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[2007] VSC 415
Supreme Court of Victoria
2007-10-24
HOLLINGWORTH J
Original judgment source is linked above.
WILLS - Informal wills - Whether testator intended informal will to be his will - Whether testator intended informal will to revoke earlier will - Wills Act 1997 ss7 and 9.
1 In early September 2006, the well-known racing car driver, Peter Geoffrey Brock, died from injuries sustained in an accident while competing in a rally in Western Australia.
2 Peter Brock left behind a number of documents said to contain his testamentary wishes: a validly-executed will dated 27 July 1984 ("the 1984 will"); an informal will prepared around 2003 ("the 2003 will"); and a further informal will, prepared on 6 July 2006, two months before his death ("the 2006 will").
3 Gregory Chambers is Mr Brock's former accountant and one of the named executors of the 1984 will. He has applied for a grant of probate of the 1984 will.[1]
4 James Keogh, Mr Brock's friend and legal advisor, and Eric Oliver Dowker, Mr Brock's friend and a chiropractor, are the executors named in both the 2003 and 2006 wills. They have applied for a grant of probate of the 2006 will.[2] Although there is no application on foot seeking probate of the 2003 will, Messrs Dowker and Keogh have indicated that they will apply for probate of the 2003 will, if the 2006 will is found not to constitute a valid will and the 2003 will is found to be a valid will.
5 Neither application for probate has been granted by the Registrar of Probates, due to the uncertainty surrounding the status of the 2003 and 2006 wills. In order to protect the estate in the meantime, on 25 January 2007, the court made a limited interim grant of letters of administration ad colligendum bona to Mr Chambers and Mr Keogh. This enables Messrs Chambers and Keogh to attend to necessary administration of the estate until the court further orders.
6 In these proceedings, the court is required to determine the legal status of the 2003 and 2006 wills. In particular, the court is asked:
(a) Can the 2006 will be admitted to probate as an informal will, using the court's power under s9 of the Wills Act 1997 ("the Act") to admit to probate a document not properly executed as a will, but which the will-maker intended to be his or her will?
(b) If it cannot, can the 2003 will be admitted to probate under the same provision of the Act?
(c) Even if it is not a valid will, does the 2003 will nevertheless revoke the 1984 will?
7 If neither the 2006, nor the 2003, will has the relevant legal effect, it is common ground that the 1984 will should be admitted to probate.
8 These proceedings relate only to whether the 2003 or 2006 wills are documents which have particular legal effect, notwithstanding that they were not formally executed. The court is not asked to determine the fairness of the provisions made in the wills, that is to say, whether Mr Brock ought to have distributed his estate in a different way. The court's decision primarily has the effect of identifying who will administer the estate and under which will.
9 Once probate of the relevant will is granted, any person who considers that Mr Brock had a moral obligation to make provision (or greater provision) for him or her has the right to bring a proceeding under Part IV of the Administration and Probate Act 1958 seeking an increased share of the estate.
10 In order to be valid, a will must ordinarily satisfy all of the formal requirements set out in the Act:
(a) The will must be in writing (s7(1)(a));
(b) The will must be signed by the testator, or by some other person in the testator's presence and at the testator's direction (s7(1)(a)). (It used to be a requirement that the signature appear at the foot of the will; this is no longer the case);
(c) The testator must have intended to execute a will (s7(1)(b));
(d) The signature must be made or acknowledged by the testator (or on behalf of the testator, as the case may be) in the presence of at least two witnesses (s7(1)(c)); and
(e) At least two of the witnesses must then attest and sign the will in the presence of the testator, but not necessarily in the presence of each other (s7(1)(d)). The witnesses need not know that what they are signing is a will (s8), however the witnesses must be able to see the testator sign (s10).
11 A will need not be dated, or, if it is dated mistakenly, it will not be invalid. However, in cases of undated wills and incorrectly-dated wills, the court may require evidence as to the date of execution.
12 The 1984 will is the only one which complies with all of these formal requirements.
13 Before 1997, any failure to comply with the formal requirements resulted in the will being invalid and unable to be admitted to probate.
14 In its 1994 report, a Victorian parliamentary law reform committee made a number of recommendations to reform the law of wills. One of them was that an informal will provision be included, to allow the court to grant relief in situations such as where the testator inadvertently forgot to sign his or her will.
15 The committee drew a distinction between informal wills within the meaning of the informal will provision - namely, instruments which the testator intends to be a will - and drafts, letters of instruction, even engrossments of wills which were not intended to be the will at the time they were under consideration.[3]
16 The committee considered reforms which had occurred in other Australian jurisdictions. It recommended that Victoria adopt wording similar to the legislation in South Australia (the first Australian jurisdiction to recognise informal wills), so as to provide judges with persuasive precedents. The South Australian provision has been given "ample and beneficial operation".[4]
17 Section 9 of Act incorporates most of the recommendations of the committee in its 1994 report.[5] Parliament noted that where, for example, a testator inadvertently forgot to sign his or her will, to consider the will invalid would create inequitable results, and failure to recognise the informal will may benefit people who the testator had no intention of benefiting under the terms of his or her will.[6]
(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
if the Court is satisfied that that person intended the document to be his or her will.
19 Section 9 is remedial in nature, meaning that it provides a means by which the court can give effect to the testator's true testamentary intentions, despite the fact that a will has not been validly executed. Where legislation is remedial, it should be given a broad as opposed to a narrow construction, one which will serve to achieve the broad objects and purposes which parliament had in mind. Here, parliament's clear intention was to avoid failure of the testamentary purpose caused by non-compliance with the formalities due to ignorance or inadvertence.[7]
20 Notwithstanding the remedial nature of the section, care must nevertheless be taken to ensure that the statutory formalities enshrined in the Act are not unduly relegated in importance.[8]
21 There was little dispute between the parties as to the relevant legal principles, which are well-established. One area of dispute concerns an argument advanced on behalf of Mr Chambers that there is an additional requirement to be met: namely, that the testator must have "adopted or acknowledged" the informal will. That argument will be considered shortly.
22 In a case such as this, the court is required to determine what were the intentions of a person who is no longer alive and able to tell the court for themselves. There are obvious difficulties in undertaking such a task, but that is what the legislation requires the court to do. In determining an application under s9, 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.[9]
23 Whilst other cases can provide a guide to the types of situation in which s9 can operate, each case ultimately depends on its own facts.
24 "Document" has a wide definition. In addition to documents in writing, it includes, amongst other things, film and discs on which sounds or data are recorded.[10] For example, in Re Trethewey,[11] this court admitted to probate as an informal will a document typed by the deceased and saved on his computer hard drive.
25 There is no question that each of the 2006 and 2003 wills is a "document" in the relevant sense.
27 There is no dispute that the 2006 and 2003 wills were not executed in accordance with the Act.
The deceased's intention that the document be his or her will
28 Testamentary intentions are an expression of what a person wants to happen to his or her property upon death. Therefore, the document must not operate to bind the deceased during his or her lifetime.
29 It is necessary, but not sufficient, that the document sets out the deceased's true testamentary intentions. The deceased must also have intended that the document in question operate as a will. In enacting s9, the legislature did not intend that any document expressing or reflecting testamentary intentions could be probated under s9; the testator must have intended the particular document to constitute a will, and for the document to immediately operate as his or her will at the time it was created or completed.
30 So, if the deceased contemplated the preparation of a further document, which would itself be the will, that would tend to negative the assumption that the document in question would itself have constituted a will. Accordingly, a draft will, or instructions for a will, would not generally comply with s9.[14] Nor would an informal document, such as a letter, diary or the like, which nonetheless accurately sets out the person's testamentary intentions.[15]
31 The 2006 and 2003 wills were both prepared on printed "do-it-yourself" will kit forms. The use of such a form has been held to strongly support the conclusion that the document was intended to be a will. In Mackenzie v Osburn,[16] the court attached particular significance to the fact that the informal will was written in the form of a will kit:
The deceased was aware of what a will was. He had executed a formal will prepared by his solicitors ...[some nine months before the informal document came into existence]. The fact that the deceased went to the trouble of acquiring a will kit is ... highly suggestive of an intention to prepare a document as the deceased's last will.[17]
32 The court in that case also noted that no alternative interpretation had been offered as to the purpose of the document.[18]
33 Of course, even if a will kit is used, there must be evidence that the deceased regarded the document as finished or legally binding at the relevant time.[19]
34 The court may take into account the existence of a prior solicitor-drawn will when examining the extent of the failure to comply with formalities. In appropriate circumstances, an inference may be drawn that the deceased was aware of the formalities required for a will. This may have an effect on whether the court is prepared to accept that the deceased intended the informal document to be his or her will.
35 For example, in the Estate of Dunn,[20] the court refused to admit to probate a document written by the testator and headed "Alteration to my Will". The deceased's three previous wills had been drawn by solicitors, and the deceased had complained about what his solicitor would charge for making minor amendments to the will, but had indicated an intention to nonetheless engage the solicitor's services to make planned amendments. The court considered the deceased's "previous will-making habits" were relevant, and inferred from the fact that each of the previous wills was drawn by solicitors that there was no reason to believe the deceased "either knew, or suspected, that it was possible to make a will with anything other than full formality".[21]
36 Similarly, the deceased in Kedzier v Postle[22] had a history of drawing his own wills, using as a base or template the terminology in his original will, which had been drawn by a solicitor. The court refused to admit an informal (un-witnessed) codicil to probate, because the history of home-drawn wills demonstrated that the deceased was well aware of some of the requirements of wills formalities, and "took care on a number of prior occasions to ensure that wills were witnessed".[23]
37 Conversely, application of this principle is difficult where the testator is "not fully familiar with the nature of a will or with the way in which the law in this regard operates".[24] If a testator is unaware of the formal requirements for a will, the court may more readily infer that the deceased intended the informal document to have legal effect according to its terms after his or her death.[25]
38 In such circumstances, the manner in which the informal document is treated by the deceased may be relevant - for example, if the deceased entrusts the document to a close friend for safe-keeping shortly before death, the court may regard this as significant.[26]
39 Section 9 was clearly intended to apply where the necessary formalities were not complied with merely as a result of inadvertence.
40 On the other hand, if the deceased failed to sign the will or comply with formalities not by virtue of inadvertence or an "act of God" beyond his or her control (usually, dying before execution), but rather as a result of a "conscious decision"[27] not to do so, including a reluctance to do so,[28] the court is likely to decline to admit it to probate.
41 In the Estate of McNamara,[29] the deceased completed all relevant sections of a do-it-yourself will kit, save for the execution clause. The will kit was operative in that it disposed of the whole of the deceased's estate. The deceased dated the will kit, but did not sign it, nor was it witnessed - not by reason of oversight, but because the deceased appeared reluctant to have a nurse, present at the time the will kit was completed, witness his signature. The will kit was placed in a drawer beside the deceased's bedside, and was not revisited in the subsequent six weeks prior to his death. The court refused to admit the document to probate.
42 Counsel for Mr Chambers argued that, where an informal will is sought to be propounded, there is a separate or additional requirement for evidence that the testator "adopted or acknowledged" the will as embodying his or her testamentary intentions. It was said that there is no evidence that Mr Brock acknowledged or adopted the 2006 will as his final will, therefore the court cannot grant relief under s9.
43 As support for that argument, Mr Chambers relies upon statements such as that in the Estate of Hines:
I do not suggest that in the absence of independent evidence an unsigned will could never be regarded as a testamentary instrument to which [the equivalent of s9] applies. But it seems to me that the court must be able to infer from the circumstances that the deceased adopted or authenticated the document such as to show that he or she intended the document to take effect as a testamentary instrument. The availability of independent evidence (and by that I mean evidence apart from the document itself) makes the task of proving the will considerably less difficult. [30]
44 I do not read cases such as the Estate of Hines as imposing a requirement that there must be evidence of an additional or separate act of adoption or acknowledgement in every informal will case. What will be necessary to satisfy the court as to the deceased's intention will vary from case to case.
45 An important difference in the various states and territories legislation is the standard or burden of proof. In some jurisdictions, the court must be convinced to the criminal standard - that is, beyond reasonable doubt - that the testator intended the document to be his or her will. In other states, including Victoria, a civil standard of proof applies - that is, a person propounding an informal document must establish each of the elements in s9 on the balance of probabilities.
46 There is no third standard of proof, somewhere between the civil and criminal standards. Nevertheless, "the seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the [court]."[31]
47 I accept that because of the nature of probate, the consequences of any findings that may be made, and the inability to hear any evidence from the deceased as to his actual intentions, the court needs to evaluate the evidence with great care.
48 Mr Brock was married twice, in the late 1960's and early 1970's. There are no children of either marriage.
49 Between late 1976 or early 1977 and March 2005, he was in a de-facto relationship with Beverley Brock. Ms Brock took Mr Brock's surname, although they never married.
50 Ms Brock has three children. The first, James Brock, was born in 1976 to Ms Brock and her former husband; however, Mr Brock treated him as his own child. Mr Brock and Ms Brock had two children of their own, Robert Brock, born in 1980, and Alexandra Brock, born in 1983. References in these reasons for decision to "the Brock children" are references to all three of Ms Brock's children.
51 In March 2005, Mr Brock moved out of the family home at Doctors Gully Road, Nutfield ("the Nutfield property"). When he left, he took with him some of his sporting memorabilia. At various times after he moved out, he either collected or had returned to him more of his memorabilia and some personal effects.
52 It seems that Mr and Ms Brock each engaged solicitors to act for them in relation to finalising their property matters, and it seems that they may have reached agreement about the splitting of at least some of their assets, including any interests they may have had in the Nutfield property. However, the precise details of any such agreement are not in evidence.
53 At the time of his death, Mr Brock was in a de facto relationship with, and engaged to, Julie Anne Bamford. Although Mr Brock and Ms Bamford started living together in July 2005, they had been in an intimate relationship for about 15 years before that. After initially renting the property in mid 2005, Mr Brock and Ms Bamford subsequently jointly purchased a property at St Andrews ("the St Andrews property"). The St Andrews property was mortgaged at the time of Mr Brock's death.
54 On 27 July 1984, Mr Brock executed the 1984 will, prepared by his then-solicitor. The will was validly executed, and it is common ground that, if neither of the other wills is found to have relevant legal effect, there would be no impediment to the 1984 will being admitted to probate.
(a) Appointed Mr Chambers, Ms Brock and Michael John Dent, solicitor, as executors and trustees;[32]
(b) Provided for specific monetary gifts, totalling $35,000, to be given to Mr Brock's parents, niece, brother (Philip), children, and Ms Brock;
(c) Provided that Ms Brock was to inherit all furniture contained in the family home and all Mr Brock's trophies and other sporting memorabilia;
(d) Provided that Ms Brock and the Brock children could live in the family home until Ms Brock's marriage or death, or until the youngest of the Brock children turned 18 (whichever of these events occurred last); and
(e) Provided for the residue of the estate to be held on trust, with the income distributed to Mr Brock's parents, Ms Brock and the Brock children. Upon the death of Mr Brock's parents, Ms Brock or the youngest of the Brock children turning 25 (whichever event occurred last), the income and capital from the trust was to be paid to the Brock children.
56 Ms Brock suggested on numerous occasions that Mr Brock update his will, to take into account his changed personal circumstances, including the death of his parents.
Peter was a person who had a cavalier attitude to anything legal and financial and expressed the view that, as he would not be around (ie, after he died), he had nothing to worry about. Thus, whenever I raised the topic of a new will, I inevitably had to explain to Peter that I would have to resolve the mess should Peter die before me. I asked Peter to assist me and make the effort for all of our sakes.
58 Ms Brock bought a "do-it-yourself" will kit at Mr Brock's request. About one week later, Mr Brock, Ms Brock and the Brocks' then-secretary and personal assistant, Sandra Williams, sat down in the Brocks' home office to discuss completion of the will kit. Ms Brock is unable to recall exactly when this occurred, but she believes it was a couple of years before the couple separated in 2005.
59 During this meeting, Mr Brock completed the following details in the will kit:
(b) Executor/Executrix - he appointed Messrs Dowker and Keogh as executors and trustees, with Alexandra Brock as the alternate executor; and
(c) Funeral Directions - he stated his wish to be cremated and his ashes scattered at the top of a hill at home.
60 Mr Brock hand-wrote these details himself. This was unusual, as he usually asked Ms Williams or Ms Brock to complete forms, which he would then sign.
61 Mr Brock left blank those parts of the will kit which disposed of his property. Mr Brock told Ms Brock that, as he trusted her completely, she could complete the remaining sections of the will at the time of his death, with whatever Ms Brock considered fitting. He told her that she should then sign and date it, and "he would be more than happy with that".
62 Ms Brock says she was not surprised by his request, as Mr Brock liked to take care of "the big stuff", like motor racing and sponsorships, leaving the detail to others. Other witnesses have confirmed that Mr Brock tended to leave the detail and the paperwork to others.
63 Mr Brock then signed the will kit as testator, in the presence of both Ms Brock and Ms Williams. Ms Williams signed and completed her details in one of the sections reserved for witnesses. Ms Brock did not witness the will.
64 Ms Brock filed the will in a filing cabinet at the property. The 2003 will was amongst the personal papers collected by Mr Brock and an employee in the week after Mr Brock moved out, following the breakdown of his relationship with Ms Brock.
65 The 2003 will contains no provisions disposing of Mr Brock's estate. As such, if valid, it might have effect to:
66 In either case, the estate would be administered in accordance with the rules of intestacy. Distribution of Mr Brock's estate on intestacy would result in the entire estate being left to his biological children. Although irrelevant to the question of validity of the wills, counsel for the Brock children indicated that, if the estate were to be distributed on intestacy, Robert and Alexandra Brock have agreed to divide the estate equally with James.
67 Evidence of the circumstances surrounding the creation of the 2006 will was given in two affidavits of Danees Christine Denman, sworn on 21 February and 20 September 2007, respectively.
68 Ms Denman met Mr Brock about 17 years before his death and had been involved with Mr and Ms Brock in fundraising and political events. In October 2005, Mr Brock invited Ms Denman to become a director of the Brock Foundation, and in January 2006, Ms Denman commenced work as the Foundation's financial controller, in which capacity she dealt with finances, grants, applications, and the work of a personal assistant to Mr Brock. Ms Denman and Mr Brock shared an office.
69 The following is Ms Denman's unchallenged evidence about how the 2006 will was prepared.[33]
70 On 6 July 2007, Ms Denman arrived at work around 9:30 am. Mr Brock said he wanted to have a staff meeting. He also had a morning appointment with another person, which Ms Denman did not attend.
71 After the appointment, but before lunch, Mr Brock came over from his side of the office with a plastic bag in his hands, from which he took out a will kit which he placed on the desk. He told Ms Denman that he wanted the will written up and "this is what he wanted to take place".
72 Mr Brock opened up the will kit at the will page and asked Ms Denman to complete it for him. Ms Denman took the will kit and wrote it up "at his direction". All the handwriting on the document is Ms Denman's.
73 As she wrote it up, Mr Brock sat next to her, looking over her shoulder, telling her "what he wanted in the will and how it was to be written up". Ms Denman says that each piece of handwriting was written after Mr Brock directed her to write it down.
74 About half-way through drawing up the will, Ms Denman said to Mr Brock that she was unhappy about drawing it up, as "he did not have a simple will like Mr and Mrs Smith next door. It was too complicated, and he needed to see a solicitor". She says that Mr Brock "acknowledged" what she said, but wanted to continue.
75 While telling Ms Denman what he wanted to go in the will form, Mr Brock mentioned other issues, which were not to be referred to in the will form. Once the will form was complete, Ms Denman scribbled some notes of all matters Mr Brock had referred to, including those relating to the will and those not relating to the will. Mr Brock watched over her shoulder as Ms Denman prepared the rough notes. It took about 10 or 15 minutes to draw up the will and the notes.
76 Just as Ms Denman finished writing up the notes, Mr Brock received a mobile telephone call and went into the kitchen to take it. While Mr Brock was away on the call, Ms Denman signed the will form in one of the spaces for a witness. Ms Denman does not say that Mr Brock asked her at any stage to act as a witness. Nor does she explain why she signed the document at that time.
77 Ms Denman said that after Mr Brock returned, his mood had changed and he seemed preoccupied. She said that he was in a bad temper and distracted. Shortly afterwards, Mr Brock asked Ms Denman to prepare his lunch. The will was not mentioned again.
78 Later that same day, Ms Denman used her rough notes to prepare a hand-written document entitled "The Wishes of Peter G Brock" ("the wishes document"). The wishes document was produced to the court. Ms Denman no longer has the rough notes from which the wishes document was prepared. There is no evidence that Mr Brock ever saw the wishes document.
79 Later that day, Ms Denman filed the will kit and the wishes document. Her affidavits do not say where she filed them. According to the joint affidavit of Messrs Dowker and Keogh sworn 1 December 2006, the 2006 will was located by Ms Denman in the filing cabinet of her office within the St Andrews property, the day after Mr Brock's death. There is no evidence as to how it came to be there.
80 The 2006 will appoints Mr Dowker and Mr Keogh as executors, and leaves his "super" and Timbercorp shares to the Brock children. The remainder of his estate is left to Ms Bamford. The will also gives directions for cremation, not burial, and expresses a preference for no flowers at the funeral.
81 The wishes document is signed by Ms Denman, and reads as follows:
(1) That he instructed the following details to be undertaken by Danees Denman, financial controller and personal assistant.
82 In considering whether Mr Brock intended the 2006 will to be his will, the court may have regard to evidence of what he said to other people.
83 Apart from Ms Denman, nobody else was aware of the existence of the 2006 will prior to Mr Brock's death.
84 The following evidence was given as to what Mr Brock said to others about his intention to make a new will and his intended testamentary dispositions. The affidavits of all relevant witnesses are brief and contain little, if any, detail of specific conversations.
85 Ms Denman says that none of what Mr Brock instructed her to write was new to her, as "he had mentioned it to her many times" during her employment with him, and he was clear in his instructions about what he wished to do with the will. However, she gives no detail of any previous conversation. It is not clear just how much detail Mr Brock had gone into on previous occasions, about what he wished to happen with his various assets.
86 In her first affidavit, Ms Denman says that "I now recognise I should have got Peter to sign the will, but I did not ask him to do so as I assumed he was going to make a will and did not understand the legal significance of the document that had been drawn up." In her second affidavit, Ms Denman sought to explain her earlier comment in the following manner: "By 'legal significance', I meant 'legal importance'. I certainly hoped that Peter would see a solicitor with a view to making a professionally drawn will."
87 Ms Denman's first affidavit also says she assumed that, after the occasion when she drew up the 2006 will, Mr Brock had gone to visit Mr Tonkin, the solicitor he had engaged in his matrimonial proceeding, "to have a will drawn up".
88 What Ms Denman (or any other witness) believes to have been Mr Brock's intentions and understanding is not legally relevant or admissible. But, if such a belief is based on what Mr Brock actually said or did, then evidence of what he said or did may help the court draw its own conclusions as to his intentions. Unfortunately, Ms Denman does not explain why she made any of those assumptions. Did she assume he was going to see a solicitor because of something he said to her? Did she assume he did not understand the "legal significance" or "legal importance" of the 2006 will because of something he said to her? If so, what did he say?
89 Mr Keogh met Mr Brock more than 30 years ago. They used to race cars together. For the last six years of Mr Brock's life, Mr Keogh was his legal advisor, particularly in relation to commercial matters. However, he never prepared a will for Mr Brock. Nor did he act for him in relation to his family law dispute with Ms Brock.
90 When Mr Brock first separated from Ms Brock, Mr Keogh told him he needed to make a new will, and Mr Brock said he would do so. Mr Keogh says that Mr Brock made it clear to him on a number of occasions, over lunch or dinner, and by telephone, often after the two had discussed other legal and commercial matters, "what his will-making intentions were". Mr Keogh made no notes of these conversations, apparently because of their informal nature. His affidavits give no details of any of such discussion.
91 Mr Keogh says that the 2006 will and the wishes document are "consistent with" his understanding of how Mr Brock wished his estate to be distributed, based on their discussions. As with Ms Denman's affidavits, there is no evidence that Mr Brock ever told Mr Keogh what he wanted to happen with any specific assets, with the following exception.
92 Mr Keogh says that Mr Brock told him (on an unspecified occasion or occasions) that, from the sale of the Nutfield property, he would pay the mortgage for the St Andrews property. It is not clear from Mr Keogh's affidavit whether this was made as a statement of what Mr Brock intended to do during his lifetime, or whether this was to be something which was to happen after his death. If the latter, there is no indication as to how this was to occur. Neither property is mentioned in the 2006 will. The wishes document does record "St Andrews property to be paid out in its loan format in full", whatever that means.[34]
93 Mr Brock also told Mr Keogh about an acrimonious lunch meeting with the Brock children and Ms Brock after the relationship ended. Mr Brock said that despite the children's angst over the split with Ms Brock, he still wanted all of the children (including James Brock) to benefit equally from his estate, and to provide for Ms Bamford as well. It is not suggested that Mr Brock told him in this discussion about wanting to leave specific assets to the children, or what actual provision was to be made for Ms Bamford.
94 Mr Keogh says that on a number of occasions, he told Mr Brock he should come and see him to have another will drawn. Mr Keogh says he did not push Mr Brock hard on the point, as Mr Brock always agreed to do so. Furthermore, Mr Keogh did not expect that Mr Brock would die so suddenly and unexpectedly.
95 Elsewhere in his affidavit of 20 February 2007, Mr Keogh said he thought that the lawyers instructing Mr Brock in his family law dispute with Ms Brock may have obtained instructions from him to have drawn a will. Mr Keogh does not explain why he kept suggesting that Mr Brock instruct him to prepare a will, if he thought that other solicitors were doing so.
96 Peter Brock's brother, Lewis Brock, is chairman of the Brock Foundation, an entity whose legal status and control is not the subject of any evidence. In April 2005, Lewis Brock took over Ms Brock's role in managing Peter Brock's affairs.
97 Lewis Brock says that he was handed the 2006 will and the wishes document by Ms Denman, shortly after Peter Brock's death. He deposes, without giving details of any discussions, that the documents "reflect" Peter Brock's conversations with him in relation to his affairs. However, he gives no details whatsoever of any particular discussion with his brother about any of these matters.
98 Lewis Brock refers to a conversation he had with his brother around April 2005, in which Peter told him that "all his memorabilia was to form part of the Brock Foundation. By that, he meant that the Brock Foundation should be the custodian of his memorabilia. So all of his trophies, awards and the like would be available for display through the Peter Brock Foundation or through such individuals or organisations as the Peter Brock Foundation saw fit." It is not clear to what extent that evidence is said to reflect Peter Brock's actual words, as opposed to Lewis Brock's understanding of what his brother intended.
99 The 2006 will makes no gift to the Brock Foundation. If the 2006 will is valid, then any memorabilia owned by Peter Brock at the time of his death goes to Ms Bamford as part of the residue.
100 The wishes document does refer to "all memorabilia items, which shall be left to the Peter Brock Foundation, under the direction of Lewis Brock, Julie Bamford and Danees Denman." Neither the wishes document nor Ms Denman's affidavit explains how Peter Brock intended that to occur.
101 Ms Bamford was present at a meeting between Mr Brock and his solicitor, Mr Tonkin, regarding the property settlement with Ms Brock. During this meeting, Mr Brock told Mr Tonkin that he needed a new will, however his main concern was to ensure that a settlement with Ms Brock would see her completely paid out once and for all.
102 Mr Tonkin responded that "he did not personally draft wills, but that there was another person in the office who would be able to do so if that's what Mr Brock wanted". Mr Brock did not give any instructions for the preparation of a new will on that occasion, and Ms Bamford has no knowledge of the matter being raised again by Mr Brock with Mr Tonkin.
103 Ms Bamford says that Mr Brock "did not specifically tell" her what he wanted in his new will.
104 There is no direct evidence as to when that meeting with Mr Tonkin occurred. Ms Bamford recalls seeing a will kit at the office of the Brock Foundation before she accompanied Mr Brock to the meeting with Mr Tonkin, but did not pay much attention to it or look at it in any detail, as she did not consider it her business. It is not clear whether this was the will kit which was used for the 2006 will, and, if so, whether it had been filled in at the time Ms Bamford saw it.
105 Ms Bamford was not aware that the 2006 will had been prepared until after Mr Brock's death.
106 Ms Bamford's evidence as to what she understood of Mr Brock's testamentary intentions only adds to the confusion as to what he wanted to happen with some specific property.
107 Ms Bamford says that when they bought the St Andrews property, she and Mr Brock agreed that his share of the proceeds from the sale of the Nutfield property would be used to pay the bank loan on the St Andrews property. Her evidence, like that of Lewis Brock, suggests that this was to occur during Peter Brock's lifetime, as soon as he received his share of the sale proceeds.
108 Mr Brock also told Ms Bamfield that, as part of his property settlement with Ms Brock, his superannuation account "was to be split equally between Mr and Ms Brock." Her affidavit does not address the issue of what was to happen to his superannuation after his death.
109 I accept that, after his separation, Mr Brock's memorabilia became very important to him and that he told Ms Bamford on more than one occasion that he wanted the memorabilia to all stay together. She says he told her he wanted it to be "under the custodianship of the Foundation." She also says he told her he wanted it to be "owned and controlled by the Foundation." But, the concepts of custodianship and ownership and control are not synonymous.
110 Ms Bamford says she understood from what Mr Brock said that he did not want the memorabilia "to form part of his estate to be distributed". Even if her understanding were relevant and admissible, it is not clear from her evidence how or when he intended that the Foundation was to acquire whatever rights it was to have.
111 I will consider the status of the informal wills in reverse chronological order, because the 2006 will contains a clause revoking all previous testamentary documents. Therefore, if it is valid, it will not be necessary to consider the validity of the previous wills.
112 There is no question that the 2006 will is a document, which was not executed in conformity with the Act. What remains, therefore, is for the court to determine whether Mr Brock intended the 2006 will to be his will. Although some of the evidence supports a finding that he may have intended the 2006 will to be his will, most of the evidence either does not support that finding or is equivocal.
113 The 2006 will was not simply written on any old piece of paper. I accept that the fact that Mr Brock went to the trouble of acquiring a will kit is highly suggestive of an intention to prepare a will at or around the time he obtained it, although there is no evidence as to when or how he obtained the will kit.
114 The evidence also shows that Mr Brock had been encouraged by various friends to make a new will after he separated from Ms Brock, and he had said that he would do so. Given the apparently acrimonious nature of his split with Ms Brock, it would not have been unreasonable to expect him to want to make a new will, to replace the 2003 will which he believed gave Ms Brock control to dispose of his estate as she thought fit.
115 The 2006 will was not on its face incomplete, in the sense that something had been written in all the relevant sections of the form.
116 Ms Denman has no interest in Mr Brock's estate. The unchallenged evidence of Ms Denman is that Mr Brock directed her as to what he wanted her to put in the will kit, and watched over her shoulder and read what she wrote.
117 Although Ms Denman may have concluded that Mr Brock had finished drafting the will, she does not give any evidence as to anything he actually said or did which led to her to come to that conclusion, or, more importantly, would enable the court to come to that conclusion. For example, her affidavits contain no evidence that he actually said at any time anything of the following nature: the will was complete or final; he did not propose to make any changes to it; he did not want to think further about it; he intended to sign it exactly as it was; either he intended to execute it without witnesses or he wanted to execute it with her as a witness; that he gave any instructions about storage of the 2006 will, or that he even knew where it was stored; or he intended it to have legal effect without more.[35] I cannot be satisfied on the evidence that he intended to sign the 2006 will in that form but failed to do so through inadvertence.
118 Whilst it seems that Ms Denman did not ask him to sign the document when he returned in a bad mood from his phone call, she gives no explanation for not asking him on another occasion whether he wanted to sign it. There is also no evidence as to why she signed it.
119 Nor does Ms Denman really explain the tension between her evidence about the events of that day, and her evidence that she thought Mr Brock was going to get a solicitor to prepare a will for him.
120 Despite his cavalier attitude to matters legal and financial, Mr Brock must have had some awareness of the nature of his assets. The estate is a relatively complex one, involving amongst other things corporate entities and trusts, intellectual property rights and memorabilia. Whilst there is evidence that Mr Brock was happy to let others make certain decisions on his behalf, I am not satisfied on the evidence before me that, as at 6 July 2006, Mr Brock had finally settled on his testamentary intentions concerning all of his assets.
121 It is clear that Mr Brock's sporting memorabilia was, quite understandably, very important to him. I am satisfied that Mr Brock wanted his sporting memorabilia to be given to the Brock Foundation, or at the very least, for the Foundation to have the long-term use of the memorabilia. Yet this intention is not evidenced by the 2006 will at all and it is not clear how he intended that to occur. For example, there is no evidence that he said he would leave the memorabilia to Ms Bamford as part of the residual estate, intending or hoping that she would give or lend it to the Foundation.
122 It also seems that there was some uncertainty about what he wanted to happen with respect to his superannuation and the mortgage on the St Andrews property, given Ms Bamford's evidence about his intentions in that regard.
123 There is no evidence that Mr Brock ever read the wishes document, even if he did look at the rough notes from which they were prepared.
124 There is no evidence that Mr Brock read any of the instructions in the 2006 will kit about the need to sign in the presence of witnesses; given his cavalier attitude to paperwork, it may be doubted whether he had read them. Nevertheless, Mr Brock had validly executed the 1984 will in front of two witnesses. He had also signed the 2003 will in the presence of two people, although only one of them signed as witness. I infer that it is likely that he was aware of the requirements for signing and witnessing wills.
125 After his separation from Ms Brock, many people (including Mr Keogh - a lawyer) had discussed with Mr Brock the need to make a new will. He had assured them he would do so. Despite this, apart from Ms Denman, no one - including the executors or the main beneficiary and Mr Brock's partner - knew of the existence of the 2006 will until Mr Brock died. However on the evidence, this is not inconsistent with Mr Brock's previous conduct.[36] Furthermore, he died in an accident, only two months after making the 2006 will. For these reasons, I regard his silence about the 2006 will as a neutral factor.
126 Although I was somewhat critical at trial of the fact that no deponents, particularly Ms Denman, had been cross-examined, that criticism now seems misplaced. With the benefit of more time to consider all of the affidavit evidence in chambers, I am satisfied that the evidence advanced in support of the 2006 will was so inadequate as to justify the forensic decision not to cross-examine.
127 Even allowing for the fact that s9 is a remedial provision which should be given a beneficial application, I am not satisfied on the balance of probabilities that Mr Brock intended the 2006 will to be his will. It follows that the application for probate of the 2006 will should be dismissed.
128 I turn to consider whether the application by Mr Chambers for probate of the 1984 will should be refused on the basis that it was revoked by the 2003 will. This argument was advanced by Messrs Dowker and Keogh, the executors named in the 2003 will, as well as the Brock children.
129 A will may be revoked in a number of ways, including by marriage (s13) or divorce (s14), neither of which applies here. It may also be revoked under s12(2) of the Act:
(e) by some writing, declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act; or
(f) by the testator, or some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it; or
(g) by the testator, or by some person in his or her presence and at his or her direction, writing on the will or dealing with the will in such a manner that the Court is satisfied, from the state of the will, that the testator intended to revoke it.
130 The Act also allows for informal revocation, where the deceased has attempted to revoke the will by a written document, but where the document has not been executed with all necessary formalities:
The Supreme Court may refuse to admit a will to probate which the testator has purported to revoke by some writing, where the writing has not been executed in the manner in which a will is required to be executed by this Act, if the Court is satisfied that the testator intended to revoke the will by that writing.[37]
131 Revocation "requires more than [a rejection of] the contents of a prior or existing Will, in the course of arranging for a new Will". As such, arranging an appointment for a new will, expressly rejecting (orally) that an existing will sets out how the deceased wants his or her assets to be dealt with following death and providing specific instructions for the terms of a new will, which contradict the terms of the existing will, may not be sufficient.[38]
132 The 2003 will does not comply with the necessary formalities, only by reason of the fact that it was signed by one, not two, witnesses. Nevertheless, I am satisfied on the evidence of Ms Brock, as verified by the evidence of Ms Williams, that Mr Brock did intend the 2003 will to have immediate effect as his will. After numerous discussions with Ms Brock about the need to change his will, he asked Ms Brock to get him a will-kit form, which she did. He then arranged to write out and sign the will, in the presence of Ms Brock and Ms Williams, and had Ms Williams sign as witness.
133 The fact that Mr Brock mistakenly assumed that he could delegate the task of deciding who was to take benefit under the will to someone else (namely, Ms Brock), does not invalidate the entire will.
134 The 2003 will has effect to appoint Messrs Dowker and Keogh as executors, and to revoke any previous wills, including the outdated 1984 will. The application for probate of the 1984 will should be refused.
135 There being no valid will or act of revocation after 2003, the 2003 will stands as a revocative, but non-dispositive, testamentary instrument, which is admissible to probate. The estate would then be administered in accordance with the law relating to intestacy.
Is the 2003 will a stand alone revocatory document?
136 If, contrary to the previous findings, the 2003 will is not valid as a will, I would not be satisfied that it nevertheless operated to revoke the 1984 will. There is no evidence that Mr Brock intended to revoke the 1984 will but leave his estate to be administered on an intestacy.
137 I will hear from the parties on the precise form of order and as to costs.
[3] Law Reform Committee, Reforming the Law of Wills (May 1994), p69.
[4] See In the Estate of Masters (deceased), Hill v Plummer (1994) 33 NSWLR 446 per Kirby P at 452.
[5] Victoria, Parliamentary Debates, Legislative Assembly, 9 October 1997, 433 (Mrs Wade, Attorney-General); Victoria, Parliamentary Debates, Legislative Council, 12 November 1997, 447 (Louise Asher, Minister for Small Business).
[6] Ibid (Legislative Assembly p435, Legislative Council p449).
[7] In addition to the parliamentary debates themselves, see also Estate of Williams, deceased (1984) 36 SASR 423 per King CJ at 425.
[8] Belcastro v Belcastro [2004] WASC 111 at [6].
[12] Estate of Williams op cit per King CJ at 425.
[14] Estate of Springfield, op cit; Equity Trustees v Levin [2004] VSC 203; see also Estate of Masters, op cit per Mahoney JA at 455, where a document arising from a "trial run" was included in this description; and Belcastro v Belcastro, op cit.
[15] Estate of Masters, op cit per Mahoney JA at 455.
[19] Proponents of informal wills failed to obtain probate of wills written on will-kit forms for such reasons in Re The Estate of Hines; Oswald v Hines [1999] WASC 11 and Estate of Michael Francis McNamara v (10 April 1992) BC9201949.
[20] Estate of John James Dunn; Anderson v Scrivener [2002] NSWSC 900.
[23] Ibid, see especially [27] and [37]. The deceased had written his name at the foot of the codicil, however the court considered this not to constitute his signature, merely an execution clause.
[24] Estate of Masters, op cit per Mahoney JA at 456.
[26] Ibid per Kirby P at 453 and Priestley JA at 469, and Mackenzie v Osburn, op cit at [44]. The concept of 'safekeeping' was also examined in Kedzier v Postle, op cit. The court considered the fact that the informal codicil was kept in a "document box" purchased for the deceased to store his papers, and was not given to someone else for safekeeping - see in particular [14]-[19], [26] and [38].
[27] Estate of Hines, op cit at [30].
[28] Estate of McNamara, op cit at 4.
[30] Estate of Hines, op cit [26]. See also Belcastro v Belcastro, op cit at [13].
[31] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362-3 per Dixon J.
[32] As Mr Chambers no longer wishes to continue as an executor, if the 1984 will were to be admitted to probate, Ms Brock (as alternate executor), has indicated that she would make an application for probate. Mr Dent is now dead.
[33] No party sought to cross-examine any of the deponents in this case.
[34] Ms Denman's affidavits do not explain whether Mr Brock said that the loan for the St Andrews property was to be "paid out" because it was a liability of the estate, or because the residual estate was being left to Ms Bamford and there would be enough money to pay it out, or for some other reason.
[35] I am not suggesting that it is a requirement that he say any of those things; they merely illustrate things which, had they been said, might have given the court greater comfort in concluding that he intended the 2006 will to be his will.
[36] Cf the "uncharacteristic" conduct by the deceased in the Estate of Dunn in not advising beneficiaries of a change to the terms of his will which substantially increased the dispositions in their favour - see [41] of that judgment.
[37] Section 9(2) of the Act.
[38] See Estate of Strickland (deceased), ex parte Varian [2004] WASC 261 particularly [23]-[24]. In that case, the deceased also ripped up the existing will (a act of revocation recognised by the Wills Act), however the court held that the deceased did not have testamentary capacity at the time, and so did not have regard to this in determining whether the earlier will was in fact revoked.
(1994) 33 NSWLR 446
(1984) 36 SASR 423
(1938) 60 CLR 336