Administration Act 1903 (WA)

Wills Act 1970 (WA), s 8, s 34

In the Estate of Dale (1983) 32 SASR 215

In the Estate of Williams (Dec) (1984) 36 SASR 423

In the matter of the will of Lobato; Shield v Caratozzolo (1991) 6 WAR 1

The Estate of Kevin John Hines & Anor v Hines [1999] WASC 111

The Public Trustee v Head [2003] WASC 91

In the Estate of Szylowicz (Dec) (1978) 19 SASR 263

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

Wheatley v Edgar [2003] WASC 118

1 MASTER NEWNES: This action has been set down for trial under O 73 r 19, the parties having agreed to a compromise of the action.

2 The issue in the action is whether a certain document (the "informal Will") is valid as the Will of the late Joseph Lenny Rakich (the "deceased"). In a practical sense the dispute has been resolved. The parties have entered into a deed of settlement by which the assets of the estate will be distributed in certain ways regardless of whether the informal Will is valid or whether the deceased died intestate and there must be a grant of letters of administration under the Administration Act 1903 (WA). It seems the only thing the parties have not been able to agree upon is the validity of the informal Will. On that, I understand, they remain divided. The deed of settlement sets out the alternative processes by which the assets may be distributed, depending upon whether that is done is under the informal Will or letters of administration under the Act. The parties want the issue of the validity of the informal Will determined by the Court so effect can be given to the deed, on one basis or the other.

3 The issue in the action arises in the following way. On about 17 November 1999 the deceased instructed a solicitor, Mr Kevin Dundo, to prepare his Will and he provided instructions to Mr Dundo for that purpose. The executors were to be Mr Dundo and the first-named first defendant (Mr Stanicich). Mr Dundo prepared a draft Will and sent it by facsimile to Mr Rakich on 19 November 1999. It seems that the matter rested there until some time in March 2000 when Mr Rakich telephoned Mr Dundo. In the course of the conversation, Mr Rakich asked Mr Dundo what needed to be done to finalise the draft Will. Mr Dundo said that Mr Rakich should complete the full name of Mr Stanicich on the draft Will (the draft Will as prepared by Mr Dundo contained only Mr Stanicich's first name and surname, a space having been left for his middle name) and return it to Mr Dundo for engrossment. In fact, the Will was not returned to Mr Dundo for engrossment and Mr Rakich died on 2 June 2000.

4 After Mr Rakich's death, his wife, the second defendant (Mrs Rakich), in company with her brother and sister-in-law, found the draft Will in a drawer of a cabinet in the deceased's office/study at their home. The name "John" had been written in hand in the space for Mr Stanicich's middle name and a signature in the name of the deceased had been written on each page of the document. The signatures had not been witnessed. That is the document that is in contention in this action.

5 Enquiries have not revealed any other testamentary instrument that the deceased left, apart from a handwritten document dated 7 July 1997 which is not witnessed and is not expressed to be in contemplation of marriage. The deceased and Mrs Rakich were married on 19 December 1998, so any Will executed by the deceased prior to that date would, unless expressed to be in contemplation of marriage, have ceased to have effect as at that date.

6 Mrs Rakich says she was aware that Mr Dundo had prepared a Will for the deceased and says that the deceased discussed it with her on a number of occasions. Mrs Rakich said that the deceased confirmed that he approved the terms of the Will and said he must contact Mr Dundo to finalise it. Mrs Rakich said she is aware that the Will was not taken out of the cabinet drawer for some two to three months before the deceased's death, so he must have signed it before that time.

7 Mrs Rakich says the word "John" and the signatures on the Will are all in the deceased's handwriting. Mr Dundo says that so far as he can tell the signature on the Will is the deceased's signature.

8 In the action the plaintiffs, the two sisters of the deceased, seek, among other things, an order that probate of the informal Will be refused and a declaration that the deceased died intestate. They plead that the signatures on the informal Will were not written there by the deceased, but by somebody else after his death and that at the date of his death the informal Will remained unsigned. It is pleaded that the informal Will was not intended by the deceased to constitute his Will.

9 The second and third defendants plead by way of defence that the signatures are those of the deceased but, in the alternative, if they are not, the informal Will was nevertheless a valid informal Will under s 34 of the Wills Act 1970 (WA) in that it was in documentary form, it was prepared in accordance with the deceased's instructions and was intended by him to have testamentary effect, and the deceased had orally stated to Mrs Rakich that he had reviewed the contents of the informal Will and it embodied his testamentary intentions.

10 The question, therefore, is whether the informal Will should be considered a valid and effective Will, given its non-compliance with the requirements of s 8 of the Wills Act 1970.

11 Section 34 of the Wills Act 1970 provides:

"A document purporting to embody the testamentary intentions of a deceased person is a will of that person, notwithstanding that it has not been executed in accordance with section 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his will."

12 The current provision came about as a result of an amendment of s 34 in 1997 (Act No 47 of 1997). Prior to the amendment the Court was required to be satisfied "that there can be no reasonable doubt" concerning the deceased's intentions. On the pre-1997 wording, it was held that the Court must be satisfied beyond reasonable doubt, rather than on the balance of probabilities: James v Burdekin (1993) WAR 298, In the matter of the will of Lobato; Shield v Caratozzolo (1991) 6 WAR 1. As the Act now stands, the Court need only be satisfied on the balance of probabilities that the deceased intended the document to constitute his Will: The Public Trustee v Head [2003] WASC 91 at [36].

13 Accordingly, the elements that must now be met for s 34 to have effect are:

1. There must a document purporting to embody the testamentary intentions of the deceased person;

2. that document must not have been executed in accordance with s 8 of the Act; and

3. the Court must be satisfied that the deceased person intended the document to constitute his Will, the requisite degree of satisfaction being according to the civil standard of proof, namely, the balance of probabilities.

14 It was not in issue that the first two elements were satisfied. The question was whether the evidence was sufficient to satisfy the Court that the deceased intended the document to constitute his Will.

15 I am satisfied that the deceased had the requisite intention. The document was prepared by a solicitor on the deceased's instructions less than eight months before the deceased's death. Some three months or less before his death, the deceased spoke to the solicitor with a view to the draft will being engrossed as his Will. It is not suggested that in that conversation the deceased intimated that he may wish to vary any of the provisions of the draft Will. Although there is no evidence as to when the handwriting was endorsed on the informal Will, it seems likely that, following the conversation with Mr Dundo, the deceased completed Mr Stanicich's name on the draft, as requested by Mr Dundo, and signed each page of the document. The deceased placed it in a drawer of a cabinet in his study at home where, according to Mrs Rakich, he kept his personal papers, including those relating to his mother's estate of which he was the executor. It is not apparent why he did not return the draft Will to Mr Dundo to be engrossed. It appears that he simply never got round to doing so.

16 There is no suggestion that the deceased took any steps to amend the terms of the informal Will or to have another Will prepared. Nor is there any evidence to suggest that at any time prior to his death the deceased wished, or might have had reason to wish, to do so.

17 Mrs Rakich says that the deceased spoke to her in terms that evinced approval of the terms of the informal Will and that the deceased said he must arrange to have it finalised. Without any disrespect, I am conscious, of course, that Mrs Rakich is the principal beneficiary under the terms of the informal Will.

18 By the informal Will, the deceased left his estate to his wife, Mrs Rakich, and, in the event she predeceased him, to his nephew, the first-named third defendant. The deceased by the informal Will permitted the third defendants the use and occupation of a house in Caversham during their lifetimes.

19 At the time of his death the deceased was 57 years of age. He had no children and his parents had pre-deceased him. The deceased was survived by two sisters and one brother, all of whom were adults at the time of his death. There was no evidence to suggest that the dispositions made by the deceased in the informal will were other than "sensible dispositions which a man might wish to make": In the Estate of Dale (1983) 32 SASR 215 at 216.

20 There was an issue between the parties as to whether the deceased had written the name "John" in the space for Mr Stanicich's middle name and whether the signatures on the informal will were those of the deceased. The validity of the informal Will does not, in my view, depend upon a finding that they were written by the deceased. I do not think there is any doubt that s 34 can validate a document purporting to be the Will of the deceased but not signed by him: In the Estate of Williams (Dec) (1984) 36 SASR 423 at 425; In the Matter of the Will of Lobato; Shields v Caratozzolo (supra) at 7 - 8. However, where a Will is unsigned "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 [that is,] evidence apart from the document itself, makes the task of proving the Will considerably less difficult": The Estate of Kevin John Hines & Anor v Hines [1999] WASC 111 at [26].

21 While a finding that the handwriting on the informal Will was that of the deceased would tend to assist in arriving at the conclusion that the informal Will was intended by the deceased to constitute his Will, I do not consider that the converse necessarily holds true. That is, I do not think a finding that the signatures were not written by the deceased of itself leads to an inference that the informal Will was not intended by the deceased to constitute his Will.

22 In the present case, I do not think it is necessary, and therefore I do not think it is helpful, to endeavour to arrive at a conclusion about the authenticity of the handwriting on the informal Will. On the evidence before me, even if the handwriting were not that of the deceased, I would not regard that as inconsistent with the intention of the deceased that the informal Will constitute his Will.

23 On the evidence before me I am satisfied that the informal Will of the deceased is a document purporting to embody the testamentary intentions of the deceased and is a valid Will, pursuant to the Wills Act 1970, although it has not been executed in accordance with s 8 of the Act.

24 In the event of such a finding, I was provided with a minute of agreed orders. They are as follows:

(1) The document, a copy of which is annexed to the Affidavits of Scripts sworn by Janet Vera Rakich on 30 October 2003 filed in these proceedings, and which is the subject of Application for Probate Number 4078/2000, is proved as the last Will and Testament of the late Joseph Lenny Rakich late of 46 Hamersley Road Caversham Western Australia who died on 2 June 2000 (the"Will").

(2) The executors named in the Will having renounced their executorship by written instrument filed with the Probate Registry of the Court on 9 September 2004, and with the consent of the parties, letters of administration cum testamento annexo of the Will are granted to the second defendant.

(3) The action, the second defendant's counterclaim and the third defendant's counterclaim are dismissed with no order as to costs.

25 Subject to hearing counsel, I propose to make orders substantially to that effect.