WILLS AND ESTATES - Application to admit informal will to probate - Whether deceased had testamentary capacity - Whether deceased intended informal will to be her will - Application granted - Wills Act 1997, ss 7 and 9 - Evidence Act 2008, s 140 - Banks v Goodfellow

1 Paula Kairouz died on 12 July 2021 at the age of 44, leaving a document dated 28 January 2021 which she signed and which was described as a will (the 2021 document). The 2021 document does not, however, comply with the formal requirements for the execution of a will because it was not made or acknowledged by the deceased in the presence of two or more witnesses as required by s 7(1)(c) of the Wills Act 1997 (the Act).

2 The 2021 document appoints the deceased's sister, the plaintiff in the proceeding, as executor and trustee of the deceased's estate.

3 On 20 May 2022, the plaintiff filed an amended originating motion for a grant of probate of the 2021 document.

4 At the time of her death, the deceased was working as an in-house commercial lawyer for a company that develops medical technologies.

5 The 2021 document was prepared by the deceased's solicitors and is comprised of six pages. It makes the following provisions:

(a) The plaintiff is appointed as executor and trustee of the deceased's estate in the first instance, with the deceased's brother, Tamer Kairouz (Tamer) to act as executor and trustee in the event the plaintiff is unable or unwilling to act.

(b) Gifts the deceased's jewellery equally between the deceased's nephew and nieces.[1]

(c) Gifts the deceased's artwork, cars, furnishings and chattels to the deceased's husband, Adam Stephen Pilling (Adam), who is referred to in the 2021 document as the deceased's fiancé.

(d) Gives the deceased's residuary estate to the plaintiff, with a reserve distribution of the residuary estate to the deceased's nephew and nieces in the event the plaintiff does not survive the deceased.

6 As noted above, the 2021 document was signed by the deceased on all pages, but was not signed by any witnesses. The deceased did not leave any other previous wills.

7 Adam is the only beneficiary on intestacy of the deceased's estate.

8 The plaintiff, Adam and Tamer consented to the Registrar of Probates determining the application for a grant of probate of the 2021 document pursuant to r 2.09 of the Supreme Court (Administration and Probate) Rules 2014. However, as the estate is valued over $1 million, and the deceased's nephew and nieces are minors and cannot consent to the Registrar of Probates determining this application, the plaintiff filed a notice to produce on 5 August 2022 to seek that this application be determined by a Judge of the Court.

9 The plaintiff accepts that the 2021 document does not comply with the requirements of s 7(1)(c) of the Act_._ The matter for determination is whether the 2021 document should be admitted to probate as a will of the deceased pursuant to s 9 of the Act.

10 Section 9 is a remedial provision which enables the Court to dispense with the formal requirements for the execution of a will when admitting a will to probate. It relevantly provides as follows:

1. When may the Court dispense with requirements for execution or revocation?

(1) The Supreme Court may admit to probate as the will of a deceased person -

(a) a document which has not been executed in the manner in which a will is required to be executed by this Act; or

(b) a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act -

if the Court is satisfied that that person intended the document to be his or her will.

(2) The Supreme Court may refuse to admit a will to probate which the testator has purported to revoke by some writing, where the writing has not been executed in the manner in which a will is required to be executed by this Act, if the Court is satisfied that the testator intended to revoke the will by that writing.

(3) In making a decision under subsection (1) or (2) the Court may have regard to -

(a) any evidence relating to the manner in which the document was executed; and

(b) any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.

(4) This section applies to a document whether it came into existence within or outside the State.

...

(6) In this section document has the same meaning as in the Interpretation of Legislation Act 1984.

11 In Estate of Brock,[2] Hollingworth J described the remedial nature of s 9 as follows:[3]

Section 9 is remedial in nature, meaning that it provides a means by which the court can give effect to the testator's true testamentary intentions, despite the fact that a will has not been validly executed. Where legislation is remedial, it should be given a broad as opposed to a narrow construction, one which will serve to achieve the broad objects and purposes which parliament had in mind. Here, parliament's clear intention was to avoid failure of the testamentary purpose caused by non-compliance with the formalities due to ignorance or inadvertence.

Notwithstanding the remedial nature of the section, care must nevertheless be taken to ensure that the statutory formalities enshrined in the Act are not unduly relegated in importance.

12 It is well established that there are three requirements for an informal will to be admitted to probate under s 9 of the Wills Act 1997:[4]

(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 their will.

The propounder of an informal will must establish these elements on the balance of probabilities, with the evidence to be evaluated in accordance with the Briginshaw[5] principles reflected in s 140 of the Evidence Act 2008.

13 It is clear that the 2021 document satisfies the first two of these requirements: it is a document prepared by the deceased's solicitors, is described as a will and contains the requisite provisions for a will.[6]

14 The remaining issue is whether the deceased intended the 2021 document to be her will. The principles relevant to this issue were summarised by McMillan J in Re White; Montgomery & Anor v Taylor as follows:[7]

The third requirement is that the deceased intended 'that particular document to be his or her final will and did not want to make changes to it'. As stated by Whelan J (as his Honour then was) in Equity Trustees Ltd v Levin, 'it cannot be a document intended as a personal memorandum or a note of intended instructions, it cannot be a draft or a "trial run"'. The relevant intention must be possessed 'either, at the time of the subject document being brought into being, or, at some later time'.

Satisfying the third requirement depends upon the facts and circumstances of each case. The Court may consider evidence regarding the making of the will, as well as direct evidence of testamentary intent. Ultimately, the inquiry remains:

whether the document itself, the circumstances regarding its contents ... and other relevant circumstances ... lead to the conclusion that the relevant deceased intended the subject document to constitute his will;

that, 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.

A relevant consideration under the third requirement is the deceased's testamentary capacity. Where a deceased lacked the capacity to make a will, then the Court cannot be satisfied that he or she intended the document to be his or her will. In the context of an informal will, the usual presumptions as to testamentary capacity do not apply. While the Court considers the evidence as a whole, the onus of proving testamentary capacity rests upon the party seeking to propound the informal will.

15 As McMillan J noted, an informal will does not benefit from the same rebuttable presumptions which apply to duly executed wills.[8] Accordingly, the plaintiff, as the propounder of the informal will, also bears the onus of satisfying the Court on the balance of probabilities that the deceased had testamentary capacity and knew and approved of the contents of the informal will.[9]

16 In order to establish a testator's testamentary capacity, the principles in Banks v Goodfellow[10] require the propounder of a will to show that the testator:

(a) understood the nature and effect of making their will;

(b) was aware of the general nature and value of their estate;

(c) was aware of those with a natural claim on their estate; and

(d) was able to evaluate and discriminate between such claims.

17 As explained by McMillan J in Re Martin, determining whether a deceased person knew and approved of the contents of an informal will:[11]

... involves consideration of whether the deceased actually understood the document and its effect, such that it can be said that the document represents the deceased's testamentary intentions. The sufficiency of evidence will depend upon the circumstances of each case. While evidence that the document was read by the deceased is relevant, and should be given due weight, it will not be conclusive. Other considerations include the mental acuity and sophistication of the testator, the complexity of the contents of the document and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon an estate, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice.

18 In support of her submission that the deceased had testamentary capacity when she signed the 2021 document, the plaintiff relied on affidavits made by the deceased's medical practitioner, Dr Paul Mitchell, and the deceased's solicitor, Ms Skye Engwerda. For the reasons which follow, I am satisfied on the basis of this material that the deceased had testamentary capacity when she executed the 2021 document.

19 The deceased was a patient of Dr Mitchell for three years up until the date of her death. Dr Mitchell deposed to his opinion that the deceased had testamentary capacity at the time of giving instructions for and executing the 2021 document. In doing so, Dr Mitchell expressly addressed each limb of the Banks v Goodfellow test and found that they were satisfied.

20 Dr Mitchell last saw the deceased on 29 June 2021, five months after the deceased executed the 2021 document. There is no evidence that the deceased's testamentary capacity was impaired or affected by the medical condition which was the cause of her death, being ischemic heart disease.

21 Ms Engwerda is a director of a law firm based in Echuca, who has been in legal practice for thirteen years and has practised in wills and estates for ten years. She had known the deceased for about fifteen years. Ms Engwerda was instructed by the deceased to prepare the 2021 document, along with two sets of powers of attorney.

22 The deceased gave instructions to Ms Engwerda and other employees of her firm on approximately nine occasions between 20 November 2020 and 13 April 2021, which I outline in greater detail below. Ms Engwerda did not depose to any reservation she had about the deceased's testamentary capacity throughout this time.

23 The 2021 document is rational on its face.[12] It is logical and purports to benefit those with whom the deceased was close; her sister, her nephew and nieces, and her husband. The deceased's decision not to leave her estate to Adam, save for the gifts noted above at paragraph 5(c), is not unusual in circumstances where the residue of the deceased's estate is still going to a close relation, being the plaintiff, and in circumstances where Adam has provided his consent to the plaintiff's application.

24 The plaintiff has accordingly discharged the onus upon her to prove that the deceased had testamentary capacity when she executed the 2021 document.

Whether the deceased intended that the 2021 document be her will

25 The plaintiff submitted that the deceased intended the 2021 document to be her will and that the deceased's failure to obtain the signatures of two attesting witnesses was inadvertent or accidental. The 2021 document was not a 'personal memorandum or a note of intended instructions'; it was not a 'draft or a "trial run"'.[13]

26 In considering this issue it is necessary to set out the circumstances that transpired after the deceased engaged Ms Engwerda to prepare the 2021 document.

(a) The deceased instructed Ms Engwerda to prepare her will and two powers of attorney in early November 2020. The deceased was then engaged to Adam.

(b) On 20 November 2020, the deceased completed and forwarded a 12-page instruction sheet that had been provided to her by her solicitors. The deceased's instructions were relevantly that the plaintiff was to be appointed as executor; all her jewellery was to go to her nephew and three nieces; all artwork, cars, furnishings and chattels were to go to Adam; the rest of her estate was to pass to the plaintiff.

(c) On 27 November 2020, upon the request of her solicitors, the deceased provided the middle names of her intended beneficiaries.

(d) On 9 December 2020, her solicitors emailed a draft will to the deceased along with a covering letter from Ms Engwerda dated 8 December 2020. In the covering letter, Ms Engwerda described the will's principal provisions and set out how it would operate. Ms Engwerda noted that the deceased had elected not to appoint an alternate executor. Ms Engwerda also asked the deceased to read her will, contact her with any amendments, or to otherwise 'make an appointment to attend and sign the documents at [her] earliest convenience'. The covering letter does not refer to the process required for validly executing and witnessing the 2021 document.

(e) On 10 December 2020, the deceased provided further instructions to her solicitors, including instructions that Tamer be appointed as an alternative executor and correcting the birthdate of one of her nieces. On the same day, her solicitors emailed the deceased an amended draft will and wrote as follows: '... if all is in order, please contact our office to arrange a time to sign the originals'. The email did not refer to the process required for validly executing and witnessing the 2021 document.

(f) On 15 December 2020, the deceased informed her solicitors that the draft will was 'fine', noting however that it would be difficult for her and the donees nominated in her powers of attorney to travel to Echuca (where the offices of her solicitors were located). The deceased asked whether she could 'arrange for execution and witnessing here in Melbourne'. On the same day, her solicitors informed the deceased that they would forward the original documents in the mail in order for the deceased to 'arrange execution and witnessing'.

(g) On 28 January 2021, her solicitors emailed the deceased, asking whether she had 'made arrangements to have [her will and powers of attorney] signed' and reminded her that the documents were not valid until signed. Her solicitors asked the deceased to return signed originals of the documents to them. On the same day, the deceased signed and dated the 2021 document (being in the same terms as the document that was provided to the deceased by her solicitors on 10 December 2020).

(h) On 2 February 2021, the deceased emailed her solicitors advising that she would provide signed originals as soon as she could.

(i) On 17 March 2021, the deceased advised her solicitors that she was unable to locate her will and asked for it to be resent. [14] Her solicitors did so on the same day.

(j) On 30 March 2021, her solicitors sent a follow-up email to the deceased in relation to the documents sent to her on 17 March 2021. They asked the deceased to advise them of any changes or otherwise make arrangements to 'sign and return them to our office'.

(k) On 13 April 2021, the deceased advised her solicitors that she had since married and the reference to Adam had to be changed from 'fiancé' to 'husband', but that she otherwise would 'not be making further changes' to the will.

(l) On 22 April 2021, the deceased confirmed the instructions for her will after being advised of Adam's right to file a potential Part IV claim and said that she had 'knowingly made [her] plans notwithstanding Adam's rights to making a claim'. On the same day, the deceased also wrote to her solicitors and stated: 'I have my financial advisers across it all. My instructions to you and the documents that you have provided are aligned'.

(m) Ms Engwerda prepared a new will referring to Adam as the deceased's husband, but did not send it to the deceased because she believed the deceased would be travelling to Echuca to sign the will.

(n) The deceased died suddenly on 12 July 2021.

27 The failure of the deceased to obtain the signatures of two attesting witnesses is what necessitated the plaintiff bringing this application. It is therefore necessary to determine what the deceased knew or understood about the requirement that her signature be witnessed by two witnesses when she signed the 2021 document.

28 In the various pieces of correspondence sent by her solicitors to the deceased before she executed the 2021 document, no instructions were given to the deceased which related to the formal process required for executing and witnessing a will. The emails and letters variously referred to 'signing' (without reference to witnessing), or otherwise referred to 'execution and witnessing', without any reference to the requirement that execution and witnessing be concurrent.

29 It was submitted by the plaintiff that it is likely that, after the deceased was prompted by her solicitors on 28 January 2021, the deceased signed the 2021 document immediately thereafter without turning her mind to having the signature witnessed, potentially under the belief that this was a sufficient interim step in the process. It was also said to be relevant that the deceased did not destroy the 2021 document, which was later found in a clothes drawer.

30 The plaintiff submitted that, although the deceased was a lawyer, she was an in-house commercial lawyer who may not have appreciated the formalities for the execution of a will.

31 The deceased alone provided instructions for the 2021 document to her solicitors. There is no evidence before the Court to suggest anyone other than the deceased was involved in that process. The structure and essential provisions of the 2021 document did not vary between November 2020 and April 2021. Over that time, the deceased engaged with her solicitors in a series of communications which were directed at producing a formal written document recording her testamentary intentions. That process was successful, save that the document produced was not executed in accordance with the requirements imposed by s 7(1)(c) of the Act. I am comfortably satisfied that the deceased intended the 2021 document to be her will.

32 For the same reasons and given the dealings between the deceased and her solicitors referred to in [26], I am also satisfied that the deceased knew and approved of the contents of the 2021 document.

33 It follows that the 2021 document is to be regarded as an informal will, and a grant of probate of the informal will should be made to the plaintiff. The Court will so order.

[1] Tony Xavier Kairouz, Olivia Leila Kairouz, Marian Rose Kairouz and Catherine Christiana Kairouz (the deceased's nephew and nieces).

[2] [2007] VSC 415.

[4] Sultanova v Bolgarow [2019] VSCA 245, [28] (Beach and Niall JJA and Kennedy AJA).

[5] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[6] The 2021 document sets out the deceased's name, address and occupation, contains a revocation clause, appoints executors and trustees, and contains a complete set of dispositive clauses.

[7] [2018] VSC 16 [53]-[55], citations omitted.

[8] Ackerley v Felton [2012] NSWSC 1468, [30] (Young AJ) ('Ackerly'); Fielder v Burgess [2014] SASC 98, [25] (Kourakis CJ) ('Fielder'); Jageurs v Downing [2015] VSC 432, [19] (McMillan J) ('Jageurs'); Re Kelsall [2016] VSC 724, [22] (McMillan J) ('Re Kelsall'). See Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 174-5 [168]-[171] (Santamaria JA) ('Veall'), regarding the usual presumptions.

[9] Ackerley (n 8) [30]; Fielder (n 8) [25]; Jageurs (n 8) [19]; Re Kelsall (n 8) [22]. See Veall (n 8) [168]-[171] regarding the usual presumptions. See also Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107, [18]-[24] (Lindsay J).

[10] (1870) LR 5 QB 549, 567 (Cockburn CJ).

[11] (2019) 59 VR 584, [61], citations omitted.

[12] Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, 283, quoting Symes v Green (1859) 1 Sw. & Tr. 401, 402.

[13] Equity Trustees v Levin [2004] VSC 203, [15].

[14] The 2021 document was not in fact lost as originally thought by the deceased - the plaintiff found the will after the deceased's death in one of her clothes drawers.