Dalton v Dalton
[2008] WASC 56
•30 APRIL 2008
DALTON -v- DALTON [2008] WASC 56
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 56 | |
| Case No: | CIV:2367/2005 | 17 MARCH 2008 | |
| Coram: | BEECH J | 30/04/08 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Probate granted of informal will Declaration as to proper construction of the informal will | ||
| B | |||
| PDF Version |
| Parties: | FLORENCE AWERE DALTON AARON DALTON JASMINE JAKEISHA MARY DALTON RACHEL GAY DALTON SEAN RICHARD DALTON SHERYL MAVIS DALTON |
Catchwords: | Wills Probate Testamentary instruments Informal will Whether deceased intended document to constitute his will Construction Whether will void for uncertainty |
Legislation: | Wills Act 1970 (WA), s 34 |
Case References: | Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101 Berdal v Burns [1990] WAR 140 Brennan v Permanent Trustee Company of New South Wales (1945) 73 CLR 404 Hatsatouris v Hatsatouris [2001] NSWCA 408 In the Estate of Graham (1978) 20 SASR 198 In the Estate of Roberts (1985) 38 SASR 324 In the Estate of Williams (1984) 36 SASR 423 James v Burdekin (1990) 3 WAR 298 Malatesta v Scott (Unreported, WASC, Library No 940291, 15 June 1994) Oreski v Ikac [2007] WASC 195 Parnell v Hinkley [2007] WASC 102 Perpetual Trustees (WA) Ltd v Gailey [1999] WASC 61 Re Estate of Frederick Raymond Reeve Perryman [2003] WASC 191 The Estate of Kevin John Hines v Hines [1999] WASC 111 The Public Trustee in and for the State of Western Australia v Drennan [2004] WASC 101 Uranium Equities Ltd v Fewster [2008] WASCA 33 Will of Lebato; Shields v Caratozzoli (1991) 6 WAR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
AARON DALTON
First Defendant
JASMINE JAKEISHA MARY DALTON
Second Defendant
RACHEL GAY DALTON
Third Defendant
SEAN RICHARD DALTON
Fourth Defendant
SHERYL MAVIS DALTON
Fifth Defendant
Catchwords:
Wills - Probate - Testamentary instruments - Informal will - Whether deceased intended document to constitute his will - Construction - Whether will void for uncertainty
(Page 2)
Legislation:
Wills Act 1970 (WA), s 34
Result:
Probate granted of informal will
Declaration as to proper construction of the informal will
Category: B
Representation:
Counsel:
Plaintiff : Mr D R Williams QC
First Defendant : Ms Y Salleh
Second Defendant : Ms H J Finch
Third Defendant : Mrs W F Buckley
Fourth Defendant : Mrs W F Buckley
Fifth Defendant : Mrs W F Buckley
Solicitors:
Plaintiff : Murfett & Co
First Defendant : Public Trustee (WA)
Second Defendant : Public Trustee (WA)
Third Defendant : Merle Bloch
Fourth Defendant : Merle Bloch
Fifth Defendant : Merle Bloch
Case(s) referred to in judgment(s):
Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101
Berdal v Burns [1990] WAR 140
Brennan v Permanent Trustee Company of New South Wales (1945) 73 CLR 404
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the Estate of Graham (1978) 20 SASR 198
(Page 3)
In the Estate of Roberts (1985) 38 SASR 324
In the Estate of Williams (1984) 36 SASR 423
James v Burdekin (1990) 3 WAR 298
Malatesta v Scott (Unreported, WASC, Library No 940291, 15 June 1994)
Oreski v Ikac [2007] WASC 195
Parnell v Hinkley [2007] WASC 102
Perpetual Trustees (WA) Ltd v Gailey [1999] WASC 61
Re Estate of Frederick Raymond Reeve Perryman [2003] WASC 191
The Estate of Kevin John Hines v Hines [1999] WASC 111
The Public Trustee in and for the State of Western Australia v Drennan [2004] WASC 101
Uranium Equities Ltd v Fewster [2008] WASCA 33
Will of Lebato; Shields v Caratozzoli (1991) 6 WAR 1
(Page 4)
- BEECH J:
Introduction
1 The plaintiff applies for a decree pronouncing for the validity of a document as an informal will of the late Richard John Dalton (the deceased).
2 In the event that the document is admitted to probate, the plaintiff also seeks a declaration as to its proper construction. Traditionally, in matters of succession the court of probate and the court of construction have been kept separate. However, in this case the parties all wished both sets of issues between them to be resolved in one proceeding and there was no apparent legal or practical impediment to that course.
3 As almost all parties have the same surname, I propose to refer to people by their first names (without intending any disrespect).
4 The deceased died on 29 May 2004.
5 The plaintiff (Florence) is the widow of the deceased. The first defendant (Aaron) and second defendant (Jasmine) are the infant children of the plaintiff and the deceased. In this action, Aaron and Jasmine have interests distinct from each other and from their mother, and so were each separately represented by counsel.
6 The plaintiff was the second wife of the deceased. The fifth defendant (Sheryl) was his first wife. The third defendant (Rachael) and fourth defendant (Sean) are the adult children of the deceased and the fifth defendant.
7 I begin with the plaintiff's application under s 34 of the Wills Act 1970 (WA).
The Document and its subject matter
8 The text of the document (the Document) propounded by the plaintiff as the deceased's will is handwritten. It covers both sides of a single sheet of paper and is in the following terms:
Date Friday 6/9/02
I am Richard Dalton, this is my last will and testament. I want all my children to benefit from my death. The house in Hamersly [sic] is mine: 75 Ardleigh Cr. I paid totally for this house. I want my present wife (Florence) and son (Aaron) to take the benefits of this. Family Court has
(Page 5)
- declared that after my son Sean becomes 18 years of age then the house is divided between myself and Sheryl. I want the house to be divided between my two wife's [sic] Florence and Sheryl. One half to Florence. One half to Sherly [sic], This is my wish.
Signed R Dalton
PS I give my right's [sic] to the house to Florence.
- There is then the signature 'R Dalton' three times. The document concludes:
All my superannuation goes to Florence and Aaron.
The document is then signed again, in the name R Dalton.
9 There is, on the Document, some marks in the nature of doodles, in pen, and some yellow 'texta' marks.
10 The Document refers to the house at 75 Ardleigh Crescent, Hamersley. That property is registered in the names of the deceased and Sheryl as joint tenants.
11 On 22 September 1998, orders were made in the Family Court regarding 75 Ardleigh Crescent, Hamersley. The effect of the orders was that Sheryl had exclusive use of the property until she died, remarried, moved out, or until Sean reached 18 years of age. When she ceased to occupy the house, there was a mechanism for each party to make an offer to the other, failing which the property would be sold and the net proceeds divided equally between the deceased and Sheryl. The joint tenancy of Sheryl and the deceased was severed by the Family Court orders of 22 September 1998. See Berdal v Burns [1990] WAR 140 (Commissioner Williams QC).
Section 34 of the Wills Act
12 The Wills Act has been amended by the Wills Amendment Act 2007 (WA). However, those amendments do not apply to this case, because the deceased died in 2004: s 33 Wills Act.
13 At the relevant time, s 34 of the Wills Act provided as follows:
A document purporting to embody the testamentary intentions of a deceased person is a will of that person, notwithstanding that it has not been executed in accordance with s 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his will.
(Page 6)
14 It can be seen, therefore, that in order for a document to be declared to be the will of the deceased under s 34, the document must satisfy the following requirements:
(a) it must purport to embody the testamentary intentions of the deceased;
(b) it must not have been executed in accordance with s 8 of the Wills Act; and
(c) the court must be satisfied that the deceased intended the document to constitute his will.
The Issues
15 It is common cause that the Document was not executed in accordance with s 8. Whether the other two requirements of s 34 are satisfied is in issue. The third to fifth defendants deny that the deceased wrote or signed the Document. Further, and in any event, they deny that it purports to embody his testamentary intentions. Finally, they submit that even if the deceased signed the Document, the court should not be satisfied that he intended it to constitute his will.
The Facts
16 I begin with the main factual issue at trial, before setting out my further factual findings.
Did the deceased write and sign the Document?
17 The primary factual issue at the trial was whether the Document was written and signed by the deceased. The alternative hypothesis, advanced by the third to fifth defendants, was that the Document was forged by the plaintiff. There is, as the third to fifth defendants accepted, no other realistic hypothesis if the Document was not written and signed by the deceased.
18 The evidence at trial satisfies me that the Document was written and signed by the deceased. In so concluding, I accept the evidence of the plaintiff and the evidence of handwriting expert Mr John Gregory.
19 The plaintiff's evidence is not direct evidence that the deceased wrote and signed the Document. She did not see him write or sign it. Her evidence that he said that he did so is, of course, hearsay. However, her evidence sustains the inference that he wrote and signed the Document.
(Page 7)
20 Even without the evidence of Mr Gregory, the plaintiff's evidence would, I think, have satisfied me that the deceased wrote and signed the Document, notwithstanding the evidence relied upon by the third to fifth defendants. That conclusion is reinforced by the expert evidence of Mr Gregory to the effect that the deceased wrote and signed the Document.
21 The third to fifth defendants' case that the Document was not signed by the deceased relied upon the evidence of the deceased's sister, Rebecca Mary Dalton (Rebecca), and his mother, Mary Teresa Dalton (Mary).
22 Relevantly, Mary's evidence was that she spoke with the deceased the day that she signed her own will, namely on 20 May 2004. That was nine days before the deceased died. Mary told him that she had made a will and, in response, the deceased said words to the effect that he did not have a will and that he should make one. He asked how she had gone about making her will. In the course of this discussion, he expressed a wish that his children from his first marriage (the third and fourth defendants) should benefit from his half of the Ardleigh Crescent property.
23 The main elements of Rebecca's evidence were, relevantly:
(a) After the deceased died, at Florence's request, Rebecca collected papers from the room used as an office by Florence and the deceased at their home at 407 Wanneroo Road, Balcatta. Rebecca says the papers were well organised and that they did not contain the Document.
(b) At no time in the months following the deceased's death did Florence say to Rebecca that she thought there was a will, and at times she said there was no will.
(c) Some months after the deceased's death, Florence contacted Rebecca and said she had found the deceased's will and wanted her to look at it. Florence came to Mary's home in Churchill Avenue, Subiaco, where she showed a document to Rebecca. Rebecca says it was not the Document that was produced by Florence, but a different document, the gist of which was that the third and fourth defendants would share the deceased's half of the Ardleigh Crescent property.
(d) Based upon her observations, she does not believe the Document to be in the deceased's handwriting.
(Page 8)
- In this last respect, I consider that Rebecca's evidence in cross-examination demonstrates that her opinion regarding whether the Document was written by the deceased is not worthy of any substantial weight.
24 In certain respects, including as to the matters in (a) and (c) of the preceding paragraph, Rebecca's evidence conflicted directly with the evidence of Florence. Where their evidence is in conflict, I prefer the evidence of Florence. There was nothing in the way in which Florence gave her evidence, or in the answers given in cross-examination, which seemed to me to give rise to any reason to doubt the veracity or reliability of her evidence. To my mind, the same could not be said of Rebecca. For example, Rebecca was asked whether she recognised a series of signatures in the specimen documents attached to Mr Gregory's report. With the exception of the signatures on the deceased's driver's licence and passport, she would not say, directly, whether she recognised the various signatures as the signature of the deceased but, by implication, declined to do so. She did not identify anything about the appearance of these two signatures which enabled her to be satisfied that they were signed by the deceased, while not so satisfied in respect of the other signatures on the specimen documents. Although Rebecca attempted to suggest the contrary in her evidence, it seems to me to have been plain that she conceded that she recognised the signatures on the passport and driver's licence only because the nature of the documents made it undeniable. As to the conflict between the evidence of Florence and Rebecca regarding the configuration of files, drawers and the like in the room used as an office at the deceased and Florence's home at 407 Wanneroo Road, I prefer the evidence of Florence for the additional reason that she lived at the property and so can be expected to have been most familiar with it in its detail.
25 Further, the evidence of Florence is consistent with and reinforced by the evidence of Mr Gregory.
26 Mr Gregory is an experienced forensic document examiner. He has given opinion evidence in relation to handwriting and signatures on numerous occasions in various courts. He examined the original of the Document using macroscopic and microscopic techniques. He also examined various specimen writings and signatures of the deceased. In conducting his examination, he considered the structure, form and line quality of the letters and characters, and the variations in the writing of the same letters and characters. He also considered the pen strokes; shapes and proportions of letters or characters; and relative size, height and
(Page 9)
- spacing of the deceased's handwriting. Mr Gregory individually examined the cursive or script writing, the block printed entries and the five signatures evident on the Document.
27 In the course of his examination, Mr Gregory gave attention to matters tending to indicate whether the Document had been written by someone seeking to forge or copy a particular person's handwriting and signature. Experience shows that in such circumstances, the handwriting will exhibit characteristics such as hesitation, patching and intermittent pen lifts, or being written in a stilted form. The Document did not, under microscopic examination, exhibit any of those features.
28 Mr Gregory observed a number of features in the Document which were also exhibited in the specimen writings. He gave some examples in his evidence, including the way that certain letters or combinations of letters had been formed.
29 He concluded that the Document had been written and signed by the person who had written and signed the specimen documents (namely, the deceased).
30 There was no contrary expert evidence and the substance of his opinion and reasoning was not challenged in cross-examination. It was put to him that the specimen documents exhibited a greater neatness than the Document. In response, Mr Gregory observed that experience suggests that the way people write, including the neatness of their writing, can vary with a range of circumstances.
31 I accept the evidence of Mr Gregory.
32 I accept Mary's evidence as to the conversation which she had with the deceased on 20 May 2004. However, that evidence does not lead me to the conclusion that the deceased had not written or signed the Document. A number of other hypotheses are available: he may have forgotten about the Document; he may not have wished his mother to know about the Document and its contents; or he may not have considered the Document to be a will.
33 I make the following findings of fact.
Further findings of fact
34 As I have already said, I find that on 6 September 2002, the deceased wrote and signed the Document.
(Page 10)
35 He did not discuss the Document or its contents with Florence at the time that he wrote it.
36 In about the middle of 2003, the deceased suffered the second of a series of angina attacks. Soon after that, he was at home when Florence located the Document while doing housework. At that time, their son Aaron, who was about 3 years old, was drawing on pieces of paper including the Document. Florence took the Document from her son and gave it to the deceased who said words to the effect, 'I will sort it out, just leave it on the table'.
37 Florence did not see the Document again prior to the deceased's death. Nor did she have any further discussion with the deceased about the Document or its contents.
38 After the death of the deceased, Florence lived for a month or two with her mother-in-law Mary at 67 Churchill Avenue, Subiaco.
39 Later, she moved to a house at 93 Lake Monger Drive, to which she brought various property and boxes of papers. After she had moved into the new house at Lake Monger Drive, she found the Document. It was located in a folder placed between the deceased's work documents and his Family Court documents.
40 A few days after she had found the Document, Florence took the Document to Mary's house at Churchill Avenue, Subiaco. Mary and Rebecca were there. Mary did not wish to look at the Document and did not look at it. Rebecca looked briefly at the Document.
41 I am satisfied that Florence brought the Document, and not a different document, to 67 Churchill Avenue.
42 I find that the telephone conversation said by Rebecca to have occurred following this meeting (affidavit par 41) did not occur.
43 I accept Mary's evidence that she spoke with the deceased nine days before he died and that the conversation was to the effect set out earlier in these reasons at [22].
44 I turn to the relevant legal principles on an application under s 34 of the Wills Act.
(Page 11)
Legal Principles
45 In Hatsatouris v Hatsatouris [2001] NSWCA 408 [56] the New South Wales Court of Appeal identified the questions arising under the New South Wales provision (which is in materially identical terms to s 34 of the Wills Act) as being the following questions of fact:
(a) was there a document,
(b) did that document purport to embody the testamentary intentions of the relevant Deceased?
(c) did the evidence satisfy the court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will? (emphasis in original).
46 That test was cited with approval in Re Estate of Frederick Raymond Reeve Perryman [2003] WASC 191 [27] and applied in Oreski v Ikac [2007] WASC 195 [105].
47 The third question of fact is stated in a way which is somewhat more specific than the language of the statute, as reflected in the third requirement set out in [14(c)] of these reasons. There is reference in Hatsatouris to the need for 'some act or words' to demonstrate the intention. That is, I think, explicable by the nature of the issue in Hatsatouris, Perryman and Oreski. In all those cases the issue was whether an unsigned document, not written or at least not proved to have been written by the deceased, should be declared to be the deceased's will. In that context it is necessary that there be some 'act or words' of the deceased which demonstrated the intention that the document operate as his or her will. If a person wrote and signed a document, there is no necessary requirement in every case to identify separate acts or words of the person as manifesting an intention that the document constitutes the person's will. In some such cases, that conclusion may be able to be drawn from the terms of the document written and signed by the person.
48 Consequently, I approach the present case by reference to the statutory language, rather than to the words used in the formulation of the questions in Hatsatouris. The third element is whether the deceased intended the document to constitute his will.
(Page 12)
49 The onus is on the plaintiff to establish the three requirements of s 34 of the Wills Act: The Estate of Kevin John Hines v Hines [1999] WASC 111 [33]; Oreski v Ikac [2007] WASC 195 [115].
50 In Hatsatouris [57] - [59] it was held that the question of intention was not to be determined at the time of death, but at the point in time when the deceased manifested (or not) the intention that the document operate as his or her will. Regard may be had to all the circumstances (whether before or after the time of the document in question) in determining whether at the time the document was brought into being, or signed or otherwise adopted, the deceased had the relevant intention. However, once it is concluded that the deceased had the relevant intention, subsequent acts or statements cannot, unless they satisfy the requirements for testamentary instruments, deprive the document of its status as a testamentary instrument.
51 The legislation in some states (and the legislation in Western Australia after, but not before, the 2007 amendments to the Wills Act) expressly provides for the admission of extrinsic evidence. Like the Western Australian provision in its form applicable to this action, the South Australian provision does not provide explicitly for the admission of extrinsic evidence, but the courts in South Australia have admitted such evidence: In the Estate of Graham (1978) 20 SASR 198; In the Estate of Williams (1984) 36 SASR 423; In the Estate of Roberts (1985) 38 SASR 324, 326.
52 The Western Australian cases accept that, in determining whether it is satisfied that the deceased intended the document to constitute his or her will, the court is not restricted to the document itself. It may have regard to evidence of what the deceased did and said in determining whether it is satisfied that the deceased intended the document to constitute his will. See, for example, Will of Lebato; Shields v Caratozzoli (1991) 6 WAR 1; James v Burdekin (1990) 3 WAR 298, 300; Hines [25]; Oreski [105].
53 Evidence of subsequent statements by the deceased has been admitted: Lebato (7); In the Estate of Williams cited with approval in Hines [25]; Perpetual Trustees (WA) Ltd v Gailey [1999] WASC 61 [13].
54 In this respect, the position may be analogous to the question of whether, in executing a written instrument, the parties intended thereby to make a binding contract. On that question, evidence of the parties' subsequent conduct is admissible: Anaconda Nickel Ltd v Tarmoola
(Page 13)
- Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101 [26]; Uranium Equities Ltd v Fewster [2008] WASCA 33 [133] - [134].
55 There may be room for questioning whether subsequent statements by the deceased to the effect that he has (or has not) made a will are within the scope of any relevant exception to the hearsay rule. However, in this case, I proceed on the basis that such evidence is admissible as, for reasons to be given shortly, the admission of this evidence does not affect the outcome.
56 Analysis of the decisions in other cases concerning s 34 may be of limited assistance, in that each case turns on its own facts and circumstances: Hines [23].
57 The question to which s 34 directs attention is not the testamentary intention of the deceased generally, but rather whether it is established that the deceased intended the particular document to constitute his will: Estate of Perryman [31]; Estate of Hines [22].
58 It is not necessary that the deceased be familiar with the term 'will'. It is enough that he intended the document to express his intention, in a binding way, as to matters relating to his property which were to take effect upon his death: Malatesta v Scott (Unreported, WASC, Library No 940291, 15 June 1994); Estate of Hines [22].
59 The court must also be satisfied that the deceased had testamentary capacity. There is authority which suggests that the presumption of capacity arising from due execution of a will does not arise in respect of an informal will or codicil: The Public Trustee in and for the State of Western Australia v Drennan [2004] WASC 101. Subsequent cases have left open that question. It is not necessary to determine it here. I am satisfied on the evidence that from 2002 until his death, the deceased had testamentary capacity. (The contrary was not suggested by any party.)
60 That brings me to the question of whether the requirements of s 34 are satisfied in this case.
Are the requirements of s 34 satisfied?
61 As I have said, two of the requirements of s 34 are in issue. The first is whether the Document purported to embody the testamentary intentions of the deceased. That requirement is satisfied. The Document is signed by the deceased. The Document is stated to be his last will and testament.
(Page 14)
- It sets out what he wants to happen to his interest in the house at 75 Ardleigh Crescent, by implication, upon his death.
62 The real issue relates to the satisfaction of the remaining requirement: did the deceased intend the Document to constitute his will?
63 Because the deceased wrote, signed and dated the Document, the question of intention is to be determined as at the date of the Document (Hatsatouris [57] - [59]).
64 The starting point is the language of the Document, written and signed by the deceased. The Document is described as the deceased's 'last will and testament'.
65 The third to fifth defendants point to a number of aspects of the content and appearance of the Document as indications that the deceased did not intend the Document to constitute his will. The Document does not appoint an executor, whereas it is submitted that it may be expected that the deceased would have known of the need for an executor to administer a will. Secondly, the Document is written in an untidy fashion and not in formal language. The language is not directly dispositive of property (such as 'I give my property to …'). Finally, the Document is signed five times which, it is submitted, is more suggestive of musings of thought than of an intention that the Document constitute his will.
66 Further, the third to fifth defendants point to various aspects of the deceased's conduct after the date of the Document. He did not tell his wife Florence about the Document and its contents at any time. Florence said in cross-examination that she would have expected her husband to discuss such a matter with her. Even when the Document was in front of the deceased and Florence, on the occasion when Aaron was doodling on the Document, the deceased did not say anything about the Document to his wife.
67 Finally, the third to fifth defendants rely upon the conversation between the deceased and his mother on 20 May 2004. I have set out the substance of that conversation earlier in these reasons. During that conversation, the deceased said that he did not have a will, and expressed testamentary intentions to a different effect than what is to be found in the Document.
68 Counsel for the third to fifth defendants submitted that that conversation was particularly significant in that the question of intention was to be determined as at the date of the death of the testator. I do not
(Page 15)
- accept that submission. The question of intention is to be determined at the date when the deceased created, signed or otherwise adopted the document in question: Hatsatouris. Nonetheless, the evidence of the conversation on 20 May 2004 is relevant to the question of whether, in September 2002, the deceased intended the Document to constitute his will. The weight to be given to that evidence is, of course, influenced by the fact that the conversation occurred some 20 months after the Document was written and signed by the deceased. By then, the deceased may have forgotten about the Document. He may also not have wished his mother to have known about the Document and its contents. An alternative inference is that the conversation with his mother reflected a belief or intention on the part of the deceased that the Document did not constitute his will.
69 One hypothesis as to the deceased's intention in writing and signing the Document is that the deceased intended the Document he created in September 2002 to be in the nature of a draft, rather than being a final will which would have dispositive effect. The onus is upon the plaintiff to exclude that hypothesis on the balance of probabilities. I have considered that hypothesis but, in the end, on balance, I am satisfied that the deceased intended the Document to constitute his will. The language of the Document, written by the deceased, is that it is the deceased's last will and testament. He signed the Document, whereas it might not be expected that a draft would be signed. He treated the Document as an important paper. He kept the Document for almost two years. After the Document was handed to him by Florence, during 2003, he stored it again. It was found in a file between work documents and his Family Court documents.
70 In weighing the various aspects of the evidence referred to already, it is, I think, to be borne in mind that the question of intention in this case is directed to the time at which the Document was signed. That being so, the indications arising from the Document itself, and the conduct of the deceased in retaining the Document thereafter, seem to me to be entitled to a greater weight than conversations which occurred in subsequent years. Moreover, there may be various explanations for why the deceased did not say to his wife or mother that he had, by the Document, made a will.
71 For these reasons, I find that the deceased intended that the Document constitute his will.
72 Consequently, I find that the requirements of s 34 are satisfied in respect of the Document.
(Page 16)
73 That brings me to the question of whether the Document is void for uncertainty or how it is to be construed.
The construction of the Document
Principles of construction of testamentary instruments
74 Relevant principles of construction were summarised by Master Newnes in Parnell v Hinkley [2007] WASC 102 [12], [15] as follows:
The Will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the Will, read in the light of the circumstances in which the Will was made. The language employed in the Will should be read in the sense which the testator appears to have attached to the expressions used, albeit it is not to be construed on the basis of what it is suspected the testator intended, other than as expressed in the terms of the Will: Fell v Fell (1922) 31 CLR 268 at 273; WA Trustee, Executor & Agency Co Ltd v Birkbeck (1921) 23 WALR 27 at 29, 31 - 32; Perrin v Morgan [1943] AC 399 at 406, 414 - 415, 416, 420; Borlaug v The University of Western Australia [2001] WASCA 425 at [15]. The overriding consideration is the language used by the testator and the Court can neither ignore the plain meaning of words nor unnecessarily introduce words to give effect to an intention that is not expressed: In re Crocombe (decd) [1949] SASR 302 at 315.
There is a presumption against intestacy, namely that the will should, if possible, on a fair and reasonable construction, be construed so as to lead to a testacy rather than an intestacy or partial intestacy: Fell v Fell (supra) at 275 - 276, 284; Hamersley v Newton (2005) 30 WAR 568 at 583. But the presumption against intestacy "is not a strong presumption": Marks v Pope [2001] NSWSC 105 at [17]. A court should not lean too heavily against a construction that produces an intestacy and, cannot, in order to avoid an intestacy, misconstrue the language of the will: In re Edwards; Jones v Jones [1906] 1 Ch 570 at 574; Re Wragg (decd); Hollingsworth v Wragg [1959] 1 WLR 922 at 929.
75 In this case, the second, third, fourth and fifth defendants point to different passages in the Document, contending that they are inconsistent and incapable of resolution, rendering the instrument uncertain.
76 In Brennan v Permanent Trustee Company of New South Wales (1945) 73 CLR 404, 414 Dixon J said as follows:
When the main purpose and intention of the testator are ascertained to the satisfaction of the court, if particular expressions are found in the will which are inconsistent with that intention, though not sufficient to control it, such expressions must be discarded or modified. The language of the testator should be moulded to carry into effect as far as possible the
(Page 17)
- intention which, in the opinion of the court, the testator has, on the whole will, sufficiently declared.
77 The approach to construction set out in that passage can be applied only when the court is able to identify, from the will as a whole, 'the main purpose and intention of the testator'.
The parties' contentions
78 The parties' contentions as to the construction of the will seem to me to identify, in a helpful and comprehensive way, the competing indications within the Document in favour of each possible view of the Document.
79 The plaintiff's contentions were in the following terms:
2. The contents of the informal will are largely explanatory and not directly dispositional.
3. The words: 'The house in Hamersly [sic] is mine: 75 Ardleigh Cr' ('the House') identify the chief property that the deceased intended to dispose of.
4. The apparent words of sole ownership of the House extracted in paragraph 4 [sic] above, are qualified by the following: 'I paid totally for this house. I want my present wife (Florence) and son (Aaron) to take the benefits of this. Family Court has declared that after my son Sean becomes 18 years of age then the house is divided between myself and Sheryl.' Therefore, the deceased acknowledged that he did not own the house absolutely.
5. The contents of the informal will ought to be understood by reference to Family Court orders to which the deceased made express reference in the passage quoted in paragraph 4 above.
6. The plaintiff contends that the dispositional part of the informal will is contained in the words 'I want the house divided between my two wife's [sic] Florence and Sheryl. One half to Florence. One half to Sheryl.' And also in the part 'PS. I give my right's [sic] to the house to Florence.'
7. By reference to the preceding parts of the informal will, it is clear that the deceased's intended disposition was that the plaintiff receive the half interest in the House then owned by him.
8. The reference to the fifth defendant in the part quoted at paragraph 6 above is plainly to be understood as a mere acknowledgement that Sheryl would retain her existing interest in the House.
(Page 18)
- 9. The words: 'This is my wish.' Ought not to be construed as meaning that the disposition was a mere expression of desire, as opposed to a definite testamentary direction or disposition, given the clear preceding command by use of the words 'I want' and, in the further part, 'I give'.
10. It is common ground that the part stating 'All my superannuation goes to Florence and Aaron.' is of no effect insofar as the deceased's superannuation has been disposed of independently of his estate.
11. To the extent that the informal will contains no further directions for the disposal of the deceased's property, there is a partial intestacy.
80 The first defendant's contentions were as follows:
4. Upon their proper construction the words 'I want my present wife (Florence) and son (Aaron) to take the benefits of this' are to be read as a gift of all the right title and interest of the deceased in and to the land and improvements situate and known as 75 Ardleigh Crescent, Hamersley to the plaintiff and the first defendant in equal shares.
5. To the extent that the informal will contains no further directions for the disposal of the deceased's property, there is a partial intestacy.
81 The second defendant's contentions were these:
2. In the event that the informal will be found to be otherwise a valid testamentary disposition pursuant to Part X of the Wills Act 1970, the second defendant contends that it is open to this Honourable Court to find it void for uncertainty, because of the inconsistency between the following sections:
(a) 'I want all my children to benefit from my death';
(b) 'I want my present wife and son (AARON) to take the Benefits of this';
(c) 'I WANT the house to be divided between my two wife's FLORENCE AND SHERYL. ONE HALF TO FLORENCE. ONE HALF TO SHERLY [sic]'.
1. It is not possible to read and give meaning to the Document because of the patent internal contradictions.
(Page 19)
- 2. There is nothing in the Document which suggests any part of the Document or any words expressed therein are to take precedence.
3. The Document cannot be a disposition of the deceased's interest in the property at 75 Ardleigh Crescent, Hamersley to Florence Dalton. To contend that it is, means that:
(a) The words of the Document 'I want all my children to benefit from my death' can be given no meaning.
(b) The words of the Document 'The house in Hamersly [sic] is mine: 75 ARDLEIGH CR. I paid totally for this house. I want my present wife (FLORENCE) and son (AARON) to take the benefits of this.' can be given no meaning.
(c) The words of the Document 'I WANT the house to be divided between my two wife's [sic] FLORENCE AND SHERYL. ONE HALF TO FLORENCE. ONE HALF TO SHERLY [sic]' can be given no meaning.
(d) the ordinary use and meaning of a postscript is an afterthought.
The postscript in the Document 'PS I give my right's [sic] to the house to Florence' is inconsistent with a contention that the deceased intended by the Document to make a testamentary disposition of the property to his wife Florence.
(a) The words of the Document 'I want all my children to benefit from my death' can be given no meaning.
(b) The words in the Document ''I WANT the house to be divided between my two wife's [sic] FLORENCE AND SHERYL. ONE HALF TO FLORENCE. ONE HALF TO SHERLY [sic]' can be given no meaning.
(c) The [postscript] 'PS I give my right's [sic] to the house to Florence' can be given no meaning.
5. 'This is my wish' suggests that the Document is no more than an expression of desire, albeit one that cannot be given meaning because of the patent internal inconsistencies.
(Page 20)
How is the Document to be construed? Is it uncertain?
83 The substance of the second to fifth defendants' submissions is that no part of the Document can be read as taking precedence, so that the internal contradictions in the Document render it void for uncertainty. I do not accept that submission. Rather, I accept the submissions of the plaintiff as to the construction of the Document.
84 The construction advanced by the plaintiff seems to me to give content and meaning to all parts of the Document. In saying that, I do not mean that all parts of the Document have a substantive effect. I do not think that all parts of the Document were intended to have substantive effect. Much of it is explanatory in nature. The early part of the Document explains the subject matter, namely the deceased's interest in 75 Ardleigh Crescent, and its context, namely the Family Court orders already made. There is then the statement, intended to be dispositive, that the deceased wanted the house to be divided between his two wives. In the context that he had already explained, that is to be understood as meaning that the deceased's continuing rights in the house are to go to Florence (as the Family Court orders provide for the other half to go to his first wife Sheryl). That intention is confirmed by the postscript. The statements about wanting his children to benefit are explicable on the basis of a (reasonable) assumption that a child would benefit from property owned by or left to the child's mother.
85 For these reasons I would declare that upon its proper construction, the Document devised the deceased's interest in the property situated at 75 Ardleigh Crescent, Hamersley, to the plaintiff, and that there is otherwise an intestacy as to the estate of the deceased.
The appointment of an administrator
86 For the reasons I have given, a grant of probate will be made in respect of the Document. Some of the defendants submitted that, at least if probate were not granted of the Document, the Public Trustee ought be appointed administrator of the estate, rather than the plaintiff. I have found that probate is to be granted of the Document, which provides that the only substantial asset in the estate goes to the plaintiff. As to the remainder of the estate, there is an intestacy. The small value of the remainder of the estate would mean that the whole of the residue of the estate the subject matter of the intestacy would go to the plaintiff under s 14 of the Administration Act.
(Page 21)
87 In the circumstances I would appoint the plaintiff as the administratrix of the estate of the deceased with the will annexed.
Conclusion
88 For the reasons I have given, I would make orders substantially to the following effect:
1. The court pronounces for the force and validity, as the last will and testament of the deceased, of the Document.
2. The plaintiff be appointed the administratrix of the estate of the deceased with the will (namely the Document) annexed.
3. The court declares that upon its proper construction the Document devised the deceased's interest in the property situated at 75 Ardleigh Crescent, Hamersley to the plaintiff and that there is otherwise an intestacy as to the estate of the deceased.
89 I will hear from the parties as to the precise form of orders and as to costs.
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