Probate - Letters of administration - Letters of administration with the will annexed - Proof in solemn form - Informal will - Lack of witnesses - Wills Act s 34 - Estate partially insolvent - Grant of letters of administration with informal will annexed

Administration Act 1903 (WA), s 12A, s 24, s 26, s 32

Life Insurance Act 1995 (Cth), s 205

Wills Act 1970 (WA), s 8, s 34

Grant of letters of administration with informal will of 26 March 2004 annexed

Hatsatouris v Hatsatouris [2001] NSWCA 408

In The Estate of Crossley (dec); Crossley v Crossley [1989] WAR 227

In The Estate of Dale (dec) v Wills (1983) 32 SASR 215

In The Will Of Lobato Shields v Caratozzolo (1991) 6 WAR 1

Mitchell v Mitchell [2010] WASC 174

Oreski v Ikac [2007] WASC 195

Re Ackland (1939) 11 ABC 60

Re Estate of Carter (dec) [1963] Qd R 45; [1963] ALR 176

Re Farley; Holden v Johnson [1933] VicLawRp 44; [1933] VLR 271

Re The Estate of Perriman (dec) [2003] WASC 191

Re The Estate Of Sean James Robbins (dec); Ex Parte Robbins [2008] WASC 243

Spencer v Spencer [2009] WASC 198

The Estate of Kevin John Hines & Anor v Hines [1999] WASC 111

The Public Trustee v Head [2003] WASC 91

1 EM HEENAN J: Stephen Laurence Rout, late of lot 163 Meagher Drive, Badgingarra in the State of Western Australia, roadhouse manager, deceased, died on 11 December 2007. He had been born on 13 August 1945 and was, therefore, aged 62 years and some months at the date of his death. The place of death at Meagher Drive, Badgingarra, has been recorded as the usual address of the deceased because he was, and for some years had been, the roadhouse manager at the Badgingarra Roadhouse on Brand Highway at that location. However, he and Ms Pamela Kathryn Riches (the plaintiff), his partner with whom he had been living for many years, also had a residence at lot 7 Chitty Road, Bakers Hill, where they apparently lived when not at Badgingarra. This address at Bakers Hill was where the testamentary document, the alleged will dated 26 March 2004, was kept and found.

2 The deceased had previously been married and divorced but the details of the place and date of that marriage and of the former wife are unknown. What is clear is that Pamela Kathryn Riches and the deceased had been in a continuous de facto relationship for about 23 years before the deceased's death in December 2007 and had, in the years leading up to his death, been partners in the ownership and conduct of the business of the Badgingarra Roadhouse.

3 At some time in 2003 or 2004 the deceased and the plaintiff together purchased a will form kits from a stationer or other outlet with the intention that each would make a will using those forms. They did this, the deceased completing his will form in manuscript, inserting his testamentary intentions and signing the document, but it was not witnessed by two witnesses, as required by s 8 of the Wills Act 1970 (WA) or at all. The plaintiff also made her own will in a similar fashion, although that document is not in evidence and it is not known whether it was correctly executed or not, but nothing turns on this. Both wills were then placed in a drawer in the house at Bakers Hill, the plaintiff's sealed in an envelope bearing the description 'Will Form', which came as part of the kit, and the deceased's with the envelope nearby but not inserted in it. That is how the deceased's will was discovered after his death.

4 The plaintiff now seeks to have the deceased's testamentary document of 26 March 2004 admitted to probate as an informal will under the provisions of pt X of the Wills Act. Because Mr Rout died on 11 December 2007, that is prior to the application of the amendments to the Wills Act effected by the Wills Amendment Act 2007 (WA), which came into operation on 8 February 2008, the provisions of the Act as it existed before those amendments apply to this case. Accordingly, it is s 34 of the Wills Act which applies rather than the statute as it presently stands which incorporates the amendments made by the Wills Amendment Act 2007. That section provided at the time:

34. Informal Wills

A document purporting to embody the testamentary intentions of a deceased person is a will of that person, notwithstanding that it has not been executed in accordance with s 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his will.

5 The terms of the document of 26 March 2004 which the plaintiff is propounding are as follows:

This is the last Will and Testament of me, Stephen Laurence Rout (name) of lot 7 Chitty Road, Bakers Hill (address) in the State of Western Australia:

1. I revoke all Wills and other documents of testamentary intent previously made by me. This is my last Will and Testament.
2. I appoint Jaimie McInnes (name) of .. to be executor or executrix and trustee of this my will.
3. I give all my worldy possions, my 351 cc V8 motor, all my Ford parts inc diffs and panels and my house and my property in partnership with Pam Riches X Anderson - my insurance and my superannuation, all goes to my beautiful woman who I thout understood me 4 20 years but mayby not. When Pam dies or whatever, give the lot to charity.

S L Rout

Undated

Unwitnessed

6 Despite the attestation clause not being dated, the uppermost backing sheet of the document when folded bears the words 'This is the last will and testament of' in manuscript 'Stephen Rout of lot 7 Chitty Road, Bakers Hill, dated 26-3-04' and hence the date attributed to the document.

7 The person named as executor and trustee of this will, James Duncan McInnes (in the will 'Jaimie McInnes') now of unit 3, 8 Miles Loop, Baynton, Karratha, Western Australia, has formally renounced all right and title to probate and execution of the will of the deceased and to the trust's powers and authorities whatsoever by the will expressed to be made or given to him. This was done by a document of renunciation signed by him on 11 February 2009 and filed in this court, Mr McInnes having also declared by that instrument that he had not intermeddled in the real or personal estate of the deceased. Accordingly, as the sole beneficiary of that alleged will the plaintiff, Pamela Kathryn Riches, seeks by these proceedings a grant of letters of administration with the will annexed.

8 The evidence is that Mr Rout died by his own hand, the death certificate bearing a notation that on 22 August 2008 the coroner determined that the cause of death was by ligature compression of the neck deliberately self-inflicted. The evidence, which I accept, is that over a period of some years before his death the deceased had been experiencing severe financial difficulties and had incurred a great amount of debt which, according to the plaintiff, was in large part due to his unrealistic and extravagant spending habits which involved him living well beyond their combined means. He had incurred an insurmountable debt in relation to the conduct of the Badgingarra Roadhouse and had also incurred a very substantial personal debt on his credit card account, to such an extent that he was, in all probability, hopelessly insolvent. However, neither he nor his estate has been declared bankrupt.

9 After Mr Rout's death the plaintiff attempted to carry on the business of the Badgingarra Roadhouse and to trade out of the difficulties into which the partnership with the deceased had led. She struggled on for some time but the task was beyond her and, eventually, she gave up the business and left Badgingarra, and has returned to the home at Bakers Hill.

10 It was Ms Riches who was the informant who supplied the information recorded in the deceased's death certificate. That makes reference to two children of the deceased, 'David William Astor, 28/5/1969, and Summer 12/12/U' which, so I was informed, meant that the deceased was believed to have a son, David, and a daughter, Summer, and that while the son's date of birth was believed to be 28 May 1969, the daughter's birthday was thought to be 12 December but the year of birth was unknown to Ms Riches. In her first affidavit sworn 20 March 2009 in support of her application for letters of administration with the alleged will annexed Ms Riches said, with regard to children of the deceased:

1. The Deceased left the following persons surviving him, namely:

(a) myself; and

(b) his children, being a:

(i) son, David William Astor Rout, who was born in 1969 and who lives in South Australia and with whom the Deceased had no parental or familial relationship for the twenty-three (23) years that I lived with the Deceased;

(ii) daughter, Summer Louise Pirrrottina, who is about twenty-six or twenty-seven years of age and with whom the deceased had no parental or familial relationship for the twenty-three (23) years that I lived with the Deceased and whom the Deceased only met for the first time two or so years before his death.

1. For the sake of completeness I reluctantly state that during his lifetime the Deceased at various times informed me that he questioned his paternity insofar as his son David and his daughter Summer were concerned.

11 In her later supplementary affidavit sworn 7 June 2010, addressing the requirements raised by the Probate Registrar in the course of a status conference, Ms Riches went on to say on this topic:

1. In relation to Rule 20A sub-rule R(1)(c), the full names, ages and addresses of all persons who may be prejudiced by the application of part X of the Wills Act are as follows:
   • David William Astor of 26 Livingstone Avenue, Prospect, in the State of South Australia, who is 41 years of age; and
   • Summer Louise Pirrottina of 3 Whitfeld Place, Geraldton in the State of Western Australia, who is 27 years of age

1. As stated in my March 2009 Affidavit, the Deceased always questioned his paternity of the said David William Astor and Summer Louise Pirrottina who were borne of different mothers. The Deceased never admitted to me his paternity of his alleged children and, furthermore, as was also stated in my March 2009 Affidavit, for the more than 20 years that I lived with the Deceased, he had no parental or familial relationship with either of his alleged children.
2. In relation to the Deceased's alleged son David William Astor, I only ever met him once and that was at the Deceased's funeral and in relation to the Deceased's alleged daughter, Summer Louise Pirrottina, I met her perhaps two or three times during the last two or so years of the Deceased's life when she would stop for fuel and food at the roadhouse in Badgingarra that the Deceased and I managed when she was travelling en route between Geraldton and Perth. The alleged daughter did not attend the Deceased's funeral.

12 In that same affidavit Ms Riches annexes a copy of a document entitled 'Westpac Financial Needs Analysis' dated 5 November 1996 which the deceased completed when seeking advice from the Westpac Banking Co at the Port Hedland branch when he was then living at Port Hedland and working as a plant operator. This form contained boxes or spaces for relevant information to be recorded in which it had been inserted that Pam Riches of the same address was one of the applicants, but under a box provided for children's names there was inserted the words 'No dependants'. The information had been sought and the details recorded by the bank officer on an application by the deceased to take out life insurance cover and it records a decision to take out life cover to the value of $125,000 in the event of the deceased's death.

13 In response to directions made by the Probate Registrar on 10 June 2009 notice of these proceedings was served upon the alleged son, David William Astor, and, separately, upon the alleged daughter Summer Louise Pirrottina. The documents so served comprised a true copy of the writ of summons, a true copy of the O 29A case management directions made by Registrar S Boyle on 10 June 2009, a true copy of the alleged will of the deceased made in 2004, a true copy of the statement of assets and liabilities of the deceased at the date of death, and a letter from the plaintiff's solicitors addressed, in the case of the alleged son, to Mr Astor and, in the case of the alleged daughter, to Ms Pirrottina.

14 Then followed a letter from the solicitors for Mr Astor seeking further information which was answered by the plaintiff's solicitors in December 2009, who also asked whether those solicitors would accept service of any future documents in the proceedings if David William Astor might become a defendant. No further response has been received from those solicitors or from Mr Astor.

15 The solicitors acting for Ms Summer Louise Pirrottina wrote to the plaintiff's solicitors in an attempt to negotiate a financial consideration for which the said Summer Louise Pirrottina would offer her written consent in terms of r 20A(2) of the Non-Contentious Probate Rules 1967 (WA). A financial consideration was not agreed and no further communication has been received from such solicitors or from Ms Pirrottina since the plaintiff's solicitors last wrote in October 2009. No action has been taken by either Mr Astor or by Ms Pirrottina to be joined as a party to this action or to apply for letters of administration or for any other grant of representation of the estate of the deceased. Neither has appeared or attempted to be heard in these proceedings.

16 There is, of course, no mention of either of the supposed children of the deceased in the informal will which is being propounded. Nor is there any other evidence of the deceased acknowledging either of these supposed children. There being no other will or testamentary document of the deceased discovered or known of after a detailed search made by the plaintiff, this means that if the alleged will of 26 March 2004 is not an effective testamentary instrument and therefore cannot be proved, the deceased would have died intestate. That would then raise the question of who would be entitled to apply for letters of administration of the intestate estate and who would be entitled to share in distribution of any available assets of that estate.

17 The answer is provided by s 24 and s 12A of the Administration Act 1903 (WA) respectively which, so far as is material, provide that where a deceased dies intestate leaving only a surviving spouse, including a de facto spouse, but no issue, parent, brother, sister or child of a brother or sister, the surviving husband or wife shall be entitled to the whole of the intestate property (s 14, table item 4). If, however, the deceased died intestate leaving a spouse, including a de facto spouse and issue, then the surviving spouse shall be entitled to the first $50,0000 of the intestate property and one-third of the balance with the issue taking, equally between them, the remaining two-thirds of the balance in excess of $50,000 (s 14, table item 2).

18 In this case, there is no evidence that the deceased left any brother or sister of him surviving or that there are any children of a brother or sister of him surviving.

19 Nevertheless, by s 12A(2)(b)(i) of the Administration Act it is provided that where any person dies intestate as respects all or any of his property, for the purpose of determining who is entitled to participate in the distribution of that part of his estate to which the intestacy applies, the relationship between the child and his parents shall be determined irrespective of whether the parents are or have been married to each other, and all other relationships, whether lineal or collateral, shall be determined accordingly but that in any proceedings where a person relies on any such matter of fact relating to his or her relationship with the deceased:

(b) where the parents are not, or have not been, married to each other, the relationship between a child and his parent, and all other lineal or collateral relationships, shall be recognised only -

(i) if parentage is admitted by or established against the parent in his lifetime; and

...

20 Accordingly, in the circumstances of this case, this means that for either David William Astor or Summer Louise Pirrottina to establish any entitlement to obtain letters of administration of the deceased's, on this hypothesis, intestate estate, or to participate in distribution of that, on this hypothesis, intestate estate he or she would need to establish that the deceased had admitted paternity during his lifetime or that his paternity had been established during his lifetime. No attempt has been made to establish either of those criteria and the evidence before the court, such as it is, is that no such admission was ever made by the deceased. That being the case, there is no basis to conclude that either of the supposed children would be entitled to a grant of letters of administration or to participate in distribution of the estate of the deceased if, in fact, he had died intestate.

21 In the statement of assets and liabilities prepared in accordance with r 9B of the Non-Contentious Probate Rules which is annexed to the plaintiff's affidavit sworn 20 March 2009 Ms Riches sets out the deceased's assets and liabilities. The only asset was his half-interest in the partnership trading as the Badgingarra Roadhouse which was put at $49,829.50. As against that, however, there were substantial liabilities. These comprised a partnership liability to trade creditors and financial leases of $247,341, other liabilities to the Westpac Banking Corporation for a home loan, to the Australian Tax Office, on a Westpac Visa credit card and other credit liabilities plus funeral expenses to an aggregate of $443,934.58. On those figures, it is clear that the estate is, or will be, insolvent and that there will be no surplus available for distribution to any beneficiary either under the alleged will or on an intestacy.

22 However, as previously mentioned, the deceased had, some years before his death, taken out a term of life policy upon his own life. The evidence, comprising a letter from Westpac Life Insurance Services Limited to the plaintiff's solicitors dated 21 May 2008 is that there are:

(a) a term life policy upon the life of the deceased then for a sum insured of $189,566; and

(b) an investment only policy under the name of the deceased for an estimated investment amount then of $8,487.87 but which fluctuates daily.

23 The life insurance company associated with Westpac indicated a readiness to pay out on those policies upon the supply of relevant documents including a certified copy of a grant of probate or letters of administration.

24 By virtue of s 205 of the Life Insurance Act 1995 (Cth) if the proceeds of life insurance policies become payable to an estate of a deceased person, then those moneys are not liable to be applied or made available under any judgment, order or process of a court or in any other manner whatsoever in payment of the deceased's debts unless permitted by circumstances designated in s 205(1)(b) of the Act. Assuming that the moneys payable by the life insurer are indeed payable pursuant to policies of life insurance, rather than endowment or accident insurance policies - see Re Farley; Holden v Johnson [1933] VicLawRp 44; [1933] VLR 271; Re Estate of Carter (dec) [1963] Qd R 45; [1963] ALR 176; Re Ackland (1939) 11 ABC 60; and Re The Estate Of Sean James Robbins (dec); Ex Parte Robbins [2008] WASC 243 - then the proceeds of those life insurance policies will not be available to the creditors of the deceased and would, instead, be distributed in accordance with the will or, should they apply, the laws of intestate distribution. The practical effect of this, therefore, is that the only assets available for distribution to the beneficiaries of the deceased, whether under the alleged will, or an intestacy, are the proceeds of these life insurance policies and, if that occurs, there will be very little left to satisfy the claims of the deceased's creditors.

25 It is now possible to identify the sole relevant issue for decision in these proceedings, namely whether or not the unwitnessed testamentary document of the deceased dated 26 March 2004 satisfies the requirements for an informal will under s 34 of the Wills Act as it then stood in December 2007.

26 Despite the lack of formal execution, because of the absence of signatures of witnesses, of the alleged testamentary document of 26 March 2004, that document will satisfy the description of a will of the deceased if this court is satisfied that the deceased intended the document to constitute his will - s 34 of the Wills Act. For the court to be so satisfied, it must be proved on the balance of probabilities that three elements are established: The Public Trustee v Head [2003] WASC 91 [37]. The first is that there must be a document purporting to embody the testamentary intentions of the deceased; secondly, and of necessity, it must not have been executed in accordance with s 8 of the Wills Act; and, thirdly, the court must be satisfied that the deceased intended the document, without more on his or her part, to constitute his will: In The Will Of Lobato Shields v Caratozzolo (1991) 6 WAR 1; In The Estate of Crossley (dec); Crossley v Crossley [1989] WAR 227; Hatsatouris v Hatsatouris [2001] NSWCA 408 [56]; and Oreski v Ikac [2007] WASC 195 [105].

27 The phrase 'that the deceased person intended the document without more on his or her part, to constitute his will' is found in several authorities, including Oreski v Ikac and appears to have its origins in the decision of the New South Wales Court of Appeal in Hatsatouris v Hatsatouris being followed in this State in Re The Estate of Perriman (dec) [2003] WASC 191 [18].

28 It is, however, not found in the Wills Act itself, either in s 34 as it stood in 2007 or in s 32 as it presently stands. I adverted to this in Mitchell v Mitchell [2010] WASC 174 [42] in order to emphasise that this test is one which emphasises that the alleged testamentary document will not take effect, even as an informal will, if it is in any way provisional, tentative, preliminary or part of some proposals which this deceased has recorded or received but has not yet adopted as recording his or her then present testamentary intentions. In this case, it does not seem to me that any issue about this requirement arises because the will document of 26 March 2004 shows no sign that the deceased contemplated that anything more should be done to complete or perfect the testamentary document. In this, clearly, he was mistaken in believing that the will had been properly executed in accordance with the requirements of s 8 of the Wills Act and obviously he disregarded the instructions for having the will witnessed in the presence of two witnesses, which instructions were printed on the back of the will form itself and where the document contained specified spaces where the necessary two witnesses were intended to sign.

29 However, the general tenor of the manuscript portions of the document completed by the deceased indicate that his spelling and grammar were not fully developed and that his degree of literacy may not have been high. More importantly, however, is the evidence that the document was part of a commercially prepared will kit and that the deceased and the plaintiff had purchased such kits together, and that she had completed her own will, and that the document completed by the deceased was put in safe keeping with the plaintiff's will in a drawer at the home at Bakers Hill and kept there until the death of the deceased. The plaintiff has recognised and confirmed that the manuscript writing on the document is that of the deceased. The document bears the title 'The Last Will And Testament Of Stephen Rout' and the language used by the deceased is apt to be of testamentary intention, including references to all his 'worldy possessions'. It has been signed personally by the deceased which is a strong indication that its contents were adopted and endorsed by him - Spencer v Spencer [2009] WASC 198 [28] and there is no reason to suppose that it was merely 'speculative or deliberative': The Estate of Kevin John Hines & Anor v Hines [1999] WASC 111. Furthermore, there is the evidence of the plaintiff that during her life together with the deceased, which extended for over 20 years, the deceased had often mentioned that she would be 'looked after' if he should die and the dispositions proposed in the document are appropriate and responsible having regard to the deceased's position in life and his known attitude and sense of responsibility: In The Estate of Dale (dec) v Wills (1983) 32 SASR 215, 216. There is no suggestion of a revocation and no marriage or divorce subsequent to the date of the alleged testament.

30 I am, therefore, satisfied that, despite the fact that the alleged will of 26 March 2004 was not witnessed by two witnesses as required by s 8 of the Wills Act, it nevertheless embodies the testamentary intentions of the deceased and is a document which he intended to constitute his will. Accordingly, I am satisfied that it should be the subject of a grant of representation in this case.

31 The defendant, James Duncan McInnes, is the named executor to this informal will but has taken no steps to act as or to accept the responsibilities of an executor of the deceased's estate. Mr McInnes was informed of the death of the deceased and the fact that he was named as executor in the informal will by letter dated 11 February 2008 from the solicitors for the plaintiff but, as stated, he has not responded by seeking to prove the will. He formally renounced any right to probate by the instrument of renunciation dated 11 February 2009 already mentioned. Accordingly, by virtue of s 32 of the Administration Act, his right in respect of the executorship has wholly ceased and the representation to the testator and the administration of this estate shall go devolve and be committed as if Mr McInnes had not been appointed executor.

32 There being no other executor named and the plaintiff being the de facto spouse and principal beneficiary, I am satisfied that she is eligible to apply for letters of administration with the informal will annexed. As previously set out, the supposed children are not eligible to share in an distribution in the event that there were an intestacy and are not named in the will. There being no other beneficiaries entitled, I am satisfied that the plaintiff, Pamela Kathryn Riches, should be granted letters of administration with the informal will of 26 March 2004 annexed, accompanied by a declaration that that document constitutes the effective will of this deceased as I have already concluded.

33 There is then a question as to whether or not the plaintiff should be required to produce sureties to guarantee any loss which might be occasioned in the administration of the deceased by breach by the administratrix of her duties under s 26 of the Administration Act. The circumstances in which such sureties or guarantee is required are expanded upon by r 27 of the Non-Contentious Probate Rules which, by r 27(1) provides that such a guarantee shall not be required except in certain specified categories of instances. None of these applies in the present case as the applicant administratrix is of full age, resident in Western Australia, and the sole beneficiary under the informal will. I am, therefore, satisfied that no sureties or guarantee of the plaintiff's performance of the duties of administration in this case are necessary.

34 For these reasons, therefore, I am satisfied that there should be a grant of letters of administration with the informal will annexed to the plaintiff and that there be a declaration that the informal will of 26 March 2004 is the effective will of the deceased. There will be an order for the grant to issue in a form to be settled by a Probate Registrar, with liberty to apply to the court to resolve any issues about the form of the grant should the need arise. The costs of these proceedings being an expense in the administration should be paid out of the estate.