HEARING DATES: 19 September and 23 November 2016

Succession - Revocation -Methods of revocation - Other wills, codicils or writings - File note about cancellation of will made by a staff member of Public Trustee - Testator did not know of its existence - Could it be said that file note embodied the testamentary intentions of testator or that he intended by it to revoke his will.

Fast v Rockman [2013] VSC 18, considered.

Wills Act 2008 (Tas), ss 5, 10.

Eighth Respondent: In person on 19/9/16, no appearance on 23/11/16

Thirteenth Respondent: Palmer, Stevens & Renwick

Fourteenth Respondent: Palmer, Stevens & Renwick

Judgment Number: [2017] TASSC 43

PUBLIC TRUSTEE (as Executor named in the will of

LINDA BOTT, ANNE McCONNON, LAUNCESTON CITY MISSION, CATHOLIC ARCHBISHOP OF TASMANIA, KRISTY MARTIN, STEPHEN MARTIN, DARREN MARTIN, SHARON CAREY, PHILIP MELGAARD, MAXIM FRENCH, AMANDA JANE PRINS (nee FRENCH), JOY ELIZABETH ODOU, RONALD GREGORY MELGAARD, GLENYS LOUISE MELGAARD

1. Westley Christian Henry Melgaard (the deceased) died on 7 February 2012. He had made a will through the Public Trustee, dated 26 March 1996 (the Will). By the Will, the Public Trustee was appointed executor of the deceased's estate. Because of certain events which occurred in February 2009, at the time of the deceased's death the Public Trustee was uncertain whether the Will remained a valid will or had been revoked.
2. In the circumstances, the Public Trustee made an application to this Court. That application purported to be one pursuant to the Wills Act 2008 (the 2008 Act). The Public Trustee sought the following:

"a A declaration pursuant to Section 10 of the Wills Act 2008 as to whether a file note made by Lynette Miles on or about the 9th day of February 2009 constituted the revocation of the will of Westley Christian Henry Melgaard dated 26th day of March 1996.

1. A number of people were served with the application, such that there were 14 respondents to the application. Of those, 10 were represented on the hearing and one was self-represented. Three chose not to be heard.
2. At issue in these proceedings was whether actions taken by the deceased and a file note prepared by a staff member at the Public Trustee's office in February 2009 had brought about the revocation of the Will. If they did, the deceased had died intestate. If they did not, the Will remained a valid will.
3. Counsel for the Public Trustee read a number of affidavits into evidence. These were affidavits of:
   • Lynette Miles sworn 13 August 2013 and 18 December 2015.
   • Fiona Sullivan sworn 13 August 2013.
   • Elizabeth Anne McConnon sworn 9 June 2015 and 8 October 2015.
   • Eleanor James sworn 6 May 2015.
   • Kingsley Clark sworn 15 September 2016. Attached to that as an exhibit was a USB stick which contained a recording of a meeting between Mr Clark and the deceased which was played to the Court.
   • Timothy John Williams sworn 6 October 2015.
4. After those affidavits were read and before anything further occurred, counsel for the 9th to 14th respondents inclusive raised an issue about the legislation pursuant to which the application before the Court should be considered. He submitted that the 2008 Act came into effect on 1 March 2009, and the purported revocation in this case occurred in February 2009. He submitted therefore that the applicable law was the Wills Act 1992 (the 1992 Act). After an adjournment, counsel for the Public Trustee sought to amend his application to replace the reference to the 2008 Act, s 10, with a reference to the 1992 Act, s 26, in both the orders sought and the heading. That amendment was made by consent.
5. Despite that amendment the issue came up for further discussion towards the end of the hearing and resulted in a further amended application filed 14 December 2016 in the following terms:

"a That the Court declare whether it is satisfied beyond reasonable doubt that the file note made by Lynette Miles on or about the 9th day of February 2009 is a document purporting to embody the testamentary intentions of Westley Christian Henry Melgaard and that the Court is satisfied beyond reasonable doubt that such file note was intended by Westley Christian Henry Melgaard to constitute a revocation of his will dated 26th March 2009.

1. If the Court is so satisfied the Court declare that the said Westley Christian Henry Melgaard, deceased, died intestate.

1. That if the Court is not so satisfied the applicant be granted probate of the will of Westley Christian Henry Melgaard dated the 26th March 1996 if entitled thereto.

1. Such other orders deemed appropriate.
2. An order as to costs."

1. The intention behind the December 2016 amended application was to avoid the need for the Court to determine which of the 2008 Act and the 1992 Act applied. With respect, I am not convinced that aim was achieved.
2. As was identified, the 2008 Act came into effect on 1 March 2009. Section 5 dealt with the application of that Act. At the time it was enacted, it provided:

"(1) This Act, except as provided in this section applies only to wills made on or after the commencement of this Act.

(2) The Wills Act 1992, as in force immediately before the commencement of this Act, continues to apply to wills made before that commencement, in so far as those wills do not come under the operation of subsection (4), (5), (6) or (7) or under the operation of the sections specified in subsections (3) and (9).

(3) Sections 9, 10, 42, 43, 44, 45, 47, 48, 50, 51, 52, 54, 57, 58, 59, 60, 61, 62 and 63 apply to wills whether or not they are executed before, on or after the commencement of this Act, where the testator dies on or after that commencement.

(4) Sections 7, 15, 18 and 19 apply to the alteration, revocation or renewal of a will on or after the commencement of this Act even if the will was made before that commencement.

(5) Section 11 applies to a document that alters or revokes a will and that is made on or after the commencement of this Act even if the will was made before that commencement.

(6) Section 16 applies to a will made before the commencement of this Act in relation to a marriage solemnised, or the registration under Part 2 of the Relationships Act 2003 of a deed of relationship, on or after that commencement.

(7) Section 17 applies to a will made before the commencement of this Act, if the granting of the decree absolute of the dissolution of the marriage or the annulment of the marriage has taken place, or the revocation under Part 2 of the Relationships Act 2003 of a deed of relationships registered under that Part has occurred, on or after the commencement of this Act.

(8) The Court may make an order under section 20 or 22 with respect to the alteration or revocation of a will or part of a will even if the will was made before the commencement of this Act.

(9) Despite subsection (1), section 55 applies to a will made before the commencement of this Act if the testator has died on or after the death of the issue and the deaths occurred on or after that commencement."

1. The effect of s 5(1) was that, except as provided in that section, the 2008 Act applied only to wills made on or after 1 March 2009. Section 5(2) then provided that the 1992 Act would continue to apply to wills made prior to 1 March 2009 "in so far as those wills do not come under the operation of subsection (4), (5), (6) or (7) or under the operation of the sections specified in subsections (3) and (9)". While the section does not expressly say it, the only sensible construction of that provision is that, to the extent a will made prior to 1 March 2009 comes under the provisions referred to, the 2008 Act applies.
2. Subsection (4) can have no application because the asserted revocation occurred prior to the commencement of the 2008 Act. Subsection (5) can have no application for the same reason. Subsections (7) and (8) deal with situations affected by a marriage, a dissolution of a marriage, a registered relationship under the Relationships Act 2003, or a revocation of such registration. Neither of those subsections has any relevance in the current matter.
3. What then of any of the sections referred to in subss (3) or (9)? Sections 9, 42, 43, 44, 45, 47, 48, 50, 51, 52, 54, 57, 58, 59, 60, 61, 62 and 63 have no application in this matter. That leaves s 10.
4. The 2008 Act, s 10, provides:

"(1) A document or part of a document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes a will of the deceased person, an alteration of such a will or the revocation of such a will, if the Court is satisfied beyond reasonable doubt that the deceased person intended the document to constitute his or her will, an alteration of his or her will or the revocation of his or her will.

(2) In forming its view, the Court may have regard (in addition to the document or any part of the document) to any evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this Act or otherwise) of statements made by the deceased person.

(3) This section applies to a document whether it came into existence within or outside Tasmania.

document has the same meaning as in section 24(bb) of the Acts Interpretation Act 1931."

1. The issue in this case is whether a document, not executed in accordance with the 1992 Act or the 2008 Act, could amount to a revocation of a will. Before the estate of the deceased can be administered, that issue must be determined. Section 10 provides the mechanism for that issue to be determined. The 2008 Act, s 5(3), clearly states that s 10 applies to wills whether or not they are executed before, on or after the commencement of that Act where the testator dies on or after that commencement. That is the situation in this case.
2. In my view the provision which governs this application is the 2008 Act, s 10.

1. At issue is the effect of a typed file note held within the records of the Public Trustee which bears the date 6 February 2009, and also bears a handwritten addition dated 9 February 2009. That file note reads as follows:

MATTER: 133517 - Westley Christian Henry MELGAARD

The above client came to the office today to advise he would like his will cancelled. He has not made a later will but would like to just 'keep it up in the air for the moment'.

He also asked for his title deed (3468/89) to be removed from safe custody. When he comes to collect his title deed in the next couple of weeks I will advise that we will update our records that his will is cancelled (rather than him destroying the will).

Client ˄was advised on 9/2/09 LHM".

The words "update our records that his will is cancelled'' are bracketed, and the words shown in italics and bold at the bottom of the file note were hand-written below the bracketed part and initialled.

1. For that file note to be effective as a revocation of the Will, it must, by reference to both the 2008 Act and the 1992 Act, have been executed in the same manner as a will is required to be executed. There is no dispute in this matter that the document was not executed in that manner and hence the need to bring an application pursuant to s 10.
2. The person who made the file note and the hand-written addition, Lynette Miles, has no independent recollection of the events which gave rise to the document, and her evidence about the matter was dependent on documents and records of the Public Trustee and her memories of what her usual practice was.
3. Ms Miles commenced employment with the Public Trustee in Burnie in April 2008. At the time she had no legal training and had no training in wills or estates. She learned what she could "on the job". In her affidavit, sworn 13 August 2013, Ms Miles said that her practice was to make a file note in relation to anything she regarded as important to have noted. She would record the important parts of a conversation she might have with a client and would not attempt to record the whole of it. She made the file note on 6 February 2009. There can, in my view be no doubt at all that that file note was made after an attendance by the deceased at the office of the Public Trustee. At the time Ms Miles made that file note, she did not know what the legal requirements were for the cancellation of a will. She knew it could be cancelled by destruction and assumed that a file note recording that a client wanted a will cancelled placed on the client's will file could be sufficient to cancel a will.
4. The records of the Public Trustee show that the deceased collected a title deed from its office on 9 February 2009. Ms Miles did not seek advice from anybody senior to her in the office of the Public Trustee, or any solicitor in the office, about what she had done. She simply placed her annotated file note on what she described as the "Will file" which comprised a packet containing the instructions for the Will, the Will and other relevant documents.
5. Elizabeth McConnon said in her affidavit that she had first met the deceased and his wife when they took over the Forth Store about 30 years ago (as at 2015). In about 1994, the deceased's wife died, and Ms McConnon began to help the deceased and provide occasional meals for him. The help increased and she considered herself his friend. She said he had few friends because he regularly upset people. Towards the end of the deceased's life, either Ms McConnon or another neighbour checked on the deceased each day. About a month before the deceased died, he went into an aged care home. He had not driven for many years, and Ms McConnon used to take him places when he wanted. She recalled two conversations during such trips where the deceased mentioned a will. In the first conversation, which she believed occurred one or two years prior to his death, the deceased mentioned a new neighbour who was a solicitor in Ulverstone. The deceased did not say who that was. The deceased told Ms McConnon that he did not have a current will, and that he was going to see about making a new will. She recalled saying to him that it was important for everyone to have a will.
6. The second conversation occurred when she took him to the aged care home. His entry to that home was sudden and she went with him to settle him in. Ms McConnon was present when paperwork for the deceased's entry into the home was being completed. One of the questions asked of the deceased was whether he had a will, and he replied that he did and it was with a solicitor in Ulverstone.
7. Ms McConnon knew a lady by the name of Eleanor James who was a solicitor in Ulverstone. After the deceased died, Ms McConnon asked Ms James if the deceased had been to see her. Ms James responded that he had mentioned a few times about coming, but never had.
8. Ms James swore an affidavit on 6 May 2015. She deposed that she had been a neighbour of the deceased. She said he had never asked her to make a will for him and did not discuss with her a will or what would happen if he died. She had checked her firm's records and could find no record of the deceased having been a client of the firm, or of the firm holding a will, or indeed any document on his behalf.
9. Mr Williams, the lawyer for the Public Trustee, said he had caused enquiries to be made with every firm of solicitors in Ulverstone and none had any record of a will for the deceased.
10. Kingsley Clark was a neighbour of the deceased and also a friend. He visited the deceased about a couple of months before his death. He went for a chat and asked the deceased if he could film him. Mr Clark said in his affidavit that the two started talking, mainly he listened and the deceased spoke without prompting. The recording on the USB stick exhibited to his affidavit was an unedited version of that recording. It was played to the Court and a transcript prepared. After it was played in Court I had a discussion with counsel about what I perceived to be a couple of errors in the transcript. It was agreed they were errors. The conversation as transcribed with corrections was as follows:

There is family who are in England.. right.. and the longer I left it the harder it seemed to get. I... I don't quite know oh it's ah of particular significance because my wife married a Jew and from what I know about Jewish people ahhh they are very family orientated.. right.. and ahh not that.. umm.. I don't know what to do about it.. ummm.. my.. ahhh.. ideas about what money I've got to worry if my estate well to try and patch up with her ....at this late stage including them in my will or ahhhh devoting it to people that ahhhh look after needy people.. ahhh.. it's a big question you know and I am not James Packer.

Like.. you could even.. ahh.. give a donation to.. ahh.. meals on wheels or whatever.. you know.. but all those things I have got in mind I am not going to leave things up in the air.

Ahhh.. it creates.. ahhh.. a few problems but none that can't be solved for example I have got to decide what to do with this.. ahh... I think a person is very unwise to sell a property ahh.. if they want top price ahh... it is best to have the place.. ahh.. under control ahhh.... . as it were. For example if somebody comes along and ahh wants to... is interested in buying it.. ahh.. they look around and they say oh this wants doing and this wants doing and they don't know what its going to cost them so they are wary.. wary and ahh you know they pitch their price somewhat lower but ummm... so ahh I have got a great thing coming quietly.. quietly.. it is a pity ahhh... I wouldn't mind had I managed to get things under control like little things but there is such a lot of them for example I have stones along the outside of the hedge.. right.. ok I put them there because I thought it would control any growth but the grass is coming through right so I started to take them away but I didn't manage to get all of them done if I got... ahhh.. ordinary... ahh.. if I got them removed I would have been able to loosen some of the ummmm what I call the mongrel grass.. you know.. and I wanted to get the nature strip under control, ahhh.. put in more decorative....unless its ahh.. in the town like Turners Beach or Ulverstone itself they give you ahhh.. seeds that ahhh.. only fit for the paddock .. you know... rather than ahh... those

Ahhh.. ceiling has come away from the rafters.. ahh.. I think it happened when somebody was putting some ahh.. bats in and ahh.. but ahh.. they will do.. ahh I am not quite sure what the set up is but ahh.. one element of it is that I had somebody that will do the job and you just pay for the materials.. yea.. so ahh.. you know it's a lot of little jobs.. that ahh.. they're only little jobs.. ahh... like boarding up that side you know there where I took off a couple of rotted.. ahhh rotted.. weather boards but there is a couple of them for example I would imagine that to do the ceiling you would need two people yea right and which other one would you need.. oh yea...

Wasn't available you know on a... on a.. weeks holiday.. the chap that came from family based care..mmm..

I don't know if I mentioned that ahh.. I was under the impression that ahhh.. my legs could be cured.. right.. and ahh.. if they were.. ahh.. I would have more support on my feet and I would be able to do a little bit of exercise why don't they tell you...

Ahhh... dressed my feet to tell me that it might be permanent and it was all as if it to specific to a heart condition yea.. you know... why don't they tell you... you go to the doctor.. they give you... they prescribe some medicine but they don't tell you what effect it should have right and therefore you can't tell whether it's doing you any good or not it's stupid! You know... why... I can't imagine why they don't but ahhh....".

1. The estate of the deceased is not large. It is worth approximately $236,000.

1. The declaration sought by the Public Trustee in the amended application filed 14 December 2016 does not purport to be sought pursuant to the 2008 Act, s 10, but was sought in somewhat generic terms for the purpose of avoiding the need for the Court to determine which Act applied. Unfortunately, that purpose, in my view, was not achieved because the relief sought had to be either pursuant to the 2008 Act, s 10, or the 1992 Act, s 26. I have already determined that s 10 applies. However for completeness, I note that, for s 26 to have been relied upon, there would have needed to be an application for a grant of probate. The position taken by the Public Trustee is that there may be no valid will in respect of which probate could be sought. No application for probate of the Will has been made. I accept that the Public Trustee is in an invidious position. The deceased appears to have gone to one of its offices and sought to take steps to revoke his will. He appears to have been given to understand that goal was achieved. The Public Trustee could not, in all conscience, seek to propound a will which it believes the testator intended to revoke.
2. The 2008 Act, s 15(1)(c) (and indeed the 1992 Act, s 26(1)(b)), both provide that a will may be revoked by some writing declaring an intention to revoke it executed in the manner in which a will is required to be executed. There is no dispute in this matter there is no such writing. Hence recourse needs to be had to s 10.
3. To succeed in obtaining the declaration sought at par a of its application, the Public Trustee must satisfy the Court as to three things. These are:
   • That there is a document,
   • That document embodied the testamentary intentions of the deceased, in this case to revoke the Will, and
   • The deceased intended that document to constitute a revocation of his will.

The Court must be satisfied beyond reasonable doubt that the deceased intended the document to constitute a revocation of his will.

1. The first question is therefore, is there a document? The document sought to be relied on is the file note extracted at [16] of these reasons. I am satisfied from the evidence before the Court that on 6 February 2009 the deceased attended at the office of the Public Trustee and spoke to Ms Miles. I am also satisfied that, after Ms Miles spoke to the deceased, she typed a file note dated 6 February 2009. Ms Miles has no independent recollection of speaking to the deceased. According to her practice she recorded in that file note what she thought were the important things to be recorded. Her interaction with the deceased and the wording of the file note was against the background that she did not know, save by destruction, how a will could be revoked.
2. There is no evidence that the deceased ever saw the file note, either on 6 February 2009, or when he went back to collect his title deed three days later. There is no evidence he even knew of its existence. Counsel for the Public Trustee submitted that there was no doubt the deceased knew a document would be created and was created to update the records of the Public Trustee, thereby revoking his will. With respect, that submission cannot be accepted. There is no evidence Ms Miles told the deceased that she would prepare a file note recording their discussion, and that that file note would be placed with his will and would constitute an updating of the records of the Public Trustee. At best, the deceased was told on 9 February 2009 that, "update our records that his will is cancelled". There is no evidence he was ever told the form that updating of records would take.
3. The second issue is, does that document, that is the file note, embody the testamentary intentions of the deceased, that is an intention to revoke the Will. The focus must be on the document and not what the deceased may have communicated to Ms Miles.
4. What the document tells us is that the deceased said to Ms Miles something to the effect, "he would like his will cancelled" and that he had not made a later will but would just, "keep it up in the air for the moment". It also records that three days later he was told something to the effect that the records of the Public Trustee either would be or had been updated to the effect his will was cancelled. The evidence of Ms McConnon would suggest that perhaps a year or more after February 2009 the deceased said he did not have a will. It may be inferred he believed that whatever he had done in 2009 meant he had no valid will.
5. There can perhaps be little doubt that when the deceased spoke to Ms Miles on 6 February 2009, what he intended to put in train was a process whereby the Will would be "cancelled". There is no evidence he knew the difference, if any, between what it meant to cancel a will and what it meant to revoke a will. When he spoke again to Ms Miles three days later he was given to understand that by some process of updating of records, the Will was cancelled. This advice was clearly wrong.
6. Can the file note be said in those circumstances to embody the deceased's intention to revoke the Will. Counsel for the Public Trustee referred in his submissions to a number of authorities. He referred to Fast v Rockman [2013] VSC 18, where Habersberger J dealt with a section in Victorian legislation equivalent to the 2008 Act, s 10. His Honour said at [49]:

"Here, parliament's clear intention was to avoid the failure of a testamentary purpose caused by non-compliance with the formalities due to ignorance or 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.

While other cases can provide a guide to the types of situation in which s9 can operate, each case ultimately depends on its own facts."

1. Fast v Rockman involved a situation where, at least in part, a document was being propounded as a will which the deceased had not seen. Commencing at [56] of his reasons, Habersberger J dealt with the question of whether a person could intend a document they had not seen to be their will. His Honour canvassed a number of authorities, and said at [66]:

"66 What I take from these authorities is that there is no absolute rule that a document must have been seen or read to a person before a court can be satisfied that the person intended the document to be his or her will. That is, the bare fact that a person has not seen a document does not present an insurmountable difficulty to the invocation of the powers conferred on the Court to admit to probate a document which has not been executed in accordance with the prescribed legislative formalities. Much will depend on the state of evidence. "

1. Counsel for the Public Trustee conceded that a conclusion that a deceased intended a document he or she had not seen to constitute a will would be a hard one to draw in most cases. He submitted however that in this case the facts supported the conclusion.
2. Counsel for the 9th to 14th respondents adopted the submissions of counsel for the Public Trustee and made further submissions. Counsel for the remaining represented respondents submitted that the Court could not be satisfied as to the matters required on the evidence before the Court. Counsel for the 4th respondent made particular submissions in writing about the recording made by Mr Clark of his meeting with the deceased shortly before he died. That recording is a recording of the ramblings of an elderly gentleman. I mean no disrespect to the deceased. It might be inferred it showed that the deceased knew then he did not have a will, but it makes no reference to his cancelling or revoking the Will. With respect, the contents of that recording take the matter no further than does the evidence of Ms McConnon, and again focuses on the deceased's intention generally and not whether he intended the file note to embody that intention.
3. I find it unnecessary to canvas any further the numerous authorities to which all counsel have referred. This is a case which must depend on its own facts, or as Habersberger J said in Fast v Rockman, the "state of the evidence".
4. As to the file note, there is no evidence the deceased knew it had been created or what was in it. At best, as I have said, all he knew was there either had been or would be an updating of the Public Trustee's records to the effect his will was cancelled. He did not know what form that would take. As I have also already said, the focus must be on the document and not what might otherwise have been the intention of the deceased. Even if I were satisfied that the file note embodied the intention of the deceased to revoke his will, there is no evidence to support a finding beyond reasonable doubt that the deceased intended a document he did not know existed, or what it contained, to constitute a revocation of his will.

1. I am not satisfied beyond reasonable doubt that the file note made by Lynette Miles on or about 9 February 2009 is a document purporting to embody the testamentary intentions of the deceased or that that file note was intended by the deceased to constitute a revocation of the Will.
2. The consequence of that finding is that, absent any deficiencies in the Will, that document represents the last will and testament of the deceased, and there should be a grant of probate in respect of that will to the Public Trustee. There was an issue raised about whether the Court could make orders relating to a grant of probate because of the nature of the proceedings. Because of the size of the estate, it is essential that these proceedings are brought to a conclusion as expeditiously as possible. Insofar as the Court has power, I am prepared to waive any formal requirements as to the filing of further proceedings to obtain probate to enable whatever orders are needed to give effect to my conclusions.
3. I will give the parties liberty to bring in a form of orders to give effect to these conclusions. There may also need to be further argument in relation to the issue of costs. I will give the parties time to consider my reasons and to have discussions about that issue. If there is no agreement the matter can be relisted for determination.