Supreme Court of WA|2007-07-30|Before: Johnson J

THE PUBLIC TRUSTEE -v- WHITWORTH & ORS [2007] WASC 170 (30 July 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE PUBLIC TRUSTEE -v- WHITWORTH & ORS [2007] WASC 170

MOLLEY ROSE PRALL by her guardian ad litem KARL PRALL

The Court pronounces in solemn form for the force and validity of the will propounded by the plaintiff

Grant of letters of administration with the will annexed

1 JOHNSON J: The Public Trustee, the plaintiff in this action, seeks orders from this Court with respect to the estate of Stefan Daniel Prall ("the deceased") who died on 14 April 2002 from injuries suffered in a motorcycle accident. The deceased left two documents which purport to set out his testamentary intentions.

2 The first document ("the first informal will") is in the form of a letter addressed to the first defendant, Caroline Joy Whitworth (identified in the document as "Caz"), who was in a relationship with the deceased from 21 March 1991 to May 2000. The document is dated 15 June 1995, is signed by the deceased and includes a statement that the deceased is of sound mind. However, there are no attesting witnesses and hence the document does not meet the requirements for a valid will set out in s 8 of the Wills Act 1970. The sole beneficiary under the first informal will is Ms Whitworth.

3 The second document ("the second informal will") is an unsigned and undated typed document described as a will, which also does not meet the requirements for a valid will. Under the second informal will Ms Whitworth receives the house and household goods and any monies remaining after payment of testamentary expenses and debts as well as a motorcycle of her choice. However, she does not receive all the motorcycles, which are described in affidavit evidence before the court as a collection of several vintage motorcycles. Neither does Ms Whitworth receive the deceased's mechanical hand tools. The deceased expresses the wish in the second informal will that the "motor bikes are if wanted are [sic] to be kept in the Prall family" and the mechanical hand tools are to be "divided up amongst the Prall 'Boys' if desired". If the mechanical tools are not so desired then they are stated to go to Mikal James William Whitworth, "if he desires them". Mikal James William Whitworth, the third defendant, is Ms Whitworth's son from a former relationship.

4 The plaintiff seeks orders that the Court pronounces in solemn form of law for the validity of the second informal will and a grant in solemn form of law to the plaintiff of Letters of Administration with the Will annexed. A defence was filed on behalf of the second named second defendant, Karl Prall, the deceased's brother, and the fourth defendant, Molley Rose Prall, the daughter of the deceased and Ms Whitworth. In the defence, the death of the deceased and the existence of the second informal will are admitted. However, the allegations in the statement of claim that the second informal will did not comply with the requirements of Part III of the Wills Act 1970 and that the deceased intended the second informal will to constitute his will are neither admitted nor denied. The second named second defendant and the fourth defendant require that the second informal will be proved in solemn form.

5 The fourth defendant was born on 25 May 1997. The fourth defendant is not named as a beneficiary in either the first or second informal will. The fourth defendant would take solely in the event of an intestacy. As the fourth defendant is only 10 years old, the second named second defendant, has consented to act as her guardian ad litem. The second named second defendant has disclaimed and renounced any and all estate and interest, real or personal, in the deceased's estate to which he may have been entitled under the second informal will. Prior to the issue of the writ of summons, the second named second defendant gave notice to the Public Trustee of his intention to apply as next friend of the fourth defendant for an order under s 6 of the Inheritance (Family and Dependants Provision) Act 1972 ("the Inheritance Act"). By letter dated 12 September 2006, the solicitors for the second named second defendant informed the Public Trustee and the Court that all defendants had agreed to a compromise, inter alia, of the intended claim on behalf of the fourth defendant under the Inheritance Act.

6 For completion, I should note that the first named second defendant is Derrick Ian Prall, the deceased's father. Derrick Prall and Karl Prall were joined in the proceedings as representative members of the Prall family. Further, there was no appearance at the hearing on behalf of any defendant and the court was advised that, in view of the agreement reached between the defendants, no appearance was anticipated.

7 The affidavit evidence of Ms Whitworth is that the first informal will was written by the deceased, whose handwriting she recognises, on the date identified in the document. She states that she believes that the deceased intended the document to be his will because the tragic death of a friend in a motorcycle accident had caused them both to discuss the need for a will.

8 Ms Whitworth further deposes to the fact that the second informal will was created after the first informal will on a date she cannot recall but, as it makes no mention of the child of the deceased and Ms Whitworth, the belief expressed by her is that it was created between the date of the first informal will of 15 June 1995 and 25 May 1997 when their daughter, Molley Rose Prall, the fourth defendant, was born. According to Ms Whitworth, the deceased first hand-wrote his wishes in draft form and gave the draft to her to read. She then saw him type an exact copy on his old typewriter. The draft was then given to her by the deceased. Ms Whitworth states that, despite searching her belongings she has been unable to find the draft.

9 In her affidavit Ms Whitworth expresses the belief that the deceased intended the second informal will to be his will. That belief is said to be based on her memory of her conversations with the deceased to formalise the document legally with provision for her son, the third defendant, who is said to have been considered and treated by the deceased as his own.

10 As Ms Whitworth is not the sole beneficiary of the second informal will, her statements that the second informal will was created by the deceased after the first informal will, and that the deceased intended the second informal will to be his will, are statements against her interests. That fact, in my view, lends support to her evidence. Further, there is no evidence before the Court to contradict her version of events. Neither is Ms Whitworth's version of events inherently improbable, something which can lead to the rejection of evidence even in the absence of evidence to the contrary.

11 On that basis, I am satisfied that the second informal will is the most recent document and revokes any earlier testamentary instrument: Wills Act 1970 s 15(1)(b), s 15(2). Therefore, provided the Court is satisfied of the matters set out in s 34 of the Wills Act 1970, the second informal will is the appropriate document with respect to which the type of orders sought by the plaintiff should be made.

12 Part X of the Wills Act 1970, in which s 34 is found, is remedial in the sense that it seeks to provide a mechanism by which the true intention of a person can be put into effect despite the absence of the statutory formalities: Shields v Caratozzolo (1991) 6 WAR 1 per Nicholson J at 11. A remedial statute is to be given a broad construction and one which will serve to achieve the broad objects and purposes which Parliament had in mind: The Estate of Kevin John Hines v Hines [1999] WASC 111 at 5 - 6.

13 Section 34 of the Wills Act 1970 states:

"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 section 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his will."

14 It is apparent from the plain words of the section that the threshold requirement under s 34 is that the relevant document does not meet the formal requirements for validity set out in s 8. In this case, as noted above, the document is neither dated, nor signed nor witnessed, deficiencies which are apparent on the face of the document. In determining whether a document operates as a will of the deceased it must then be established that the deceased knew and approved the contents of the document and intended the document to constitute his will: see also The Estate of Kevin John Hines v Hines (supra) per Owen J at 6. The standard of proof required to establish these elements is the civil standard: Owen v The Public Trustee in and for the State of Western Australia as Executor of the Will of Arthur Owen (Deceased) [2006] WASC 276 at [34] - [35].

15 I am satisfied on the affidavit evidence of Ms Whitworth that the deceased knew and approved the contents of the document. The deceased was seen by her to hand-write a draft and then type an exact copy on his typewriter before providing her with the draft copy. As to whether the deceased intended the document to constitute his will, there are a number of factors which support that conclusion. The document is described in the text as a will made by the deceased. The document directs how the deceased's estate is to be distributed. That distribution is not dissimilar to the first informal will, with the exception of express reference to the motorcycles and the tools. Also, it is apparent from the form and content of the first informal will that the deceased had in the past prepared a document, intended to be his will and intended to direct the manner in which his estate is to be distributed, without recourse to formality.

16 For these reasons I am satisfied on the balance of probabilities on the affidavit evidence before me that the requirements of s 34 have been met.

17 No issue has been raised by any party with respect to the considerations applicable to determining whether a person has testamentary capacity: see Banks v Goodfellow (1870) LR 5 QB 549 at 565 per Cockburn CJ. The testator clearly understood the extent of the property of which he was disposing and, keeping in mind that the fourth defendant had not been born at the time the second informal will was made, the document is consistent with an appreciation of the claims to which the deceased ought to give effect. No issue has been raised of lack of mental capacity or lack of understanding of the nature and effect of the act of making a will. Neither is there any matter in relation to the deceased's age or cause of death which would raise any concern of that nature. I am therefore satisfied of all the considerations essential to the exercise by the deceased of testamentary capacity.

18 For these reasons I am satisfied that the orders sought by the plaintiff should be granted. I have been provided with a memorandum of orders which, with appropriate amendments, I will now make as orders in this action:

The Court pronounces in solemn form for the force and validity of the will propounded by the plaintiff, the second informal will, as the will of Stefan Daniel Prall.
There be a grant to the plaintiff of letters of administration with the will annexed.
The parties' costs of the application be paid from the estate. Those costs to be taxed, if not agreed.

(Family and Dependants Provision) Act 1972

THE PUBLIC TRUSTEE -v- WHITWORTH & ORS [2007] WASC 170 (30 July 2007)

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THE PUBLIC TRUSTEE -v- WHITWORTH & ORS [2007] WASC 170 (30 July 2007)

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