Probate - Proof in solemn form - Whether will void under s 14(2) Wills Act 1970 (WA)

Wills Act 1970 (WA), s 8, s 14

Pronouncement for the force and validity of the will dated 9 November 2004

Phillpot v Olney [2004] NSWSC 592

Re Levy (decd) (No 2) [1957] VicRp 96; [1957] VR 662

Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277

Wheatley v Edgar [2003] WASC 118

(This judgment was delivered extemporaneously on 28 October 2009 and has been edited from the transcript.)

1 Mark Leonard Hender died on 16 October 2008. He left an estate in Western Australia, the net value of which is estimated to be in excess of $2.5 million. The plaintiff in these proceedings is the executor appointed under the will of the deceased dated 9 November 2004. The first defendant is the sister of the deceased. The second defendant, Amber Braddock, is the sole beneficiary under the 2004 will. The third defendant, April McIndoe, was the de facto partner of the deceased at the time of his death.

2 The first defendant, Ms Hender, suggested to the plaintiff that the 2004 will was void because it was made in contemplation of marriage. Because this allegation was raised the plaintiff has sought orders pronouncing the force and validity of the 2004 will and that there be a grant of probate in solemn form.

3 None of the defendants other than the second defendant have sought to be heard on this application. The second defendant has filed a defence supporting the making of the orders sought by the plaintiff. I am informed that the plaintiff and the first and second defendants have entered into a confidential agreement as a result of a mediation in respect of these proceedings. As a result, the first defendant does not oppose the grant of probate sought and does not seek to adduce any evidence. I am also informed that the third defendant does not oppose the grant sought.

4 A grant of probate in solemn form cannot be made simply by consent of the parties. The plaintiff is obliged to prove that the will is formally valid and made by a testator who had the capacity to do so. I accept however that the fact that the parties have agreed upon orders to resolve this matter is a relevant consideration: Phillpot v Olney [2004] NSWSC 592.

5 Before turning to the evidence, I note that all relevant parties have been given notice of these proceedings. In addition to those persons joined as defendants, two other half siblings of the deceased have been identified and served with a citation in relation to these proceedings. Those persons are Ian Leonard Hender and Maxine Gay Farrell.

6 The evidence relied upon is as follows: an affidavit of scripts of Mr Tolson, the plaintiff, of 25 March 2009 and a further affidavit of Mr Tolson of 15 July 2009. On the basis of that evidence I find that the deceased executed a will on 5 January 1998. A further will was executed on 18 February 2003. Finally, the 2004 will was executed on 9 November 2004. All three wills were prepared by the plaintiff in his capacity as solicitor for the deceased. The 2004 will clearly states that all former wills are revoked. Mr Tolson has also deposed that to the best of his knowledge the originals of the earlier wills were destroyed once the deceased signed a subsequent will.

7 I am satisfied that the 2004 will was executed in accordance with s 8 of the Wills Act 1970 (WA). In that regard I note that Mr Tolson in his affidavit of 15 July 2009 deposes that on 9 November 2004 he took instructions from the deceased to prepare a will and that the 2004 will accords with those instructions. The will was then typed and signed in the presence of two witnesses, Mr Tolson and a Jacqueline White, a legal secretary. I note that the copy of the will annexed to Mr Tolson's 25 March 2009 affidavit bears signatures and printed names that accord with this evidence.

8 As to capacity, if a will is rational on its face and is proved to have been executed and attested in the manner prescribed by law, it is presumed in the absence of evidence to the contrary to have been made by a person of competent understanding: Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, 288 and Wheatley v Edgar [2003] WASC 118 [24] (EM Heenan J).

9 There is no evidence to the contrary in this case and therefore no reason why the presumption should not apply. In any event there is additional evidence from Mr Tolson that the contents of the will were discussed with the deceased at the time of execution. Accordingly, I am satisfied that the 2004 will was made by a person with appropriate testamentary capacity. The evidence also establishes that there is no reason to believe that the deceased made any other wills after 2004, ever revoked the 2004 will or thereafter married.

10 The only issue raised on the pleadings is that it has been alleged by the first defendant that the 2004 will was made in contemplation of marriage and no such marriage having occurred, it is therefore void. I note that this allegation is referred to by the plaintiff in the statement of claim. The first defendant has not herself formally raised it in these proceedings; nonetheless, I will give it consideration.

11 Section 14(2) of the Wills Act provides that a will made in contemplation of marriage of the testator is void if the marriage is not solemnised unless the will provides to the contrary. Section 14(3) provides that:

(3) For the purposes of this section, a will is made in contemplation of a marriage if -

(a) it is expressed to be made in contemplation of the marriage; or

(b) there is other evidence establishing that the will was made in contemplation of the marriage.

12 I have examined the will and there is nothing to suggest on its face that it was made in contemplation of marriage, far less that it is expressed to have been so made. As to other evidence, there is no evidence before the court capable of establishing that the will was made in contemplation of marriage. Furthermore, I note that at par 11 of Mr Tolson's affidavit of 15 July 2009 he states:

At no time prior to the death of the deceased was I ever instructed or advised by either the deceased or Amber Braddock that they were engaged or were planning to be married or that the will was being made in contemplation of a marriage between them.

13 It is not the duty of the court to conduct its own investigation when an application of this type is made: Re Levy (decd) (No 2) [1957] VicRp 96; [1957] VR 662, 665 (Sholl J). Accordingly, there is no basis for the court to come to any conclusion other than that the 2004 will is the valid will of the deceased and that probate of that will should be granted to the plaintiff, accordingly orders in the terms sought are made other than in respect of costs. There being objection to the costs order, that matter is reserved for later determination.