Succession - Probate and letters of administration - Grants of probate and letters of administration - To whom probate granted - Generally - Whether court satisfied that will is valid - Grant of probate in solemn form.

Wills Act 2008, s8, s10.

Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786

In the will of Wilson [1898] VicLawRp 39, (1897) 23 VLR 197

McFadyen v Bluett [2017] TASSC 72

Timbury v Coffee [1941] HCA 22, 1941 66 CLR 277

Judgment Number: [2024] TASSC 26

THE PUBLIC TRUSTEE v NATASHA FERGUSON and GEOFFREY CONNORS

1. This application relates to the estate of Rosemary Connors, who died on either 13 or 14 November 2022. Mrs Connors was aged 74 years at the time of her death.
2. Mrs Connors' estate consists almost exclusively of the estate of her late husband, who passed away in 1990. He left all of his estate to her.
3. In 2008 Mrs Connors made a will with the assistance of the applicant. The applicant was appointed as the sole executor of the will, and has retained possession of it. The will provides for some specific bequests to family members and charities, and leaves the residue in four equal parts, three to her children and the fourth shared equally between two of her grandchildren, who are the respondents to this application. They are both over 18 years of age. It appears from information provided to me that she had at least two other grandchildren.
4. The said will appears to have been correctly executed in accordance with the requirements of s 8 of the Wills Act 2008. I can therefore proceed on the basis that the usual presumptions concerning validity arise in repect of that will. In particular, I can assume that the testatrix had adequate capacity to make the will at the time of its execution. See cases referred to by me in McFadyen v Bluett [2017] TASSC 72 at 39.
5. Subsequent to Mrs Connors' death, the applicant came into possession of a copy of the 2008 will, which appeared to have been amended by Mrs Connors by hand. The amendment removes the first respondent as a residuary beneficiary. In particular, her name is crossed out of the relevant provision and there is hand writing that says:

"Not anymore its to all go to geoffrey natasha is a drug addict".

1. A signature appears under the amendment that seems, by comparison with her signature on the 2008 will, to be the signature of Mrs Connors. There is another signature and the name "Nicole" written above it. As I will describe, this is the signature of Nicole Button, who is the partner of the second respondent. The amendment is dated "3rd August 2022".
2. I should note at this point that while the first respondent was named as a residuary beneficiary, she was also left a specific gift, in particular of Mrs Connors' bed, in a different paragraph. That gift is unaffected by this amendment.
3. The applicant contends that the will as altered constitutes a new testamentary disposition by Mrs Connors. It seeks a grant of probate in solemn form together with a declaration "pursuant to Section 10 of the Wills Act 2008" that the altered will constitutes the last will of Mrs Connors. The declaration is not strictly necessary to achieve the outcome sought by the applicant. A grant of probate in solemn form will establish that the altered will is the last will of Mrs Connors. Section 10 does not require or provide for declaratory relief to that effect. The provision deems the document to be a will of the testatrix, notwithstanding lack of due execution, if the Court is satisfied beyond reasonable doubt that she intended the relevant document to constitute her will. The issue of its validity and whether that will is the last will of the testatrix does not arise under that provision. The Court will need to consider all of those questions, including the applicability of s 10, in determining whether the document containing the purported alteration is a will that should be the subject of a grant of probate in solemn form.

The section 10 issue

1. In practical terms, in order to find for the applicant in respect of the s 10 issue, I need to be satisfied of the following matters:
   • That the altered will is "a document purporting to embody the testamentary intentions" of Mrs Connors.
   • That Mrs Connors intended the document to constitute her will. I am required to be satisfied of this beyond reasonable doubt.
2. By s 10(2), in forming my view about these questions, I may have regard to evidence relating to the manner of execution of the alteration, and any evidence informing Mrs Connors' testamentary intentions, including evidence of statements made by her.
3. The requisite matters are clearly established by the affidavit evidence. The second respondent, his partner and a close friend of the testatrix have all affirmed affidavits. On the basis of that evidence, I am satisfied that the testatrix made a deliberate decision to remove the residuary gift to her granddaughter from her will. This was based on her belief that her granddaughter had a drug problem and was engaging in violence. The first respondent's partner attests to several conversations with the testatrix prior to the amendment of the will when she told her that she wanted to remove the first respondent as a beneficiary of her estate. She asked Ms Button to witness her signature on the amendment because she was of the view that it would be a conflict of interest for the second respondent to act in that capacity. Ms Button attests to the testatrix handwriting the amendment and both women signing the amendment, as it appears in the relevant document. The testatrix's friend recounts the testatrix informing her of a conversation she had had with the first respondent when she told her that she would be taken out of her will, and her granddaughter's angry and violent reaction to this. She was also told by the testatrix of her intention to remove her granddaughter from the will. I am satisfied beyond reasonable doubt that the testatrix believed that by altering the will in the way that she had and having it witnessed by the second respondent's partner, that this would satisfy relevant legal formalities. The fact that she was amending what was then clearly her last valid will and testament and doing so with a degree of formality puts this beyond doubt, in my view.
4. This was a clear testamentary act by Mrs Connors in an attempt to ensure that her testamentary intentions were reflected in the altered will. I am satisfied that the requirements of s 10 are met, and, accordingly, that the altered will constitutes a will of Mrs Connors.

1. As already noted, this finding is not of itself sufficient to warrant a grant of probate in solemn form. Such a grant represents a judgment of the Court in rem, that the will is the last valid testamentary disposition of the testatrix. It follows that the Court must satisfy itself that the will is valid. In a case where there has not been due execution, the Court cannot rely upon the presumptions as to validity already referred to by me, in particular that the testatrix had adequate testamentary capacity at the time that she made the will. These presumptions only apply where there has been due execution. Further, because of the public nature of the act, it is necessary that all persons who may have an interest in the making of such a grant are allowed a fair opportunity to be heard and that the grant in solemn form appropriately serves the due administration of justice: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at 248-249.
2. Accordingly, in order to proceed with such a grant, I must, in addition to the s 10 issue, also be satisfied of the following:
   1. That the will is valid in the sense that it was made by Mrs Connors when she had adequate capacity to do so.
   2. That it is the last valid testamentary disposition made by her, and
      1. That all persons with a relevant interest have been given the opportunity to be heard.
3. I will deal with the last point first. Clearly, there are several beneficiaries named in the 2008 will, apart from the two respondents. However, the respondents are the only ones affected by the alteration. I am satisfied that they have each been served with the originating application prior to the hearing. The second respondent has provided an affidavit which was filed on behalf of the applicant, and clearly supports the grant of probate of the amended will. The first respondent, who is the one most disadvantaged by probate being granted to the altered will, has not filed an appearance, and did not attend the hearing. I am satisfied that she has been given an adequate opportunity to be heard, but that she has declined to participate in the proceedings.
4. During the hearing, I also expressed the view that the other beneficiaries should be notified of the proceedings and, in particular, of the application for the grant of probate. Although their interests under the 2008 will are not affected by the amendment, the grant of probate will proclaim the whole of the amended will as the applicable testamentary document. Accordingly, I accepted an undertaking from the applicant's counsel to notify the other beneficiaries and provide the opportunity for them to notify their interest to make submissions if they wished to do so. I am informed that they were so notified, but that none of the recipients has indicated a desire to be heard prior to the grant of probate. Accordingly I am satisfied that all persons with an appropriate interest have been given the requisite opportunity.
5. I am satisfied from the evidence that has been filed that this was the last testamentary act of the testatrix prior to her death. The alteration was made on 3 August 2022. Mrs Connors passed away three months later. According to the deponents of the affidavits, her death was unexpected. It is clear that they were all in contact with her until her death and there was no suggestion that she was intending to make any further testamentary act. It is clear from all of the circumstances that having made the amendment in August, she felt that she had done all that was needed to express her final testamentary intentions.
6. In relation to testamentary capacity, the classic description of the requisite capacity comes from the recitation of Dixon JA in Timbury v Coffee [1941] HCA 22, 1941 66 CLR 277, a passage from the judgment of Hood J in In the will of Wilson [1898] VicLawRp 39, (1897) 23 VLR 197:

"Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner".

1. I am satisfied that Mrs Connors possessed capacity that accorded with this description at the time that she made the relevant alteration to the 2008 will. The close contact of each deponent with her until and at the time that she made that alteration in August supports this finding. They all attest that there were no issues with her mental capacity, that she was mentally sharp and well aware of the significance of the act. She had explained to them with precision why she wanted to make the change. It is beyond doubt that she knew what she was doing and why she was doing it.
2. Having regard to all the circumstances of this case, I am satisfied that it is consistent with the due administration of justice that I order that there be a grant of probate in solemn form. Because it is not necessary to make the declaration sought in the application, I will not do so. I make the following orders:
   1. That there be a grant of probate in solemn form to the applicant of the will executed by the testatrix on 21 May 2008 and amended by hand on 3 August 2022;
   2. That the applicant's cost be paid by the estate and be taxed on a solicitor and own client basis.