Citation : SAMUEL WILLIAM MARTIN AS EXECUTOR OF THE WILL OF STEPHEN ALAN JONES -v- YOUNG [2017] WASC 202

Wills and probate - Proof of informal will - Where document in the form of a will found in deceased's filing cabinet - Where deceased's signature witnessed by one witness only - Where page with signature stapled to other pages created later - whether trial judge erred in finding the deceased intended the document to constitute his will

Practice and procedure - Costs - Where trial judge ordered costs against defendant in proceedings to prove informal will - Where trial judge found conduct of defendant unreasonable - Whether trial judge erred in the exercise of his discretion

Wills Act 1970 (WA), s 8, s 32, s 33, s 38

Hatsatouris v Hatsatouris [2001] NSWCA 408

Oreski v Ikac [2008] WASCA 220

The Public Trustee v Gerritsen [2012] WASC 201

1. The respondent, Samuel William Martin, is the half-brother of Stephen Alan Jones (the deceased). The appellant, Michelle Young, was the de facto partner of the deceased at the time of his death.
2. The deceased died on 11 November 2013, then aged 48 years. He did not leave a valid formal will. He did, however, leave a four page stapled document headed 'Last Will and Testament'. The document was found in an envelope in the deceased's filing cabinet at his home. The respondent was named in it as the executor and trustee. It was that document which the respondent sought to prove in the primary proceedings.
3. The deceased was survived by two children, David Lee Jones and Kirsty-Ann Jones, the children of a marriage that ended in divorce in 2010.

1. The matter was tried before Kenneth Martin J on 22 May 2017.
2. The appellant appeared and opposed the application. She had pleaded a defence, by which she said she would abide the decision of the court as to whether the 'altered purported will' was the last will of the deceased.[1] The trial judge found her involvement exceeded that and was, in effect, 'a stance of resolute opposition' to the conclusion that the document sought to be proved should be accepted as the informal will of the deceased.[2]
3. Evidence was received on affidavit:

(2) an affidavit of Mr Norman Steer, justice of the peace;

(3) affidavits of each of David and Kirsty-Ann Jones;

(5) three affidavits of the deceased's ex-wife, Ms Devranee Jones; and

1. The respondent, Mr Steer, David Jones and Kirsty-Ann Jones were briefly cross-examined.
2. The document sought to be proved was exhibit 2 in the trial. In these reasons we will refer to it as 'Exhibit 2'.
3. The trial judge found that while Exhibit 2 was inadequate to meet the formal requirements of the Wills Act 1970 (WA), it should be received as the deceased' informal will.

Informal wills and pt X of the Wills Act

1. The principles to be applied were not in dispute.
2. By s 8 of the Wills Act:

Subject to sections 17 and 20 and Parts XA, X and XI, a will is not valid unless -

(a) it is in writing; and

(b) it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's direction, in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator's will; and

(c) the testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and

(d) the witnesses attest and subscribe the will in the presence of the testator but no publication or form of attestation is necessary.

1. Part X of the Act comprises s 32, s 33, and s 38. Section 32(2) provides:

A document[3] purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes -

(a) a will of the person; or

(b) an alteration to a will of the person; or

(c) the revocation of a will of the person; or

(d) the revival of a will or part of a will of the person,

if the Supreme Court is satisfied that the person intended the document to constitute the person's will, an alteration to the person's will, the revocation of the person's will or the revival of a will or part of a will of the person, as the case may be.

1. In forming its view, the court may have regard, in addition to the document, to 'any evidence relating to the manner of execution or testamentary intentions of the person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the person'.[4]
2. The operation of s 32 has been considered on several occasions in this court and is settled. In Oreski v Ikac, Newnes JA said of s 34 (which was in force before the 2007 amendments):

It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased's testamentary intentions, that is not of itself sufficient. Section 34 does not enable any document which expresses the deceased's testamentary wishes to be admitted to probate. The document must be intended to be the legally operative act which disposes of the deceased's property upon their death; that is, it must have been intended by the deceased to have present operation as his or her will. Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased's lifetime, or to be a note of instructions, or a draft will or a 'trial run'...

It is therefore of fundamental importance that the person seeking to propound the document establish that the deceased, by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will.[5]

1. The trial proceeded on affidavit evidence. The appellant appeared at trial and counsel on her behalf cross-examined witnesses called by the respondent.
2. The judge accepted the evidence of the witnesses, and from that evidence and Exhibit 2 itself made several findings of fact.
3. The trial judge described Exhibit 2 in this way:[6]

(1) the document comprises four different pages;

(2) the four pages were found stapled together and contained within an envelope that was discovered by [the appellant] in Mr Jones's personal filing cabinet at the Warnbro property following his death;

(3) the first page of the document is headed 'Last Will and Testament' and it correctly describes Mr Jones's occupation as an ambulance paramedic;

(4) the first page of the document (in a somewhat different typeface to the first line) states an address of [a residential property in Warnbro] which it is accepted was not acquired by Mr Jones (and the appellant) until April 2013;

(5) as may be seen, under a heading 'Executor and Trustee', Mr Jones appointed his half-brother Samuel Martin (the respondent) to that position;

(6) the first page does not carry any signature of Mr Jones or of any witness;

(7) the second page contains an introductory heading 'Specific Provision' and there follow the eight identified bequests or legacies as seen;

(8) again, the second page of the document is not signed by anyone[.]

His Honour then sets out the bequests and continued

(13) page 3 of the document displays four different headings - in reference to the provision for 'Funeral Instructions', 'Disposition of Residuary Estate' (which was left to Mr Jones' two children, David and Kirsty-Ann), 'Special Conditions' (which nominated that his children's inheritances be held until they reach the age of 21 years) and then most significantly an 'Execution and Attestation' clause;

(14) as seen, the execution and attestation clause on page 3 provides only for the application of a name and signature of one witness - rather than the two witnesses required to a testator or testatrix's signature - in order to make a valid will under s 8 of the Wills Act. ...;

(15) as seen, the document looks to have been dated on page 3 as 25 May 2012 - by the insertion of the inputs of '25th', 'May' and '2012', seen in longhand;

(16) a signature of Mr Jones may also be discerned in the second line of that execution and attestation clause underneath the date 25 May 2012...;

(17) the fourth page of the document contains details of bank accounts, superannuation policy numbers, funeral coverage insurance and debts with the ANZ bank concerning Mr Jones ... This last page was found as the fourth page stapled with the preceding three pages and making up together the composite four-page document found by the appellant after Mr Jones' death in November 2013.

1. His Honour made further findings on the affidavit evidence.
2. The deceased presented a document to a justice of the peace, Mr Steer, to witness on 25 May 2012. Mr Steer told the deceased 'that a second witness should be present' and the deceased told him he had arranged with a friend of his to witness the signature. Mr Steer did not tell the deceased that both witnesses must be present at the same time when he signed the will.[7] And Mr Steer witnessed the signature of the deceased on this document (the 25 May 2012 document).
3. After the death of the deceased, the appellant found Exhibit 2 in an envelope in a filing cabinet in the home of the deceased and the appellant. The trial judge could not find whether the envelope had been sealed; he found that the filing cabinet was not lockable.[8]
4. The appellant passed the document she had discovered (Exhibit 2) to her solicitors at the time, and instructed them to send it to the respondent in his assumed capacity as executor.[9]
5. Incongruities in relation to dates and events were later noticed. On pages 1 and 2, Exhibit 2 mentioned two properties that had been acquired after 25 May 2012. One property was known as the Merredin farm, which had been acquired in December 2012. The other, the Warnbro property, where the deceased and the appellant lived, had only been purchased in April 2013. The deceased and the appellant were joint tenants of the Warnbro property, and the deceased's interest passed to the appellant by survivorship on his death.[10]
6. The trial judge concluded that the document witnessed by Mr Steer (ie, the 25 May 2012 document) had been altered by the creation and substitution of new pages 1 and 2, which were stapled to the page 3 which had been witnessed by Mr Steer, and possibly an original page 4, to constitute the four page document found after his death (ie, Exhibit 2).[11]
7. His Honour further found that the original pages had been removed and destroyed, most likely by the deceased himself.[12] His Honour gave several reasons for finding that it was likely that the deceased was responsible for the altered and substituted pages:

(2) that it was found in a room he used as a study; and[13]

(3) on 19 June 2012, in an email to the respondent, the deceased said he was 'updating his will' and would leave the respondent as the executor.[14]

1. The trial judge found that the deceased knew that a second witness was required. His Honour also found that, notwithstanding his conversation with Mr Steer, the deceased was under the impression he had executed a valid will and either overlooked the need for a second witness or in some way believed it was merely desirable and not mandatory.[15] His Honour was not satisfied that the deceased had wilfully disregarded the requirement of a second witness.[16]
2. His Honour further found that the deceased appeared to have suffered under a misapprehension that he could alter and replace pages as long as he preserved and did not change the signature and attestation page.[17]
3. Other evidence demonstrated that the deceased was seriously unwell. He was diabetic and suffered from a heart condition for which he was to have bypass surgery (scheduled for eight days after his death).[18]
4. The deceased had, at various times, made statements regarding his will that were generally consistent with the bequests in Exhibit 2:

(1) On 6 June 2012, by email, he told his former wife that the Kendenup properties were bequeathed to the children.[19]

(2) On two occasions in 2013, the deceased told his son David that he had made a will and left everything to David and his sister, and was not leaving anything to the appellant.[20]

(2) The deceased also told David that he always had a will, and that he 'updated it every year or so in or about June or July', around the time of his birthday.[21]

(3) The deceased told his daughter Kirsty-Ann that he usually updated his will in June or July, and that he had updated his will early that year (2013) to include the land in Merredin, which had been acquired in December 2012. He also told Kirsty-Ann that he was leaving his property to her and David.[22]

(1) The deceased's statements to his children suggest that he was under the continuing mistaken impression that he had validly disposed of his property by will in their favour. The conversations were about his then having a will, and not a future intention to make one.

(2) The deceased was giving his children a simplified explanation, which was essentially correct as to the children receiving almost all of his assets.

(3) The deceased had adopted a regular practice, perhaps annually, of altering his previously signed and witnessed testamentary documents, acting under a misguided belief that this was permissible as a matter of law:

It appears Mr Jones believed that a valid 'updating' of his will could be achieved simply by disassembling it and removing original pages, replacing them with some new pages, which he could then reassemble with some or all of the signed and witnessed disassembled original pages of the earlier testamentary document. How Mr Jones ever came to hold such a misguided view is not capable of being answered from the evidence at this trial. But I do find that that was Mr Jones' relevant belief during 2013.[24]

(4) Sometime after 19 April 2013, at least pages 1 and 2 and possibly also page 4 of Exhibit 2, were prepared by the deceased, then substituted, reassembled and re-stapled back together by him and placed in an envelope which was then placed in his filing cabinet in his study.

(5) The former pages 1 and 2 that the deceased had removed and replaced were likely destroyed by him at the time.

1. A further document, an electronic file, was found on the deceased's computer. It had been last modified on 11 May 2013. It is not significantly different in content from Exhibit 2. It was not printed off or signed.[25] The trial judge was not satisfied that the electronic file represented the deceased's final testamentary wishes.[26] No party contended that it did.
2. The trial judge concluded that the 'reassembled' document, now Exhibit 2, was intended to embody the deceased's settled testamentary instructions to his executor in the event of the deceased's death.[27] His Honour also found that the deceased had demonstrated it was his intention that the document should without more on his part operate as his will:

Of significance here to my end conclusion are the circumstances in which this four-page document had been left reassembled together and then found after Mr Jones' death. It was left in his filing cabinet in an envelope in his study. There is no other potential rival hard copy signed document attempting a testamentary disposition by Mr Jones. The only other document referred to as possibly equating to something like Mr Jones' will is an electronic computer file that was yet to be printed off to hard copy, let alone signed.[28]

1. The appellant appeals on four grounds. Each alleges that the trial judge 'erred in fact alternatively in law and fact' in relation to particular findings:

(1) that, as to the 25 May 2012 document, the deceased was labouring under an erroneous impression that he had executed a valid will;

(2) that, by reason of his medical condition, the deceased left Exhibit 2 to be easily found in the event of his death;

(3) that the deceased laboured under the long term misapprehension of law that it was possible to alter and replace pages of his signed and witnessed will as long as he preserved, retained and did not change the signature and attestation page of the will document; and

(4) that the respondent had discharged the onus as to Exhibit 2 being an informal will pursuant to the requirements of s 32(2) of the Wills Act.

1. The appellant bases this ground of appeal on the findings at trial regarding the 25 May 2012 document. The argument has several strands.
2. The appellant submitted that it was not open to the trial judge to infer that the deceased intended the 25 May 2012 document to be his final will; and it was not open to his Honour to infer that the deceased was under the impression it was a valid will. The appellant relied on two matters: the 25 May 2012 document was not in evidence; and Mr Steer had told the deceased that a second witness was required.
3. The fact that the original, complete, 25 May 2012 document was not in evidence does not prevent a finding that the deceased intended it to be his final will at the time. Indeed, there is a certain illogicality about the appellant's submission. The trial judge found, in effect, that certain pages of the 25 May 2012 document had been discarded and replaced with new pages to create Exhibit 2 as a subsequent testamentary instrument. That being the case, the original, complete, 25 May 2012 document was no longer in existence after the creation of Exhibit 2 and was incapable of production at trial.
4. Further, there was ample evidence to support the judge's finding that the 25 May 2012 document was, itself, intended as a final will at that time.
5. First, although the pages recording specific dispositions may be missing, the execution page includes the disposition of the residuary estate (implying the previous disposition of specific assets), instructions to the trustee regarding the inheritances of the two children, and funeral instructions.[29]
6. Second, Mr Steer's evidence was that the deceased told him it was his will[30] and that the deceased replied 'yes' when Mr Steer asked him if it was his last will.[31] These two facts taken in combination tend to indicate that the 25 May 2012 document was a complete testamentary instrument as at the date of its execution.
7. Nor has the appellant shown that the trial judge erred in finding that the deceased was under the impression that it was a valid will. Mr Steer told him that a second witness 'should be present'.[32] He did not, however, tell him that both should be present at the same time; and he did not tell the deceased his will would not be valid.[33] And, despite what he told the deceased, Mr Steer proceeded to ask the deceased whether it was his last will and had he read and understood it. Mr Steer then signed and affixed his stamp as a justice of the peace.
8. Further, the trial judge's conclusion is also supported by the findings he made regarding what the deceased said to members of his family. While the appellant contends that what the deceased told his children may not have been referring to the 25 May 2012 'will', there were emails in evidence which showed:

(1) the deceased told the respondent, in June 2012, that he had made a will;[34] and

(2) he told his former wife in June 2012 that the Kendenup properties were 'bequeathed to my kids in my will'.[35]

1. In summary, there was sufficient evidence to support the findings of the trial judge and no error in fact or law has been shown.

1. This ground challenges the finding that, by reason of his medical condition, the deceased left Exhibit 2 to be easily found in the event of his death in that:

(a) the evidence of the deceased's children was that he updated his will annually; and

(b) there was no evidence that the deceased's medical condition was linked to the compilation of Exhibit 2.

1. The written submissions link this ground to the trial judge's reasons at [115]. The short answer to this ground is that his Honour did not make the challenged finding and did not link the deceased's medical condition to the compilation of Exhibit 2.

1. The appellant complains of error in fact or in law and fact in finding that the deceased suffered under a long term misapprehension that it was possible to alter and replace pages of his signed will.
2. The challenged statement was not a finding on which the decision at trial depends. The trial judge observed that 'Mr Jones looks to me' to have been suffering under that misapprehension.[36] That observation was open on the evidence. However, his Honour then immediately identified the ultimate question as whether he could be 'sufficiently satisfied that Mr Jones intended his cut and pasted post 25 May 2012, reassembled document, as found in his filing cabinet, to constitute his will or an alteration to his will - based on all the trial evidence as to his testamentary intentions concerning that found document'.[37]
3. The appellant has not shown error in his Honour's findings on that ultimate question. Even if his Honour did err in his observation about a 'long standing' misapprehension, it was not material.

1. This ground asserts error in the trial judge's conclusion. In pars (a) to (e), the appellant sets out a range of circumstances. The appellant does not allege that the trial judge erred in failing to have regard to any of these matters but contends, in par (f), that no inference is to be drawn that Exhibit 2 was intended by the deceased to be his final will.
2. In particular, the appellant challenges the trial judge's findings based on what the deceased told his children about having a will. The appellant submitted that the trial judge should not have been satisfied that Exhibit 2 was the will referred to in those conversations when it did not correspond to what the deceased told them. The deceased told his children that they were receiving all of his property and the appellant was to receive nothing. In Exhibit 2, the deceased purports to leave 50% of a property in Warnbro (the family home) to the appellant.[38]
3. His Honour considered that what the deceased told his children should be read as a simplified explanation by a father to his children (aged 14 years and 16 years), and that it was essentially correct as to the children receiving almost all of his assets.[39]
4. There are two specific bequests to the deceased's brothers, and two gifts to charity. Otherwise, but for the Warnbro property, the estate goes to the children.
5. The sole gift to the appellant was of the deceased's 50% share in the Warnbro home 'on the provision that [the appellant] still resides at the property'.[40] Exhibit 2 further provided that the property was to be sold on the appellant's death and the deceased's share distributed among three named charities.
6. The respondent submitted that the court should have regard to the circumstances in which the Warnbro property was purchased, with the appellant paying half, and the deceased borrowing (guaranteed by the appellant) to pay his share. The trial judge did not rely on that analysis, and, in our opinion, it is not necessary to do so. His Honour's finding at [98] was open to him, and was sufficient.
7. Counsel for the appellant also referred to the evidence that the deceased said he regularly 'updated' his will, as showing that Exhibit 2 was deliberative rather than intended to operate to dispose of the deceased's assets on his death. If the deceased intended Exhibit 2 to have effect as his will at the time he compiled it, and demonstrated that intention, its effect as an informal will would not be lost because the deceased later considered updating it. It was not suggested that the deceased made any later document intended to revoke Exhibit 2 or intended to be his will.
8. Sometime during or after April 2013, the deceased assembled and stapled other pages to page 3 of Exhibit 2, which he had executed before Mr Steer on 25 May 2012, creating what appeared on its face to be his last will and testament involving a complete disposition of his assets, with a revocation clause and the appointment of an executor and trustee. He placed Exhibit 2 in an envelope and put the envelope in a filing cabinet located in an office at his residence. Thus, Exhibit 2 was preserved, in an envelope, in a filing cabinet, in the deceased's office, and remained there at the time of his death. The deceased's conduct leaves open an inference that, by doing so, the deceased intended to create a document which constituted his will. Critically, the appellant's counsel was unable to identify any reasonable competing hypothesis as to what else the deceased may have been thinking when he engaged in that conduct.[41] The trial judge correctly drew the inference that the deceased intended Exhibit 2 to constitute his will when there was no other equally or more probable conclusion to be drawn from all of the evidence.

1. The appellant has not demonstrated error in the findings of the trial judge. The appeal against his Honour's order that Exhibit 2 constitutes the deceased's will should be dismissed.

1. The trial judge ordered that the appellant pay, as from 16 January 2017, the respondent's taxed costs of the preparation for and of the trial of the action, including a further attendance at court on 26 July 2017 and the costs associated with subsequent written submissions exchanged between the parties for the purposes of a costs ruling on the papers.
2. The date of 16 January 2017 is when the respondent proposed consent orders by which the respondent would discontinue the claim to prove the informal will.
3. On 7 February 2017, the appellant responded. None of the proposed orders was agreed except for the discontinuance. The appellant asserted that her costs should be paid by the respondent personally. The letter ended:

Your client's failure to discontinue this action is directly causing losses to the estate, in relation to which our client reserves all rights.

In your [sic] view your client should urgently:

1. discontinue his claim;
2. account to the solicitors for the beneficiaries of the intestate estate in relation to all matters relating to the estate.

In the event we cannot agree to consent orders at the next status conference our client will take steps to compel your client to prosecute his ill-conceived claim on an immediate basis or have it struck-off for want of prosecution.[42]

1. On 24 February 2017, the appellant sent a Calderbank offer, in effect calling on the respondent to agree to the claim being dismissed with costs.[43]
2. The matter then proceeded to a contested trial.
3. His Honour found the respondent's proposal to discontinue was sensible, and 'in a context of a small and always uneconomic estate the prevailing economic considerations concerning avoiding waste and undue expense ought to prevail'.[44]
4. Grounds 2, 3 and 4 allege errors of fact in finding that the estate was not large, that the respondent offered to discontinue because the estate was modest, and that the appellant 'rejected outright' the respondent's offer of 16 January 2017. It may be accepted from what his Honour said that he regarded the rejection of the respondent's offer as relevant to his costs decision.
5. The appellant has not shown the trial judge erred in fact, as alleged.
6. It was open for his Honour to find the estate was not large. There was evidence as to the value of the land owned by the deceased,[45] and evidence of the mortgages over the two Kendenup properties.[46]
7. There was also direct evidence that the primary reason the respondent offered to discontinue was the cost of taking the action to trial, relative to the size of the estate which was estimated to have a likely net value of no more than $350,000.[47]
8. Finally, the appellant, by the letter of 7 February 2017, did not agree with any of the proposed orders as to the costs of the action to date, should the respondent discontinue, and said that her costs should be paid by the respondent personally. The appellant contended in that letter that the action to prove Exhibit 2 as an informal will was 'fundamentally flawed'.[48] This letter was followed by the Calderbank offer. His Honour did not err in saying the respondent's proposal of 16 January 2017 was rejected.
9. In ground 1, the appellant alleges error in the trial judge 'appearing to consider that the appellant ... was engaging in fruitless litigation and acting unreasonably'.
10. The ground does not accurately state the findings of the trial judge. His Honour accepted that it was reasonable for the appellant to assess the materials relied on by the respondent, and hold the respondent to formal proof of its case.[49] His Honour commented that there was a constraining economic consideration, due to the size of the estate.[50] Importantly, his Honour found:

By the time the last of the exchanged affidavit materials had passed between these parties in preparation for trial, and most certainly by the time of the commencement of trial before me, this defendant through her legal adviser's counsel had made a considered choice to affirmatively oppose the plaintiff's case on all the facts then exchanged. The stance went well beyond putting the plaintiff to formal proof of an informal will. It manifested as active opposition to the pt X relief sought by the plaintiff. That is seen in opening and closing submissions from counsel for the defendant who, as I said, was warned by me at the start, of the potential consequences of such a stance in the event that the defendant's opposing position was not ultimately accepted. On my assessment, the burden of the exchanged affidavit materials as assembled by way of the evidence for the trial, including the defendant's own affidavits, at the end, overwhelmingly favoured an acceptance of exhibit 2 as the late Mr Jones' informal will under pt X of the Wills Act.[51]

1. Grounds 5 and 6 allege error of law in findings (or apparent findings) that were not made.
2. In summary, the appellant has not demonstrated any of the alleged errors in law or in fact in the trial judge's exercise of his discretion to award costs. The appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[3] Document is defined in s 32(1) in these terms:

document means any record of information including -

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or

and includes any part of a document within the meaning given by this subsection.

[4] s 32(3).

[5] Oreski v Ikac [2008] WASCA 220 [54] - [55] (citations of authority omitted); see also The Public Trustee v Gerritsen [2012] WASC 201 [16] - [26]; Hatsatouris v Hatsatouris [2001] NSWCA 408 [56].

[6] Primary reasons [19]. In this passage references to 'Mr Jones' are references to the deceased.

[7] Primary reasons [19(16)], [52] - [55].

[20] Primary reasons [83] - [84], [86].

[25] Primary reasons [103] - [105].

[38] For the purposes of the appeal, nothing turns on the fact that the gift was ineffective as the property passed to the appellant by survivorship.