Deeks v Greenwood
[2011] WASC 359
•22 DECEMBER 2011
JAMES DAVID DEEKS as Executor Appointed in the Will -v- ALEX HOWARD GREENWOOD by his Guardian ad litem Andrew Greenwood [2011] WASC 359
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 359 | |
| Case No: | CIV:1545/2011 | 17 NOVEMBER 2011 | |
| Coram: | EM HEENAN J | 22/12/11 | |
| 39 | Judgment Part: | 1 of 1 | |
| Result: | Grant of probate in solemn form of informal will | ||
| A | |||
| PDF Version |
| Parties: | JAMES DAVID DEEKS as Executor Appointed in the Will ALEX HOWARD GREENWOOD by his Guardian ad litem Andrew Greenwood AVA JANE BROWN by her Guardian ad litem Kathryn Jane Brown LEAH FAYE DEEKS by her Guardian ad litem Michael James Deeks ALZHEIMER'S AUSTRALIA WA LTD DIABETES ASSOCIATION WESTERN AUSTRALIA INC CANCER COUNCIL OF WESTERN AUSTRALIA INC JAMES DAVID DEEKS BARBARA ANNE DEEKS |
Catchwords: | Wills Probate Informal wills Proof in solemn form Detailed instructions for will given to solicitors Solicitors prepared will in accordance with instructions Appointment arranged for execution of will Testator taken suddenly ill, hospitalised and medicated before execution Died without executing will Potential intestacy Whether deceased authenticated and adopted will as prepared |
Legislation: | Administration Act 1903 (WA) Wills Act 1970 (WA), s 8, s 32 |
Case References: | Aon Risk Services Aust Ltd v ANU [2009] HCA 27 Corbett v Newey [1996] 3 WLR 729 Elliott v Davenport (1705) 1 P Wms 83; 24 ER 304 Fell v Fell (1922) 31 CLR 268 Harrison v Kirk [1904] AC 1 Hatsatouris v Hatsatouris [2001] NSWCA 408 Henwood v Public Trustee (1993) 9 WAR 22 In re Ladd; Henderson v Porter [1932] 2 Ch 219 In the Estate of Kirs (decd) (1990) 55 SASR 61 Lamond v Sheed [2011] WASC 349 Lightfoot v Maybery [1914] AC 782 Mitchell v Mitchell [2010] WASC 174 Nolan as Administratrix of the Estate of Barbara Nolan (dec) v Nolan [2011] WASC 224 Oreski v Ikac [2008] WASCA 220 Osborne v Smith (1960) 105 CLR 153 RAMS Mortgage Corporation Ltd v Skipworth [No 2] [2007] WASC 75 Re Application of Brown (1991) 23 NSWLR 535 Re Barraclough (dec); Barraclough v Young [1967] P 1 Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191 Re Estate of John William Henry Nicholls (dec) [2003] WASC 85 Re Estate of TLB (2005) 94 SASR 450; [2005] SASC 459 Re Harrison; Turner v Hellard (1885) 30 Ch D 390 Re Langton [1964] P 163 The Estate of Blakely (1983) 32 SASR 473 The Estate of Deslandes (Unreported, SASC, Judgment No 3849, 3 March 1993) The Estate of Kevin John Hines v Hines [1999] WASC 111 The Estate of Maslen [2009] SASC 304 The Estate of Mead (Unreported, SASC, Judgment No 56547, 13 February 1998) The Estate of Schwartzkopff [2006] SASC 131 Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
Part X of the Wills Act 1970 (WA) (as amended)
- Plaintiff
AND
ALEX HOWARD GREENWOOD by his Guardian
ad litem Andrew Greenwood
First Defendant
AVA JANE BROWN by her Guardian ad litem Kathryn Jane Brown
Second Defendant
LEAH FAYE DEEKS by her Guardian ad litem Michael James Deeks
Third Defendant
- ALZHEIMER'S AUSTRALIA WA LTD
Fourth Defendant
DIABETES ASSOCIATION WESTERN AUSTRALIA INC
Fifth Defendant
CANCER COUNCIL OF WESTERN AUSTRALIA INC
Sixth Defendant
JAMES DAVID DEEKS
Seventh Defendant
BARBARA ANNE DEEKS
Eighth Defendant
Catchwords:
Wills - Probate - Informal wills - Proof in solemn form - Detailed instructions for will given to solicitors - Solicitors prepared will in accordance with instructions - Appointment arranged for execution of will - Testator taken suddenly ill, hospitalised and medicated before execution - Died without executing will - Potential intestacy - Whether deceased authenticated and adopted will as prepared
Legislation:
Administration Act 1903 (WA)
Wills Act 1970 (WA), s 8, s 32
Result:
Grant of probate in solemn form of informal will
(Page 3)
Category: A
Representation:
Counsel:
Plaintiff : Mr E W Nielsen
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Solicitors:
Plaintiff : Nielsen & Co
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Case(s) referred to in judgment(s):
Aon Risk Services Aust Ltd v ANU [2009] HCA 27
Corbett v Newey [1996] 3 WLR 729
Elliott v Davenport (1705) 1 P Wms 83; 24 ER 304
Fell v Fell (1922) 31 CLR 268
Harrison v Kirk [1904] AC 1
Hatsatouris v Hatsatouris [2001] NSWCA 408
Henwood v Public Trustee (1993) 9 WAR 22
In re Ladd; Henderson v Porter [1932] 2 Ch 219
In the Estate of Kirs (decd) (1990) 55 SASR 61
Lamond v Sheed [2011] WASC 349
(Page 4)
Lightfoot v Maybery [1914] AC 782
Mitchell v Mitchell [2010] WASC 174
Nolan as Administratrix of the Estate of Barbara Nolan (dec) v Nolan [2011] WASC 224
Oreski v Ikac [2008] WASCA 220
Osborne v Smith (1960) 105 CLR 153
RAMS Mortgage Corporation Ltd v Skipworth [No 2] [2007] WASC 75
Re Application of Brown (1991) 23 NSWLR 535
Re Barraclough (dec); Barraclough v Young [1967] P 1
Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191
Re Estate of John William Henry Nicholls (dec) [2003] WASC 85
Re Estate of TLB (2005) 94 SASR 450; [2005] SASC 459
Re Harrison; Turner v Hellard (1885) 30 Ch D 390
Re Langton [1964] P 163
The Estate of Blakely (1983) 32 SASR 473
The Estate of Deslandes (Unreported, SASC, Judgment No 3849, 3 March 1993)
The Estate of Kevin John Hines v Hines [1999] WASC 111
The Estate of Maslen [2009] SASC 304
The Estate of Mead (Unreported, SASC, Judgment No 56547, 13 February 1998)
The Estate of Schwartzkopff [2006] SASC 131
Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1
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1 EM HEENAN J: Is an unexecuted will prepared on his instructions by the solicitors for the deceased, Frank Rickett, and which he had arranged to be brought to him for execution but which was never executed because Mr Rickett took suddenly ill and died, an informal will under pt X of the Wills Act 1970 (WA) notwithstanding the want of execution which the deceased had apparently intended? That is the issue raised in these proceedings for proof of an alleged informal will in solemn form of law. The answer to that question will be provided by applying to the facts and circumstances of this case the provisions of s 32(2) and s 32(3) of the Wills Act as amended. They provide:
(2) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes -
(a) a will of the person;
(b) an alteration to a will of the person;
(c) the revocation of a will of the person; or
(d) the revival of a will or part of a will of the person,
if the Supreme Court is satisfied that the person intended the document to constitute the person's will, an alteration to the person's will, the revocation of the person's will or the revival of a will or part of a will of the person, as the case may be.
(3) In forming its view, the Supreme Court may have regard (in addition to the document) to any evidence relating to the manner of execution or testamentary intentions of the person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the person.
2 Before attempting to consider and apply these principles it is necessary to set out the facts as they have been established by the evidence at this trial.
Background facts
3 Mr Rickett died on 28 May 2008 while a patient at the Joondalup Health Campus, Joondalup, in this State. He was then aged 91 years, having been born at Oldham in England on 27 March 1917. At the date of his death he was a widower. Mr Rickett had been married twice. His first marriage was to Hilda Buckley on 3 August 1940 at Oldham in England. That marriage lasted until the death of Mrs Hilda Rickett (nee Buckley)
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- on 18 December 1984 at Birch Hill Hospital, Wardle, Rochdale in England. There were no children of that marriage.
4 Frank Rickett married a second time in England on 24 May 1986. This marriage was to Marjorie Greenwood. On the marriage certificate for that marriage held in the registry office at Rochdale, the deceased was described as being 69 years of age, a widower and a retired textile labourer. His new wife, Marjorie Greenwood, was described as being 61 years of age, a widow and a retired petrol station attendant. Mrs Greenwood, or the second Mrs Rickett as she became, had originally been married to Benny Greenwood on 9 January 1943 at Rochdale, it being a first marriage for her and her husband, who was then a seaman in the Royal Navy. That marriage ended with the death of Mr Benny Greenwood on 20 November 1972 at Birch Hill Hospital, Wardle, near Littleborough in the County of Lancaster.
5 There were two children of the marriage between Marjorie Greenwood and Benny Greenwood, namely Barbara Anne Greenwood, who was born on 20 September 1946, and Graham Howard Greenwood, who was born on 20 October 1947, but who subsequently died on 20 November 1972. Barbara Anne Greenwood married James David Deeks and is now known as Barbara Anne Deeks. She is the eighth defendant in these proceedings and her husband, James David Deeks, is the plaintiff and also the seventh defendant.
6 Graham Howard Greenwood (deceased) had married Susan Greenwood and they had one child, a son, Andrew Greenwood, who later married. He and his wife, Mrs Joanne Greenwood, had a son, Alex Howard Greenwood, who was born on 28 September 2002 and is therefore presently an infant aged nine years. He is the first defendant in this action, appearing by his father and guardian ad litem, Andrew Greenwood.
7 Barbara Anne Deeks (nee Greenwood) and James David Deeks have three children, Christopher John Deeks, Michael James Deeks and Kathryn Jane Deeks. All three are married and each has a daughter. These are Georgia Ruby Deeks, born 4 May 2008, the daughter of Christopher John Deeks and his wife Natalie Deeks; Leah Faye Deeks, born 15 November 2007, the daughter of Michael James Deeks and his wife Kristy Deeks; and Ava Jane Brown, born on 22 December 2004, the daughter of Kathryn Jane Deeks and her husband, Hamish Brown. Kathryn Brown (nee Deeks) and Hamish Brown also have a second daughter, Elsie May Brown, born 10 June 2008, who needs to be
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- mentioned specially because she was born after the death of Frank Rickett.
8 Ava Jane Brown is the second defendant in this action, appearing by her mother and guardian ad litem, Kathryn Jane Brown. Leah Faye Deeks is the third defendant, appearing by her father and guardian ad litem, Michael James Deeks.
9 That leaves Georgia Ruby Deeks and Elsie May Brown as granddaughters of Marjorie Greenwood/Rickett who are not parties to this action but are infants born after the death of the deceased.
10 There were no children of the marriage between the deceased, Frank Rickett, and Marjorie Greenwood. Mrs Marjorie Rickett (formerly Greenwood nee Roberts) died in Western Australia on 3 November 2007, then aged 83 years, having been born on 22 June 1924. Her death left Frank Rickett a widower for a second time. He never had any children of his own.
11 After the deceased's marriage to his second wife, Mrs Marjorie Rickett, they visited Australia on holiday in February 1987. The purpose of this visit was to meet the plaintiff, James David Deeks, who, with his wife, was then living in Australia. This was the first time that the deceased had met James David Deeks, who was, of course, his new wife's eldest child. The deceased and Mrs Marjorie Rickett returned to the United Kingdom after this visit but decided, in about 1989, to migrate to Australia to live permanently in this country. The deceased told Mr Deeks, at about this time, that one of the reasons for this migration was that there would be family support in Perth for both him and Mrs Rickett/Greenwood as they grew older. The deceased and Mrs Marjorie Rickett both eventually came to Australia and bought a home in Craigie in Western Australia in February 1990, later becoming Australian citizens on 24 March 1992.
12 After the arrival of the deceased and Mrs Marjorie Rickett in Australia, a strong family acquaintance and friendship was established with the Deeks family, their children and their partners and grandchildren. The Deeks lived close by, in Padbury, and they met the deceased and Mrs Rickett almost on a daily basis. For all intents and purposes, the Deeks were treated by the deceased as children and their children as his grandchildren. Close family bonds developed and lasted. This relationship continued after April 2002 when Frank Rickett and Mrs Marjorie Rickett moved into the RAAF Cambrai retirement village,
(Page 8)
- where they made many friends and were very happy until Marjorie Rickett's death on 3 November 2007. After her death, Mrs Barbara Deeks looked after the deceased's home care, took him to doctors and to hospitals for tests, and arranged for cleaning, shopping, Meals On Wheels when necessary and all other medical and social services.
Previous wills
13 It is unnecessary to inquire whether or not the deceased had made any will or wills before his marriage to Mrs Marjorie Greenwood (nee Roberts) in May 1986 because, of course, any such will would have been revoked by that marriage. However, the deceased and Marjorie Rickett/Greenwood each made wills in England on 2 October 1989. These are in evidence and are commendably brief. By her will, Marjorie Rickett revoked all previous wills and testamentary dispositions made by her and gave all her real and personal estate whatsoever and wheresoever situate unto her husband, Frank Rickett, provided that he should survive her for a period of 30 days, and appointed him to be her sole executor. There was no substitutionary gift in the event that he did not survive her for the 30 day period and no other disposition of her estate. The will of the deceased made on the same date is in similar terms. By that testament Frank Rickett revoked all previous wills and testamentary dispositions made by him and gave all his real and personal estate whatsoever and wheresoever situate unto his wife Marjorie Rickett provided that she should survive him for a period of 30 days and appointed her as his sole executrix. Again there was no substitutionary gift in the event that Mrs Marjorie Rickett did not survive the testator or otherwise. Both of these wills appear to have been prepared by solicitors in Rochdale. Each bears a conventional attestation clause and is executed by the testator or testatrix in the presence of two witnesses who have regularly subscribed the testament. All persons concerned accept that these are valid testamentary documents properly executed.
14 The deceased and his wife had told Mr James Deeks after their arrival in Australia of the existence of these wills and at some time, the details of which are not material, gave them to him for safe keeping. Upon Mrs Marjorie Rickett's death the whole of her estate, including the interest in the residential home, passed to Mr Frank Rickett.
15 Plainly, the death of Mrs Marjorie Rickett in 2007 meant that there was a need for Mr Frank Rickett to give consideration to making a new will. His 1989 will, already described, left all his property to his wife but, upon her death, that gift lapsed: Elliott v Davenport (1705) 1 P Wms 83;
(Page 9)
- 24 ER 304; In re Ladd; Henderson v Porter [1932] 2 Ch 219 ; Wills Act s 26(1)(b). The result was that under that will there was no effective provision for the appointment of an executor or for disposition of any of the deceased's estate, so if he died without a new will that would result in a total intestacy.
16 The plaintiff, Mr Deeks, had discussions with Mr Rickett about this and the deceased recognised and appreciated the need to make a new will. Accordingly, arrangements were made for him to see a solicitor and for a new will to be prepared. The question for present consideration in this action is whether or not these steps and the unexecuted will, which was drafted in accordance with them but which remained unexecuted because of the sudden death of the deceased, amounts to an informal will under s 32.
The value of the estate
17 At the direction of the court the plaintiff filed a statement of assets and liabilities of the estate of the deceased. This is in the form of a Non-Contentious Probate Rules 1967 (WA) r 9B(1) statement although, of course, these are contentious proceedings. This shows that, as at the date of death, the net value of the estate was $155,800.03. That comprised two savings bank accounts with credit balances totalling approximately $39,000 and moneys held in the RAAF Association Merriwa trust account of approximately $117,000. There were some small debts totalling $244.45 for various minor charges and no funeral expenses, these having been pre-paid by the deceased.
18 Following the death of Mr Rickett the plaintiff and his wife attended at the unit at the RAAF home at Cambrai to collect the deceased's personal belongings and to make arrangements for his unit to be vacated. It was during this process that possession of the unexecuted will in draft form was obtained. The circumstances of its origin and significance will be examined more closely later. Apart from taking these items of personal property into his possession for safe keeping, and since storing them, the plaintiff has not disposed of or appropriated to himself or others any of the property of the deceased. The management of the RAAF Cambrai home, without being requested to do so by him, paid to the plaintiff the sum of $117,000 approximately, being the deceased's interest in the unit. The plaintiff has placed that money in an interest-bearing bank account to be held pending the finalisation of this estate, but otherwise has not dealt with it or any portion of it at all. Any costs associated with the application for probate or these proceedings have been
(Page 10)
- met by the plaintiff from his own personal resources. I am satisfied, therefore, that there has been no intermeddling in the estate by the plaintiff.
Persons entitled upon intestacy
19 Neither the plaintiff nor any of Mrs Marjorie Rickett's/Greenwood's children or grandchildren has any direct knowledge of the deceased's own family. The sole source of such information which exists comes from conversations which the plaintiff had with the deceased when he was alive, who only rarely and then obliquely mentioned this subject. As far as the plaintiff is aware, the deceased was not in communication with other members of his family and there is no evidence that any members of the deceased's own family ever came to visit him in Australia, corresponded with him or were in touch although, as will appear, it seems that Mr Rickett did have occasional news of the deaths of his various brothers and sisters. No member of his family was present at his funeral or has been in touch with what the deceased regarded as his adopted family in Western Australia, namely the Deeks and the Greenwoods.
20 Piecing together scraps of information and past conversations with the deceased, the plaintiff, Mr James Deeks, believes that Frank Rickett was one of 10 children born to their parents, he having nine brothers and sisters. These were, in what Mr Deeks believes is the correct order of birth:
(a) Albert Rickett, born 1904;
(b) Mary Rickett, born 1905, died 1906;
(c) Hilda Rickett, date of birth unknown, believed married in 1927;
(d) Ellen Rickett, born 1907, died 1909;
(e) Minerva Rickett, born 1910, believed married 1930;
(f) Harry Rickett, born 1912. No other information known;
(g) Edward Rickett, born 1915, believed married first in 1932 and second in 1944. No other information known;
(h) Frank Rickett, born 1917, died 2008, married first 1940 and second in 1986, this deceased;
(i) Fred Rickett, born 1918, died 1919; and
(Page 11)
- (j) George Rickett, born 1919, believed married 1948.
21 According to Mr Deeks, the deceased had said that his brother Edward had died in about 2003, the deceased's words being 'he was the last one of the family' or words to that effect. As a result of his inquiries, the plaintiff has produced an incomplete family tree showing the 10 Rickett children. This indicates that the deceased's brothers Albert and George each had children who might presently still be living and that there may be grandchildren and great-grandchildren in these lines of descent. It is, of course, possible that there may be children or grandchildren of other brothers or sisters but Mr Deeks has not been able to obtain any information about this. The plaintiff has no information about the whereabouts of any such descendents and does not have the means or the abilities to pursue further inquiries. This raises a question about whether any, and if so what, further attempts should be made to identify and locate such persons in order to give any such person notice of these proceedings. Apart from the relatively small assets of the estate, there are no resources available to undertake such a task.
Distribution upon an intestacy
22 There is no direct evidence of the deaths of Mr Frank Rickett's father and mother but as he was born in 1917 and his oldest brother was born in 1904, it can safely be inferred that both parents are now dead and that each pre-deceased their son Frank Rickett. Accordingly, if Mr Rickett's estate devolves upon an intestacy, the situation would be that he died leaving no wife and no issue, parent, brother or sister or grandparent surviving, and there is no evidence to suggest that he is survived by any uncle or aunt or child of an uncle or aunt. Nevertheless, it seems possible that he may have been survived by a child or children of a brother or sister but no other issue who would be entitled in distribution under s 14 of the Administration Act 1903 (WA) - see s 14(3a).
23 If there is an intestacy and there is no such issue, then the whole of the estate would pass to the State as an escheat under the doctrine of bona vacantia escheat - Administration Act s 14 table cl 11 and RAMS Mortgage Corporation Ltd v Skipworth [No 2] [2007] WASC 75 [6]. This gives rise to the possibility that the State of Western Australia might, potentially, be an ultimate beneficiary of this estate if the deceased's 1989 will remains unrevoked.
24 These possibilities give rise to the question, previously noted, of whether it is necessary for the court to give directions designed to bring these proceedings to the notice of potential beneficiaries or to cause more
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- inquiries, including advertisements to be published in the United Kingdom, to be pursued in order to locate other descendents of the Rickett family who might be entitled in distribution if there were an intestacy. The same considerations, but with fewer practical obstacles, concern whether or not notice should be given to the Attorney General in order to allow the State to make submissions as to whether or not it has a claim upon an escheat.
25 The need to give notice to beneficiaries who may be affected by a distribution or to have inquiries made in order to locate such beneficiaries is, of course, a matter of importance and high priority in any litigation involving the distribution of trust property - see Lamond v Sheed [2011] WASC 349. Mechanisms are available to provide for notice to be given to missing or lost beneficiaries and for distribution of portion of a trust estate without prejudice to their interests, or in disregard of their interests, under inherent powers of the court or under statutory provisions such as s 66 of the Trustees Act 1962 (WA). I reviewed these principles and the considerations affecting the distribution of an estate where there were missing beneficiaries who could not be found in Nolan as Administratrix of the Estate of Barbara Nolan (dec) v Nolan [2011] WASC 224.
26 However, the present litigation stands in a different position because in the case of Nolan (dec)and the authorities there reviewed, it was clear that the missing person or persons did have a vested or contingent share in the trust estate and, if they were alive and could be found, had an unimpeachable right to participate in distribution. Here, the situation is different because none of the lineal descendents of the Rickett family, nor for that matter the State of Western Australia, has a clear or unimpeachable right to distribution of this estate. Any right which they may have is contingent upon the informal will which the plaintiff is propounding being held to be invalid, leaving the last formal will made by the testator in 1989 as his only testament and which, because of lack of effective disposition of his estate in the events which have happened, results in an intestacy. I am satisfied that this would give them standing to oppose the grant of probate of an informal will as sought by the plaintiff and/or to contend for the validity of the 1989 will and the ensuing intestacy, but that does not presently make any of them a beneficiary entitled in distribution.
27 The question therefore becomes whether or not it is necessary for further efforts to be made to identify and locate such persons with a view to affording them an opportunity, should they wish to pursue it, to be heard in this application for a grant.
(Page 13)
Absence of notice to persons potentially entitled upon intestacy
28 From the family tree of the Rickett family prepared by Mr Deeks it is apparent that five of the deceased's brothers and sisters married and two were known to have children and grandchildren. It is not known whether the other three, one of whom is believed to have been married twice, had any children. There is one brother, Harry, born in 1912 and there is no information as to whether he married or had children at all. The plaintiff has no information as to the addresses of any of these relatives in England nor any knowledge whether the children of the deceased's other brothers or sisters are still living. If there was a basis upon which there was any reasonable prospect that more information might be discovered or notice of these proceedings could be given to such nieces or nephews (or their descendents, see Administration Act s 14(3a)), then obviously, such notice ought to be given.
29 Here, however, the best that can be done would be to institute general advertising in general newspapers in the United Kingdom or to employ an inquiry agent or agents in the Lancashire/Rochdale area to undertake investigations. There is no certainty that such investigations would bring any positive information to light and they would be expensive and time consuming. Furthermore, there is no person here in Western Australia with the knowledge or the resources to undertake such a task and even if such a person was to have his or her expenses ultimately reimbursed out of the estate, the estate assets are relatively modest and a significant proportion could be consumed by pursuing unproductive inquiries. It needs to be repeated that, as matters stand, none of these persons is an actual beneficiary in the estate of the deceased and would only become so entitled, if they could be found and identified, if the present attempts to prove the unexecuted will being propounded were to fail. The apparent strength of the plaintiff's case is also a factor to consider when determining whether it would be proportionate, in all the circumstances, to incur the expense and delay inevitable if such further inquiries were to be ordered - RSC O 1 r 4B(1)(e).
30 In these circumstances I consider that the better course to follow is to determine these proceedings between the parties as presently joined, notwithstanding that a decision to grant probate of this will to the plaintiff, if made, will operate in many respects as if it were a judgment in rem and not merely in personam: Re Langton [1964] P 163, 175 (Danckwerts LJ). As I set out in Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1, there remain certain instances when a grant of probate in solemn form may be revoked: see In the Estate of Kirs (decd) (1990) 55 SASR 61.
(Page 14)
- One such situation is where a person opposing a grant was prevented for reasons beyond his or her control from taking part in the proceedings: Re Barraclough (dec); Barraclough v Young [1967] P 1; and Osborne v Smith (1960) 105 CLR 153, 158 - 159 (Kitto J). There are analogies in this regard with the position of beneficiaries who cannot be found or traced and where an order for distribution of a trust fund or estate is made under s 65(6) of the Trustees Act notwithstanding their absence and inability to participate. Even in those instances the missing beneficiary, if ultimately appearing, may come forward and press a claim, if the assets can be followed into the hands of beneficiaries among whom distribution has been made: see Harrison v Kirk [1904] AC 1, 6 (Lord Davey); and Nolan (dec)[27] - [31], [50] - [51].
31 Therefore, being mindful of the potential interest of the distant members of the Rickett family in their late uncle's estate and the contingencies, including the fate of this litigation, which stand between them and the demonstration of any actual interest, I consider that the practical difficulties and expenses of attempting to give them notice of these proceedings, and the consequences which would follow if they appeared, all mean that there is a substantial risk of dissipation in costs of significant portions of this estate if attempts to follow any such inquiries were to be insisted upon. Realising that, and that proceeding in the absence of such persons would not entirely eliminate any interest which they might possibly wish to vindicate, and having regard to case management principles, I am satisfied that the litigation should proceed as presently constituted.
32 There is an express power conferred on the court by O 18 of the Rules of the Supreme Court 1971 (WA) (RSC) empowering the court, if thought expedient, to appoint a person to represent such missing, unascertained or contingent interests. It is RSC O 18 r 13 which relevantly provides:
(1) In any proceedings concerning -
(a) the administration of the estate of a deceased person; or
(b) property subject to a trust; or
(c) the construction of a written instrument, including a statute or a regulation, rule or by-law made under a statute,
the Court, if satisfied that it is expedient so to do, and that one or more of the conditions specified in subrule (2) are satisfied, may appoint one or more persons to represent any person (including an
- unborn person) or class who is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the proceedings.
- (2) The conditions for the exercise of the power conferred by subrule (1) are as follows -
(a) that the person, class or some members of the class, cannot be ascertained or cannot readily be ascertained;
(b) that the person, class or some member of the class, though ascertained, cannot be found;
(c) that, though the person or the class and the members thereof can be ascertained and found, it appears to the Court expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) to exercise the power for the purpose of saving expense.
(3) Where in any proceedings to which subrule (1) applies, the Court exercises the power conferred by that subrule, a judgment or order of the Court given or made when the person or persons appointed in exercise of that power are before the Court shall be binding on a person or class represented by the person or persons so appointed.
33 In this present instance, the evidence established that there may be persons in existence who may have an interest in the estate of the deceased and that they belong to the class comprised by children or grandchildren of brothers or sisters of the deceased. The amount at stake, being the divisible estate of the deceased after the cost of such further inquiries and representation has been provided for, is certainly not great and the expense involved is likely to prejudice others in the event that there is no intestacy.
34 As for the difficulty of determining the point at issue, it is not without some problems and controversy but I do not consider it essential that these persons should themselves appear. There are, therefore, grounds to make an order for the appointment of some person to represent them and be heard further in opposition to this application. This gives rise to the question of whether or not it is essential that this be done or whether, having regard to considerations of delay and expense, that may be dispensed with.
35 It should not be thought that the court will readily pass over the interests of persons who may have a right to dispute a claim, but the significance of that interest and the potential prejudice caused in the
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- depletion of the estate are factors to be considered when deciding whether or not such a step should be taken. Having regard to case management principles, the provisions contained in O 1 r 4B and the decision in Aon Risk Services Aust Ltd v ANU [2009] HCA 27, I consider this is a case in which such steps are not warranted and that the court can and should proceed to determine this action as it is presently constituted.
36 There is no means of knowing whether or not any relatives of the Rickett family alive in England and potentially entitled in distribution upon an intestacy in this estate are aware of the death of the deceased or their potential entitlements. If there are any such persons, the conventional approach is to deal with any claim which they may wish to advance if and when they come forward to make a claim rather than to initiate inquiries as to whether any person wishes to pursue a claim. The situation may be different when there are infants but there is no reason to suppose that any English relatives, if they exist, would still be under age, rather the contrary having regard to the ages of the deceased's brothers and sisters as set out in the family tree and recorded above.
Efforts by the deceased to make a new will
37 From the time when the deceased and his wife Mrs Marjorie Ricketts/Greenwood were living in Western Australia they became full participating members of the Deeks family. The members of the family visited each other regularly, almost on a daily basis. The plaintiff and his wife visited them regularly and attended to their financial, medical and other needs. On 20 February 2006 the deceased appointed Mr Deeks and his wife as his attorneys under an Enduring Power of Attorney. A similar appointment of the Deeks as attorneys for Mrs Rickett was made at the same time. The late Frank Rickett had a number of admissions to hospital over his last years. He spent about three weeks in hospital over December 2006 to mid-January 2007 and was hospitalised again in August 2007. Mr Deeks stayed with him in hospital during these periods and continued to care for him once he was discharged.
38 Shortly after Mrs Marjorie Rickett/Greenwood's funeral in November 2007, Mr James Deeks spoke to the deceased to ask him whether or not he intended to make a new will in view of the knowledge that his previous will had left everything to his late wife. At that time Mr Rickett assured Mr Deeks that he would make another will but did not say when. Mr Deeks learned, with some surprise, shortly before Christmas 2007 of a new will when Mr Rickett told him that this had been made. It had been done by the deceased without the knowledge or
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- assistance of the Deeks and no details were given except that the deceased told them that he had seen a solicitor and that the will had been prepared properly. Both Mr Deeks and his wife were pleased that the deceased had been able to do this. During the period over the Christmas/New Year period 2007/2008 the deceased Frank Ricketts went off alone on a train and river boat trip to South Australia. When he returned the plaintiff noticed a significant change in his physical and mental state, observing that he had deteriorated physically and looked unhealthy. In January 2008 Mr Deeks asked the deceased where his will was kept but he could not really remember and said that it might still be with the solicitors.
39 During January/February 2008 Mr Deeks was himself in hospital and his wife took the deceased Mr Frank Rickett to visit several nursing homes with the intention of booking him in for respite care while she and Mr Deeks were away overseas. This eventuated and he was booked into Kingsley Lodge Nursing Home.
40 In April 2008 the deceased was admitted to Joondalup Hospital to have a stent replaced as part of his ongoing treatment for bladder disease and cancer. This operation did not go well and Mr Rickett became seriously ill, being admitted to intensive care on two occasions and remaining in hospital for four weeks. He was discharged on 26 April 2008, intending to go straight to Kingsley Lodge, but in the meantime arrangements had been made for him to remain at home for five days with the help of Silver Chain, Red Cross and Mercy Care, with him eventually going into Kingsley Lodge on 2 May 2008. He did not enjoy his period at Kingsley Lodge and discharged himself, going home on 6 May 2008 and continuing to live at home with the services of many people and the daily attendance of members of the Deeks family.
41 It was at that stage and on 12 May 2008, whilst the deceased was at home and under daily care, that the issue of his will came up again in conversation. Mr Rickett told his stepson that he could not really remember if he did have a will or not and that if there was a will then the solicitors would have it or otherwise it would be at the bank. Mrs Deeks had found a note in the deceased's handwriting in his wallet, which she was keeping while he was in hospital, identifying his solicitors as Messrs Chris Baker & Associates. She telephoned them to be told that the deceased had made a will but that the firm did not keep wills for their clients. Mr Deeks then went to the Commonwealth Bank at Ocean Keys on 12 May 2008 with the deceased's power of attorney but the bank informed him that they did not hold any document on behalf of Mr Frank Rickett.
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42 On the next day, 13 May 2008, Mr Deeks was visiting the deceased at his home and suggested to him that it would be a good idea for him to remake his will because it seemed that there was not a will in existence. Mr Rickett told the plaintiff that he was not up to going to the solicitor's office again and asked that the Deeks get someone to come to his home to do it. Accordingly, the plaintiff called Mr S Fidock, a solicitor specialising in wills who advertised in the local paper, and made an appointment for him to visit Mr Rickett at his home. Arrangements were made for the solicitor to visit Mr Rickett and neighbours were contacted so as to be available to act as witnesses to the will if required. This appointment was scheduled for either 14 or 15 May 2008.
43 On the morning of the intended visit by the solicitor the plaintiff visited Mr Rickett at his home and suggested that he should give some thought to what instructions he should give to the solicitor about his will. In that conversation the deceased said to Mr Deeks that he, the deceased, had not really thought about it much, but that he had made a will and had given it to the plaintiff. Mr Deeks reminded him that this was not so, that he did not hold a will and that he had made inquiries with both the bank and with Mr Rickett's solicitors. They decided to search again through Mr Rickett's papers. An unexecuted copy will was found in an envelope with the name Chris Baker & Associates Solicitors on the front.
44 Having found this document, Mr Rickett took some minutes to read it and then showed it to the plaintiff for him to read, asking for it to be given back to him. The plaintiff read it quickly and not thoroughly but sufficiently to be able to say that it was the unexecuted copy of a will prepared in 2007 which is the one now being propounded for probate. This was the first time that Mr Deeks had seen the document. He recalled that the deceased had named him as executor but this was not surprising as he had been told of this by the deceased many times in the past and there was no one else in the family other than his wife obviously available for such a role. Mr Deeks noted that this will provided for some moneys to be left for charities, some moneys for the grandchildren and the remainder for Mrs Marjorie Deeks (the deceased's stepdaughter) and Mr Deeks himself.
45 The deceased confirmed to Mr Deeks that this was the will that he had finalised with his solicitors and that it set out what he wished to happen with his estate, saying that he had given instructions for this will. Mr Deeks pointed out to the deceased that this document was unsigned and was only in draft form whereupon Mr Rickett produced an attached letter from Messrs Chris Baker & Associates dated 22 November 2007 in
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- which a solicitor at that firm, Mr Rogers, asked the deceased to come to their office to sign the original will. On being asked if he had gone to the office to do so Mr Rickett said he had not. At that point Mr Deeks inquired whether Mr Rickett would be prepared to sign the will if he could arrange for the solicitor from the firm Chris Baker & Associates to come out and see him whereupon Mr Rickett agreed.
46 Because of this discovery Mr Deeks asked if Mr Rickett still wanted the other solicitor, Mr Fidock, who was due to arrive later that day, to keep the appointment and to make a new will but Mr Rickett said that that would not be wanted. Consequently Mr Deeks telephoned to cancel Mr Fidock's visit explaining that Mr Rickett had found a recently made will and that the solicitor's presence was therefore no longer required. Understandably the solicitor was a little impatient because he was already en route but he accepted the explanation and Mr Deeks' apology for the inconvenience.
47 With this new information and the discovery of the draft will from Messrs Chris Baker & Associates, Mr Deeks advised the deceased that he should contact Messrs Chris Baker & Associates and get somebody to come to his home to sign the will and that he ought to inform Mr Deeks when that had been done. Mr Rickett agreed to do this but did not say when he would do it. In his affidavit of 11 March 2010, the plaintiff says that, for some reason, Mr Rickett was very secretive about his will. Mr Deeks could not understand why this was so, especially after reading the will following Mr Rickett's death and seeing that it was simple and straightforward. All those persons who were near and dear to the deceased had been included in the will including those who had cared for him during the latter years of his life. As far as Mr Deeks was aware, the deceased had no other family or friends to whom he might want to leave his estate. During all these discussions between the deceased and Mr Deeks in relation to the search for the will and arrangements to execute a document to give effect to the dispositions contained in the draft will, Mr Rickett informed the plaintiff that he wished to execute his will in the form of that draft and without any changes.
48 Evidence from the solicitor Mr Rogers of Chris Baker & Associates explains what followed. Mr Rickett made contact with the office of Chris Baker & Associates by telephone on or about 15 May 2008 and asked if a solicitor could come to his home in order to have the will signed in the form of the draft. The solicitor made an appointment to visit Mr Rickett at his home on the evening of 20 May 2008 with the will to have it executed. The solicitor was quite satisfied that the will which he was
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- preparing on these instructions represented the wishes confirmed to him by telephone by the deceased and which followed the format of the earlier draft. Mr Rogers duly prepared the will and intended to visit Mr Rickett at his home at the appointed time. Unfortunately, the solicitor became preoccupied with other unexpectedly prolonged business on the afternoon of 20 May 2008 and was unable to keep the appointment and therefore did not attend upon Mr Rickett with the will. He later telephoned to apologise and inquire about making a substitute appointment.
49 As it was Mr Frank Rickett had had a fall at his home on Tuesday, 20 May 2008 fracturing his arm, and had been sent by ambulance to Joondalup Hospital. That proved to be his final hospital admission as he later died during the course of that hospitalisation.
50 On 21 May 2008 the solicitor at Chris Baker & Associates, Mr Rogers, was informed that Mr Rickett was in Joondalup Hospital. Mr Rogers therefore made arrangements to visit the hospital to have him sign the will, by then prepared, on the evening of 26 May 2008. As it happened Mr Deeks had also been in touch with Mr Rogers at the office of Chris Baker & Associates explaining the recent admission of Mr Rickett to Joondalup Hospital and pressing him to come to the hospital to sign the will. He did this on 21 May 2008 and again on 23 May 2008 but it was not until the evening of 26 May 2008 that Mr Rogers was able to make a visit to the hospital.
51 In the meantime Mr Rickett appeared to be making some improvements at the hospital and by 23 May 2008 was sitting up in bed alert and apparently his usual self. However, he deteriorated over the weekend and by the morning of Monday 26 May 2008 the doctor advised that he was again deteriorating but was then coherent and could understand what was happening. This led Mr Deeks to enquire whether or not the patient was capable of signing a will and he was informed by the doctor that he was willing to say that Mr Rickett was capable and that he himself would be happy to witness a will if asked. Mr Deeks again telephoned Mr Rogers and obtained confirmation that the solicitor would be at the hospital about 6 o'clock that evening for the will to be signed.
52 However, during that day Mr Rickett's condition took a turn for the worse and he had been placed on morphine. It appears that Mr Rogers did attend the hospital that evening with the will freshly engrossed for execution by the deceased. Mr Rogers inquired of the attending doctor whether Mr Rickett was fit to sign the document but at that point the doctor advised that, due to Mr Rickett being on morphine and sleeping, he
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- would not be prepared to authorise this. Mr Rogers went away with the will without it having been signed, intending to return on a later occasion.
53 On 27 May 2008 the deceased had again deteriorated. Attending doctors informed Mr Deeks that they were doing all that they could, but being weakened after his long illnesses Mr Rickett had very limited reserves, and that in the doctor's opinion it was just a matter of time before he died. In fact he passed away at 9.30 am the next day, 28 May 2008, without signing the will.
Factors relevant to the validity of a formal or informal will
54 When considering the significance and effect of pt X of the Wills Act 1970 (WA) in allowing the proof of informal wills which would otherwise be inefficacious for want of proper execution, it is useful to identify the function which the requirements of formal execution of a will, as contained in s 8 of the Wills Act, are designed to achieve. These have been set out succinctly in the report of the Law Reform Commission of Western Australia 'Wills: Substantial Compliance', project number 76, pt 1 of November 1985 which recommended reforms which led to the introduction of pt X of the Act. Addressing this subject, the authors of the Law Reform Commission report wrote as follows:
2.15 The primary function of the formal requirements is the so-called 'evidentiary function'. Those concerned with the estate of the deceased need to know with some certainty that a propounded will is in fact that of the deceased. They also need to be able to ascertain the expressed desires of the deceased. The requirement as to writing makes the words of the deceased available with a certainty that would not be found with an oral expression, the proof of which is dependent on the memory, lifespan and integrity of those who witnessed it. A written will creates a more permanent form of authentication of the deceased's wishes.
2.16 The signature of the deceased serves to link him with the document and indicates his assent to its contents. It characterises the paper as other than a 'draft'. The signature may also go to the proof of testamentary capacity. The requirement as to witnesses helps to establish authenticity, but of course does not guarantee it. In many cases, the witnesses will be available to give evidence if the will is called into doubt.
2.17 Commentators have identified several other advantages that can be said to spring from the formal requirements, as follows:
(a) The contemporaneous presence of witnesses also helps to protect against duress or undue influence and to ensure
- that the execution of the will was free and voluntary. This has been described as 'the protective function'.
- (b) Compliance with the formalities is said to impress on a testator the serious nature of the transaction and cause him to give the matter due consideration and attention. This has been called 'the cautionary function'.
(c) The statutory requirements also tend to standardise both the proof and, to a lesser degree, the form of wills. This facilitates their processing, reduces litigation and makes for a quick and uncomplex execution of the expressed desires of the deceased. This is known as 'the channelling function'.
55 As the authors of the Law Reform Commission report themselves observed (par 5.1) the striking down of the validity of a will because of non-compliance with the formal requirements alone may result in the defeat of the major purpose which these requirements were designed to protect, namely, securing implementation of the testator's testamentary intentions. Accordingly, when considering whether or not a particular document being propounded should be admitted to proof as an informal will of a deceased, it is necessary for the court to bear in mind the purposes which the formal requirements were designed to achieve, that is, to guard against fraud, preliminary but not concluded expressions of opinion, lack of full deliberation, possible adverse influence upon the deceased, and lack of appreciation of the seriousness and effect of the intentions as expressed. These are factors which need to be considered in determining whether or not a particular writing or documented expression of intention does, in fact, embody the final settled testamentary intentions of the deceased at the time it was made or approved.
56 The draft 2007 will sent to Mr Rickett by his solicitors in November of that year was, of course, never signed by him and it is that document, in unsigned form, which is being propounded for proof. As already noted, the signature of a testator on a will identifies him with the document and signifies his assent to its contents as well as characterising it as a document of final effect according to its terms. What then if the document is not signed? It was held in The Estate of Blakely (1983) 32 SASR 473 that a document may qualify as an informal will even if not signed by the testator. That was a case where the deceased and his wife had instructed a solicitor to prepare mirror wills for them both. They were prepared, read and approved by the husband and wife but, mistakenly, the husband signed the wife's will and then the wife signed the husband's. The husband died before the error was discovered and probate was sought
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- for his will notwithstanding that it had been signed by his wife. White J ordered that probate be granted, being satisfied that it had been the intention of the deceased to make a will in the terms prepared and that nothing other than a mistake had accounted for his lack of signature. This is an example of the adoption of the contents of the will, the expression of an intention to authenticate the document as embodying the testator's testamentary intentions, and his deliberation in doing so as being satisfied notwithstanding the absence of signature.
57 In the present case, no such mistake resulted in the absence of the deceased's signature on the will being propounded for Mr Rickett but, nevertheless, other evidence links him unambiguously to the contents of the propounded will and demonstrates his satisfaction with it and his wish that full testamentary effect be given to those expressions by whatever appropriate measures were needed. There is no suggestion in the evidence that by May 2008 the deceased may have contemplated making some different testamentary disposition of his estate or that he was contemplating doing so or desired further time or opportunity to give reflection to such a possibility.
58 The affidavit of scripts and the evidence of Mr Deeks and the solicitor Mr Rogers reveal five material testamentary scripts. The first is the duly executed will of the deceased made in England on 2 October 1989 appointing his late wife as his sole executrix and sole beneficiary. The second comprises a will instruction sheet recording the instructions given to the solicitor Mr Rogers of Messrs Chris Baker & Associates at a meeting between the two on 15 November 2007. The third is a draft will prepared between 15 - 22 November 2007 by Mr Rogers for the deceased and forwarded to him under cover of a letter of 22 November 2007 (the fourth script) - the letter shown to Mr Deeks in his conversation with the deceased. This letter is addressed to the deceased at 59/85 Hester Avenue, Merriwa and reads:
Dear Sir,
Re your new draft 2007 Wills
We refer to your instructions to our Mr Rogers of 11 [sic] November 2007.
Please find as attachments to this email the first draft of your Will.
Can you please consider the terms of the same and confirm that it is suitable for execution or in the alternative advise us of any changes you require.
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- On the basis that it is suitable can you please contact our office and make an appointment to sign the Will at our office.
We look forward to hearing from you.
Yours faithfully
Chris Baker & Associates
Barristers, Solicitors & Notaries
59 This letter (exhibit 7 in these proceedings) refers in the heading to wills in the plural. This appears to be an error because there was only ever to be one will and by that date Mrs Marjorie Rickett/Greenwood had died some weeks before. The letter is also significant because it contains in manuscript, in a somewhat shaky hand, and in print, the following words, 'Mr Rogers Mon May 20th evening'. This has been identified as being in the handwriting of the deceased and it serves to confirm that the deceased was aware of the arrangements made for Mr Rogers to visit him at his home on 20 May 2008 in the evening to sign the will.
60 There is also a fifth script - the 2008 engrossment of the earlier draft will prepared by Mr Rogers and taken by him to the hospital on 26 May 2008 but which Mr Rickett never saw.
61 Before turning to the terms of the draft will prepared in November 2007 or to the terms of the will brought by Mr Rogers for execution on 26 May 2008 it is necessary to note the instructions recorded by Mr Rogers following his meeting with the deceased on 15 November 2007. These are contained in exhibit 12 which reads as follows:
WILL INSTRUCTIONS SHEET
INSTRUCTIONS FOR WILL OF:
(Please print in block capitals)
1. Full name: FRANK RICKETT
2. Residential address: 59/85 HESTER AVENUE, MERRIWA 6030
3. Executor: JAMES DAVID DEEKS
Of 161 GILES AVENUE, PADBURY
4. Alternative executor
Of
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- 5. Children (full names): $2,000 to each of my step great grandchildren - and $2,000 to be advised. $2,000 to Alzheimers Charity WA and $2,000 Diabetes Australia + $2,000 Cancer Council. Residue to my stepdaughter BARBARA ANN DEEKS and my stepson JAMES DAVID DEEKS.
6. Guardian of infant children (if applicable):
Of
7. Instructions for bodily remains - Buried/Cremated: Cremated at Pinnaroo
8. Any other relevant instructions:
62 Upon those instructions and annexed to the letter sent to Mr Rickett dated 22 November 2007 (exhibit 7) the solicitor Mr Rogers forwarded a document bearing the title 'The 2007 Will of Frank Rickett', with the name of the solicitor's firm, address and contact details all typed formally on the front page. On the front page and the two succeeding pages there is a large stamped word in capital letters 'DRAFT'. The draft will is in the following terms:
THIS WILL dated the day of 2007 is made by me FRANK RICKETTof Unit 59 / 85 Hester Avenue, Merriwa in the State of Western Australia.
1. I revoke all previous Wills.
2. I appoint my stepson JAMES DAVID DEEDS as my Executor and Trustee ('my Trustee') of this my Will. In this Will the expression 'my Trustee' includes the Trustee for the time being of this Will and trusts arising under it.
3. My Trustee shall hold the whole of my estate on trust to distribute the same as follows:
3.1 to pay my just debts and funeral and testamentary expenses and all death estate and succession duties upon my estate;
3.2 to give to each of my step great grandchildren the sum of $2,000 each;
3.3 to give to the Alzheimer's Association of Western Australia the sum of $2,000.00 in aid of that institution for its general services, free from all duties, for which the receipt of the Treasurer or other authorised officer shall be sufficient discharge;
- 3.4 to give to the Diabetes Association of Australia, Western Australia Branch the sum of $2,000.00 in aid of that institution for its general services, free from all duties, for which the receipt of the Treasurer or other authorised officer shall be sufficient discharge;
3.5 to give to the Australian Cancer Council, Western Australia Branch the sum of $2000.00 in aid of that institution for its general services, free from all duties, for which the receipt of the Treasurer or other authorised officer shall be sufficient discharge; and
3.6 to divide the then residue equally amongst my said stepson JAMES DAVID DEEKS and my step daughter BARBARA ANN DEEKS who shall survive me but if either said step child dies before attaining a vested interest leaving issue then such issue on reaching the age of 18 years shall take equally the share which their parent would otherwise have taken.
- 4. My Trustee shall have the following powers in addition to those powers conferred by law:
4.1 to postpone the sale exchange or disposal of the whole or any part of my estate for so long as my Trustee thinks fit;
4.2 to sell lease exchange or dispose of the whole or any part of my estate on such terms as my Trustee thinks fit;
4.3 to invest the whole or any part of my estate in any form of investment whatsoever (including unsecured interest free loans and other non-income producing assets and property for occupation or use by a beneficiary) and freely change such investments;
4.4 to borrow on the security of my estate for any purpose connected with my estate as much money and on such terms as my Trustee thinks fit;
4.5 to continue and carry on solely or in partnership any business (including farming) in which I may have any interest for such period and in such manner as my Trustee thinks fit including acquiring property, engaging staff, using any asset of my estate including money, incurring liabilities binding on my estate and purchasing stock and capital items. The use of the assets and credit of my estate shall be treated as an advance to the business and paid for by the business at rates at which the use of similar assets or credits could be obtained from outside sources; and
- 4.6 to apply for the maintenance education or benefit of any minor beneficiary as my Trustee thinks fit the whole or any part of any income and capital to which that beneficiary is entitled or may in future be entitled and on becoming absolutely entitled that beneficiary shall bring into account any payments received under this clause.
- 5. I direct that my bodily remains are to be cremated and interned [sic] at Pinnaroo Cemetery in the said State.
Signed by the Testator in )
our presence and attested )
by us in the presence of )
the Testator and of each )
other ) ___________________________
Testator
First Witness
Signature:___________________________________
Full Name (PRINT):________________________________
Address:_____________________________________
____________________________________________
Occupation:__________________________________
Second Witness
Signature:___________________________________
Full Name (PRINT):________________________________
Address:_____________________________________
____________________________________________
Occupation:__________________________________
63 Following the telephoned instructions of Mr Rickett to Mr Rogers on 16 May 2008, Mr Rogers prepared a will for execution in exactly the same terms (except for dates) of the draft will of November 2007 and it was that document that he took with him on his visit to the hospital on 26 May 2008 when he was unsuccessful in seeing the deceased because of the latter's then condition.
64 That will in the form ultimately drafted and ready for execution is attachment 3 to the affidavit of Gary Martin Rogers which itself is
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- exhibit 11 in these proceedings. It is in all respects but one identical to the will in draft form sent out by Mr Rogers' firm to Mr Rickett under cover of the letter of 22 November 2007 already described. The single difference is the date as it appears on the facing page and at the commencement of the first page of the testament where in each case the figure 2008 is substituted for the figure of 2007 appearing on the draft.
65 It is also necessary to mention that on the file of the firm of Chris Baker & Associates there was found an earlier copy of the draft 2007 will which is attached as exhibit 2 to the affidavit of Mr Rogers and which is shown as being the annexure accompanying the letter from that firm to Mr Rickett of 22 November 2007. However, close examination shows that it is not an exact copy of the document which was actually sent to Mr Rickett (exhibit 7) because cl 3.2 of that draft reads as follows:
3.2 to give to each of my step great grandchildren ___________ ___________ ___________, ___________ ___________ ___________ and ___________ ___________ ___________ the sum of $2,000 each.
- Whereas, as set out above, the draft actually sent to the client under cover of the letter of 22 November 2007 has as that provision:
3.2 to give to each of my step great grandchildren the sum of $2,000 each;
This appears to be a correction to an initial draft made by the solicitors before it was dispatched but which makes no material difference to the effect of the proposed testament.
66 Although the document which is attachment 3 to the affidavit of Mr Rogers, namely the proposed 2008 will, is later in time than the draft 2007 will and was obviously intended, when executed, to be the final testament of the deceased, that is not being propounded for probate in this action. The reason is that that particular document was never produced or shown to Mr Rickett. It had been prepared on his instructions and it seems clear that he was disposed to sign it if the opportunity had been afforded to him but it cannot be suggested that he actually saw that document, read its content or approved that particular version of his proposed will. What he did see and approve was the draft of the will prepared in 2007. The evidence from Mr Deeks is to the effect that the deceased had believed, wrongly as it turned out, that he had made a will in those terms but upon it being pointed out to him in May 2008 that that will had not been executed and was a draft he confirmed that he wished to
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- make his will in those terms and soon afterwards gave instructions for a final version of the will incorporating those terms and no others to be prepared and brought to him for execution. That is also the evidence of Mr Rogers who communicated with the deceased by telephone to make those arrangements and who acted on them by preparing the 2008 version of the will and by attempting to visit the deceased at hospital on 26 May 2008. It is also to be noted that the two unexecuted versions of the proposed will, the 2007 will and the 2008 will, both conform to the instructions which had been given personally by Mr Rickett to the solicitor at Chris Baker & Associates on 15 November 2007 and which are recorded in the will instructions form prepared that day.
Absence of date
67 None of the testamentary scripts produced, with the exception of the instructions recorded by the solicitors on 15 November 2007, are dated. The informal will being propounded, that is the draft sent under cover of the letter of 22 November 2007, contains a space for a date (some date in 2007) to be inserted but contains no such date. The same applies to the unexecuted will prepared by Mr Rogers which he brought to the hospital on 26 May 2008 in his unsuccessful attempt to see the deceased and have the document executed. However, the absence of a date upon the document being propounded as the will of the deceased is not an obstacle, of itself, to a grant. This is because, in the absence of contrary intention, a will is to be construed with reference to the property comprised in it to speak and take effect as if it had been executed immediately before the death of the testator - Wills Act 1970 (WA) s 26(1)(a). So it was observed by Waite LJ in Corbett v Newey [1996] 3 WLR 729, 734:
… that there is no requirement in law that the will should be dated. Lack of a date or the inclusion of the wrong date cannot invalidate a will.
- See also Morritt LJ at 939.
68 However, this does not detract from the proposition that at the time the document was created the testator must, in fact, have intended that the document should operate with unconditional effect as his or her will. Corbett v Newey is an example of a document which failed to satisfy this condition and hence did not operate as a will. In that case the testator, with the assistance of his solicitor, made a will in conventional form which provided that certain property was to be left in a particular way. It was duly executed but not dated. This was because the testator had instructed the solicitor, orally, that the will should not take effect until certain other property transactions had been completed, but once they had
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- been completed the will could be dated and, so it was mistakenly thought, would become effective upon that dating. The testamentary attempt failed because it was apparent that the testator did not intend the document immediately to express his testamentary intentions. Rather, the intended effect of the document was to be conditional upon the satisfaction of the unwritten conditions orally expressed to the solicitor. While a will may be valid, even if conditional, it is essential that the condition be expressed in writing and be part of the testament. This case exemplifies that, to be valid, a proposed will must set out in full the immediate testamentary intentions of the testator in a way expressed to take effect from the death of the testator.
69 This requirement that, for validity, a testament must contain the expression of the complete testamentary intentions of its author intended to operate on death is also essential for the proof of a document as an informal will under s 32 of Wills Act. This is because, as s 32(2) provides, a document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by that Act, constitutes a will of the person if the Supreme Court is satisfied that the person intended the document to constitute the person's will. That is why courts dealing with comparable legislation providing for the proof of informal wills have refused to make grants in respect of documents which contain only preliminary, tentative or incomplete expressions of the author's testamentary intentions or where the document or other evidence demonstrates that it had been prepared for consideration, further thought, deliberation and possible revision. In such cases, attempts to prove the informal will have failed because the propounder has been unable to prove that the document embodied the settled testamentary intentions of the deceased.
70 Cases in which this essential condition has been regarded as determinative include Hatsatouris v Hatsatouris [2001] NSWCA 408, followed in this court by Barker J in Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191; Henwood v Public Trustee (1993) 9 WAR 22; The Estate of Kevin John Hines v Hines [1999] WASC 111; Re Estate of John William Henry Nicholls (dec) [2003] WASC 85 and Oreski v Ikac [2008] WASCA 220 [50] - [55]. In this last case Newnes AJA observed [55]:
It is therefore of fundamental importance that the person seeking to propound the document establish that the deceased, by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will.
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71 The question of whether or not the document was intended to take effect as the testator's will without more plainly emphasises that it needs to be established that it embodies the final expression of testamentary intentions upon which the testator was at the time resolved, and that it should not be tentative, advisory or prepared in the anticipation that it may need revision, further thought or final confirmation. That is consistent with principle and with the statute but the phrase, not found in the legislation itself, is capable of suggesting that if anything more is required for the paper to take effect as a will it could not be valid even as an informal will. With respect, I am satisfied that this is not what was intended by his Honour's observations in Oreski v Ikac. I had occasion to address this situation previously in the case of Mitchell v Mitchell [2010] WASC 174 which involved a case where solicitors had prepared a will for execution by the deceased in terms which the evidence plainly established did represent the final resolved embodiment of his testamentary intentions. It was taken to the deceased in hospital, where he was suffering from a fatal disease to which he soon later succumbed. It was read over by him, he expressed his satisfaction with the contents and proposed to execute it. Before doing so, however, it was decided for convenience that he should complete his morning ablutions and he went to the bathroom to do so, indicating that he would sign the will immediately afterwards. As it happened, he collapsed and died while in the shower without signing the document. Nevertheless, I was satisfied that the unexecuted will, which the deceased had plainly intended to execute in a formal way, should be admitted to proof as an informal will. In doing so, I observed at [42]:
Some difficulty may be experienced with the phrase, utilised in Oreski v Ikac(supra) 'that the document [in question] should, without more on his or her part, operate as his or her will', because in a case such as the present the inference must surely be that, had he not collapsed in the bathroom and died soon after, Mr Mitchell would have executed the will so that his intention at the time may be regarded as including an intention to have the document formally executed as a valid will as required by s 8 of the Wills Act so that, upon such execution, it would take effect at law. It is, therefore, possible to say in the strict sense that the deceased's intention was that the draft will would operate as his will once it was executed. However, I do not consider that this detracts from the effectiveness of the document as an informal will because s 32 itself does not use that phrase. Clearly, Newnes JA in that case was using that language to emphasise the need for the document being propounded for proof as an informal will to express the concluded testamentary intentions and the decision of the deceased rather than being some provisional, preliminary or tentative proposal which had not by then received the deceased's full assent. One must be careful to avoid placing any gloss upon the statutory language
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- which, by s 32(2), focuses attention only on whether or not the document purports to embody the testamentary intentions of the deceased, even though it has not been executed in the manner required by the act.
- and at [43]:
Where s 32 goes on to provide for this court to be satisfied that the person intended the document to constitute the deceased's will, it cannot be taken as intending that it be a will complying with the requirements of s 8 because, otherwise, there would be no need for Pt X of the Act. This case highlights the position that the breadth of the section and the Parliamentary intention are that a document which embodies the testator's settled testamentary intention is entitled to be admitted to proof notwithstanding that it has not been executed.
73 Nevertheless, such cases can present difficulties because if, as is often the case, a proposed will is prepared on instructions given by a testator and then sent by the solicitors to the testator for consideration or, as here, marked plainly with the word 'Draft', that implies that the document may be for consideration, further thought or revision and is still awaiting the expression of the final settled intention of the intended testator. Those are instances in which the document clearly is only a preliminary, tentative or provisional expression of testamentary intention and where it is clearly contemplated that the final decision by the testator whether to adopt its terms or to vary them needs to be made. Those are the features which led to the rejection of the attempt to prove as informal wills the documents being propounded in The Estate of Perriman (dec) and in Oreski v Ikac.
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74 However, what of cases in which the evidence indicates that the proposed will, whether in the form of a draft submitted for further consideration by the intended testator, or a document incorporating his or her settled intentions in final form, is accepted as ready for execution? In such cases the court, being ever vigilant to recognise the importance and significance of ascribing testamentary intent and effect to any document and to avoid fraud or undue influence by the interests of persons likely to benefit under such a testament if valid, should nevertheless accept the writing as a valid informal will. These cases are difficult because of the pivotal role which oral or circumstantial evidence may play in establishing the requisite intention by the testator whereas a duly executed testament satisfying the requirements of s 8 of the Wills Act raises a presumption that it does in fact embody the testator's settled testamentary intention although even in such a case that proposition can be challenged, as happens in many cases dealing with contests over the testamentary capacity of the testator at the time the document was executed on the basis of undue influence or other similar grounds.
75 It is not surprising, therefore, that the authorities show instances of mixed success when attempts have been made to prove as an informal will a document prepared as a conventional will but, for various reasons, never actually executed by the deceased. There is an extensive survey completed by Powell J in 1993 of the cases in which, up until then, informal wills had been propounded for proof - Justice Powell, 'Recent Developments in New South Wales in the Law Relating to Wills' (1993) 67 ALJ 25. This has been summarised in the NSW and Queensland Law Reform Commission's joint issues/working paper 'Uniform Succession Laws - The Law of Wills' published February 1996 at 25. The authors of that discussion paper wrote (referring to the power to make a grant of probate of an informal will as the 'dispensing power') as follows:
The article and the Appendix of cases give a clear picture of the sorts of cases in which the dispensing power can be expected to be exercised in favour of probate and those in which the power is unlikely to be exercised. Of 43 cases … 21 were admitted to probate under the jurisdiction … twelve cases were refused admission to probate, all of which were concerned with draft wills, notes and instructions for wills, wills engrossed but not executed and lists of legatees or amendments … Unsigned wills are not usually admitted but can be if the failure to sign is accidental, that is, the intention is present …
Many of the refusals mentioned in Justice Powell's article occurred in the early stages of the exercise of the jurisdiction, when the boundaries of the jurisdiction were being tested. They indicate a policy which distinguishes between the instruments which the testator intends to be a will and drafts,
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- letters of instruction, even engrossments of wills which were not intended to be the will at the time they were under consideration by the testator.
76 Since Powell J's article in 1993 there has been a series of further cases in which again mixed results have occurred. It is necessary to note some of these. In The Estate of Maslen [2009] SASC 304 White J considered whether a letter written by the deceased, after the execution of a previous valid will, giving directions to her executors should be admitted in effect as an informal codicil varying that will. The letter had not been formally executed in the manner required by a codicil, nor did it in terms resemble a conventional codicil. However, White J concluded that the evidence established that the deceased did intend this letter to express her testamentary intentions and that it should be regarded as a variation of the earlier will. There was evidence that the deceased had, at later dates, and on a number of times, referred to the letter as a codicil and as a change to her will, and her doctor had made a record that he had been asked to witness a change to her will. Other evidence supported the conclusion that the letter embodied a deliberate testamentary intention of the deceased.
77 In The Estate of Schwartzkopff [2006] SASC 131 a document in the form of a draft will prepared for the testator but never executed before he died in hospital at the age of 43 years was refused proof. The trial judge had before him extensive correspondence from the deceased and members of the family which revealed an expectation that the terms of the draft will would be discussed further between the deceased and his family and that the terms of the draft did not embody intentions which had been expressed in these discussions between the deceased and his wife. Consequently, his Honour held that the document did not express the testamentary intentions of the deceased and proof as an informal will was refused.
78 Similarly, in The Estate of Deslandes (Unreported, SASC, Judgment No 3849, 3 March 1993) Prior J rejected as an invalid informal will an earlier valid will of the deceased which had been extensively amended and annotated by the deceased subsequent to execution, indicating a desire to change the will in a variety of ways. His Honour concluded that these changes did not themselves express the final settled testamentary intention of the deceased but rather were proposals to which consideration was being given if and when a new will intended to be made was being drafted. In short, his Honour was not satisfied that the earlier document with the annotations and amendments embodied the testator's then final testamentary intentions.
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79 Another similar rejection is to be found in The Estate of Mead (Unreported, SASC, Judgment No 56547, 13 February 1998), a decision of Williams J which dealt with an unsigned document prepared by a trustee company for the testator where the evidence did not establish that the deceased had ever finally adopted the unsigned document as expressing his testamentary intentions. His Honour concluded that the fact that the document was unsigned left the status of the testator's intentions in doubt.
80 There are also observations in the cases to the effect that the greater the departure from compliance with the requirements of the equivalent of s 8 of the Wills Act for formal execution, the more difficult it will be for the court to be satisfied that the deceased intended the subject of the document to be a will - Re Application of Brown (1991) 23 NSWLR 535 (Powell J). Nevertheless, in that case Powell J confirmed that the 'dispensing power' should be applied in accordance with the following principles, namely:
(a) the section is not directed solely to wills which, although executed, are not executed in accordance with the formalities of the Act, but also applies to a document which does not bear the signature of the deceased;
(b) the ultimate inquiry remains whether the document itself, the circumstances regarding its contents (including such marks or handwriting as may appear on it) and any other relevant circumstances, lead to the conclusion that the deceased intended the document to constitute a will; and
(c) while each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the deceased intended the subject document to be his will.
81 In that case, his Honour concluded that where a document was not seen, or read, or written, or in some way authenticated or adopted by a deceased, or where a document, even if seen or read by a deceased was, in truth, no more than 'instructions' or a note of 'instructions' for a will, it would be very difficult for the court to be satisfied that it was intended by the deceased to be his will.
82 By contrast, in Re Estate of TLB (2005) 94 SASR 450; [2005] SASC 459 Gray J admitted to probate as an informal will the set of instructions for the preparation of a will obtained by the deceased's
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- solicitor from her where she had committed suicide before executing the document prepared by the solicitors. His Honour was satisfied that, notwithstanding that the will was never executed, the deceased had provided the solicitor with instructions expressing her testamentary intentions and that these had been recorded on the will instruction sheet. His Honour was satisfied that the deceased had not intended the will instruction sheet to constitute a will because she had envisaged that the will would be professionally drafted into a formal document in accordance with her instructions but this nevertheless indicated a continuing testamentary intention to make a formal will to give effect to those intentions and her later suicide did not negate those intentions or give rise to any presumption of abandonment or change of testamentary intentions. Hence probate, as an informal will, of the solicitors' recorded instructions sheet was granted.
Presumption against intestacy
83 Counsel for the plaintiff has submitted that the court should be disposed to lean in favour of admitting the alleged informal will to probate because if it were not proved and the earlier will of 2 October 1989 were to apply, there would, in the events which subsequently happened, be an intestacy. For this reason he submitted that there should be an inclination towards accepting proof of the informal will because of the well-known presumption against intestacy: Fell v Fell (1922) 31 CLR 268. However, I am far from satisfied that this is an approach which the court should adopt or that the presumption against intestacy predisposes the court to such a view. The presumption against intestacy is, subject always to the context, an approach to be adopted in the construction of a particular will or of a bequest or residuary gift in such a will. It operates on the basis that it should not be inferred that a testator contemplated that part of his estate should be subject to the rules of intestacy when disposing of other parts of it. It was, as said by Lord Shaw in Lightfoot v Maybery [1914] AC 782, 802 'a dernier ressort in the construction of wills'. As observed by Lord Esher MR in Re Harrison; Turner v Hellard (1885) 30 Ch D 390, 393 - 394, this is a 'golden rule'. Its rationale is that where a person executes a will in solemn form it must be assumed that he or she did not intend to die intestate.
84 It is rather difficult to see how the presumption can be applied in order to determine whether or not the testator did leave a valid and effective will. The undisputed evidence in this case is clear, beyond any doubt, that Mr Frank Rickett did intend to die testate and to make a new will with suitable provisions to replace his earlier will of 1989 which had
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- been rendered obsolete by the subsequent death of his wife. It being clear that he intended to die testate, the question in this case is whether or not he succeeded in that intention. The fact that that was his intention does lend substance to other evidence showing that it was his intention to make a will in the terms which had been prepared by his solicitors in November 2007 and again in May 2008 but the question remains whether those documents constituted a final and settled expression of his testamentary intention or whether they were merely provisional and some further decision or conclusion was required by Mr Rickett before he could be regarded as having adopted the expressions of intention contained in those instruments. On this latter question the presumption against intestacy has little to contribute because while it may be concluded that Mr Rickett did not intend to die intestate, the question remains whether or not the draft will of November 2007 in fact embodies his concluded testamentary intentions. For that reason, I do not consider that the presumption against intestacy will lead to any resolution of the issues in this case.
85 In the present case it is clear that the late Frank Rickett intended to make a will and that he had settled finally upon his intentions for the disposition of his estate which he wished to have embodied in the intended will. These are recorded in the will instructions obtained by the solicitors whom he visited for this purpose on 15 November 2007. They are recorded in the draft will which was sent to him for approval by those solicitors under cover of the solicitors' letter of 22 November 2007. It is true that the document submitted in November 2007 was, at that stage, a draft and provisional because the solicitors expressly sought further instructions from Mr Rickett as to whether any alterations were required, indicating that upon confirmation or otherwise from him a will would be prepared in final form and formal execution would then follow. At that stage, Mr Rickett left the matter unresolved but, by May 2008, after some intervening illnesses, he made it clear to the plaintiff, his stepson, that he had mistakenly believed that he had made a will in those terms but, upon searching for and finding the document, it became apparent that this was not so. Nevertheless, Mr Rickett confirmed to his stepson that the draft contained the instructions which he wished to have embodied in the final will and that he would take steps to have a will formally prepared and executed. He did so by contacting Mr Rogers privately some time on or about 16 May 2008 and confirming those instructions and asking that a formal will embodying them be brought to him for execution.
86 The draft will of 2008 was prepared by Mr Rogers but, unfortunately, it was never executed despite two unsuccessful attempts. It is evident that Mr Rickett had made an appointment with Mr Rogers for
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- the latter to visit his home on the evening of 20 May 2008 in order to execute that will. That arrangement miscarried. A sudden deterioration of health and hospitalisation intervened and a second attempt to have the will executed when Mr Rogers visited the hospital on 26 May 2008 also miscarried. All the evidence is to the effect that Mr Rickett remained of the one mind that he had settled finally upon his testamentary intentions, he had conveyed them to his solicitors, he was satisfied with the terms of the draft will submitted to him in November 2007 and had given instructions for a final will in those terms to be prepared. Only his sudden decline in health prevented that from being executed.
87 Accordingly, I am satisfied that, although it was never executed and although it was obviously intended that it would be executed, the document referred to as the draft will of November 2007 was finally adopted as embodying the deceased's testamentary intentions. Accordingly, I am satisfied that it should be accepted as an informal will expressing the concluded testamentary intentions of this deceased.
Other matters
88 The evidence of the plaintiff in the affidavits which have been filed and tendered also establish that the deceased was over the age of 18 years; left property within the jurisdiction; had not remarried or been divorced since he had expressed these testamentary intentions; and that the plaintiff himself is over the age of 18 years and has sworn, if granted probate, to administer the estate of the deceased in accordance with law and in the terms of the propounded informal will, and had been appointed as executor by the deceased in this informal will. It was also established that no other application for probate or letters of administration of the estate of the deceased had been made.
89 In these circumstances I am satisfied that there should be a grant of probate in solemn form of law and as an informal will of the testamentary document unexecuted by the testator but submitted to him under cover of the letter from his solicitors of 22 November 2007. Although at the time that document was submitted to the deceased it was in the form of a draft and provisional in the sense that it was subject to confirmation, I am satisfied that it was finally adopted as embodying the deceased's testamentary intentions, at the latest, by 16 May 2008 when Mr Rickett instructed his solicitor, Mr Rogers, to engross a new will in those terms and to bring it to him for execution on 20 May 2008, an event which, no doubt unfortunately for all concerned, never occurred because of intervening misfortune.
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90 There will, accordingly, be a judgment that the plaintiff is entitled to a grant of probate in solemn form of law as directed and that the terms of the grant shall be settled by a probate registrar with liberty to apply to the court for a resolution of any further matters should they arise.
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