets, pay the debts and funeral expenses and discharge the legacies contained in the will."

The document in this case devises all of the deceased's estate to the applicant to be distributed by her as directed by the document. Clearly that constitutes the applicant the executor of the estate.

1. Pursuant to s.9 of the Wills Act 1997, probate of the will comprising a printed copy of the contents of a computer file dated 27 May 1998 contained on the hard disc of a desk top computer, being the property of the Victoria University of Technology, be granted to Marian Grace Burford, the executor according to the tenor of the said will.

2. The costs of this application be paid or retained out of the estate.

3. Authentication of this order by the Prothonotary be dispensed with and that this order be signed by a judge pursuant to Rule 60.04.

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