Re Serar [2019] VSC 139 (6 March 2019)

2 The deceased's estate is valued at $451,596 comprising a property at Maidstone, a motor vehicle and funds in bank accounts.

3 By originating motion filed 28 June 2018, the plaintiff sought a grant of probate of the will of the deceased dated 18 September 2017. The document produced by the plaintiff was a copy and the Registrar of Probates required the application to be amended by adding the phrase 'but limited until the original will or a more authentic copy is filed in the proper office of the court'.

4 On 29 June 2018, the Registrar of Probates informed the plaintiff's solicitor, Mr Peter Renwick, that the will propounded for probate was invalid as it had not been executed in conformity with s 7 of the Wills Act 1997. The Registrar informed Mr Renwick that the Court is empowered to admit such a document to probate if it is satisfied that the deceased intended the document to be his last will or in certain circumstances the Registrar may exercise the powers of the Court under s 9 of the Act if satisfied that all persons who would be affected by the decision consent to the powers being exercised by the Registrar. The Registrar also required a comprehensive affidavit setting out the persons who would be affected by the application and whether there was a prior will of the deceased.

5 The informal will appoints the plaintiff as executor and the deceased's brother, Abdulaziz Serar, as alternative executor should the plaintiff be unable or unwilling to act. After the payment of debts, the residue of the estate is divided between the plaintiff and Abdulaziz equally.

6 The informal will consists of three typed pages and a cover page. Page one provides that the document is the last will and testament of Abdulkadir Serar. At the foot of page one and two are spaces for the signatures of two witnesses and of the testator. The names and signatures of Osman Ismail and Abdifataah Hirsi appear as witnesses on each page. Their names and signatures are not in original ink. A signature in original ink occupies the space identified as 'testator' on each page, along with the date 18 September 2017.

7 Page three has witness attestation clauses, which provide the details of Mr Ismail and Mr Hirsi but not their signatures. Again, these details are not in original ink. A signature of the testator appears in original ink beside the date '18 September'.

8 Mr John Benedetti, the lawyer who drafted the informal will, deposes that the informal will bears the original signature of the deceased, but not of the two attesting witnesses. The application also included an affidavit of Mr Ismail, one of the attesting witnesses.

9 By letter dated 20 July 2018 the plaintiff's solicitor, Mr Peter Renwick, informed the Registrar that four of the deceased's siblings lived overseas and the plaintiff was not confident that all of the overseas siblings would be able to be contacted. Mr Renwick requested the Registrar to 'review his position' as to the grant of probate of the informal will. The Registrar duly informed Mr Renwick that, without the consents, the Registrar was unable to exercise the powers of the Court, referring to r 2.09 of the Supreme Court (Administration and Probate) Rules 2014.

10 On 14 September 2018, Mr Renwick wrote to the surviving siblings of the deceased seeking their consent to the application.

11 On 10 October 2018, the Court emailed Mr Renwick, noting that the further material identified by the Registrar was yet to be filed and, in addition, further information was required as to whether the deceased had a prior will or whether his estate would pass on intestacy and, if so, who would be entitled to share in the estate on an intestacy. It was also noted that the deceased's death certificate names a child of the deceased, 'Jiblil Abdul', and that the status of the child needed to be addressed.

12 On 14 October 2018, Mr Renwick filed an affidavit setting out and annexing the consents of the siblings obtained thus far. All of the siblings replied to the correspondence of 14 September 2018, except a surviving brother of the deceased who resides in Somalia, Abdirashid Serar. However, at least three of the replies received could not be considered as evidence of consent as: the consent of Abdulaziz Serar was confirmed when he met with him, the consent of Asha Serar was confirmed when he met with her, and he received an email reply from Abdullahi Serar stating 'I accepted for this letter my phone number is ...'.

13 Mr Renwick also deposed that he had received instructions that the deceased had been married twice. The first marriage was in Somalia prior to 1986 and the deceased and his wife had a son, Jiblil Abdul, by this marriage. In 1986, the deceased's first marriage ended and he left Somalia to come to Australia. The deceased's first wife and Jiblil Abdul are said to have died in or about 1989. The second marriage was to a Ms Muhubo Yusuf Ereg. That marriage ended in divorce on 15 October 2006. Mr Renwick also deposed that he had received instructions from the plaintiff that the deceased had not made an earlier will.

14 On 12 October 2018, the Court directed the plaintiff to obtain the outstanding consents of the deceased's siblings.

15 On 8 November 2018, the Court emailed the plaintiff's solicitors requesting an update in relation to the plaintiff's attempts to obtain the consent of Abdirashid Serar.

16 On 14 November 2018, the plaintiff filed the original affidavit of Mr Renwick, a further affidavit of Mr Benedetti, and his own further affidavit. In his further affidavit, the plaintiff deposed that Abdirashid lives in Somalia, is nomadic and does not have access to a means of sending his consent in written form, although he had previously advised that he can receive emails via his telephone. Abdirashid had not received Mr Renwick's correspondence, but he was said to have provided his consent to the application verbally.

17 On 7 December 2018, the Court forwarded a lengthy email to the plaintiff's solicitors raising concerns in relation to the application in its present form. These concerns included that there was no evidence from the second witness, as to the deceased's testamentary capacity, the death of the deceased's child or whether there were any prior wills of the deceased. In addition, the Court informed the solicitors of the evidentiary inadequacies of some of the matters set out in Mr Renwick's affidavit.

18 Some two and a half months later, the plaintiff's solicitor filed further affidavits, being the affidavits of Mr Hirsi, Asha Serar, Dr Ahmed Dawood, Ahmed Serar and a further affidavit of Mr Renwick, all filed on 21 February 2019.

19 Mr Benedetti deposes that in or about mid-July 2017, he received instructions from the deceased to prepare a will. He did not provide any details of any communications that may have occurred prior to or at that time. An initial email sent by Mr Benedetti on 30 March 2017 commenced 'Dear Abdulaziz Thanks for your instructions' and attached a 'client information form and will questionnaire'. An email dated 19 July 2017 then sought 'the full name and address of the person making the will'. The email address to which the correspondence was sent appears consistent with that of the deceased's brother, Abdulaziz Serar.

20 On 25 July 2017, Mr Benedetti emailed a draft will to the deceased for his approval. That email also sought clarification of 'to whom Mr Serar wishes to leave his estate if neither of his brothers survive him'.

21 Mr Benedetti deposes that on 12 August 2017 he then forwarded by email to the deceased the final version of the will together with instructions on the process of signing the will. That email states, inter alia:

... Please ensure you and your witness follow the will instruction sheet attached.

Please ensure that Abdulkadir signs the will before two adult independent witnesses.

22 Mr Osman Ismail deposes that he was one of the witnesses to the will. He deposes that the deceased was known to him as a member of the Somalian community. On the day that he signed the will, the date of which is unspecified, Mr Ismail received a telephone call from the deceased who was in a café with Mr Abdifataah Hirsi. According to Mr Ismail, the deceased said that he wanted Mr Ismail to be a witness to his will. The deceased and Mr Hirsi then met Mr Ismail in his office, which was above the café. The deceased presented the will to Mr Ismail to sign, and he signed the document on the first and second page, before completing his details on page three. The will was already signed by Mr Hirsi. Mr Ismail deposes that he did not realise that the deceased was yet to sign the will.

23 Mr Ismail also deposes that prior to the will being made by the deceased, the deceased had discussed the contents with him. The deceased was said to have spoken about leaving all of his estate to the plaintiff, who had eight or nine children. After further discussion, the deceased was said to have informed Mr Ismail that the plaintiff had said 'that it was not right to leave all of the estate to him and that the estate should be shared between the deceased's siblings'.

24 Mr Hirsi deposes that he is Abdulaziz's friend and he has known Abdulaziz for more than ten years. He deposes that Abdulaziz telephoned him and asked whether he was available to be a witness for his brother's will. Mr Hirsi was dining at a restaurant in Flemington and Abdulaziz and the deceased attended on Mr Hirsi at the restaurant a short time later so that Mr Hirsi could witness the deceased's will. The date of the meeting is unspecified. Mr Hirsi deposes that the will with which he was presented 'had been signed by the other witness, Osman' prior to him signing. This is contrary to Mr Ismail's version of events, where he deposed that Mr Hirsi signed the will first.

25 Mr Hirsi deposes that he signed the will on the bottom of each page and wrote his name and address on the last page. The plaintiff's solicitor informed Mr Hirsi that the deceased did not sign the will in the first instance, and Mr Hirsi deposes that he was not aware of this when he signed the will. Mr Hirsi also deposes that he 'did not have any concerns as to [the deceased's] mental or intellectual capacity on the day the will was signed [by Mr Hirsi]', and that there was 'nothing in [the deceased's] demeanour to indicate that he was confused or in any way uncertain as to what he was doing in making the Will'. Mr Hirsi described the deceased as a quiet person who did not readily engage in conversation.

26 Mr Benedetti subsequently received the document that he had prepared for the deceased in the mail. It was signed by two witnesses, but not by the deceased. On 11 September 2017 Mr Benedetti emailed the deceased stating:

Please provide a copy of the Will signed by Abdulkadir Serar.

The Will you sent me is not signed by Abdulkadir.

27 Mr Benedetti subsequently received a further copy of the will in the mail but does not say who sent the document to him or on what date he received it. The copy will appears to be a copy of the document signed by the two witnesses, bearing original signatures of the deceased on each page. At the time of receiving the will, Mr Benedetti did not appreciate that the signatures of the witnesses were not original signatures.

28 The deceased died of natural causes on 7 March 2018.

29 Section 9 of the Act allows the Court to dispense with the requirements for execution that are set out in s 7. It is a remedial provision, and consequently should be given a broad construction. Care must be taken, however, to ensure that the statutory formalities for execution set out in s 7 are not unduly relegated in importance.[1]

30 Three criteria must be established for the Court to admit a document to probate in accordance with s 9:

(b) the document must express or record the testamentary intentions of a deceased; and

(c) the document must have been intended by the deceased to be her or his last will.[2]

31 According to the third criteria, the deceased must have intended the document to be a final will and not intended to make changes to it.[3] The intention of the deceased is a matter of fact and each case depends on its own facts and circumstances.[4]

32 The applicant must prove, on the balance of probabilities, assessing the evidence with care in accordance with Briginshaw v Briginshaw,[5] that the deceased wanted that particular document to be his or her final will and did not want any changes to it.[6] Evidence of the circumstances surrounding the creation of the document is admissible, as is direct evidence of testamentary intent.[7]

the ultimate inquiry remains, whether the document itself, the circumstances regarding its contents ... and other relevant circumstances ... lead to the conclusion 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.[8]

34 In addition to the requirements of s 9, common law principles including those surrounding testamentary capacity and knowledge and approval apply to informal wills.[9] However, in the context of a document that has not been duly executed, the usual presumptions as to testamentary capacity and knowledge and approval do not apply. The plaintiff submitted, relying upon Oreski v Ikac,[10] that the rebuttable presumption in relation to knowledge and approval of the contents of a will, ordinarily applicable to duly executed wills, applies in the context of informal wills. While the possibility that they may apply to informal documents in certain circumstances was raised in Oreski v Ikac,[11] it was unnecessary for the Court to resolve the issue.[12] In the circumstances, the Court should not depart from existing authority regarding the application of the presumptions.[13]

35 The principles surrounding testamentary capacity are well-established, the Court having to be satisfied that the deceased:

(a) understood the nature and effect of making a will;

(b) was aware of the general nature and value of his estate;

(c) was aware of those who would have a natural claim on his estate; and

(d) was able to evaluate and discriminate between such claims.[14]

36 Distinct from the question of testamentary capacity, determining whether a deceased person knew and approved of the will involves consideration of whether the deceased actually understood the will and its effect, such that it can be said that the will represents the deceased's testamentary intentions.[15]

37 The plaintiff submits that the Court should be satisfied on the evidence that the deceased intended the informal will to be his final will, pursuant to s 9 of the Act. The plaintiff emphasised the remedial nature of s 9, with reliance placed upon the following statement of Hollingworth J in Estate of Brock:

[w]here legislation is remedial, it should be given a broad as opposed to a narrow construction, one which will serve to achieve the broad objects and purposes which parliament had in mind. Here, parliament's clear intention was to avoid failure of the testamentary purpose caused by non-compliance with the formalities due to ignorance or inadvertence.[16]

38 The plaintiff submitted that a document exists that is described as the will of the deceased, that it has been prepared by a solicitor and signed by the deceased, and on the evidence of the plaintiff, the informal will records the intentions of the deceased and the deceased intended that document to be his will.

39 The deceased misunderstood the instructions from his solicitor, and made a clear attempt to rectify the problem when he was made aware of it. He inadvertently did not appreciate that he was signing a copy of the will. By his words and actions, however, the deceased evinced an intention that, without more, the informal will should have effect as his final will.

40 The plaintiff submitted that on the facts, there is no question that the deceased lacked capacity to make the informal will. His death was due to natural causes and there is no evidence before the Court that he was not capable of providing instructions or understanding the consequences of making a will. Rather, he was taking care to follow his solicitor's instructions, as best he knew how.

41 A preliminary concern of the Court has been to establish the status of the deceased's child. On this point, the plaintiff relied on an affidavit of the deceased's sister, Asha Serar, sworn 12 December 2018. Asha is unable to read written English, but understands spoken English. Her affidavit was read to her by Mr Renwick in the presence of her brother, Ahmed Serar. Asha deposes to being present when the deceased's son, Jiblil, passed away in Somali aged 11 years. The circumstances of Jiblil's death as deposed by Asha suggest that documentary evidence of his death may not be available. However, no evidence has been filed as to the reasons for this, such as an affidavit from the relevant embassy for Somalia as to the availability or otherwise of official death records in Somalia.

42 A second concern was whether the deceased had made any prior wills. On this point, Mr Renwick deposes to having conversations with four of the deceased's siblings, who confirmed they had neither located a prior will nor had any conversations with the deceased about a prior will. Mr Benedetti also confirmed with Mr Renwick that he had not made any previous will for the deceased.

43 The plaintiff seeks to rely on the following consents:

(a) the signed consent of Abdulaziz Serar, dated 13 December 2018, unwitnessed, although Mr Renwick deposes that it was signed in conference at his offices;

(b) the consent of Asha Serar in her affidavit sworn 12 December 2018;

(c) the signed consent of Abdullahi Serar, unwitnessed, dated 3 February 2019 and sent by email on 6 February 2019;

(d) the signed consent of Abdirashid Serar, unwitnessed, dated 21 January 2019 and sent by WhatsApp on 31 January 2019;

(e) an email from Shacni Serar, dated 20 September 2018, responding to Mr Renwick's explanatory letter, wherein she states 'I am OK with this';

(f) an email from Ahmed Serar, dated 17 September 2019, responding to Mr Renwick's explanatory letter, wherein he states that he gives 'full consent for the will to be admitted';

(g) an email from Hawa Serar, dated 27 September 2018, responding to Mr Renwick's explanatory letter, wherein she states that she is 'ok with latter [sic] even.my [sic] brother abdukarim serar'.

44 Turning to the substantive application, the informal will comprises a document, commencing with the words 'this is the last will and testament of me Abdulkadir Serar' before providing for the disposition of the deceased's property. As such, no issue arises in relation to the first two criteria of s 9.

45 In relation to the requirement that the deceased intended the informal will to be his last will, the following facts are pertinent. First, the content of the informal will is consistent with the document that the deceased presented to Mr Ismail and Mr Hirsi. Secondly, in the interaction with Mr Ismail, the deceased requested that Mr Ismail witness 'his will', and he appeared to be following the instructions provided by Mr Benedetti. Thirdly, the arrangements with Mr Hirsi were made through Abdulaziz, and Mr Hirsi does not depose to the deceased confirming the document was his intended will. Fourthly, after Mr Benedetti provided further advice that a copy of the will signed by Abdulkadir was necessary, he received the informal will, in which signatures appear in the spaces marked 'testator'.

46 However, there is no evidence confirming that the signature is that of the deceased, and no evidence regarding the circumstances in which he may have signed the informal will on 18 September 2017. The correspondence of Mr Benedetti refers to the deceased in the third person, suggesting that an intermediary was used in providing the final will and instructions. The evidence does not provide an explanation as to why this was so, in circumstances where the deceased could apparently both speak and write in English. Significantly, the note sent by Mr Benedetti on 11 September 2017 provides 'the Will you sent me is not signed by Abdulkadir', suggesting that someone other than the deceased posted the document signed by Mr Ismail and Mr Hirsi to Mr Benedetti. Mr Benedetti then refers to receiving the informal will in the mail, but there is no evidence in relation to who sent it.

47 The evidence of the deceased's testamentary capacity on or around 18 September 2017 is deposed to by Dr Dawood, the deceased's general medical practitioner. He deposes that the deceased's testamentary capacity was 'unaffected and he was capable of making his Will as at 18 September 2017'. He deposes to his understanding of the meaning of 'testamentary capacity', which largely aligns with the established principles. Dr Dawood does not provide any basis for his opinion, nor is there any evidence to any medical appointments or any other encounters the deceased may have had with Dr Dawood around the time the deceased signed the will.

48 The plaintiff also relies on an affidavit by the deceased's brother, Ahmed Serar, sworn 12 December 2018. Ahmed deposes to having visited the deceased at his home approximately two weeks prior to his death. The deceased was 'well', 'normal', and 'did not have any apparent medical difficulties'. Ahmed also deposes that the deceased had 'reasonably good English skills' and that he could 'read and write English'. Ahmed's evidence does not assist in determining the deceased's testamentary capacity at the relevant time. Mr Hirsi purports to offer conclusions as to the deceased's mental or intellectual capacity on the day Mr Hirsi signed the will. Notably, the deceased did not sign the will that day. Further, Mr Hirsi's description of the deceased as a person who did not readily engage in conversation makes it extremely difficult to assess mental or intellectual capacity even if he were qualified to do so.

49 Although the deceased is said to have provided instructions to Mr Benedetti, no detail is given in this regard and it appears that those instructions may have been conveyed through an intermediary. Accordingly, Mr Benedetti's evidence provides no insight into the testamentary capacity of the deceased to understand the nature and effect of making a will, his awareness of the general nature and value of his estate and those who would have a claim on his estate, and his ability to weigh up those claims.

50 There is also uncertainty raised in the context of an intermediary being used to communicate with Mr Benedetti and as a result of the informal will being posted to Mr Benedetti. These circumstances raise a suspicion that the deceased may not have known and approved of the contents of the informal will. Further, the contents of the informal will do not readily reflect the discussions that the deceased had with Mr Ismail - that is, the deceased spoke of wanting to leave his estate to the plaintiff entirely, but the plaintiff instead suggested that the deceased share his estate between his 'siblings'. The informal will does not reflect either of these outcomes, unless 'siblings' is limited to the plaintiff and Abdulaziz. The evidence surrounding the deceased presenting the will to Mr Ismail to be signed does not eliminate this suspicion.

51 The Court is not satisfied, on the balance of probabilities, that the deceased intended the informal will as posted to Mr Benedetti to be his will.

[1] Re Estate of Brock (2007) 1 Australian Succession and Trusts Law Reports 127, 131 [20].

[2] Fast v Rockman [2013] VSC 18, [46].

[3] See Re Rosaro [2013] 11 Australian Succession and Trusts Law Reports 6, 13 [36]; Equity Trustees Ltd v Levin [2004] VSC 203.

[4] Re Estate of Brock (n 1) 131 [23].

[5] [1938] HCA 34; (1938) 60 CLR 336, 362-3; Fast v Rockman (n 2) [48]; Re Estate of Robertson [2018] VSC 373, [26]-[29].

[7] Wills Act 1997 (Vic) s 9(3); Jageurs v Downing [2015] VSC 432, [17]-[18], quoting Re Springfield (1991) 23 NSWLR 535, 539, Application by Becroft [2009] VSC 481, [10].

[9] Re Hancock; Rennie v The Whippet Association of Victoria Inc [2016] VSC 496, [19]; Jageurs v Downing (n 7) [19]-[20].

[10] [2007] WASC 195, noting the appeal was dismissed, see Oreski v Ikac [2008] WASCA 220.

[11] [2007] WASC 195 [109]-[110] (Barker J).

[12] Ibid [113], his Honour reasoning that if the informal document is not that of the deceased, then the question of capacity evaporates. See also Public Trustee v Anglican Homes Inc [2007] WASC 204 [17]-[19].

[13] See Re Kelsall [2016] VSC 724, [22], citing Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 174-5 [168]-[171]; Re Hobbs [2017] VSC 424; see also Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813, [46] and discussion of Lindsay J in Re Estate of Wai Fun CHAN, Deceased [2015] NSWSC 1107, [18]-[24].

[14] Banks v Goodfellow (1870) LR 5 QB 549, 565; Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 566-7.

[15] Veall v Veall (n 13), 175 [173], 178 [179].

[16] Re Estate of Brock (n 1) [19]-[20].