Grigg v Myles
[2005] WASC 224
GRIGG & ANOR -v- MYLES & ORS [2005] WASC 224
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 224 | |
| Case No: | CIV:1619/2004 | 25 JULY & 29 AUGUST 2005 | |
| Coram: | BLAXELL J | 19/10/05 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Grant of probate of formal Will | ||
| B | |||
| PDF Version |
| Parties: | RAYMOND BRIAN GRIGG JAN WILLIAM OLDE ELSIE MAY MYLES LUCY MAY MILLER JANETT PATRICIA ROBERTS CORAL ANN CUNNINGHAM AARON DARREL MYLES CRAIGE MYLES SCOTT MYLES BARRY THOMAS MYLES NEIL JAMES MYLES |
Catchwords: | Succession Wills, probate and administration Proof of Will in solemn form Claim for grant of probate of formal Will Counter-claim for order pronouncing force and validity of subsequent informal Will Whether or not testator executed informal Will Turns on own facts |
Legislation: | Wills Act 1970 (WA), s 34 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
JAN WILLIAM OLDE
Second Plaintiff
AND
ELSIE MAY MYLES
First Defendant
LUCY MAY MILLER
Second Defendant
JANETT PATRICIA ROBERTS
Third Defendant
CORAL ANN CUNNINGHAM
Fourth Defendant
AARON DARREL MYLES
Fifth Defendant
(Page 2)
- CRAIGE MYLES
Sixth Defendant
SCOTT MYLES
Seventh Defendant
BARRY THOMAS MYLES
Eighth Defendant
NEIL JAMES MYLES
Ninth Defendant
Catchwords:
Succession - Wills, probate and administration - Proof of Will in solemn form - Claim for grant of probate of formal Will - Counter-claim for order pronouncing force and validity of subsequent informal Will - Whether or not testator executed informal Will - Turns on own facts
Legislation:
Wills Act 1970 (WA), s 34
Result:
Grant of probate of formal Will
Category: B
(Page 3)
Representation:
Counsel:
First Plaintiff : Mr J C Curthoys
Second Plaintiff : Mr J C Curthoys
First Defendant : Dr J J Hockley
Second Defendant : Dr J J Hockley
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Solicitors:
First Plaintiff : Slee Anderson & Pidgeon
Second Plaintiff : Slee Anderson & Pidgeon
First Defendant : Edwin Abdo & Associates
Second Defendant : Edwin Abdo & Associates
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 4)
1 BLAXELL J: The plaintiffs are the executors named in a formal Will executed on 8 August 2001 by Edward McDonald Myles (the deceased) who died on 21 September 2003. They claim that the Court shall "decree probate of the contents of the Will in solemn form of law".
2 The first defendant is the widow of the deceased and she counterclaims that his last Will and testament was an informal Will dated 15 August 2003 which was signed by him in her presence but not witnessed. She seeks an order pursuant to Part X of the Wills Act 1970 (WA) pronouncing the force and validity of that informal Will.
3 The remaining defendants have been joined to the proceedings by reason of each of them being a beneficiary named in one or other of the competing Wills.
The relevant background
4 The deceased and the first defendant were married on 27 December 1973 and did not produce any children. However, each of them had a previous marriage, and also had five children (or in the deceased's case, five surviving children) from that first marriage.
5 The deceased's first wife died of a terminal illness in 1970, and prior to then the first defendant assisted in his home with domestic chores. That assistance continued after the first wife's death, and the two of them then developed a relationship which led to their marriage.
6 In 1975 the deceased and the first defendant purchased the house property at 990 Geographe Bay Road, Busselton, as joint tenants, and they resided there until the deceased's death. On 12 June 2000 the joint tenancy in the Geographe Bay Road property was changed to a tenancy in common. Although this change was effected by the first defendant signing a document at the request of the deceased, it is her evidence that she was not aware at that time of what she was signing.
7 At all material times the deceased conducted a fuel distribution business in the south-west which he successfully built up during the period of his marriage to the first defendant. Over time, the control of this business was passed to his son Barry, and he eventually ceased to be an active participant by reason of poor health during his latter years.
8 During those latter years there were disagreements within the family as to the deceased's proposals for the ultimate disposition of his estate. In that regard it is the unchallenged evidence of the first defendant that she
(Page 5)
- argued with Barry in the presence of the deceased about whether she "was going to be left a pauper" (T74). It is also her evidence that the deceased was not a "little saint", that he changed his testamentary intentions from time to time, and that with the assistance of others, he made a total of six successive Wills (T72).
9 On 8 August 2001 the deceased executed the formal Will the subject of the plaintiffs' present claim for probate. That Will gave to the first defendant a life interest in respect of the deceased's share in the property at 990 Geographe Bay Road, Busselton, together with the right to use the deceased's motor vehicle rent-free "for as long as she wishes". The Will also provided her with a pension of $1700 per month (indexed in accordance with CPI). There were particular bequests to one son and four grandchildren, and the residuary beneficiaries of the estate were to be such of the deceased's great-grandchildren (from his first marriage) who are living at the date of death of the first defendant and who reach the age of 21 years.
10 Approximately 2 years later, on 11 August 2003, the deceased and the first defendant entered into a contract to sell 990 Geographe Bay Road, Busselton for the sum of $520,000 with settlement to occur on 1 October 2003. On 28 August 2003 the first defendant contracted to purchase another house property at 7 Trident Close, Busselton, for the sum of $215,000, with settlement of that purchase to also occur on 1 October 2003. At that time it was the intention of both the deceased and the first defendant that they would reside together at the Trident Close property following settlement on 1 October 2003.
11 The document that the first defendant claims is the deceased's last Will and testament ("the informal Will") is dated 15 August 2003. Although it is the first defendant's evidence-in-chief that the informal Will was executed in her presence on that date, she later changed her evidence to say that it was executed on 12 September 2003.
12 The informal Will was typed by the first defendant, is roughly drafted, and (subject to any issue of construction) appears to include the following provisions:
• The first defendant is appointed "to carry out the instructions I have given her".
• Certain alterations to the house at 7 Trident Close are "to be completed" and paid for from the deceased's share of the proceeds of 990 Geographe Bay Road "which we have now sold".
(Page 6)
- • The alterations to be paid for are the "conversion from electricity to gas by Chris Hill, $6,392", the raising of the carport to accommodate the deceased's van, and the paving of the driveway.
• The deceased's van "is to go to Lucy May Miller" (the first defendant's daughter).
• The first defendant is to "distribute the moneys I have allotted to pay those of my family that haven't received their ten thousand dollars" (subject to any issue as to the proper construction, the relevant family members then seem to be named).
13 The first defendant has testified that prior to execution she wrote on the typed document those portions of the date that are "15" and "August" as well as the word "signed". The only other handwritten portion of the Will is the signature ("E Miles").
14 It is relevant to note that the first defendant similarly asserts the validity of another document said to have been signed by the deceased in her presence on 15 September 2003. This handwritten document purports to be a vehicle transfer form transferring ownership of the deceased's van to the first defendant's daughter, Lucy Miller.
15 The deceased died on 21 September 2003 at the age of 81 years. The validity of the formal Will dated 8 August 2001 at the time of execution is not in issue. The parties agree that the only substantial issue that needs to be determined is whether or not the deceased subsequently executed the informal Will dated 15 August 2003.
The evidence as to the informal Will
16 The first defendant's evidence-in-chief as to the circumstances surrounding the informal Will (as set out in her witness statement) is as follows:
"Events leading up to and on 15 August 2003
19. Ned was dissatisfied with Barry over business matters.
20. Ned wanted to make sure that Barry paid the grandchildren out of the trust. Ned had paid $2000.00 to Barry Myles junior, $10,000.00 to Dianne, Kevin's daughter and $10,000.00 to Alan Myles, Barry's son.
21. Ned asked me to type up a Will. I wrote down what Ned had told me. I gave the note to Ned and he read it over. Ned agreed and said, 'That will be okay'.
(Page 7)
- 22. I then typed up the Will and gave it to Ned. He said I will sign it later.
23. Lucy was present when Ned read the Will aloud. Ned replied 'that will be okay'.
24. At this time friends of ours Jack and Estelle Rynvis arrived.
25. Ned would not talk business to friends or in the presence of friends. Mr and Mrs Rynvis were friends from camping holidays and members of the Motor Home Club.
26. After Mr and Mrs Rynvis had left Ned signed the Will in my presence.
27. …
28. I wrote the letter '15' and the month 'August' on the bottom of the Will and I also wrote the words 'signed'.
29. The Will was signed by Ned, Edward McDonald Myles on 15 August 2003 in my presence. He signed the Will on the table top next to his chair and he used a different coloured blue biro to the one that I had used.
30. The Will was not witnessed …"
17 This evidence is corroborated in part by Lucy Miller. According to her, she was present at 990 Geographe Bay Road, Busselton on a date she cannot remember when "a Will that my mother had typed up for Ned was raised in conversation by Ned." The deceased then read the Will out aloud and said, "That'll be okay." Ms Miller was not present when the Will was signed.
18 The "note" referred to in par 21 of the first defendant's witness statement was tendered in evidence and is Exh 6. The first defendant's evidence during cross-examination is to the effect that the note was not prepared on a single occasion but was written out on different days as and when the deceased chose to express his testamentary wishes (T60). I also understand her to say that once the note was completed, another "couple of days" elapsed before the Will itself was typed by her and then signed by the deceased (T65).
(Page 8)
19 It is significant that the note (Exh 6) provided for the alterations to the house at 7 Trident Close, Busselton, but did not refer to the cost of converting the house from electricity to gas. When the informal Will was made "a couple of days" later, it specified that there was to be "conversion from electricity to gas by Chris Hill, $6,392".
20 Chris Hill was the gasfitter asked to quote for the conversion, and he has testified that his quotation in the sum of $6,392 was not prepared until the date of the same, namely 4 September 2003. Mr Hill's evidence was not previously the subject of a witness statement, and accordingly the plaintiffs required leave before it could be adduced. That leave was granted, but on condition that the trial be adjourned to provide the first defendant with a reasonable opportunity of answering Mr Hill's assertion.
21 When the trial resumed, the plaintiff was recalled to explain how the figure of $6,392 (which had not come into existence until 4 September 2003) came to be included in the informal Will typed by her on 15 August 2003. Her explanation was as follows:
"Can you explain to the court what, if any, reason for the discrepancy that you can give?---Yes. If you had been in my position, your Honour, you would've found out how it came about, that I made a mistake, but my husband was very sick and I was packing to shift and I hadn't been well myself and I had a bad leg. I had that many things on my mind and I just put the date down and I though it was the right one, but now I had a friend came to visit me the last day there and she recalled that it was 12 September not - that I should've put down on the page.
…
BLAXELL J: … Your evidence is that you believe you put the wrong date in the will. Is that what you are saying?---That's right, your Honour. It was easy enough done because I was at – had so many things to do and I had just lost a son-in-law as well and everything sort of was worrying me and I didn't have much chance of doing things. I just did it in a hurry."
22 In assessing the first defendant's evidence on this issue it is relevant to note the undisputed fact that the deceased was an in-patient at St John of God Hospital Bunbury between 5 and 12 September 2003. It is also relevant to note that the first defendant has testified that at the time of the events giving rise to the informal Will she was nursing the deceased and
(Page 9)
- providing him with his medications (T60-61). I will comment on these aspects of her evidence shortly.
The evidence as to the signature on the informal Will
23 The first defendant is the only direct witness who can say that the signature on the informal Will is that of the deceased. As her evidence of this fact is challenged, handwriting experts have been called by the parties, and they have made comparisons with other signatures of the deceased.
24 Various documents bearing signatures have been tendered, and in some instances it is agreed that a particular signature is that of the deceased. In other instances there is an issue as to whether or not a signature is that of the deceased. Some documents also bear the signature of the first defendant, and to the lay eye her signature appears to be remarkably similar to that of the deceased.
25 Some of the documents provided for comparative purposes were fuel dockets (pages 41-46 of the agreed bundle of documents) and there is conflicting evidence from the first defendant herself as to whether or not these were signed by the deceased. Her initial evidence was that all of these signatures were the deceased's, she later said that one of them was hers, and her final position was that all of them were hers.
26 Although I have the benefit of expert opinion on the issue, it is my view as a layman that all but two of the relevant signatures are reasonably similar. The two signatures that stand out as being significantly different from the others are those said to have been made by the deceased on the informal Will and on the vehicle transfer document dated 15 September 2003 (page 12 of the agreed bundle). The most noticeable characteristic of those two signatures is that the first stroke of the letter "M" is upwards, whereas in all other signatures that same stroke is downwards.
27 The two handwriting experts, John Gregory (called by the first defendant), and John Horton (called by the plaintiffs) both have a background of forensic document examination with the Western Australian Police Service. Both experts agree that the signatures on the informal Will and the vehicle transfer form were written by the same person (which fact is readily apparent to the lay eye). However, Mr Horton is of the firm opinion that that person was not the deceased, whereas Mr Gregory "could not eliminate from consideration the possibility" that the two signatures were those of the deceased.
(Page 10)
- Mr Horton also "think[s] there's a probability" that the first defendant wrote those two signatures (T117).
Findings of fact
28 My finding as to whether or not the deceased signed the informal Will largely depends upon my assessment of the first defendant's credibility as a witness. In making that assessment I pay due regard to the first defendant's advanced age of 88 years, and to the effect that this has had upon her faculties and ability to recollect relevant events. Nevertheless, the execution of the informal Will was a very significant event for the first defendant, and it is most unlikely that she would be mistaken about the surrounding circumstances.
29 It is also relevant to the first defendant's credibility that she is obviously quite bitter about events within the family prior to the deceased's death. These include the fact that the bulk of the deceased's estate was transferred inter vivos to members of his first family (and in particular his son Barry), and that she did not know about the formal Will at the time it was being executed. (According to her, if she had known: "Brother, there'd have been some changes" – T74). The first defendant has described the other members of the family as "wanting the whole lot" and to leave her "broke, with nothing" (T79-80). The first defendant is also upset about the circumstances in which the joint tenancy in 990 Geographe Bay Road, Busselton, was changed to a tenancy in common, and she believes that her late husband "put one over" her (T73).
30 It is against this background that the first defendant has given what I consider to be an unconvincing account of the circumstances surrounding the preparation and execution of the informal Will. In this regard, I was particularly unimpressed by the change in her evidence as to the date on which the informal Will was executed.
31 To my mind, and given the significant property transactions occurring at the time, it is scarcely credible that the first defendant would mistakenly write in the date "15th August" instead of "12th September". The wording of the document is also suspicious in that it seems to be written in hindsight and with the knowledge that the deceased would not be around to distribute his share of the proceeds of 990 Geographe Bay Road as he saw fit.
32 Furthermore, it was inherent in the first defendant's account of the preparation of the handwritten note (Exh 6) and the typing of the informal Will, that she was at that time nursing the deceased in their home. By
(Page 11)
- reference to other events said to be happening at the time, it was her evidence that:
"I knew when to give him his medications and what times, and we took them." (T61).
34 There are other aspects of the first defendant's testimony that are similarly unsatisfactory, including her conflicting evidence when identifying the signatures on the fuel dockets. In the end, I have come to the conclusion that the first defendant's evidence is not accurate and cannot be relied upon.
35 Although Lucy Miller corroborates the first defendant's evidence that the deceased approved the contents of the informal Will, she does not say that she saw it signed. The critical issue is the authorship of the signature, and to my mind it is clear from the appearance of the signature to the lay eye (when compared to verified signatures) that it cannot be that of the deceased.
36 Although Mr Horton is of the opinion that the signature on the informal Will was probably made by the first defendant, I am not prepared to make that finding. In my view, the signature is so different from those of both the deceased and the first defendant that it was probably made by another person altogether.
Conclusion
37 For these reasons I have come to the conclusion that the informal Will was not a document executed by the deceased. It follows that the first defendant's counterclaim should be dismissed, and that there should be a grant of probate in solemn form of the Will of the deceased dated 8 August 2001.
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