Pahlow-Silady v Siladi

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

1 HIS HONOUR : This is an application to review the decision of the Registrar not to grant probate of an unexecuted document under s 18A of the Wills Probate and Administration Act 1898 as the last will of Beryl Patricia Sharman.

2 The jurisdiction to make the decision in this type of case is given to the Registrar and this is one of the few situations where a review lies to the court under Pt 61 r 3 of the Supreme Court Rules; vide Pt 78 r 6.

3 On such a review, as the authorities set out in the Supreme Court Practice show, the court does not completely treat it as a hearing de novo, especially where the review is from Registrars who are particularly skilled in this sort of work. The decision of the Registrar is usually something that the applicant must show is affected by error to such an extent that it should not stand. This is not so much a general principle, but a practical working method of the review process in probate.

4 The essential facts are that the testatrix has four children. She realised in May 1998 that her will of 1992 needed to be updated. Her daughter Colleen Versluis approached Mr Frankland solicitor to draw a new will. He did so and sent the draft of the will to Colleen. She then discussed the will with her mother, the testatrix, and the testatrix reacted in a way to show that she understood what was in the will, however she wanted some alterations made.

5 Colleen then wrote to the solicitor on the same day and relayed this information. On 27 July 1998 the solicitor advised that some of the alterations need not be made because the proper interpretation of the will meant the document stated what the testatrix wanted it to mean in any event, but that some of the alterations could be made, and he would make them.

6 The solicitor then made some handwritten alterations to the draft and submitted it to his word processing department, and the evidence shows that the document was formally altered at 2.38pm on 27 July.

7 Somewhere between 2 and 3pm Colleen spoke to her mother and the testatrix appeared to be relieved that everything that she had wanted to change in the will had been changed. Colleen said: "I observed her to be relieved and content when I told her the terms of her Will had been finalised ... and I know that she intended the altered document to be her Will without her having to go through the formal steps of having it signed and witnessed." 8 Had it been contested proceedings probably part of that piece of evidence would have been inadmissible, but the flavour of it is that the testatrix rested after knowing that everything was in order.

9 The daughter went on to say that: "My mother would have known that it was usual to sign a will and have her signature witnessed." 10 She then, however, expresses the opinion, which again would probably not be admissible in contested proceedings: "She would have been horrified if she thought her 1992 Will operated instead of that prepared by Mr Frankland on her behalf." 11 The testatrix died on 10 August 1998 without having executed her will because of deterioration in her health. She was 75 when she died and left an estate of approximately $2.7 million without liabilities.

12 The will which was prepared, in the words of the Registrar: "Comprises some 20 pages plus a front sheet. It is unsigned and undated and even though in superficial respects it is in a will format, it is clearly primarily just a vehicle for the setting up of testamentary trusts for each of the deceased's four children." 13 The learned Registrar considered the decision of the Court of Appeal in Re Masters (1994) 33 NSWLR 446; the several unreported decisions of Powell J in Re Kencalo (23 October 1991); Clothier v Rampling (9 December 1991) and Re McInnes (10 April 1992); the decision of Cohen J in Re Gray (8 July 1998, unreported) and that of Windeyer J in Re Pauncz (8 October 1998, unreported).

14 He said that the problem involved the third of the propositions of Powell J in Re Kencalo, namely that: "The evidence ... must be such as to satisfy the Court that ... the relevant deceased, by some act, or words, demonstrated that it was his, or her, then intention that the document in question should, without more, operate as his, or her, will."

The learned Registrar said: "Ultimately however, the question to be decided is whether the Court is satisfied that the deceased intended the document to constitute her will and the authorities show that what has to be considered here is not whether the deceased had some intention of disposing of her property in the way set out in the document, but rather whether or not she intended this document without anything more happening, to actually constitute her will. That is, a document which she had neither seen, nor read and which was never even delivered to her prior to her death. Thus, to my mind, the third requirement to bring s 18A into effect was not satisfied. Merely to say that (the deceased) 'wished the document to be her new will' after she had decided on numerous changes to be made on the first draft, and before these changes had been communicated to the solicitor and then incorporated into a subsequent draft, is not sufficient. ...

The deceased clearly knew the formalities required for execution of a will. She had made at least one before. It is proper in the circumstances to infer that she was well aware that all that she had done, albeit through an intermediary, was to give instructions from which a formal will would be prepared and that such a document could not operate as a will unless and until it was properly signed. There is no suggestion that she intended it to operate before execution." 15 Accordingly, the Registrar declared that the court was not satisfied that the document constituted a will, an amendment to a will or a revocation of a will.

16 On the review Mrs Gilmour for the plaintiffs put that the learned Registrar took too narrow a view of s 18A. She said that the section was plainly a remedial section and the authorities show that it is to be liberally interpreted. She further put that if anyone had suggested to the testatrix just before she died that she had not made a will in accordance with the document last prepared by Mr Frankland she would have contradicted them strongly. She put that it would be a travesty if the document into which so much time and care was put, and which contained all the dispositive provisions that the testatrix wished to see implemented, was not given effect to.

17 The alleged will is in evidence. The description of it by the learned Registrar might, with respect, be a bit misleading in that the document is of 20 pages, the first three pages are in typical will form and then there is virtually a schedule of 16 pages setting out the terms and conditions of a family testamentary trust for each of her four children. The earlier parts name the four children, make specific gifts and then set up the four trusts to administer the rest and residue of the estate.

18 There is no doubt that the reforms made by the introduction of s 18A into the Act are to be construed liberally. However, it must always be borne in mind what those reforms were designed to achieve.

19 In order for a court to grant probate it must be satisfied that the document propounded is the last will of a free and capable testator, which was duly executed with the knowledge and approval of the testator.

20 Section 18A only deals with one matter in this formula, namely due execution. The rest of the requirements for a valid will are unaffected by s 18A, that is, that even if the court did consider that the document fell within it, the Registrar would still have to be satisfied that it was a document of which the testator knew and approved.

21 Although it may well be the situation that there is no problem at all with the members of this particular family, the court always looks with great suspicion at a will that is prepared by a solicitor without direct contact with the testator. Unless the solicitor actually sees the testator there is always great suspicion in respect of the will, especially when the children are the beneficiaries.

22 It should be the practice of all solicitors to make sure that they see the testator themselves and make sure that what is in the will is understood by the testator and that he freely accedes to it. They should have their interview with the testator without the presence of any of the beneficiaries, though often this will be impossible for psychological or other reasons. When this is not done, there will almost always be problems with showing that the will is made with the knowledge and approval of a free and capable testator.

23 So far as execution is concerned, up until 1 January 1838, in England, a will of personalty could take any form and need not even be in writing. In the Wills Act of 1837 in England, and local legislation followed later in the 19th century, formal requirements were set down for the making of wills. These requirements in their current form appear in s 7 of the Wills Probate and Administration Act 1898. The Wills Act of 1837 changed the form of execution. Section 18A merely mitigates against the effect of s 7 by allowing some liberty.

24 It is instructive to look at the cases before 1837 and also the cases of the wills of soldiers, sailors and mariners which were exempt from the 1837 Act, and also exempt from the Act which both in Australia and England succeeded the 1837 Act.

25 One such decision is the decision of the Prerogative Court in Theakston v Marson (1832) 4 Hagg Ecc 290; 162 ER 1452. In that case a clergyman had written down: "Theakston's will Nov 4th. Theakston wished me to make his will, and bring it for execution on Tuesday next. His wife to have 100 pounds a year. Marson to be executor and RL with the whole of the property. Myself trustee to secure the annuity. Read this to him when I took it down. Appd".

26 So there one had a set of circumstances where the evidence of the clergyman was that these were the terms of the will and that he was to have it properly prepared and brought back the next week. Unfortunately, the testator died before this could happen. The court did not believe the clergyman, but Sir John Nicholl said that even if he had believed the clergyman he would not have granted probate of that particular document because he could not be satisfied that the document did intend to operate as the testator's last will.

27 With soldiers, sailors and mariners the same sort of attitude was taken. In the Sunnucks edition of Williams and Mortimer Executors Administrators and Probate (Stevens & Sons, London, 1970) p 218, the following appears: "A letter to solicitors stating how the testator wished his will to be altered and asking them to destroy his will and make a fresh one as indicated by his letter was admitted to probate in an unreported case. In another unreported case a draft will as altered by a soldier and sent to his solicitor by covering letter and a memorandum was admitted to probate. The court must be satisfied that the document in question is intended as a will and is not merely a draft." 28 They referred to the decision of Boughton-Knight v Wilson (1915) 32 TLR 146, but although I have read that decision it does not really seem to me to be particularly relevant to the present sort of problem.

29 Those unreported cases referred to by Williams and Mortimer show that one can have a situation where, although a second document is to be prepared, a person can make a will by sending an amended copy of an earlier will to a solicitor. But that, however, is a stronger situation to the present one, and also the document of which probate was granted was an earlier draft with additions, not the solicitor's redraft.

30 I mention these authorities before dealing with the authorities under s 18A itself to meet the criticism of Mrs Gilmour of counsel that many of the decisions under s 18A are too restrictive. It is important, I think, to see that s 18A only deals with the matter of execution and not with other matters of the will, and that the decisions in New South Wales are consistent with the line of thinking that has been followed for hundreds of years on wills to which s 7 did not apply.

31 Section 18A requires three matters to be satisfied. That there is a document is one of those. The fact that the section centres on there being a document is important. One must get past the stage of there being an oral communication to a person who is to prepare a document of the testator's wishes. Unless there is a document then one cannot get to the first base of a s 18A application. Once there is that document then one must also show that it embodies the testamentary intention of the deceased. Then there is a third element to satisfy.

32 Mrs Gilmour points to the judgment of Kirby P in Masters' case and notes that at p 449 his Honour does not use the words "without more", as Powell J did in Kencalo, but merely says that the document must constitute "a will of the deceased person".

33 His Honour then says that it must be a will in the wider sense of the word because if the will complied with s 7 there would be no need to make the application; see p 451G. He then goes on to say that one should not narrow the operation of the intended reform. At the very least Kirby P says that there must be a will in the pre-1837 sense and that the reform is merely to get over the strict requirements of the formalities of s 7.

34 It is true that in Masters' case and in the later decision of Pahlow-Silady v Siladi (22 April 1997, unreported) the Court of Appeal did not mouth the words "without more", but it is also true that the Court of Appeal never criticises in any way any of the first instance decisions that do employ that language. Indeed, Mason P in the Pahlow-Silady case at p 8 of BC 9701391 refers to the old cases and says that the document of which probate is to be granted must be more than a draft, it must be something which the deceased intended should constitute his will.

35 There are great difficulties, when the testatrix has never seen the document, in coming to the conclusion that she must have intended that that document should operate as her will. In one of the early decisions on s 18A of the Act Re Brown (1991) 23 NSWLR 535, Powell J indicated that it was possible but very, very difficult that such could be the case. That it could be so was illustrated in The Estate of Vauk (1986) 41 SASR 242 where, as appears on p 245, just before committing suicide there was a note from the testator, "There will the PU Trustee - changed: to be valid!"

36 The note had been affected by the fact that it had somehow or other become cut and come under the testator's body. Legoe J held that the document should be admitted to probate as there was no reasonable doubt that the document, which the testator had never seen, drafted by the Public Trustee was by his note to constitute the will. That, however, is really a case on very exceptional facts.

37 Here the testatrix knew that wills had to be executed. She knew that the solicitor was going to send the will out. She may have been content because she thought all the processes were over, but there is insufficient material for me to conclude that she at that stage thought a document, which may just have been brought into existence at the moment her daughter was speaking to her, or may not, the evidence is equivocal, was at that moment to constitute her will.

38 Accordingly, in my view the learned Registrar came to the correct decision and his decision must be affirmed.

39 However, I must record my indebtedness to Mrs Gilmour who drew my attention to a large number of authorities and made me think very, very deeply about the operation of the section and on the facts of this particular case because these decisions really are ultimately questions of fact in each particular case.

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