Crisp v Australian Rotary Health Research Fund

[2019] WASC 486

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   CRISP -v- AUSTRALIAN ROTARY HEALTH RESEARCH FUND [2019] WASC 486

CORAM:   HILL J

HEARD:   19 SEPTEMBER 2019

DELIVERED          :   19 SEPTEMBER 2019

PUBLISHED           :   23 JANUARY 2020

FILE NO/S:   CIV 2387 of 2018

MATTER:   The Will of William Ward Hill, late of 52 Belair Lifestyle Village, 463 Marine Terrace, Geraldton in the State of Western Australia, Deceased

BETWEEN:   DANIEL JOHN CRISP

Plaintiff

AND

AUSTRALIAN ROTARY HEALTH RESEARCH FUND

First Defendant

JOHN WARD HILL

Second Defendant

MATTHEW HILL

Third Defendant

CHRISTINE CRAWFORD

Fourth Defendant

FIONA CAIRNEY

Fifth Defendant

AUDREY MCLEAY

Sixth Defendant

PAMELA CAMPBELL

Seventh Defendant

Catchwords:

Wills –Validity of will witnessed by only one witness - Whether informal will embodied deceased’s testamentary intentions – Whether deceased intended informal will to be his will – Turns on own facts

Legislation:

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

Result:

Informal will valid

Category:    B

Representation:

Counsel:

Plaintiff	:	Mr J C Yeldon
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance

Solicitors:

Plaintiff	:	Pacer Legal Pty Ltd
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	In person
Fourth Defendant	:	In person
Fifth Defendant	:	In person
Sixth Defendant	:	In person
Seventh Defendant	:	In person

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

Dalton v Dalton [2008] WASC 56

Deeks v Greenwood [2011] WASC 359

Dolan v Dolan [2007] WASC 249

D'Unienville v Sakalo [No 2] [2013] WASC 469

Hatsatouris v Hatsatouris [2001] NSWCA 408

Hearn v La Housse [2007] WASC 99

Oreski v Ikac [2008] WASCA 220

Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191

Riches v McInnes [2010] WASC 298

Spencer v Spencer [2009] WASC 198

The Public Trustee v Gerritsen [2012] WASC 201

HILL J:

1. The plaintiff, Daniel John Crisp, asks the court to declare that the document dated 21 May 2009 signed by the deceased constitutes the last will of the late William Ward Hill (Will).

2. The document was signed by the deceased but was witnessed by only one witness. As such, while the document complied with the formal requirements of s 8(a) and s 8(b) of the Wills Act 1970 (WA), it did not comply with the formal requirements of s 8(c) and s 8(d) of the Wills Act. For this reason, the effect of s 8 of the Act is to render the Will invalid.

3. The plaintiff relies on the Wills Act, s 32. This section provides that a document may constitute a Will, even though it was not executed as required by the Act, if the court is satisfied that it purports to embody a deceased person's testamentary intentions and that the person intended the document to constitute his or her Will.[1] 

   [1] Wills Act 1970 (WA), s 32(2)(a).

4. The matter came before me for hearing on an undefended basis on 19 September 2019.  At the hearing, the plaintiff relied upon the affidavit of Daniel John Crisp sworn 1 April 2019 as well as the oral evidence of Stephen Terence Park, the solicitor who drafted the Will, and Daniel John Crisp, the proposed executor under the Will.  The plaintiff also tendered a witness statement of Clifford Trevor Lake, the witness to the Will, dated 3 September 2019.[2]

   [2] Exhibit 7.

5. The plaintiff tendered the trial bundle which I received as evidence in these proceedings.[3]  This trial bundle included copies of the following affidavits which had been filed in the probate division of this court:

   (a) affidavit of Daniel John Crisp sworn 16 October 2013;

   (b) affidavit of Daniel John Crisp sworn 3 December 2014;

   (c) supplementary affidavit of Daniel John Crisp sworn 6 February 2015;

   (d) supplementary affidavit of Daniel John Crisp sworn 23 October 2017;

   (e) supplementary affidavit of Daniel John Crisp sworn 12 February 2018; and

   (f) affidavit of Clifford Trevor Lake sworn 16 October 2013.

   [3] Exhibit 1.

6. The plaintiff tendered five further bundles of documents containing evidence referred to in the writ of summons, which was not already in evidence before me.[4] 

   [4] Exhibits 2 - 6.

7. At the conclusion of the hearing on 19 September 2019, I made orders declaring the document dated 21 May 2019 to be the valid Will of the deceased and said that I would publish my reasons.  These are the reasons for my decision.

Legal principles to be considered

1. The applicable legal principles are well settled and it is not necessary for me to set them out in any length.

2. For a document to constitute a Will, it is necessary that there be cogent evidence that the document embodied the deceased's testamentary intentions and that the draft was adopted and authenticated by the deceased.[5]  This is true for documents invalid by reason of there being only one attesting witness to the document.[6]

   [5] Deeks v Greenwood [2011] WASC 359 [73] - [74].

   [6] See Hearn v La Housse [2007] WASC 99.

3. In forming its view, in addition to the document said to constitute the Will, the court may have regard to any evidence relating to the manner of execution or testamentary intentions of the deceased, including evidence of statements made by the person.[7]

   [7] Wills Act 1970 (WA), s 32(3).

4. It is not, of itself, sufficient that the document represents the deceased's testamentary intentions.  It is necessary that the document be intended to be the legally operative act which disposes of the deceased's property on his or her death.[8]

   [8] Oreski v Ikac [2008] WASCA 220 [54].

5. Probate will not be granted in respect of a document which contains only a preliminary, tentative or incomplete expression of the deceased's testamentary intention or where there is evidence that the document was prepared for further consideration and possible revision.[9]

   [9] D'Unienville v Sakalo [No 2] [2013] WASC 469 [158].

6. The plaintiff bears the onus of establishing that the document embodies the deceased's testamentary intentions. That is, the court must be satisfied on the balance of probabilities that the deceased intended the document to constitute the deceased's Will.[10]

   [10] Dolan v Dolan [2007] WASC 249 [15].

Factual Background

1. The plaintiff was the financial adviser of the deceased and, prior to his death, had managed his retirement investments for approximately 10 years.[11]  The plaintiff's evidence was that:

   (a)the deceased relocated from Scotland to Australia in 1967 and initially resided with one of his brothers in Queensland;[12]

   (b)after a disagreement with his brother, the deceased moved to Western Australia and never spoke to his brother again;[13]

   (c)the deceased was estranged from the remainder of his family and did not keep in touch with them;[14]

   (d)in 2009, the deceased expressed a desire to do a Will and asked the plaintiff if he would be executor of his estate.[15]  The deceased expressed his wish to leave his estate to a charity that focused on health research, specifically mental health and/or children focused health issues and in particular sudden infant death syndrome.[16]  The deceased stated that the charity had to be one which allocated the entirety of any donations to its charitable purpose;[17]

   (e)he provided the deceased with the names of four different charities, one of which was the first defendant;[18]

   (f)he referred the deceased to Michael, Whyte & Co[19] and made the appointment for the deceased to meet Mr Park of that firm on his next scheduled visit to Geraldton.[20]

   [11] Exhibit 9; Exhibit 1, Tab 15 (Supplementary Affidavit of Daniel John Crisp sworn 3 December 2014) [1(c)(i)]; Exhibit 1, Tab 18 (Affidavit of Daniel John Crisp sworn 12 February 2018) [4].

   [12] Exhibit 1, Tab 15 (Affidavit of Daniel John Crisp sworn 3 December 2014) [1(c)(ii)].

   [13] Exhibit 1, Tab 15 (Affidavit of Daniel John Crisp sworn 3 December 2014) [1(c)(iii)].

   [14] Exhibit 1, Tab 15 (Affidavit of Daniel John Crisp sworn 3 December 2014) [1(c)(iv)].

   [15] Exhibit 1, Tab 15 (Affidavit of Daniel John Crisp sworn 3 December 2014) [1(c)(vi)].

   [16] Exhibit 1, Tab 15 (Affidavit of Daniel John Crisp sworn 3 December 2014) [1(c)(vii)].

   [17] Exhibit 1, Tab 15 (Affidavit of Daniel John Crisp sworn 3 December 2014) [1(c)(viii)].

   [18] Exhibit 1, Tab 15 (Affidavit of Daniel John Crisp sworn 3 December 2014) [1(c)(ix)].

   [19] Exhibit 1, Tab 15 (Affidavit of Daniel John Crisp sworn 3 December 2014) [1(c)].

   [20] Exhibit 1, Tab 15 (Affidavit of Daniel John Crisp sworn 3 December 2014) [1(c)(x)].

2. The deceased died in Geraldton Hospital in Geraldton, Western Australia on 12 September 2013.[21]

   [21] Exhibit 1, Tab 1.

3. Approximately two days after the deceased's death, the plaintiff personally inspected the home and personal records of the deceased and found the Will.  The plaintiff has found no other documents of a testamentary nature made by the deceased.[22]

   [22] Exhibit 1, Tab 15 (Affidavit of Daniel John Crisp sworn 3 December 2014) [1(f)].

4. The Will left by the deceased is at Annexure A of these reasons for decision.  The document is in writing and was signed by the deceased in front of one witness, Clifford Trevor Lake.  Mr Lake attested to the Will.

5. Relevantly, in the Will:

   (a)by clause 1, the deceased revoked all previous wills and declared the Will to be his last Will and testament;

   (b)by clause 2, he appointed the plaintiff to be his executor and trustee;

   (c)by clause 3, the deceased gave all his property to the plaintiff to pay the deceased's funeral debts and testamentary expenses and all duties and taxes and to hold the balance payable to the Australian Rotary Health Research Fund of 43 Hunter Street, Paramatta, New South Wales.

6. On its face, the Will was prepared by a solicitor, Mr Stephen Park of Michael, Whyte & Co.  Mr Park's evidence was that the Will was prepared following his meeting with the deceased in Geraldton on 20 May 2009.[23] 

   [23] Exhibit 8 (Witness statement of Stephen Terence Park) [14] - [17];  Exhibit 1, Tab 3 (Letter from Michael, Whyte & Co to W Hill dated 20 May 2009).

7. Following preparation of the Will, Mr Park sent the Will to the deceased.  The Will appears to have been signed by the deceased on 21 May 2009 in the presence of one witness, Mr Lake.  There was no other witness to the Will.

8. Mr Lake, an accountant who is currently a principal of RSM Australia Pty Ltd, swore an affidavit in relation to the plaintiff's application for probate.[24]  In this affidavit, Mr Lake gave evidence that the deceased, who was a client of RSM Bird Cameron, signed the Will in his presence on 21 May 2009.[25]  In his witness statement which was tendered at trial, Mr Lake's evidence was that he has no present recollection of meeting Mr Hill[26] but confirmed that his signature appears on each page of the Will as a witness.[27]

   [24] Exhibit 1, Tab 20. 

   [25] Exhibit 1, Tab 20 [2].

   [26] Exhibit 7 [14].

   [27] Exhibit 7 [7] - [8].

9. On 13 September 2018, the plaintiff was appointed the administrator of the estate of the deceased.[28]

   [28] Exhibit 1, Tab 4.

10. On 8 August 2018, Mr Crisp commenced these proceedings.  The defendants to the proceedings are:

    (a)the proposed beneficiary under the Will, the Australian Rotary Health Research Fund;[29]

    (b)the living siblings of the deceased;[30] and

    (c)the living children of the deceased's siblings.[31]  

    [29] First Defendant.

    [30] Second and Third defendants.

    [31] Fourth to Seventh defendants.

11. One of the deceased's nephews, Finlay McLeay died on 22 September 2015 and is not a party to the proceedings.[32]

    [32] Exhibit 1, Tab 17, p 5 (Register of Deaths in Scotland).

12. The first defendant is a public company, incorporated in Victoria, who is endorsed as a deductible gift recipient pursuant to the Income Tax Assessment Act 1997 (Cth), subdivision 30‑BA.  On 27 October 2008, the first defendant changed its name to Australian Rotary Health.[33] 

    [33] Exhibit 1, Tab 6.

13. I accept that the second to seventh defendants are the parties who would be entitled to the deceased's estate if the Will is invalid and the deceased died intestate.[34]

    [34] Exhibit 1, Tab 14.

14. The second defendant consented to the grant of probate being sought in respect of the Will at the earliest opportunity.[35]  The third to fifth defendants have not indicated whether they consent or oppose the grant of probate. The sixth and seventh defendants previously informed the plaintiff that they opposed the grant of probate.[36]

    [35] Exhibit 1, Tab 16 (Supplementary Affidavit of Daniel John Crisp sworn 6 February 2016, 'DC1').

    [36] Exhibit 1, Tab 18 (Affidavit of Daniel John Crisp sworn 12 February 2018) [18] - [20].

15. None of the defendants have entered an appearance in these proceedings or appeared at trial.  From the evidence before me,[37] I accept that all the defendants were properly served by the plaintiff and were afforded ample opportunity to enter an appearance in defence to the plaintiff's claim.

    [37] Exhibit 1, Tab 19 (Affidavit of Daniel John Crisp sworn 1 April 2019).

Issues for determination

1. It is not in dispute in this matter that there is a document, being the document dated 21 May 2009. [38]  The questions that I am required to resolve in relation to this document are: first, whether the document purports to embody the deceased's testamentary intentions; and second, whether the deceased intended that the document constitute his will.[39]

   [38] Exhibit 1, Tab 2.

   [39] The Public Trustee v Gerritsen [2012] WASC 201; Hatsatouris v Hatsatouris [2001] NSWCA 408; Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191; Oreski v Ikac [2008] WASCA 220; Dalton v Dalton [2008] WASC 56; Riches v McInnes [2010] WASC 298 [26]; Spencer v Spencer [2009] WASC 198 [26].

2. The disposition that was made by the Will, namely that the entirety of his estate (after payment of expenses) be paid to the Australian Rotary Health Fund, is consistent with oral statements made by the deceased prior to his death to both the plaintiff and the solicitor who prepared the Will.[40]  At the time the Will was made, the deceased had never married, was estranged from his family, and had not visited or spoken to his family for many years. I accept that on the balance of probabilities, the disposition embodied the deceased's testamentary intentions.

   [40]Exhibit 1, Tab 15 (Affidavit of Daniel John Crisp sworn 3 December 2014) [1(c)]; Exhibit 8.

3. The form of the document is headed 'Last Will and Testament of William Ward Hill' and was prepared by a solicitor following a meeting between the deceased and Mr Park.  Following this meeting, the deceased attended the offices of his accountants to sign the Will in the presence of Mr Lake.  I am satisfied on the evidence before me that the intention of the deceased was that the Will have effect as his will.

Conclusion

1. For these reasons, I was and am satisfied that, pursuant to the Wills Act, s 32, the document dated 21 May 2009 signed by William Ward Hill and described as the last Will and testament of William Ward Hill should be declared to constitute the last Will of the late William Ward Hill.

2. On this basis, I made the orders sought by the plaintiff as amended by me.

ANNEXURE A

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

ME

Associate to the Honourable Justice Hill

23 JANUARY 2020