Barndon v Chelvanayagam
[2006] WASC 118
•22 JUNE 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BARNDON -v- CHELVANAYAGAM & ORS [2006] WASC 118
CORAM: EM HEENAN J
HEARD: 12 & 13 JUNE 2006
DELIVERED : 22 JUNE 2006
FILE NO/S: CIV 2110 of 2004
BETWEEN: NORMAN RICHARD BARNDON
Plaintiff
AND
SIAN SHARMINI CHELVANAYAGAM
First DefendantPIETRO GEORGIO GIUDICE
Second DefendantMARGARET ANNE NASH
Third DefendantPETER GEORGE GIUDICE
Fourth DefendantKEVIN FRANCIS GIUDICE
Fifth DefendantANNETTE BARNDON
Sixth DefendantNORMAN VAUGHN BARNDON
Seventh DefendantERIC JOSEPH BARNDON
Eighth Defendant
SHELLEY MARIA GIUDICE-BARNDON
Ninth Defendant
Catchwords:
Wills and probate - Proof in solemn form - Six wills - Five codicils to fourth will - Revocation - Revival - Former revoked will revived by later codicil - Informal codicil - Revocation of intervening will - Counterclaim - Compromise involving abandonment of counterclaim to prove later will
Wills Act, Pt X - Nature of estate interest in partnership assets including land - Severance of joint tenancies
Legislation:
Administration Act (WA), s 14
Partnership Act 1895(WA), s 30, s 31, s 32, s 44(1)
Wills Act 1970 (WA), s 8, s 16, s 34, s 36, s 37
Result:
Leave granted to discontinue counterclaim
1991 will and August 2000 codicil admitted to probate in solemn form
Category: A
Representation:
Counsel:
Plaintiff: Mr P A Monaco
First Defendant : No appearance
Second Defendant : Mr I T Blatchford
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : Mr I T Blatchford
Solicitors:
Plaintiff: Godfrey Virtue & Co
First Defendant : No appearance
Second Defendant : Blatchfords
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : Blatchfords
Case(s) referred to in judgment(s):
Burton v Newbery (1875) 1 Ch D 234
Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] AC 694
Corbett v Newey [1998] Ch 57
Corin v Patton (1990) 169 CLR 540
Darby v Darby (1856) 3 Drew 495; 61 ER 992
Estate of Crawford (decd) (2004) 90 SASR 119
Estate of Kevin John Hines & Anor v Hines [1999] WASC 111
Goldie v Adam [1938] P 85
Haque v Haque (1965) 114 CLR 98
Harvey v Harvey (1970) 120 CLR 529
In Re Jessop [1924] P 221
In the Estate of Brian [1974] 2 NSWLR 231
In the Estate of Campbell (decd) [1954] 1 WLR 516
In the Estate of Crossley (decd); Crossley v Crossley [1989] WAR 227
In the Estate of Mardon [1944] P 109
In the Estate of Masters (decd) (1994) 33 NSWLR 446
In the Goods of Davis [1952] P 279
In the Goods of Dennis [1891] P 326
In the Goods of Reade [1902] P 75
In the Matter of the Will of Lobato (1991) 6 WAR 1
In the Will of Butcher (1891) 13 ALT 166
In the Will of Foss [1973] 1 NSWLR 180
In the Will of Killick [1960] VR 98
In the Will of Sargood (1904) 26 ALT 51
In the Will of Steward (decd) [1964] VR 179
Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60
Lowthorpe‑Lutridge v Lowthorpe‑Lutridge [1935] P 151
O'Brien v Komesaroff (1982) 150 CLR 310
Re Baker [1929] 1 Ch 668
Re Barker [1995] 2 VR 439
Re Daly (1900) 2 N & S 1
Re Estate of Frederick Raymond Reeve Perriman (decd) [2003] WASC 191
Re Goodenough's Goods (1861) 2 Sw & Tr 141
Re Levy (decd) [No 2] [1957] VLR 662
Re Lindsay (1892) 8 TLR 507
Re Luck (decd) [1977] WAR 148
Re Park, Bott v Chester [1910] 2 Ch 322
Re Pearson (decd); Rowling v Crowther [1963] 3 All ER 763
Re Steele's Goods (1868) LR 1 P & D 575
Re Wills and Codicils of Crawford (1892) 18 VLR 512
Rees v Duncan (1900) 25 VLR 520
Rogers v Goodenough (1862) 2 Sw & Tr 342
Sebag‑Montefiore [1944] Ch 331
Trickey v Davies; Re the Estate of Trickey (1994) 34 NSWLR 539
Trustees of the Property of Cummins (Bankrupt) v Cummins [2006] HCA 6; (2006) 80 ALJR 586
Vandeleur v Francich [1991] 1 Qd R 481
Watt v Lord (2005) 62 NSWLR 495
Western Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144
Wheatley & Anor v Edgar & Ors [2003] WASC 118
Case(s) also cited:
Bailey v Bailey (1924) 34 CLR 558
Browne v McElhone (1883) 15 NSWR (B & P) 154
Bull v Fulton (1942) 66 CLR 295
Gellatly & Anor v Curtin & Ors [2006] WASC 88
Hatsouris v Hatsouris [2001] NSWCA 408
In the Estate of Kelly (1983) 34 SASR 370
Perpetual Trustees WA Ltd v Chadwick, unreported; SCt of WA; Library No 950555; 13 October 1995
Public Trustee v Head & Ors [2003] WASC 91
Rakich v Stanicich [2004] WASC 212
Re White [1951] NZLR 393
Re Will of Strickland (decd); Ex parte Varian [2004] WASC 261
Roebuck v Smoje & Ors [2000] WASC 312
EM HEENAN J: Margaret Mary Veronica Giudice died at St John of God Hospital Geraldton on 17 April 2002 in her 84th year. The cause of death was respiratory failure and disease (of four days' duration) with contributory causes associated with chronic heart disease. In this action one of her children, her third son, the plaintiff Norman Richard Barndon, seeks proof in solemn form of a will made by his mother on 23 December 1991, as revived and varied by a codicil of 3 August 2000. As will be described in more detail later, that will was duly executed by the deceased and witnessed by two witnesses in accordance with s 8 of the Wills Act 1970. However, the codicil of 3 August 2000, while executed by the deceased, was attested only by one witness and, accordingly, the plaintiff relies on s 34 of the Wills Act to prove that codicil as an informal testamentary document.
Family background
In these proceedings only the second and ninth defendants entered any appearance and they were represented at the hearing by counsel. However, service of copies of the writ on each of the other defendants was proved by affidavit.
Until the trial the second defendant (the widower) and the ninth defendant, a daughter and youngest child of the deceased, opposed proof of the 1991 will and the August 2000 codicil on the grounds that each was alleged to have been obtained by the undue influence of the plaintiff and, further, counterclaimed for the proof in solemn form of law of a later will of the deceased dated 18 May 2000. However, at the commencement of the trial the second and ninth defendants sought to discontinue the counterclaim as a result of a compromise with the plaintiff but on the basis that the plaintiff would still be required to prove, to the satisfaction of the court, that the 1991 will and the August 2000 codicil should be admitted to probate. Therefore, because there was no attempt to prove that the 1991 will had been revoked successively by a 1998 will or by the 2000 will, although this was implicitly assumed by the plaintiff, questions of onus of proof and of any need to determine the validity of the later will first, as explained In the Will of Steward (decd) [1964] VR 179 by the Full Court of the Supreme Court of Victoria, do not arise.
Neither the second nor ninth defendant expressly made any submissions about what should eventuate if the plaintiff failed to prove the 1991 will and August 2000 codicil but, in view of the approaches which the parties took to the proceedings, the only consequence of that eventuality seems to be, somewhat oddly in the circumstances, that the deceased would have died intestate. The trial proceeded on amended pleadings in which the defence of undue influence and the counterclaim propounding the May 2000 will were abandoned.
The deceased was born on 21 October 1918 and her maiden name was Reynolds. She married twice. The first marriage was to Norman Richard Barndon on 29 June 1938. There are four children of this marriage, the seventh and eighth defendants, the plaintiff and the third defendant. Tragically, her first husband, Norman Richard Barndon, developed leukaemia and died at a young age on 18 August 1952 when the third defendant, then the youngest child, was aged only four.
On 4 November 1953 the deceased married the second defendant, Pietro Georgio Giudice. There are three children of the second marriage, the fourth, the fifth and the ninth defendants. The second defendant and all of the children of the deceased have survived her.
The eighth defendant, Eric Joseph Barndon, married and is the father of one daughter, Annette Barndon - the sixth defendant. However, that marriage failed when Annette was a baby and Eric's wife left, leaving Annette aged nine months with her father and paternal grandmother, the deceased. Annette was taken over by the deceased and raised as one of the family and treated as a younger sister or stepsister of the other seven children. Within the family she is referred to as an "adopted" child of the deceased, although no formal adoption proceedings were ever taken.
The evidence provides the following particulars of the family:
(a)Margaret Mary Veronica Giudice - (born Reynolds)
21 October 1918.
- Died 17 April 2002.
First marriage to Norman Richard Barndon 29 June 1938 (died 18 August 1952 aged 38 years).
(b)Children of first marriage:
(i)Norman Vaughn Barndon - born 20 April 1939 (seventh defendant);
(ii)Eric Joseph Barndon - born 9 October 1942 (eighth defendant);
(iii)Norman Richard Barndon - born 17 January 1947 (plaintiff);
(iv)Margaret Anne Nash - born 8 March 1948 (third defendant);
(c)Second marriage to Pietro Georgio Giudice (second defendant) 4 November 1953.
(d)Children of second marriage:
(v)Peter George Giudice - born 24 July 1954 (fourth Defendant);
(vi)Kevin Francis Giudice - born 20 July 1955 (fifth defendant);
(vii)Shelley Maria Giudice‑Nairn - born 26 June 1958 (ninth defendant).
The evidence does not disclose the date of birth of Annette Barndon (the sixth defendant) but it does establish that she is of full age and competence.
The first defendant, Sian Sharmini Chelvanayagam, is a legal practitioner and was named, together with the plaintiff, as one of the two executors of the 1991 will. However, the August 2000 codicil indicates that this will was varied to substitute the plaintiff as the sole executor and no submissions have been made by any party to the contrary, nor is there any evidence to suggest otherwise, although, of course, if the codicil of August 2000 were ineffective and the will of 1991 is valid, the result would be that she would be a co‑executrix with the plaintiff. As noted, Ms Chelvanayagam has not appeared and has taken no part in these proceedings.
Testamentary documents of the deceased
Six apparent wills of the deceased and five apparent codicils, each purporting to relate to the 1991 will, were produced in evidence in this action. However, no party attempted to prove due execution, or informal execution which would satisfy the requirements of Pt X of the Wills Act, of any of these except for the 1991 will and the last of the five codicils, namely that of 3 August 2000. The significance of this approach will be considered after the various testamentary documents have been described. They are:
(1)A will of 6 October 1952, apparently duly executed and attested, but revoked by the second marriage of the deceased.
(2)An undated will of the deceased, said to have been made in 1980 - the absence of a date would not invalidate the testament: Corbett v Newey [1998] Ch 57 at 64, 67 and 70 - but revoked by the 1986 will. This document appears to have been duly executed and attested.
(3)A will of 30 May 1986, professionally drafted, and duly executed and attested, but revoked by the 1991 will.
(4)The will of 23 December 1991 apparently duly executed and attested, the will being propounded by the plaintiff and of which five codicils were tendered in evidence, namely:
(i)a codicil of 22 April 1994 apparently duly executed and attested but including supplementary manuscript signed by the deceased but not witnessed;
(ii)a codicil of 23 February 1997 in similar, but not identical, terms to the first codicil and including the supplementary manuscript all apparently duly executed and attested;
(iii)a codicil of 26 February 1997 signed by the deceased but attested only by one witness;
(iv)a codicil of 8 November 1999, signed by the deceased and by one witness only. This was made after a fifth will of 31 July 1998 and purports to revoke that fifth will and to revive the 1991 will and the second and third codicils;
(v)a codicil of 3 August 2000 (propounded by the plaintiff) signed by the deceased and by only one witness. This was made after a sixth will dated 18 May 2000, and purports to revoke that will and revive the 1991 will.
(5)A will dated 31 July 1998, professionally prepared and apparently duly executed and attested by two witnesses, and purporting to revoke all previous wills.
(6)A will of 18 May 2000, professionally prepared and apparently duly executed and attested by two witnesses and purporting to revoke all previous wills.
Although there are variations in the proposed disposition of the estate of the testatrix in the various wills there is something of a pattern discernable from all the testamentary documents adduced in evidence. Only three of the wills were professionally prepared by solicitors, namely the 1986 will, the 1998 will and the 2000 will, that is the third, the fifth and the sixth. Each of these appoints the ninth defendant as the sole executrix and, apart from the 1986 will which leaves the deceased's interest in the land known as "Nightcap Farms" to Eric Joseph Barndon, the eighth defendant, for life with the remainder over to the ninth defendant, leaves the entirety of the deceased's estate to the ninth defendant alone. The three other wills, and each of the five codicils to the 1991 will, were either written in manuscript by the deceased or are partly manuscript, partly typewritten, apparently by friends or assistants of the deceased. These instruments, although varying in the detail and in the nature and extent of specific gifts both of land and of personal property, provide for an equal distribution of the residue of the estate of the testatrix between her seven children and her "unofficially adopted daughter" Annette Barndon.
The evidence at the trial was from the plaintiff and his sister, children of the first marriage, from two witnesses to the 1991 will and from the one witness to the August 2000 codicil. No evidence was adduced by or on behalf of the second or ninth defendants. Evidence of the background circumstances known to the deceased when making the various testamentary documents is admissible in proceedings involving questions of express or implied revocation of a later will or testamentary document or the revival of an earlier will or testamentary instrument: In the Goods of Davis [1952] P 279; In the Will of Sargood (1904) 26 ALT 51; In the Will of Foss [1973] 1 NSWLR 180 and Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 (CA) but non‑testamentary writings or oral statements of the purported intentions of the deceased for making or altering such dispositions may not, on all occasions, be admissible. With such statements of intention by a testator made orally to others or in non‑testamentary writings there has been a variation in approach to admissibility, changing from total exclusion in the older cases - Re Goodenough's Goods (1861) 2 Sw & Tr 141 and Re Steele's Goods (1868) LR 1 P & D 575; In the Will of Butcher (1891) 13 ALT 166 moving to admissibility to resolve an ambiguity, as discussed In the Estate of Brian [1974] 2 NSWLR 231, and now to admissibility with regard to more general issues of fact as shown in cases such as: Lowthorpe‑Lutridge v Lowthorpe‑Lutridge [1935] P 151 at 157; Re Luck (decd) [1977] WAR 148 per Burt J; Re Barker [1995] 2 VR 439 per Tadgell J at 453; and Estate of Crawford (decd) (2004) 90 SASR 119 per Besanko J at 124 ‑ 125.
The evidence established that, at the date of her first husband's death, Mrs Giudice, and their children had been living on a small farming property comprising about 550 acres which had been acquired and developed by her first husband and which was the principal asset of his estate. Her first husband died intestate, and her son, Norman Richard Barndon, the present plaintiff, has been granted letters of administration of his estate. The late Mr Barndon's estate has never been fully administered, apparently because the deceased and her second husband took over and continued to operate that farm together with other properties which they progressively acquired. However, the plaintiff asserts that, by reason of the operation of s 14 of the Administration Act 1903 (WA), the deceased was entitled to the first $5000 of the net value of her first husband's estate (excluding household chattels) and to one‑third of the balance of the net value of the estate and that the four children of the first marriage are each entitled to the remaining two‑thirds of the net balance of their father's estate in excess of $5000.
The evidence also reveals that during the course of the deceased's second marriage to the second defendant they each prospered financially through farming, business enterprises and investments and that they acquired further farming lands, township properties, businesses and other investment properties of very substantial value. Much of this property acquired during the course of the second marriage, including additional farming property, township land where various businesses were conducted and other investment properties, was registered in the joint names of the deceased and her second husband, the second defendant. In the result the Giudice family became quite wealthy but, in broad terms, the four Barndon children remained in modest financial circumstances. As time passed the Barndons suffered a variety of setbacks: the plaintiff as a result of a divorce; the seventh defendant because of marginal operations on his sheep station operating in a drought prone area; the eighth defendant, Eric Joseph Barndon, still farming the old property, because of lack of education due to family necessity for him to leave school early to work the farm; and, the third defendant, Margaret Anne Nash (nee Barndon), because of long‑standing illness and disability.
The attitude of the deceased, Mrs Margaret Giudice, however, was always to treat all her children and Annette Barndon equally and to provide for all of them equally, although perhaps with some special additional provision for Eric Joseph Barndon to allow him to continue on "Nightcap Farms" for the rest of his life. However, for reasons which were not explored or developed out of respect for family discretion, it is apparent that the second defendant and also the ninth defendant were not in sympathy with Mrs Giudice's views that her property should be divided equally between all the children. They took the position that most of the wealth had been acquired in the course of the second marriage and that the benefit of this should go to Mr Pietro Giudice, if he survived as a result of the joint ownership and that all other property of the deceased should go to the ninth defendant who had taken on the task of living with and caring for her mother over the years before her death.
This difference in outlook was obviously a cause of concern both to the deceased and to others in the family. This tension is evident from the deceased's own words because, as recorded in the will of 23 December 1991, she said:
"In my life I have always been peaceful and tried always to hold my first and second families together as one because I love them dearly and equally. I never did believe in divorce because of my strict religious upbringing, even though it seemed the only way to safeguard every child's inheritance or future inheritance equally, at times."
Elsewhere, in that same will the deceased explained that she was not happy that the many properties owned by herself and her second husband were registered in joint names because she believed that, on her death, they would all pass to her husband by survivorship. She asserted that she had never been happy with that arrangement. The 1991 will contains language indicating that she desired to take steps to terminate the joint tenancies so as to ensure that "her 50 per cent" of those properties would be distributed on her death equally between all her children and her granddaughter, the sixth defendant. To this were added expressions of desire and the hope that her husband would facilitate this or abide by her wishes in this respect after her death.
Of course, one of the consequences of the alleged joint ownership of these many investment properties was that, had the second defendant predeceased his wife while those properties were still jointly owned they would have all passed to her upon survivorship. There was nothing in the evidence which gave any recognition to this potentiality and it does not seem to have been a consideration. It is unnecessary to determine whether, and if so why, the deceased may have been discontent with that possibility but it is certainly possible that she may have regarded the possibility that she may become the sole owner of all this property acquired during the second marriage as equally unsatisfactory and fortuitous, preferring the certainty and confidence which she hoped to have by being able to dispose, unconditionally, of an undivided half interest in all that property.
Although the deceased continued to live with her husband up until the time of her death and to be cared for by her youngest daughter, it is apparent that this difference in view about the disposal of her estate was an unresolved issue of contention between them. Plainly she believed that her desires in this respect could not be achieved by discussion with her husband and also perceived that her daughter, the ninth defendant, although attentive to her daily care, was opposed to any step which she might contemplate or take to provide for the Barndon children from her estate.
In the result, the deceased resorted to secrecy and evasion when it came to arranging her legal affairs. The Giudice family were very well known in Geraldton where the second defendant is and was a prominent well‑established businessman, farmer and land owner. The fourth defendant, the fifth child of the deceased, is a well‑known and successful barrister and solicitor practising in the town. Mrs Giudice had worked in his office and both by this means and by her long residence in the Geraldton district she was well acquainted with most of the other solicitors in the town and their families. She took the view, perhaps not without reason, that in such a small community if she were to consult any solicitor in Geraldton the news would soon get back to her husband and to the ninth defendant who would quickly conclude that she was attempting to make some provision for the disposition of her property contrary to their wishes and that this would cause major upset and unpleasantness within the family. Similarly, any unexplained visit by the deceased to Perth would be likely to produce the same effect. Furthermore, it would be necessary for Mrs Giudice to be accompanied by a member of her family to assist her if she had wanted to make such a trip and this would have been sure to arouse suspicions from her husband and the ninth defendant.
The evidence from the plaintiff, whom I accept as a completely honest witness who, so far as he is able to understand the issues involved, has endeavoured to be entirely truthful, was that the 1991 will was the result of domestic arguments within the family and was made at a time when his mother's marriage to the second defendant was at a point of crisis. Mrs Giudice's last will before that was the 1986 will, prepared by solicitors appointing the ninth defendant as her sole executrix, leaving a life interest in "Nightcap Farms" to Eric Joseph Barndon with the remainder and the entire residue of her estate to the ninth defendant.
Mrs Giudice took steps to have her 1991 will prepared by a friend, who was not involved in any legal circles in Geraldton or elsewhere. It was executed in a manner designed to avoid coming to the knowledge of her husband.
Nevertheless, it is evident that somehow or other the ninth defendant and probably the second defendant learned of the existence of the 1991 will. Later the deceased submitted to advice and persuasion from them, perhaps reluctantly, to make her 1998 will revoking all previous wills and appointing the ninth defendant her sole executrix and beneficiary. Again, however, the deceased arranged to have another testamentary document prepared, the fourth codicil of 8 November 1999, purporting to reaffirm the 1991 will and codicils of 23 February and 26 February 1997 and for all other wills, codicils and documents, even if she had signed them, to be "rejected, refused an(d) invalidated totally". This was followed by the sixth will of the deceased, executed on 18 May 2000, revoking all previous wills and again appointing the ninth defendant as the sole executrix and beneficiary. That will of 18 May 2000 was, apart from its date, in precisely the same terms as the earlier will of 31 July 1998. In the circumstances the conclusion is compelling, not merely simply probable, that the reason for the further testament of 2000 in those same terms was because the ninth defendant had become aware of the purported codicil of 8 November 1999 made by her mother and had once again prevailed upon her mother to make a further will leaving everything to her.
At this point it is important to emphasise that there is no allegation in these proceedings that the ninth defendant, her father or anyone else procured the execution of the July 1998 will or the May 2000 will through undue influence. Rather, it is clear that Mrs Giudice was most anxious to preserve family harmony and to avoid unseemly arguments with her daughter or her husband and, consequently, was prepared, even if reluctant, to appease them by executing the wills in terms which they desired although, as is equally obvious, she then set about means of secretly trying to undo their effects. So it was that further steps were taken by the deceased to have her son, the plaintiff, prepare a further codicil in August 2000, to send that to her daughter, Margaret Anne Nash, in Geraldton and to arrange for Mrs Nash to take her to have it executed without this becoming known to the ninth defendant or to her husband. It is that codicil, only witnessed by one person, which is the last testamentary document made by the deceased.
In these proceedings the plaintiff seeks to propound the 1991 will, together with the fifth codicil dated 3 August 2000, as constituting the effective testament of his mother. Significantly, no attempt is made to propound any of the four earlier codicils to the 1991 will. This approach is consistent with, and only consistent with, a view that the 1991 will and each of the first three codicils to that will were all revoked by the deceased's fifth will of 31 July 1998, that the fourth codicil dated 8 November 1999 purporting to revoke the 1998 will and to revive the 1991 will and the second and third of its codicils was then revoked by the sixth will of 18 May 2000 and that, finally, the May 2000 will was revoked by the fifth codicil dated 3 August 2000 which, once more, revived the 1999 will itself without any of the other codicils being so revived.
Because neither the second nor ninth defendants attempted to prove either the 1998 will or the 2000 will and because there is no evidence of due execution of either of those documents, there has been no actual proof that the 1991 will or any of its first four codicils was ever revoked by the deceased. Similarly, however, the plaintiff has not adduced any evidence of due execution of the first to fourth (inclusive) codicils to that will or attempted to establish that any of those codicils is an effective informal testamentary document within the scope of Pt X of the Wills Act. Obviously, however, the plaintiff's approach involves an acknowledgement that the 1991 will and the first four codicils were, at various times, revoked by the deceased but also assumes that the will itself was revived by the fifth codicil. This approach by the plaintiff which involves treating the 1998 will and the 2000 will as being effective, when executed, to revoke the 1991 will and codicils, but which was later revived, without formally proving that the 1998 and 2000 wills were valid and effective, is within the competence of the plaintiff as executor seeking to prove the revived 1991 will. I referred to the proper roles of a plaintiff executor and of the court in such situations in Wheatley & Anor v Edgar & Ors [2003] WASC 118 where, at [20] I referred to the judgment of Sholl J in Re Levy (decd) [No 2] (1957) VLR 662 at 665 where his Honour said:
"That indicates that the common case in which the executor was wont to make an application for proof in solemn form, after he had obtained a grant in common form, was the case in which he had reason to anticipate some question being raised as to the validity of the will and desired to have the protection which a grant in solemn form would give him. In such cases it was nevertheless the practice to grant probate in solemn form on proof of the due execution only, at all events if there was no opposition. That seems clearly enough to indicate that the executor was not, in the view of the Prerogative Court, or, after 1957, the Probate Court, bound to call before the Court of his own motion all available evidence, both favourable to and adverse to the will of which he obtained a grant in common form. The duty of such a person, after all, must be a duty to propound the instrument which the testator has appointed him to propound, if he puts it forward at all. He cannot owe any duty to take legal proceedings to destroy the instrument from which alone he takes his title, and that was pointed out in the case of In the Goods of Chamberlain (1867) LR 1 P & D at 316, to which reference was made in Re Levy deceased [1953] VLR 652 at 655. Such an executor has, of course, no duty to put forward an instrument if he is satisfied that it ought not to be put forward. But once he does put it forward, he is entitled, in my opinion to put it forward with only such evidence, available to him, as is in its favour."
Further reference can be found in Wheatley v Edgar (supra) to other authority to similar effect, including Vandeleur v Francich [1991] 1 Qd R 481. So long as the proofs which are offered in support of the will and codicil being propounded, together with any relevant presumptions as to testamentary capacity - Western Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144, will suffice to establish that the document or documents being propounded contain the last valid and effective testamentary disposition of the deceased they can be admitted to probate. In the present case, therefore, it is necessary for the plaintiff to establish that the codicil of 5 August 2000, although an informal testamentary document, is nevertheless effective by virtue of s 34 of the Wills Act and that it has informally revoked the 2000 will (Wills Act, s 36) and revived the 1991 will (s 37 of the Wills Act) and that the 1991 will was, before it had been revoked, a valid an effective will. Section 37 which allows for the informal revival of a revoked will other than in accordance with strict observance of the requirements of s 16(1) of the Act overcomes the problems identified by Hodgson J in Trickey v Davies; Re the Estate of Trickey (1994) 34 NSWLR 539.
Other issues to be proved by the plaintiff
It is necessary for the plaintiff to establish: that the deceased was of full age and testamentary capacity when she made the will or other testamentary instrument which is sought to be admitted to probate; that the deceased died leaving property within the jurisdiction; that the last will or other testamentary disposition of the deceased has not been revoked expressly, or impliedly by destruction or otherwise or by subsequent marriage; that the applicant executor is the person named as such in the last will or testamentary document; that he will faithfully administer the estate of the deceased in accordance with the will and as prescribed by law; and, that he himself is a person of full age and capacity and entitled to a grant of probate. In addition, the plaintiff should prove the names of the executor and of the subscribing witnesses to the will and any codicil; and, that no application for probate or letters of administration has previously been made, or, if there has been such an application, establish what has occurred in that application.
In this case it is proved by the testimony of the plaintiff and of Mrs Nash, as well as by the death certificate that the deceased died at Geraldton on 17 April 2002 and was then over the age of 21 years. It has also been established to my satisfaction that the deceased was married twice but did not marry again after 23 December 1991, the date of her fourth will. I am also satisfied that there has been no other application for probate of any will or letters of administration of the estate of the deceased and that the plaintiff, if granted probate, will administer his mother's estate according to law.
Property left by the deceased within the State
The plaintiff gave oral evidence of the assets which he considered constituted his mother's estate and of his estimates of the values of those respective assets. At my direction, however, an additional statement of assets and liabilities of his mother's estate was prepared by the plaintiff's solicitors, and verified by the plaintiff during further examination. This is Exhibit 22 in the proceedings and follows the format required for similar statements of assets and liabilities which must be filed in support of applications for grant of probate or administration in common form by this Court. As the practice of the Court requires, that statement purports to distinguish between immoveable assets within the jurisdiction (predominantly land) and moveable assets. In each case the plaintiff has attributed estimated values to the respective assets and has given evidence that he is unable to give better particulars of any of the assets or of their values because, not having had any grant of probate and being faced, until now, with the allegation that the last valid will of the deceased was the will of 18 May 2000 appointing the ninth defendant as the sole executrix and beneficiary, he had no authority to obtain possession or control of any of the assets or to obtain information as to their current status, particulars or value. Although Mrs Giudice died over four years ago there is no information before the court about the current status of any of the assets which she owned or in which she had an interest at the date of her death or of any income derived since the date of death from various income‑producing assets alleged to comprise part of her estate. I accept, therefore, that the plaintiff is unable to give better particulars of the assets of the deceased at the date of her death. The evidence which he has provided is sufficient to establish that the deceased did leave property within the estate in respect of which a grant of representation can and should be made.
The property which the plaintiff alleges constituted the estate of his mother at the date of her death and his estimate of the values of that property are as follows:
"Immoveable property
(a)1/8 share in a land partnership known as Penny Lane Shopping Centre, Geraldton, WA
E $75,000
(b)1/3 share, approximately 200 acres, of farmland, being 540 acres and Lot 34 Mt Erin, indirectly owned as a right by her, under the law of intestacy 'as applied to the death of the late Norman Richard Barndon (dec 1952)
E $250,000
(c)1/2 share of the business and land of Giudice & Barndon Funeral Directors, & Monumental Masons, in Geraldton WA
E $800,000
(d)1/2 share in the residential and commercial property rental business, which operates from the office and business of Giudice & Barndon Funeral Directors & Monumental Masons
E $2,500,000
(e)1/2 share of the large farming enterprise business known as "Nightcap Farms" at Mt Erin some 35 km from Geraldton
E $2,000,000
E $5,625,000
Moveable property
(f)Cash money, money at bank (unknown)
(g)Gold bullion, stored in the National Bank Geraldton
E $5,000
(h)Ornate diamond and gold rings and necklaces and figurines
E $30,000
(i)Furniture and personal belongings including piano, organ, grandfather clock
E $5,000
(j)Car E $5,000
Moveable property $45,000
Total assets in Western Australia $5,670,000
Liabilities
All debts wherever situated owing by the deceased in Western Australia - unknown."
By his cross‑examination of the plaintiff and his submissions, counsel for the second and ninth defendants made it clear that his clients do not accept that all the assets enumerated by the plaintiff form part of the estate of the deceased and that his clients allege that the values attributed to the respective assets are greatly overstated.
It is no part of the present proceedings to determine or identify all the assets or liabilities of the deceased or their values, so long as it is established that the deceased did leave assets within this jurisdiction. Nevertheless, in view of the controversy raised and the qualified evidence of the plaintiff to support the existence or value of all the assets listed, it is necessary to make some limited observations about this evidence.
First, with respect to the plaintiff's claim that the deceased had an indirect ownership in immoveable property, being the farming land at Mt Erin comprising the estate of her late first husband Norman Richard Barndon, it is evident that the true nature of the deceased's asset is an entitlement to participate in the distribution of the unadministered intestate estate of her late first husband. As that estate has never been fully wound up and there is no evidence available about the net value of the estate available for distribution as a surplus after all debts and other administration expenses have been satisfied, the asset is a personal interest rather than a real interest - Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] AC 694. Accordingly, the correct classification of this interest is that its status is moveable property rather than immoveable property. Either way, an interest in a solvent but unadministered intestate estate where the interest includes real property and the administrator is present within the jurisdiction is an asset and, therefore, property within the jurisdiction.
The other four items of alleged immoveable property particularised in the plaintiff's list of the deceased's assets all relate to shares in partnerships or businesses. In the course of his evidence the plaintiff explained that the alleged 1/8th share of the estate of the deceased in the land partnership known as Penny Lane Shopping Centre, Geraldton, represented a 12½ per cent share in the partnership which owned and managed that business. The partners were, as to 50 per cent interest: a company Penny Lane Investments Pty Ltd, and as to 12½ per cent interests, each of the second defendant, the deceased, the ninth defendant and her husband. No partnership agreement was produced nor was any certificate of title or other instrument of title showing the proprietorship of the partnership land produced.
With respect to the alleged interest of the estate in the business of Giudice & Barndon Funeral Directors; to the interest in the residential and commercial property rental business operating from the office and business of Giudice & Barndon; and to the alleged interest in the farming enterprise known as "Nightcap Farms", again no partnership agreement or agreements were produced. Although he was not certain of the position, the plaintiff believed that no partnership agreements for any of these businesses existed at the date of his mother's death. According to the plaintiff each of these partnerships owned large quantities of land, whether commercial property, domestic housing or farming land and, as far as he believed, the land holdings were all, or mostly, registered in the joint names of the second defendant and the deceased. Again, no documents particularising the properties or showing the registered proprietors were adduced. The explanation of the plaintiff being that he did not have the access or the resources to obtain this information and had decided to defer further investigations until, as he hoped, he obtained a grant of probate as a result of these proceedings.
With the absence of any detailed evidence about the nature and extent of these assets it is not possible to make any findings except that, on the limited evidence available, the plaintiff has established that the deceased, at the date of her death, probably had shares in the several partnerships listed but the nature, extent and value of those shares cannot be determined and do not directly arise in these proceedings. Whether those partnerships were dissolved by the death of the deceased - Partnership Act 1895, s 44(1), or otherwise, remains an open question.
Furthermore, even if some or all of the landholdings of these various partnerships were registered in the joint names of the deceased and her husband at the date of death it does not necessarily follow that the deceased's former interest in those lands disappears as a result of the operation of the right of survivorship, notwithstanding that the devolution of the land at law is to the survivor (Partnership Act 1895, s 30(2)). It might possibly have been converted into a personal interest. This is because, if the land were partnership property the combined effects of s 30, s 31 and s 32 of the Partnership Act and the equitable doctrine explained in Rees v Duncan (1900) 25 VLR 520 and Darby v Darby (1856) 3 Drew 495 at 498 ‑ 499 and 503; 61 ER 992 at 993 and 995 would mean that, notwithstanding that the partnership land was registered in the names of the partners as joint tenants, in the absence of an agreement to the contrary it will be presumed in equity to be held in trust for all the partners as tenants in common in the same proportions as those in which they were entitled to share in the partnership assets.
Whether some or all of the lands which were used by the various partnerships were in fact partnership property will depend on how they were treated by the registered proprietors, whether or not they were treated as partnership property during the course of the partnerships and, quite possibly, on whether or not they were purchased with partnership money (s 31) or were purchased from the profits derived by the partnerships from the operation of non‑partnership land (s 30(3)) - Harvey v Harvey (1970) 120 CLR 529 at 553 and 563. See, generally, Higgins & Fletcher: "The Law of Partnership in Australia and New Zealand", 8th ed, LBC Information Services (2001) at 130 ‑ 143 and "Lindley and Banks on Partnership", 18th ed (2002) Sweet & Maxwell at 75 ‑ 80 and 490 ‑ 495. These potential consequences are, of course, subject to the express terms of any or all the express partnership agreements which were current at the date of the death of the deceased and which determined, as between the partners, their mutual rights or entitlements with respect to partnership property - O'Brien v Komesaroff (1982) 150 CLR 310 at 322.
Whether or not any of the partnerships in which the deceased had an interest at the date of her death held land as partnership property, the deceased's interest in any such partnership and her estate's interest in the assets of such a partnership constitutes moveable and not immoveable property - Haque v Haque (1965) 114 CLR 98.
With respect to the moveable property listed in Exhibit 22 by the plaintiff the appearances are that all of these items are, indeed, moveable property and are not of insignificant value. This alone is sufficient to establish that the deceased left property within the jurisdiction in respect of which a grant of personal representation may be made.
The question of whether or not the lands upon which the various partnerships in which the deceased had an interest conducted business would, on the death of the deceased, pass to her second husband by survivorship because they, or many of them, were registered in the joint names of those two was clearly a matter of concern to the deceased. The terms of the 1991 will make repeated reference to this and of the intention of the deceased to convert the joint tenancies to tenancies in common in equal shares. The same intention of the deceased is manifest in several of the codicils. The deceased's desire to convert the joint tenancies to tenancies in common in equal shares is also evident from the codicil of 26 February 1997 which was made shortly after Mrs Giudice successfully underwent open heart surgery. Her assumption that such a severance had been accomplished is also implicit in the fifth codicil, the only codicil being propounded with the will of 3 August 2000.
In this respect there is a deed dated 21 February 1997 (Exhibit 12) executed unilaterally by the deceased reciting her desire to sever the joint tenancy in which 16 itemised parcels of land were held by herself and her husband. This deed contains some manuscript additions, evidently in the hand of the deceased, adding to the 16 specified properties the words:
"And all other properties not listed here which I'm entitled to as a wife of 44 years under the Family Law Act and I instruct my Executor and attorney to use the Inheritance Act of Australia to see that my Will is carried out".
It is not clear whether or not those manuscript additions formed part of the deed when it was originally executed. The deed purports to declare that as from its date the land (as defined) will be held by the deceased and her husband as joint tenants in law but on trust:
"That we or the survivor of us and our personal representatives or other trustees or trustee from the time being hereof ('the Trustee') shall sell the same in such manner with full power to postpone the sale thereof so long as we shall think fit unless and until either of us or persons claiming under us shall deliver or send by post to the Trustee such notice as hereinafter provided. The Trustee shall hold the net proceeds of sale after payment of the costs of and incidental to the sale and the net rents and profits of the Land until sale as and from the date hereof in trust for me and my husband or persons entitled to our estate in equal shares."
The deed also contains a provision to the effect that while the lands are, from then on, to be held on that trust for sale and distribution of the proceeds in equal shares, should either of the proprietors die before all the land is sold and the net proceeds distributed, their respective personal representatives and assigns "shall be entitled to the share in the land or the net proceeds of the sale of the land to which the party so dying was entitled ... "
Although not in issue in these proceedings the evidence established that the second and ninth defendants took the view that this deed was ineffective to sever the joint tenancies of any of the property listed or referred to and that the plaintiff had received legal advice that there was doubt about the effectiveness of that deed to accomplish a severance of the joint tenancies. No evidence was adduced about whether or not any steps had been taken to transfer the deceased's interest in jointly owned property to another or others pursuant to that declaration of trust or where, or by whom, the respective duplicate certificates of title for those lands were held. In this situation I can and should do no more than note the existence of a significant controversy over whether or not any of these joint tenancies has been severed - see, generally, Corin v Patton (1990) 169 CLR 540; Watt v Lord (2005) 62 NSWLR 495 per Gzell J at [39] ‑ [41] and Trustees of the Property of Cummins (Bankrupt) v Cummins [2006] HCA 6; (2006) 80 ALJR 586 at [60] and [71]. Clearly, any eventual determination of the questions of whether or not the jointly owned properties formed, in part or entirety, partnership property and, if so, resulted in the deceased partner's interest in them being held on trust for distribution of her share of the net proceeds of them to be distributed to her in the winding up of the partnerships upon her death or otherwise, or, if not partnership property, the joint tenancies were severed, will be important in determining the extent of the assets of the estate, but those questions do not arise for determination in these proceedings no matter how important or contentious they obviously are.
The will of 23 December 1991
The evidence relating to this will, its preparation and execution, comes from the plaintiff and, in addition, in relation to its due execution from the two attesting witnesses Mr John Leonard Cope and Miss Karen Rose Noble. Mr Cope's evidence was received, without objection, by affidavit because he had only very recently been discharged from hospital after undergoing treatment. There is only one small issue of uncertainty and that relates to whether or not two half pages of manuscript in the deceased's handwriting appearing beneath her signature and the signature of two witnesses, but subscribed by her signature alone, and a similar passage of manuscript on the back of the penultimate page of the will, again subscribed by the deceased and dated 23 December 1991, were inserted before or after the execution of the will in the presence of the two witnesses.
The plaintiff, Mr Barndon, said that his mother had added the two manuscript portions at the end of the will before he took her to the Geraldton courthouse where she executed it in the presence of the two witnesses. Mr Cope, the Clerk of Courts and first witness, did not refer to this matter in his affidavit which, otherwise, confirmed due execution of the will at the courthouse. Miss Noble confirmed the evidence of Mr Cope that the will had been produced by the deceased, whom she knew, to her at the courthouse and that she had requested Mr Cope to be present with her when Mrs Giudice signed the document in the presence of them both who each then subscribed their signatures as attesting witnesses. Miss Noble said that the many alterations appearing in the body of the will and initialled by Mrs Giudice had been made and initialled before the will was finally signed and witnessed in the presence of herself and Mr Cope but, in accordance with the practice followed at the court, neither of the witnesses himself or herself initialled the alterations or signed anywhere but on the last page of the testament. Signing of each page of the testament by the testator or testatrix and by each witness and initialling of any alteration or obliteration by each witness in addition to the testator and testatrix are common and prudent practices, but neither is essential to the formal execution or attestation of the will - in view of the evidence in this case which establishes that the alterations were in fact made before the will was executed - In Re Jessop [1924] P 221; In the Estate of Campbell (decd) [1954] 1 WLR 516. However, Miss Noble thought that the manuscript portions on the last two pages of the document were not there when she and Mr Cope witnessed the signing of the will by Mrs Giudice.
Although the two manuscript paragraphs mentioned were subscribed only by the testator and not by the two witnesses and despite Miss Noble doubts whether they were on the document when she and Mr Cope witnessed Mrs Giudice's signature, there is other evidence which tends to confirm the plaintiff's testimony that those manuscript passages were present in the will when it was duly executed as described.
As set out in more detail below, the will was prepared in circumstances of considerable secrecy and Mrs Giudice and the plaintiff went to the courthouse for it to be witnessed rather than go to any solicitor's office in Geraldton lest they may be noticed and news of the transaction be relayed to her husband or younger daughter. For the same reasons Mrs Giudice was not prepared to have the will, once executed, kept in her house because, according the plaintiff, she said that there was the risk that it would be discovered by the ninth defendant. Accordingly, immediately after the execution of the document the plaintiff took his mother to the R&I Bank Geraldton where the document was sealed in an envelope bearing instructions to the bank that it was only to be delivered to certain named persons of whom he was one and which was placed in her safe deposit box and left there.
After her death the plaintiff went to the bank, was granted access to the safe deposit box and found the sealed envelope containing the will unopened. There is no evidence to suggest that the testatrix opened the envelope or wrote on the will at any time after it was first deposited at the bank and I consider it improbable that she did so. Accordingly, the only opportunity for the manuscript passages to have been added to the will after its execution at the courthouse would, therefore, have been in the short interval between the time of execution and the deposit of the testament at the bank. As Mr Barndon has said that he took his mother directly to the bank after the will was executed it is most unlikely, and in my view improbable, that those manuscript passages were added after the execution of the document and my finding is that they were there when the will was signed at the court in the presence of the two witnesses and that they form part of the testament.
The 1991 will was prepared as a result of discussions between Mrs Giudice and a friend, Miss Monique Green, who was a State school teacher at Geraldton Primary School but who has since died. Miss Green was a young school teacher teaching there where she met the plaintiff and, through their teaching duties, became a friend. This friendship arose only out of their professional teaching occupations and did not involve any personal relationship. In the course of time Miss Green also met Mrs Giudice and the two women developed quite a friendship so that Miss Green would visit the deceased from time to time.
The plaintiff has given evidence, which I accept, that in 1991 when his mother was wishing to make a new will, she discussed with him how it might be prepared and explained how she felt that she could not approach any solicitors practising in Geraldton or elsewhere. The deceased enquired whether Miss Monique Green might be prepared to type the will for her and the plaintiff responded that he would enquire and report. He enquired of Miss Green and she agreed and, thereafter, Miss Green was in touch with the deceased both by telephone and in the course of visits before preparing a draft of the proposed will on her computer. The plaintiff says, and I accept, that he took no part in discussing with Miss Green or his mother the content of the proposed will but, after a draft had been prepared and given to him by Miss Green for delivery to his mother he read it, out of curiosity, and delivered to his mother without comment. Mrs Giudice made a series of corrections to the draft and initialled these and added some passages in manuscript.
On 23 December 1991 Mrs Giudice asked the plaintiff to take her to Mr J Cope, then the Clerk of Courts at Geraldton, for the will to be witnessed. The plaintiff drove his mother to the court and took her inside where she met, first, Miss Noble and then Mr Cope in the manner already described. Before the deceased signed the will and had it witnessed by Mr Cope and Miss Noble, Mr Cope enquired of her why she did not see her son George - the solicitor practising in Geraldton. Mrs Giudice responded to Mr Cope, in the presence of the plaintiff, "Oh no!, this is very private and confidential." and then proceeded to execute the will, after which it was taken to the R&I Bank in Geraldton and put in the sealed envelope and deposited as described.
Miss Monique Green was not legally qualified and the document comprising the 1991 will quite obviously reveals the lack of professional training and experience but this does not affect, in any way, its validity. Nevertheless, it does include a passage (page 1): "I hereby revoke all wills hereto made by me, and declare this to be my last will and testament". The significance of this clause is not merely its conventional effect of revoking all previous testamentary dispositions. If this will has, as the plaintiff asserts, indeed been revived by the codicil of 3 August 2000 then this revocation clause is also revived and affirmed with the effect that, quite apart from the terms of the reviving codicil itself, the revived revocation clause will revoke any intervening wills or codicils: Re Baker [1929] 1 Ch 668 and Re Pearson (decd); Rowling v Crowther [1963] 3 All ER 763.
Staple markings on the 1991 will
In addition to the manuscript passages on the last two pages of the 1991 testament which I have already concluded form part of the will, the document as tended in evidence comprises of 13 sheets of A4 typewritten paper stapled together at the top left‑hand corner by a common metal staple of apparent recent origin. The top left‑hand corners of the pages each show puncture marks or tears indicating that the pages have been stapled together on previous occasions and that those staples have been removed and replaced numerous times. No legal practitioner familiar with the practice of the probate jurisdiction can be unaware of the ominous potential significance of staple marks on a will because of the possible implication which they may have that a page or pages may have been added or removed since the date of execution or that another document operating as a codicil or revocation may have been attached to the will at a later date. In this case, however, there is the evidence of the plaintiff that the will was placed, immediately after execution, in a deed packet at the R&I Bank Geraldton and was retrieved from him there, apparently unopened or touched, after his mother's death. Mr Barndon went on to say that he had removed the original staple of the will to allow photocopies to be made and had restapled it only to repeat that process several times as further copies of the will were required for his solicitors, members of the family or for these proceedings. He said, and I accept, that there was no other document attached to the will when he retrieved it from the R&I Bank. A reading of the document also shows that it is grammatically and thematically consistent and progressive from page to page and, accordingly, any probability of the removal of a page or pages is therefore eliminated. I accept that the numerous signs and repeated stapling of the will have no relevance in relation to the validity or completeness of the document.
I am satisfied, therefore, that the document described as the last will and testament of Margaret Mary Veronica Giudice executed on 23 December 1991 was, until a subsequent revocation, a valid will and testament of the deceased.
The August 2000 codicil
The remaining question of importance is whether the 1991 will was later revived (after a further intermediate revival and later revocation), by the codicil of 3 August 2000. As already noted, that codicil while signed by the deceased was witnessed only by one witness and, if it is to be valid as a testamentary instrument and capable of reviving the 1991 will must take effect by virtue of s 34, s 35, s 36 or s 37 of the Wills Act.
The question is whether or not the plaintiff has satisfied this Court that the deceased intended by the informal writing to revoke an earlier will or alter an earlier will and to revive an earlier in whole or in part. Accordingly, it becomes important to consider the terms of this codicil of 3 August 2000 and I now set them out in full:
"Final Codicil by Margaret Mary Veronica Giudice
42 Urch Street, Geraldton
2/08/2000
(1)This codicil by me is to 'uphold' my will as prepared by Monique Green, signed and witnessed at the clerk of courts, Geraldton by the then registrar, Mr Cope which contains my intended instructions and the lawful appointment of my sole executor, my son, Norman Richard Barndon, of 8 Monk Street, Kensington, WA 6151.
(2)This codicil withdraws, cancels and annuls 'all other competing wills or documents' signed by me after the above Will (described above), and cancels all agreements and documents signed by me with my daughter Maria Giudice‑Nairn or 'any other parties', including the documentation or will I signed with her at the bank very recently.
(3)This codicil upholds the appointment of my son Norman Richard Barndon of 8 Monk Street, Kensington as the executor of my intended will, as set out in No 1 above.
(4)This codicil reaffirms that my son Eric Joseph Barndon must receive my share of Nightcap Farm and my interest in the old farm, known as Hillside and Waverlyn.
(5)This Codicil reaffirms that my son Norman Richard Barndon is to receive my house at 8 Monk Street Kensington, which I always promised to him, and he now lives in my house.
(6)This codicil cancels, revokes and annuls all other wills or documents, or future wills or documents that may be signed by me for reasons already made known to my son Norman Richard Barndon, even if future wills and documents are signed by me, they are to be rejected and ruled invalid by all courts of law and the probate office for reasons already made known to my son Norman Richard Barndon.
(7)I have been unwell. I was very upset about the signing of documentation with my daughter Maria Giudice‑Nairn, and I don't what I signed. I do know that I did not want to sign documents, and I tried to delay signing. I rang my son Norman Richard Barndon to correct the situation and I agreed to sign this Codicil, without any duress or pressure of any kind whatsoever, as I trust my son Norman Richard Barndon totally, and have selected him to carry out all my instructions.
Signed: M M V Giudice
Dated: 3/8/2000
Witness 1 (JP) Douglas G Wilson
Justice of the Peace
17 Crawford Street
Geraldtondated: 3/8/2000
Witness 2 (if required)
Dated --- "
On the same date Mrs Giudice signed another document entitled "Reinstatement of my Power of Attorney and Executorship to my Son Mr Norman Richard Barndon of 8 Monk Street, Kensington WA" - which was also witnessed by the same Justice of the Peace Mr Douglas G Wilson, and which is stapled to the codicil of 3 August 2000 - both documents comprising Exhibit 11 in these proceedings. The plaintiff does not propound this reinstatement of power of attorney but relies upon it to demonstrate a contemporaneous declaration of intention by the deceased of her regret and lack of intention in signing documentation arranged in the then recent past by the ninth defendant. On these issues that document is, in my view, admissible and it certainly does contain statements to that effect by the deceased.
The evidence relating to the preparation and execution of the codicil of 3 August 2000 comes from the plaintiff and his sister, Mrs Margaret Anne Nash, and I accept their evidence. The plaintiff said that after his mother had made the will of 18 May 2000, as a result of the ninth defendant's conduct, she telephoned him when he was living in Perth. According to the plaintiff his mother was very upset and crying and requested him to make a new codicil to reverse the documentation signed with Maria. She told him to fix it up and to prepare a codicil to uphold her 1991 will and to reverse the documents which she had signed with Maria so as to uphold the Monique Green Will. The plaintiff prepared, in draft, in Perth the proposed codicil and sent it by post to his mother but care of his sister, Mrs Nash, in Geraldton. Mrs Nash has given evidence that her mother told her that she could expect to receive a letter from Norm in Perth which was for her and that Mrs Nash should bring it to her as soon as it arrived. Mrs Nash spoke to her brother, the plaintiff, on the same day and also said that her mother had been very upset. The plaintiff told his sister that he would be sending a letter to her house and that she was to take it to their mother for Mrs Giudice to sign it in front of a Justice of the Peace and that once that was done Mrs Nash should post the letter straight back to him.
When the letter arrived at Mrs Nash's house in the post she telephoned her mother who told her to keep the letter because she had nowhere to hide it there at her home and asked the third defendant to come around the next day to fix it up. Mrs Nash went around to her mother's home, delivered the letter on an occasion when the ninth defendant was away in Perth. Her mother opened the letter, read the contents and said that it was important that it should be fixed up that day and showed the third defendant the document. There was some discussion as to how they would find a Justice of the Peace and there was some difficulty in finding a JP who was available that morning. After further enquiries via Mrs Nash's daughter, who was at the time working for the Aboriginal Legal Service in Geraldton, the third defendant was referred to Mr Wilson, a JP, and contacted him by telephone to ask if she and her mother could come around and he agreed.
Before leaving the house Mrs Nash asked her mother whether she should ring her father to tell him that she would be out of the house with her, but her mother's reply was to tell her not to contact anyone. Mrs Nash drove her mother to Mr Wilson's premises as Crawford Street, Spalding. These comprised a house and a large yard where there were workshops, garages and the like from which a construction business was conducted by Mr Wilson. The Hyundai Coupe which Mrs Nash was driving was rather small and low to the ground and Mrs Giudice found it difficult to get out of the car because of a sore hip. Accordingly, on arrival at Mr Wilson's house, Mrs Giudice found difficulty in getting out of the car so Mrs Nash went inside to enquire if Mr Wilson would be prepared to come to the car to witness the document and she says that he readily agreed. Mrs Giudice was sitting in the front passenger seat of the car and signed the codicil with it resting upon a magazine on her lap. Mr Wilson then used a book or something to rest on and he also signed the document by the side of the car as a witness. Mrs Nash remembers a second document being signed, which I find to be the reinstatement of the power of attorney - part of Exhibit 11. On returning to the car Mrs Nash enquired whether she should post the signed documents back to her brother Norman in Perth in the stamped addressed envelope which had been enclosed with the original correspondence. Her mother agreed and the two drove to the Geraldton Post Office and posted the letter. Before it was put in the mail box Mrs Nash asked her mother whether this is what she wanted and her mother responded in the affirmative, saying: "Yes, post it, I have to look after all of you. You know I have to make things right for all of you Marg."
Mr Wilson, the Justice of the Peace, was called and gave oral evidence and was cross‑examined. He has been a Justice of the Peace in the Geraldton area since 1986 and confirmed that the signatures on the codicil and on the accompanying reinstatement of the power of attorney were his. However, he had no recollection of the particular occasion on which these documents were signed or of coming out of his house to sign them by the car in which Mrs Giudice was sitting. He emphasised that he signs or witnesses many documents in his role as a JP and that it was his practice to ensure that any person signing a document satisfied him that he or she had the capacity to understand what was being done and if he were not so satisfied he would refuse to witness the document. He had no recollection of any doubts or misgivings about this particular incident and simply maintained that they were certainly his signatures on the documents as a witness and that he would not have signed them had he not been satisfied with the condition and understanding of the person whose signatures he was witnessing. I accept Mr Wilson's account as being thoroughly reliable and I am satisfied that he did witness the signature of the deceased on the codicil and that the signing and witnessing of the document were treated as important and significant actions having legal significance.
The only explanation which Mrs Nash could offer for the absence of a second witness to the document was that she thought she must have become distracted because of the unexpected difficulty which was encountered by her mother being unable to get out of the car and go into Mr Wilson's office to have the document signed and witnessed. In the process of Mr Wilson coming to the car and the document being signed and witnessed, followed by a brief conversation between Mr Wilson and her mother, the need for a second witness was simply overlooked.
There can be no doubt that, from the instructions which she gave to the plaintiff, the reasons which she had in her own mind leading to her intention to overcome the effects of the 2000 will arranged by the ninth defendant, the formality with which the codicil is expressed and the actions taken to have it signed in a formal fashion (admittedly not in accordance of s 8 of the Wills Act) that Mrs Giudice intended the codicil to have legal significance and, in particular, to confirm that the plaintiff should be her sole executor, that the Monique Green Will (plainly the 23 December 1991 will) should be reinstated, and that all intervening wills or documents, particularly those arranged by the ninth defendant (meaning the July 1998 will and the May 2000 will) should be revoked.
The question of whether a document satisfies the requirements of an informal will or testamentary document within the meaning of Pt X of the Wills Act has been examined in a number of cases, including In the Matter of the Will of Lobato (1991) 6 WAR 1; Estate of Kevin John Hines & Anor v Hines [1999] WASC 111 where Owen J discusses many of the cases reported to that date [22] ‑ [24]; In the Estate of Masters (decd) (1994) 33 NSWLR 446 per Kirby P at 452; In the Estate of Crossley (decd); Crossley v Crossley [1989] WAR 227; Re Estate of Frederick Raymond Reeve Perriman (decd) [2003] WASC 191 per Barker J. As these authorities demonstrate, satisfaction of the statutory tests required by Pt X is very largely a question of fact in each case.
Here there can be no doubt that there is a document, the codicil of 3 August 2000, which purports to embody the testamentary intentions of the deceased and that Mrs Giudice knew and approved the contents of the document. It was not executed in accordance with s 8 of the Wills Act because of the lack of a second attesting witness, but all other indications are that Mrs Giudice intended the document to have testamentary effect, to revoke all earlier testaments, save for the 1991 will which was expressly confirmed, and therefore revived, and that her son, the plaintiff, was to be her sole executor.
I am therefore satisfied that, despite the lack of a second attesting witness, the codicil of 3 August 2000 is an effective testamentary document, that it revokes earlier wills and codicils, with the exception of the 1991 will which it expressly revived, subject to the alteration that the plaintiff was to be the sole executor instead of being one of two co‑executors as originally named in that will.
Revocation of a last will by a codicil reviving an earlier will
A revoked will or codicil may be revived if it is re‑executed in a form which satisfies the requirements of the Wills Act or by the execution of a further will or codicil which reveals an intention to revive the revoked dispositions - Wills Act, s 16(1) and In the Goods of Davis [1952] P 279; In the Estate of Mardon [1944] P 109; Re Steele's Goods (1868) LR 1 P & D 575; Sebag‑Montefiore [1944] Ch 331; Re Lindsay (1892) 8 TLR 507 and Goldie v Adam [1938] P 85. For revival of an earlier will to occur by either of these means it is essential that the earlier revoked will or codicil remains in existence because such efforts will, in the one case be impossible, and in the second ineffective, if the earlier revoked testamentary document has been destroyed - Rogers v Goodenough (1862) 2 Sw & Tr 342 and In the Goods of Reade [1902] P 75.
There is authority - Goldie v Adam (supra) to the effect that a codicil which merely purports to "confirm" a revoked will does not provide a sufficient demonstration of intention to revive that testament unless it specifically identifies it leading to the observation that the word "confirm" is a very inappropriate indication of an intention to revive an early revoked testamentary document - [1938] P 85 at 92. Similarly, in In the Goods of Dennis [1891] P 326 it was held that a codicil referring to a revoked will only by recital would not be sufficient to revive that earlier will. Nevertheless, revival may be effected by language in the later codicil showing clearly an intention to revive an earlier will or to revoke an intermediate will: Goldie v Adam (supra); Re Wills and Codicils of Crawford (1892) 18 VLR 512 and In the Will of Killick [1960] VR 98 - for an extensive list of the cases see Tristam & Coote's: "Probate Practice", 29th ed (2002) Butterworths at 670 ‑ 671.
Similarly, a codicil which refers to a revoked will by date, or other identifying means, will not in the absence of a further intention to do so, be sufficient to revive an intermediate codicil: Burton v Newbery (1875) 1 Ch D 234 and Re Park, Bott v Chester [1910] 2 Ch 322, which means, in the present case, that because it contains no expression of an intention to do so the codicil of 3 August 2000 reviving the 1991 will would not revive any of the first four codicils to that will even if there had been evidence of due execution of them which, of course, the plaintiff has not adduced. See also Re Daly (1900) 2 N & S 1 (Tas SCt per McIntyre J).
Conclusion
In the result, therefore, I consider that the plaintiff has succeeded in establishing that the will of the deceased dated 23 December 1991 has been revived and varied by the codicil dated 3 August 2000 appointing him as sole executor and that by that codicil and the revived will all earlier testamentary dispositions whether wills or codicils which may have been in effect in August 2000 have been revoked. It follows that the plaintiff is entitled to a grant of probate in solemn form of law and of will of 23 December 1991 and the codicil of 3 August 2000 as together constituting the last testament of the deceased.
Subject to hearing further submissions from the parties, I propose to direct that the original copies of that will and codicil, which are exhibits in this action, should be removed from the file in this action and delivered to the Probate Registry of the Court to enable a formal grant of probate to be made and to direct that the plaintiff shall bring in a minute of the proposed grant of probate and a copy of the statements of assets and liabilities of the estate comprising Exhibit 22 of these proceedings for consideration by the Probate Registrar and to comply with any further directions of the Probate Registrar to allow such a grant to be made, subject to liberty to apply by summons in this action to a Judge of this Court for directions or further orders to deal with any matters necessary to allow a formal grant of probate in solemn form to issue.
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