Supreme Court of WA|2003-05-12|Before: Barker J

Re Estate of John William Henry Nicholls (Dec) [2003] WASC 85 (12 May 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RE ESTATE OF JOHN WILLIAM HENRY NICHOLLS (DEC) [2003] WASC 85

MATTER : Will of JOHN WILLIAM HENRY NICHOLLS (DEC) late of 52 Lawley Street, Geraldton in the State of Western Australia

Decision of Registrar Christopher Boyle to refuse to grant Probate of the Will of JOHN WILLIAM HENRY NICHOLLS (DEC)

Probate - "Appeal" under r 5 of the Non-Contentious Probate Rules 1967 (WA) against decision of a Registrar refusing to grant probate of will of deceased in common form - Nature of "appeal" under r 5 - Nature of a "noncontentious" probate proceeding - Will altered by deceased - Whether s 35 of Wills Act 1970 (WA) as amended applies to alterations made by deceased to his will and, if so, to which of several alterations - Whether appropriate to make a grant of probate in common form

Wills Act 1970 (WA), s 8, s 10, s 35

The Will and Estate of Robert Emanuel Trinidad (Dec); Ex parte The Public Trustee, unreported; SCt of WA; Library No 980504; 8 September 1998

1 This is an appeal by John Edward Nicholls, one of the persons referred to in a document purporting to be the last will and testament of John William Henry Nicholls, deceased, against the decision of a Registrar of the Court made 16 December 2002 refusing to grant probate of the will of the deceased in common form. The appeal is made pursuant to r 5 of the Non-Contentious Probate Rules 1967 made under the Administration Act 1903 (WA).

Nature of "appeal" under r 5 of the Non-Contentious Probate Rules 1967

2 Rule 5 of the Non-Contentious Probate Rules provides as follows:

(1) A person aggrieved by an order, decision or requirement of the Registrar may appeal therefrom to a Judge in Chambers.

(2) An appeal shall be by notice in writing to attend before the Judge and shall be filed in the Registry within 5 days after the order, decision or requirement complained of, or within such further time as may be allowed by a Judge or the Registrar.

(3) A notice of appeal shall be served on every person, other than the appellant, who appeared or was represented before the Registrar.

(4) Where a notice of appeal is required to be served, there shall be at least 2 clear days between service of the notice and the day of hearing."

3 Nothing in the Supreme Court Act 1935 or the Supreme Court Rules governing general civil practice touches on the nature of an appeal pursuant to r 5 of the Non-Contentious Probate Rules. However, it appears to me that an appeal under r 5 is an appeal de novo.

4 Where an "appeal" is provided for by a written law, a question arises as to whether or not it is an appeal in the strict sense, an appeal by way of rehearing or an appeal de novo. The differences between these three types of appeals, and the circumstances in which an appeal will be held to be of one type or the other, was most recently discussed in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, especially at 203 - 204. As Gleeson CJ and Gaudron and Hayne JJ stated in a joint judgment, it is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.

5 If an appellate Tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo.

6 In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.

7 In the joint judgment their Honours (at CLR 203, par 14) stated that, ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.

8 In the joint judgment, their Honours also emphasised (at CLR 202 - 203 par 11) that the nature of an appeal must ultimately depend on the terms of the statute conferring the right of appeal. The statute in question may confer limited or large powers on an appellate body; it may confer powers that are unique to the Tribunal concerned or powers that are common to other appellate bodies. Thus, there is no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another.

9 The Administration Act 1903, is an act to consolidate and amend the law relating to Probate and Administration and the Duties on the Estates of Deceased Persons and for other purposes. By s 4, the jurisdiction and authority vested in or exercised by the Supreme Court prior to the Administration Act in respect of the estates of deceased persons continues as so vested and exercised. By s 1, the Administration Act is construed as one with the Supreme Court Act 1935. The Administration Act, however, sets up the Principal Registrar of the Court as a person with authority to perform such duties as were, immediately prior to the coming into operation of the Acts Amendment (Master, Supreme Court) Act 1979, performed by the Master of the Supreme Court in reference to matters in the ecclesiastical jurisdiction of the court and such other duties as may be prescribed by the rules made under the Act. By s 5(2) of the Act, and subject to the rules made under the Act, the powers and authority conferred on the Principal Registrar may be exercised by a Registrar of the Court. By s 6, it is the Court that has jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, in Western Australia.

10 The Non-Contentious Probate Rules 1967 made under the Act set out the functions and powers of a Registrar in respect of a probate matter which is non-contentious. As explained further below, contentious probate matters are the subject of the Supreme Court Rules governing civil matters generally. Thus, in relation to the present case, it is the Non-Contentious Probate Rules which empower a Registrar to make a decision in respect of the application for probate in common form, and it is the Non-Contentious Probate Rules - not the Act - that provide for an appeal against a decision of the Registrar to the Court.

11 Rule 4(1) of the Non-Contentious Probate Rules makes it clear that the Registrar exercises the powers of a Judge in Chambers in and about the granting of probate and administration, and may transact all such business and exercise all such powers and authorities in respect of voluntary or non-contentious probate jurisdiction as under the Administration Act, the Supreme Court Act 1935, the Public Trustee Act 1941, the Rules of the Supreme Court 1971, or these Rules, may be transacted or exercised by a Judge in Chambers, except in respect of certain enumerated matters.

12 By r 4(4), where a matter appears to the Registrar proper for the determination of a Judge, the Registrar may refer it to a Judge, and the Judge may either dispose of the matter or refer it back to the Registrar with such directions as he may think fit.

13 Consequently, and as recognised by the learned authors of Wills Probate and Administration Service Western Australia (Butterworths 1999, loose leaf service), the Registrars of probate exercise specific, that is, limited statutory and regulatory power under r 4. In a real sense, a Registrar of the Court exercises the voluntary or non-contentious probate jurisdiction under the Non-Contentious Probate Rules as a delegate of a Judge of the Court and each decision is subject to review by a Judge, whether on a reference to the Judge by the Registrar or in an appeal against a decision of the Registrar to a Judge.

14 It follows, in my view, that an "appeal" to a Judge under r 5(1) should be treated as an appeal de novo, so that it is open to the Judge on the hearing of such an "appeal" to hear the matter afresh. On such a reference or "appeal" under these rules, the Judge is effectively exercising the jurisdiction created by s 6 of the Administration Act that was delegated by the rules to the Registrar. Such an "appeal" is not one in the strict sense; nor is it appropriate to view the "appeal" as one by way of rehearing where the Court will only act to correct an identified error on the part of the Registrar. In effect, the Court exercises an original jurisdiction on such an "appeal".

15 In this case, in accordance with the Non-Contentious Probate Rules and practice of this Court, John Edward Nicholls, by his solicitors, moved by Motion in the Probate Division of the Court that probate of the will (as amended) of the deceased be granted to him with such amendment or amendments (as the case may be) to be proved pursuant to s 35 of the Wills Act 1970 (WA).

16 The Registrar of the Court who considered the Motion and accompanying papers refused the Motion on the basis that it was not suitable for a non-contentious grant. By letter to the solicitors for the appellant dated 16 December 2002, the Registrar advised:

"The application has been refused. The volume of supporting material lodged self-evidently makes this a matter that is not suited to a non-contentious grant."

It is against this decision that the appeal has been made.

Nature of "non-contentious" proceedings in Probate

17 The expression "non-contentious grant" is not expressly defined by the Administration Act or the Interpretation Act 1984 (WA). Nor is the expression or any related expression such as "non-contentious" defined by the Non-Contentious Probate Rules 1967. While the relevant rules are described as the "Non-Contentious Probate Rules 1967", the fact that they have to do with non-contentious probate matters is to be discerned from their terms and scope, and the jurisdiction given to the Registrar under them. For example, by r 4(1), as noted above, the Registrar may exercise the powers of a Judge in Chambers in and about the granting of probate and administration in respect of "voluntary or non-contentious probate jurisdiction" as under the Administration Act, the Supreme Court Act 1935, the Public Trustee Act 1941, the Rules of the Supreme Court 1971, or these Rules, except in respect of the proceedings and matters set out in s 26(2) and (6) of the Administration Act, subject to r 35(1) and (2) applications and orders under s 29 of the Administration Act and applications under s 64 of the Administration Act to remove caveats. All of those exceptions have a contentious aspect to them.

18 Section 18 of the Supreme Court Act provides that the Supreme Court shall have "voluntary and contentious probate jurisdiction and authority in relation to the granting or revoking of probate of wills and letters of administration of all real and personal estate whatsoever within Western Australia". Order 73 of the Rules of the Supreme Court applies to "Probate causes and matters". The expression "Probate action", however, is defined by O 73 r 1(2) to mean an action for the grant of probate of the will, or letters of administration of the estate of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of any alleged will, not being an action which is non-contentious or common form probate business.

19 In other words, a "probate action" affected by O 73 of the Rules of the Supreme Court and the "voluntary or non-contentious probate jurisdiction" referred to in r 4 of the Non-Contentious Probate Rules 1967 are defined, not in a positive way, but negatively, that is to say, by reference to what is not included in each expression. There is, thus, a degree of circularity in the expressions. Nowhere does there appear to be a close interpretation of what is "non-contentious". It seems to me the best that can be said is that a probate matter is "non-contentious" if it is not "contentious". It will be considered "contentious" if it is a matter which, in the event, is, or shall be the subject of, a "probate action" as defined by O 73 of the Rules of the Supreme Court, or is not within the jurisdiction of a Registrar under r 4 of the Non-Contentious Probate Rules 1967 by reason of falling under the enumerated exceptions referred to therein.

Whether a grant of probate in common form is appropriate

20 In these circumstances, it does not seem to me automatically to follow that, because an application for probate of a will in common form is supported by a large volume of paper constituting affidavits in support of an application (for example, in order to deal with the question of alterations to the will and the application of s 35 of the Wills Act to them), the application should be treated as one which is self-evidently contentious or "not suited to a non-contentious grant". The fact that there is a volume of supporting material lodged with an application for a grant of probate in common form may suggest that, on closer inspection, the matter will be found to be contentious, but closer inspection will usually be appropriate. Therefore, in the circumstances of this appeal, it becomes appropriate to consider the circumstances in which the application for a grant of probate of the will of the deceased was made.

The will of the deceased and his alterations thereto

21 By a pro forma "Will", obviously obtained by the deceased from a commercial stationer, the deceased purported to make his last will and testament. The "Will" contains within it some standard wording as well as spaces to be completed by a testator. It also contains a number of standard forms of special legacies and bequests to guide a testator. It also contains a section headed, "Directions how to make your will", where it is stated, amongst other things, that:

"Every Will should be signed at the foot or end thereof (that is immediately after the last line of it and WITHOUT LEAVING ANY SPACE BETWEEN THE LAST LINE AND THE TESTATOR'S SIGNATURE) by the Testator or by some other person in his presence and by his direction and such signature should be made or acknowledged by the Testator in the presence of two or more witnesses present at the same time and such witnesses should witness and sign the Will in the presence of the Testator ...

Against every alteration and interlineation made before the Will is executed, the Testator and Witnesses must sign their names; NOTHING MUST BE RUBBED OUT OR ERASED.

After the Will has been duly executed, no addition to, or alteration may be made. Should any alteration be requisite, the right course will be to write a fresh Will which is usually easier than writing a Codicil." (Bolding and Italics as in the original)

This advice conforms with ss 8 and 10 of the Wills Act.

22 It appears that the deceased, armed with this document, filled it out on or about 21 July 1996. On that date, he signed the document in the presence of two witnesses present at the same time and who also signed the will in the presence of the deceased and each other. On the face of it, the document so completed, signed and attested on 21 July 1996 constituted the valid will of the deceased so far as the formal requirements of s 8 of the Wills Act are concerned.

23 However, at some time or times subsequent to 21 July 1996, the deceased altered his will by writing additional words on it. On most occasions, he either placed his signature or his initials thereunder or adjacent thereto. However, when adding these words, the deceased did not subscribe his signature or initials thereto in the presence of any witnesses. No-one can now say when those additional words were placed on his will by the deceased or provide any independent account of the circumstances in which the deceased apparently decided to so alter his will. The deceased made no other documents, at least no other documents that have survived his passing, to explain the addition of any of these words.

24 However, there is no dispute that the alterations were made to the will after the will in its original form was made on 21 July 1996. In any event, it is clear that Courts presume that unattested alterations, amendments, interlineations and obliterations appearing in a will were effected after the execution of the will, although this presumption may be rebutted by evidence to the contrary: Cinnamon v Public Trustee (Tas) [1934] HCA 26; (1934) 51 CLR 403 at 410, 416, 421; Hardingham Neave and Ford, Wills and Intestacy in Australia and New Zealand, 2nd ed, Law Book Co 1989 at [620]. In this case, the appellant does not attempt to rebut the presumption.

25 The application for a grant of probate of the will is supported by written submissions and a number of affidavits. The affidavits variously deal with the provision of information required in the usual way under the Non-Contentious Probate Rules to support an application for a grant of probate in common form. However, they also deal with the alterations to the will, in respect of which probate is sought. The appellant, through his solicitors, submits that the "original will" complied with the formalities contained in s 8 of the Wills Act. About that there seems no doubt, although it is less clear what the "original will" comprises. As to the alterations, the appellant accepts that they do not comply with the requirements of s 10 of the Wills Act concerning the making of alterations to a will. He submits, however, that, pursuant to s 35 of the Wills Act, he "intends to prove these amendments as informal amendments to the terms of the original will on the basis that they contain dispositive provisions which were intended by the deceased to form part of the will".

26 The appellant says that the "original will", constituted by a combination of the standard words included on the document and the hand-written (or hand-printed) words put on it by the deceased, is that identified by the "Panels" which he has marked 1A, 1B, 1C, 1D and 1E on the black and white copy of the will which is attached to these reasons.

27 The appellant says the words in Panels 2A (on the original written in black ink), 3A, 3B, 3C, 3D, 3E and 3F (on the original written in blue ink) are the alterations made to the original will.

28 A cursory inspection of the original document, albeit by an untrained judicial eye, might suggest that, while the appellant is correct in submitting that the "original will" included the words in Panels 1A , 1B and 1C, he is not correct in saying that it also included the words in Panels 1D and 1E. That is because the blue ball point or other pen used to enter the hand-printed words that appear in Panel 1D has produced a darker shade of blue than the pen used to make the words that appears in blue ink in Panels 1A - 1C, and because the words in Panel 1E are hand-written in black ink.

29 It may also be seen that Panels 3A, 3B, 3C, 3D and 3F contain words hand-printed or written in a darker blue than the words that appear in Panels 1A - 1C. Whether or not they were written at the same time is impossible to say on the available evidence.

30 The words that appear in Panel 1D are not separately subscribed to by the deceased and he has not separately initialled them, as he has a number of the other panels, unless one takes the view that the words that appear in Panels 1D and 3D were written at the same time.

31 There is an additional reason to think that the words that appear in Panel 1D were not part of the "original will". This is because the words that appear on the front page of the document in Panel 3E - "EXCEPT WHAT IS LISTED PAGE 4" - is written in dark blue ink of a similar consistency and style to the words that appear in Panel 1D.

32 Reading and construing the document as a whole, it seems to me that all of the words that appear in Panel 3E (on page 1) and in Panel 1D (on page 4) were written at the same time. While it is possible that the words that appear in Panel 1D were part of the "original will", and that the words in Panel 3E were added at some later date in order to clarify the terms of the will, it seems to me, on the basis explained above, that this is unlikely to be so.

33 Against this view stands the testimony of the persons who witnessed the signature of the deceased on the document on 21 July 1996. The witnesses are Gloria Jean Taylor and Robert John Taylor. In their affidavit in support of the application for a grant of probate, they say that:

(1) At the time of the deceased's death they had known him for a number of years, were good friends and were aware of most of the circumstances surrounding the making of the will.

(2) Having examined the will personally, they can confirm that, on 21 July 1996, the deceased signed his name at the foot of the second page of the will in their presence, both of them being present at the same time and that they attested and subscribed the will in the presence of the deceased.

(3) They can confirm that, when they witnessed the will, the contents of the will consisted of writings contained in Panels 1A, 1B, 1C, 1D and 1E only, as appear on the photocopy of the will in the same form as it is annexed to these reasons; and that the writings contained in Panels 3A, 3B, 3C, 3D, 3E and 2A must have been added subsequent to the execution of the will on 21 July 1996.

34 Notwithstanding the assurances of Mr and Mrs Taylor, which I am sure have been provided in the utmost good faith and from the best of their recollections, there is, for the reasons I have given, good reason to think that the words in Panel 3E were written at the same time as the words that appear in Panels 1D, the ink being of a similar colour and consistency. Additionally, on their own, without Panel 3E, the words that appeal in Panel 1D do not read well with the words that appear in Panels 1A - 1C, or at the least, do not read as well as they do when prefaced by the words in Panel 3E.

35 One might additionally doubt that the words that appear in Panel 1E, which are in black ink, were written at the same time as the words that appear in Panels 1A - 1C, as the witnesses suggest. Not only are they written in a different colour ink, but they are hand-written, as distinct from hand-printed. It is more probable that the words in Panel 1E were written at some time subsequent to 21 July 1996 and were placed in that particular portion of the "Will" document so that they would easily identify the document as the last will and testament of the deceased, when the document was folded into a "smaller" document in the way intended by the printer of the document. Thus, it might reasonably be concluded that the deceased has simply folded the "Will" sometime after it was executed and hand-written on it his name, address and the date of the will - "July 21 1996" - in order to identify the document within.

36 In summary, I find on the balance of probabilities, that the "Will" signed by the deceased and subscribed to by the two witnesses on 21 July 1996 in the manner required by s 8 of the Wills Act contained only the words that appear in Panels 1A, 1B and 1C.

Whether s 35 of the Wills Act 1970 applies to alterations

37 In the light of this finding, the question arises whether the words that appear in Panels 1D, 1E, 2A, 3A, 3B, 3C, 3D and 3E are part of the "original will". Generally speaking, apart from s 35 of the Wills Act, alterations and interlineations made after the execution of a will can only have effect as part of the will if executed in accordance with the requirements of s 10 of the Wills Act.

Section 10(2) of the Wills Act provides:

"An alteration that is made in a will after the will has been made is validly made when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration ... are or is made 

(a) in the margin or in some other part of the will opposite or near the alteration; or

(b) at the foot or end of, or opposite to, a memorandum referring to the alteration and written in some part of the will."

However, s 35 of the Wills Act provides:

"Any alteration made to a will of a deceased person after the will was executed or made has effect, notwithstanding that the alteration has not been made in accordance with section 10, if the Supreme Court is satisfied that the deceased intended the will as so altered to constitute his will."

38 In James v Burdekin (1990) 3 WAR 298, the Court (Commissioner Jackson QC) set out four elements that must be established under s 35. First, there must be a will, namely, a document purporting to embody the testamentary intentions of the deceased. Secondly, the will must have been altered after its execution. Thirdly, the alteration was not made in accordance with s 10. Finally, the Court must be satisfied that there is no reasonable doubt that the deceased intended the will as so altered to constitute his or her will. In relation to the fourth element, the Court must be satisfied to the criminal standard. The Court found the fourth element to be required because s 35, prior to its amendment by Act 47 of 1997, required the Court to have "no reasonable doubt" about the testator's intentions. The satisfaction of these four elements of s 35 was also recognised in Marsden v Ward, unreported; SCt of WA (Owen J); Library No 980180; 9 April 1998 at 6 - 7. What should now be said in relation to the fourth element, is that the Court no longer must be satisfied to the criminal standard of proof, but may be satisfied that, on the balance of probabilities, the testator intended the will as so altered to constitute his will.

39 In this case, I am satisfied on the balance of probabilities that the words that appear in the various Panels, constitute alterations to the will of the deceased that have effect pursuant to s 35.

40 So far as the first element that must be established under s 35 is concerned, there was, at material times, a will. It is the testamentary document signed by the deceased and witnessed in accordance with s 8 of the Wills Act on 21 July 1996. It constitutes the words that appear in Panels 1A, 1B and 1C of the copy of the original "Will" document lodged for probate.

41 The second element that must be established under s 35 is satisfied because that will was altered after its execution by the deceased writing the words on the document that appear in Panels 3E and 1D, 2A, 3A, 3B, 3C, 3D, 3F and 1E of the copy of the original "Will".

42 The third element required to be established under s 35 is satisfied in that none of these alterations was made in accordance with s 10 of the Wills Act: they were plainly hand-written by the deceased, but not witnessed. The fact that not all of the alterations were signed or initialled by the testator is not critical: see In the Estate of Greenslade (1988) 48 SASR 414; and supported by In the Matter of the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1.

43 As to the final element that must be established under s 35, that on the balance of probabilities the deceased intended the will as so altered to constitute his will, I am satisfied that he did so intend. I do not consider there is any real doubt about this because each of the words in the panels referred to was included on the document constituting the will and pertained to testamentary matters.

44 Not every word or mark added to a will after its execution will constitute an "alteration" that has effect by force of s 35 of the Wills Act. For example, if the deceased used the will to make a note of a friend's name and email address, that physical alteration to the will would not have any effect by virtue of the provision. This is because it will be well-nigh impossible to show that the deceased intended his will as so altered to constitute his will; the alteration had another purpose.

45 A "will" is defined by s 6 of the Wills Act, but only in an inclusionary: way it "includes a codicil and any testamentary instrument". It is often said that a document may be executed in the manner of the will but will not be admitted to probate unless it disposes of property: Cinnamon v Public Trustee (Tas) (supra) at CLR 409 - 410, Hardingham Neave and Ford, Wills and Intestacy in Australia and New Zealand (supra) at [103]; Theobald on Wills, 15th ed, page 25. This is not to say, of course, that parts of the will that themselves do not effect a testamentary disposition of property do not constitute part of the will. Section 35 of the Wills Act suggests that a will is "a document purporting to embody the testamentary intentions of a deceased person". Whether there is a difference between a document that embodies the testamentary "intentions" of a deceased and a document that embodies a testamentary "disposition of property" perhaps does not require exploration on this occasion. However, if a document expresses intentions in relation to how the property of a person should be dealt with upon their death, it may be said to be a "testamentary document" or a document in which the "testamentary intentions" of the person have been expressed. It may also be said that those parts of the document which, for example, help to constitute it grammatically, involve the nomination of an executor and trustee and have to do with the formalities required for due execution of a will pursuant to s 8 of the Wills Act, are also a constituent part of a will. Without them there is no document that can be categorised as a "testamentary document".

46 In any event, I consider the terms of s 35 of the Wills Act to be clear and unambiguous. If the deceased intended the will as so altered to constitute his will, s 35 has application and those alterations have effect. The alterations of themselves may not constitute a testamentary distribution of property; but nonetheless the deceased may have intended them to constitute a part of his will because they deal with or touch upon matters that constitute the will as originally executed. For example, on the one hand, if a testator were to add the occupation of a witness to the will after the due execution of the will, the alteration may be considered a redundant exercise because s 8 of the Wills Act does not require the occupation of a witness to be expressed. It could be argued that the testator could not have intended that the will as so altered should constitute his will. On the other hand, it may be that the testator wished that additional information to be clearly expressed on his will, for good reason. It may become necessary after his death to easily identify and make contact with the witnesses to the will, should any questions concerning its validity arise and affidavits be required of them.

47 The words that appear in Panel 2A appear to be a reference to the subject matter of the words in Panel 1B (as amended) by the insertion of the letter "r" in the word "returned" and the provision of a full stop after the words "not here" in the last line of Panel 1B, which have been included as part of Panels 3A and 2A respectively. They clarify the terms of the original will which effect a testamentary disposition. The substantive words in Panel 2A may not, themselves, effect any testamentary disposition of property, but they do constitute an "alteration" to the original will in order to express a wish or desire of the testator concerning the way in which his property should be cared for following his death. In any event, as Theobald on Wills (supra) at p 25 shows, a paper containing wishes and a dying request has been allowed to take effect as a testamentary disposition: In the Goods of Lowrey (1847) 5 N of C 619; In the Goods of Mundy (1860) 2 Sw&T 119.

48 Similarly, the words that appear in Panel 3B, while effecting no separate testamentary disposition of property, constitute an alteration to the will and have the effect of confirming that the testator's son, John, is to be the executor of it, albeit that he is to receive "help" from Mr Ludby, the grandson of the testator. In any event, at common law, the naming of a person as executor is by implication a gift to the executor of the personalty to enable payment of debts and to do in relation to the deceased's personal property what the deceased can no longer do: Hardingham Neave and Ford, Wills and Intestacy in Australia and New Zealand (supra) at [103].

49 The words that appear in Panel 3C also constitute an alteration to the original will and involve a testamentary disposition. They make it clear to whom the testator has bequested "all medals (war etc)" and "all coins around house ... and special china etc" under the will, namely, the testator's son, John. These words do not appear to contradict any other provision of the will or alterations made and to which reference has already been made. They are confirmatory of the other provisions.

50 Not all of the words that appear in Panel 3D appear to constitute a testamentary disposition of property, but they do constitute an "alteration" to the will if the view is taken that the will has been added to by those words. They constitute matters about which the deceased wished to express his views upon his death for the lasting benefit of his family. He plainly intended that those words be read and communicated to his family upon his passing. The reference to "The Last Supper" is a reference to a wall hanging. As such, it is an item of property that will be affected by the other substantive provisions of the will. The testator's views concerning the person or persons who should have the care of that item have been expressed for the benefit, no doubt, of the executor or executors of the will. Accordingly, they should properly be considered alterations made to the will in order to express a testamentary intention.

51 I also consider that the will, as altered by the words in panel 3F, where the deceased has added the former occupation and address of one of the witnesses, was intended by him to constitute his will. For the reasons explained above, such information may properly be contained in a will as it may assist in the identification of a witness should it later become necessary to contact the witness with questions touching on the validity of the will. That these words of themselves do not embody some particular testamentary disposition is not to the point.

52 I am satisfied that the deceased intended the will as altered to constitute his will. Even though the directions printed on the stationer's form advise that, should any alteration be requisite, the right course will be to write a fresh will, and that against every alteration and interlineation the testator and witnesses must sign their names, the fact is that the testator went to the trouble in the middle of the words appearing in Panel 1 to add the exception that constitutes Panels 3E and 1D, and also went to the trouble immediately before the words that appear in Panel 1C on page 2 of the document to insert the words that appear in Panel 3A. In the case of the words appearing in Panel 3A, the deceased subscribed his initials adjacent to the words. It is true that the deceased did not go to the trouble of subscribing his signature or initials to the words in Panel 1D. However, given that, in my view, those words were probably written at the same time as the exception noted in the words in Panel 3E on page 1, they should be read as part of that exception, it is clear enough that, by including the exception in that way, the deceased intended that the original will be read by reference to the exception and the words written on page 4 (page 4 at that point probably being the only remaining blank portion of the document large enough to include them, with the possible exception of the portions in which the words that now appear in Panel 3D appear). Of course, if the view is taken, as suggested above, that the words that appear in Panel 1D and Panel 3D were written at the same time, then the signature that appears in Panel 3D is good for the words that appear in Panel 1D as well.

53 I consider the appeal should be allowed. The will as altered, that is to say, the original "Will" with all of the additional words that have been written on it by the deceased, should be the subject of a grant of probate in common form. I direct that the Registrar should seal a grant of probate of the will of the deceased in common form on the basis that the will comprises the whole of the original "Will" lodged for probate with all the words printed or written thereon by the deceased.

Non-Contentious Probate Rules 1967

Amendment (Master, Supreme Court) Act 1979

Re Estate of John William Henry Nicholls (Dec) [2003] WASC 85 (12 May 2003)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (82 paragraphs)

Re Estate of John William Henry Nicholls (Dec) [2003] WASC 85 (12 May 2003)

Nature of "appeal" under r 5 of the Non-Contentious Probate Rules 1967

Nature of "non-contentious" proceedings in Probate

Whether a grant of probate in common form is appropriate

The will of the deceased and his alterations thereto

Whether s 35 of the Wills Act 1970 applies to alterations

Legislation Cited (6)

Cases Cited (5)