Ex Parte Rosemary Machin Pitman
[2018] WASC 237
•7 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: IN THE ESTATE OF PETER ANTHONY PITMAN (DECEASED); EX PARTE ROSEMARY MACHIN PITMAN & ANOR [2018] WASC 237
CORAM: REGISTRAR C BOYLE
HEARD: ON THE PAPERS
DELIVERED : 7 AUGUST 2018
FILE NO/S: PRO 953 of 2018
MATTER: IN THE ESTATE OF PETER ANTHONY PITMAN (DECEASED); EX PARTE ROSEMARY MACHIN PITMAN & ANOR
EX PARTE
ROSEMARY MACHIN PITMAN
First Applicant
FLEUR LOUISE PITMAN
Second Applicant
Catchwords:
Informal will - Video files - Surrounding circumstances - Whether deceased intended document to constitute his last will
Legislation:
Wills Act 1970 (WA), s 32
Wills Amendment Act 1987 (No 9)
Result:
Application refused
Category: B
Representation:
Counsel:
| First Applicant | : | No appearance |
| Second Applicant | : | No appearance |
Solicitors:
| First Applicant | : | David Moss & Co |
| Second Applicant | : | In Person |
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Oreski v Ikac & Ors [2008] WASCA 220
Powell v Dinwoodie [2012] WASC 139
Western Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144
Worth v Clasholm (1952) 86 CLR 439
REGISTRAR C BOYLE:
When Peter Anthony Pitman died he left no formally valid will. After he died, his daughter found four video files. This application is made pursuant to Part X of the Wills Act for proof of one of those video files as an informal will. The applicants are the deceased's widow Rosemary Machin Pitman, who was his second wife, and Fleur Louise Pitman, a daughter by his first marriage. There is nothing in the video file that could constitute the appointment of an executor, so the application is correctly for letters of administration with the will annexed.
The law in outline
This video file can only be admitted to probate pursuant to Part X of the Wills Act. Given the unconventional nature of the video, it is salutary to set out in full the relevant provisions of s 32 of the Act:
(1)In this section and section 33 —
document means any record of information including —
(a)anything on which there is writing; or
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d)a map, plan, drawing or photograph,
and includes any part of a document within the meaning given by this subsection.
(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; or
(b)an alteration to a will of the person; or
(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.
The power to admit to probate a will that had not been executed in accordance with the formalities of the Wills Act is often referred to as a dispensing power[1].
[1] Langbein, J H, Excusing Harmless Errors in the Execution of Wills: a Report on Australia’s Tranquil Revolution in Probate Law; (1984) Columbia Law Review Vol 87 No 1.
For present purposes a convenient summary of the applicable law is to be found in the reasons of Newnes AJA (Martin CJ and McLure JA concurring) in Oreski v Ikac & Ors.[2] It is no disrespect to the court as there constituted to refer to those oft-cited paragraphs as a summary, because that is precisely what was intended. Oreski was not a case of the Court marking out the bounds of novel law: it was restating in concise form the effect of the body of case law to which it refers.
[2] Oreski v Ikac & Ors [2008] WASCA 220 [50] - [55] (Newnes AJA, Martin CJ & McLure JA concurring).
Although it is no longer necessary to prove beyond a reasonable doubt that the deceased intended the document to constitute his last will[3], the gravity of a fact to be found affects the evidence required to establish it to the reasonable satisfaction of the court.[4] There is no presumption of testacy: whether a will is formally valid or informal, it has to be proved. If the will is informal, the proponent cannot rely on the presumptions as to each of testamentary capacity, and knowledge and approval, that apply to a will that on its face is rational, officious, and appears to have been executed in compliance with the formalities required by s 8 of the Wills Act.[5]
[3] As it was when the dispensing power was first introduced in 1987: Wills Act Amendment Act No 69 of 1987, s 9.
[4] Briginshaw v Briginshaw (1938) 60 CLR 336.
[5] Worth v Clasholm (1952) 86 CLR 439; Western Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144.
The video files and the circumstances of their creation
Lodged with the application was a USB thumb drive that the affidavit of the applicants deposed to contain four video files found after the deceased died on a hard drive that the deceased had attached to a computer he was using.
That was where the difficulties began. Where an application is for proof of a conventional will, it must be the original that is proved unless it is lost or destroyed. There is a significant body of law relating to the proof of copies[6]. Authenticity is as important with electronic documents as with paper ones.
[6] See, for example, Powell v Dinwoodie [2012] WASC 139 (E M Heenan J).
What was delivered to the court with the application was not the device on which the deceased first recorded the files. Instead, what was delivered was a USB drive containing copies.
The application was requisitioned to point out that what had been lodged were copies. I was particularly concerned because of the difficulties (described below) that I had encountered in viewing these files. It might have been that those problems were an artefact of the copying process, so the requisitions sought either the actual hard drive on which it was believed the files had been created, or evidence of the authenticity of what the Court had received.
It is unfortunate but understandable that it has taken some time for the applicants' solicitors to answer those requisitions. It took more investigation within the family, and an examination by an expert technician.
The technician was Zac Marcus Pearson, who swore an affidavit dated 14 June 2018. To cut a long story short, Mr Pearson was unable to find the originals of the video files on any of the various devices he was given. It would appear the original files have been deleted or lost. They may have originally been recorded on a drive since discarded, after they were first copied onto another. There is no reason to suspect that there was any malice involved other than the random mischievousness of the gods of technology. I accept that there were files that were copied onto a USB drive, and it is that and its facsimiles we are left with. We will never be certain whether the video and sound quality of the original recordings was better than what we have on the USB drive and on a DVD Mr Pearson made by copying (copy) files that Fleur Pitman had provided. Mr Pearson was unable to improve the copies to run smoothly.
As it happened, the version of the files now lodged on a CD-ROM disk suffer from all the deficiencies of the copies on the USB drive first lodged.
I should as a preliminary matter record certain findings about the four video files that were lodged.
First, I am satisfied by the evidence of the applicants that the person appearing in those video files and speaking to camera is the deceased, and that the audio is the deceased speaking.
Secondly, the metadata associated with those files gives the date of creation as 22 February 2011. I accept the evidence of Mrs Rosemary Pitman that, for the reasons she gives, that date is very likely accurate. That evidence is corroborated by that of Mr Pearson.
The metadata associated with the files also suggests that they were recorded on that day between the hours of 2:56 am and 3:58 am. I am also satisfied by Mrs Pitman's evidence that those times are likely to be perhaps twelve hours out, because the videos show the deceased in a room that is clearly illuminated by sunlight that changes over the course of the hour or so the times indicate.
As a final preliminary matter, I accept also from the whole of the evidence including my observations of the video files that Mr Pitman had testamentary capacity when he made the recordings. There is no suggestion otherwise, but the finding is necessary.
The applicants have provided and deposed to transcripts of the audio portion of the four files. It is worth setting those out in full:
File 1 - last altered 22/02/2011 2.56 AM "CAPTURE" (visual and audio not in sync)
This is a preamble (pause) to my Last Will and Testament. Let me die in peace. I believe my body is getting close to its use by date (pause) and there are various signs that (pause) many parts of it are breaking (pause) down I wont bore you with details. So I will not have any invasive surgery (pause) that I do not (pause) OK.
File 2 - last altered 22/02/2011 3.13 AM "CAPTURE_001" (visual and audio not in sync)
This is a preamble to my that is Peter Anthony Pitman born 2nd of the 8th 1939 Last Will and Testament. Firstly (pause) I believe my body's approaching its use by date. My mind's not too bad (pause) so I um while I can do this I thought I'd let you know what I want to happen to me. Hmm firstly let me die in peace. Um I wish no invasive surgery. If it's something minor maybe but uh such a thing as uh opening my stomach up or um heart valve changes or uh any form of transplant I do not wish to have one [done]. Secondly uh because of the previous statement I will not (pause) donate any organ. I wish my organs to be buried with me. My reasons for this are that uh I believe we are creating a nightmare for our grandchildren and their grandchildren by allowing faulty genes (pause) to reproduce.
As to my will whatever goods that I have when I die and the major part of those will be um my half share in Lot 20 Cranbrook Road Frankland River (pause) then I wish Rosemary to have lifetime occupancy (pause) of the property. Should she sell and more or should she pass away (pause) then my half share I wish to be distributed equally amongst my four children and if some of those have passed away then their share to be handed on to their children. As to the minor parts of my estate um (pause) I've got a 22 magnum rifle which (pause) was originally [J?] Anthony's so if he wishes to have it back uh he's welcome. The air rifle is to go to Jonathon. My (pause) photography gear um I don't (pause) know what to do with. I think you lot should decide (pause) uh (pause) and because there's probably close to thirty or forty thousand photos and (pause) uh videos around the place.
File 3 - last altered 22/02/2011 3.54 AM "CAPTURE_002" (visual and audio not in sync)
Well hello everybody. This is a preamble to my Last Will and Testament I being Peter Anthony Pitman born the 2nd of August 1939. I just thought I'd let you know what I want to happen to me when uh (pause) when I die and when I go uh (pause) hopefully many years from now, but better to be prepared.
File 4 - last altered 22/02/2011 3.58 AM "CAPTURE_003" (visual and audio not in sync)
Well hello everybody. This is a preambril. Preamble? To my Last Will and Testament (pause) uh I being Peter Anthony Pitman born the 2nd of August 1939 I wonder (pause) I won-der. Ah (pause) I see its behind.
Note - inaudible is in [italics]
The problems with the video files
It is very difficult to watch the four files and confirm the correctness of the transcripts. That is not a criticism of the applicants who have deposed to the accuracy of the transcripts, or to whoever in addition may have been involved in the transcription.
The problem is the quality of the recordings. The applicants deposed that the video and audio are not synchronised. Again without criticism, that is a massive understatement.
I have tried to watch and listen to the four files on three different devices using two different operating systems and at least two video‑playing applications.
Each of the videos shows the deceased seated in a room he is said to have used as an office space. There is a door visible in the background with mottled glass of a kind fashionable generations ago. There is a desk or table in the background which has on it stacked filing trays.
The deceased is seen facing the camera and wearing a hooped rugby shirt. It is the same shirt in all four videos. The evidence is that the camera was a separate camera mounted to the top of a laptop, rather than the more current integrated camera. Nothing turns on that.
One of the quirks of these video files is that in one of them Mr Pitman and the room behind are as a mirror image, with left and right transposed. This has been noted by the applicants but no explanation could be found. I do not regard this as sinister.
The video quality is not particularly good, but the light in the room seems low. The audio quality is worse, but the real problem is the lack of synchronisation. This is not a matter of the two being out by a heartbeat or two: it is seconds or longer, and is inconsistent. The video freezes while the clock continues to run, and there are long silences as the audio playback freezes but Mr Pitman's lips move. One does not know whether the lip movements that are visible correspond to the audible speech. It is certainly not the case that each of video and audio proceeds continuously and smoothly, but separated only by a synchronisation error. Each is halting and uncertain.
While I accept that what is in the transcripts is all that it is possible to recover from the audio, I am less confident that the audio recording is complete. While it looks and sounds about right, I cannot have any real satisfaction that the transcript has captured everything that the deceased said. I could not comfortably conclude that the transcript reflects all that the deceased recorded or thought he had recorded. That is so for reasons including the inconclusive endings (in the sense that there are no words of conclusion) of the transcribed text of any of the recordings.
What happened later
As noted, the evidence which I accept is that the deceased made these recordings on 22 February 2011. He died nearly five years later on 17 January 2016.
It was the deceased's daughter Fleur Pitman who found the video files 'on Dad's laptop' after his death when she was looking for material to use in the funeral ceremony. She found a folder named 'Peter Anthony Pitman Will'. In it were the four video files. Ms Pitman deposes to the deceased's habit of making videos. She opines that she was not surprised that the deceased had made a video will, because it was a medium that he ‘was very much used to and comfortable with'[7].
[7] Affidavit of Fleur Louise Pitman 18 August 2017, [34]. The affidavits in support of the application were made on various dates, some being made long before the application was filed.
That invites the response that looking at the videos in question does not suggest that the deceased was particularly competent or even comfortable with the hardware and software involved. It is clear in the last of the recordings in particular that the deceased becomes aware of some problem with the process and he can be seen reaching out to the equipment as he ceases talking. The recording then ends.
Rosemary Pitman deposes in a separate affidavit to the history since the deceased and she married in May 1991. They owned the matrimonial home at Frankland River as tenants in common in equal shares. The claimed video will expresses testamentary intentions that are understandable in light of the matrimonial history. That may be marginally useful in addressing the question of whether it expresses the testamentary intentions of the deceased, but does not help on whether the deceased intended the document to constitute his will. As Oreski points out, it is the latter question that is critical.
The evidence of all parties is that the deceased was a man of distinct character that some would have described as eccentric. He was, for example, reluctant to consult medical practitioners. His reluctance to trust the advice of professionals seems to have extended to a reluctance to accept that he might have benefited from the assistance of a lawyer in making his will.
There is no suggestion that at the time he recorded the 2011 videos he was in imminent fear of death.
The trouble with the evidence
I have already referred to the difficulty in concluding that the transcript of the video file identified as CAPTURE_001.mpg is a complete record of what the deceased said, or thought he had said in making that video.
There are other factors that in my view make it impossible to be satisfied that the deceased intended the document in question to constitute his last will. They are: the content of the document; its immediate context; what the deceased did with the document; and later discussions with him.
The content of the document
The uncertainty arising from the poor quality of the recording has already been mentioned.
Even if the transcript is accurate, what the deceased said does not have a neat beginning, middle, and end. There are words expressed to be a ‘preamble'. Then there are words that may have testamentary operation. It is not at all clear that this is complete, since it appears to end in the middle of a somewhat rambling list of items that the deceased seems to mention as they occur to him: there is no impression from the transcript, and even less from watching the video, that the deceased had thought about all that he had to dispose of and how he should dispose of it. The impression is of a practice run or an exercise in contemplation.
And the video itself ends in an abrupt way. There is nothing in the way of concluding words by which the deceased expresses his resolution or confirmation, or satisfaction that the task is at an end. There is no coda. It simply cuts out.
The content of the document does not satisfy me that the deceased intended the second video file ('CAPTURE_001') to constitute his last will. That is so because of its quality, content and structure, even if that video is considered in isolation.
Immediate context
The immediate context strengthens that view. The claimed will was the second of four video files recorded within an hour. The deceased in each of the third and fourth files explicitly identifies it as a preamble to his will. That makes no sense if he had already made his will. The use of the term in the third and fourth video files indicates that the deceased did not intend the second to constitute his will. If the deceased had intended the second of the four files to constitute his last will, then on each of the third and fourth files he had the opportunity to express or confirm that intention. He did not do so.
Indeed, if the deceased had intended the second video file to constitute his last will, there was no reason for him to embark on either the third or the fourth recordings. That he made them at all is in my view telling evidence that he did not intend the second to constitute his last will.
What the deceased did with the document
Also telling is what the deceased did or did not do with the video files. He did nothing other than leave the files in a folder on a hard drive. He did nothing to bring the existence of any of those recordings to the attention of his family. The files were understandably not discovered until after he died.
Nor did he do anything to mark out the second of the four recordings as the one he intended to be his will. If the second was the definitive will, why not delete the others?
As the transcript shows, the deceased was concerned with what are referred to as ‘end-of-life' issues, including decisions about medical or surgical treatment when he might not be in a state to make his own choices and his family would have to decide.
Lawyers know that end-of-life treatment choice is not a testamentary subject, but it is not likely that Mr Pitman knew that. It was a topic that was important to him, at least when he made the recordings.
But if Mr Pitman wanted those wishes to be given effect, someone else needed to know about them. There was no point hiding away the files expressing them where they might not—and as it happens did not—come to the attention of anyone else until after he died.
That he did nothing to bring those wishes about medical treatment to the attention of his family, by at least alerting them to the video files, suggests to me that none of the video files can be taken as the concluded wishes or testamentary intentions of the deceased.
Later discussions
Section 32(3) makes it clear that statements made by the deceased are admissible in determining whether the deceased intended a document to constitute his last will.
Mrs Pitman provides evidence about the will-making history of the deceased. Although the deceased had not explicitly said to her during their relationship that he did not have a will, she assumed that he did not have a formally valid will. If he had made one, it would have been when he was with his first wife. Any such will would have been revoked at latest by his subsequent remarriage to her. Mrs Pitman does say that she had wanted the deceased to go with her to see a lawyer to prepare wills together. She recalls a discussion in October 2015 where she said to the deceased that they should go and make their wills with a lawyer. His reply, in her evidence, was to say,
But we don't agree!
To which she replied,
We may well do.
Despite her continuing urging, the deceased maintained that agreement was unlikely. Her conclusion was that he did not want to discuss it further.
Mrs Pitman also deposes that during the discussions about their estates, the deceased said to her words to the effect 'you could have lifetime occupancy'.
I understand that the evidence of Mrs Pitman is that this was part of the October 2015 discussion.
The only other discussion Mrs Pitman can recall that she had with the deceased on the subject of what was to happen when one or the other died was at around Christmas time in 2015. She offered the suggestion that if he were to predecease her, then she might relocate to Albany to be closer to doctors, hospital and other amenities.
The deceased's son Jonathon David Pitman has also sworn an affidavit. As he lives in Victoria, his contact with his father was mostly by telephone.
There is little in Jonathon Pitman's affidavit that directly addresses the questions of the deceased's intentions in relation to the video will. Jonathon Pitman was not aware of its existence until after the death of the deceased. He does however depose,
Because it seemed Dad talked about everything with me, it surprised me that he did not say anything about his Informal Video Will.
Mrs Pitman was not aware of the video now sought to be proved until after the deceased died.
The evidence is that after the creation of what is now said to be his informal will, the topic of will-making came up in discussions between Mrs Pitman and his wife at least twice. If Mr Pitman had intended that the February 2011 video file constitute his last will, one would have expected him to say at least that he had made his will, and really one would expect him to identify its nature and where it might be found.
The result
The video file named 'CAPTURE_001' is a document within the definition of that term is s 32(1) of the Wills Act.
It has not been executed in compliance with s 8 of the Act, because it could not be.
It expresses testamentary intentions. I could not find that it expresses 'the testamentary intentions' of the deceased in that it is a complete expression of those intentions. That is not to say that it is necessary for the validity of a will that it appoint an executory and dispose exhaustively of all the will-maker's property. Of course not, but the words of the deceased as recorded in the transcript, and the way the video ends, and the fact that the deceased then made two further recordings, leave me unpersuaded that it was a complete expression of his testamentary intentions.
Most critical of course is the final requirement as expressed in Oreski at [2008] WASCA 220 [55] that the deceased '… by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will.'
The deceased did no more than record a video file on his computer. That is insufficient to show that he intended the document to constitute his last will. He made no further act to evidence his intention that it should be his last will.
There is no evidence that by any words he ever expressed that intention, even though he was given clear conversational opportunity and reason to do so.
The evidence of his statements subsequent to February 2011 is not only that Mr Pitman did not say anything to anyone that evidenced an intention that the video file constitute his last will, he refrained from telling anyone about the document when there was a clear opportunity to do so.
The assumption of the applicants and their advisers seems to have been that the problems with the video files might be a result of their having been copied. That was also my assumption when the application was first lodged. That was one reason for requisitioning for the original drive. But there is another possibility. That is that the recordings were faulty from the first, and Mr Pitman could see that. That would explain why each of them ends in an inconclusive fashion. It would explain why there are four files, not one. It would explain Mr Pitman's words and actions at the end of the last file, when he seems to perceive some problem and reaches out towards the camera.
All of those matters are consistent with the theory that, unlike the God of Genesis, Mr Pitman saw what he had done, and it was not good, and he abandoned the creation of a video will.
I cannot find that Mr Pitman intended the video file 'CAPTURE_001' to constitute his last will. The application must be refused.
There is one final matter that I mention only because not to do so might give the wrong impression. Where a will appoints no executor or the appointment has failed, entitlement to administration with the will annexed is not at large. It may be that the deceased's widow and daughter do not rank equally in the hierarchy of entitlements to apply. I do no more than note that.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
ASSOCIATE TO REGISTRAR C BOYLE7 AUGUST 2018
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