Declaration for validity of will made on 19 March 2003

Curley v Duff (1985) 2 NSWLR 716

In The Will of Patrick Murphy (1919) 19 SR (NSW) 357

Whiteley v Clune (No 2); The Estate of Brett Whiteley (1993), unreported; SCt of NSW; BC 9301902

Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439

Re Riordan [1961] VicRp 42; (1961) VR 271

Sugden v Lord St Lenards (1876) 1 PD 154

1 MURRAY J: This action was commenced by writ seeking the grant of probate of a will in solemn form. The matter was tried on affidavit evidence. No deponent was required for cross-examination.

2 The plaintiff was the friend of Stephen Gerald Norton, who was born on 17 March 1961. The first defendant was his mother and the fifth defendant his father. The second, third and fourth defendants were his brother and two sisters, respectively. There were appearances by Mrs Norton and the three siblings of Stephen Norton. Although served with the proceedings, the fifth defendant, his father Thomas Norton, advised that he wished to take no part in the proceedings. I gathered from one of Mrs Norton's affidavits that her marriage to the fifth defendant had come to an end.

3 The evidence establishes that on 19 March 2003, Stephen Norton attended the office of Askew & Co, solicitors, in Cannington. Earlier in March 2003, he had given instructions for his will to a Ms Askew of that firm, and on 19 March 2003 he executed the will before Ms Askew's father, Thomas Askew, and a woman named Katrina Hills, who I gather was brought in to the office as the second witness to the execution of the will.

4 The will was made in accordance with Stephen Norton's instructions. The plaintiff, described to Ms Askew as Norton's ex-girlfriend, was appointed executor of the will and its sole beneficiary. If she should not survive him for 28 days, the second defendant, Stephen Norton's brother, was appointed executor and his estate was given equally to named persons whom I gather were a niece and nephew of Stephen Norton.

5 Mr Norton died in tragic circumstances on 24 March 2003. He was then aged 42 years. The death certificate gives the place of death as a beach at Tim's Thicket, Dawesville. The cause of death, established by the finding of a coroner made on 19 May 2004, is given in the death certificate as, "Explosive injuries deliberately self-inflicted when he wrapped a quantity of detonator cord around his body and ignited the cord."

6 The deceased was a mechanical fitter by trade, apparently working in the mining industry. He left an estate in WA. His principal assets were the proceeds of superannuation funds. He also owned two motor vehicles, some expensive tools and some personal property. The net value of the estate is given as a little over $230,000. Otherwise, the deceased and the plaintiff owned a property as joint tenants.

7 The evidence is that the deceased had no natural or adopted children. The defendants are the only persons who would take under an intestacy. They do not oppose the orders sought by the plaintiff.

8 Following the death of the deceased, the plaintiff searched his house and his personal papers in an endeavour to locate the will which he had made shortly before his death. She caused inquiries to be made with his bank to see if they held that document on safe deposit. The search was unsuccessful. The document tendered in evidence is an unexecuted copy of the will provided by the solicitors Askew & Co, and it is of that document that the plaintiff seeks a declaration that it is the last and valid will of the deceased, unrevoked by him. The statement of claim therefore moves the Court to grant probate of the will in solemn form to the plaintiff as the executor named therein.

9 At the conclusion of the trial, I made the declaration sought and granted probate until the original will, dated 19 March 2003, or a more authentic version was proved, remote in the extreme as those possibilities might be. These are my reasons for making those orders.

10 By the Administration Act 1903 (WA), s 6, this Court has jurisdiction to grant probate of the will of a deceased person leaving property, real or personal, in WA. The term "will" is defined in s 3 of the Act, as follows:

"'will' extends to a testament, and to a codicil ...and also to a disposition by will and testament, ... and to any other testamentary disposition."

11 The term therefore extends not only to the document described as a testament and a codicil, a document supplementing a will, but also to the disposition made by will to take effect upon the death of the testator. The word "testament" is not defined, but the ordinary meaning of that word equates with the meaning of the word "will" encompassing any formal declaration by a person of their wishes as to the disposition of their property upon their death. In the Wills Act 1970 (WA), s 4, the word "will" is defined to include, "a codicil and any testamentary instrument".

12 In The Will of Patrick Murphy (1919) 19 SR (NSW) 357, was a case where a grant of probate was made in respect of two documents together. The deceased was a soldier who died on active service. There was a document which purported to be his will and was signed by him. The document merely said that his last will was in the hands of his wife. A document in the possession of his widow, in the handwriting of the deceased, again purported to be a will. It was attested by two witnesses but not signed by the testator. By this document he gave all his property to his wife. Harvey J granted probate of both documents, as "a complete will disposing of both realty and personalty." To my mind that is an outcome consistent with the meaning which I would give to the term "will" in the Administration Act.

13 I conclude that I have jurisdiction to grant probate of the copy of the will executed on 19 March 2003 if the original cannot be found and has not been revoked by the deceased. In other words, I may grant probate of the copy document as the last will of the deceased if it expressed his wishes as to the disposition of his property as at the date of his death.

14 The legal onus to establish the validity of a document as a will in the sense discussed above rests on the plaintiff, the party propounding the validity of the will: Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439. There is in that regard nothing, I think, to cast doubt on the possession by the deceased of full testamentary capacity at the time when the original of the document propounded was executed.

15 In passing, I should note that this is not a case which falls under s 34 of the Wills Act, dealing with the proof of the copy as an informal will, because although the document purports to embody the testamentary intentions of the deceased and it is unexecuted, it is not put to the Court that I should be satisfied, "that the deceased intended the document to constitute his will." On the contrary, what is advanced is that he intended the missing original of which the document before the Court is a copy to constitute his will.

16 This is, therefore, a case where it is sought to prove the copy as the will of the deceased because of the loss of the original will. The case is of the kind dealt with by Young J in Curley v Duff (1985) 2 NSWLR 716, where, at 718 - 719, Young J said:

"As I understand it, five matters must be established when it is sought to have probate of a lost will. First, it must be established that there actually was a will , secondly, it must be shown that that will revoked all previous wills, thirdly, the presumption that when a will is not produced it has been destroyed must be overcome, fourthly, there must be evidence of its terms, and fifthly, evidence of due execution.

17 I need only observe that I am quite satisfied that there was a will duly executed according to law on 19 March 2003, which in terms revoked all previous wills and declared itself to be the last will and testament of Stephen Gerald Norton. The document provides clear evidence of its terms.

18 It has long been held that when a will is made and placed in the possession of the testator, but not found at his death, there is a presumption that the will has been destroyed, animo revocandi, with the intention of revoking it. This is a mode of revocation provided for in the Wills Act, s 15. But the presumption may be rebutted and where the will makes a careful and complete disposition of the testator's property and there is no other circumstance which points to the probability of its destruction with the intention of its revocation by the testator, the presumption is so slight that it may be said not to exist. The cases are usefully discussed by Powell J at 27 of his Honour's judgment in Whiteley v Clune (No 2); The Estate of Brett Whiteley (1993), unreported; SCt of NSW; BC 9301902.

19 I have no idea what became of the original will in the short period of time between its execution and the death of the testator a week later, but I am satisfied that the presumption that he destroyed the will intending to revoke it is weak and is rebutted by the evidence in this case. The evidence establishes that when the will was made it was the deceased's firm intention that he should provide for the disposition of his property after his death. It was his clear intention that all his property should go to the plaintiff who had been his partner and who remained a friend and the owner as a joint tenant with him of real estate in WA.

20 He knew, as a result of discussion with Ms Askew, that the will was unnecessary to ensure that that property would go wholly to her upon his death. Ms Askew deposes that she told the deceased that a will was unnecessary for that purpose, and yet, of course, it is clear that he had other property which was not without substantial value, and he insisted that he needed a will. He gave clear instructions about its terms and the evidence shows that when he executed the will it provided a disposition upon his death which was in accordance with the instructions he gave.

21 Not only that, but in the event that the plaintiff did not survive him, the deceased made provision for the disposition of his property to a nephew and a niece, and the will, as executed, contains clear and detailed provisions to make that an effective disposition and to provide for his brother to be the executor of his estate. This has all the hallmarks of a person making a considered, detailed and effective disposition of his property in the event of his death. There is absolutely nothing to indicate that he changed his mind in that regard in the week intervening between the making of the will and his suicide.

22 The mere fact of his suicide, without more, in the circumstances of this case does not of itself raise any doubt in my mind that the terms of the copy of the will may properly be regarded as the effective declaration as at the time of death of the intended testamentary disposition of the deceased. Hence my declarations that this copy of the document executed on 19 March 2003 is the last valid unrevoked will of the deceased, leading to the making of a grant of probate in solemn form to the plaintiff as the executor of the will, subject only to proof of the original or a more authentic version of the last will of the deceased.