Plaintiff v Defendant [2013] VSC 385 | Case summary

Supreme Court of Victoria|2013-08-02|Before: McMILLAN J

WILLS AND ESTATES - Application by the plaintiff to have an unsigned draft will admitted to probate - Whether the testator intended the unsigned draft will to be her final will - Wills Act 1997 s 9 - Fast v Rockman [2013] VSC 18 (7 February 2013) - Insufficient evidence to satisfy the burden of proof - Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

1 The plaintiff, Patricia Margaret Poole, has applied for a grant of probate of an informal will of Olive Francis Poole ('the deceased'), who died on 16 November 2011.

2 The will was prepared by Waters Lawyers, a firm of solicitors in Cranbourne, but was never signed by the deceased. The informal will named the plaintiff as executrix and, aside from $52 000 in other legacies, left the residuary of the estate to the plaintiff. The estate of the deceased is valued at about $700 000.

3 The question that the Court must decide is whether the draft will prepared by Waters Lawyers should be admitted to probate under s 9 of the Wills Act 1997 ('the Act') as an informal will.

Factual Background - The Making of the Draft Will

4 The deceased was born in Tooradin, Victoria. She had three brothers and two sisters. After her mother's death, her father remarried.[1] The stepmother could not look after all the children so the three sisters were fostered out to families in the Tooradin area.[2] During this time she retained some contact with her siblings, while in the later years of her life her contact with most of her siblings fell away and they did not see her regularly.[3] The one exception to this was her sister, Gloria Storer, who deposed that she spoke to the deceased about once a week.[4]

5 The deceased had a close circle of friends whom she relied upon for support. The deceased could not drive, and relied on friends, public transport and taxis to travel.[5] In particular she had a close relationship with the plaintiff, who was her first cousin and whom she had known since the plaintiff was a child.[6] She also had a close relationship with Julia Klemis, who was also her first cousin,[7] Janet Angel, who was her neighbour,[8] and Rosemary Mynard, who was a family friend from her childhood.[9]

6 The deceased was a very private person. Her friends, Julia Klemis, Janet Angel and Rosemary Mynard all deposed that she was not the sort of person to make things up or embellish events.[10]

7 The plaintiff deposed that at 'various times over the years [the deceased] said to me that she wanted to leave me her house'.[11] The first indication in evidence that the deceased was contemplating making a will was a letter she wrote to the plaintiff dated 7 October 2008.[12] In this letter she said the following:

I am writing with a question for you to consider carefully. Would you be pleased or appalled to inherit my house and contents. I don't want to make the mistakes Auntie Hill made. She appointed me executor to her will. I begged her not to, even her friend Lola tried to changer her mind, but she went ahead anyway. It was twelve months worry for me as I have very little legal knowledge. The estate was finalized on Dec 19th with a huge sigh of relief from me.

Consider things carefully please.[13]

8 Julia Klemis also deposed that at various times 'over the years' the deceased said she wanted to leave her home to the plaintiff.[14] The deceased told Mrs Klemis that she had written to the plaintiff and told her that she wanted her to be the executrix of her will and that she wanted to leave the house to her.[15] Rosemary Mynard also deposed that the deceased told her that she would be leaving her estate to the plaintiff.[16]

9 The deceased was diagnosed with ovarian cancer in late 2010.[17] Julia Klemis deposed that six to eight months prior to her death the deceased decided she needed 'to get her affairs in order because she was not well'.[18] She requested that Mrs Klemis' husband, Constantine Klemis, draft a will for her, but he refused.[19] Mrs Klemis bought a will kit from a newsagent for the deceased to use and also suggested that she see a lawyer to have the will prepared.[20]

10 Janet Angel said that after returning home after a stay in hospital in early 2011, the deceased raised the subject of making arrangements to make a will with her.[21] On 22 February 2011 Ms Angel telephoned a firm of solicitors in Cranbourne, but they required the deceased go to Dandenong to make the will. The deceased did not want to travel this far and did not make other arrangements at that time.[22]

11 The deceased raised the matter with Ms Angel again in July 2011, and on 26 July 2011 Ms Angel organised an appointment with the firm of Waters Lawyers, in Cranbourne, to make the will.[23] On 1 August 2011 Ms Angel drove the deceased to Cranbourne and back to Tooradin after the appointment.[24]

12 Noel Waters, a solicitor, met with the deceased on this day. He deposed that the deceased provided him with a piece of paper with her will instructions on it and said she wanted the will made on those terms.[25] Mr Waters said she was 'very definite about what she wanted'.[26] The will instructions relevantly provided as follows:

Will for MISS Olive Frances POOLE

21 Lyall Street Tooradin 3980 (rate notice 20 Mickle St)

Main beneficary [sic] and Executrix

MRS Patricia Margaret Rowe nee Wigmore

3091 Princes Highway Kalimna West Vic 39 ... present address

House and contents and residue of funds.

To/ Julia Betty Klemis 7 Beckett St Balwyn 3103 $40,000

Tooradin CFA Brigade $6,000

Koo Wee Rup Memorial Hospital (Regional) $6,000

...[27]

13 The will instructions went on to set out the deceased's wishes for her funeral and her death notice.

14 Mr Waters prepared the draft will later that day and posted it to the deceased with an accompanying letter. The letter said the following:

We enclose a draft of your Will which we have prepared in accordance with your instructions. Because a Will must be signed in the manner laid down by the Wills Act, we recommend that your Will is signed at this office.

If your Will meets with your approval as drawn, please make an appointment to sign the Will.

If your Will requires amendment before signing, please advise us by telephone before attending for your appointment.[28]

I, OLIVE FRANCES POOLE of 21 Lyall Street, Tooradin in the State of Victoria, Spinster HEREBY REVOKE all former Wills and Testamentary dispositions made by me and declare this to be my last Will.

1. I APPOINT PATRICIA MARGARET ROWE of 3091 Princes Highway, Kalimna West in the said State to be Executrix of this my Will and Trustee of my estate.

2. I GIVE DEVISE AND BEQUEATH the sum of Forty Thousand Dollars ($40,000) to JULIA BETTY KLEMIS of 7 Beckett Street, Balwyn in the said State.

3. I GIVE DEVISE AND BEQUEATH the sum of Six Thousand Dollars ($6,000) to TOORADIN FIRE BRIGADE for general purposes.

4. I GIVE DEVISE AND BEQUEATH the sum of Six Thousand Dollars ($6,000) to KOO WEE RUP MEMORIAL HOSPITAL for general purposes.

5. I GIVE DEVISE AND BEQUEATH the residue of my estate both real and personal and wheresoever situate unto my Trustees UPON TRUST to sell and call in and convert into money such part or parts thereof as shall not consist of money AND TO STAND POSSESSED of the proceeds of such sale calling in and conversion and my ready money and my unconverted estate (if any) UPON THE FOLLOWING TRUSTS:-

(a) TO PAY thereout the whole of my just debts funeral and testamentary expenses probate and estate duties including any probate and estate duties charged upon my estate by reason of any notional asset.

(b) TO PAY and transfer the balance which shall then remain in her hands to PATRICIA MARGARET ROWE but if she should predecease me then to her children as tenants in common in equal shares.

(c) I DECLARE that my Trustee may from time to time at her absolute discretion and subject to any prior interest therein pay and apply the whole or any part of the share in my estate to which any beneficiary under this my Will is contingently entitled and of any income that shall have arisen or which may arise from that share for or towards any or any combination of the following objects, viz: the maintenance education support advancement and benefit of the beneficiary.

7. I FURTHER DECLARE that my Trustee may at her absolute discretion and for such time as she may deem fit postpone the sale calling in and conversion of my estate or of any part or parts thereof.

...[29]

16 The draft will was not prepared on precisely the same terms as the written instructions. As the defendant submitted, the note provided that the plaintiff should receive the 'house and contents and the residue'.[30] In contrast, the draft will provides that the house forms part of the residue that is on trust for sale. It is not clear why this change was made - it may have been inadvertent, or it may have been on instruction from the deceased during the interview with the solicitor. However, cl 7 of the draft will provided the plaintiff with the power to delay sale of the property indefinitely - meaning that the plaintiff could keep the house instead of selling it. Nevertheless, there is no evidence on which to form a view as to why there is a difference between the draft will and the handwritten note of the deceased.

17 Mr Waters sent a follow up letter on 7 September 2011 to remind her that the will needed to be signed. The letter set out the consequences of failing properly to sign the will:

Because the Will has no effect until it has been properly signed we would be pleased if you would make an appointment to do so.[31]

18 Mr Waters deposed that at some later date (he could not recall precisely) he requested his secretary to follow up with the deceased to make an appointment to sign the draft will.[32] His secretary told him that, after the deceased explained that she was not very well, the secretary offered that Mr Waters attend the deceased's home to have the will signed. The deceased declined this offer. The secretary told Mr Waters that the deceased said she would call after 3 October 2011 to make an appointment to sign the will.[33] The copy held by Mr Waters of the 7 September 2011 letter from Mr Waters to the deceased has a handwritten file note saying 'Will call after 3 Oct. to make app'.[34] Mr Waters deposed that his secretary could not recall any query by the deceased about the terms of the Will or any indication that changes were necessary.[35]

19 The defendant rightly pointed out that the file note does not contain any details as to the contents of the conversation between the deceased and the secretary or that the appointment to be made was to sign the draft will.[36] As such, we are left only with the report of the conversation from the secretary via Mr Waters.

20 The plaintiff put forward evidence suggesting that the deceased had made an attempt to sign the will but was told to come back at another time by her solicitor. Constantine and Julia Klemis deposed that on an occasion that they were visiting the deceased she complained that she had visited the solicitor's office to sign her will but was told that the person who would witness the will was not there, and that she would have to come back another day.[37] Mr and Mrs Klemis said that the deceased was 'annoyed' that she would have to return to the solicitor's office on another occasion to sign the will.[38] Mrs Klemis further deposed that:

Olive did not say what her Will provided but did say that she was pleased with it and that there was a surprise in it for me.[39]

21 While they are not certain of the actual date of this conversation, Mrs Klemis deposed that she estimated it would have occurred in mid-September 2011.[40]

22 Mrs Klemis was certain that the deceased would not have made up the story. Mrs Klemis deposed that:

[The deceased] was a no nonsense type person. She was humble and not a person who would draw attention to herself or embellish events. She did not beat around the bush and would say to your face what she thought. She was very specific and factual in the way that she spoke. It would be completely out of character for Olive to have made up as a story the events that I have deposed to ...[41]

23 Rosemary Mynard also recalled a conversation with the deceased about attending the offices of Mr Waters and being turned away. She deposed that:

In one of our discussions, Olive made a comment to me that she was cross because she had been to see the solicitor and 'he wasn't there to sign it'. The impression that I had was that the event had only just happened. I am unable to put a date on this conversation but it was sometime not long before her stroke in late 2011. Olive was a very proper person and would not make up such a story.[42]

24 Janet Angel deposed that the deceased did not make any complaint to her that she had travelled to the solicitor's office to sign the will but was turned away because of the unavailability of witnesses.[43] Mrs Angel deposed that by September 2011 the deceased's health had deteriorated to the point where she was unable to walk any distance or travel by bus by herself. Mrs Angel says that she does not recall taking the deceased to Cranbourne in September 2011, but notes that she may have used a taxi to get there.

25 The deceased had a regular taxi driver, Robert Wheatley. The deceased would call Mr Wheatley directly in order to make arrangements for the trip concerned.[44] Telephone records show that on 13 September 2011 there was a phone call from the deceased to the mobile phone of Mr Wheatley.[45] While he had no recollection of the particular trip, Mr Wheatley said that it was consistent with the deceased calling him to arrange a trip for that day.[46] While it is possible that this was when she attended the solicitor's office to sign the will but was turned away, there is no way of knowing with any certainty.

26 Mr Waters deposed that he did not believe that the deceased attended the office to sign the draft will and was turned away. Mr Waters deposed that:

I do not believe that the event deposed to occurred. If the deceased had attended my offices I would have been advised at the time. The same receptionist is still employed by me and cannot recall such an event. In so far as the date of 13 September 2011 is concerned, according to my staff records all my staff were in attendance on that day. Further I say that my staff would not turn away a client that presented and wanted to sign a will.[47]

27 Mr Waters exhibited phone records showing that the deceased called his office on 22 September 2011 at 10.56am for 1:50 minutes.[48] There is no indication as to what the conversation was about, and the length of the call means that any conversation must have been brief.

28 The deceased left the plaintiff some handwritten notes regarding arrangements for her funeral and the people she wished to be notified about her death. The notes were found in the home of the deceased and exhibited by the plaintiff. The plaintiff and the deceased had a discussion about these notes on 1 October 2011, and by telephone on 3 October 2011.[49] The plaintiff deposes that she had this discussion with the deceased because she was the executrix of the deceased's estate.[50] However, these notes only address the funeral arrangements and public notification.[51] The notes do not provide any evidence either way that the deceased intended the draft will to be her final will and testament.

29 On 6 October 2011 the deceased had a stroke and was taken to Dandenong Hospital. The plaintiff deposed that the deceased did not want her siblings to know she was in hospital. Regardless, the plaintiff notified them as she considered it the right thing to do.[52] The deceased had a further stroke at Dandenong Hospital and subsequently died on 16 November 2011.[53]

30 Section 7 of the Act requires a will to be signed by the testator in the presence of two witnesses in order to be valid. Section 7 provides:

(a) it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and

(b) the signature is made with the testator's intention of executing a will, whether or not the signature appears at the foot of the will; and

(c) the signature is made or acknowledged by the testator in the presence of two witnesses present at the same time; and

(d) at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other.

31 However, s 9 of the Act allows a will that lacks the requisite formalities to be admitted to probate as long as certain conditions are met. The relevant parts of s 9 provide:

(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

(b) a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act -

if the Court is satisfied that that person intended the document to be his or her last will.

(2) ...

(3) In making a decision under sub-section (1) or (2) 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.

32 A document admitted to probate under s 9 of the Act is described as the informal will of the deceased. In order to admit such a document to probate, the Court needs to be satisfied that the following criteria have been established on the balance of probabilities:

(a) there must be a 'document';

(b) the document must express or record the testamentary intentions of a deceased; and

(c) that document must have been intended by the deceased to be his or her will.[54]

33 In this case, the first two criteria are clearly met. The only issue is whether the third criterion has been proven by the plaintiff: was the draft will intended by the deceased to be her final will?

34 The application of s 9 of the Act and the standard of proof required were comprehensively addressed by Habersberger J in Fast v Rockman.[55] His Honour set out the standard of proof than the plaintiff is required to meet:

The person seeking to propound an informal will must establish the requisite elements on the balance of probabilities. Furthermore, 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 in accordance to the Briginshaw v Briginshaw principle.[56]

35 There is no requirement that there be an executed document; instead, what is important is there is evidence that the deceased intended the document to take effect as his or her will.[57]

36 Hollingsworth J in Estate of Peter Brock made the following observations when considering the scope of the operation of s 9 of the Act:

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 the 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 and inadvertence.

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.

...

Whilst other cases can provide a guide to the types of situation in which s 9 can operate, each case ultimately depends on its own facts.[58]

37 The issue in this case is whether the plaintiff has proven that the unsigned will was intended by the deceased to be her final will and to have testamentary effect. This ultimately depends on the facts set out above; however, previous cases provide guidance as to whether the evidence put before the Court will satisfy the burden of proof.

38 The decision of the Court of Appeal of Western Australia, Oreski v Ikac, concerned the operation of the Western Australian equivalent of s 9 of the Act.[59] In this case, the deceased was found dead at his home on 7 May 2004. A typed but unsigned will, dated 2 February 2004, was found in an envelope in the car when it was being cleaned in June 2004. The Court of Appeal dismissed an appeal from the trial judge's refusal to admit the informal will to probate. Newnes AJA (with whom Martin CJ and McLure JA agreed) set out what had to be proven to the court:

It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased's testamentary intentions, that is not of itself sufficient. Section 34 does not enable any document which expresses the deceased's testamentary wishes to be admitted to probate. The document must be intended to be the legally operative act which disposes of the deceased's property upon their death; that is, it must have been intended by the deceased to have present operation as his or her will. A person may have set down in writing their testamentary intentions but not intend that the document be operative as a will. Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased's lifetime, or to be a note of instructions, or a draft will or a 'trial run': ... As Young CJ in Eq pointed out in Macey v Finch ... even where a draft will has been prepared in accordance with the deceased's intentions, it is quite common for testators to change their mind after giving instructions or on seeing the draft will.

It is therefore of fundamental importance that the person seeking to propound the document establish that the deceased, by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will.[60]

39 His Honour went on to explain why the evidence in the case before the court was not sufficient to satisfy the burden of proof:

There was also in my view, no evidence upon which the learned trial judge could have been satisfied that the deceased had demonstrated an intention that the will document should operate as his will. The appellant simply could not point to any words or acts of the deceased which demonstrated that it was the deceased's intention that the will document should, without more on his part, operate as his will.[61]

40 The Western Australian case of Mitchell v Mitchell (approved by Beach J in Prucha v Standing[62] and Habersberger J in Fast v Rockman[63]) provides a helpful example of the kind of evidence that will satisfy the standard of proof.[64] In Mitchell v Mitchell, the deceased died unexpectedly after collapsing in the morning. He had organised to sign the will later that day. He had discussed the contents of the will with his solicitor and had indicated that he was happy with its contents. E M Heenan J admitted the will for probate, holding that:

All the evidence is to the effect that the deceased was, by the morning of 6 November 2008, satisfied with the will as drafted and was intent upon executing it formally as soon as possible. To defer doing so, at the suggestion of the second defendant, until he had completed his morning ablutions is by no means inconsistent with the expression of purpose and, indeed, seems to be a very practical thing to do. Unfortunately, neither the deceased nor the second defendant had any reason to believe that he was at risk of sudden collapse and death and I am satisfied that the probabilities are that but for this sudden and unexpected intervention of fate, he would have executed the will formally in its then form later that morning. This is a conclusion on the facts as established which also means and finds that the deceased intended the draft will as submitted to him for execution to constitute his last will and that the document embodied his testamentary intentions even though it had not been executed in the manner required by s 8 of the Wills Act. This means that the document being propounded by the plaintiff amounts to an informal will of the deceased within the meaning of s 32(1) of the Wills Act and that [the] plaintiff is entitled to a grant of probate in solemn form of law of that document.[65]

41 His Honour went on to discuss his decision with reference to Oreski v Ikac:[66]

As appears from the foregoing analysis of the evidence, the situation in the present case is significantly different [from Oreski v Ikac]. Mr Mitchell did receive the draft will, had part of its contents read to him by the second defendant, and later read it himself. It is apparent that the document is in all respects consistent with the instructions given by the deceased to the solicitor on the hospital visit on 1 November 2008 and that it is also consistent with his general description of his testamentary intentions before then to his former wife and to his younger son. It is also evident that the deceased, when examining the will closely, noted some points to which he wished to give further thought and deferred immediate execution of the will for that reason. It is also clear that he did read the will again during the two days before his death and by the morning of 6 November 2008, the day of his death, he made it known to the second defendant that he wished to execute the document as it had been drafted, signifying that he was content with its terms and wished to express his testamentary intentions by that document.

Some difficulty may be experienced with the phrase, utilised in Oreski v Ikac 'that the document [in question] should, without more on his or her part, operate as his or her will', because in a case such as the present the inference must surely be that, had he not collapsed in the bathroom and died soon after, Mr Mitchell would have executed the will so that his intention at the time may be regarded as including an intention to have the document formally executed as a valid will as required by s 8 of the Wills Act so that, upon such execution, it would take effect at law. It is, therefore, possible to say in a strict sense that the deceased's intention was that the draft will would operate as his will once it was executed. However, I do not consider that this detracts from the effectiveness of the document as an informal will because s 32 itself does not use that phrase. Clearly, Newnes JA in that case was using that language to emphasise the need for the document being propounded for proof as an informal will to express the concluded testamentary intentions and decision of the deceased rather than being some provisional, preliminary or tentative proposal which had not by then received the deceased's full assent. One must be careful to avoid placing any gloss upon the statutory language which, by s 32(2), focuses attention only on whether or not the document purports to embody the testamentary intentions of the deceased, even though it has not been executed in the manner required by the Act.

Where s 32 goes on to provide for this court to be satisfied that the person intended the document to constitute the deceased's will, it cannot be taken as intending that it be a will complying with the requirements of s 8 because, otherwise, there would be no need for Part X of the Act. This case highlights the position that the breadth of the section and the Parliamentary intention are that a document which embodies the testator's settled testamentary intention is entitled to be admitted to proof notwithstanding that it has not been executed.[67]

42 The cases illustrate how the standard of proof interacts with the Briginshaw principle. The plaintiff does not face an impossible hurdle, but must put forward persuasive proof that the will was intended by the deceased to be her final will and testament. It is not enough to show that a document sets out the deceased's testamentary intentions, or that it is consistent with other statements the deceased made about what she wanted to happen to her property after she died. Rather, it must be proven on the balance of probabilities by the plaintiff that the deceased wanted that particular draft of the will to be her final will, and that she did not want to make any changes to the document.

Discussion and Application of Legal Principles to the Facts

43 As stated above, the issue in this case is whether the plaintiff has proved on the balance of probabilities that the deceased intended the draft will to be her final will and testament.

44 The plaintiff submits that there is enough evidence for the Court to be satisfied that the deceased intended the draft will to take effect as her final will. In particular, the plaintiff points to the following facts:

(a) the letter the deceased sent to the plaintiff, her comments to her friends, and the instructions she gave to her solicitor, are all evidence that the deceased wanted the plaintiff to inherit the house;

(b) the two family members the deceased were closest to were her cousins Julia Klemis and the plaintiff;

(d) the solicitor drafted the will based on these instructions;

(e) it is 'likely' the deceased was driven by Robert Wheatley, a taxi driver, to see her solicitor on 13 September 2011 to sign her will but was turned away because they did not have the right people there;

(f) the deceased later said she would visit her solicitor's office to sign the will prepared by her solicitor, but she was unable to because she was incapacitated by her stroke; and

(g) the deceased was happy with the contents of the will, as after she received the draft she raised no query about the terms of the document when advising the solicitor that she would sign the will on 3 October 2011.[68]

45 Ultimately, these facts and the evidence put forward to support them are not enough to satisfy the standard of proof. It is not possible for the Court safely to conclude that, on the balance of probabilities, the deceased intended the will drafted by Mr Waters to operate as her final will. There remain a number of gaps and inconsistencies in the evidence that are fatal to the plaintiff's application.

46 It is important to draw a distinction between the intention to make a will and the intention for a particular document to have testamentary effect. It is very clear that the deceased saw the need to have a will, and that the draft will prepared by Mr Waters was on her instructions. It is also consistent with what she had said to her friends about what her will would provide. It is apparent, for example, that she wanted the plaintiff to inherit her house. The deceased had said this to the plaintiff and her friends multiple times in the years preceding her death. However, this is not enough: the plaintiff must show that the deceased intended that particular draft of the will to have testamentary effect. The Court has to be satisfied that on the balance of probabilities she had decided that she would execute that will in its current form and that it would govern how her estate was to be distributed. The plaintiff has not met this standard of proof, as there is a lack of evidence that the deceased intended the document, without any changes whatsoever, to be her final will.

47 The plaintiff put forward evidence that suggested the deceased had visited the offices of Waters Lawyers in order to sign the will but was turned away. It is not clear whether this occurred, as it is strongly disputed by Mr Waters. Nevertheless, even if I were to accept that it did happen, it is still not clear that the deceased went to the offices of Waters Lawyers to sign the draft will without any changes. It may have been that she wished to discuss the terms with Mr Waters, or have them explained to her.

48 The inconsistency between her written instructions to Mr Waters and the draft he produced is particularly important here: it is possible that when she discussed the terms of the will with him she would have realised that this was not what she intended and would have asked for it to be changed. As the defendant submitted, the deceased's notes and other statements expressed a desire that the house be left to the plaintiff. In contrast, the will provides that the house form part of the residue on trust for sale, with the plaintiff inheriting the proceeds. There is no explanation as to why this change was made. It is possible that, if the deceased had met with Mr Waters again and realised that the draft will did not accord with her instructions, she would have requested that it be changed. Alternatively, she might have accepted it. There is no evidence allowing a conclusion to be drawn on this matter.

49 In Prucha v Standing, the fact the deceased planned to visit a lawyer to 'sign' the will was not enough to show on the balance of probabilities that the deceased wished to sign the will unchanged.[69] In that case the plaintiff had prepared the will for her father after a discussion with him shortly before his death. The deceased had told his daughter the will was 'perfect' and that he would come to Melbourne in a few weeks to sign the document in front of a lawyer. He died before he was able to do this. Beach J was not satisfied that the deceased intended to leave the will unaltered and without further amendment. His Honour held that:

It is more likely that the deceased (being a careful man) wanted to check with a lawyer that the March 2008 document in fact recorded his intentions - and if it did not, then to take advice as to alterations which would reflect his intentions.[70]

50 The same could be said of the deceased in the current case. She was a careful woman, who had obviously thought carefully about what her will should contain. The fact that she had attempted to meet with her solicitor does not necessarily mean she intended to sign the draft will. She may have wished to discuss it further.

51 There are a number of other factors that give rise to considerable uncertainty as to the deceased's intentions. The deceased was aware she had to sign the draft will in order for it to be effective. The letter sent to her by Mr Waters was unequivocal in stating the 'Will has no effect until it has been properly signed'. This letter was followed up by a phone call where Mr Waters says the deceased agreed to come in to sign the will at some stage after 3 October 2011. The file note on the copy of the second letter sent to the deceased does suggest there was a discussion about a future appointment, but it does not record whether that appointment was to have the draft will signed. Given the secretary who had the conversation was not called to give evidence, I am reluctant to find that this planned appointment was to sign the draft will. It is also plausible that the deceased wished to discuss the draft will further or have the terms explained to her again.

52 In Fast v Rockman, the deceased was also aware that the will had to be signed in order to be effective, but there was nevertheless enough evidence to satisfy the Court that the draft will should be admitted to probate.[71] In that case, the deceased had left two unexecuted wills. The deceased had organised a time to sign the second unexecuted will, but was too unwell to do so when the lawyer arrived at the hospital. The deceased's health did not improve and he later died, leaving the second will unexecuted. In considering the facts, Habersberger J held that awareness by the deceased that the draft will needs to be signed in order to be operative is a factor that the Court can take into account:

I accept that a deceased's awareness of the formalities required for a will may bear on a court's assessment as to whether he or she intended an informal document to [be] his or her will. Where a deceased is aware of those formalities and had an opportunity for the will to be executed in conformity with those requirements but failed to do so, that failure tends to point against the conclusion that the deceased intended the document to be his or her will. Conversely, a lack of full familiarity or awareness with those formalities may allow a court more readily to infer that the deceased intended the informal document to have legal effect according to its terms after his or her death. Further, if a deceased had failed to sign a will or comply with the formalities not by virtue of inadvertence or 'act of God' beyond his or her control, but as a result of a conscious decision not to do so, including a reluctance to do so, the court is likely to decline to admit the document to probate.

In many cases where wills that do not comply with statutory formalities are sought to be admitted to probate, the would be testator, especially where a solicitor had been engaged to prepare one, is likely to have been aware that the document in question had to be executed in accordance with those formalities to have legal effect. But this, in my opinion, is only one of the factual circumstances which a court will take into account in assessing what ultimately is a question of fact as to whether the requisite intention existed.[72]

53 Despite the deceased's knowledge that the will had to be properly signed to be effective, Habersberger J admitted the second unexecuted will to probate. His Honour was satisfied that the burden of proof had been met:

Here, it was clear that Mr Rockman knew that for a document to have legal effect as a will, it had to be signed. But, with respect to the second unexecuted will, it does not follow, in my opinion, that it could not be admitted to probate for want of his signature. This was not a case where the evidence raised doubts about whether Mr Rockman wanted to think further about the dispositive clauses of his will or where the evidence did not disclose any act or words by the deceased 'adopting' the document as his intended will, unlike cases such as Re Estate of Perriman (Dec), Estate of Peter Brock, Oreski v Ikac and Prucha v Standing. Nor was it a case where Mr Rockman was making a mirror will with the intention that both of the mirror wills became operative at the same time as in Bell v Crewes. This was also not a case where Mr Rockman, armed with the awareness that a document must be executed in accordance with legislative requirements to have operative effect as a will, had exhibited reluctance to do so when given an opportunity. Rather, it was a case where he was not presented with an opportunity to sign the document and, therefore, to implement his intention of doing so. Death intervened before he could do so.

Accordingly, I am satisfied that, on a balance of probabilities and applying the Briginshaw standard, the second unexecuted will was a document which Mr Rockman intended to be his will such that the saving effect of s 9 of the Wills Act can be called in aid. That document is to be admitted to probate as an informal will.[73]

54 In contrast, in the case before me, the deceased, who was in a poor state of health and would have known she had limited time, had two months to sign the will after she received the draft. There is no evidence that she expressed an intention to sign that particular draft of the will. Mr Waters said that his secretary had offered that he attend the home of the deceased, but she declined. It is not a case where she was not presented with an opportunity to sign the document and, therefore, to implement her intention of doing so due to the intervention of death. Rather, for reasons unknown, she did not sign the will when she had the opportunity.

55 The difference between this case and others where the Court has found there was sufficient evidence is significant. The case of Deeks v Greenwood is instructive as an example of when evidence of steps taken by the accused to execute the will is sufficient to prove that the draft will should be admitted to probate.[74] In that case, the deceased gave instructions to his solicitor to draft a will in late 2007, which he did not sign at this time. In May 2008 the deceased found the draft will and told the plaintiff that it set out what he wanted to happen with his estate. The deceased then organised for a new will on the same terms to be drawn by his solicitors and for that will to be brought to him for execution. The solicitor organised to attend his home on 20 May 2008 to have the will signed, but was waylaid and had to cancel the appointment and make a new date. However, on the evening on the 20 May, the deceased had a fall and was hospitalised and died soon after. E M Heenan J admitted the draft will to probate, finding that the evidence linked the deceased:

unambiguously to the contents of the propounded will and demonstrates his satisfaction with it and his wish that full testamentary effect be given to those expressions by whatever appropriate measures were needed. There is no suggestion in the evidence that by May 2008 the deceased may have contemplated making some different testamentary disposition of his estate or that he was contemplating doing so or desired further time or opportunity to give reflect to such a possibility.[75]

56 His Honour was satisfied that the draft will was in fact intended by the deceased to be his final will and testament:

All the evidence is to the effect that [the deceased] remained of the one mind that he had settled finally upon his testamentary intentions, he had conveyed them to his solicitors, he was satisfied with the terms of the draft will submitted to him in November 2007, and had given instructions for a final will in those terms to be prepared. Only his sudden decline in health prevented that from being executed.

Accordingly, I am satisfied that, although it was never executed and although it was obviously intended that it would be executed, the document referred to as the draft will of November 2007 was finally adopted as embodying the deceased testamentary intentions. Accordingly, I am satisfied that it should be accepted as an informal will expressing the concluded testamentary intentions of the deceased.[76]

57 The case before me is quite unlike Deeks v Greenwood. There is no clear evidence that arrangements were made by the deceased to sign the will. The deceased had not made comments that she was satisfied with the will in its current form before being prevented from signing the will by death. All the plaintiff points to in this case is a lack of comments indicating the deceased was unhappy with the contents of the will. In addition, the evidence that the will captured the deceased's testamentary intentions is insufficient as it does not prove that she intended the draft will to be her final will. There remains a substantial amount of uncertainty.

58 The evidence of the plaintiff does not assist the Court in determining whether the deceased intended the draft will to be her final will and testament. In the discussions the plaintiff had with the deceased about her funeral arrangements, no mention was made of the draft will, where a copy was to be found, or that she had prepared a will that she was satisfied with.

59 In contrast, in cases where an informal will has been admitted to probate, there has been a clear indication by the deceased that he or she intends the draft will to be the final will. For example, in Will and Estate of Brian Bateman the deceased had throat cancer and gave instructions to the State Trustees to draft a new will in July 2004.[77] The draft of that will was sent to him two months later but was never signed. He died in February 2005. A nurse who had attended to the deceased in early 2005 deposed that he had told her on separate occasions that he had made a will that would leave his property to his friends, and that 'he was content with the will he had made with [the State Trustees]'.[78] J Forrest J admitted the unexecuted will to probate. His Honour said there were two pieces of evidence that demonstrated that the deceased intended the unexecuted will be his testamentary disposition: first, the unexecuted will followed the instructions the deceased had given in his meeting with the State Trustees.[79] Second, the nurse, who was independent of all the parties, was 'unequivocal in her two affidavits that [the deceased] intended that the draft will give effect to his testamentary intention'.[80]

60 The statements made by the deceased in this case are much more equivocal and do not support a finding that she intended the draft will prepared by Mr Waters to be her final will. Mr and Mrs Klemis said she made vague mention of the contents of the draft will, but nothing more; and the plaintiff did not discuss the draft will with the deceased in their conversations about what would happen after the deceased died.

61 Therefore I am unable to order that the draft will be admitted to probate. The application is dismissed.

[1] Affidavit of Patricia Margaret Rowe sworn 1 October 2012, [6].

[2] Affidavit of Janet Mary Angel sworn 27 September 2012, [5]; Affidavit of Gloria Isobel Storer sworn 19 June 2013, [2].

[3] Affidavit of Patricia Margaret Rowe sworn 1 October 2012, [7]; Affidavit of Janet Mary Angel sworn 27 September 2012, [18]; Affidavit of Edith Flynn sworn 18 June 2013; Affidavit of Audrey Joyce Poole sworn 18 June 2013.

[4] Affidavit of Gloria Isobel Storer sworn 19 June 2013, [4].

[5] Affidavit of Janet Mary Angel sworn 27 September 2012, [9].

[6] Affidavit of Patricia Margaret Rowe sworn 1 October 2012, [5].

[7] Affidavit of Julia Betty Klemis sworn 27 September 2012, [3].

[8] Affidavit of Janet Mary Angel sworn 27 September 2012, [3].

[9] Affidavit of Rosemary Ethel Mynard sworn 22 April 2013, [1].

[10] Affidavit of Julia Betty Klemis sworn 27 September 2012, [11]; Affidavit of Janet Mary Angel sworn 27 September 2012, [8]; Affidavit of Rosemary Ethel Mynard sworn 22 April 2013, [6].

[11] Affidavit of Patricia Margaret Rowe sworn 1 October 2012, [8].

[13] Letter from Olive Frances Poole to Patricia Margaret Rowe dated 7 October 2008.

[14] Affidavit of Julia Betty Klemis sworn 27 September 2012, [4].

[16] Affidavit of Rosemary Ethel Mynard sworn 22 April 2013, [4].

[18] Affidavit of Julia Betty Klemis sworn 27 September 2012, [8].

[21] Affidavit of Janet Mary Angel sworn 27 September 2012, [14].

[25] Affidavit of Noel Waters sworn 27 September 2012, [2].

[27] Exhibit NW 1 to the Affidavit of Noel Waters sworn 27 September 2012.

[28] Exhibit NW 2 to the Affidavit of Noel Waters sworn 27 September 2012.

[29] Exhibit NW 2 to the Affidavit of Noel Waters sworn 27 September 2012.

[30] Defendant's Written Submissions dated 24 June 2013, [21].

[31] Exhibit NW 3 to the Affidavit of Noel Waters sworn 27 September 2012.

[32] Affidavit of Noel Waters sworn 27 September 2012, [5].

[34] Exhibit NW 3 to the Affidavit of Noel Waters sworn 27 September 2012.

[35] Affidavit of Noel Waters sworn 27 September 2012, [5].

[36] Defendant's Written Submissions dated 24 June 2013, [23].

[37] Affidavit of Constantine Stephanos Klemis sworn 27 September 2012, [2]; Affidavit of Julia Betty Klemis sworn 27 September 2012, [10].

[38] Affidavit of Constantine Stephanos Klemis sworn 27 September 2012, [2]; Affidavit of Julia Betty Klemis sworn 27 September 2012, [10].

[39] Affidavit of Julia Betty Klemis sworn 27 September 2012, [10].

[42] Affidavit of Rosemary Ethel Mynard sworn 22 April 2013, [6].

[43] Affidavit of Janet Mary Angel sworn 27 September 2012, [19].

[44] Affidavit of Robert Wheatley sworn on 27 September 2012, [3].

[45] Exhibit RW 1 to the Affidavit of Robert Wheatley sworn on 27 September 2012.

[46] Affidavit of Robert Wheatley sworn on 27 September 2012, [8].

[47] Affidavit of Noel Waters sworn 27 September 2012, [7].

[48] Exhibit NW 4 to the Affidavit of Noel Waters sworn 27 September 2012.

[49] Affidavit of Patricia Margaret Rowe sworn 1 October 2012, [10].

[51] Exhibit PMR-3 to the Affidavit of Patricia Margaret Rowe sworn 1 October 2012.

[52] Affidavit of Patricia Margaret Rowe sworn 1 October 2012, [11].

[53] Affidavit of Julia Betty Klemis sworn 27 September 2012, [14].

[54] Fast v Rockman [2013] VSC 18 (7 February 2013) [45] (Habersberger J). Also see Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [56] (Powell JA, with whom Priestley and Stein JJA agreed); Oreski v Ikac [2008] WASCA 220 (31 October 2008) [52]-[53] (Newnes AJA, with whom Martin CJ and McLure JA agreed); Re Trethewey [2002] VSC 83; (2002) 4 VR 406, 408 (Beach J); Equity Trustees v Levin [2004] VSC 203 (26 May 2004) [15] (Whelan J); Prucha v Standing [2011] VSC 90 (22 March 2011) [6] (Beach J); In the Will and Estate of Brian Bateman [2011] VSC 277 (24 June 2011) [42] (J Forrest J).