Section 8 of the Act
137In view of the acceptance of the conclusion that the May 2012 Will was not duly executed, and as the deceased died in 2012, these proceedings are governed by s 8 of the Act, rather than by s 18A of the Probate and Administration Act. Section 8 applies to wills whether made before, on, or after, 1 March 2008, if the deceased died on, or after, that date: Schedule 1, Clause 3(3) of the Act.
138Section 8 of the Act provides:
"(1) This section applies to a document, or part of a document, that:
(a) purports to state the testamentary intentions of a deceased person, and
(b) has not been executed in accordance with this Part.
(2) The document, or part of the document, forms:
(a) the deceased person's will - if the Court is satisfied that the person intended it to form his or her will, or
(b) an alteration to the deceased person's will - if the Court is satisfied that the person intended it to form an alteration to his or her will, or
(c) a full or partial revocation of the deceased person's will - if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.
(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:
(a) any evidence relating to the manner in which the document or part was executed, and
(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.
(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).
(5) This section applies to a document whether it came into existence within or outside the State."
139The Act does not comprehensively define a Will. As noted above, s 3(1) of the Act simply defines "Will" as including "a codicil and any other testamentary disposition". It is not necessary that the document said to be a Will should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient if it is intended to dispose of property, or of rights of the deceased, in a disposition that is to take effect upon death, but, until then, is not to take effect but is to be revocable.
140Although usual, it is not legally essential to find a clear statement identifying the document as a Will: Romano v Romano [2003] NSWSC 436, per Bryson J, at [6] - [8]. In this case, however, the May 2012 Will was clearly described as such.
141It will be observed that s 8(3) permits a wider enquiry than the analysis of the form and content of the subject document. The sub-section enables the court to consider evidence of the manner in which the document was executed as well as the deceased's testamentary intentions and statements made by her or him. Those necessarily contemplate sources extraneous to the subject document itself.
142It has been noted by Slattery J in Yazbek v Yazbek [2012] NSWSC 594:
"[77] There is no substantive difference between Succession Act, s 8 and its legislative predecessor Probate and Administration Act 1898 (NSW), s 18A. Since the commencement of Succession Act, s 8 this Court has continued to apply the cases considering the requirements of Probate and Administration Act 1898 (NSW), s18A: cf Bell v Crewes [2011] NSWSC 1159 at [23] per White J; Stone & Drabsch v Pinniger [2011] NSWSC 795 per Nicholas J; National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees [2011] NSWSC 559 at [16] - [17] per Windeyer AJ; Vincent Zang v Deborah Middleton [2011] NSWSC 881; The Estate of Keith Joseph Cook [2011] NSWSC 881 at [7] per Slattery J; Cornish v O'Dell; In the Estate of O'Dell [2010] NSWSC 678 per Slattery J; Estate of Johnston [2010] NSWSC 382 at [5] per Slattery J.
[78] The requirements for execution under Probate and Administration Act, s 18A and therefore Succession Act, s 8 are well established: (a) there must be a document; (b) which purports to state the testamentary intentions of the deceased; and, (c) which the deceased intended to form his will. These principles are discussed in Estate of Masters (1994) 33 NSWLR 446 per Kirby P and Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56] per Powell JA and the cases described in the previous paragraph."
143In Re Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446, Mahoney JA, at 462, wrote:
"Secondly, s18A should, as I have indicated, be given a beneficial application. There are, in the history of this branch of the law, many cases in which the intention of the deceased has not been able to be given effect. That is an evil which should be remedied as far as may be. It may be understood why the legislature decided not to give testamentary effect merely to any statement of testamentary wishes, however casually stated and even if it was not contemplated that legal results would follow. The consequences of that as far as concerns proof and otherwise, can well be imagined. But the benefits of the change should not be withheld by requiring too rigid a manner of proof that what was put in a document should have legal effect. If a document is on its face such as contemplates legal effect, ordinarily it should be given effect unless - as in this case - there are contexts or circumstances that lead to the contrary conclusion."
144(While Mahoney JA dissented in the result of that case, the majority did not disagree with his Honour's exposition of the law, which seems no different in principle to those propositions of law articulated by the majority.)
145Even earlier, in speaking of the similar legislation in Western Australia, Nicholson J, in In the Will of Lobarto Shields v Caratozzolo (1991) 6 WAR 1, at 8, observed:
"The plain and natural meaning of s (32) read in conjunction with s 8 permits it to be applied (where the evidence permits it) to validate a document unsigned by the testator."
146Slattery J, in In the Estate of O'Dell [2010] NSWSC 678, at [33], wrote that the "Succession Act s 8 should not be applied with too stringent a requirement of proof that a propounded document otherwise clearly embodying the testamentary intentions of the deceased does constitute his will", citing Kirby P in Re Estate of Masters (Deceased); Hill v Plummer. The section is curative of any technical non compliance with the part of the Act dealing with execution. This should not be taken to mean, however, that the statutory formalities enshrined in the Act are to be unduly relegated in importance: Belcastro v Belcastro [2004] WASC 111, at [6]; Estate of Peter Brock [2007] VSC 415; (2007) 1 ASTLR 127, at [20].
147In Re Estate of Masters (Deceased); Hill v Plummer, Priestley JA, at 466, wrote that the particular questions for determination, are "essentially questions of fact".
148The burden of proof of all issues relating to s 8 is on the party propounding the informal document and is to be satisfied on the balance of probabilities. In deciding whether it is so satisfied, without limiting the matters that may be taken into account, the court is required to take into account that these are Probate proceedings (the nature of the cause of action); that the size of the estate is substantial, but not large (the nature of the subject matter of the proceeding); and the difference between the two documents, being the March 2012 Will, propounded by the Plaintiffs, and the May 2012 Will, propounded by the Defendant (the gravity of the matters alleged): s 140 Evidence Act 1995 (NSW).
149In this regard, however, there can be no doubt, and the parties agreed, or accepted, in the present case, that the May 2012 Will:
(i) Was a "document", within the meaning given to the term by Interpretation Act 1987 (NSW), s 21, which includes (a) anything on which there is writing, or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them.
(ii) Was not executed, or witnessed, in conformity with the formal requirements of s 6(1) of the Act. (Execution "is the validation of a document by going through the formalities required by law for that purpose": Estate of Williams, Deceased (1984) 36 SASR 423, at 425.)
(iii) Purported to state the testamentary intentions of the deceased.
150In regard to the last matter, reference should be made to Re Broad; Smith v Draeger [1901] 2 Ch 86, at 91 - 92, in which Kekewich J, in dealing with a marriage settlement which provided that property should be disposed of as the wife should direct, or appoint, by deed, will or codicil, or any writing in the nature of or "purporting to be a will" or codicil, said:
"What is the meaning of the expression 'purporting to be' a will or codicil? ... [T]he question here is whether a document which is in form and substance a will, but which, because it was not duly executed as such, fails to be a will, in the legal sense, is or is not a document which 'purports', to be a will... This document... is on the face of it a disposition of property made in contemplation of death, and it only fails to be a will because the maker of it did not comply with the requirement of the Wills Act that the witnesses should be present when she signed it. I think, therefore, that I must hold that this document... is one which 'purports' to be a will."
151In Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd [1994] FCA 1059; (1994) 51 FCR 446, at 452, Hill J, in dealing with the (now repealed) Corporations Law 1989 (Cth), said:
"The word 'purport' is defined relevantly in the Macquarie Dictionary (2nd Rev Ed) as:- '1. To profess or claim: 'a document purporting to be official'. 2. To convey to the mind as the meaning or thing intended; express; imply.'"
152In Re The Estate of Masters (Deceased); Hill v Plummer, Priestley JA pointed out, at 469, that:
"A document in which a person says what that person intends shall be done with [his/her] property upon death seems to me to be a document which embodies the testamentary intentions of that person."
153In Yazbek v Yazbek, Slattery J said, at [83]:
"Testamentary intentions are an expression of what a person wants to happen to his or her property upon death: Re Trethewey [2002] VSC 83 at [16] per Beach J. In the context of informal wills 'a document in which a person says what that person intends shall be done with that person's property upon death seems... to be a document which embodies the testamentary intentions of that person': Re Estate of Masters (1994) 33 NSWLR 446 at 469 per Priestley JA. Furthermore, although dissenting in the decision, Mahoney JA defined testamentary intentions as 'how property is to pass or be disposed of after... death': Re Estate of Masters (1994) 33 NSWLR 446 at 455 per Mahoney JA."
154There is an additional element to be established by a person propounding a document pursuant to s 8 of the Act. That is, the deceased must also have intended the document to form her Will. Thus, in this case, for the May 2012 document to be admitted to Probate, the Defendant must establish, on the balance of probabilities, that deceased intended that it operate as her Will; that is, it was intended by her to govern the disposition of her property, or some of it, after her death.
155Mahoney JA, in Re Estate of Masters (Deceased); Hill v Plummer, at 455, in the context of the former Act, put the matter this way:
"Section 18A(1) requires not merely that the document propounded 'embody the testamentary intentions of' the deceased but also that the deceased 'intended the document to constitute his ... will'. For the section to operate, the Court must be satisfied that the intention was that the document operate, in the sense to which I shall refer, as an actual act in the law.
There is, in principle, a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will. A will, like, for example, a contract, a deed, and a sale, is, as it has been said, 'an act in the law'. It is something to which the law attaches the legal consequences of that kind of transaction: ... Ordinarily, a transaction will or will not be an act in the law of the particular kind according to whether it was of the relevant form or nature and was intended to operate as such. Thus, a document which is in form a will will not operate as such if it is, for example, a draft or 'a trial run', not intended to have a present operation. A person may set down in writing what are his testamentary intentions but not intend that the document be operative as a will. This may occur, for example, in informal circumstances, in a letter or a diary or the like. What is to be determined in respect of a document propounded under s 18A is whether, assuming it to embody the testamentary intentions of the deceased, it was intended by the deceased as his testamentary act in the law, that is, to have present operation as a will."
156Finally, it is important, in this regard, to remember what Wrangham J said, long ago, in In the Estate of Knibbs, Deceased; Flay v Trueman [1962] 2 All ER 829; [1962] 1 WLR 852, at 855 - 856:
"As Salter J said in Beech's case (In the Estate of Beech, deceased [1923] P 46 at 57):
'I think that, in order to constitute a will, the words used by the testator must be intended by him, at or after the time when he uses them, to be preserved or remembered so as to form the guide to those who survive in carrying out his wishes.'
In other words, in order to be a testamentary act there must be a statement of the deceased's wishes for the disposition of his property after his death which is not merely imparted to his audience as a matter of information or interest, but is intended by him to convey to that audience a request, explicit or implicit, to see that his wishes are acted on."
157It is sometimes difficult to assess the intentions of a person who has left no specific directions, or indications, relating to his, or her, Will. All that the court can do, in those circumstances, is to look at such facts as are available, in order to determine what was more likely to have been intended by the deceased in respect of the document concerned: In the Estate of Stewart (Supreme Court (NSW), Cohen J, 12 April 1996, unrep).
158In Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, Powell J noted, at 539-540:
"4. ... 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.
It will, I think, be apparent from what I have said - and, as well, from the declarations which I have already made in similar matters which have been referred to me since my appointment as Probate Judge - that, in cases where the subject document is either wholly written out, or, being on a will form, has been filled in, in the handwriting of the relevant deceased, and in cases where the subject document bears the signature of, or some mark made by, the relevant deceased indicating his intention to adopt it as his own, I would have little difficulty in finding myself satisfied that it was intended by the relevant deceased that the subject document should constitute his will. Where, however, the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased, was, in truth, no more than 'instructions', or a note of 'instructions', for a will (see, eg, In the Estate of Allan (Needham AJ, 24 September 1990, unreported); Cloonan v Allingham (Needham AJ, 14 December 1990, unreported) I would, I believe, find it very difficult, indeed, to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will."
159A signature, placed at the foot of a testamentary document would, in most cases, carry the implication that the testator intended the signature to give testamentary effect to the document: Wood v Smith [1993] Ch 90; [1992] 3 All ER 556, at 111.
160While dating a document is not necessary for it to be adopted by a person who causes it to be produced, dating is often an indication that the document is in its final form and intended to be operative: Re Estate of Kiepas (Deceased); Twemlow v Kiepas [2004] NSWSC 452.
161The document, itself, must also be considered in context (Estate of Gwendoline Myrtle Wray; The Public Trustee v Commins; Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353; The Estate of Silady (Supreme Court (NSW), Santow J, 21 November 1994, unrep)). An intention that the document be the Will of the person who wrote it may be inferred from the physical form of the document itself: The Estate of Kevin John Hines v Hines [1999] WASC 111; In the Estate of Margaret, Deceased, [2012] NSWSC 1490, at [31].