Re Becroft [2009] VSC 481 (15 October 2009)

2 It is the handwritten document which has thrown doubt upon what would otherwise be a straightforward application for probate of the 2001 will. The latter has been executed in accordance with the law relating to wills, and is clearly testamentary in character. There is no suggestion of testamentary incapacity or other vitiating factor.

3 The handwritten document, however, is of necessity one the status and effect of which requires consideration before that status and that effect can be determined. Its execution is described in an affidavit sworn by Trevor Frank Becroft on 22 September 2009. The other two executors have also sworn affidavits of the same date. In these they confirm the truth of the matters to which their brother deposes. This is not altogether satisfactory since, if his affidavit is true, they have no independent means of knowledge of some of the events he describes. I am, however, prepared to proceed on the basis that they can and do confirm those details about which they have direct knowledge, and that they believe the balance of their brother's affidavit to be true.

4 In paragraph 8 of Trevor Becroft's affidavit of 22 September this year, he says as follows:

On the 3rd day of February 2009, my father, myself and Darren, [I interpolate to say that is a reference to his brother, Darren Becroft] were working in the family business at 112 Maddox Road, Newport in the said State [I interpolate to say, Victoria]. My father called me into the tea room where he had set out a handwritten document. He requested that I read it and sign it. I recognised his signature immediately above the space provided for mine. I read the document and signed it without demur. I left the room and he called in my brother, Darren. I am informed and verily believe that he similarly was asked to read the document and to sign it as a witness. I am informed by Darren, and verily believe, that he did so without demur. Now produced to me and marked with letters TFB1 is a certified copy of the relevant document. At the time that I signed the document, my father told me that, if I was looking for his will, it was situated in a pigeon hole in his office.

My father died on 4 July 2009. I went to his office and found in a pigeon hole there a manila envelope in which was a copy of the will he had made at Secombs [I interpolate to say that that is the name of a firm of solicitors] on 20 November 2001, and the original handwritten document made on 3 February 2009, to which I depose above. I had my solicitors obtain the original will from Secombs. I believe the second document to be a codicil to the original will.

6 The position of the handwritten document has been the subject of helpful written submissions prepared by counsel for the executors, who are the applicants before me.

7 It is submitted, in the outline of submissions to which I have just referred, that the various directions and dispositions of property, made in the handwritten document, show that it was to have testamentary effect. The submissions acknowledge that the testator did not execute the handwritten document in accordance with the requirements of section 7(1) of the Wills Act (which sets out the requirements for valid execution) but counsel go on to submit that nevertheless the handwritten document should be admitted to probate as a codicil to the 2001 will.

8 As is set out in the submissions, and as I have ascertained from my examination of the file, the handwritten document was signed by the deceased and his two sons. As the affidavit material indicates, neither son witnessed his father signing the handwritten document; and each signed while his sibling was out of the room. Furthermore, there was, on the evidence, no acknowledgement by the deceased of the fact that he had signed the handwritten document. Nevertheless, as I read the not altogether satisfactory affidavit material, the affidavits reveal that both sons recognised their father's signature.

9 Section 9 of the Wills Act permits extrinsic evidence to be used by the court to determine whether a person intended a document to be his or her will. The section makes that provision notwithstanding the document was not properly executed.

10 In determining whether the deceased intended the document to have testamentary effect, the court is not restricted to the document itself but may have regard, in addition, to evidence of what the deceased did and said. Evidence of subsequent statements by the deceased is admissible for the purposes of establishing a testamentary intention.

11 In my opinion, the evidence before me establishes that the handwritten document was intended to be a codicil to the 2001 will. I have read the handwritten document with some care. In my opinion, it is plainly intended to have testamentary effect. The circumstances surrounding its discovery likewise indicate that the deceased intended the document to have that effect. The evidence is that he placed the handwritten document, together with the 2001 will, in a pigeon hole where the two were found together; and the circumstances of that placement, and of the recovery of the two documents, are entirely consistent with the deceased's intention that they be seen as together effecting his testamentary intentions as at the date of the signing of the handwritten document.

12 There remains a question, however, about the position of the 2001 will when set against the handwritten document. That question arises because the handwritten document has, at its foot, the words, "These variations negate my will from November 2001". The word "negate" is the word which creates what is, in my opinion, a problem - but a merely superficial problem. When read in their entirety, the words, which I have just quoted, seem to me to be consistent with the handwritten document being intended as a variation, and therefore as a codicil, to the 2001 will, rather than as a separate testamentary document intended to supersede that will.

13 As I read the handwritten document, its terms are clearly consistent with an intention to vary, but not negate, the earlier testamentary document. In addition, the handwritten document commences with the number five inserted as a paragraph number before the verbiage commences. This is consistent with the 2001 will to the extent that the depository paragraphs of that will, by which the property of the deceased is to be distributed, end at paragraph 4. It is therefore logical to conclude that the deceased intended that the first paragraph of the handwritten document continue as, in effect, a depository paragraph to follow the other depository paragraphs set out in the earlier document.

14 For these reasons I accept the submissions of the present applicants to the effect that the handwritten document should be declared to be a codicil of the 2001 will and that the two documents should, together, be admitted to probate.

15 I am accordingly, and for the reasons to which I have just referred, prepared to make the orders as proposed in the minutes of proposed orders handed to me this morning by senior counsel for the applicants, Dr Hanscombe SC. I will initial those minutes and place them on the court file. They provide, and I order, that:

1. The Registrar of Probates admit to probate as the last will and testament of the deceased, Alan Frank Becroft: (a) the will dated 20 November 2001 which is exhibited and marked (B) to the affidavit of Trevor Frank Becroft, Darren James Becroft and Lurena Ellen Bruce made 22 September 2009, together with (b) a codicil to the will, being the document dated 3 February 2009 exhibited and marked (C) to the said affidavit.
2. The two relevant documents, the 2001 will and the handwritten document dated 3 February 2009, be placed on the court file.
3. Subject to further order, the further hearing of these proceedings be adjourned to a date to be fixed not exceeding 15 October 2010, and on that day the originating motion be struck out with no order as to costs.
4. Reserve liberty to apply.
5. The costs of the application for grant of probate be paid out of the estate of Alan Frank Becroft on a solicitor/client basis.