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[2017] VSC 24
Supreme Court of Victoria
2017-02-15
Zammit J
Original judgment source is linked above.
[2017] VSC 24 First Revision, 23 March 2017, [25]
WILLS AND ESTATES - Application to admit an informal will to probate - competing application for letters of administration with an earlier will annexed - earlier will executed in accordance with s 7 of the Wills Act - where deceased prepared informal will in anticipation of surgery - whether the deceased intended the informal will to be his will - testamentary intentions of the deceased - Wills Act 1997 s 7, s 9 - Re Lynch [2016] VSC 758.
1 This judgment deals with two applications. The first is by Judith Alison Bell (Ms Bell) for a grant of administration of the estate of Guy Murray Brown (Deceased) with the will dated 19 January 1997 annexed (the 1997 Will).[1] The second application is by Melanie June Barley (Ms Barley) for a grant of probate of an informal will of Guy Murray Brown (Deceased), dated 15 July 2009 (the Informal Will), pursuant to s 9 of the Wills Act 1997 (the Wills Act).[2]
2 The parties agreed that the first matter for the Court to resolve is whether the Informal Will can be admitted to probate. If it can, then Ms Barley will be entitled to a grant of probate of the Informal Will and letters of administration with the 1997 Will annexed. If the Court rules against the Informal Will, then I must consider whether Ms Bell is entitled to letters of administration with the 1997 Will annexed.
3 The principles in respect of section 9 of the Wills Act were conveniently set out by her Honour Justice McMillan in Re Lynch [2016] VSC 758. I do not propose to depart from those principles, and will adopt them for the purpose of my reasons.
(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 will.
(2) The Supreme Court may refuse to admit a will to probate which the testator has purported to revoke by some writing, where the writing has not been executed in the manner in which a will is required to be executed by this Act, if the Court is satisfied that the testator intended to revoke the will by that writing.
(3) In making a decision under subsection (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.
6 Section 9 of the Wills Act is a remedial provision, enabling the Court to dispense with the formal requirements of execution of a will in admitting a will to probate. Ordinary principles of statutory construction dictate that it should be given a broad construction. However, its remedial nature must be tempered by an acknowledgement that the legislature is not to be taken to have unduly relegated the importance of formalities of execution.[3]
(b) the document must express or record the testamentary intentions of the Deceased; and
(c) that document must have been intended by the Deceased to be his or her will.[4]
8 The requirement that there must be a document is met in this proceeding.
9 However, Ms Bell submits that ss 9 (b) and (c) are not satisfied. It is submitted that the document does not record the Deceased's testamentary intentions nor was it intended by him to be his will.
10 The issue in dispute is whether the Informal Will prepared by the Deceased on 15 July 2009 was intended by the Deceased to be his will. In considering whether the Deceased intended the Informal Will to be his will, the Court must be satisfied that the Deceased, by some words or acts, demonstrated an intention that, without any alteration or reservation, the document should have effect as his will. It is clear that the person must also have intended the document to be a legally operative act that disposes of a person's property upon his or her death rather than a provisional, preliminary or tentative proposal.[5] The difference between a deceased's testamentary intentions and the intention that a specific document will constitute his or her will is explained as follows:
The cases indicate that, in making an application under s 9 of the Act, an applicant must put forward persuasive proof that the will was intended by the deceased to be his or her final will. 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 he or she wanted to happen to his or her property after death. Rather the applicant must prove, on the balance of probabilities, that a deceased wanted that particular document to be his or her final will and did not want to make any changes to it. [6]
11 What is required to satisfy the third element was also considered by Powell J in Re Springfield (1991) 23 NSWLR 535:
The ultimate enquiry remains, whether the document itself, the circumstances regarding its contents ... and other relevant circumstances ... lead to the conclusions that the relevant deceased intended the subject document to constitute his will ...
...
While each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the Court to be satisfied that the relevant deceased intended the subject document to be his will.
...
Where the subject document is either wholly written out, or being on a will form , has been filled in, in the handwriting of the relevant deceased, and in cases where the subject document bears the signature of, or some mark made by, the relevant deceased indicating his intention to adopt it as his own, I would have little difficulty in finding myself satisfied that it was intended by the relevant deceased that the subject document should constitute his will. Where, however, the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased or where the subject document, either seen, or read, by the relevant deceased was, in truth, no more than 'instructions' or, a note of 'instructions', for a will ... I would, I believe, find it very difficult, indeed to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will.[7]
12 The intention of the Deceased is a matter of fact and each case depends on its own facts and circumstances.[8] The fact that a deceased has read and signed a document is not determinative of the issue.[9] An application under s 9 of the Wills Act is assessed by reference to the requisite document, with the enquiry directed towards whether the Deceased intended the document to have effect as a testamentary document.
13 The Court may receive direct evidence made by a testator and what the testator said and did and may also receive evidence surrounding the making of the 'will'.[10] In Re Becroft [2009] VSC 481, Harper J held that statements of a testator are admissible as evidence of his or her intentions:
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]
14 In Hatsatouris & Ors v Hatsatouris [2001] NSWCA 408, the New South Wales Court of Appeal observed that it would be necessary for a court to be satisfied that the deceased possessed the relevant intention, 'either, at the time of the subject document being brought into being, or, at some later'.[12]
15 The relevant time for assessing the Deceased's intention may, in some circumstances, need to respond the unique circumstances of the case. I consider it would be appropriate to consider the Deceased's intention at all relevant times which may, depending on the circumstances of the case, include from the time of the creation of the Informal Will to the date of death.
16 In Dolan v Dolan [2007] WASC 249, Murray J dealt with this issue, albeit in very different factual circumstances. His Honour held that in the circumstances of that case, the relevant time for the intention to be established is at the date of death:
However, relative to this case I should add one further observation arising from the nature of the intention required to be found as it was expressed by the NSW Court of Appeal in Hatsatouris. There the Court observed that it would be necessary for a court to be satisfied that the deceased possessed the relevant intention, 'either at the time of the subject document being brought into being, or at some later time'. In my view, the relevant time is the date of the death of the deceased because it is then that the deceased must intend the testamentary disposition to take effect.
It would not matter, in my view, if for example, when the document was created the deceased had reservations about whether it should take effect upon his death, if he later came to a settled view that the disposition should take effect and the court is satisfied that remained the deceased's intention as at the date of death. On the other hand, it would not be sufficient, in my opinion, if, at the time when the document was created or at some later time during the life of the deceased, it was his intention that the disposition should take effect upon his death, but before he died he changed his mind, so that at the date of death that was no longer the deceased's intention.
In my opinion, that view is supported by the way in which, properly understood, the section is worded. It is necessary that the court be satisfied that 'the deceased intended the document to constitute his will'. By that is meant that the deceased intended the document to take effect as a testamentary disposition, a disposition of property upon his death. It must follow that the relevant time for the intention to be established is at the date of death. It will be seen that this is a point which may factually be of some importance in this case.[13]
17 The application of s 9 of the Wills Act and the standard of proof required was set out by Habersberger J in Fast v Rockman [2013] VSC 18:
The person seeking to propound an informal will must establish the requisite elements on a 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 with the Briginshaw v Briginshaw principle.[14]
18 When an informal will is to be admitted, the Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 principle dictates that reasonable satisfaction should not be obtained by 'inexact proofs, indefinite testimony, or indirect inferences'.[15]
(1) Affidavits of Judith Bell sworn 29 March 2016, 22 July 2016 and 9 December 2016; and
(2) Affidavit of Brett Andrews sworn 29 March 2016.
(1) Affidavits of Melanie June Barley sworn 16 March 2016 and 15 July 2016;
(2) Affidavit of Judith Ann Barley sworn 18 July 2016;
(3) Affidavit of Michelle Anne Hynes sworn 20 July 2016; and
(4) Affidavit of Jonathan Bloom sworn 29 March 2016.
21 Ms Barley gave oral evidence. The parties each relied upon written submissions.
22 The Deceased had three siblings: Neal Brown, Tracey Brown and Christopher Brown, two half-brothers, Rod Brown and Stephen Barley, and a half-sister, Julie McSweeney. Ms Barley is Steve Barley's daughter. Ms Barley's domestic partner is 'Rohan'.
23 As discussed, the Deceased executed a will referred to as the 1997 Will which named Lucia Bertocchi as executor. The Deceased and Ms Bertocchi separated many years ago and all financial aspects of their relationship resolved.[16]
24 Ms Bertocchi has since remarried and is now Lucia Wood. On 3 February 2016 the solicitor for Ms Bell contacted Ms Wood and asked if she was prepared to assist Ms Bell by applying for probate of the 1997 Will. Ms Wood said she had been told the Informal Will would be probated and as such there was no need for her to apply for a grant of probate, and she would not be participating in the proceeding.[17]
25 Ms Wood has renounced probate, but has not disclaimed her right to the entitlements and residue under the 1997 Will.[18]
26 Pursuant to the 1997 Will, the Deceased left all his interest in his property, 45 Parrot Road, Launching Place, Victoria 3139 (the Launching Place Property) to Ms Wood for her own use and benefit absolutely and then left half of any monies held by him at the date of his death to his mother, and the other half between his brothers and sisters that should survive him, being Julie McSweeney, Steve Barley, Neal Brown, Tracey Brown and Christopher Brown, and the residue of his estate to Ms Wood. The 1997 Will was prepared by solicitors.
27 It is convenient to set out the details of the Informal Will in full:[19]
15 July 2009
I, Guy Brown of sound mind and will and writing my last will and testomony befor I go under anethetic on this 16 July 2009.
Meleny Barley will be my administrata.
At this stage theres no real time to allocate posesions so to sell them would be apropreate including the property. The sale of the poseshion's will pay to bring property up to scratch for sale eg: burning windrows plowing cleard areas. Will maximise sale price. You can talk to Steve Jackel about that he no's wat to do.
If there is any money left put it in the kitty with sale of property. Paul Carberry will retain my share of carberry Motor Cyles and will be staying on the property till sold. Also my enfield's and any tools in work shop that he requires and has been using in production.
Also I leave Paul my car!
The rest of the money will be split up between the barley's and the Browns and Belinda.
I like Mel and Rohan to get a extra half for the kids
GM Brown
28 At the time of his death, the Deceased left no issue or step issue; the Deceased's mother and father had pre-deceased him and he had no dependants. At the time the Deceased wrote the Informal Will he was residing at the Launching Place Property.
29 Ms Barley's evidence in relation to the Informal Will is that the Deceased was to have shoulder surgery in July 2009 and told her that he was fearful of the anaesthetic. It is not disputed that the Informal Will is in the Deceased's handwriting and is signed by the Deceased. The Informal Will was not executed in the presence of any witnesses.
30 Ms Barley's evidence is that the Deceased referred to the 1997 Will as his 'old' will. She says that the Deceased gave the Informal Will to her prior to his surgery and he advised her that the Informal Will was his will. Her evidence was that the Informal Will was placed by the Deceased in a sealed envelope with the word 'WILL' written on the envelope which was in the Deceased's handwriting.[20]
31 Ms Barley's evidence is that the Deceased advised her that he intended her to be the executrix of the estate as she was living with the Deceased and assisting him with his financial affairs, including but not limited to the day to day running of his business and personal affairs and payment of the bills and the mortgage. Ms Barley's evidence is that due to the general secretarial duties she performed for the Deceased, she had significant knowledge of his affairs which would assist in the administration of the estate.[21]
32 When the Deceased gave her the Informal Will, she read through it with the Deceased and advised the Deceased that once he came out of the anaesthetic and was discharged from hospital that he should get the Informal Will properly typed up and finalised. The Deceased advised Ms Barley that she 'would know what he wanted'.[22]
33 Ms Barley's evidence was 'on several occasions from July 2009 through to the date of his death' she discussed the Informal Will with the Deceased. Ms Barley's evidence was that in the winter of 2014 when she asked the Deceased about his will he advised her that he had not yet finalised his will but that 'I knew what he wanted and I can sort it out'.[23]
34 Ms Barley deposes that the Deceased was adamant that she was to administer his affairs in the event of his death rather than any domestic partner with whom he may have been involved at the time of his death.[24]
35 Ms Barley deposes in her 15 July 2016 affidavit[25] that when the Deceased gave her his Informal Will on 15 July 2009, she discussed her concerns with him that his Informal Will may not have been a valid will as she was of the belief that all wills have to be prepared by solicitors. Her evidence is that the Deceased advised her that he had checked his Informal Will and it was fine as he had 'Googled it and Google said it was fine'.[26]
36 In cross-examination Ms Barley was referred to paragraph 11(a) of her 16 March 2016 affidavit in which she deposed that at the time of the Deceased's death he was not in a de facto relationship with Ms Bell. Ms Barley's evidence was that she was aware at the time of swearing the affidavit that Ms Bell was living at the same property with the Deceased. Ms Barley agreed that the informant on the death certificate was Ms Bell and that the death certificate referred to the relationship of Ms Bell to the Deceased as de facto partner. Ms Barley's evidence was that at the time she swore her 16 March 2016 affidavit she was not really sure why she deposed that the Deceased did not have a de facto relationship at the time of his death. Ms Barley also accepted that there was a further inaccuracy in her 16 March 2016 affidavit in that there was no reference to the Deceased's half sibling Rod Brown. In cross-examination her evidence was that she did not realise that Rod Brown and the Deceased were actually blood related.
37 Ms Barley was asked whether the Deceased ever explained to her what he meant in the Informal Will when he referred to 'the rest of the money will be split up between the barley's and the Browns and Belinda'. Ms Barley's answer was that he did explain to her what it meant.[27] When asked how the money would be split up it was put to Ms Barley that based on the fact that she had forgotten to include Rod Brown as one of the siblings it is likely that she would not have considered him one of the people to be considered in the Informal Will. Ms Barley agreed and said that Rod was 'kind of a forgotten brother I suppose' and that the Deceased never mentioned Rod when he talked about the split up of the money.[28]
39 Judith Anne Barley is Ms Barley's mother. She married the Deceased's brother, Stephen Barley. Judith Barley's evidence is that she knew the Deceased for approximately 40 years and had lived with him in different locations in Western Australia and in Victoria for approximately five years throughout the 40 years. At the time the Deceased prepared his Informal Will she was living with him at his Launching Place Property along with Ms Barley.
40 Judith Barley's evidence was that in or around December 2012 approximately one year after Ms Bell moved in with the Deceased at the Launching Place Property she discussed with him his potential de facto relationship with Ms Bell. Her evidence is that she discussed with the Deceased that if he and Ms Bell broke up and the de facto relationship ended, that Ms Bell could be entitled to half of his home. She said that the Deceased remarked to her that Ms Bell was independently wealthy and had her own money and went on to state that Ms Barley was in charge of everything and that Ms Barley was to be the executor and administrator of his estate and that she was going to deal with everything.[31]
41 Ms Michelle Hynes (friends with the Deceased for approximately 15 years) swore an affidavit dated 20 July 2016 in which she states:
(a) she suffered an aneurysm on the brain which prompted her to make a will. She recalls a discussion with the Deceased after making her will in regards to his testamentary wishes. The Deceased advised her that he had noted his wishes down and explained everything was to go to his family and friends;[32]
(b) Ms Hynes believes the conversation took place in mid to late 2009 at which time Ms Barley was acting as the Deceased's secretary;[33]and
(c) Ms Hynes understood from the conversation that the Deceased wanted his wishes to be his final wishes, and is primarily concerned about providing for his family.[34]
(a) she was the Deceased's domestic partner. The certified copy of death registration notes Ms Bell is the informant and her address is the Launching Place Property ;[35]
(b) Ms Bell was unaware of the existence of the Informal Will; and
(c) Ms Bell did not consider Ms Barley paid any attention to the Deceased's financial affairs or general secretarial duties because when she commenced to live with the Deceased she found that all of his accounts and receipts and other financial information were in a large box. The Deceased had a BAS debt outstanding from 2005, a rates debt outstanding for seven years and no tax returns had been filed since 2005. Ms Bell says that Ms Barley's evidence that she would pay the Deceased's mortgage was incorrect, as the Deceased had a line of credit similar to a redraw facility which does not require payment, contrary to Ms Barley's affidavit.[36]
43 In relation to her relationship with the Deceased, Ms Bell submits that she was in a genuine domestic relationship.
44 Ms Bell met the Deceased via an Internet dating website (RSVP) in October 2010. Shortly after meeting, the Deceased travelled to Queensland for a mining job for two weeks and upon his return they commenced a relationship.[37]
45 They never had any breaks in contact and did not separate at any time prior to the Deceased's death.[38] For the most part of 2011, the Deceased moved into Ms Bell's residence at 264 Edenvale Crescent, Kinglake West (the Kinglake Property).[39] A sexual relationship existed from the outset.[40] In or around the Christmas period of 2011, Ms Bell and the Deceased moved into the Deceased's property at the Launching Place Property where they resided until the Deceased's passing.[41] Ms Bell continued to live at the Launching Place Property following the passing of the Deceased.[42]
46 Whilst living with the Deceased at the Launching Place Property, Ms Bell rented out the Kinglake Property for two and a half years before it was sold in August 2014.[43] Ms Bell did not use the settlement monies to purchase another property as her evidence is that it was her intention together with the Deceased, that they reside together. The settlement monies from the sale of the Kinglake Property were used to finance the purchase of equipment for the Deceased's business, Rock Trim Earthmoving Contractors.[44] Ms Bell provides details of five purchases from her NAB account in relation to equipment for the Deceased's business between 20 June 2014 and 22 December 2014 totalling $20,410.[45]
47 In February 2015 the Deceased and Ms Bell had papers prepared for Ms Bell to share the Launching Place Property's mortgage and register her interest on Title. In these conversations, they discussed getting married.[46]
48 In support of the co-habitation, Ms Bell has produced:[47]
(a) Certificate of currency from Wilkinson Insurance Brokers Pty Ltd showing Ms Bell as the policy holder for the Launching Place Property;
(b) Ms Bell's driver's license showing the Launching Place Property as her residential address; and
(c) Shannons motor insurance addressed to both the Deceased and Ms Bell at the Launching Place Property.
49 Ms Bell relies on the following factors as evidence of the degree of financial dependency:
(a) Ms Bell has had control of the Deceased's financial and administrative affairs for the majority of the relationship given the Deceased's dyslexia;[48]
(b) arranging a credit card for the Deceased to use on a business trip to India in October 2011, Ms Bell being the primary cardholder, signifying the commencement of the financial interdependency;[49]
(c) arranging, with the Deceased's accountant, for the reassessment of the Deceased's tax debt which is now paid off, together with incremental repayment of the council debt with payment coming from the Deceased's bank account;[50]
(d) Ms Bell had the password to access the Deceased's bank account and authorisation to act on his behalf for the majority of his financial affairs, such as superannuation;[51]
(e) Ms Bell financed their livelihood with income she received as a marketing manager. She paid the bills, purchased tools for the business and financed the Deceased's motorcycle passion. When made redundant in July 2012, Ms Bell rolled her superannuation into a pension and used that to maintain their lifestyle;[52]
(f) Ms Bell assisted the Deceased to set up his business in 2014, and managed the bookkeeping, risk assessments and registration. This included paying his accounts and Ms Bell organised for the Deceased to be a secondary cardholder on her Visa credit card to enable him to pay for his business and private accounts. Ms Bell supported the Deceased when he was motorbike racing, and with his earth moving business by providing the things he needed such as diesel fuel, and parts and the like. All payments were from joint funds and Ms Bell currently owes a debt to the business;[53]
(g) at the end of each month when Ms Bell's credit card statement came in, they would identify which transactions were the Deceased's and he would pay Ms Bell as best he could. At the date of his death, the Deceased's account was outstanding from July 2014 and he owed Ms Bell $20,000;[54]
(h) since the Deceased's death, Ms Bell has been paying his vehicle insurance, vehicle registrations, property insurance, monthly council instalments and the Viridian line of credit (total paid since death exceeds $30,000).[55] Ms Bell estimates she contributed approximately $5,000 per month to the household since the commencement of the domestic relationship in February 2011.[56] Ms Bell estimates that she is owed in excess of $50,000. Ms Bell's evidence is that the collection of debts for the Deceased's business is a responsibility she has always held and she has not withdrawn any money from the Deceased's business or his estate except for approximately $9,000 which she used to pay for his funeral cost;
(i) Ms Bell exhibited to her affidavit of 12 December 2012 an updated listing of fundings she claims to be owed to her prior to the Deceased's death and spent by her after the Deceased's death in order to preserve the estate.[57] Ms Bell's evidence is that had she not paid the $15,832 set out in JAB1, the estate would have defaulted on its Viridian line of credit obligations, and having spoken to estate creditors she believes that they would have taken proceedings with a view to seizing the estate's assets and the assets would have become uninsured;[58]
(j) due to the Deceased's health and mental issues, there were times he could not work for days, weeks or months. Ms Bell cared for the Deceased and encouraged him to focus on his health and not work on finances. Ms Bell ensured he attended all appointments;[59]
l) Ms Bell prepared the Deceased breakfast every morning while working together on the Deceased's business, packed his lunch, organised his diary and phone. She would often join the Deceased in daily jobs and have coffee and lunch with him;[60] and
m) the Deceased and Ms Bell, together purchased several motorcycles, cars, earthmoving equipment, a bus, a race trailer, trailers and an industrial log splitter, most of which are in the Deceased's name as he was the primary operator. Ms Bell states she often paid for the vehicles, and has produced receipts.[61]
50 In mid-2012, the Deceased introduced Ms Bell to his accountant, Mr Brett Andrews, and said that Ms Bell was authorised to help Mr Andrews clean up all financial matters. Ms Bell thereafter sent Mr Andrews documents relating to a BAS debt, and with Ms Bell's help, Mr Andrews cleared the BAS debt and completed the Deceased's tax returns for 2005 to 2012.[62]
51 In May 2014 Ms Bell and the Deceased consulted Mr Andrews in relation to recording the books for the new business. Ms Bell provided Mr Andrews with monthly accounts from the commencement of the business until the Deceased's death.[63]
53 The estate comprises real estate, being the Launching Place Property at $680,000. There are liabilities in the amount of $266,712.02.
54 There are three affidavits of consent by Tracey Brown, Neal Brown and Steve Barley, whereby they consent to a grant of probate being made to Ms Barley. Each affidavit is sworn 22 March 2016.
(b) she should be granted Letters of Administration of the 1997 Will on the basis that the Executrix of the 1997 Will, Ms Wood, has indicated that she does not wish to obtain a grant of probate.[66]
56 Counsel for Ms Bell referred me to Fodor v Simudvarac [2014] VSC 227[67] in which her Honour McMillan J said:
57 Counsel further referred to Mataska v Browne [2013] VSC 62[69] in which her Honour McMillan J stated:
In my view, I consider the authorities to which I have referred support the view that a 'reasonable possibility of an interest' exists for the Plaintiff and is sufficient to justify concluding that she has standing. It is moreover sensible that the determination of the common use of the Estate should proceed the question whether the Plaintiff should receive adequate compensation for it.[70]
58 It was submitted that Ms Bell, as the domestic partner of the Deceased at the date of death who has been overlooked in the 1997 Will and the Informal Will, has an overwhelming Part IV case. She is also a creditor of the Estate at the time of the Application for Letters of Administration for $20,410, and at the time of the hearing, in the sum of $58,032.[71]
60 As to Ms Barley's evidence, it was submitted that while there is considerable assertion after the fact, there is no direct evidence about the making of the Informal Will.[73]
61 Counsel for Ms Bell submitted that it is clear from Ms Barley's evidence that the Informal Will was not intended by the Deceased to be his will, in that it does not record the Deceased's testamentary intentions; it appears to appoint Ms Barley to administer; the Deceased does not identify the property; the Deceased says that Paul Carberry is to retain the shares of Carberry Motor Cycles which entity is not identified;[74] and Ms Barley identifies two siblings of the Deceased in her Affidavit dated 29 March 2015 and two half-siblings, however she does not mention a further half-sibling, being Rod Brown, who is omitted from the Informal Will, which further does not mention if the Barley's or the Brown's children should be included.[75]
62 It was submitted that the Affidavit of the Deceased's accountant, Mr Brett Andrews, in which he deposes that in August 2009 he was approached by the Deceased to be his accountant, he cleared up the Deceased's financial affairs from 2005 to present, is at odds with Ms Barley's evidence, in that he never met with Ms Barley or had any dealings with her.[76]
I accept that a deceased's awareness of 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 these formalities and had an opportunity for a will to be executed in conformity with these requirements but failed to do so, that failure tends to points against a 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 an advertence or "act of God" beyond his or her control, as a result of a conscious decision not to do so, or 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.
64 Although the Informal Will has been executed, it was submitted that the Court should take the following view:[78]
(a) the Deceased knew what was required for a formal will. He knew what he had to do but he hadn't done it.[79] With the Deceased's knowledge of what a formal will required and with the knowledge he had of what his circumstances were and who his relatives were, the Informal Will does not become a testamentary document;[80]
(b) the Informal Will itself appears on the face of it to be a temporary document because of the Deceased's impending operation, and only operative if he did not survive that operation; the Deceased did survive the operation and therefore the Informal Will should not be admitted to probate.[81] The Deceased expressed an intention to come back and revisit his dispositions when he had sufficient time to do so, but he never did;[82] and
(c) the Informal Will on the face of it is unclear as to the assets and property of the Deceased, and who should receive the benefit of the Will. A person's testamentary intentions would first identify what it is that a person has to leave and would then give direction of what needs to be done. There is not a single item of property that is clearly identified in the Informal Will.[83]
65 In oral submissions, Counsel submitted that the Informal Will contains precatory words, that is the desires or wishes of the Deceased; he has simply set out what he wishes to do. It is an improper delegation of the Deceased's will-making power to say "Melanie will know what to do"; that is simply not an appropriate way of drawing a will or leaving instructions to be done.[84] There is no direction, only thoughts.[85]
66 It was submitted that Ms Bell is the most appropriate administrator. She was the Deceased's de facto partner at his death, she is familiar with his accounts and has done her best to maintain the value of the estate, and she is also familiar with the accounts of the estate.[86]
68 Counsel for Ms Barley submitted that the Informal Will was written, signed and dated by the Deceased on 15 July 2009, which are very significant factors because the Deceased obviously intended the document to mean something[89] and it is strong evidence that he intended the document to be his will.[90]
69 It was submitted that the Deceased intended the Informal Will to be his will in that:
(b) the Deceased stated in the Informal Will who he wants to administer his estate - Ms Barley. He knows that it is necessary to appoint someone to administer an estate.[93] Whilst not expressly appointing her as executrix, his intention is abundantly clear; in describing Ms Barley as 'administrator' the Deceased has appointed Ms Barley to be the "executor according to the tenor" of the Informal Will.
It was submitted that it cannot make a difference that in the Informal Will, the word 'administrator' is used; either 'administrator' or 'executor' clearly denote in law a function to carry out the administration and distribution of the estate.[94] In this regard, Counsel referred to case of Fairlie-Jones (Deceased) [2013] SASC 59[95] in which his Honour Gray J noted that it is settled that in certain circumstances a person can be appointed executor even if that term is not used in the will. His Honour further noted that an executor can be appointed expressly or by construction (the executor according to the tenor);[96]
(c) the Deceased expressed the clear intention that his possessions and property are to be sold; there is no ambiguity in this sense.[97] The Deceased expressed a clear intention as to what to do with any proceeds of sale of possessions that remain.[98] The Deceased's interest in the business Carberry Motor Cycles was specified, and what was to happen to Enfields (motor bikes), tools and car.[99] The 'rest of the money' refers to the Deceased's residual estate, which the Deceased directed be split up;[100]
(d) whilst the Deceased does not make a detailed disposition of his possessions there is a clear direction to sell everything and the sale of the possessions will pay to bring the property up to scratch for sale[101] ; and
(e) as to the words used in the Informal Will, it was submitted that I should not be concerned as to any uncertainty or ambiguity in the words used, as the case is purely about whether the Deceased intended the Informal Will to be his will. It was submitted that the meaning of the Informal Will is a matter for a court of construction if probate was granted.[102]
Scott LJ's observation that the object of a signature by a testator is "to authenticate the written documents in question as the will of the testator" is interesting. There seem to me to be two elements in that. By his signature, the testator is not only executing the document as his will with an immediate effect but also ... confirming that the document represents his testamentary intentions ...
71 His Honour Hallan J then referred to the minority judgment in Lindsay v McGrath:[107]
The fact that the document was written by the deceased and signed by her and that she initialled many deletions, corrections and alterations are also factors to which significant weight should be afforded when determining the intention of the deceased. In particular, the act of signing the document provides strong support for the conclusion that the deceased intended the document itself to constitute her will, rather than merely represent a draft or a working note or provisional instructions for a subsequent will. "A signature is, and is widely recognised even by the general public as being a formal device": Toll (FGCT) v Alphapharm Pty Ltd [2004] HCA 52.[108]
72 As to the fact that the 1997 Will was prepared by a solicitor, Counsel for Ms Barley referred to Hallen J in Bechara as follows:
The court may take into account the existence of prior solicitor-drawn wills when examining the extent of the failure to comply with formalities. In appropriate circumstances, an inference may be drawn that the deceased was aware of the formalities required for a will. This may affect the question whether the court should be satisfied that the deceased intended the informal document to be an amendment to his or her will or an alteration to his or her will.[109]
73 In relation to the Deceased's awareness of the formalities of a will, Counsel for Ms Barley referred to Fast v Rockman, emphasising that the awareness of the formal requirements for a will 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.[110]
74 Counsel submitted that the Deceased has gone to the trouble of writing out the Informal Will and signing it, and he presumably knew he had a proper will in 1997 with different beneficiaries. It was submitted that it would be a strange situation if the Informal Will is found to be a valid will of some limited purpose such as dying during the operation, whereas if he survived, the 1997 Will in some way was revived or was the one to be relied upon, given that there are different beneficiaries.[111]
75 It was submitted that the evidence is that certainly after the operation the Deceased still regarded the Informal Will as being his will. It was submitted that the evidence after the event is admissible to confirm the Deceased's intention when he made the Informal Will and signed it; that he clearly intended it to be his will and that intention had not changed. It was further submitted that even if his intention had changed, if the Deceased made the Informal Will intending it to be his will, it is still his will and can only be revoked in accordance with the terms of the Wills Act.[112]
The focus of the probate jurisdiction is to uphold the wishes of a deceased in respect of the posthumous distribution of his or her property and the beneficiaries of such property. The inquiry as to whether a testator intended an informal document or documents to be his or her will is directed to his or her intentions regarding the specific document or documents and whether the document or documents were intended as a legally operative act that disposes of his or her property upon his death, rather than a provisional, preliminary or tentative proposal.
77 The circumstances giving rise to the Informal Will were that the Deceased was to undergo shoulder surgery on 16 July 2009. At the time he was no longer in a de facto relationship with Ms Wood.
78 The Deceased previously executed a will, the 1997 Will, before lawyers in a proper form that complied with s 9 of the Wills Act. The Deceased was aware of those formalities and had an opportunity after 16 July 2009 for a will to be executed in conformity with these requirements but failed to do so.[114]
79 Ms Barley's evidence that the Deceased thought that the Informal Will 'was fine' because he had conducted a search on Google does not take the matter any further. The Google search was said to have taken place at the time the Deceased gave Ms Barley the Informal Will on 15 July 2009. Ms Barley's evidence was that in the winter of 2014, the Deceased told her that he had not finalised his will. By 2014, the Deceased was in a new relationship with Ms Bell. Ms Bell was responsible for administering the Deceased's financial affairs including those of his business. Ms Bell had taken significant steps to sort out the Deceased's financial affairs and was contributing to their pooled resources. There is no evidence that Ms Barley was aware of his financial position after the Deceased commenced his relationship with Ms Bell in late 2010 to the date of his death or that she gave him any assistance in this regard.
80 Ms Barley's oral evidence was that she did not know on the basis of the Informal Will who should receive the benefit under the document.
81 I consider the Informal Will on its face is unclear as to the assets and property of the Deceased and who should receive the benefit of the will. The document fails to identify any asset or property with real specificity. There is a reference to 'the property', no more. The only reference to assets is 'my share of carberry Motor Cycles' and 'my enfield's and any tools in workshop'; 'my car' and 'rest of the money'. There are no details of bank accounts. The document does not disclose that the Deceased was aware of the value of his assets. The Deceased was not precise in the definition of his assets or the directions he gave for the manner in which they are to be distributed.
82 Ms Barley's evidence that the Deceased told her after the Informal Will was prepared that she would know what to do was not necessarily accurate and reflects the lack of direction in the document. Ms Barley conceded in her evidence that she had forgotten to include Rod Brown as one of the family members. She referred to him as the forgotten brother. The document does not specifically exclude Rod Brown. This demonstrates the confusion and lack of precision in the document and that the Deceased's intention to just let Ms Barley 'sort it out' as she would know what to do was inadequate. Another troubling aspect of the document is the Deceased referring to Steve Jackel as someone who would know what to do in relation to preparing 'the property' for sale. The task attributed to Steve Jackel is a typical task attributable to the office of executor.
83 I am not satisfied that even if the Deceased said that Ms Barley would know 'what to do' that this is a valid exercise of will making power. The Deceased failed to identify the property or properly describe his assets in the Informal Will. The Informal Will refers to first names of some people and it refers to giving 'a extra half [to Mel and Rohan] for the kids'. It is inadequate. It is not clear what half and whether 'Mel and Rohan' are to be the beneficiaries or their children, if they had any. As McMillan J said in Re Lynch,[115] the Informal Will 'bears the hallmarks of a provisional, preliminary or tentative thought process, rather than a legally operative act that disposes of the deceased's assets upon his death'.
84 The evidence is that the Deceased knew in the winter of 2014 that a will needed to be finalised. At best, he was suggesting that Ms Barley would know what he wanted. There is no direct evidence before the Court as to why the Deceased did not review or revise this testamentary disposition over the five year period. The Deceased had made a will before and therefore knew the requirements of a valid will. I do not accept that the Deceased's failure to execute a more formal document after he was discharged from hospital in July 2009 until his death suggests that he believed he had a valid will in place.
85 There is no evidence before the Court as to whether there were people available to act as attesting witnesses. The evidence is that Ms Barley and Judith Barley knew of the Informal Will. It is not clear from Ms Hynes' evidence if she was actually aware of the Informal Will or merely the Deceased's wishes. In her Affidavit she deposes only to the Deceased telling her he had 'noted his wishes down...'. Ms Bell and Mr Andrews were not aware of the Informal Will. It appears the Informal Will was given little publicity by the Deceased.
86 The Informal Will must be considered in context. The evidence suggests that the Deceased had some concern that he was having an anaesthetic and created the Informal Will to cater for any adverse outcome from surgery. The evidence does not support that he intended the Informal Will to be his will forevermore but rather in circumstances where he was no longer in a relationship with Ms Wood and was about to undergo surgery, he solved an immediate problem concerning the possibility that something might happen to him whilst in hospital in July 2009. The evidence is that he accepted that after that date, Ms Barley's told the Deceased he should have the Informal Will reviewed and he agreed in the winter of 2014, that he had not finalised his will.
87 The standard of proof on the balance of probabilities for Ms Barley to meet, requires reasonable satisfaction that the Deceased intended the Informal Will to be his final will. At its highest the Deceased prepared the Informal Will to meet his concerns that he was to undergo an anaesthetic and something may happen in hospital in July 2009. As it happened, nothing adverse occurred.
88 Accordingly, Ms Barley's application for a grant of probate with the Informal Will annexed is dismissed.
89 Given my findings in relation to the Informal Will, I must now consider if the Court should make an order for a grant of administration to Ms Bell of the Estate of the Deceased with the 1997 Will annexed.
90 Counsel for Ms Barley agreed that Ms Bell had standing to make the application for grant of administration.
91 Based on the evidence, I am satisfied that Ms Bell has an arguable case that she was the Deceased's domestic partner at the date of death and accordingly, will have an arguable case pursuant to any Part IV claim under the Administration and Probate Act 1958.
92 Ms Bell has a sound knowledge of the Estate and has endeavoured to maintain the value of the Estate. This is confirmed by Mr Andrews in his Affidavit sworn 29 March 2016. As such, I consider the Court should grant Ms Bell Letters of Administration with the 1997 Will annexed.
93 I will hear the parties on the proper form of order and costs.
[1] Originating motion dated 18 January 2016 in Re Estate of Brown: Bell v Barley (S PRB 2016 00514).
[2] Originating Motion filed 30 March 2016 in Application by Barley (S PRB 2016 04964).
[3] Estate of Peter Brock [2007] VSC 415 (24 October 2007) [19]-[20] (Hollingworth J).
[4] Fast v Rockman [2013] VSC 18 (7 February 2013) [46] (Habersberger J); Rowe v Storer [2013] VSC 385 (2 August 2013) [32] (McMillan J). See also, Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P); 455 (Mahoney JA); 466 (Priestley JA); Hatsatouris & Ors v Hatsatouris [2001] NSWCA 408 (30 November 2001) [56] (Powell JA, with whom Priestley JA and Stein JA 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 Limited 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).
[5] Fast v Rockman [2013] VSC 18 (7 February 2013) [59], [73], [75], [86], [92], [96], [105]-[110] and [114] (Habersberger J) citing, inter alia, Mitchell v Mitchell [2010] WASC 174 [42] (23 July 2010) (EM Heenan J).
[6] Re Rosaro [2013] VSC 531 (4 October 2013) [36] (McMillan J).
[7] Re Springfield (1991) 23 NSWLR 535, 539-540. Powell J discussed the equivalent New South Wales provisions.
[8] Estate of Peter Brock [2007] VSC 415 (24 October 2007) [23] (Hollingworth J).
[9] Fast v Rockman [2013] VSC 18 (7 February 2013) [66] (Habersberger J).
[11] Re Becroft [2009] VSC 481 (15 October 2009) [10] (Harper J).
[12] Hatsatouris & Ors v Hatsatouris [2001] NSWCA 408 (30 November 2001) [56] (Powell JA). See also National Australia Trustees Ltd v Fazey; Estate of Nancy Elaine Lees [2011] NSWSC 559 (10 June 2011) [17] (Windeyer AJ).
[13] [2007] WASC 249 (29 October 2007) [24]-[26]]. Murray J discussed the equivalent Western Australian provisions.
[14] Fast v Rockman [2013] VSC 18 (7 February 2013) [48] (citations omitted).
[15] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J).
[16] Affidavit of Melanie June Barley dated 16 March 2016, [5(a)] ('Melanie Barley's March 2016 Affidavit').
[17] Affidavit of Jonathan Bloom dated 29 March 2016, [2]-[4].
[18] Email from Devenish Lawyers to Ms Pulford and Mr Bloom, 6 September 2016, para 2.
[19] Informal Will of Guy Murray Brown dated 15 July 2009 ('Informal Will').
[20] Melanie Barley's March 2016 Affidavit, [5(d)].
[25] Supplementary Affidavit of Melanie June Barley dated 15 July 2016.
[31] Affidavit of Judith Anne Barley dated 18 July 2016, [5(e)].
[32] Affidavit of Michelle Anne Hynes dated 20 July 2016, [5(a)].
[35] Affidavit of Judith Alison Bell sworn 29 March 2016 [2].
[37] Affidavit of Judith Alison Bell dated 18 January 2016 [3] ('Judith Bell's January 2016 Affidavit').
[38] Affidavit of Administrator dated 18 January 2016 ('Affidavit of Administrator') [11(i)].
[39] Judith Bell's January 2016 Affidavit, [4].
[40] Affidavit of Administrator, [11(iv)(d)].
[41] Judith Bell's January 2016 Affidavit, [5].
[47] Affidavit of Administrator, [11].
[48] Affidavit of Administrator, [11(iv)(a)].
[54] Melanie Bell's March 2016 Affidavit, [9].
[56] Affidavit of Administrator, [11(iv)(g)].
[57] Exhibit JAB1, Annex to the Affidavit of Judith Alison Bell dated 12 December 2016.
[58] Affidavit of Judith Alison Bell dated 22 July 2016, [2].
[59] Affidavit of Administrator, [11(v)].
[62] Affidavit of Brett Andrews dated 29 March 2016, [2].
[66] Plaintiff's Submissions dated 8 December 2016, [4] ('Plaintiff's December 2016 Submissions').
[70] Mataska v Browne [2013] VSC 62 [54].
[71] Plaintiff's December 2016 Submissions, [9].
[73] Ibid [19]; Affidavit of Melanie Barley dated 16 March 2016, [5(d)].
[74] Plaintiff's December 2016 Submissions, [20].
[76] Affidavit of Brett Andrews sworn 29 March 2016, [2], [5] and [6]; Plaintiff's December 2016 Submissions, [38].
[77] [2013] VSC 18 [112]-[113]. Habersberger J's reasoning was adopted by Hallen J in Bechara v Bechara [2016] NSWSC 513 [127]-[128].
[81] Plaintiff's December 2016 Submissions, [34].
[86] Plaintiff's December 2016 Submissions, [40].
[88] Defendant's Submissions dated 8 December 2016, [4] ('Defendant's December 2016 Submissions').
[103] [2016] NSWSC 513 ('Bechara').
[107] [2015] QCA 2016; Bechara [2016] NSWSC 513 [127(f)].
[108] Linsday v McGrath [2015] QCA 207 [19].
[109] Bechara [2016] NSWSC 513 [127(n)] (citations omitted).
[110] Fast v Rockman [2013] VSC 18 [113].
[113] [2016] VSC 758 [74].
[114] Fast v Rockman [2013] VSC 18 [12]; Bechara v Bechara [2016] NSWSC 513 [127], [128].
[115] [2016] VSC 758 [77].
Re Estate of Brown: Bell
Barley; Application by Barley [2017] VSC 24
(1991) 23 NSWLR 535
(1938) 60 CLR 336
(1994) 33 NSWLR 446
(2002) 4 VR 406