Devine v Richardson
[2019] WASC 272
•30 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: DEVINE -v- RICHARDSON [2019] WASC 272
CORAM: HILL J
HEARD: 27 JUNE 2019
DELIVERED : 27 JUNE 2019
PUBLISHED : 30 JULY 2019
FILE NO/S: CIV 1876 of 2018
BETWEEN: SANDRA DOROTHY DEVINE
Plaintiff
AND
KARL RICHARDSON
Defendant
Catchwords:
Wills – Whether informal will – Whether informal will embodied deceased's testamentary intentions – Whether deceased intended informal will to be his will – Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA)
Wills Act 1970 (WA)
Result:
Informal will valid
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr R J Nash |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Mcfarlane Lawyers |
| Defendant | : | Solomon Brothers |
Case(s) referred to in decision(s):
Dalton v Dalton [2008] WASC 56
Deeks v Greenwood [2011] WASC 359
D'Unienville v Sakalo [No 2] [2013] WASC 469
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Hatsatouris v Hatsatouris [2001] NSWCA 408
Oreski v Ikac [2008] WASCA 220
Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191
Riches v McInnes [2010] WASC 298
Spencer v Spencer [2009] WASC 198
Stuart v Kirkland‑Veenstra (2009) 237 CLR 215
The Public Trustee v Drennan [2004] WASC 101
The Public Trustee v Gerritsen [2012] WASC 201
Tolson v Hender [2009] WASC 319
Wheatley v Edgar & Ors [2003] WASC 118
Williams v Schwarzback [No.2] [2016] WASC 43
HILL J:
The plaintiff, Ms Sandra Dorothy Devine, asks the court to declare that one of two documents signed by the deceased constitute the last will of the late Barry Richardson Hick.
Both documents were signed by the deceased but neither was witnessed. For this reason, neither document complies with the formal requirements of the Wills Act1970 (WA), s 8.
As a result, the plaintiff relies on the Wills Act1970 (WA), s 32. This section provides that a document may constitute a will, even though it was not executed as required by the Act, if the court is satisfied that it purports to embody a deceased person's testamentary intentions and that the person intended the document to constitute his or her will. This applies to documents whether or not they come into existence within Western Australia.[1]
[1] Wills Act, s 32(4).
The matter came before me for hearing on an uncontested basis on 27 June 2019. Evidence was received by affidavit and no witness was required to attend for cross‑examination. The plaintiff relied upon the affidavit of Sandra Dorothy Devine filed 20 February 2019 and the affidavit of Louella Morgan McFarlane filed 26 June 2019. Pursuant to orders that I made on 21 June 2019, the plaintiff tendered copies of the following affidavits filed in the probate division of this Court which I received as evidence in these proceedings:
(a)affidavit of Sandra Dorothy Devine sworn 16 August 2016;
(b)affidavit of John Trevor Hick sworn 24 April 2017;
(c)affidavit of Dr Nigel Andrew Myers sworn 26 April 2017; and
(d)supplementary affidavit of Sandra Dorothy Devine sworn 18 July 2017.
At the conclusion of the hearing on 27 June 2019, I made orders declaring the document dated 4 July 2015 to be the valid will of the deceased and said that I would publish my reasons. These are the reasons for my decision.
Legal principles to be considered
The applicable legal principles are well settled and it is not necessary for me to set them out in any length.
An unsigned draft document may constitute a will but it is necessary that there be cogent evidence that the document embodied the deceased's testamentary intentions and that the draft was adopted and authenticated by the deceased.[2]
[2] Deeks v Greenwood[2011] WASC 359 [73] ‑ [74].
It is not of itself sufficient that the document represents the deceased's testamentary intentions. It is necessary that the document be intended to be the legally operative act which disposes of the deceased's property on his or her death.[3]
[3] Oreski v Ikac[2008] WASCA 220 [54].
Probate will not be granted in respect of a document which contains only a preliminary, tentative or incomplete expression of the deceased's testamentary intention or where there is evidence that the document was prepared for further consideration and possible revision.[4]
[4] D'Unienville v Sakalo [No 2] [2013] WASC 469[158] ‑ [159].
Factual background
The late Barry Richardson Hick took his own life on 6 July 2015.[5] At the time, he was in the United Kingdom where he was temporarily residing.[6]
[5] Affidavit of S D Devine sworn 20 February 2019, par 4, 'SDD1'.
[6] Affidavit of S D Devine sworn 20 February 2019, par 9.
Mr Hick's brother, John Trevor Hick (who is known as Trevor), had arranged to meet the deceased at the deceased's apartment on the evening of 6 July 2015.[7] When Trevor Hick arrived at the apartment with his other brother Ian Hick, he discovered the deceased's car was not there and the apartment was unlocked. When he entered the apartment, he found an envelope which was prominently displayed and marked in handwriting:[8]
TREVOR
PLEASE TAKE CARE OF THESE PLEASE
THANK YOU, BARRY
[7] Affidavit of J T Hick sworn 24 April 2017, par 18.
[8] Affidavit of J T Hick sworn 24 April 2017, par 22.
The envelope contained five documents, being four letters to loved ones (including the plaintiff) and another document which the deceased had signed. This document was in handwriting in the following terms:[9]
[9] Affidavit of J T Hick sworn 24 April 2017, 'JTH1'.
LAST WILL AND TESTAMENT
OF BARRY RICHARDSON HICK
OF 49, TAYLOR RD
BULLSBROOK 6084
WESTERN AUSTRALIA
SUNDAY 4TH JULY 2015
I, BARRY RICHARDSON HICK
WISH TO LEAVE ALL MY, POSSESIONS [sic],
BANK ACCOUNTS CASH AND
B.T. SUPER FUND CASH TO
SANDRA DOROTHY DEVINE
OF THE SAME ADDRESS.
I LEAVE MY SHARE OF OUR
JOINT OWNERSHIP OF OUR HOUSE
49, TAYLOR RD.,
BULLSBROOK 6084
TO SANDRA DOROTHY DEVINE
OF THE SAME ADDRESS.
I LEAVE MY GOLD WATCH TO
MY. SON, KARL RICHARDSON, OWNER
OF BOATS UNLIMITED IN
WANGARA, WESTERN AUSTRALIA.
SIGNED THIS DAY 4-7-2015
[Signature of Deceased]
BARRY RICHARDSON HICK
Shortly afterwards, Trevor and Ian Hick were informed the deceased had committed suicide that day.[10]
[10] Affidavit of J T Hick sworn 24 April 2017, par 29.
Following the deceased's death, a one page document with writing on the front and back in the deceased's handwriting was found amongst his belongings at the property at 49 Taylor Road, Bullsbrook, WA.[11] This property was owned in equal shares as tenants in common by the deceased and the plaintiff.[12]
[11] Affidavit of S D Devine sworn 20 February 2019, par 12.
[12] Plaintiff's outline of submissions filed 25 June 2019, par 10.
The front page of this document was in the following terms:[13]
[13] Affidavit of S D Devine sworn 20 February 2019, 'SDD3'.
I, BARRY RICHARDSON HICK
OF 49 TAYLOR RD,
BULLSBROOK
DATED 1-2-2010
DO HEREBY LEAVE
ALL MY ASSETS AND
POSSESIONS [sic], BANK
ACCOUNTS, PREMIUM
BONDS, EVERYTHING
TO
SANDRA DOROTHY
DEVINE
OF THE SAME ADDRESS
SIGNED [Signature of Deceased]. PTO
The reverse page of this document was in the following terms:[14]
[14] Affidavit of S D Devine sworn 20 February 2019, 'SDD3'.
RE-CONFIRMED: ALL MY
ASSETS & POSSESIONS [sic] SHALL
BE LEFT TO
SANDRA DOROTHY DEVINE. OF
49 TAYLOR RD,
BULLSBROOK 6084
SIGNED
[Signature of Testator]
24/3/2014
Mr Richardson was Mr Hick's only child from his marriage to Maureen Griffin. This marriage ended in divorce.[15]
[15] Affidavit of S D Devine sworn 20 February 2019, par 6.
Ms Devine's evidence is that she had been in a de facto relationship with Mr Hick for almost 30 years prior to his death.[16]
[16] Affidavit of S D Devine sworn 20 February 2019, par 5.
There are no other known testamentary writings of the deceased.[17]
[17] Affidavit of S D Devine sworn 20 February 2019, par 16.
Ms Devine contends that the deceased possessed full testamentary capacity at the time he wrote the document dated 4 July 2015 and that this is the document that should be declared to be the informal will of the deceased.
Apart from Ms Devine and Mr Richardson, there are no other persons known to have an interest in the deceased's estate whether it be under the informal wills or on intestacy.[18]
[18] Affidavit of S D Devine sworn 20 February 2019, par 7.
At the time of Mr Hick's death, he had real and personal property in Western Australia.[19]
[19] Affidavit of S D Devine sworn 20 February 2019, par 8.
In August 2016, the plaintiff filed an application for the grant of letters of administration in common form. The defendant lodged a caveat against the making of a common form grant of letters of administration to the plaintiff and required the plaintiff to commence these solemn form proceedings.[20]
[20] Affidavit of S D Devine sworn 20 February 2019, par 33.
At a mediation conference conducted by the court in the course of these proceedings, an agreement was reached between the parties to compromise the action by a deed of settlement.[21] The deed included terms to the effect that the defendant would withdraw his defence to these proceedings and the matter would proceed to trial on an uncontested basis.[22]
[21] Affidavit of S D Devine sworn 20 February 2019, par 35.
[22] Affidavit of L M McFarlane sworn 26 June 2019, 'LMM1'.
Implementation of Compromise in Deed of Settlement
Order 73 rule 19 of the Rules of the Supreme Court 1971 (WA) provides:
Where at any stage of the proceedings in a probate action the parties agree to a compromise, the action may, with leave of the court, be set down for trial.
By orders dated 11 December 2018, Registrar Whitbread granted leave to set this action down for trial pursuant to O 73 r 19.
The plaintiff acknowledged that the parties to a probate action cannot simply consent to a solemn form grant being made in respect of a will without offering evidence which is sufficient to justify the court making a grant in solemn form.[23]
[23] Tolson v Hender [2009] WASC 319 [4]; Wheatley v Edgar & Ors [2003] WASC 118[24], [25], [30]; Williams v Schwarzback [No.2] [2016] WASC 43.
It is, however, a relevant consideration that the interested parties have agreed how the estate will be administered.[24]
[24] Tolson v Hender [2009] WASC 319, [4]; The Public Trustee v Gerritsen [2012] WASC 201 [14]
Where all parties who have an interest in the estate appear before the court or have had notice of the proceedings, the court will have greater latitude than it otherwise would have in assessing the evidence before it.[25] In this case, I am satisfied that the only two parties who have an interest in the estate are the plaintiff and the defendant.
[25] Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786, [251].
Issues for determination
It is not in dispute in this matter that there is a document, being the document dated 4 July 2015. [26] The questions that I am required to resolve in relation to this document are: first, whether any such document is that of the deceased; second, whether the document purports to embody the deceased's testamentary intentions; and third, whether the deceased intended that the document constitute his will.[27]
[26] Affidavit of S D Devine sworn 20 February 2019, 'SDD2'.
[27] The Public Trustee v Gerritsen [2012] WASC 201; Hatsatouris v Hatsatouris [2001] NSWCA 408; Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191; Oreski v Ikac [2008] WASCA 220; Dalton v Dalton [2008] WASC 56; Riches v McInnes [2010] WASC 298 [26]; Spencer v Spencer [2009] WASC 198 [26].
If I am not satisfied of any of these elements in relation to the document dated 4 July 2015, it is necessary for me to turn to consider the alternative document dated 1 February 2010 and affirmed on 24 March 2014.
I am satisfied on the balance of probabilities that the document dated 4 July 2015 is in the deceased's handwriting, that he signed it with the intention that this document operate as his will and that it embodied his testamentary intentions. This is for the following reasons.
The plaintiff has adduced evidence of the handwriting and signature of the deceased.[28] I accept that the deceased's handwriting was peculiar to him. It took the form of printed (as opposed to cursive) writing, all in capital letters. I find that the document dated 4 July 2015 is in the handwriting of the deceased.
[28] Affidavit of J T Hick sworn 24 April 2017, par 7 ‑ 9, 'JTH2', 'JTH3'; affidavit of S D Devine sworn 16 August 2016, 'C' ‑ 'F'; supplementary affidavit of S D Devine sworn 18 July 2017, 'SDD1', 'SDD2'.
The form of the document is headed 'Last Will and Testament'. This, together with the act of the deceased in leaving the document in a prominent position which ensured it would be discovered as soon as possible after his death, in my view, demonstrates the intention of the deceased that this document have effect as his will.
The dispositions that were made by the informal will – with almost the entirety of his estate to his de facto spouse and a gold watch to his son from whom he was estranged – are consistent with oral and written statements made by the deceased prior to his death.[29] I accept that those statements exercised unimpaired judgment by the deceased and embodied the deceased's testamentary intentions.
[29] Affidavit of J T Hick, par 25, 30 ‑34, 'JTH4' – 'JTH7'.
The final question is whether I am satisfied that the deceased had testamentary capacity at the time he wrote the informal will. The presumption of testamentary capacity does not apply in the case of an informal will.[30]
[30] The Public Trustee v Drennan [2004] WASC 101 [23] ‑ [24]; The Public Trustee v Gerritsen [26].
The fact that a testator commits or attempts to commit suicide does not give rise to a presumption of loss of capacity. In Stuart v Kirkland‑Veenstra, French CJ said:
The common law does not even support the general proposition that attempted suicide or suicide gives rise to a presumption of mental illness, at least not to the extent that would amount to testamentary incapacity. A testator's suicide, following shortly upon the making of a will, does not raise a presumption of testamentary incapacity.[31]
[31] Stuart v Kirkland‑Veenstra (2009) 237 CLR 215, [46].
In this case, the plaintiff tendered an affidavit from Dr Nigel Andrew Myers sworn 26 April 2017. Dr Myers deposed that he is a general practitioner in the United Kingdom who saw the deceased on 3 July 2015. He stated that at the time of the consultation, the deceased did not give him any cause to consider he was at risk of self‑harm or that he was suffering from any mental disturbance which may have affected his capacity to make a will.[32]
[32] Affidavit of Dr Nigel Andrew Myers sworn 26 April 2017, par 15 ‑ 17.
Based on the evidence before me, I am satisfied on the balance of probabilities that the deceased had testamentary capacity at the time he made the informal will on 4 July 2015.
In light of these findings, it is unnecessary for me to consider whether the informal document dated 1 February 2010 and affirmed on 24 March 2014 could be declared to be a valid will. Counsel for the plaintiff did not seek to address me on whether the issues were satisfied in relation to this document. Accordingly, I decline to make any observations in respect of this document.
For these reasons, I would make the orders sought by the plaintiff as amended by me.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill30 JULY 2019
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