MATTER : Will of DOROTHY EMMA GAILEY late of Kensington Nursing Home, 62 Gwenyfred Road, South Perth, in the State of Western Australia, Widow (DEC)

Wills, probate and letters of administration - The making of a will - Testamentary instruments - Informal wills - Whether hand-written amendments not witnessed constitute last will - Intentions of deceased.

Wills Act 1970, s 10 and s 35

Crossley v Crossley [1989] WAR 227

Malatesta v Scott, unreported; SCt of WA; Library No 940291

Marsden v Adler, unreported; SCt of WA; Library No 980180

Shields v Caratozzola (1991) 6 WAR 1

1 SCOTT J: In this matter, the plaintiff, by way of an amended originating summons, seeks a declaration determining which of two documents constitutes the last will and testament of Dorothy Emma Gailey ("the deceased"). The declarations sought are:

1. A declaration that the court is satisfied that the deceased intended the copy will dated 13 September 1992 as amended by hand-written amendments on the face of the copy to constitute her last will; or alternatively -

2. If the court is not satisfied that the deceased intended the copy will dated 13 September 1992 as amended by hand-written amendments on the face of the copy to constitute her last will, a declaration that the will dated 13 September 1992 constitutes the last will of the deceased.

2 On 18 September 1998, the deceased died. It is common ground that the plaintiff had in its possession a will properly signed and executed by the deceased dated 13 September 1992 ("the will"). The first defendant also provided the plaintiff with a copy of the will on which hand-written alterations had been made in the form of deletions by crossing out paragraphs ("the document"). Next to these alterations on the document appear initials which are conceded to be those of the deceased. The first defendant deposes to the fact that the initials appearing on the document are those of his mother, the deceased.

3 The second defendant is the daughter of a very close friend of the deceased. The affidavits suggest that she was included in the will because she had separated and fallen on hard times. Her inclusion in the will was at the suggestion of the second defendant's mother, proposed at a time when the deceased was considering leaving property to the second defendant's mother.

4 Pursuant to the terms of the will, the first defendant was entitled to 80 per cent and the second defendant 20 per cent of the residuary estate of the deceased. Pursuant to the document the second defendant is the only beneficiary to be disadvantaged in that the document provides that the first defendant is entitled to 100 per cent of the residuary estate.

5 Prior to the deceased moving to Mandurah in 1994, she gave the first defendant the original of the document with other important personal papers and asked him to keep the documents safe for her. The first defendant deposes that from this, he assumed the document to be important and so placed the documents with his own important papers.

6 Pursuant to the first defendant's affidavit dated 4 December 1998, prior to the deceased giving him the document, the deceased told him that she had taken the second defendant out of her will but did not tell him the reasons for doing so or that she had done so by making a new will. Sugden v Lord St Leonard's [1874-80] All ER 21 is authority for the proposition that a statement by a testator is an exception to the hearsay rule as an oral statement by the deceased testator after the execution of her will as to her testamentary intentions.

7 The issue that arises for the court to determine is whether the will, or the document as altered by the handwriting of and by the initialling of the deceased, constitutes the last will of the deceased. Counsel for the first defendant also submitted that both the will and document together could constitute the will of the deceased.

8 Each counsel for the parties submitted that the matter is a question of fact for the court to decide, and neither party took an adversarial position as to whether the will, the document or both together, constituted the last will of the deceased.

9 Section 35 of the Wills Act 1970 ("the Act") provides:

"35. Any alternation made to a will of a deceased person after the will was executed or made has effect, notwithstanding that the alteration has not been made in accordance with section 10, if the Supreme Court is satisfied that the deceased intended the will as so altered to constitute his will."

Section 10 of the Act provides for the valid alteration of a will by the signature of the testator and subscription of witnesses to the signature of the testator to the alteration to be made in the margin opposite or near the alterations or on a memorandum referring to the alteration and written in some part of the will.

10 In James v Burdekin & Ors (1990) 3 WAR 298 Commissioner Jackson QC said at 300: :

(1) there must be a will, namely, a document purporting to embody the testamentary intentions of the deceased person; and

(3) the alterations have not been made in accordance with s 10 of the Act; and

(4) the court must be satisfied that there can be no reasonable doubt that the deceased intended the will as so altered to constitute his will."

11 The first matter for consideration is the standard of proof required for an informal will. Pursuant to amendment 47 of 1997, the words "reasonable doubt" were removed from s 35 of the Act . Although there is no authority on the new provision, the legislative intention is that the civil standard of proof, or balance of probabilities, is to replace the expression "no reasonable doubt" and be applied by the court to informal wills. The Minister in his Second Reading speech in relation to the Wills Amendment Bill stated that the Bill sought to amend Pt X of the Act "to lower the 'no reasonable doubt' standard of proof to the civil standard of balance of probabilities" cf Wills Amendment Bill, 2nd Reading, Legislative Assembly, 13 November 1997 Hansard at 7869. The court must therefore be satisfied on the balance of probabilities that the deceased intended that the document constitute her last will.

12 The fact that the alterations in the document are initialled by the deceased is indicative of the fact that the deceased regarded the document as being of importance. Had the alterations been simply notes of alterations, which the deceased was contemplating, then in my opinion it is unlikely that the notes would have been initialled. In addition, the fact that the deceased gave the document as initialled to the first defendant for safekeeping along with other important papers was indicative of the fact that the deceased regarded the document as significant.

13 There is affidavit evidence deposing to conversations between the deceased, her brother, son and daughter-in-law in which the deceased said she had changed her will to delete the second defendant because the second defendant had remarried; her lifestyle had improved, and she had become financially stable. Those conversations are consistent with the view that the changes in the document were intended by the deceased to constitute alterations to her will.

14 Counsel for the second defendant advised the court that she had no instructions as to the present circumstances of the second defendant with respect to the issue as to whether the changes in her circumstance which were said to have occurred, had in fact occurred. The evidence therefore, did not contradict what the deceased was said to have told her brother, son and daughter-in-law.

15 In my opinion the evidence before me is such as to satisfy me that the deceased intended to alter her will by removing the second defendant as a beneficiary. The affidavit evidence of her family members, the document itself, the lack of contradictory evidence in regard to the second defendant's circumstances and the treatment of the document, indicate that the deceased intended the document to be her last will and testament.

16 I would therefore order that the document be admitted to probate as the informal will of the deceased.

17 I will hear from counsel as to the orders required to give effect to these reasons.