Butterworth v Woods - [2010] WASC 176

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BUTTERWORTH -v- WOODS [2010] WASC 176

CORAM: EM HEENAN J

HEARD: 22 JUNE 2010

DELIVERED : 22 JULY 2010

FILE NO/S: CIV 2964 of 2009

MATTER :The Estate of Denis Bernard Sheehy late of Unit 2, 117 Washington Street, Victoria Park, in the State of Western Australia, Computing Officer, Deceased

BETWEEN: MICHELL CATHERINE BUTTERWORTH
First Plaintiff
MARGARET MARY SHEEHY
Second Plaintiff
AND
PATRICIA IRIS WOODS
First Defendant
MICHAEL ROBERT BUTTERWORTH
Second Defendant
JACQUELINE MICHELL BUTTERWORTH
Third Defendant

Catchwords:

Wills and administration - Application for grant of letters of administration in solemn form - Application for declaration against validity of former will - Revocation by alteration and obliteration - Informal wills - Presumption against intestacy - Informal alteration and revocation

Legislation:

Administration Act 1903 (WA), s 14, s 25
Wills Act 1970 (WA), s 8, s 10

Result:

Grant of letters of administration with the will annexed in favour of plaintiffs
Declaration that the last will of the deceased is the testamentary document dated 3 August 1986 but as thereafter informally altered and partially revoked by the deceased in his own hand between late 1987 and early 1988 and again in or about 1997
Declaration that plaintiffs are equally entitled under the will to distribution of the residuary estate

Category: B

Representation:

Counsel:

First Plaintiff                :     Ms M R Bloch
Second Plaintiff            :     Ms M R Bloch
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance

Solicitors:

First Plaintiff                :     Merle Bloch
Second Plaintiff            :     Merle Bloch
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance

Case(s) referred to in judgment(s):

Aoun v Clark [2000] NSWSC 274
Cheese v Lovejoy (1877) 2 PD 251
Dalton v Dalton [2008] WASC 56
Fell v Fell (1922) 31 CLR 268; (1922) 29 ALR 31
In the Will of Lobato Shields v Caratozzolo (1991) 6 WAR 1
Rabski v Rabski [2009] WASC 197
Re Adams (dec) [1990] 2 All ER 97; [1990] Ch 601
Re Estate of Donald Lee Hudson (dec) [2002] WASC 146
Re Estate of Ward; Marsden v Ward (Unreported, WASC, Library No 980180, 9 April 1998)
Re Hampshire [1951] WN 174
Re Jennifer Gay Strickland (dec); Ex parte Varian [2004] WASC 261
Re McCabe (1873) 3 P&D 94
Re Yates; Ex parte Public Trustee [2008] WASC 211
Sturton v Whetlock (1883) 48 LT 237

EM HEENAN J: This is an action in which the plaintiffs seek a grant of letters of administration of the estate of Denis Bernard Sheehy (deceased) and a declaration that a will of the deceased duly made and executed on 3 August 1986 has been revoked by alterations and obliterations apparently made to it by the deceased, with the result that he died intestate. Alternatively, they seek a grant of letters of administration with the will annexed, accompanied by such declaration as is necessary to determine the extent, if any, to which that will as originally executed has since been altered or partially revoked by the manuscript alterations and obliterations made to it by the deceased.
Denis Bernard Sheehy, late of Unit 2, 117 Washington Street, Victoria Park, in the State of Western Australia, computing officer (deceased), died on 9 June 2008 at Sir Charles Gairdner Hospital, Nedlands. He was then aged 56 years, having been born on 10 March 1952. The cause of his death, as recorded on the death certificate, was Hepatic encephalopathy (one week), diffuse liver cancer (six weeks), (Contributory Cause) Fracture of hip ‑ left femur (three months). He had been married twice. His first marriage was to Caroll Ann Foreman on 9 June 1973, from whom he was later divorced in February 1986. His second marriage was to Patricia Iris Curtis (as the first defendant was then named) on 1 November 1986. That marriage also ended in divorce ‑ decree absolute 22 January 1989.
By a deed poll made on 12 May 1988 the first defendant renounced and abandoned her former surname of Sheehy and adopted the surname of Curtis and declared that she would from then on use and assume the name Patricia Iris Curtis. Thereafter, on 8 November 1997 she married Robert David Woods and has since been known by the name Patricia Iris Woods.
The deceased was not in a de facto relationship at the time of his death and, so far as is known, was not in any such relationship after his divorce from his second wife.
The deceased had no children and did not adopt any child or children. There are no persons known who claim to be a child or children of the deceased.
The deceased was one of three children of Michael Patrick Sheehy, sales representative (deceased), who died on 27 January 1973, and his wife, Marjorie Catherine Sheehy, who died on 9 November 1969. The other two children of that marriage, the only siblings of the deceased, are:
•Margaret Mary Sheehy, of 52 Dukes Avenue, Muswell Hill, London in the United Kingdom (the second‑named plaintiff); and
•Michell Catherine Butterworth of 16 Claudare Street, Collaroy Plateau in the State of New South Wales (the first‑named plaintiff).
The first‑named plaintiff, Michell Catherine Butterworth had three children:
•Timothy Butterworth (deceased) who died in 1997;
•Michael Robert Butterworth (the second defendant); and
•Jacqueline Michell Butterworth (the third defendant).
Both Michael and Jacqueline Butterworth have attained the age of 18 years.
In the statement of assets and liabilities of the deceased prepared by his sister, the first‑named plaintiff, and verified by her affidavit sworn on 22 November 2008 the gross value of his estate is estimated at $326,671.50, comprising movable property, including a bank account, a motor vehicle and household and personal effects to a total value of $6,671.50, and a house and land at Unit 2, 117 Washington Street, Victoria Park, estimated to be worth $320,000. There were debts of $23,466.67, including a National Australia Bank loan and a Visa card liability, moneys owing to the Department of Health, funeral and other incidental expenses.
Both plaintiffs were in regular contact with their brother, the deceased, before his death. The first plaintiff, Mrs Michell Butterworth, travelled from New South Wales to spend time with her brother after he had become very ill and about a week before his death. During this period she visited him regularly in hospital. The second‑named plaintiff, Mrs Margaret Sheehy, had regular telephone and email contact with her brother, the deceased, and shortly before his final illness and death. She had visited Australia from London and stayed with the deceased in 1987, in January 1994, in February 2000, and again in October 2005.
Both plaintiffs say that the deceased had extreme osteoarthritis in both knees and in later years, being a big man, used a walking stick to move around. According to them, he became practically housebound. His car was not always roadworthy and, for these reasons, they believe it would have been very difficult for him to travel or attend meetings or appointments to make or alter a will.

The will

After his death the first‑named plaintiff, Mrs Michell Butterworth, found a will of the deceased in his home at Unit 2, 117 Washington Street, Victoria Park, in the chest of drawers next to the bed in the deceased's bedroom. She regards this as somewhat unusual and perhaps significant because she also found the deceased's personal papers, including his birth certificate and passport, in an expanding file in another room and says that the personal papers as found in that expanding file were meticulously organised. This is the only will or testamentary document which has been found among the papers of the deceased or in his home and inquiries made by the plaintiffs reveal no other will or testamentary document.
This will document is (subject to what follows) typewritten except for the signatures and particulars of the testator and witnesses and the date of execution. It consists of three pages and a cover page, stapled and bound together and bears all the appearances of having been professionally drawn and prepared, if not by a solicitor, by an experienced trust officer. It is dated 3 August 1986 and (before alterations) appointed Perpetual Trustees WA Ltd to be the executor and trustee of the deceased. However, it was not found in its original condition. As found there are extensive manuscript alterations, deletions, obliterations and additions to the text of the document, all made by a blue pen or biro. Stapled to the inside front cover of the will is a newspaper advertisement, evidently cut out from a larger page, and slightly yellowed with age, for the Public Trustee advertising the availability of the Public Trustee to administer a will and giving the address and telephone number of the office of the Public Trustee in Perth 'for free wills'. The will also contained a loose slip of paper with handprinted details of the name and address of the first‑named plaintiff and telephone number and the deceased's tax file number and bank account details. This handwritten note was found to be inserted loosely in, but not attached to, the will document. It reads:
.Ms Michell Butterworth
…
Collaroy Plateau NSW 2097 Ph …
.Tax file # …
.National Australia Bank
West End Branch
197 St Georges Tce Perth WA 6000
Account # …
(Details omitted for privacy and security reasons)
Other alterations to the will of 3 August 1986 made by the deceased are:
•the crossing out of the testator's former residential address in the first line and the substitution of a new residential address (not the residential address at the date of death);
•the circling by blue pen of the words 'computer operator' as describing the occupation of the testator with a line leading to a different description, namely 'computer systems engineer';
•the crossing out of cl 1 which stated that the will was made in contemplation of his marriage with Patricia Iris Curtis.
The evidence is that the deceased moved to 53 Willis Street, Victoria Park around late 1987 or early 1988, after he and the first defendant separated.
For reasons which are explained later, it would appear that the handwritten alterations, notations, additions or obliterations made to the will itself in blue pen were made on at least two different occasions.
Both plaintiffs, who are familiar with their brother's handwriting and script, have identified the writing and printing, both in blue pen on the will itself and by black pen on the loose note, as being written by their late brother. As it is known that the will was in his possession at all times up until his hospitalisation shortly before death and that the deletions are apparently by the same pen as the handwritten notations, there is also an inference that those alterations were made by the deceased: Re Adams (dec) [1990] 2 All ER 97, 99; [1990] Ch 601.
Accordingly, the questions which have now arisen, and which have led to a probate registrar declining to make any grant of personal representation in common form, so necessitating these proceedings, are whether or not the will as originally drawn and executed remains valid or has been partially or wholly revoked and, if not wholly revoked, what, taking into account the alterations, additions and obliterations, are the dispositive terms of the testament, if any, which take effect?
One of the manuscript alterations to the will of 3 August 1986 is to strike out the name of Perpetual Trustees WA Ltd as the proposed executor and trustee and to substitute the Public Trustee of 565 Hay Street, Perth. Neither this nor any of the other alterations, deletions or additions to that will has been properly executed by the testator or by any witnesses as required by s 8 and s 10(2) of the Wills Act but such requirement is, of course, subject to Part X of that Act, which would allow an informal alteration to take effect if it complies with the provisions of s 32(2)(b) of the Act. Consequently, in this case, the question of whether or not the will of 3 August 1986 has been altered or revoked by any or all of the alterations, additions, obliterations or deletions made under the hand of the testator raises the question of whether or not these, or any of them, operate as an informal, rather than a formal, alteration or revocation.
Accordingly, there is the possibility that the testator may have appointed one of two possible executors or no executors. However, that possibility is no longer of any significance because both Perpetual Trustees Ltd and the Public Trustee have filed notices by which they establish that neither has intermeddled, or will intermeddle, in the estate of the deceased and that each thereby renounces all its right and title to the probate and administration of the deceased's will of 3 August 1986 and disclaims all trusts thereunder. In the absence of any actual or potential executor applying for a grant of probate, it follows that if a grant of representation is made it should be either a grant of letters of administration with the will annexed, with an accompanying declaration as to which parts of the will are valid and effective, or a declaration that the will of 3 August 1986 has been revoked and a grant of letters of administration to a person or persons entitled.
Because the will of 3 August 1986 will have different effect according to whether or not it has been validly altered, counsel for the plaintiff adopted the practice of referring to the will as originally drawn as the 'unnotated' will, and to the will as altered, if the alterations were effective, as the 'annotated' will. This is an acceptable convention so long as it is realised that there is more than one set of alterations and, therefore, more than one possible set of dispositions appearing from that document.
The will of 3 August 1986 was made before the marriage of the deceased to the first defendant which, as already stated, took place on 1 November 1986. However, the will was made expressly in contemplation of that marriage and contained a provision that it should be void if the marriage did not take place. It, accordingly, took effect and was not revoked by that marriage: Wills Act s 14(1)(a). The will was not revoked by the subsequent divorce of the plaintiff and the second defendant because that occurred long before s 13 of Wills Amendment Act 2007 (WA) came into operation (s 14(4)).
The dispositions made by the will of 3 August 1986 showing the alterations made in the deceased's hand as they appear on the testament are as follows:
3.SUBJECT TO the payment of all my just debts, funeral and testamentary expenses and all Probate Estate Death or other Duties for the time being payable I GIVE the residue of my estate to my Trustee UPON TRUST ~~for my Fiancee Patricia Iris Curtis provided she shall survive me for a period of thirty (30) days but should the said PATRICIA IRIS CURTIS pre‑decease me or die before~~ attaining a vested interest then as to my residuary estate the following of this my will shall apply.
4.I GIVE AND BEQUEATH (free of all duties) for the time being payable on or in respect of my estate or on or by reason of my death the following absolutely:
~~(a)the late ERNEST STEMP'S wedding ring now owned by me to STUART LEONARD ERNEST CURTIS~~
~~(b)all my remaining jewellery bequeathed to me by~~ the ~~said PATRICIA IRIS CURTIS for division equally between such of the following persons, namely~~ LISA ~~PATRICIA VERSLUIS AND DONNA RIVIS CURTIS who shall survive me and if more than one as tenants in common.~~
~~(c)any pool table and accessories of which I may die possessed to the said Stuart Leonard Ernest Curtis~~ [manuscript print] (CONTINUED OVER PAGE)
(Printed on a facing blank page:)
.Half each to Marg & Michelle
.If Marg deceased all to Michelle
.If Michelle deceased and Marg alive then half to Marg and ~~one-sixth~~ [later added] equal parts to each of Michelle's children surviving of other half.
.If both Marg and Michell deceased then ~~one‑third each~~ equal parts of whole to each of Michelle's children surviving.
(d)All remaining household furniture and household furnishings for division equally between such of the following persons namely the said STUART LEONARD ERNEST CURTIS the said LISA PATRICIA VERSLUIS the said DONNA RIVIS CURTIS who shall survive me and if more than one as tenants in common.
5.SUBJECT THERETO I GIVE the residue of my estate to my Trustee UPON TRUST for division equally between such of the following persons namely the said ~~STUART LEONARD ERNEST CURTIS the said LISA PATRICIA VERSLUIS the said DONNA RIVIS CURTIS and~~ such of my Sisters namely MARGARET MARY SHEEHY and MICHELLE BUTTERWORTH (* inserted by printed alteration which reads * and the children of Michelle Catherine Butterworth) who shall survive me and attain the age of eighteen years and if more than one as tenants in common absolutely. Added in the hand of the deceased] ~~TIMOTHY BUTTERWORTH,~~ MICHAEL BUTTERWORTH, JACQUELINE BUTTERWORTH.
As is already apparent, Patricia Iris Curtis (now the first defendant) has survived the deceased and both his sisters, Margaret and Michell, have also survived him. Michell had three children, Timothy, Michael and Jacqueline, but, as noted, Timothy died in 1997 and Michael and Jacqueline are respectively the second and third defendants.
This background strongly suggests that a first set of alterations to the will was made by the deceased after his separation or divorce from the first defendant but before Timothy Butterworth's death ‑ in other words, between some time in 1988 and Timothy's death in 1997. The same considerations lead to a high degree of probability that those alterations providing, in certain circumstances, for the estate or part of it to be divided between Michell's two surviving children rather than her three children, including Timothy, having been made some time after Timothy's death.
Consequently, if the will takes effect without any of the alterations, the first defendant would be the sole beneficiary and entitled to apply for letters of administration with the will annexed. If, however, the will has been amended by some or all of the alterations, it would follow that the residuary bequest to the first defendant had been revoked and that the estate would be equally divisible between the plaintiffs. However, the alterations, (by addition), to cl 4 which appear to have that effect may be inconsistent with the alterations to cl 5 which provide for the equal division of the residuary estate between the plaintiffs and the second and the third defendants.
Finally, if the will of 3 August 1986 and all the various alterations or additions have been revoked, then the deceased will have died intestate and the sisters, as the only siblings of the deceased are entitled to participate equally in the distribution of the whole of the intestate property ‑ Administration Act s 14 Table item 9, and so be entitled to obtain a grant of letters of administration of the estate ‑ Administration Act s 25(1)(a).
All the potential beneficiaries, therefore, are parties to this action. Notice was earlier given to the first defendant alerting her to the existence of the will and the alterations and inquiring whether or not she would consent to the contention that the residuary bequest in her favour contained in the will in its original form had been revoked by the handwritten notations on the will and whether or not she consented to an application by Mrs Michell Butterworth to be appointed administrator of the estate on the basis of an intestacy or, further, whether she consented to an application by Mrs Michell Butterworth to prove the will of 3 August 1986 with the handwritten notations effective as informal alterations and to be appointed administrator with the will annexed. The first defendant, Mrs Woods, returned that proposed consent dated 16 January 2009, signed and endorsed by her in terms refusing to consent to the proposition that the will had been revoked by the handwritten notations or that the plaintiff, Michell Butterworth, should apply in the alternative for administration with the will annexed on the basis of effective informal alterations made by the handwritten notations, or some of them.

Since then, however, the first defendant, Mrs Woods, has filed a second consent form dated 13 October 2009 stating that in the light of an agreement which had been reached between herself and other interested parties concerning the distribution of the estate of the deceased, she now consents to the plaintiffs Michell Butterworth and/or Margaret Sheehy applying in the alternative (a) to be appointed administrators of the estate of the deceased as an intestacy or (b) to prove the will of 3 August 1986 on the basis that some or all of the alterations have informally revoked or amended earlier provisions of the will and for a grant of letters of administration with that will, as altered, annexed.
Consents from both the second and third defendants have also been produced agreeing to Mrs Michell Butterworth applying in the alternative to be appointed administrator to appoint her uncle's intestate estate or, alternatively, to prove the will of 3 August 1986 on the basis that the handwritten notations are effective informal alterations and for Mrs Butterworth to be appointed administrator of the estate of the deceased with that will, as altered, annexed.
The agreement referred to in the consent of the first defendant is not in evidence before the court but it is apparent from Mrs Woods' consent and from the affidavits of the plaintiffs that all the parties potentially entitled to distribution from the estate of the deceased have agreed upon a plan of distribution which will be put into effect regardless of whether the will of 3 August 1986 is effective in whole or in part or as altered in whole or in part, and regardless of whether or not there is a grant of letters of administration with the will annexed in whole or in part or a grant of letters of administration on the basis of an intestacy. Nevertheless, it is still necessary for some person or persons to obtain a grant of administration in order to be able to collect and distribute the assets and to complete the administration of the estate.
For this to occur, notwithstanding that there is agreement between the parties potentially entitled upon the distribution of the estate, it is still necessary for the court to determine the validity or otherwise of a will which has been propounded: Rabski v Rabski [2009] WASC 197 [16].

Revocation

Section 15 of the Wills Act provides that, apart from revocation by subsequent marriage or, as now applicable, divorce, or by a later valid will, whether a formal will or an informal will under Part X, the whole or any part of a will may be revoked by some writing declaring an intention to revoke it, executed in the manner in which a will is required or permitted to be executed by this Act, or by the testator or some person in the testator's presence and by the testator's direction burning, tearing or otherwise destroying it to give effect to the intention of the testator of revoking it. An informal revocation may be effective under s 32 or may amount to an informal alteration if this court is satisfied that the testator intended the alteration or revocation to constitute an effective alteration or revocation of the will as the case may be.
Prior to these statutory modifications of the general law a mere intention to revoke a will was not sufficient in cases in which it had been partially but not completely carried into effect: Cheese v Lovejoy (1877) 2 PD 251. There must be an animus revocandi so that even a will which has been destroyed or gone missing without an animus revocandi will still have effect and a copy may be admitted to probate: Re Hampshire [1951] WN 174. Similar principles apply in the case of alterations or obliterations because, before the amendments introduced by Part X of the Wills Act, alterations or obliterations which had not been properly executed and attested would not have effect unless, in the case of an alteration designed to facilitate a change in the will, the consequent change is actually made and properly executed and attested: Sturton v Whetlock (1883) 48 LT 237 and Re McCabe (1873) 3 P&D 94. Now, having regard to the provisions of s 32 of the Wills Act, the crucial question will be to determine whether the informal handwritten alterations were intended by the deceased to constitute a partial revocation and/or an alteration to his will or part of it.
Counsel for the plaintiffs submits that the provisions in the will of 3 August 1986 appointing Perpetual Trustees Ltd as his executor and providing for the whole of his residuary estate to be left to the first defendant if she should survive him and otherwise providing for the substitutional gifts in cl 4(a), (b), (c) and (d) were revoked expressly by the testator, although informally. In support of that submission counsel points to the deceased's then recent separation from the first defendant, his move to a new address, and for substitutional gifts instead to be made to his sisters or, in the case of Michell's death, to her then three children.
There is no evidence of the deceased maintaining any contact with the first defendant after their divorce. It has already been noted that she changed her married name to Curtis on 12 May 1988, before her divorce, and remarried on 8 November 1997. There is no suggestion that, after the divorce, Mr Sheehy had any continuing financial obligations to the first defendant ‑ rather, the evidence suggests that the relationship, completely and in all respects, had ended. It would, therefore, have been a natural and reasonable contemplation for the deceased to alter his will to remove the first defendant as a beneficiary and to provide instead for the only surviving members of his own family, namely his sisters and nephews and niece. It would also be reasonable, when making any such change, to change the executor. I therefore accept that the informal alteration substituting the Public Trustee was an effective alteration made to the will and the deletion of the residuary gift to the first defendant and the alterations to cl 4(a), (b), (c) and (d) and the provisions in cl 5 providing for the revocation of gifts to the first defendant, Stuart Leonard Ernest Curtis, Lisa Patricia Versluis and Donna Rivis Curtis, are also effective alterations revoking dispositions in favour of those named persons.
I also consider that the substitutional gifts for the plaintiffs and the second and third defendants and their brother Timothy were also made by the deceased with the intention of them taking effect as valid alterations to the will because, otherwise, there would have been an intestacy and no point in making those changes. The difficulty comes in reconciling the manuscript changes with the effect of the alterations to cl 5 which, on first sight, appear to be inconsistent in calling for a division of the property equally between the two sisters and the three nieces and nephews.
There has obviously been a second later set of alterations to the will because of the deletion of the provisions providing for Timothy Butterworth by obliteration of his name on both occasions when it appeared. There can be little doubt that this alteration was made by the deceased after he learned of Timothy's death some time in 1997 and that it was meant as an adjustment to take that sad event into account. Despite the appearance of some inconsistency between the amendments to cl 4 and those to cl 5, I consider that it is sufficiently clear from the terms of the will and the alterations, considered against the background of the family history, that, by these alterations, the deceased intended that if he should be survived by his two sisters, the plaintiffs, Michell and Margaret, they should receive equally between them the whole of his residuary estate. If only Michell survived him, she should obtain the whole residuary estate but if Margaret alone survived him she would have one‑half of the residuary estate and Michell's surviving children would take the other half equally between them.
This is a logical form of disposition for a person such as the deceased with no children of his own. It would ensure that the whole of his estate would be divisible equally between his surviving siblings and that, in any event, one‑half share would go to his nephews and nieces if their mother pre‑deceased him.
The second change deleting the name of Timothy Butterworth is entirely consistent with this overall purpose but had been made necessary because of the language of earlier alterations which provided for the interests going to the nephews and nieces to be one‑third shares or, in certain circumstances, one‑third of a half share, namely a one‑sixth share. I consider that that too was an expression of the actual testamentary intention of the deceased and intended by him to have effect like the other alterations which he had made.
The further alternative submission on behalf of the plaintiffs was that the alterations made to the will were of such a magnitude and nature as to evince an intention and purpose of revoking the entire will and, having done so, to contain the basic framework of a new will which the deceased intended to have made on his behalf by the Public Trustee but never got around to achieving. This line of submissions invokes the principle that alterations may be of such a nature or of such an extent that they are amount to a mutilation of the will with the intention of revocation: Re Adams (dec) [1990] 2 All ER 97, 99; Re Estate of Ward; Marsden v Ward (Unreported, WASC, Library No 980180, 9 April 1998); Aoun v Clark [2000] NSWSC 274 [25]; and Re Estate of Donald Lee Hudson (dec) [2002] WASC 146 [33].
In further support of these submissions counsel for the plaintiffs points to the fact that the will as altered, with the loose slip of paper within it and with the advertisement for the Public Trustee stapled to the front page, was found in the deceased's bedside table rather than with his important personal documents which had been kept in careful order: Estate of Donald Lee Hudson (dec), and that the stapling of the Public Trustee advertisement to the front page of the document was there as a reminder or an indicator by the deceased to himself of where to go to have a new will made for him without charge. The fact that the alterations were made to the original will document rather than to a copy was also relied upon to suggest that this had been done with the intention of revoking the will: Re Jennifer Gay Strickland (dec); Ex parte Varian [2004] WASC 261.
However, as against those considerations, the evidence is that the deceased had never raised with either of his sisters any question about the existence or contents of this or any other will. Despite being in regular contact with him and that Mrs Michell Butterworth had come to Perth to be with her brother when he was seriously ill just before his death, there had been no conversation by the deceased with either of his sisters about a will. If the preparation of a new will was a matter of unfinished business, one would have expected the deceased to have raised that at least with the first‑named plaintiff when he was in hospital if not before. If, however, the deceased, however inadvisedly, thought that he had made satisfactory arrangements to record his testamentary intention by his past actions, he would be more likely to think that there was no need to raise that subject with his sisters or during his final illness.
As for the suggestion by his sisters that because of his immobile state due to severe osteoarthritis, and the problems which the deceased evidently experienced with the reliability of his motor vehicle being explanations for a failure to visit the Public Trustee to have a new will made to replace the one which had been revoked, I am disinclined to accept that as a satisfactory explanation of this history of events. The first alterations to the will were, in all probability, made in 1987 or 1988, after the deceased's separation from the first defendant, and the second set of alterations in 1997 or 1998, after the death of Timothy Butterworth. If he had intended to have a new will made by the Public Trustee to replace the old one which had been revoked by the first set of alterations, it is surprising that nothing was done in that regard in the time which passed until Timothy's death ‑ an interval which must have been more than seven years. Similarly, if he made further alterations to the will after Timothy's death in 1997 but intended that a formal will should be made by the Public Trustee or some other body to give effect to them because his former will had been revoked, there is a second long delay from late 1997 until the deceased's death in 2008 without anything in that regard being done.
While it is possible that his housebound status might conceivably account for such long periods of inactivity, I consider that is highly improbable. Far more probable is an attitude or belief by the deceased that the alterations which he had made to the will were effective and gave a clear indication of his testamentary wishes from time to time.
This is not a case where the deceased was ignorant of or oblivious to the need to make a will. He had consulted a trustee company and made the will of 3 August 1986 in proper form when he was about to marry the first defendant. He was obviously aware that the provisions of that will were, in his opinion, unsuitable in relation to his changed circumstances after the separation and divorce, and he acted accordingly to make the alterations which have been described. Similarly, he acted again to make further appropriate alterations when he learned of the death of one of his nephews. The plan of disposition, if those alterations were effective as I am satisfied they were, was suitable to the deceased's changed circumstances and recognised the interests of the closest members of his family being the only persons who appear to have had any claim on his bounty. As Isaacs J said in Fell v Fell (1922) 31 CLR 268, 275 ‑ 276; (1922) 29 ALR 31:
The mind never inclines towards intestacy; it is a dernier ressort in the construction of wills. (Lord Shaw in Lightfoot v Mayberry [1914] AC 782 at 802.)
In ascertaining the intention, I ought to a certain extent ‑ we all know what the expression means ‑ to lean against an intestacy, and not presume that the testator meant to die intestate if, on a fair construction, there is reason for saying the contrary. (Buckley LJ in Kirby‑Smith v Parnell [1903] 1 Ch at 489.)
I consider it most unlikely that this deceased would have intended to die intestate ‑ the only possible explanation for him doing so, if that is what occurred, would be through ignorance or inadvertence. Had it not been for the introduction of amendments to the law contained in Part X of the Wills Act that would have been the result of the course of actions which he followed but, now that it is possible to give effect to informally executed expressions of actual testamentary intention, the risk of the individual's testamentary hopes and intentions being defeated because of lack of proper form no longer exists. The principles upon which this court gives recognition to informal testamentary documents and now informal alterations, revocations or additions to a will can be found in an established line of authorities, including In the Will of Lobato Shields v Caratozzolo (1991) 6 WAR 1; Re Yates; Ex parte Public Trustee [2008] WASC 211; and Dalton v Dalton [2008] WASC 56.
While I am satisfied that the informal amendments made to the will of the deceased originally dated 3 August 1986 were effective to make the revocations, additions and alterations as described, I am not prepared to conclude that either they, nor the stapling of the advertisement to the will, the place in which it was found in the deceased's home or any other circumstance advanced to that end, establishes that the will as so altered was revoked entirely so as to result in an intestacy. None of the alterations made was to an essential part of the will such as the execution and attestation clause or the signature of the testator or of the witnesses. I am satisfied that the intention of the testator was to leave the will in effect but to superimpose the changes which he had made informally upon its original provisions, believing that the will would take effect as so altered.
In the light of these conclusions, I consider that the relief which should be granted to the plaintiffs is that they both be granted as joint administrators letters of administration with the will of the testator annexed. The will as annexed is the will of the deceased originally made on 3 August 1986 and thereafter partially revoked and amended by the alterations and additions effected by the testator in his own hand in or about late 1987 and early 1988, and again as altered by the testator in his own hand in or about 1997 which, in the events which have happened, provides for the whole of the residuary estate of the testator to be left to his sisters, Michell Catherine Butterworth and Margaret Mary Sheehy, the plaintiffs, equally between them.