D'Unienville v Sakalo [No 2]
[2013] WASC 469
•20 DECEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: D'UNIENVILLE -v- SAKALO [No 2] [2013] WASC 469
CORAM: EM HEENAN J
HEARD: 18, 19, 20 & 21 NOVEMBER 2013
DELIVERED : 20 DECEMBER 2013
FILE NO/S: CIV 3168 of 2011
MATTER :The estate of LORELLE OLGA MARRIER D'UNIENVILLE, late of St Michael's Nursing Home, Walsley Street, North Perth in the State of Western Australia, Business Woman, deceased
BETWEEN: MARIETTE IRENE PAULE MARRIER D'UNIENVILLE
Plaintiff
AND
DR ALLA SAKALO
First DefendantDAVID PAUL DONALDSON
ANDREW JAMES HARLER
Second DefendantsANDREW JAMES HARLER
VALERIE JOAN SMITH
JOY TAYLOR
ROSS SIMEON SMITH
SHENTON PARK DOG HOME
CAT HAVEN
LILY VILLANOVA
ALEXANDER GEORGE VILLANOVA
EDWARD ANTHONY VILLANOVA
PAUL ARMSTRONG
BERTRAM JAMES HARLER (by his guardian ad litem STEPHEN GRANT HARLER)
Third DefendantsDR ALLA SAKALO
JOY TAYLOR
VALERIE JOAN SMITH
ROYAL SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS INC
BERTRAM JAMES HARLER (by his guardian ad litem STEPHEN GRANT HARLER)
LAUREN ROSE MADASCI
MIA ELIZABETH HARLER
Fourth DefendantsBERTRAM JAMES HARLER (by his guardian ad litem STEPHEN GRANT HARLER)
Fifth Defendant
Catchwords:
Probate and administration - Wills and intestacy -Claims and counterclaims for grant of representation in solemn form - Formal wills - Proof of alleged informal wills - Revocation - Informal revocation - Alleged intestacy - Alleged revocation by alleged cancellation of informal will - Alleged informal will constituted by telephone instructions to solicitors - Interim grant of letters of administration ad colligenda bona - Revocation and delivery up of earlier grant - Order for delivery of accounts - Grant of letters of administration
Legislation:
Administration Act 1903 (WA)
Wills Act 1917 (WA)
Result:
Plaintiff's claim dismissed
Previous grant of letters of administration ad colligenda bona to plaintiff revoked
First-named second defendant granted letters of administration with will of 29 July 2006 annexed
First-named third defendant's counterclaim dismissed
First-named fourth defendant's counterclaim dismissed
Fifth defendant's counterclaim dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr T R Stephenson
First Defendant : No appearance
Second Defendants : Mr M Curwood
Third Defendants : No appearance
Fourth Defendants : Mr D L Jones
FifthDefendant : Ms C F Holyoak-Roberts
Solicitors:
Plaintiff: K G Sorensen
First Defendant : No appearance
Second Defendants : Murfett Legal
Third Defendants : No appearance
Fourth Defendants : Karp Steedman Ross-Adjie
FifthDefendant : Kott Gunning
Case(s) referred to in judgment(s):
Bailey v Bailey (1924) 34 CLR 558
Brown v Wade [2010] WASC 367
Butterworth v Woods [2010] WASC 176
Dalton v Dalton [2008] WASC 56
Deeks v Greenwood [2011] WASC 359
Doe d Hearle v Hicks (1832) 1 C1&F 20, 34; 6 ER 823
Estate of Peter Brock [2007] VSC 415
Fast v Rockman [2013] VSC 18
In the Estate of Dunne; Anderson v Scrivener [2002] NSWSC 900
In the Estate of Kevin John Hines v Hines [1999] WASC 111
In the Estate of Shephard (1982) 29 SASR 247
In the Will and Codicil of Sakzewski [1943] QWN 38
In the Will of William Barrett (1876) 2 VLR 98
Kedzier v Postle [2002] NSWSC 875
Mitchell v Mitchell [2010] WASC 174
Oreski v Ikac [2008] WASCA 220
Public Trustee v Gerritsen [2012] WASC 201
Re Estate of Margaret Criddle; Ex parte Numans [2011] WASC 169
Re Perriman (dec) [2003] WASC 191
Re; Vere-Wardale (decd); Vere-Wardale v Johnson [1949] P 395; [1949] All ER 250
Spencer v Spencer [2009] WASC 198
Stephens v Taprell (1840) 2 Curt 458; 163 ER 473
Tatham v Huxtable (1950) 81 CLR 639
The Estate of Donald Lee Hudson (Dec) [2002] WASC 146
Timbury v Coffee (1941) 66 CLR 277
EM HEENAN J: Lorelle Olga Marrier D'Unienville died on 14 August 2010 at St Michael's Nursing Home, Walsley Street, North Perth where she had been a resident patient since April of that year. At the date of her death, she was aged 77 years and some 9 months, the evidence disclosing, despite some initial uncertainty, that her probable date of birth was 4 November 1932. She had been born in Sambir Poland of Polish Ukranian descent and arrived in Australia with her parents' family on 19 April 1949 as refugees from post‑war Germany seeking permanent settlement. On the disembarkation documents lodged with the Commonwealth under the Immigration Act at Fremantle, her name was described as Olga Didus and Didus was her family name. On her death certificate she is described as having been born at Kharkov in the Ukraine and as having the name Lorelle D'Unienville.
This litigation
These proceedings involve a claim and four different counterclaims in which the respective claimants are each seeking a differing grant of representation of the estate of the deceased.
There are four wills, or alleged wills, of the late Mrs Lorelle D'Unienville:
1.A formal will, made by solicitors, dated 28 March 1963 duly executed and witnessed.
2.A formal will, made on a stationer's will form, dated 29 July 2006 duly executed and witnessed.
3.An alleged informal will, dated 22 December 2007, written out on notepaper, signed by the deceased and by one witness only. The two pages of this document when found after her death bore a number of large crosses written diagonally across both pages, accompanied by the initials of the deceased on the first page.
4.Notes of instructions for a will, dated 11 August 2010, made by the deceased's solicitor's clerk in response to a telephone call from the deceased specifying the provisions which she wished to include in her will but not signed or witnessed.
All the parties contesting these proceedings accept that the first testament, the will of 28 March 1963, was a valid will of the deceased and that it was later revoked by the second will of 29 July 2006.
Similarly, all the parties contesting these proceedings accept that the second testament, the will of 29 July 2006 ('the 2006 will'), was a valid will of the deceased. The first-named second defendant, Mr David Paul Donaldson, contends that it is the last valid will of the deceased and that he should be granted letters of administration of her estate with that will annexed. The plaintiff and the fifth defendant contend that the 2006 will was revoked by the third alleged will, the document of 22 December 2007. The first-named fourth defendant, Dr Sakalo, also contends that the 2006 will was revoked, either by the alleged will of 22 December 2007 or by the alleged will of 11 August 2010.
The fifth defendant contends that the alleged will of 22 December 2007 ('the 2007 will') is the last valid will of the deceased and, despite its crossings, is unrevoked. The fifth defendant, an infant, by his guardian ad litem, seeks a declaration to that effect and, in due course, a grant of letters of administration of the estate of the deceased with that will annexed to some person, yet to be found, who will be a suitable administrator.
The first-named fourth defendant, Dr Alla Sakalo, contends that the note of the telephone instructions of 11 August 2010 ('the 2010 will') constitutes a valid informal will of the deceased and that she should be granted probate of that will as sole executor. The plaintiff, the first-named second defendant, Mr Donaldson, and the fifth defendant all contend that the solicitors' notes of telephone instructions from the deceased on 11 August 2010 do not constitute an informal will.
Finally, the plaintiff contends that the deceased, her mother, died intestate and that she should be granted letters of administration of her estate upon that intestacy. Her case is that the will of 28 March 1963 was revoked by the will of 29 July 2006, which in turn was revoked by the alleged will of 22 December 2007. She then submits that the alleged will of 22 December 2007 was revoked by the deceased by the crossing marks found upon it, made at some unknown date, leaving Mrs Lorelle D'Unienville, from then on, without any valid will. She also contends that the written instructions recorded by the deceased's solicitor in the course of the telephone conversation with the deceased on 11 August 2010 do not amount to a valid informal will, meaning that the deceased died intestate.
The terms of the various wills or alleged wills
There is no controversy between any of the parties about the first will of the deceased, that dated 28 March 1963. This was made by solicitors; is drawn in orthodox fashion and constitutes a typewritten document, professionally drafted and engrossed, duly executed and witnessed by two witnesses. It describes Mrs D'Unienville as a married woman, although it contains no provision for her husband. The evidence establishes that he pre‑deceased her and that they had been separated for a long time before he died. By this will the deceased appointed her mother and father, Lena and George Didus, as her co-executors but directed that should they be unwilling to act her solicitor would act in place of such deceased executor or executors. The will directed that so long as there were two executors they should be the guardians and trustees of her daughter, the plaintiff, there named as Mariette Irene D'Unienville, and then directed that the whole of Mrs Lorelle D'Unienville's estate should be held on trust for her daughter, the plaintiff, to be handed over to her upon her attaining the age of 25 years or, at their discretion, upon attaining the age of 21 years or, upon her marriage, before the age of 25 years. The will contained conventional powers of investment and other powers as conferred by the Trustees Act 1962.
The will of 29 July 2006
Mrs Lorelle D'Unienville had a fall at her home in mid‑2006, as a result of which she was admitted to Royal Perth Hospital, where she remained as an inpatient for about three months. From there she was transferred to Hollywood Hospital for a hip operation. During these periods of illness Dr Sakalo visited her regularly. Dr Sakalo was a very old friend of the deceased and had at various times acted as her general medical practitioner. Dr Sakalo is her professional and maiden name, but her married name is Alla Donaldson and she is the mother of the first-named second defendant, David Paul Donaldson, whom the deceased had known since he was a very small boy.
On one of those visits to Royal Perth Hospital the deceased asked Dr Sakalo to purchase a will kit for her, which she did. She asked Dr Sakalo to enquire whether the nursing staff could witness her signature to the a and Dr Sakalo did so, only to be told that that was not permitted. The deceased was apprehensive about her impending hip surgery because she feared that she may not survive and was anxious because her own mother had, so she said, died during or shortly after an operation.
It was while she was a patient at the Hollywood Hospital before this surgery that the deceased dictated the terms of the 2006 will to Dr Sakalo, which the latter wrote out on the will form which had been obtained for the purpose. All that manuscript, apart from the signatures of the testatrix and of the witnesses, is in the handwriting of Dr Sakalo. When directing Dr Sakalo as to the contents of the will the deceased told her that although she did not want to leave her daughter Mariette (the plaintiff) anything, she knew that legally she had to leave her something and she thought that $200,000 was a reasonable sum of money. In doing so, she said words to the effect that she felt that Mariette did not deserve anything as she had already inherited the Floreat property at Kintyre Crescent but that she hoped by leaving Mariette $200,000 she would not contest the will. It was on the deceased's express instructions that Dr Sakalo included the words in the 2006 will that Mariette 'had caused her sorrow and pain'. There is no suggestion from any quarter that Dr Sakalo was instrumental in inducing or influencing the terms of this will, and the evidence discloses that it was prepared at the insistence of the deceased.
The two witnesses to this will were Gavin William Clarke, of Inglewood, a medical practitioner, and Jasminka Dedic, of Perth, also a medical practitioner. There are affidavits of Dr Gavin William Clarke, sworn 27 March 2013, and of Dr Jasminka Dedic, sworn 3 March 2013, confirming that each witnessed the will of the deceased dated 29 July 2006 while in the course of rounds at the orthopaedic ward that day at Hollywood Hospital. Dr Clarke recalls the deceased as one of his former patients and recalls witnessing the will after it was signed by the deceased. Similarly, Dr Dedic recalls signing the 2006 will as a witness and confirms her signature on the instrument. Although she does not recollect the details of the signature of the will, she confirms that it is her signature on the document, that she was on duty at Hollywood Hospital that day, and deposes that she would have not signed the document as a witness had she not first seen the testator sign it. I accept this evidence as establishing due execution and attestation of that will.
By this will Mrs Lorelle D'Unienville appointed Alla Donaldson (Dr Sakalo) as her executor and trustee and provided that if she should not survive her that she appointed Mark Donaldson, her substitute executor. Mr Mark Donaldson was then the husband of Alla Donaldson. By the will she directed that she should be buried by nominated undertakers with her mother and that she wanted a modest headstone. The only dispositive provisions in the will are as follows:
Upon my death and after payment of any requests or special gifts listed in clause 2 [the provision for her funeral and headstone] and payment of all my debts, funeral and testamentary expenses I give the rest of my estate as follows:
•I would like to give my daughter Mariette Irene Paule D'Unienville of Floreat Park who has caused me sorrow and pain $200,000 (two hundred thousand dollars)
•Andrew my tenant of 24 Rokeby Road Subiaco $100,000 (one hundred thousand)
•The remainder of my estate I leave to David Paul Donaldson of 19 Regent Street West, Mount Lawley (university student).
Clearly, the gift of $200,000 contained in this will is for the plaintiff. The gift of $100,000 to 'Andrew my tenant' is, equally clearly, a gift to Mr Andrew James Harler, who, at the time, either by himself or by a company which he controlled, was the tenant of the deceased's premises at 24 Rokeby Road, Subiaco and a friend who helped her in many ways.
All the parties accept that this is a valid will but, as already mentioned, the issue of importance which arises in respect of it is whether or not it was ever subsequently revoked.
In these present proceedings, the first‑named second defendant, David Paul Donaldson, counterclaims for proof of this will in solemn form but because his mother Dr Sakalo/Mrs Donaldson has renounced any right to seek probate of this will Mr Donaldson seeks a grant of letters of administration with the will annexed to be granted to him as the residuary beneficiary named in the testament.
The alleged will of 22 December 2007
This document was written out on 22 December 2007 at Mrs Lorelle D'Unienville's home in Kenwick at her dictation and direction by her friend and tenant, Mr Andrew James Harler, whom she had summoned unexpectedly to her home that evening and to whom she had insisted, despite his express reluctance, that he should write out a will for her at her direction. Most of the document is in his hand except for the signature of the deceased and the signature of the single subscribing witness, Mrs Valerie Joan Smith, a friend and neighbour.
Accordingly, it does not comply with the formal requirements of s 8 of the Wills Act, lacking a second subscribing witness but it is contended that it is nevertheless a valid informal will under Pt X of the Wills Act 1970 (WA).
The fifth defendant seeks to prove this alleged informal will as the unrevoked testament of the deceased but this claim is opposed by the other parties appearing whose positions in relation to this alleged will can be described briefly at this point as being:
(i)the first‑named second defendant David Paul Donaldson, that this was never a valid will;
(ii)by the first‑named fourth defendant Dr Alla Sakalo that this document either was never a valid will or, alternatively, if it was, that it was revoked by either of two ways, that is by crossing out by the testator with the intention that it thereby be revoked or by the alleged informal will constituted by telephone instructions given to by the deceased to her solicitors on 11 August 2010;
(iii)the plaintiff, in respect of this third alleged informal will, contends that it did constitute a valid informal will when made but that it was later revoked by the testator by crossings out with the intention that it should thereby be revoked and that the testator never subsequently made a valid will whether formal or informal.
In view of the controversies over whether or not this was ever a valid informal will of the deceased and if so, whether it was ever later revoked and also because of its somewhat unusual form, it is desirable that I set out in full terms of this instrument. They are as follows:
This is the last will and testimony of LORELLE OLGA MARRIER D'UNIENVILLE of 18 Chadwell Street, Kenwick, in the State of Western Australia.
All previous wills written by me prior to the undersigned date are null and void in their entirety.
I wish to appoint ANDREW JAMES HARLER of 1/8 Corkhill Street, North Fremantle, in the State of Western Australia, as the sole executor of my estate.
My estate, including all assets, is to be distributed as follows:
To VALERIA JOAN SMITH, of 15 Chadwell Street, Kenwick, Western Australia, I leave $15,000 AUD (Fifteen Thousand Dollars).
To JOY TAYLOR, of 20 Chadwell Street, Kenwick, Western Australia, I leave $15,000-AUD (fifteen thousand dollars).
To ROSS SIMEON SMITH, of 15 Chadwell Street, Kenwick, Western Australia, I leave $2,000-AUD (two thousand dollars) and if still in my possession, both my vehicles, being a Jaguar and Volvo.
To PAUL ARMSTRONG, the son of Patricia and Leslie Armstrong, of Subiaco, the sum of $10,000-AUD (ten thousand dollars).
To MARIETTE EILEEN D'UNIENVILLE I leave $100,000-AUD (one hundred thousand dollars).
To MY SISTER, I leave $30,000-AUD (thirty thousand dollars) on condition she looks after my parents' and sister's grave sites.
To the SHENTON PARK DOG HOME I leave $5,000-AUD (five thousand dollars).
To the CAT HAVEN in Shenton Park I leave $5,000-AUD (five thousand dollars).
To MY NEPHEWS ALEXANDER AND EDWARD I leave $10,000‑AUD (ten thousand dollars) each.
My Weston Street property in Maddington, Western Australia is to be sold to provide for the above commitments.
The remainder of my estate and assets I leave entirely to my god son, BERTRAM JAMES HARLER, of 1/8 Corkhill Street, North Fremantle, Western Australia, appointing his father as guardian until he reaches 21 years of age or as his father sees fit.
I, LORELLE OLGA MARRIER D'UNIENVILLE, declare that I am aware and in full control of my faculties.
L. D'Unienville 22-12-07
Lorelle Olga Mariette D'Unienville
Witnessed Valerie Joan Smith, 15 Chadwell Street, Kenwick
The signature of the deceased and the date have been identified as being written in the handwriting of the deceased and the signature and address of the witness, Mrs Smith, has been identified as being written in her own handwriting.
No point has been raised over whether or not the fact that Mrs Smith witnessed the instrument has any and, if so, what effect on the apparent legacy of $15,000 left to her by the document. In Western Australia under the Wills Act 1970 there is no longer any provision equivalent to s 15 of the English Wills Act 1837 which provided that a testamentary bequest to a person who acts as a witness to the will, except in limited circumstances, causes that bequest to be void. The present position in this State is that if a beneficiary is also a witness to the will that may trigger the application of the suspicious circumstances rule but it is not necessary to investigate or explore that potentiality here. That question would arise if, and only if, this alleged will of 22 December 2007 were found to be the last valid will of the deceased and, in the course of administration pursuant to that will, a question as to the validity of this bequest to Mrs Taylor arose for that reason. This present action and the counterclaims do not raise any such issue and it has not been addressed or argued.
All the named beneficiaries under the alleged will of 22 December 2007 together with the plaintiff are parties to this action.
The references in this document to 'my nephews Alexander and Edward' have been established to be references to Alexander George Villanova and Edward Anthony Villanova, the sons of the deceased's sister, Mrs Lily Villanova who, herself, was only added as a party to the action and one of the third defendants during the course of the trial.
Appearances or notices of intention to abide by the decision of the court have been filed by all the parties who are not otherwise represented with the exception of Paul Armstrong. Despite efforts to identify and trace him, he has not been found and, earlier in the proceedings, orders were made that service upon him could be achieved by a substituted service, including advertising, as then directed. I am satisfied that there has been compliance with the orders for substituted service so far as it concerns Mr Armstrong but there has been no appearance or notification from him or on his behalf and it must remain open to question whether or not he is actually aware of these proceedings. The steps taken will ensure that he is bound by the result unless he later appears and shows cause why that should not be so.
Mrs Lily Villanova was only lately served with notice of these proceedings and of the order which I made that she should become an additional party. She appeared in person at the hearing and, after her situation had been fully explained, she solemnly and most assuredly declared that she wished to take no part in the proceedings and was content to be bound by the result notwithstanding that she did not formally appear and was not represented.
Abandonment of the counterclaim by Mr Andrew Harler
The 2007 will purports to appoint Mr Andrew James Harler, the father of the infant fifth defendant, as sole executor. Mr Andrew Harler originally defended the plaintiff's claim and counterclaimed in his own name for probate of this alleged will. His counterclaim in that regard remains as a claim before the court but Mr Harler has not appeared either in person or by counsel to advance that counterclaim, although he did give evidence.
The interlocutory proceedings before trial reveal that only some two months before the date listed for trial Mr Andrew Harler notified the other parties that he had withdrawn instructions to his solicitors and would not be proceeding with his counterclaim for a grant of probate of the 2007 will. He was, of course, perfectly free to follow this course on his own behalf, although it must be noted that the counterclaim has never been formally discontinued. However, in abandoning his counterclaim for proof of the 2007 will it meant that the other beneficiaries named in that alleged testament were left without any person seeking to prove that will and thereby were in a position where any interests which they may have had arising from that document were at risk of being overlooked for want of advancement. For these reasons, I made an order on 27 August 2013 that notice of the abandonment by Mr Andrew Harler of his counterclaim to prove the alleged will of 22 December 2007 be given to all the other beneficiaries named in that instrument, informing them that if any wished to take part in the proceedings or to advance the validity of that alleged will they should apply to do so themselves or to take over Mr Andrew Harler's counterclaim and to seek a grant of letters of administration with that alleged will annexed. Because the residuary beneficiary, Bertram James Harler, was an infant, I directed that steps be taken to seek the appointment of a suitable guardian ad litem on his behalf and for the guardian to appear before the court to indicate what, if any, steps he or she would take on behalf of the infant to seek to prove that alleged will.
Stephen Grant Harler, an uncle of Bertram James Harler, has been appointed as his guardian ad litem, has since been joined in these proceedings as the fifth defendant, and has retained solicitors and counsel to seek to prove the alleged will of 22 December 2007. The fifth defendant is seeking a grant of letters of administration with that will annexed to be made to a suitable administrator but despite a number of initiatives, including an approach to the Public Trustee in the quest for a suitable administrator, no person has yet been found who would be willing and able to take on that role. The result has been that the fifth defendant has pursued his attempt to prove the validity of the alleged will of 22 December 2007 and to seek a grant of letters of administration with that will annexed but has sought to reserve, for future consideration if necessary, the identification of a suitable administrator. There has been no objection to this course of procedure taken by any of the other parties represented and, in all the circumstances, I am satisfied that it is a prudent and acceptable manner of proceeding.
The alleged will of 2010
The fourth alleged will of Mrs D'Unienville is said to be an informal will constituted by instructions relayed by her to her solicitors by telephone from St Michael's Nursing Home on 11 August 2010 which was only three days before her death.
The situation in August 2010 was that Mrs D'Unienville had been in contact with her then solicitors, Kitto & Kitto, at regular intervals for several months. Among a number of matters upon which she was giving instructions or seeking advice was her desire to make a new will. The evidence shows that she was more or less settled on her major testamentary intentions except in one important respect - namely, the nature and extent of any disposition to be made to her daughter, the plaintiff, Mariette D'Unienville. It is clear that over an extended period the deceased had been undecided or irresolute about what, if any, disposition she should make to her daughter and had vacillated between making smaller or larger bequests. She had received repeated advice from her solicitors that if she failed to make any or any adequate provision for the plaintiff there was a distinct likelihood that the plaintiff may make a claim against the deceased's estate under the terms of the Family Provision Act 1972 as amended.
On 11 August 2010 Dr Sakalo was called to Mrs D'Unienville's bedside at St Michael's Nursing Home, having been advised that Mrs D'Unienville was then severely ill and unlikely to survive. This advice had been conveyed to her by her friend and professional colleague, Dr Snell, who was the attending medical practitioner of the deceased at St Michael's Nursing Home and who had, herself, visited and assessed the deceased earlier that day.
Dr Sakalo, as the first‑named fourth defendant, has counterclaimed for a grant of probate of the record made by the deceased's solicitors of these instructions, which it is submitted constitutes a valid informal will under Pt X of the Wills Act. These instructions are contained in a document which is in the form of a telephone message/file note completed by a clerk at Kitto & Kitto. The evidence establishes that these instructions were the result of a telephone conversation between the deceased and the clerk at the solicitors' office which had been instigated by Dr Alla Sakalo. It seems apparent that most of the instructions were conveyed to the solicitors' clerk by the deceased but that Dr Sakalo also participated, who was relaying the instructions then being described to her by Mrs D'Unienville in the ward. The note reads as follows (omitting pro forma parts):
Kitto & Kitto
Telephone message/file note
From Jacqui
Date 11.08.10
Time 12.27
Name Alla/Lorelle …
Alla is with Lorelle.
Lorelle wants Alla to be executor & sole beneficiary.
Joy Taylor – 20 Chadwell Street 0407 590332 to get $20,000.
Val Smith – Chadwell Street 9493 4312 to get $5,000 & Volvo motor vehicle.
Andrew's children to receive $10,000 each for special education fund.
Daughter ? – GAK to decide best amount.
RSPCA - $10,000.
Headstone to be modest.
The evidence has established that the references to 'Alla' in this document and in this conversation are references to Dr Alla Sakalo/Donaldson and that the references to 'Lorelle' are references to the deceased. Similarly, the evidence establishes that the references to 'Joy Taylor' and to 'Val Smith' are, respectively, to Joy Taylor and Valerie Joan Smith, who were also named in the alleged will of 22 December 2007 and were friends and neighbours of the deceased. Similarly, the reference to 'Daughter ?' is unquestionably a reference to the plaintiff.
The reference to 'GAK to decide best amount' I am satisfied means that the deceased had then still not settled on an amount considered adequate or suitable to be left to her daughter but, in that state of uncertainty, had decided to adopt whatever figure her solicitor, Mr Grantham Angus Kitto, recommended or thought appropriate in the circumstances and that his choice in that regard, whatever it was, would be her choice. This leaves open the question of whether or not, if Mr Kitto did make a recommendation or choice for a disposition to be made to her daughter, this would require endorsement or ratification by the deceased before it became effective, thus raising questions about impermissible delegation of testamentary choice – Tatham v Huxtable (1950) 81 CLR 639 at 653 (Kitto J).
The evidence also shows that the solicitors for Mrs D'Unienville in fact drafted a proposed will in accordance with these instructions but leaving blank the amount to be left to the deceased's daughter. However, this document was never shown to the deceased, nor did Mr Kitto specify an amount for her daughter's legacy. The draft will was never executed by the deceased before she died.
Counsel for Dr Sakalo nevertheless submits that these instructions represented the settled testamentary intentions of the deceased and that she believed, however mistakenly, that by giving these instructions she had done all that was necessary to identify and record them so that, consequently, there should be a grant of probate of a will, in accordance with the terms of these instructions, to Dr Sakalo as executor.
Counsel for Dr Sakalo in this regard submits that such an alleged will should be accepted as valid, notwithstanding that it may contain an invalid or ineffective gift to the plaintiff because of the attempt to have the bequest to the plaintiff identified by Mr Kitto as an act of unjustifiable delegation of testamentary power or because of uncertainty or absence of content but, nevertheless, leaving the balance of the instructions as representing the deceased's settled testamentary intentions. The submission treats any ineffectiveness or inadequacy of the proposed gift to the plaintiff's daughter in the same way as any individual gift or legacy in a conventional will which is void or ineffective for want of certainty or for any other reason, leaving the balance of the testament effective and binding.
The position of Dr Sakalo as the first‑named fourth defendant in relation to this fourth alleged will is that it revokes all previous testamentary dispositions, including the alleged will of 22 December 2007 if, in fact, that had ever been a valid informal will. All the other parties represented in the action oppose Dr Sakalo's counterclaim to prove the alleged will of 11 August 2010, contending, variously, that it does not represent or contain the deceased's final testamentary intentions, that it is incomplete and subject to further advice and recommendation by her solicitor as to what, if any, disposition should be made to the plaintiff. They contend that this feature and the implicit intention that the telephone message constituted only instructions which were to be acted upon with a view to the preparation of a formal will which could be properly executed and witnessed meant that no informal will within the meaning of Pt X had been made.
Revocation of the alleged 2007 will
The plaintiff's claim for letters of administration upon an alleged intestacy proceeds on the basis that the 2007 will was a valid informal will which by its terms and existence revoked the earlier will of 29 July 2006. This third alleged will, when found among the deceased's papers, was found to have lines across its face on both pages in the form of several large crosses, indicating that the contents had been crossed out or cancelled. The document was not torn, disfigured or burned, nor had any of the words been crossed out in a manner to obliterate any of them. The document remained perfectly legible beneath these large crosses which were effected, apparently, in ballpoint pen and which, on the first page, were accompanied by a set of initials of the deceased. There is no evidence to indicate exactly when these crosses were put on the document, although the evidence of both Mr Harler and the witness, Mrs Joy Taylor, is to the effect that when they last saw the document, in Mrs Taylor's case on the evening when it was signed and, in Mr Harler's case a week or so later after he returned it to Mrs D'Unienville at her request, there were no markings of any kind upon the paper apart from the original script.
The evidence is, and I find, that from the time this apparent testamentary writing was returned to Mrs D'Unienville by Mr Harler in early January 2008 (at the latest) it was kept by her at her home, rolled up with a piece of string or ribbon, among a multitude of papers, some important and some of little if any consequence, which she kept in a multitude of boxes, drawers and other receptacles in keeping with her habit as a hoarder. It was found in those circumstances some days after Mrs D'Unienville's death, when Dr Sakalo and Mr Harler, in the presence of the owners of the property which Mrs D'Unienville had been renting, were going through her possessions and papers with a view to gathering up her belongings and searching for any document or documents of potential importance and in the knowledge of Mr Harler that there may be a will or testamentary instrument such as was found among the deceased's possessions.
These crossings on the two pages of this alleged will are, according to the plaintiff, in all probability made by the deceased at some time between early 2008 and her entering into St Michael's Nursing Home in April 2010 but otherwise at a time unknown. The submissions are to the effect that, by a process of elimination, there is in all probability no-one other than the deceased who could or would have marked that alleged will with those crosses. The further submission is that by so marking the will this amounts to an informal revocation of the instrument notwithstanding that it does not comply with the conventional requirements for a revocation by destruction or obliteration specified in s 15(c) of the Wills Act. It could not be said that these crosses constituted a burning, tearing or destruction of the alleged will, but the plaintiff nevertheless contends that they amounted to a revocation within the meaning of s 32(2)(c) of the Wills Act and that this court should be satisfied that the deceased had intended the crossing to constitute a revocation of that will, if it was one. The only basis for any such conclusion in the present case would be by way of inference from all the circumstances and whether or not such an inference should be drawn will be the subject of closer consideration in due course.
Summary of issues
In effect, therefore, the situation is that the deceased made two formal wills which were duly executed and attested in compliance with the provisions of s 8 of the Wills Act. These are the wills of 28 March 1963 and 29 July 2006. It is common ground among the parties that the second revoked the first.
Next, the position is that various parties contend that there were two valid informal wills constituted by writing dated 22 December 2007 and 11 August 2010 but, in the latter case, being the solicitors' clerk's note of the telephone conversation that she had with the deceased and Dr Sakalo. Counsel for the first‑named second defendant, Mr Donaldson, contends that the alleged will of 22 December 2007 does not satisfy the requirements for an informal will, the plaintiff and the fifth defendant contend the contrary.
The plaintiff supports the claim of the fifth defendant that the will of 22 December 2007 was a valid informal will, so revoking the will of 29 July 2006, but contends that the 2007 alleged will was in turn revoked by the crossings appearing on its face when the instrument was found after Mrs D'Unienville's death.
Counsel for the first-named fourth defendant, Dr Sakalo, contends that the alleged will constituted by the telephone instructions of 11 August 2010 constituted a valid informal will of the deceased but counsel for the plaintiff, the first‑named second defendant and the fifth defendant all contend to the contrary.
Estate of deceased in Western Australia
Mrs D'Unienville left both real and personal estate within Western Australia. The exact value has not been identified, but a Rule 9B statement lodged in support of one of the applications for a grant of representation in the non‑contentious jurisdiction it was deposed that she left an estate with a net value of approximately $3,185,000. The estate, as then described, included bank or equivalent deposit accounts to a value of approximately $131,000, listed securities $60,000 and motor vehicles at an estimated value of $2,000. The real property comprised a registered estate in fee simple in the whole of the land situated and known as 24 Rokeby Road Subiaco which in September 2010 was estimated to have a value of about $3 million. There was an unascertained liability for rates, land tax or other charges in respect of that property for which a memorial against the property had been registered under the Taxation Administration Act in July 2009; an unascertained liability for past income tax over some years when, presumably because of illness, income tax returns had not been lodged; and a liability for funeral expenses, some nursing home fees and other charges. It is clear that the estate is solvent and of significant value probably in excess of $3 million.
Subiaco property
The property at 24 Rokeby Road Subiaco, which is the major assert of the estate, had been left to the deceased by her late mother, Mrs Lena Didus together with other assets which had been distributed to her and other members of the family in what appears to have been a substantial estate. At the date of Mrs Didus' death the property in Subiaco was an old home but, since then, a set of new modern shop premises has been erected on the site. These had been let, initially as a tenancy, by the deceased to Mr Andrew Harler or some company associated with him. From there, Mr Harler's business of a surf shop was operated. Mr Harler, however, was pressing for the security of a longer term lease and over the years had repeatedly requested Mrs D'Unienville to grant him or his company a long-term lease of the premises.
The evidence establishes that Mrs D'Unienville, then a somewhat elderly lady, became very friendly with Mr Harler, and that Mr Harler reciprocated by assisting the deceased in many handyman tasks and other means of assistance. It is clear that Mrs D'Unienville became friendly with him and was disposed to help him, preserve the good relationship associated with the tenancy (which seems to have constituted her major source of income) and took an interest in his welfare.
By 2005, some arrangements had been made for a formal lease to be granted by Mrs D'Unienville of the property at 24 Rokeby Road to Mr Harler's company Blend Investments Pty Ltd which was the trustee of the Harler Family Trust. A draft lease under the Commercial Tenancy (Retail Shops) Agreements Act was prepared granting a lease for a term of 10 years commencing on 1 October 2005 with provision of CPI rent reviews and with an option for a further term of 10 years commencing on 1 October 2015, to be granted. The draft lease included the grant of the right of first refusal to the lessee to purchase the premises at any time during the term if the lessor decided to offer the property for sale. An unexecuted copy of that lease is in evidence among the documents in the trial bundle which have been admitted by consent. There is also an earlier agreement to lease the premises which has been executed.
Mr Harler through his company Blend Investments Pty Ltd continued to trade from the Rokeby Road premises but in or about 2012 the surf shop business founded and the tenant was unable to keep up the rent and was obliged to surrender the lease. The exact arrangements relating to the termination of the lease did not emerge in evidence but it is clear from the testimony of Mr Harler that the lease was terminated, that he and his company vacated the premises and moved to New South Wales. The termination of the lease appears to have been accepted. Since then the vacant premises have been offered for lease through a real estate agent but, at the time of the trial, remained unlet.
Harler action claiming an interest in 24 Rokeby Road
In separate proceedings in this court (CIV 1668 of 2011) Mr Harler sued Dr Alla Sakalo, in her then capacity as administrator of the estate of the deceased, claiming a declaration that he was the beneficial owner of the property at 24 Rokeby Road, Subiaco and orders that it be transferred to him free of all encumbrances or, alternatively, judgment in an amount equivalent to the value of the property, or damages and/or equitable compensation together with other relief. The only details of that claim in the evidence in this case are a copy of the writ of summons with an indorsed claim which was issued on the 15 April 2011. As will emerge, the initial grant of administration to Dr Sakalo was later revoked and no further substantial progress in Mr Harler's action was made or attempted.
At a directions hearing on 17 October 2013 I directed that that action should be managed in conjunction with the present proceedings and that a limited time should be given to Mr Harler to decide whether or not to pursue the action and if so, to take steps to join a new defendant, deliver a statement of claim which would identify what was submitted to be a proprietary claim based on a form of estoppel. That did not occur and accordingly, on 30 November 2012 I dismissed that Harler action for want of prosecution.
Other evidence necessary for a grant of representation
In this case the plaintiff who is seeking a grant of letters of administration of her mother's estate upon an intestacy is over the age of 18 years.
Mrs Lorelle D'Unienville married George Marrier D'Unienville on or about 25 November 1954. On a date which is unknown, they separated but never divorced and George Marrier D'Unienville later predeceased his wife. The deceased never remarried nor had she been living in any de facto relationship in the years leading up to her death. Mrs D'Unienville had one child only and that is the plaintiff, Mariette Irene Paule Marrier D'Unienville. The deceased did not adopt any child.
According to the evidence of Dr Sakalo the plaintiff was born on or about 11 February 1956.
Similarly, Mr Paul Donaldson who is seeking a grant of letters of administration with the will of 29 July 2006 annexed is also over the age of 18 years. Dr Sakalo who seeking a grant of probate of the alleged informal will constituted by the telephone instructions of 11 August 2010, is also over the age of 18 years. The fifth defendant is seeking letters of administration with the 22 December 2007 alleged informal will annexed but is not over the age of 18 years. As already mentioned, counsel for the fifth defendant wishes to leave open the choice of proposed administrator in the event that it is declared that the document of 22 December 2007 is the last testament of the deceased.
Affidavits of scripts have been filed by all the applicants for grants of representation but none of these has identified any codicil or other testamentary instrument besides the four alleged wills already identified.
The names of the subscribing witnesses to the first two of the three alleged wills which are variously being sought to be propounded have been described and reference is also made to the affidavits of subscribing witnesses and the oral evidence which has been given. Similarly, the readiness of the various applicants to administer the estate according to law (except in the case of the fifth defendant) has been sworn to by each of them.
If the deceased did die intestate, there is no person other than the plaintiff who has a prior or equal right to a grant of letters of administration. Again, in the event of an intestacy the plaintiff is the sole person entitled to distribution of the estate of the deceased - Administration Act s 14(2b)(a).
Other proceedings for a grant of representation were commenced. Two separate applications for grants of representation of the estate of Mrs D'Unienville have been made in the non‑contentious jurisdiction and two separate caveats have been lodged against any grant.
The first application for a grant is PRO/4160/2010 which was commenced by a motion dated 10 September 2010. By that motion, later amended, a solicitor acting for Dr Alla Sakalo sought a grant of letters of administration ad colligenda bona defuncti to Dr Sakalo as the deceased's attorney limited to the purposes of getting in and dealing with the personal property and effects of the deceased, access to and operating the deceased's bank account for the purpose of discharging the just debts and liabilities of the estate and for doing such acts as may be necessary for the preservation of the assets and the proceeds of the estate until further representation be granted. That application was supported by an affidavit of Dr Alla Sakalo sworn 9 September 2010 in which she deposed to the death of death, a long relationship between herself and the deceased and how she was appointed by the deceased as her attorney pursuant to an enduring power of attorney (EPOA) made 23 July 2010. In that affidavit Dr Sakalo identified the two wills of the deceased dated 28 March 1963 and 29 July 2006 and referred also to the alleged will of 22 December 2007 prepared by Mr Harler executed by the deceased and witnessed by one witness only and noted that it had been struck through on both pages. Dr Sakalo also referred to the instructions of 11 August 2010 given by the deceased to her solicitors for the preparation of a will which was recorded in the telephone note by the deceased's solicitors' clerk of that date. She then deposed to the property left by the deceased and the need for steps to be taken to deal with the lease of the property at 24 Rokeby Road which Mr Harler was about to leave and the need to take other specified action to attend to the liabilities of the estate and to preserve its assets. She sought power to sell assets of the estate to deal with the estate expenses and to follow advice about the steps which should be taken.
In the absence of any opposition to the application a formal grant of letters of administration was made on 17 September 2010 of the estate of Lorelle D'Unienville to Dr Sakalo limited 'for the purposes of getting in and dealing with the personal effects of the deceased located at 18 Chadwell Street, Kenwick and access and operating the deceased's bank accounts for the purpose of discharging the just debts and liabilities of the estate and a further representation be granted of the estate of the deceased'.
Then on 22 October 2010 solicitors acting for Andrew James Harler lodged a caveat at the Probate Registry against any grant being made for the estate of the deceased without notice to him on the grounds that Mr Harler claimed an interest as the executor and as the guardian of a minor beneficiary named in the informal will of 22 December 2007. The caveat was accepted and remains current.
Next, on 7 September 2011, solicitors acting for Dr Sakalo lodged a caveat in the Registry against any grant being made of the estate of the deceased without notice to her on the basis that Dr Sakalo claimed an interest as beneficiary of the deceased but without specifying the nature and source of the interest claimed. However, by implication the caveat refers to her interest as sole residuary beneficiary under the alleged will of 11 August 2010 constituted by the telephone instructions to the clerk for the deceased's solicitor of that date. That caveat also remains current.
A motion was filed on 23 August 2012 by the solicitors for the plaintiff, Mariette Irene Paule Marrier D'Unienville, seeking a revocation of the grant of letters of administration ad colligenda bona defuncti made in favour of Dr Sakalo on 17 December 2010 together with orders for delivery up by her of the original grant; the handing over of assets and personal property of the estate; and the filing by her of an account showing her dealings with the estate until the return of the original grant The motion also sought the grant of letters of administration ad colligenda bona defuncti of the estate of the deceased to the plaintiff for the purposes of accessing and operating the deceased's bank accounts and for the purpose of discharging just debts and liabilities of the estate; dealing with any issue in respect of the leasing of 24 Rokeby Road Subiaco and conducting the defence of civil action CIV 1668 of 2011 brought by Andrew James Harler including instructing and paying solicitors to represent the estate in relation to the proceedings. That is a reference to the action commenced by Mr Harler by which he sought a declaration that he was beneficially entitled to the property at 24 Rokeby Road Subiaco as already described.
The result was that the grant of letters of administration ad colligenda bona defuncti of the estate of the deceased in favour of Dr Sakalo was revoked. She subsequently delivered the original grant to the Registry and handed over all estate documents and property to the control of the plaintiff who herself obtained a grant of limited letters of administration dated 11 September 2012 in the terms sought. That grant was limited until further representation be granted of the estate of the deceased and it recited the previous grant of letters of administration to Dr Sakalo of 17 September 2010 as being revoked.
Accordingly, it is by this limited grant of letters of administration of the estate of her mother dated 11 September 2012 that the plaintiff has had control of the estate since September 2012. She is now suing for an unlimited grant of letters of administration of the estate based on intestacy as alleged.
Tristram & Coote's Probate Practice (29th edition 2002) explains that administration 'ad colligenda bona' is granted when the estate of a deceased person may be endangered by delay in administering it in order to preserve the estate property without waiting for an application for a grant of administration by any person who may ultimately be entitled to such a grant. These grants are always by way of administration only and where the deceased died testate the will is not proved or annexed to the grant. Such a grant is made under the court's general powers and is not expressed to be by virtue of any specific statutory provision. According to this text, which I accept as authoritative, when the object for which the limited grant was made is completed, application may be made for a general grant by the person entitled, no further order of the court being necessary. Although this usually occurs in the non‑contentious jurisdiction the same principles apply in relation to grants in the contentious jurisdiction, although the present proceedings are not for a grant ad colligenda bona but, rather, for a general grant, either of probate, or of letters of administration with the last will annexed or, in the plaintiff's case, letters of administration upon an intestacy.
By consequence of the present proceedings all applications for general grants are now before the court. This means that the current action and counterclaims will result in a final grant either of probate or letters of administration with or without a will annexed being granted to whomever the court declares is so entitled. That will result in the revocation of the existing grant of letters of administration ad colligenda bona to the plaintiff and its replacement, if she is successful, by a general grant of letters of administration to her. However, if the plaintiff is not successful and another grant of representation is made then the plaintiff will be required to bring in her grant of letters of administration ad colligenda bona upon it being revoked and to hand over the control of the estate and its assets to whomever the court declares is the authorised grantee. In that eventuality the plaintiff would also be required to file accounts of her dealings with the estate assets since her appointment as administrator ad colligenda bona under the grant of 11 September 2012.
Both caveators, having notice of these proceedings, in Dr Sakalo's case participating in them, will be bound by the decision. The result is that those caveats will lapse upon a final grant being made as a result of these proceedings.
Earlier proceedings concerning the Didus estate
The deceased, Mrs D'Unienville, was the executor to whom probate had been granted of the will of her mother, Lena Didus, who died on 16 August 1983 and probate of her will was granted by this court to the deceased, one of the executors named, on 13 August 1984. The principal dispositions in the will of Mrs Didus were as follows:
1.A block of land at lot 6 Lilika Road, City Beach, was to be sold and the proceeds used to pay transfer duties on two other properties, described below, and the balance to be divided equally between her eldest daughter, Lily Villanova, and her second daughter, Lorelle Olga Marrier D'Unienville, and her granddaughter, Mariette Irene Paule of 3 Kintyre Crescent, Floreat.
2.Mrs Didus' land and house with contents at 24 Rokeby Road, Subiaco, was to be left to her second daughter, Lorelle Olga Mierrer D'Unienville, who was also to receive her mother's house, land and contents at 12 Blackburn Street, Maddington.
3.The land, house and contents of 3 Kintyre Crescent, Floreat (the home of Mrs Didus) was left to her granddaughter Mariette Irene Paule, with the stipulation that she should look after her grandmother's animals and that she should not sell the house without the permission of her mother, Lorelle Olga D'Unienville. (This reference to Mariette Irene Paule is plainly a reference to the plaintiff.)
4.The moneys in the deceased's personal bank accounts and building society accounts were to be used for the funeral expenses, tombstones for the deceased and her late husband, together with outstanding debts or other expenses.
The will also provided that should Lorelle Marrier D'Unienville die before Mrs Didus her share should go to her daughter, the plaintiff, and should the plaintiff die before Mrs Didus her share should go to her mother, Lorelle Marrier D'Unienville.
It is pursuant to this will that the deceased became registered as the proprietor of the property at 24 Rokeby Road, Subiaco, and, as the documentary evidence shows, became the owner of the property at Blackburn Street, Maddington, which was later sold and some of the funds from which were used to build the modern shop premises at 24 Rokeby Road.
The evidence of Dr Sakalo describes how she first met the deceased when she was only a young girl, aged about 12 years. The deceased's mother, Mrs Lena Didus, was at the time a beautician and Dr Sakalo's mother was one of her regular clients. Dr Sakalo herself attended the Didus home at 3 Kintyre Crescent, Floreat about once a month and regularly met Lorelle D'Unienville. Dr Sakalo's mother and Mrs Didus had become close friends. Then the deceased took over her mother's beautician business and Dr Sakalo attended her regularly over many years while she was a university medical student. A close friendship developed between Mrs Didus and the deceased, on the one hand, and Dr Sakalo, her mother and family, on the other. Dr Sakalo, in her affidavit of 1 March 2013, has deposed that the deceased, Mrs D'Unienville, stayed with Dr Sakalo's mother at her home in Inglewood for about three weeks on one occasion and that Mrs Didus attended at her wedding. Dr Sakalo also deposed that Mrs D'Unienville's daughter, Mariette, the plaintiff, was sent by the deceased at a very young age to live with Mr and Mrs Didus, her grandparents, who effectively raised her at their home at 3 Kintyre Crescent, Floreat. When Mrs Didus died she left the Floreat house to Mariette, together with a share in the proceeds of sale of the City Beach block, as appears from the terms of her will which have already been set out.
Dr Sakalo also deposes that around 1988, at the deceased's request, she became her general medical practitioner. At that time the deceased, Lorelle D'Unienville, was living at a house in East Fremantle which she had purchased and was operating as a 'halfway house' or boarding house, for young adults with mental disabilities. Dr Sakalo visited her there many times. The deceased, Lorelle D'Unienville, was in the habit of visiting Dr Sakalo's home in Mount Lawley on a regular monthly basis throughout the 1980s and became interested in and fond of Dr Sakalo's children, particularly her younger son, David - David Donaldson (the first-named second defendant).
According to Dr Sakalo, the deceased, Lorelle D'Unienville, purchased a property in Weston Road, Maddington, and later took steps to sell that Maddington block. These efforts were disrupted, however, because the plaintiff had lodged a caveat over the Maddington land and over all other properties which the deceased owned, claiming an interest in them. This coincided with an action commenced by the plaintiff against the deceased concerning the administration of the estate of Lena Didus.
In March 2007 the plaintiff issued an originating summons (CIV 1280 of 2007) naming her mother, the deceased, as executrix of the estate of Lena Didus, deceased, as first defendant and her mother in her personal capacity as second defendant. By this process she sought orders and accounts pursuant to s 43 and s 45 of the Administration Act 1903 concerning Lorelle D'Unienville's administration of the estate of her grandmother, Lena Didus. Apart from orders for production of estate documents and the passing of an inventory and accounts relating to the estate of her grandmother, the plaintiff sought, among other orders, the following:
(a)disclosure of the details of the sale and disposition of the proceeds of the land located at lot 6 Lilika Road, City Beach;
(b)details of the transfer of the property at 24 Rokeby Road, Subiaco;
(c)disclosure of the details of the transfer of 12 Blackburn Street, Maddington;
(d)details of the mortgage registered against the land at 3 Kintyre Crescent, Floreat;
(e)full disclosure of the development of 24 Rokeby Road, Subiaco;
(f)details of the purchase and later sale of the property known as 156 Holland Street, East Fremantle;
(g)an order that the deceased pay all utility accounts associated with the property at 3 Kintyre Crescent, Floreat, and an order for the transfer of the Kintyre Crescent property free of encumbrances to the plaintiff.
This originating summons was supported by an affidavit of the plaintiff filed in those proceedings and sworn 19 March 2007, which is in evidence in this action. In this she complained of the failure of her mother to transfer to her the property 3 Kintyre Crescent, Floreat, bequeathed under her grandmother's will and further alleged that the deceased, after Mrs Didus' death, had mortgaged the property at Kintyre Crescent for $110,000 and wrongly executed the mortgage in the name of Lena Didus, ostensibly to finance the development of the property at Rokeby Road, Subiaco. The mortgage over the Kintyre Crescent property was later discharged. In this affidavit the plaintiff also contends that substantial statutory charges for unpaid water charges and rates and land tax had been registered against the title to the property at 3 Kintyre Crescent, although the liabilities arose from other properties owned by Mrs Lorelle D'Unienville, including land at Fremantle and Maddington, and that the Water Corporation was threatening to seize and sell the land at 3 Kintyre Crescent, Floreat, for unpaid water rates and charges totalling in excess of $27,000. A series of other complaints about the deceased's administration of the estate of Lena Didus and unauthorised dealings in estate property was also advanced.
The deceased, Lorelle D'Unienville, herself swore an affidavit on 17 February 2008 which was filed in these originating summons proceedings in answer to the claims made by her daughter. In this she deposed, among other things:
(a)that the net value of the estate of Lena Didus at the date of her death in 1983 was $182,000, comprised by four lots of real property, namely:
(i)house and land at 3 Kintyre Crescent, Floreat, $65,000
(ii)house and land at 24 Rokeby Road, Subiaco, $54,000
(iii)vacant land at lot 6 Lilika Road, City Beach, $60,000
(iv)house and land at 12 Blackburn Street, Maddington, $12,000
(b)that the administration of Mrs Didus' estate was effectively finalised within a few years of probate being granted except that:
(i)the property at 3 Kintyre Crescent, Floreat, was not transferred to her daughter, Mariette D'Unienville, the plaintiff at the latter's request
(ii)the property at 24 Rokeby Road, Subiaco, was not transferred to her
(iii)the plaintiff had hindered her from undertaking the completion of the administration of Mrs Didus' estate by lodging caveats against estate properties and also a further property at 119 Kelvin Road, Maddington, owned by Lorelle D'Unienville herself.
Further explanations were offered by the deceased, Lorelle D'Unienville, for the state of the administration of the estate of Lena Didus, including personal illness requiring several months' hospitalisation at Royal Perth Hospital in 2006, during which many of her personal records and estate papers were stolen or destroyed while they were in storage at a property in Maddington. Further, in the affidavit she contended that the plaintiff should pay the costs of the proceedings on the basis that they were unwarranted, that the estate had not suffered any loss, and that there had not been proper prior conferral with her before the commencement of proceedings which, had that occurred, would have been unnecessary.
The originating summons proceedings concerning the estate of Mrs Didus were referred to mediation and resulted in an agreement between the plaintiff and the defendant recorded on 20 March 2008 concerning the finalisation of the Didus estate. In reliance upon that agreement, the originating summons was dismissed by consent by an order of a Registrar on 20 March 2008 with no order as to costs.
The terms of the agreement between the plaintiff and Mrs Lorelle D'Unienville concerning the Didus estate were as follows.
1.Lorelle D'Unienville should transfer to the plaintiff free of encumbrances the land situate and known as 3 Kintyre Crescent, Floreat.
2.Lorelle D'Unienville pay to the plaintiff the sum of $160,000 within three months. If not paid by that date, to carry interest at 10% per annum.
3.The plaintiff absolve her mother, Lorelle D'Unienville, from any liability that she might have towards the plaintiff in relation to the administration of the estate of Lena Didus.
4.The plaintiff within 14 days lift the caveat which she had lodged against the title to 24 Rokeby Road, Subiaco.
…
7.Lorelle D'Unienville consents to the plaintiff selling 3 Kintyre Crescent, Floreat.
Despite this agreement, its implementation was delayed and it was not until late November 2009 that the transfer of 3 Kintyre Crescent, Floreat, to the plaintiff was finalised and, even then, there remained an outstanding dispute over responsibility for the discharge of encumbrances associated with water and land tax memorials. Eventually, it seems that those matters were finally resolved.
The relationship between the plaintiff and the deceased
The history of litigation between the deceased and her daughter, the plaintiff, bears out the evidence of Dr Sakalo, and the deceased's solicitors, that there had been a longstanding estrangement between the deceased and her daughter, the plaintiff. Although this is denied by the plaintiff, Mariette D'Unienville, in her affidavit of 20 June 2013, in which she refers to the litigation and associated disputes and says that, notwithstanding all these events and difficulties, she continued to have a relationship with her mother, that she looked after her animals when she was unwell or arranged for friends to do so, and telephoned her mother at least two times a week either at home or when she was in hospital, right up to the date of her death, other friends of the deceased who visited her regularly in hospital and Dr Sakalo, who maintained contact with her, said, to varying degrees, that the plaintiff seldom visited her mother and that the deceased did not speak of her.
While it is apparent that the plaintiff occasionally visited her mother at times when Mrs D'Unienville was in hospital, it is not possible to conclude that this was with any regularity or frequency. In the various hospital admission forms the deceased named her sister, Mrs Lena Villanova, as her next of kin and also referred to Mr Andrew Harler, familiarly but not correctly, as her nephew. In a psychiatric assessment on admission at Fremantle Hospital it is recorded that she denies having children although acknowledges a daughter from whom she is estranged. She advised the enquirer that she did not have any contact with her daughter.
In evidence given by the plaintiff's friends from the Russian Club, Mrs Belski and Mrs Tomson, it is apparent that they, of course, knew that the plaintiff was the deceased's daughter but they said that in their conversations with Mrs Lorelle D'Unienville she did not speak of her daughter. There are many references in the notes of instructions given to the solicitors, Messrs Kitto & Kitto and recorded by Ms Jacqueline Alexander that the deceased was reluctant to make any major testamentary disposition in favour of her daughter but was advised that if she failed to do so the disposition of her estate would be prone to challenge. Similarly, there are records made by the solicitors that on being told that if she died intestate the plaintiff would inherit her whole estate, Mrs D'Unienville maintained that she did not want that to happen.
The evidence as a whole satisfies me that the deceased was labouring under a long-term unresolved dilemma over what decision she should make for testamentary provision in favour of the plaintiff. This irresolution is apparent from, at the latest, the second will in July 2006 up until her death. It is most starkly obvious in the final telephone instructions given by the deceased to the clerk at her solicitor's office on 11 August 2010, when she expressed herself unable to state what provision should be made for her daughter and instructed that, instead, she would be satisfied with whatever amount was recommended by her solicitor, Mr Grantham Kitto, in that regard - a disposition which, in the events which happened, was never identified or recommended.
This unfortunate relationship between the deceased and the plaintiff is relevant only to the determination of whether either of the third or fourth alleged wills, those of December 2007 and August 2010, or either of them, can be accepted as a settled expression of the testamentary intentions of the deceased even if not complying with the formal requirements of s 8 of the Wills Act. Its bearing on whether or not the telephone instructions of August 2010 should be regarded as an informal will or not is obvious. The relevance of this factor to the anterior alleged will of December 2007 is perhaps less obvious, but it becomes apparent when it is realised that during a period of some months both before and after Mr Harler was summoned to visit the deceased at her home on the evening of 22 December 2007 and confronted with the unexpected and unwelcome demand that he write out a will for her at her dictation, she had been dealing at repeated intervals with her solicitors, discussing instructions for a new will and receiving advice from them upon the need to give specific instructions to them for the preparation of a testament which they would then engross and arrange for her to execute.
Findings regarding the will of 28 March 1963
This is the will prepared by solicitors for Mrs Lorelle D'Unienville, duly executed by her and witnessed by two subscribing witnesses. It is rational on its face and by its manner of execution a rebuttable presumption of testamentary capacity arises. None of the parties suggests that there is any doubt about the validity of this will and I am satisfied that it was validly made and remained the deceased's last testament until it was revoked by a subsequent regular will, the one made on 29 July 2006.
The will of 29 July 2006
Again, this will is rational on its face and duly executed and attested, giving rise to the same presumption of validity: Timbury v Coffee (1941) 66 CLR 277, 283 and Bailey v Bailey (1924) 34 CLR 558, 571. No party seeks to impugn the validity of this will as at the time it was made or before a subsequent alleged revocation. I am satisfied, therefore, that this will was validly made by the deceased and represented her settled testamentary intentions as at that date. The question is whether or not it was revoked by either of the alleged wills of 22 December 2007 or 11 August 2010.
Revocation of the 2006 will
In this present case there has certainly not been any formal revocation of the will of 29 July 2006 by any of the means recognised by pt V of the Wills Act. The deceased was a widow at the date of that will, has never been divorced, and did not subsequently remarry. There is no later will which was formally valid by complying with s 8 of the Wills Act, nor is there any writing declaring an intention by the deceased to revoke the earlier will executed in the manner in which a will is required or permitted to be executed by the Act. Nor can there be any finding of the deceased or some person in her presence and by her direction burning, tearing or otherwise destroying it to give effect to the intention of a testator in revoking it. The 2006 will is perfectly intact and is not the subject of any alterations, obliterations or marks of any other kind. Accordingly, a revocation of the 2006 will, as is alleged by the plaintiff, the first‑named fourth defendant and the fifth defendant, can only have occurred by either of two methods. The first is by a later document, that is, a will by operation of pt X (Wills Act s 15(a)) or, second, by a document purporting to embody the testamentary intentions of the deceased, even though it has not been executed in the manner required by the Wills Act, will constituting a revocation of the will of that person if this court is satisfied that the person intended the document to revoke his or her will.
On any such issue of informal revocation or revocation by a subsequent informal will, this court may have regard (in addition to the document) to any evidence relating to the manner of execution or testamentary intentions of the deceased, including evidence (whether admissible before the commencement of s 32 of the Wills Act - in 1987 or otherwise) of statements made by the deceased. Accordingly, statements made by the deceased to friends and notes of instructions given by her to her solicitors become admissible on these issues of alleged revocation and the validity of alleged subsequent informal wills.
Instructions to solicitors, 2007 - 2010
Over these years the deceased was in regular contact with her solicitors over a variety of matters, including the dispute with the plaintiff over the administration of the will of Mrs Didus, associated caveats and other matters, but also in connection with instructions for the preparation of a will. This evidence is contained in letters from the firm of solicitors, Kitto & Kitto, to Mrs Lorelle D'Unienville, in notes of instructions which the solicitors or their clerks recorded when visiting her or speaking to her on the telephone and in the evidence given at the de bene esse examination before Registrar Whitby on 21 and 23 August 2013. The transcript of that evidence, together with all exhibits tendered at the examination, was admitted, by consent, as evidence at the trial without the need for any witness to be recalled or examined and without any objections to the admissibility of any part of that evidence.
Oral evidence was given by Mr Grantham Angus Kitto, a principal in the firm of Kitto & Kitto, who acted personally for the deceased from July 2007 until her death. The other witness was Ms Jacqueline Alexander, who was a paralegal clerk at the firm of Kitto & Kitto and who met the deceased with Mr Grantham Kitto from time to time. It was Ms Jacqueline Alexander who had the telephone conversation with the deceased and Dr Sakalo on 11 August 2010 and it is her handwriting on the note, exhibit 4, which the first-named fourth defendant is seeking to propound as the last and valid informal will.
The engagement by the deceased of the firm of Messrs Kitto & Kitto was a little over three months after the plaintiff issued the originating summons in this court seeking relief in relation to the estate of Lena Didus. There are notes by Ms Jacqueline Alexander of a conference between the deceased, Mr Kitto and herself on 10 October 2007 dealing with a variety of matters, including properties owned or administered by the deceased and other associated matters, including the letting of 24 Rokeby Road. In the course of these notes there is a reference that 'Lorelle wants will done (Alla not to know)'. The final note of the conference, after other matters intervened, was that the deceased would get back to the solicitors about her will.
The next note from the solicitors' file is on 18 October 2007, which deals mainly with a variety of property matters but concludes with a note 'Will - doing it again'. This was followed by a letter from Messrs Kitto & Kitto to Mrs Lorelle D'Unienville of 9 November 2007 dealing with numerous matters but which included a reference to a will. The letter stated:
You also advised that you wanted a new will drafted. You advised that you would provide us with the details you want included in your will in early November.
The next record in the solicitors' file is a set of notes by Ms Alexander of a conference with the deceased attended by herself and Mr Kitto on 21 November 2007. This dealt largely with matters which were the subject of proceedings or negotiations with the plaintiff or her solicitors over the administration of the Didus estate and details of financial transactions or demands by the plaintiff. These notes include a reference 'destroyed her old will' and that the solicitors would do a draft will for her to look at and that 'Alla distanced herself from Lorelle [be]cause of will'. Then in notes of a conference of 20 December 2012 with the deceased, Mr Kitto and Ms Alexander a wide variety of subjects is recorded and the notes include references 'Fix her up in will - daughter' and, later:
When Lorelle made will – she was ill – it's in Alla's favour.
We are not going to tell Alla what the will says.
Lorelle wants to change will.
And later:
With Andrew – have for 80% of market value in will.
Lorelle hasn't met wife of Andrew yet. Is godmother of Andrew's newborn son.
The reference in these notes to a will made when the deceased was ill and favouring Alla would appear to be a reference to the will made at the Hollywood Hospital on 29 July 2006 appointing Dr Sakalo executor and providing that her son, David Paul Donaldson, would be the major and residuary beneficiary. The reference to Andrew having 'for 80% of market value in will' may well be a reference to an intention for the new will to provide Andrew Harler with the opportunity to acquire the property at 24 Rokeby Road at a concessional price.
The date of this conference is significant because it is only two days before the alleged informal will of 22 December 2007 which purported to appoint Andrew Harler as executor and left the bulk of her estate to the sole residuary beneficiary, the infant, Bertram James Harler, whom she described as her godson. The record of instructions to the solicitors on 20 December 2007 is not consistent with the terms of the alleged will of 22 December 2007 because the implication in the former is that the disposition in favour of the Harler family was to be to Mr Harler and not to the newborn infant, and that it would, in some way, represent a right only to obtain the property at 24 Rokeby Road at a concessional price.
The next note by the solicitors is of a conference held on 27 February 2008 at the deceased's home, attended by the deceased, Dr Sakalo, Mr Grantham Kitto, and it appears to be in Ms Jacqueline Alexander's handwriting, who was also, presumably, present. The substance of the notes deals largely with the originating summons proceedings commenced by the plaintiff about the administration of the estate of Lena Didus and preparations for an impending mediation in those proceedings. At the end of the notes there is a reference:
Will she wants to fix up.
Alla is currently executor of will.
That was followed by a letter from Messrs Kitto & Kitto to the deceased dated 2 April 2008 following the mediation conference in the proceedings for the administration of the estate of her late mother. It deals mainly with the terms of the agreed settlement and the steps needed to put that agreement into effect. Towards the end of the letter there is a passage:
Will & enduring power of attorney.
We confirm that we have had no instructions from you with respect to completing your Will and Enduring Power of Attorney, and we will at this stage leave it until we have had instructions from you.
These notes are also significant because the reference in the conference notes of 27 February 2008 to Alla currently being executor of the will appears to be a reference to the will of 29 July 2006 and no mention of any kind is made of a subsequent will or a will appointing Andrew Harler as executor, although the meeting with Mr Harler leading to the preparation of the document of 22 December 2007 had occurred only a little over two months before.
More than a year then passes without the solicitors having any record of instructions or discussions about a will but, on 18 December 2009 Ms Alexander calls on the deceased, then a patient at Fremantle Hospital, at her request. Ms Alexander made a note of that conference which reads:
She said she doesn't have a will.
I told her that if she doesn't have one then her daughter will be entitled to her estate.
Lorelle does not want this to occur.
Has asked that I call her back next week to discuss – I advised that we are away between Christmas and NY. So prob won't be able to get it done before then.
There is a note of a further conference between Ms Alexander and the deceased on 15 January 2010 which was at a time when the deceased was still an inpatient at Fremantle Hospital. The notes of the conference record steps taken to effect a transfer of land (presumably Kintyre Crescent, Floreat) and other steps to implement the terms of the settlement of the Didus estate proceedings. There are notes of discussions about moving to St Michael's Nursing Home. Then there is an entry:
Talked to Lorelle about her will – she said she doesn't have one – I told her that her daughter would get the majority of her estate if she passed away without one.
- She said she wants to leave money to a lot of people.
- Told her when she thought of someone to write their name down, so when we do will it will be easier – she thought that was a good idea and will start to think about it.
The notes indicate that shortly afterwards one of the medical staff at the hospital noticed the activities of Ms Alexander and expressed a concern about the capacity of the patient to sign documents. A full explanation was given and Ms Alexander recorded that Ms Lorelle D'Unienville appeared to recognise her and to know where she was from, follow the conversation and understand matters but the conference then ended with the law clerk saying that she would contact the patient again soon.
The consequences of dying intestate were, as Mrs D'Unienville had been informed by her solicitors on 16 December 2009, that the whole of her estate would go to her daughter. It is clear that that is not a result which she intended. It is, therefore, unlikely that she would have intended to revoke a valid will of 22 December 2007 by crossing it out without taking some steps to replace it with another will expressing her then intentions very soon afterwards. This is, of course, not conclusive but it is an inference which is open to be drawn after consideration of other evidence.
There are numerous authorities to establish that minor crossings or marks on a will which do not 'destroy' the will and do not amount to a formal revocation. So diagonal lines appearing on a document were held to be ineffectual: In the Estate of Shephard (1982) 29 SASR 247, 252. Similarly, the crossing out of the names of witnesses to a codicil did not amount to a revocation: In the Will of William Barrett (1876) 2 VLR 98 and where the deceased had written 'cancelled' over a codicil that was regarded as insufficient to constitute an obliteration or destruction of the will and hence revocation: In the Will and Codicil of Sakzewski [1943] QWN 38. See also Stephens v Taprell (1840) 2 Curt 458; 163 ER 473.
For revocation under pt X there must be a document, not duly executed, which expresses an intent to revoke and which was intended to constitute an instrument of revocation: Re Estate of Margaret Criddle; Ex parte Numans [2011] WASC 169. In Butterworth v Woods [2010] WASC 176 I observed that alterations made can be of such a nature or made to such an extent that they amount to a mutilation of a will with the intention of revocation. However, in that case, there were powerful additional factors to indicate that the handwritten alterations to the will effected by the deceased informally had been made with the intention of changing the will and that the document as altered should take effect: see also The Estate of Donald Lee Hudson (Dec) [2002] WASC 146.
These are very insecure foundations upon which to rest a conclusion that the 2007 document was intended to be a will or that the crossings on it amounted to a deliberate intentional informal revocation. It has repeatedly been emphasised in authorities dealing with the requirements for a formal valid will that the making of a will or other testamentary document is an important, solemn event having major potential consequences and in respect of which it is to be expected that any testator would make every reasonable effort to ensure that his or her intentions were plainly expressed and recorded. This should be done in a manner which leaves no doubt about his or her intentions or the realisation of the importance of the task being performed. It is certainly the case that the dispensing power allowing the acceptance of informal wills under pt X of the Wills Act and comparable legislation has been introduced to ensure that a person's intentions, particularly of one who may not be familiar with the law, uneducated or disadvantaged, are not frustrated by strict legal requirements which would nullify the implementation of what plainly emerges to have been the actual intention of the deceased in expressing his or her testamentary wishes. All that is, of course, accepted, but the importance to be attached to the act or actions of expressing a person's testamentary intentions remains even if, through lack of opportunity, ignorance or disability, the deceased chooses to express his or her testamentary intentions in an informal way: Estate of Peter Brock [2007] VSC 415 [19] – [23] (Hollingworth J).
Mrs D'Unienville at all times from 1963 onwards must be regarded as having been aware of the formal requirements for the making of a will and, in particular, the need for two witnesses. Her desire to ingratiate herself, or at least to preserve the goodwill and attentions of Mr Harler has, I am satisfied, been plainly demonstrated. It is incongruous, to say the least, that at the time when her solicitors were discussing with her the preparation of a new will and ready to act on her instructions that she would make an informal will on her own on 22 December 2007 and then say nothing about that to the solicitors when next meeting with them in February 2008. On the other hand, she did say to her solicitors on several occasions on and after 15 January 2010 that she did not have a will, yet on 23 July 2010 at a meeting at St Michael's Nursing Home when the EPOA was explained and executed in Dr Sakalo's presence the latter said that there was a will made in 2006 appointing Dr Sakalo as executor and that she, Dr Sakalo, would provide a copy to the deceased's solicitors, as she did later. There is no evidence that Mrs D'Unienville in any way demurred to that statement or said that the 2006 will had been revoked or that there had been a later intermediate will in 2007 itself revoked, although her silence on this topic in the light of earlier statements that she did not have a will is not conclusive either way.
The previous will making habits of a deceased have been regarded as relevant in considering the intentions or whether or not a deceased person intended that a particular instrument should operate as a will: In the Estate of Dunne; Anderson v Scrivener [2002] NSWSC 900 [43]. A similar approach was taken in Kedzier v Postle [2002] NSWSC 875. In Fast v Rockman [2013] VSC 18 [112] Habersberger J said:
I accept that a deceased's awareness of the formalities required for a will may bear on a court's assessment as to whether he or she intended an informal document to [be] his or her will. Where a deceased is aware of those formalities and had an opportunity for the will to be executed in conformity with those requirements but failed to do so, that failure tends to point against the conclusion that the deceased intended the document to be his or her will. Conversely, a lack of full familiarity or awareness with those formalities may allow a court more readily to infer that the deceased intended the informal document to have legal effect according to its terms after his or her death. Further, if a deceased had failed to sign a will or comply with the formalities not by inadvertence or 'act of God' beyond his or her control, but as a result of a conscious decision not to do so, including a reluctance to do so, the court is likely to decline to admit the document to probate. (citations omitted)
Having regard to all these circumstances, I am not satisfied that Mrs Lorelle D'Unienville intended that the document which she dictated to Mr Andrew Harler on the evening of 22 December 2007 and which she later signed and had witnessed by Mrs Valerie Joan Smith was to be her will. It may have suited her inclinations at the time to have Mr Harler and, for that matter, Mrs Smith believe that it should be her will but she must have known that a valid will needed two witnesses. Only some days before she had been speaking with her solicitors about the preparation of a new will and they were ready, willing and able to act on her instructions which, incidentally, did not involve the whole of her residuary estate being left to any member of the Harler family.
There is certainly much evidence of irresolution and procrastination by Mrs D'Unienville about the preparation of a will but there can be no doubt that she must have realised that she had solicitors ready to act on her instructions as soon as they were formulated and that by engaging professional assistance a valid will would readily be made. Her dilemma, as already identified, is that after 2006 she was never able to bring herself to a point where she could decide what provision should be made for her daughter. For many reasons, and from many viewpoints, this is sad and disconcerting and has produced many complications and uncertainties, yet it is the most obvious and irresistible conclusion that can be drawn from all this evidence.
The result, therefore, is that I am not satisfied that the writing of 22 December 2007 was ever intended to be a will and that the claim for probate of this document should be refused. It also follows that the crossings of the documents cannot amount to any form of revocation.
There are a number of possibilities to explain the crossings on the alleged will of 22 December 2007. One, already mentioned, is that the document was never intended to constitute a will but was only a means of ingratiating the deceased with Mr Harler and his wife and that once it was thought to have served that purpose it was discarded and perhaps crossed by the deceased to indicate nothing more than it had no significance or effect.
Another possible explanation (which assumes its validity as an informal will) is that it was re‑examined at some time by Mrs Lorelle D'Unienville, who then considered that she was dissatisfied with its contents and should make a new will and, accordingly, crossed it out as not being satisfactory to her in anticipation that a new will, presumably a formal will, would be made to give effect to her then intentions. Such actions would not, by themselves, be sufficient even to effect an informal revocation unless accompanied by a present intention that that will should thereby be revoked. On that essential issue, the presence of an animo revocandi at the time of crossing, there is no direct evidence.
The onus of proving that a formal or, for that matter, informal, testamentary instrument has been revoked rests upon the party seeking to establish revocation: Brown v Wade [2010] WASC 367, 357 and Doe d Hearle v Hicks (1832) 1 C1&F 20, 34; 6 ER 823, 829 (Tindall LCJ).
Accordingly, if I had found that the writing of 22 December 2007 were a valid informal will, I would not have beensatisfied that the deceased had intended the crossings appearing on that document to be a revocation of that informal will.
This leaves open the question of whether or not the alleged informal will of 22 December 2007 was revoked, as the first-named fourth defendant contends, by a subsequent informal will comprised by the telephone instructions to the deceased's solicitor's clerk on 11 August 2010.
Events of 11 August 2010
The full account of the events leading to the telephone conversation by which Dr Sakalo conveyed in the deceased's presence her instructions for a will, which were recorded by Jacqueline Alexander at Kitto & Kitto on the document now being propounded as an informal will, is provided from several sources which I accept as reliable.
The events of that day are described by Dr Hilary Snell, who attended on her patient that morning; records of the attendance are in the medical and nursing notes for St Michael's Nursing Home; a detailed account is given by Dr Sakalo, who came to the hospital on being called by her friend and colleague, Dr Snell, who informed her that Mrs D'Unienville was seriously ill and in a palliative state, not expected to live; and by Ms Jacqueline Anderson. Following the death of Mrs D'Unienville on 14 August 2010, before any will had been prepared on those instructions, Mr Grantham Kitto directed Ms Anderson to prepare a detailed record of the events of that day, and she did so. That is contained at pages 42 to 44 of the agreed trial bundle and no party suggested that it was anything but accurate. This account given by Ms Alexander is entirely consistent with the evidence of Dr Sakalo. I therefore set it out in full as being the most comprehensive record of what occurred. It is as follows:
At 12.27 pm on Wednesday 11 August 2010 I received a telephone call from Alla. Alla advised that she was at the nursing home with Lorelle. She advised that she had spoken with Lorelle about giving me the instructions for her Will. Alla handed the phone to Lorelle.
I asked Lorelle how she was feeling. She responded by saying not too bad, and how are you?
I asked her if she had thought about who she wanted to leave things to in her Will. Lorelle advised that there were lots of people that she wanted to leave things to. I advised that we needed to get something done up, and it could be changed if she thought of anyone else that she wanted included in her Will.
I asked Lorelle who she wanted as executor for her Will. Lorelle advised she wanted Alla to be the executor, as she is her oldest friend.
I then asked her who she wanted to leave things to. She said Joy. I asked her how much she would like to leave her - $5,000, $10,000, $15,000? She said $20,000.
Alla took the phone and explained that she could provide me with the details for these people later (ie, their full names, addresses etc). Alla advised that Joy and Val were Lorelle's neighbours who looked after her. Alla handed the phone back to Lorelle.
I asked Lorelle if there was anyone else that she wanted to leave things to. She said she wanted to leave the Volvo to Val. I asked her if she wanted to give Val anything further. She said $5,000.
I asked whether she wanted to leave anything for Andy. She said she wanted to leave Andy's three children some money for their education. I could hear Alla asking Lorelle, how much she wanted to leave them. Lorelle said $30,000. I could hear Alla asking whether the $30,000 was for each of the children or in total, so $10,000 each. Lorelle said $10,000 each and that she wanted it for their education. Alla then took the phone from Lorelle and explained that Lorelle wanted to leave $10,000 for each of Andy's three children, and for it to be put into a special education fund for them. (Alla handed the phone back to Lorelle).
I asked Lorelle whether she wanted to put anything in her Will for 'the girl' (her daughter, Mariette). Lorelle advised that she wanted to leave enough so the daughter couldn't contest. I advised that we believed that no matter what was left to 'the girl' that she would contest the Will. Alla took the phone.
Alla advised that Lorelle wanted to leave what was fair to Mariette and that Lorelle wants Grantham to come up with a figure. I explained again to Alla that no matter what the figure is, we believe that Mariette will contest the Will. Alla understands that, but thinks Grantham needs to put down a fair figure. Alla gave the phone back to Lorelle.
I asked Lorelle whether there was anyone else that she wanted to leave anything to. (I remembered from the last meeting with Lorelle that she wanted to leave some money to the animals). I asked her whether she wanted to leave anything to the animals. She said that yes, she wants to leave some money to the animals. I asked her what charity, ie RSPCA – she said yes, she would like to leave some money to them. I could hear Alla in the background prompting Lorelle to find out how much she wanted to leave them by saying $5, $10, 15,000. Lorelle stated that she would like to leave $10,000 to the animals.
I asked her if there was anyone else that she wanted to leave specific gifts to, she said that was all.
I then asked Lorelle, who she wanted to leave the remainder of her estate to. Lorelle didn't understand what I was meaning. I explained to her that the $20,000, $5,000, $30,000 and $10,000 only come to a small proportion of her entire estate, and that she needed to specify who she wanted to leave the rest of her estate to. She still did not understand what I was talking about. I asked if I could speak to Alla.
I spoke to Alla again, went over Lorelle's instructions with her, she confirmed that that was Lorelle's instructions.
Alla gave me the telephone details for:
Joy Taylor (phone number not here reproduced). (She didn't know her address – but said to give her a call and she would tell me)
Val – (phone number not here reproduced). (She didn't know Val's surname or her address but advised Joy would be able to tell me this information).
I said I would draft something up.
NB: I believe from this telephone conversation Lorelle was fully aware and understood who she was leaving her estate to. I believe that she was not pressured in any way to provide me with the above instructions and that the above instructions are Lorelle's true wishes.
Although comprehensive, this record of the conversation between Ms Alexander, Dr Sakalo and the deceased is not entirely consistent with the note of the telephone instructions which the first‑named fourth defendant is seeking to propound by her counterclaim. In the first place, it does not make any reference to 'headstone to be modest' which is noted on the telephone instructions. I do not regard that as a material inconsistency because it is very probable that the matter was mentioned in the course of the telephone conversation but simply not recalled or mentioned when the detailed written statement was prepared five days later.
Potentially far more significant is the reference in the telephone note that Alla was to be both executor and sole beneficiary, an expression which, from the document as a whole and in context, I consider should be read as meaning sole residuary beneficiary, in view of the express mention of other specific legatees. By contrast, the account of the telephone conversation so fully recorded by Ms Anderson implies that Mrs D'Unienville, when specifically asked about the disposition of her residuary estate, did not understand the enquiry, even when it was pressed, because that document makes no reference to any specific instructions dealing with her residuary estate.
The apparent inconsistency between the recorded written instructions in exhibit 4 and Ms Jacqueline Alexander's more detailed note of the telephone conversation of 11 August 2010 about the disposition of the residuary estate was the subject of evidence at the de bene esse hearing. Ms Alexander confirmed that the deceased did not appear to understand the significance of the questions put to her about her wishes for the disposition of the residuary estate and it was at that point that Dr Sakalo again took the telephone, discussed the matter with Ms Alexander and tried to explain to Mrs Lorelle D'Unienville. After that, Mrs D'Unienville took back the telephone and discussed the matter further with Ms Alexander. It was Ms Alexander's evidence in the de bene esse hearing that it appeared that the deceased was under the impression that by naming Dr Sakalo as executor of the estate she would receive all assets not otherwise disposed of and that this was the basis for her confusion when asked about her instructions for the disposition of the residuary estate. According to Ms Alexander, she confirmed this by further discussion with Mrs D'Unienville and she believes that Mrs D'Unienville made it clear to her at that time that it was her intention that Dr Sakalo should be the sole residuary beneficiary, confirming that that was the case when Ms Alexander read back the points of the instructions to her for confirmation. That was the basis upon which Ms Alexander recorded the instructions in exhibit 4 and which she implemented in the draft will which was never executed. It would seem, therefore, that the instructions as recorded by Ms Alexander were correct, but this was obviously a point of such importance that it was desirable that it be confirmed when the formal will came to be executed. That is just one of the matters that Mr Kitto would have discussed with the deceased at the conference which he contemplated would occur before the will, which his office had prepared, was executed.
Nevertheless, the evidence shows that Messrs Kitto & Kitto prepared in draft a proposed last will for Mrs D'Unienville following the telephone conversation with Ms Alexander of 11 August 2010. That document, unexecuted, appears at pages 39 and 40 of the agreed trial bundle. It contains dispositions entirely consistent with the instructions recorded in the telephone notes before and appoints Dr Sakalo as the sole executor and, later, the sole residuary beneficiary. It provides for the specific pecuniary legacies recorded in the telephone note and in the record of that conversation but when it comes to a legacy in favour of the plaintiff the drafting is:
3.I GIVE DEVISE AND BEQUEATH the following gifts:
…
(d)I give, $ to my daughter, Mariette D'Unienville; and
…
This is plainly consistent with the instructions contained in exhibit 4 and the account of the telephone conversation later set down by Ms Alexander and contemplating that the money amount of that legacy would be stipulated by Mr Grantham Kitto in due course – an event which never happened.
Mr Grantham Kitto was aware that the instructions received by his office from Mrs Lorelle D'Unienville on 11 August 2010 contemplated that he would nominate the amount of the gift to be left by the deceased to the plaintiff. He never in fact did so but in the course of his evidence at the de bene esse hearing he indicated that he had in his own mind formed a view that it would be prudent for the deceased to leave about 20% of the value of her estate to her daughter, the plaintiff. When asked what he considered to be the value of the estate, he said that he would have put her assets at somewhere between $3 million and $4 million. He emphasised that he had never discussed such a proposal or such an amount with Mrs D'Unienville and had she not died when she did he would have visited her at the nursing home with the proposed will which recorded the instructions and would have gone through each provision in the will in detail with her to confirm that she understood and accepted what was proposed. It follows that in doing so he would very probably have discussed with Mrs D'Unienville the amount of any disposition to be made to the plaintiff and that it was his intention that the choice would depend upon discussion with her and her acceptance of the amount proposed or the result of further discussion about it.
It is, of course, possible that Ms Alexander interpreted the instructions being conveyed to her by telephone from Mrs Lorelle D'Unienville in appointing Dr Alla Sakalo as the sole executor as implying that, in view of their long friendship, she was also to be the major sole residuary beneficiary. In doing so, she may well have been correct, but it cannot be said that the matter is, in all the circumstances, free of any doubt.
The course adopted of leaving the nomination of the amount to be left to the plaintiff to be put forward by Mr Grantham Kitto and the apparent implementation of the assumption that Dr Sakalo was to be the sole residuary beneficiary were reasonable steps to follow if a will had to be prepared urgently and be taken out for execution, at which point, if not before, express endorsement of any amount suggested by Mr Kitto could be obtained, together with confirmation that it was the intention of the testator that Dr Sakalo was indeed to be the sole residuary beneficiary.
That a will along these lines was to be taken to Mrs D'Unienville at the nursing home for approval and execution, presumably by Mr Kitto and Ms Alexander, seems an inescapable inference in all the circumstances and one which I am satisfied should be drawn. It gives rise to the question of whether or not the instructions, as recorded, were intended to be without more the settled testamentary intentions of the deceased or whether they were provisional or tentative in the sense that they were intended to be subject to approval or ratification of the amount of the legacy to the daughter suggested by Mr Kitto and, also, conditional upon confirmation that Dr Sakalo was to be the sole residuary beneficiary and preparation and execution of a formal will to that effect as soon as possible.
The requirement for any document being propounded as an informal will to represent the final settled testamentary intentions of the deceased to operate as his or her will has now been discussed on many occasions. Cases include Re Perriman (dec) [2003] WASC 191; Oreski v Ikac [2008] WASCA 220; and Mitchell v Mitchell [2010] WASC 174. In that latter case I observed that to satisfy the requirements of s 32 of the Wills Act it needed to be proved that the document being propounded expressed the concluded testamentary intentions and decision of the deceased rather than being some provisional, preliminary or tentative proposal which had not by then received the deceased's full assent: see also Deeks v Greenwood [2011] WASC 359; see also Spencer v Spencer [2009] WASC 198; In the Estate of Kevin John Hines v Hines [1999] WASC 111 [20]; Dalton v Dalton [2008] WASC 56; and Public Trustee v Gerritsen [2012] WASC 201.
There is evidence from Dr Sakalo that once Mrs D'Unienville had completed the telephone conversation with Ms Jacqueline Alexander on 11 August 2010 she expressed relief by saying words to the effect, 'Well, now that is done, I've done everything I have to about the will', indicating that, in her own mind, the instructions which she had given by telephone to her solicitor accomplished her intention of making an effective will. This evidence was relied on heavily by counsel for the first-named fourth defendant in propounding those instructions as an informal will but there are several reasons which cause me to hesitate in accepting this. In the first place, Mrs D'Unienville had made valid wills before; had requested that others obtain and supply to her stationer's will forms; and was acquainted with the need for the signing and witnessing of a document to constitute a will. It seems very unlikely that she would therefore have regarded the telephone instructions as being all that was needed on her part to effect the making of a valid will. Of course, with her passing, it is impossible to investigate her thought processes on this subject any further, but they would appear to be equally consistent with a view on her part of some degree of relief that she had at last given instructions for the preparation of a will which would be acted upon by her solicitors and that the usual procedure would be followed of a document being brought to her for approval and execution later.
Secondly, the fact that the instructions were incomplete in failing to specify the quantum of the legacy to be left to the plaintiff shows that it is unlikely that, in that respect, the instructions represented a final and settled choice by the deceased about that gift.
As noted earlier, counsel for the first-named fourth defendant, in search of a way to avoid a result that the telephone instructions of 11 August 2010 would be regarded as ineffective because they involved a delegation to Mr Kitto of at least part of the testamentary power of the deceased, advanced the submission that an informal will, just as much as a will formally executed, could contain invalid or ineffective provisions because of incompleteness, uncertainty or other vitiating factors. This meant, so the submission went, that the instructions could nevertheless amount to a valid informal will, although the intended gift to the daughter, Mariette, would fail because of uncertainty, but leaving the other dispositive provisions in the document valid and effective.
No authority was cited to support the proposition that an informal will could be valid even if it contained some ineffective or uncertain provision. However, I am satisfied that it is not necessary to decide that point finally in the present case, although it is possible that, depending on the facts and circumstances of a particular case, that might be so. Rather, I am satisfied that the telephone instructions given by Mrs D'Unienville and imparted on her behalf by Dr Sakalo on 11 August 2010, and as recorded by Ms Jacqueline Alexander, do not satisfy the requirements of s 32 of the Wills Act and cannot be regarded as a valid informal will. I have concluded that these instructions were not intended to operate as a last will of the deceased but contemplated the preparation of a formal document implementing those instructions which would be duly executed by Mrs D'Unienville at an early opportunity.
I am also satisfied that the instructions were provisional and tentative in leaving open for suggestion and possible ratification or change the amount of any gift to the plaintiff which might have been suggested by Mr Grantham Kitto in response to Mrs D'Unienville's request. I consider that the instructions were subject to confirmation by Mrs D'Unienville, after proper explanation to her, that she did, indeed, intend that Dr Sakalo should be not only the sole executor but the sole residuary beneficiary. For these reasons, I reject the claim that seeks to propound the telephone instructions of the deceased of 11 August 2010 as an effective informal will.
Not being an effective informal will, the telephone instructions of 11 August 2010 do not, as such, constitute a revocation of any previous will, formal or informal, of the deceased. However, the plaintiff submits that even if this were not a valid informal will, it may nevertheless be a valid informal revocation of any previous will by reason of s 32(2)(c). It is possible that a document not amounting to either a formal or informal will may constitute either a formal or informal revocation of any previous will, but that would be the case only if, in the case of an informal document, the court it satisfied that it is the settled intention of the deceased that the document should have that effect. I do not see any basis upon which it could be contended that the telephone instructions, not amounting to a valid informal will, could nevertheless in this case constitute a valid informal revocation of any previous will. This is again because I consider those instructions to contemplate the preparation by the solicitors of a will for formal execution in the near future rather than constituting any form of will themselves and also because of the uncertainties of incompleteness in the instructions which I have described.
There is, on this point, an additional factor and it is that there is nothing whatever to suggest that even in the course of the conversation between the deceased and Mrs Alexander, whether via Dr Sakalo or directly, or in the records of those instructions made by Ms Alexander, any specific attention was given merely to the revocation of some previous will rather than the making of a new will. Of course, the making of a new will would, once it was effected, revoke any previous will but the only focus and purpose of the instructions was to have a new will prepared which, if and when it occurred, would of course revoke any earlier will. There is no basis in this evidence to conclude that, while not intending to effect the making of a new will, these instructions nevertheless constituted the settled intention and intended effect of the deceased merely to revoke any earlier will.
Conclusion
For these reasons, therefore, I consider that the orders and declarations which the court should make should be to the following effect:
(a)that the plaintiff's claim for a grant of letters of administration in favour of the plaintiff in solemn form of law upon an intestacy should be dismissed;
(b)that the first-named second defendant's claim that David Paul Donaldson should be granted letters of administration of the estate of the deceased in solemn form of law with the will of 29 July 2006 annexed (the executrix named in that will, Dr Alla Sakalo having renounced any right to seek probate of that will) should be granted and it be declared that that will is the last valid will of the deceased;
(c)that the counterclaim by Dr Sakalo as first-named fourth defendant for a grant of probate of an alleged informal will of the record of telephone instructions conveyed by the deceased on 11 August 2010 be dismissed.
If orders are made to the effect proposed, there would also appear to be need to make the following additional consequential orders, namely:
(a)that the grant of letters of administration of the estate of Lorelle Olga Marielle D'Unienville granted by this court on the 11 September 2012 to the plaintiff, Mariette Irene Paule Marrier D'Unienville be hereby revoked; and
(b)that the plaintiff deliver into the registry of the court the original of that grant of letters of administration ad colligenda bona for cancellation;
(c)that the plaintiff do deliver to David Paul Donaldson or his solicitors all documents or instruments of title relating to all or any of the assets of the estate of the deceased, together with a statement of accounts, verified by affidavit, setting out all her dealings with the estate assets from the date of her appointment as administratrix ad colligenda bona until the handover of the assets to the new administrator.
Subject to submissions by the parties, which I will invite, there would appear to be reason to order that the costs of all the parties, both of the claim and the counterclaims, and all reserved costs, if any, should be paid out of the estate.
I will hear counsel as to whether any further or other orders should be made.
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