WILLS AND ESTATES - Application for grant of probate of informal will - Whether testator intended informal document to be will - Standard of proof - Fast v Rockman

1 Stuart Charles Rattle died on 9 December 2013 ('the deceased'). At the date of death, the deceased's assets were valued at $1,246,058 and the liabilities amounted to $192,998.

2 The deceased's domestic partner, Michael Anthony O'Neill ('Mr O'Neill'), was subsequently convicted of the deceased's murder and of arson, as Mr O'Neill had also set fire to their South Yarra property. He is currently serving a term of 18 years' imprisonment for these crimes.[1]

3 On 23 January 2014, a grant of letters of administration ad colligendum bona was made to the deceased's sister, Katrina Maree Lewin, for the purpose of enabling the sale of the deceased's property jointly-owned with Mr O'Neill in Musk, Victoria. Pursuant to further orders made on 4 April 2014, Ms Lewin sold the property and the proceeds of sale were held on trust by her solicitors.

4 On 4 February 2016, the deceased's mother and the deceased's two sisters issued a proceeding seeking an order that Mr O'Neill pay compensation, pursuant to s 85B of the Sentencing Act 1991.[2] The proceeding settled and, on 9 August 2016, orders were made that the application be withdrawn, with no order as to costs.

5 By originating motion filed 9 October 2015, the plaintiff seeks a grant of probate of the deceased's informal will dated 25 August 2006 ('the 2006 informal will'), or, alternatively, probate of the deceased's penultimate will dated 26 August 1996 ('the 1996 will').

6 The 2006 informal will was signed by the deceased in the presence of Mr O'Neill and Ms Katrina Holley, then an employee of the Rattle Group Pty Ltd ('the Rattle Group'). However, only Ms Holley attested and signed the will as witness in the presence of the deceased. Section 7 of the Wills Act 1997 ('the Wills Act') provides that a will is not valid unless it is signed by the testator in the presence of at least two witnesses who attest and sign the will in the presence of the testator at the same time. The will of a deceased person that fails to comply with the formal requirements for the execution of a will may be admitted to probate where the requirements set out in s 9 of the Wills Act are satisfied.

7 On 18 August 2017, the Court ordered that the originating motion, supporting affidavits, and a copy of the orders be served on the four residuary beneficiaries under the 1996 will and that any person named as a beneficiary under the 2006 informal will or the 1996 will have leave to be joined as a defendant in the proceeding. No person applied to be joined as a defendant to the proceeding. On 10 November 2017, the Court appointed independent contradictors to represent the interests of those beneficiaries under the 2006 informal will, the 1996 will and the intestacy beneficiaries.

The deceased's 2006 informal will and the 1996 will

8 The 2006 informal will was prepared by the deceased's solicitor, Mr Ulf Peter Lidstrom, who was employed at the firm known as McKean & Park (now McKean Park). Mr Lidstrom acted for the deceased from about 1992 to October 2006, at which time he ceased private practice. The 1996 will was prepared by a partner at McKean & Park.

9 The 2006 informal will appoints Mr O'Neill as executor, and failing his appointment, Equity Trustees Limited as substitute executor. Clause 3 refers to a letter given by the deceased to his trustees and bequeaths items of personal property to 'persons named in that letter'. After payment of all debts and testamentary expenses, the residue of the deceased's estate is left to Mr O'Neill. The informal will provides that, if Mr O'Neill does not survive the deceased by 30 days, then the estate of the deceased passes to the deceased's two sisters, Mr O'Neill's sister and the deceased's two godsons, and if more than one, in equal shares absolutely.

10 All of the beneficiaries under the 2006 informal will consent to a grant of probate of that will, save for Mr O'Neill's sister, Nora O'Neill, who is incapable of providing consent. By letter dated 24 April 2017, the solicitors for Ms O'Neill stated their support for the plaintiff's application in this proceeding.

11 The deceased's intestacy beneficiaries are his parents, Jill Mary Rattle and Kenneth Charles Rattle, who also consent to a grant of probate of the 2006 informal will.

12 The 1996 will appoints the deceased's parents as the executors and trustees of his estate. Under the 1996 will, the deceased's shares in Duarton Pty Ltd (now the Rattle Group) are bequeathed to his parents, an 18th century mirror is bequeathed to the deceased's friend, Robert Kenneth Doble, and his residuary estate is left to such of his nephews and nieces as shall survive him and attain the age of 21 years. Save for one nephew who is a minor, the residuary beneficiaries have attained the age of majority.

13 The 1996 will was signed by the deceased in accordance with the requirements of s 7 of the Wills Act.

14 Pursuant to s 9 of the Wills Act, the Court may admit an informal will to probate provided that the following requirements are satisfied:

(a) there must be a 'document';

(b) the document must express or record the testamentary intentions of the deceased; and

(c) the document must have been intended by the deceased to be his or her will.[3]

15 In respect of the 2006 informal will, the first two requirements are met as there is a document that records the testamentary intentions of the deceased. The remaining question is whether the deceased intended the 2006 informal will to be his will. The intention of the deceased is a matter of fact and each case depends on its own facts and circumstances. In considering whether the deceased intended the 2006 informal will to be his will, the Court must be satisfied that the deceased, by some words or act, demonstrated an intention that, without any alteration or reservation, the document should have effect as his will.

16 Section 9 of the Wills Act is a remedial provision, and as such, the Court should afford it a generous interpretation. However, the Court's approach should be tempered so as not to undermine the legislature's intention for wills to comply with the statutory formalities enshrined in the Wills Act.[4]

17 Where an informal will has been signed by only one witness, the Court will give weight to the fact that the witness was clearly summoned to act in that capacity.[5] Direct evidence of statements made by the deceased may be admissible as evidence of the deceased's intentions, including evidence of subsequent statements.[6] The Court may also consider evidence in relation to the circumstances surrounding the making of the will.[7]

18 The Court must also be satisfied that the deceased possessed testamentary capacity at the relevant time, as observed in Banks v Goodfellow:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.[8]

19 The Court must assess the requisite elements on the balance of probabilities, with careful reference to the principles espoused in Briginshaw v Briginshaw[9] and as those principles are applied under s 140 of the Evidence Act 2008.[10] Where an informal will is to be admitted to probate over a formally executed will, these principles dictate that reasonable satisfaction should not be attained by 'inexact proofs, indefinite testimony, or indirect inferences'.[11]

20 Mr Lidstrom deposes that the 2006 informal will is in the form he used when he prepared wills. It consists of three pages, each numbered sequentially. It is structured in a manner common to wills and includes many of the usual provisions found in a will, such as the revocation of any previous wills, the appointment of an executor, provision for the payment of debts and testamentary expenses and the disposition of the residuary estate.

21 On 10 October 2014, the deceased's mother and sister, Mrs Rattle and Ms Lewin, sought advice from Mr Bruce Cook, solicitor, in relation to the 2006 informal will. On that occasion, Mr Cook observed staple marks in the top left hand corner of the original 2006 informal will. The copy 2006 informal will has two staple marks in the top left hand corner.

22 Mr Lidstrom deposes that it was customary for the three pages to be stapled together but he does not specifically recall whether the 2006 informal will was stapled or whether it bore any additional staple marks. A former employee of the Rattle Group, Ms Jennifer Anne Addie, deposes that she photocopied the 2006 informal will on 13 December 2013 at a meeting with Mrs Rattle and Ms Lewin. Ms Addie recalls that the document was stapled at that time, but she does not recall if there were any additional staple marks or if she removed and re-stapled the will as part of the photocopying process. Mrs Rattle cannot recall whether the will was stapled or unstapled at that time, or whether Ms Addie may have dismantled the will in the photocopying process. Mrs Rattle also deposes that she did not subsequently dismantle the will.

Change in deceased's testamentary intention in 2006

23 Mr O'Neill deposes that the deceased wanted to change his will consequent upon the restructure of the Rattle Group. Prior to 30 June 2006, the deceased's parents were equal shareholders in the company. They were also directors of the company, alongside the deceased. As a result of an agreed financial settlement between the deceased and his parents, the deceased became the sole director and owned all of the shares in the company. Mr O'Neill deposes that the dissolution of the company was somewhat acrimonious and the deceased wanted to alter his will to leave his entire estate, including his shares in the Rattle Group, to Mr O'Neill, instead of his parents.

Circumstances surrounding the execution of the 2006 informal will

24 Mr Lidstrom deposes that he was contacted by Mr O'Neill in mid-2006, at which time Mr O'Neill indicated to him that he and the deceased each wished to prepare new wills. Mr Lidstrom prepared draft wills based on their respective instructions and then delivered the wills to the deceased's business premises in South Yarra. Both the deceased and Mr O'Neill indicated to Mr Lidstrom that the draft wills reflected their wishes but requested that they be left in their possession for further discussion. Thereafter, Mr Lidstrom had no further contact with the deceased or Mr O'Neill.

25 Contrastingly, Mr O'Neill deposes that Mr Lidstrom posted the 2006 informal will to the business premises and does not state that he and the deceased met with Mr Lidstrom that day. Rather, he deposes that the wills were signed in a 'mad flurry' on 25 August 2006, before the deceased was required to attend a meeting. The deceased, Mr O'Neill and Ms Holley were the only people working at the business premises that day.

26 Ms Holley deposes that the 2006 informal will was signed sometime after she commenced working as a bookkeeper at the deceased's business, but she does not recall the precise date. Her records indicate that she worked on Friday, 25 August 2006. She deposes that on the day of the signing of the 2006 informal will, the deceased approached her and said words to the effect 'this is my will, can you witness it?' to which she replied she would. Ms Holley deposes that the deceased then executed the 2006 informal will by signing his name as it now appears and she attested and signed the 2006 informal will in the presence of the deceased. Mr O'Neill deposes that he observed the deceased execute the 2006 informal will in the presence of Ms Holley and himself. Ms Holley is unable to recall whether at the time of signing the 2006 informal will bore the staple marks that now appear on it.

27 Mr O'Neill deposes that he and the deceased approached Ms Holley to witness their wills. He deposes that he also signed his own will in the presence of the deceased and Ms Holley and she witnessed his signature on his will. Ms Holley deposes that she also witnessed Mr O'Neill's will at the same time as that of the deceased.

28 Mr O'Neill deposes that, at the time of signing the 2006 informal will, neither he nor the deceased were aware of the requirement for two witnesses to sign the document in order for it to be validly executed. Both the deceased and Mr O'Neill were operating under the assumption that Mr O'Neill could not subscribe and attest as a witness because he was the deceased's domestic partner. According to Mr O'Neill, as a result of these mistaken beliefs, the 2006 informal will was not signed by a second attesting witness.

29 Ms Addie deposes that the deceased had a filing cabinet at the business premises dedicated to administration files. The 2006 informal will was kept in a manila folder labelled 'Wills' in the filing cabinet. Mr O'Neill's will was also kept in the manila folder.

30 On 13 December 2013, Mrs Rattle and Ms Lewin attended the office of the Rattle Group to discuss matters relating to the business. They informed Ms Addie that they had been unable to locate the deceased's will. Ms Addie then retrieved the 2006 informal will from the manila folder, along with Mr O'Neill's will. The manila folder did not contain the letter to the deceased's trustee regarding the gifts of the deceased's personal property as referred to in clause 3 of the 2006 informal will. Mrs Rattle retained possession of the 2006 informal will until her meeting with Mr Cook on 10 October 2014, at which time the original 2006 informal will was handed to Mr Cook.

31 Despite thorough searches having been conducted, save for the 2006 informal will and the 1996 will, no other wills have been located.

Deceased's discussion with Mr O'Neill in 2011 regarding the 2006 informal will

32 Mr O'Neill deposes that, sometime in 2011, the deceased and he discussed their respective wills as a result of their strengthening relationship with their godson, Matthew Paltoglou. Mr O'Neill believes it was not the deceased's intention to change his will at that time and that it was apparent from the discussions that the deceased believed the 2006 informal will was validly executed.

33 There is no evidence to suggest that the deceased lacked testamentary capacity at the time the 2006 informal will was executed. The deceased's death certificate has no notation that the deceased suffered any kind of physical or mental impairment in 2006 or after that time.

34 The deceased instructed his solicitor, Mr Lidstrom, to prepare the 2006 informal will. The 2006 informal will is more than a 'personal memo' or a 'note of intended instructions'. It reflects the deceased's instructions to his solicitor and includes provisions that are common to wills. The pages of the 2006 informal will are numbered sequentially and from its content, it appears to be the entire document. The first page declares it is a will, the dispositions made in it are amenable to rational explanation and benefit those who would ordinarily be expected to benefit from the deceased on his death. Despite the existence of staples marks on the 2006 informal will that might ordinarily suggest that some part of the 2006 informal will is missing, Mr Lidstrom deposes that the 2006 informal will as it appears in this application was in the same form as prepared by him.

35 There is inconsistency as to whether Mr Lidstrom physically attended the deceased's business premises on 25 August 2006. According to Mr Lidstrom, he delivered the document and subsequently left it with Mr O'Neill and the deceased for discussion. Mr O'Neill deposes that it was posted to the deceased's business premises and makes no mention of Mr Lidstrom's appearance that day or any other day. Ms Holley sheds no light on that inconsistency. However, nothing turns on that inconsistency as the 2006 informal will was found at the deceased's business premises in a manila folder specifically labelled 'Wills' that was easily accessible by the deceased and Mr O'Neill and contained only the 2006 informal will and Mr O'Neill's will. As stated above, the 2006 informal will referred to a letter regarding the disposition of the deceased's personal effects but this letter has not been found and, on balance, it is likely that it does not exist.

36 Ms Holley's evidence focuses on the execution of the 2006 informal will. Only the deceased, Mr O'Neill and Ms Holley were working at the business premises that day. In her later affidavit, Ms Holley deposes that she was asked to sign and attest the wills of both the deceased and Mr O'Neill on that day and that she did so. Mr O'Neill's evidence is that he and the deceased believed them each to be validly executed with only one attesting witness. Mr O'Neill's reason for not attesting the 2006 informal will as a witness is understandable given that the signing of it took place without the benefit of a solicitor present.

37 There is no evidence that the deceased sought out Mr Lidstrom or any other solicitor to prepare a further will after the 2006 informal will was executed by him.

38 The Court will attribute greater weight to the fact that the 2006 informal will exhibits a substantial degree of formal compliance with the Wills Act. The only omission in respect of the requirements of s 7 of the Wills Act is that only one witness attested to the deceased's signature on the 2006 informal will. However, Mr O'Neill was present and he saw the deceased and Ms Holley sign the 2006 informal will. In the absence of a solicitor advising as to the statutory requirements for execution of a will, it is not surprising that the deceased and Mr O'Neill were unaware of the requirement for two witnesses, or that a domestic partner is permitted to sign as a witness. Where there is evidence of a lack of 'full familiarity or awareness' of the will formalities, the Court may more readily infer that the deceased intended the informal document to have legal effect.[12] Ms Holley deposes that the deceased referred to the 2006 informal will as his will. Mr O'Neill's evidence of his discussion with the deceased in 2011 supports the assertion that the deceased believed the 2006 informal will was validly executed and that he intended it to be his will.

39 In the circumstances, the Court is satisfied that the 2006 informal will reflects the testamentary intentions of the deceased and that he intended the 2006 informal will, without more, to be his will. Accordingly, the Court will order that the deceased's 2006 informal will be admitted to probate.

40 As the 2006 informal will is to be admitted to probate, there is a question as to whether the forfeiture rule operates to prevent Mr O'Neill from receiving his entitlement by reason of his murder of the deceased.

41 Section 92(2) of the Evidence Act 2008 provides that evidence of conviction of an offence is admissible in a civil proceeding. A certificate of conviction regarding Mr O'Neill's murder of the deceased has been issued, pursuant to s 178 of the Evidence Act 2008.

42 The forfeiture rule is an established and long standing principle that ensures that no person can obtain, or enforce, any rights resulting to them by their own crime.[13] Where a person murders a testator, and that person stands to benefit under the testator's will, he or she cannot benefit from his or her crime, and his or her interest as beneficiary pursuant to the will is forfeited. In the case of murder, the application of the rule is clear and uncontroversial.[14] Sound public policy supports the existence of the rule given the 'abhorrence of the notion that one may profit from killing another.'[15]

43 As a consequence of the application of the forfeiture rule, Mr O'Neill's interest pursuant to the 2006 informal will is thereby forfeited.

Operation of the gift over clause in the 2006 informal will

44 Clause 5 of the 2006 informal will provides that if Mr O'Neill does not survive the deceased by 30 days, the estate of the deceased passes to the deceased's two sisters, Mr O'Neill's sister and the two godsons of the deceased who survive the deceased and attain the age of 21 years, and if more than one, in equal shares absolutely ('the gift over provisions').

45 The gift over provisions are expressed to take effect only in the event that Mr O'Neill does not survive the deceased by 30 days. As Mr O'Neill has survived the deceased for more than 30 days and, by operation of the forfeiture rule, he has forfeited his entitlement to receive any benefit from the deceased's estate, the question is how the forfeiture rule operates on the gift over provisions where the events that are contained in the gift over provision have not occurred.

46 The independent contradictors appointed to represent the interests of those beneficiaries under the 2006 informal will, the 1996 will and the intestacy beneficiaries have filed written submissions identifying the issues. Since those submissions were filed, the Court was informed by the solicitors for Mr Chester Halstead, a beneficiary under the gift over provisions, on 16 March 2018 that he would likely make submissions on how the gift over provisions ought to be given effect, as opposed to an intestacy.

47 In light of this, these reasons will be sent to Mr Halstead's solicitors and he can decide whether he seeks to be added as a defendant in the proceeding for the purpose of making his submissions. In this circumstance, the further consideration of the final question for determination in the proceeding will be adjourned to a date to be fixed.

(a) probate of the will of the deceased dated 25 August 2006 be granted to Equity Trustees Limited as the named substituted executor, the named instituted executor, Michael Anthony O'Neill, having failed to act;

(b) as a consequence of the application of the forfeiture rule, Mr O'Neill's interest pursuant to the will of the deceased dated 25 August 2006 is forfeited; and

(c) the further hearing of the proceeding be adjourned to a date to be fixed.

[1] DPP v O'Neill [2015] VSC 25 (11 February 2015).

[3] Wills Act 1997 s 9.

[4] See Re Lynch [2016] VSC 758 (9 December 2016) [12]; Re Estate of Brock [2007] VSC 415 (24 October 2007) [19] - [20].

[5] Mittoni v Bradley [2003] WASC 114 (13 June 2003) [67].

[6] Re Becroft [2009] VSC 481 (15 October 2009) [10].

[7] Ibid; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, 539.

[8] (1870) LR 5 QB 549, 565.

[9] [1938] HCA 34; (1938) 60 CLR 336.

[10] See, eg, Fast v Rockman [2013] VSC 18 (7 February 2013) [48].

[11] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362.

[12] Fast v Rockman [2013] VSC 18 (7 February 2013) [112]-[113].

[13] See, eg, Re Estate of Soukup (1997) A Crim R 103; Re Edwards; State Trustees Ltd v Edwards [2014] VSC 392 (22 August 2014), affirmed by Edwards v State Trustees Ltd [2016] VSCA 28 (10 March 2016); Pike v Pike [2015] QSC 134 (11 May 2015); Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147; In the Estate of Crippen [1911] P 108.

[14] Gonzales v Claridades [2003] NSWCA 227; (2003) 58 NSWLR 211, 220 [46] (Mason P, with whom Beazley JA and Foster AJA agreed) as cited in Edwards v State Trustees Ltd [2016] VSCA 28 (10 March 2016).

[15] Troja v Troja (1994) 33 NSWLR 269, 299.