Wills - Probate - Testamentary instruments - Appeal against decision of Registrar dismissing an application for probate of an informal will - Whether document an informal will - Document prepared in accordance with a will kit but unsigned and undated - Meaning and effect of Wills Act 1970 (WA) s 34 - Whether deceased intended document to constitute his will - Onus and burden on applicant - Statements by deceased that will was unfinished - Court not satisfied that the deceased intended the documents to be his testamentary instrument

Wills Act 1970, s 34

Crossley v Crossley [1989] WAR 227

James v Burdekin (1990) 3 WAR 298

Malatesta v Scott, unreported; SCt of WA; Library No 940291; 15 June 1994

Perpetual Trustees WA Ltd v Gailey & Anor [1999] WASC 61

1 OWEN J : This is an appeal from a decision of the Probate Registrar made on 25 January 1999 in which the Registrar declined to make a grant of probate to the applicant.

2 The deceased, Kevin John Hines, died on 3 August 1995 in Queensland. He had been living with the applicant in a de facto relationship for approximately 17 years prior to his death. They had lived a relatively itinerant lifestyle, moving through Western Australia, Queensland and other parts.

3 The deceased had entered into a relationship with the respondent in 1958 and they married in 1970. There were five children of the marriage. In 1972 the deceased executed a will. In that will he appointed the Perpetual Trustees WA Ltd as the executor. The sole beneficiary of that will appears to have been the respondent. The relationship between the respondent and the deceased came to an end in 1980 when the deceased entered into, at least in a formal sense, the relationship with the applicant. There has been no contact between the deceased and the respondent since some time in 1981.

4 In approximately 1993 while the applicant and the deceased were living in Queensland, the deceased obtained a will kit. This consisted of a pre-printed will form, together with instructions for its completion and execution. The will kit includes some examples of dispositive clauses.

5 In an affidavit sworn on 21 December 1998 in support of an application for a grant of probate, the applicant has deposed to the fact that from time to time the deceased had told her that if he was to die, he wanted all of his property to go to her and that he did not want any of his property to go to the respondent.

6 In her affidavit of 21 December 1998, the applicant says:

"11. At a later time the Deceased produced the Will Kit and started to fill it out. I cannot remember the date on which he started to fill out the Will form, however I do know it was while we were living in the Whiterock property (after 1992). I was sitting at the dining table when he filled out the top part of the Will. After completing the top part of the Will, he put the Will Kit away again. I cannot recall precisely why he put the Will away, only that he must have needed to do something else.

12. I recall that after a number of months had passed, the Deceased then completed the bottom half of the Will Kit, using the kit and wording contained in the Will Kit. I recall that on both occasions, as he was completing the Will, he was asking me various questions as to how the Will should be completed. I recall stating to him on a number of times, "just follow the directions, and what those directions say".

13. After the Deceased completed the bottom half of the Will, he showed me what he had done, and then he said that he needed to find a couple of witnesses to witness and sign the Will. I recall that at the time we had some friends called Trevor and Dotty Miller, who lived nearby. He mentioned we should visit those parties, in order to execute the Will properly, and in accordance with the instructions set out in the Will Kit. I can recall we had a discussion about going to see Trevor and Dotty Miller, and we decided against it, as Trevor and Dotty were having marriage problems at the time. The Deceased later said to me that we should possibly consider seeing a solicitor with the Will, to make sure the Will was prepared properly.

14. The Will was then put away, and the Will was not taken out again by the Deceased."

That, it appears, was 1993. In 1995 the deceased was in Brisbane for a minor surgical procedure but he became unwell. The applicant visited him at the motel at which he was staying and I revert again to the affidavit.

"17. I arrived in Brisbane on the Wednesday night. The deceased was sick in a bed at the motel and he was lying in bed when I arrived. He had been bed ridden all day, however he was fully aware and had full capacity. I recall on that Wednesday night he stated to me I should have brought the Will he had prepared with me, so that the Will could be finished. I did not say anything in reply.

7 Perhaps at this stage I should say something about the nature of the procedures. This is, in effect, an application for the proof of an informal will under Part X of the Wills Act 1970 ("the Act"), and in particular s 34.

8 Under the Non-Contentious Probate Rules, in such circumstances a registrar can either accept the informal will for proof in common form or can refuse to make a grant of probate of the informal will or can refer the matter to a judge for the issue to be decided on summons. In this case, the Registrar took the second of those options and refused to make a grant.

9 On 25 January 1999 the Registrar advised the applicant's solicitors in these terms:

"The contents of paragraph 17 of the [applicant's] affidavit clearly indicate that the deceased regarded the Will(s) as unfinished. It cannot, therefore, be said that he "intended the document to constitute his will" because it cannot be concluded, on balance, that he had adopted the document. The fact that he knew the Will was incomplete and had been for two years is also consistent with him having had second thoughts. The application is refused."

It is that decision against which this appeal is brought. However, it seems to me that I should look at the issue afresh as if it had been brought to me on summons. In other words, I should consider whether this is a document that ought to be regarded as the last will and testament of the deceased under s 34 of the Act.

Wills Act Part X - General Principles

10 I do not understand the parties to be at odds on the general principles but nonetheless it will do no harm to restate them. Section 34 of the Act is in the following terms:

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

11 As I have already indicated, this section is in Part X of the Act headed "Informal Wills". Part X came into operation in 1987 and was introduced to allow a document which purports to be a testamentary instrument to be treated as the last will and testament of the deceased even though it has not been executed in accordance with s 8 of the Act.

12 There are three elements in s 34. First, there must be a document purporting to embody the testamentary intentions of the deceased, or to be put in the terms in which it is put by counsel for the applicant in this case, whether the deceased knew and approved the contents of the document in question. The second element is that the document must not have been executed in accordance with s 8. Thirdly, the Court must be satisfied that the deceased person intended the document to constitute his will.

13 There is in this case no difficulty with the second of those three elements. The deceased does not purport to have signed the will in any way and there were no witnesses, so it was not executed in accordance with section 8.

14 In relation to the first element there is a dispute between the parties as to whether the document or documents do embody any testamentary intentions of the deceased. There are two documents. The dispositive clause in one version says, "I give, devise and bequeath all my property whatsoever both personal to Patricia Anne Oswald, de facto wife, absolutely." In the other, the dispositive clause says, "I give, devise and bequeath all my property whatsoever both personal and real to Patricia Anne Oswald, my de facto wife, absolutely."

15 The only difference between the two versions is that the words "and real" have been added. I accept the submission made by counsel for the applicant that the logical and proper inference to be drawn is that the deceased realised he had made an error and did a second copy in which he added the words "and real" to comply with the example of the dispositive clauses contained in the will kit.

16 The respondent has deposed to her belief that she does not believe that the writing in the document is the writing of the deceased. Against that I have the affidavit evidence, to which I have already referred, of the applicant in which she says she was physically present at the time when the deceased completed the document, that is, when he wrote it out.

17 The solicitor for the respondent referred to certain specimen signatures of the deceased on transfer of land documents and sought to compare them with the handwritten name of the deceased in the first line of the will. He also sought to compare the printing on the will as opposed to printing in an invoice book which is an exhibit to a second affidavit of the applicant.

18 I need only say that I have no reason not to accept the evidence of the applicant that she was present and saw the applicant fill out the will form in 1993. To the extent that it is necessary I find on the balance of probabilities that the will forms were completed in the hand of the deceased at some time in 1993.

19 Also on the evidence contained in the applicant's affidavit I am satisfied that the deceased person knew of the contents of the document. That then, fulfils the first two of the three elements of s 34.

20 The final element is that the Court must be satisfied that the deceased person intended the document to constitute his will. This part of the Act is remedial in the sense that it seeks to provide a mechanism by which the true intention of the person can be put into effect even though statutory formalities have not been complied with.

21 Words used in the statute must, wherever possible, be given their natural and ordinary meaning. However, as a remedial statute the Act is to be given a broad as opposed to narrow construction and one which will serve to achieve the broad objects and purposes which Parliament had in mind.

22 It seems to me to be necessary to assess a s 34 application against a particular document. In that respect I respectfully agree with the dicta of Anderson J in Silvester v Tarabini, unreported; SCt of WA; Library 960062, 13 February 1996 at page 20. However, applying a broad meaning I think it is necessary to recognise that the inquiry is not directed at whether the deceased's intention was that a document constitute a will as such. It is directed at whether the deceased intended the document to have effect as a testamentary instrument : In the Will of Osborne; Hennessey v Osborne, unreported, SCt of WA (Commissioner Williams QC); Library No 7970; 4 December 1989 at 7.

23 Counsel for the applicant has referred to other cases as a guide to the types of situation in which s 34 of the Act can come into play. That is a valid exercise but it has to be approached with some caution. Each matter depends on its own facts and the authorities are more apt to describe general principles than they are as binding precedents from case to case.

24 Counsel referred in particular to Re Application of Brown, Estate of Springfield (1991) 23 NSWLR 535 in which Powell J said at 540:

"....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...I would have little difficulty in finding myself satisfied that it was intended by the relevant that the subject document was intended to be his will."

25 I have no doubt that that dicta reflects a general principle but, as I have indicated, regard must be had to the facts of each individual case. It seems to me that the situation here has to be looked at against all of the background facts. Counsel for the applicant referred to a series of cases in which there have been pronouncements in favour of informal wills. In all of those cases, counsel submitted, the evidence was not as compelling as it is in this case. Again, I must caution against placing too much reliance on prior cases because so much depends on the particular circumstances. However, in deference to the very careful argument of counsel for the applicant I will examine some of them. In Estate of Williams (1984) 36 SASR 423 a husband and wife prepared mutual wills. The husband signed his but the wife did not. However there was evidence of conversations involving the wife in which she made reference to the will in a way suggesting she regarded it as her will. The Court pronounced in favour of validity. In Estate of Richardson (1986) 40 SASR 594 a man committed suicide. When his body was found there was in close proximity to it an informal will and a note referring to the will. Again, the Court ruled the will was valid. In Re Vaux (1986) 41 SASR 242 the deceased had given instructions to an officer of the Public Trustee to prepare a will. A draft will was prepared in accordance with those instructions but the man committed suicide before seeing or signing the document. By his body was a piece of paper on which was writing referring to the Public Trustee and to an unsigned will. The court regarded these circumstances as sufficient to justify a finding in favour of validity. In Will of Lobato; Shields v Caratozgold (1991) 6 WAR 1 had left an unsigned will. There was evidence of telephone conversations in which the deceased had said she had made a final will in which she had left her property in the fashion reflected in the will. The court considered that this satisfied the elements of s 34.

26 There is, in each of these factual situations, evidence apart from the document itself, which could lead to a finding that the deceased, to use the language of Powell J in Brown, "authenticated or adopted" the will. I do not suggest that in the absence of independent evidence an unsigned will could never be regarded as a testamentary instrument to which s 34 applies. But it seems to me that the court must be able to infer from the circumnstances that the deceased adopted or authenticated the document such as to show that he or she intended the document to take effect as a testamentary instrument. The availability of independent evidence (and by that I mean evidence apart from the document itself) makes the task of proving the will considerably less difficult.

27 In applying the principles to the facts of this case I accept that there may be problems with the hearsay nature of some of this material. However, at least to some extent the impugned material reflects on the background rather than as going directly to findings that are necessary for the purposes of this application.

28 The deceased had, for all practical purposes, ended his marriage to the respondent. The deceased did, however, have five children of that marriage. The deceased had expressed a wish to benefit the applicant rather than his estranged wife. There is no evidence that the deceased had made any comment in relation to his dispositive intentions concerning his children.

29 Coming then to the situation of the will document itself, it is clear from the affidavit of the applicant that the deceased filled in part of the will form. He then left it for some months. He then filled in a further part of the will form. It is also clear that the deceased was aware that he would need to sign the will for it to take effect legally. He was also aware that his signature would need to be witnessed by two people for it to take effect legally.

30 Having discussed the identity of two possible witnesses, a conscious decision was taken not to sign the will or to seek their assistance as witnesses. The will was placed in a drawer. At the time when it was placed in the drawer, or at some stage after that, the deceased made a comment to the applicant, which the applicant related in her affidavit as being in these terms:

"The deceased later said to me that we should possibly consider seeing a solicitor with the will to make sure the will was prepared properly."

31 Nothing further was done in relation to the will and there is no evidence that there was any further conversation between the deceased and the applicant or any other person about the will. The day before the deceased died, he was unwell. This time he did raise the issue of the will, and again I will use the exact wording from the affidavit in which the applicant recounts the conversation, namely:

"I recall on that Wednesday night he stated to me I should have brought the will he had prepared with me so that the will could be finished. I did not say anything in reply."

32 The deceased died the next day. Counsel for the applicant presses on me that the only logical and proper inference to be drawn from the facts is that at the time when the will document was completed and the conversation took place about witnesses the deceased fully intended the document to take effect as a testamentary instrument. Counsel also presses on me that the only inference to be drawn from the comment that the deceased thought perhaps they should go to a solicitor to see that the will had been prepared properly was that the dispositive provisions were final and reflected his intention but that advice could be sought to ensure that the wording carried out or put into effect that intention. Counsel also submits that the words used by the deceased on the day before he died, "so that the will could be finished," could only relate to the execution of the will.

33 It does, it seems to me, come down to a fine point. The applicant bears the onus of proving that the deceased intended the document to constitute his will.

34 That is an onus which must be satisfied on the balance of probabilities. I can only go on the evidence that is before me and I can only operate on the words that the applicant has said represents her best recollection of the deceased's words. The deceased, it seems to me, knew that he had to have the will signed. There is no explanation given as to why someone other than the contemplated witnesses could not have been approached.

35 In those circumstances, and taking into account the comment that perhaps legal advice should be sought as to whether the will had been properly prepared, the deceased's actions and words are at very least equivocal as to whether he intended that document to take effect as a testamentary instrument. This equivocation, it seems to me, may well also be the explanation as to why nothing further happened in the approximately two year period that expired after those actions had been taken. Again the wording of the deceased on the day before he died is at least equivocal. He did not say" "bring the wills so they can be executed". The wording is "so that they can be finished".

36 In the end I am not satisfied on the balance of probabilities that the deceased intended this particular document to take effect as his testamentary instrument. In view of that finding it seems to me that the Registrar was correct in refusing to make a grant of probate of the unsigned and undated will form and for that reason the appeal must fail.