Re Will and Estate of Brian Bateman [2011] VSC 277 (24 June 2011)

2 The question that now arises is whether the draft will (or alternatively the will instructions) should be admitted to probate on the basis that Mr Bateman intended one or other of the documents to be his will.[1]

3 The practical result of admitting the will into probate is the exclusion of the beneficiaries under a formal 1988 will.

4 The determination of this issue requires an analysis of the actions and statements of Mr Bateman as recounted by a number of individuals with whom he had contact in the seven months prior to his death. Having reviewed all the material which includes many affidavits of (and correspondence from) persons who will be affected by the orders I am asked to make, I am persuaded that Mr Bateman did intend that the draft will be his will and that probate of that document should be granted to State Trustees.

5 Although no one appeared to contest this application, it was clear from the correspondence received by the Court that there is a good deal of interest amongst Mr Bateman's friends and distant family in the Court's decision. In particular, the beneficiaries under the 1988 will are entitled to know why it is I have determined to grant probate of the draft will.

6 In the course of this application, many affidavits were filed by the interested parties. Much of the material contained in the affidavits, whilst providing useful background material, is irrelevant to this application. In addition, several of the affidavits contain statements replete with hearsay or gossip. So it is made abundantly clear to all those interested in the disposition of this application I have relied solely upon the factual material relevant to the creation of the draft will and the testamentary intention of Mr Bateman in relation to that document and the will instructions. The following represents my findings of fact.

7 Mr Bateman was born on 6 August 1941 and was 63 years of age at the time of his death.

8 He lived in a house in Magnolia Avenue St Albans, which he purchased in 1970 with his mother (who died in 1988). He never married.

9 On 18 January 1988, Mr Bateman executed a will[2] in which Tony Scully was appointed executor and trustee. The beneficiaries to the will were his three cousins, Christine Walker, Cathy Foley and Julie Jones,[3] and of his two friends, Jason and Lisa Morgan.[4] Mr Scully received a legacy of $3,000.

10 Tony Scully was married to Lynette McNab. He became acquainted with Mr Bateman through his mother in law, Irene McNab, a close friend of Mr Bateman.

11 Irene McNab is now 65 years of age. She has four children, including Lynette and her youngest daughter Debbie, born in August of 1974. Irene McNab met Mr Bateman at Mrs Valda Morgan's house in Deer Park in the early 1960's.

12 Debbie McNab is the mother of Irene Kayla McNab, born on 5 January 1990.

13 Since 1994, Irene, Debbie and Irene Kayla McNab have lived in Port Lincoln in South Australia.

14 John and Valda Morgan were close friends of Mr Bateman. Mr Bateman was groomsman at John and Valda's wedding. Lisa, born in 1963 and Jason, born in 1966 are the two children of their union. Jason is Mr Bateman's godson.

15 In early 2001, Mr Bateman was diagnosed with cancer and in 2002 treated at Peter MacCallum Hospital, sadly without success.

16 In July 2004, Mr Bateman contacted State Trustees. Subsequently, Mr Priam Nandan, a solicitor employed by State Trustees, visited Mr Bateman at his Magnolia Avenue house.

17 Mr Nandan assessed Mr Bateman as having full testamentary capacity to make a will, noting that "he appeared to fully appreciate the full extent and value of his estate. He appeared to know exactly who he wanted to benefit from his estate and he expressed this to me in a clear definite and rational manner". He also took the view that there was nothing in the instructions which indicated that Mr Bateman was under any pressure from family members or friends as to the disposition of his estate.

18 In relation to his testamentary disposition, Mr Bateman gave the following instructions to Mr Nandan which were recorded in a set of will instructions signed by Mr Bateman on that day:

During the course of our discussions Mr Bateman provided me with details of his assets. After confirming the full extent of his assets, I then asked Mr Bateman how he would like his estate to be distributed. He provided me with very clear directions regarding how he wanted his estate to be distributed. He indicated that he wanted his personal effects, motor vehicle and record collection to go to Debbie McNab but that if the gifts to her failed, he wanted Irene Kayla McNab to take the gifts. When I asked Mr Bateman what he wanted to do with his house, he told me that he wanted to gift the house to Irene Kayla McNab, but that if the gift to her failed, he wanted the house to go to Valerie Morgan. He wanted the residue of his estate to be paid to Debbie McNab, Irene Kayla McNab and Irene McNab equally.[5]

19 In the course of the meeting with Mr Nandan, Mr Bateman informed him that approximately $88,000 was held in his name in the Colonial Superannuation Fund and that he did not have a nominated beneficiary but "wishes to nominate friends the Morgans", referring to Jason and Lisa Morgan.

20 Mr Nandan gave advice to Mr Bateman in respect of the manner in which to effect that desire: by his execution of a Binding Death Benefit Nomination or, alternatively, a direction to his Trustees that the superannuation funds be distributed to the Morgans.

21 The will was drafted in accordance with the instructions in the following way:-

(a) the Magnolia Avenue house gifted to Irene Kayla McNab;

(c) his remaining personal chattels gifted to Debbie McNab;

(d) the monies standing to the credit of any bank account together with interest thereon gifted to Debbie McNab and Irene Kayla McNab in equal shares; and

(e) after the payment of estate debts and expenses the residue of the estate was left to Debbie McNab, Irene McNab and Irene Kayla McNab in equal shares.

22 The will instructions and the draft will appointed State Trustees as executor of Mr Bateman's estate.

23 At some point of time during 2004, as Mr Bateman's illness progressed, he moved in with Mrs Faye Thompson but had returned home, apparently, by September 2004.

24 On 17 September 2004, Mr Nandan forwarded the draft will to Mr Bateman.

25 Subsequently, probably in late September 2004, Mrs Yvonne Dickins and Mrs Valda Morgan visited Mr Bateman at the Magnolia Avenue house. Each of them signed the draft will as witnesses although, somewhat bizarrely, he did not sign the document.

26 The recollection of both Mrs Morgan and Mrs Dickins of Mr Bateman's remarks during that meeting confuses things. Mrs Morgan recalls Mr Bateman telling her that he was going to leave his money to Lisa and Jason Morgan and his house to Irene Kayla McNab.

27 Mr Bateman's condition worsened during 2004, and in January 2005 he was admitted to the palliative care ward of the Sunshine Hospital in St Albans.

28 At the hospital, he had regular contact with a Social Worker, Caroline Dewar.

29 Her evidence as to that contact is as follows:[6]

When the deceased came to the Hospital I asked him about next of kin and whether he had a Will. He told me that he had had no contact with any next of kin for many years and was adamant that he wanted to leave his estate to his friends. He told me that he had made a Will which one of his friends had signed and that they could follow through with it and look after his affairs when he was gone.

I did not receive any indication from the deceased that he had changed his mind about his Will.

In that conversation he told me that his affairs were in order. He told me he had seen State Trustees and he was content with the will he had made with them. I do not recall if it was in that or another conversation but he definitely expressed to me that he wanted his estate to go to his friends. He said that his friends would be able to carry out his wishes. He did not name his friends.

While Irene was present, Yvonne[7] showed me a "draft will" and I saw that it had not been signed by Brian Bateman himself. The fact was not brought to my attention by either Brian or the ladies who showed me the document but it was something I noticed for myself. Whilst I am not a lawyer, my common sense told me that if a document is not signed by the person there could be some complications with the document.

I felt that it was part of my general duty of care to Brian and other patients to make inquiries to see if they have finalised their affairs properly. I therefore called State Trustees of my own volition. I was not asked to do so by Brian nor by the ladies who showed me the document. When I spoke with a State Trustees' representative I became aware that the draft will had not been properly executed but that the instructions Brian had signed to make his will could be used as his last will. I did not discuss Brian's will further with him as by that stage he was too unwell. Brian passed away not long after I had had this discussion with State Trustees. I believe he died thinking his affairs were in order. (emphasis added)

30 The 1988 will had been taken by Mr Bateman to Faye Thompson's house and was located there after his death. The draft will was located in one of the buffet drawers at the Magnolia Avenue house.

31 It is necessary, if only for the sake of completeness, to mention several procedural steps that have occurred since Mr Bateman's death.

32 State Trustees, in 2005, applied for probate of each of the informal wills in common form.

33 In July 2006, Byrne J made orders granting the beneficiaries of the formal will leave to apply as defendants to the application for probate of the informal wills.

34 In September 2006, King J added Mr Scully as a defendant to the application.

35 Many affidavits were filed by the competing parties: the beneficiaries under the 1988 will, the beneficiaries under the draft will and the State Trustees.

36 In May 2008, the dispute over the estate and the wills was resolved with terms of settlement being signed. The gist of the settlement was that in return for payment of the legacy Mr Scully agreed to consent or cooperate with the State Trustees application for a grant of probate of either of the informal wills. Jason and Lisa Morgan also received a modest settlement sum. Mr Scully and Jason and Lisa Morgan also agreed not to make an application for probate of the formal will or any other testamentary document.

37 On 28 April 2011, Ferguson J made orders that Mr Scully, the Foleys and the Morgans be served with documents relevant to this application. Correspondence was received from a number of them but none sought to appear on this application.

38 Section 7(1) of the Wills Act provides:

(a) it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and

(b) the signature is made with the testator's intention of executing a will, whether or not the signature appears at the foot of the will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other."

39 However s 9 then provides:

(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 the 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.

Section 9(3) permits the Court to 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.

40 Whelan J in Equity Trustees Limited v Levin & Others (Supra)[8]said:

The document must be intended to be the legally operative act which disposes of the deceased's property upon their death. It cannot be a document intended as a personal memorandum or a note of intended instructions, it cannot be a draft or a "trial run.

41 Subsequently in Estate of Peter Geoffrey Brock; Chambers v Dowker[9] Hollingworth J said:

Section 9 is remedial in nature, meaning that it provides a means by which the court can give effect to the testator's true testamentary intentions, despite the fact that a will has not bee validly executed. Where 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.

Notwithstanding the remedial nature of the section, care must nevertheless be taken to ensure that the statutory formalities enshrined in the Act are not unduly relegated in importance.

42 In summary, as counsel for State Trustees submitted, the requirements for admitting an informal document to probate are as follows:[10]

1. there must be a document;
2. the document must record intentions which are testamentary intentions: and
3. the document must have been intended by the deceased to be his will.

43 There are, in my view, two important matters which demonstrate that Mr Bateman intended that the contents of the draft will be his testamentary disposition.

44 First, his meeting in July with Mr Nandan. It is clear from the will instructions, signed by him, that he intended to dispose of his assets in the manner recorded. It is also apparent that he intended those instructions to constitute his testamentary disposition. Whilst the question of the provision of the superannuation monies to the Morgans seems to have been left in the air, I am prepared to assume that, given the advice proffered by Mr Nandan, it was Mr Bateman's decision as to whether to give the appropriate instructions to the trustees of the superannuation funds or not. In any event, there is nothing to suggest that the will instructions do not reflect his testamentary intention at that time. The draft will was prepared in conformity with those instructions.

45 Second, and to my mind the most important piece of evidence, is that of Ms Dewar. She has no axe to grind; she is independent of all the competing parties. She came forward of her own volition fearing the bunfight that ultimately ensued. She is unequivocal in her two affidavits that Mr Bateman intended that the draft will give effect to his testamentary intention. No one has suggested that her account is anything other than accurate. No party has appeared to put in issue her version of events.

46 I put to one side the events surrounding the signing of the will by the two witnesses in September. That whole episode is somewhat bizarre and the affidavits filed by Mrs Dickins and Mrs Morgan are not entirely consistent. I do not mean there is a lack of candour, but rather that this whole saga has, perhaps, developed a life of its own which may, with the passage of time, have affected the memories of those involved. In any event, even if I accepted the accuracy of the accounts of what occurred in September, the evidence of Ms Dewar, as I have said, is unequivocal as to the testamentary intention of Mr Bateman in the month or so prior to his death.

47 I am not prepared to draw any inference one way or the other concerning the location of the 1988 will and the draft will respectively at the time of Mr Bateman's death.

48 It is not necessary for me to delve further into the factual material.

49 Probate should be granted of the draft will which reflects the testamentary intention of Mr Bateman.

1. Pursuant to section 9 of the Wills Act 1997, probate of the will filed with the Registrar of Probates on 30 May 2006 be granted to the Plaintiff the executor appointed therein.
2. The Plaintiff's costs of this application be paid or retained from the estate on a solicitor and client basis.
3. This order be authenticated by the Judge signing this order pursuant to Rule 60.02(2) of the Supreme Court (General Civil Procedure) Rules 2005.

[1] Section 9 of the Wills Act.

[5] Paragraph 3 affidavit of Priam Nandan February 2007.

[6] The extracted parts are drawn from the two affidavits sworn by Ms Dewar.

[7] I assume this refers to Yvonne Dickins and Irene McNab.

[8] [2004] VSC 203 [15].

[9] [2007] VSC 415.

[10] See In the Estate Of Masters, Plummer (1994) 33 NSWLR 446; In the will of Mark Edwin Tretheway [2002] VSC 83; Equity Trustees v Levin [2004] VSC 203; Estate of Peter Godfrey Brock; Chambers v Dowker [2007] VSC 415; and Prucha v Standing [2011] VSCA 90.