Conner v PENSTONE - [2010] WASC 197

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CONNER -v- PENSTONE [2010] WASC 197

CORAM: JENKINS J

HEARD: 22 JULY 2010

DELIVERED : 22 JULY 2010

FILE NO/S: CIV 1833 of 2009

BETWEEN: JOHN CONNER
Plaintiff
AND
ANTHONY PENSTONE
First Defendant
TREVOR PARSONS
Second Defendant

Catchwords:

Succession - Wills, probate and administration - Declaration of the force and validity of a will - Grant of probate - Informal will - Alterations and deletions to informal will

Legislation:

Administration Act 1903 (WA)
Rules of the Supreme Court (WA), O 73 r 15
Wills Act 1970 (WA), s 8, s 10, s 34, s 35

Result:

Grant of probate in solemn form of the will dated 22 June 2006

Category: B

Representation:

Counsel:

Plaintiff:     Mr D M Bruns
First Defendant              :     Mr J J Hockley
Second Defendant         :     Mr J J Hockley

Solicitors:

Plaintiff:     Hoffmans
First Defendant              :     PSB Legal
Second Defendant         :     PSB Legal

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

Cinnamon v The Public Trustee for Tasmania (1934) 51 CLR 403
James v Burdekin (1990) 3 WAR 298
Oreski v Ikac [2008] WASCA 220

JENKINS J: This is an action to prove in solemn form a will of the late Brenda Christine Joyce Parsons dated 22 June 2006 (the will). The statement of claim seeks probate of the will together with its alterations. However, the plaintiff by his submissions has abandoned the claim so far as the alterations are concerned.
I raised this issue with the plaintiff's counsel and he acknowledges that it may well also be my responsibility to consider the alterations. Counsel for the first and second defendants has urged me also to consider the effect of those alterations. I will do so.
On the hearing of this matter the plaintiff, on the one hand, and the first and second defendants, on the other hand, were represented by counsel. The third and fourth defendants have filed notices of intention to abide by the decision of the court. I am satisfied that all of the parties who were entitled to be, and who wish to be before the court, were represented.
The first and second defendants (the defendants) have filed a notice pursuant to the Rules of the Supreme Court 1971 (WA) O 73 r 15 stating that they insist on the will being proved in solemn form and intend to cross‑examine witnesses produced to support the will, but will not participate further in the action. This morning the defendants have restated their intention to adhere to the notice.
The will is a printed will form published by Muller Publishing and said to be the subject of copyright in 1996. It has been completed in handwriting.
The plaintiff called Dyan Fay Kirkup. She gave evidence that in about 2006 the deceased asked her to witness her will. At that time the deceased and Ms Kirkup were friends and work colleagues at the Mercy Medical Hospital.
The deceased told Ms Kirkup that she (the deceased) had built a house and was going to make a will that made sure that her relations would not benefit in the event of her death. The deceased told Ms Kirkup that she was not on speaking terms with any members of her family and the deceased told her why that was so. Ms Kirkup told her that she was prepared to be a witness.
Ms Kirkup says that about one to two days later, when they were on night duty together, the deceased told her that she had brought in her will for Ms Kirkup to sign.
Ms Kirkup says that she did not read the will but the deceased told her what was in it. The deceased told Ms Kirkup that she was leaving some money to Doctors Without Borders and also to the Cat Haven. She told Ms Kirkup that her aquarium was to go to a Morley aquarium shop because they had looked after her fish, and everything else was to go to her friend, John. That was a reference to the plaintiff.
Ms Kirkup gave evidence that the deceased then produced her will and that she (Ms Kirkup) signed it on the left hand side of the page. She has identified the original will as being the document that she signed.
In oral evidence Ms Kirkup said that the deceased also signed the will in her presence. However, Ms Kirkup cannot say that she was present when the other purported witness to the will, David M Fuller, signed the will.
The signatures of Ms Kirkup and the purported signature of a David M Fuller, appear as witnesses to the signature of the deceased. Ms Kirkup recalls the deceased calling over a David Fuller and telling him to sign the will. However, as I have said, she cannot say that she was present when he signed it or that Mr Fuller was present when the deceased signed the will.
By the will, the deceased appointed the plaintiff as executor. Her 'special requests' were:
(1)that she be cremated;
(2)a bequest of $5,000 for her cats to be found a good home;
(3)a bequest of $10,000 to the Cat Haven;
(4)a bequest of $20,000 to Medecins Sans Frontieres Australia; and
(5)a bequest of her catfish aquarium to Greg and Michael at Seaview Aquariums, Northlands.
She gave her residuary estate to the plaintiff and if he did not survive her, she gave it to be shared between the Cat Haven and Medecins Sans Frontieres Australia. The will is signed by the deceased and dated 22 June 2006.
There are other words on the will and there have been some alterations made to the terms of the will. Ms Kirkup is the only witness who has given evidence as to the form of the will when it was signed by the deceased. What she says is that those special requests which I have mentioned were in the will when it was signed. On the will, in its current form, special requests 2, 3 and 4 above have been ruled through and the deceased has initialled the deletions.
Ms Kirkup does not believe that a comment underneath the special requests in the following terms, that is, '[m]y cats are now in the Cat Haven', was in the will at that time it was signed. She does not believe that the words, 'I give nothing to any blood relatives or their descendants', was in the will when she signed it.
Ms Kirkup cannot say whether the words, '[d]israrg the line', were in the will when she signed it. She cannot say whether the words, 'I leave every to John Conner', which appear immediately after those words, were in the will when she signed it.
The words, 'I give nothing to any blood relatives or their descendants', appears immediately after the bequest of the residuary estate. The words, '[d]israrg the line', and, 'I leave every to John Conner', appear on the reverse side of the will form, by themselves.
Ms Kirkup also gave evidence that at the time the deceased and she signed the will, the deceased was 'perfectly normal', and Ms Kirkup does not appear to me to have any doubt as to the deceased's capacity to make the will or to understand the contents of it.
The original will is in evidence. It is written entirely in black ink. It is not possible to tell, from looking at the will, which parts of it were in the will originally or were added at a later time.
In addition to the will, two other relevant documents were apparently found in the deceased's possessions. The first is a signed but undated and unwitnessed printed will form. The majority of the contents of this document have been typed.
None of the parties wish to propound that document as the will of the deceased. The parties agree that this document is likely to pre‑date the will as the address given for the deceased on it was an earlier address which she had sold by 2006. I will say no more about that document.
The other document is a copy of the same uncompleted will form which the deceased used to make the will. It has handwritten on it the deceased's name and address as at the date she died. It appoints the plaintiff as executor but contains no testamentary bequests. It is apparently signed by the deceased but it is not witnessed. It includes the date 19 November 1970. As the parties point out, the form itself was not printed until 1996 so the date appears to have been misstated.
There is some suggestion that that document may have been written on 19 November 2007, a date very close to the date on which the deceased died. However, that is little more than conjecture. Again, as none of the parties seek to propound this document as the deceased's last will and given its obvious deficiencies as a testamentary instrument, I will not say anything more about it.
I now turn to the background to this matter. I have little evidence before me about the deceased's life and circumstances. All I know is that she was born in 1949 and died when she was 58. The deceased was single and had no children. She lived alone.
On 29 November 2007 her friend, the plaintiff, received a letter in the post from the deceased. The deceased wrote:
Dear John, I am sorry to do this to you, but by the time you get this letter I will be dead. I can't stand nursing any more ‑ I loathe it. I'm fed up with nursing and life. Call the police - the girl in the back unit has a key to my house. The cats are in the cat haven. Once again, I'm sorry to do this to you, Love Brenda.
After receiving the letter, the plaintiff went to the deceased's unit in Westminster. Nobody responded to his attempts to initiate contact with an occupant of the unit. He then called the police. After the police arrived and entered the unit, they informed him that the deceased had committed suicide by ingesting sleeping tablets. That cause of death is not contained on the death certificate which states that the cause of death is subject to coronial investigation.
The police gave the plaintiff an envelope containing the will. There is no evidence as to how the police came to find the will. The plaintiff made inquiries with the third defendant and was told that the deceased's cats had been dropped off at the Cat Haven on 20 November 2007.
The deceased's estate consists of moveable property worth approximately $76,000 and her unit in Westminster. The plaintiff was granted letters of administration limited to the power to sell the unit, discharge the mortgage debt to the mortgagee and pay the balance of the sale funds into trust. There is apparently about $212,000 held in trust as a result of that sale.
If I do not pronounce for the validity of the will in solemn form, the estate will fall to be distributed under the laws governing intestacy and the table which forms part of the Administration Act 1903 (WA). I am told that the defendants would each be entitled to a half share of the intestate's property. The first defendant is the nephew of the deceased and the second defendant is the brother of the deceased.
I now turn to consider the validity of the will. I am satisfied from the evidence of Ms Kirkup that the plaintiff has established that the deceased signed the will. I am also satisfied on the basis of her evidence that the deceased had the capacity at the time she made the will to do so.
The issue in this case concerns the validity of the will in that it was not duly witnessed in accordance with the provisions of the Wills Act 1970 (WA) s 8. Accordingly the will is invalid and of no effect unless it is given effect by s 34 of the Wills Act. Section 34 provides:
A document purporting to embody the testamentary intentions of a deceased person is a will of that person, notwithstanding that it has not been executed in accordance with section 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his will.
There is a further issue in respect to the alterations to the will. The alterations were not duly witnessed in accordance with the provisions of the Wills Act s 10.
Accordingly those alterations are invalid and of no effect unless they are given effect by s 35 of the Wills Act. Section 35 provides:
Any alteration made to a will of a deceased person after the will was executed or made has effect, notwithstanding the alteration has not been made in accordance with section 10, if the Supreme Court is satisfied that the deceased intended the will as so altered to constitute his will.
The defendants submit that the will dated 1970 was made shortly before the deceased's death and revokes all previous wills. I do not agree with this submission. The document dated 1970 does not purport to embody the testamentary intentions of the deceased in that it contains no dispositions of her property on her death. Further, it is not duly executed in accordance with the provisions of the Wills Act s 8. It is not given effect by s 35 of the Wills Act because I am not satisfied that the document constituted the deceased's will.
If the deceased had intended that document to constitute her will, then I am sure she would have had the document witnessed and she would have also inserted into it some testamentary dispositions.
The defendant's submit that there must be some doubt as to the validity of the will for the following reasons:
(1)It contains numerous alterations so that it is difficult to determine the terms of the will; and
(2)it is difficult to determine whether the document, because of those alterations, embodied the deceased's testamentary intentions at the time of her death.
Given that the will does not meet the requirements of the Wills Act s 8, there are three questions that must be answered in the affirmative for s 34 to have effect, namely:
(1)Is there a document?
(2)Does the document purport to embody the testamentary wishes of the deceased? and
(3)Does the evidence satisfy the court that either at the time the document was brought into being or at some later time the deceased, by some words or act, demonstrated that it was her intention that the document should, without more on her part, operate as her will? Oreski v Ikac [2008] WASCA 220 [52], [54] ‑ [55].
There is no doubt that the will is a document. However, for these purposes it is also necessary to ascertain the contents of the document at the time it was signed as opposed to when the deceased died. There is no dispute that alterations were made to the will after the will in its original form was made in June 2006. Courts presume that unattested alterations, amendments, interlineations and obliterations appearing in a will were effected after the execution of the will, although this presumption may be rebutted by evidence to the contrary: Cinnamon v The Public Trustee for Tasmania (1934) 51 CLR 403, 410, 416, 421.
From viewing the original will and receiving the evidence of Ms Kirkup, I am satisfied that at the time the deceased signed the will it contained the special requests of bequests to the Cat Haven and to Medecins Sans Frontieres, and also a special request of a bequest to an unknown person of $5,000 for the deceased's cats to be found a good home. I am satisfied that all the other bequests in the will were also contained in the original will.
I am satisfied on the basis of Ms Kirkup's evidence that the comment, 'I give nothing to any blood relatives or their descendants', was not included in the original will. It also seems to me that the comment, '[m]y cats are now in the Cat Haven', was not included in the original will. That finding is made not only on the basis of Ms Kirkup's evidence but on the letter the deceased wrote to Mr Conner, the plaintiff, advising him that she had left the cats with the Cat Haven and on the subsequent advice Mr Conner received from the Cat Haven that the cats had been dropped off at the Cat Haven in November 2007, well after the will was originally signed. I also think it doubtful that the words '[d]israrg the line' and 'I leave every to John Conner' were included in the original will.
The next question for me is whether the will in its original form purports to embody the testamentary wishes of the deceased. That question must be answered in the affirmative, as it is a will by its very terms. It was clearly a formal will in all respects, other than that Mr Fuller and Ms Kirkup were not present together with the deceased when she signed the will and when each of them signed the document. In all other ways, the will purports to embody the testamentary wishes of the deceased.
The last question is: at the time the document was brought into being or at some later time, did the deceased by some words or act demonstrate that it was her intention that the document should, without more on her part, operate as her will. I also answer this question in the affirmative. It is clear from the conversations that the deceased had with Ms Kirkup that she intended that the will in its original form should have effect as her will. The deceased signed the will. There is really no evidence to the contrary.
The plaintiff would then say that the will in its original form should be admitted to probate. Contrary to his statement of claim, he does not today seek to propound the validity of the will in its form at the time of the deceased's death. However, I do not think, as I have said, that I can simply ignore the substantial changes to the will.
In James v Burdekin (1990) 3 WAR 298 the court set out four elements which must be established under s 35 of the Wills Act where alterations to a will were not made in accordance with s 10 of that Act. First there must be a will; namely, a document purporting to embody the testamentary intention of the deceased. Secondly, the will must have been altered after its execution. Thirdly, the alteration must not have been made in accordance with s 10 and, finally, the court must be satisfied that there is no reasonable doubt that the deceased intended the will as so altered to constitute her will.
I am in no doubt at all as to the existence of the first three of these elements and I need say no more about them. The resolution of this issue depends on the fourth matter. The first step is to examine the will itself and determine what conclusions may be drawn from the manner in which it has been altered.
I note that all deletions in the will have been initialled by the deceased. I also note that the deletions are selective; that is, not all the special requests have been deleted, only some of them. The deceased has not initialled the additions she made to the will but these are in the form of comments, rather than dispositions. The first such comment is that relating to her cats now being in the Cat Haven. As I have indicated, the evidence discloses that this comment was probably written after 20 November 2007 when she dropped her cats at the Cat Haven.
The comment, it has been suggested to me, is indicative of the fact that the deletions to the special requests to the Cat Haven were logical, as the cats were then in the Cat Haven and perhaps the Cat Haven no longer had to be given money to support them. Also, it was at that point unnecessary to give anybody money in order for the cats to be found a home. These comments do not explain the deletion of the special request of a bequest to Medecins Sans Frontieres.
The important thing is that the comments about the possible reasons for the deletion of the special requests regarding the cats do not derogate from the inference which I have drawn that the deceased made deliberate deletions to the special requests in the original will. If anything, the comments support the inference that the deletions were deliberate and embodied an intention on the deceased's part to delete those testamentary gifts from her will.
The next addition is the sentence, 'I give nothing to any blood relatives or their descendants'. Again this is a comment on the effect of the earlier disposition of her residuary estate to the plaintiff. It does not detract from the inference that the deletions were intended by the deceased to have testamentary effect.
Lastly, there is the probable additions of the words '[d]israrg the line' and 'I leave every to John Conner'. The last comment is consistent with the deletions made to the original will of the special requests. It indicates that the deceased was intending those deletions to have effect.

The first comment, '[d]israrg the line' is difficult to understand. I form the view that whatever its meaning it does not detract from anything that I have already said or suggest that there is anything else that I need to consider. I can, I think, simply disregard that comment.
Having regard to these matters, I am satisfied that there is no reasonable doubt that the deceased intended the will as so altered to its current form to constitute her will. In saying that, I have referred to the requirement in James v Burdekin that the standard of persuasion is that there must be no reasonable doubt that the deceased intended the will as so altered to constitute her will. That high standard is no longer applicable, as I understand it, but even if that was the standard, I am satisfied of it. It seems to me that the deceased by deleting those special requests, initialling those deletions and making the comments that she has made on the will has indicated that she intended the will as so altered to constitute her will.
Consequently, I grant probate in solemn form of the will of the deceased dated 22 June 2006 including its alterations.