IMO the estate of Bruce William Standish (deceased)
[2018] VSC 629
•19 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
IN THE MATTER of the estate of Bruce William Standish (deceased)
S CAV 2018 00028
| ZALAN GLEN | Caveator |
S PRB 2018 04311
| GRAEME BENJAMIN STANDISH | First Plaintiff |
| GWENETH ALICE STEED | Second Plaintiff |
| v | |
| ZALAN GLEN | Defendant |
S PRB 2018 05186
| ZALAN GLEN | Plaintiff |
| v | |
| GRAEME BENJAMIN STANDISH | First Defendant |
| GWENETH ALICE STEED | Second Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 August 2018 |
DATE OF RULING: | 19 October 2018 |
CASE MAY BE CITED AS: | IMO the estate of Bruce William Standish (deceased) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 629 Revised 22 October 2018 |
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WILLS AND ESTATES – Application for summary judgment – Related proceedings – Wills Act 1997 ss 7, 9 – Civil Procedure Act 2010 s 63 – Supreme Court (General Civil Procedure) Rules 2015 rr 22.03, 22.16 – Informal will – Whether deceased intended a document to be his will – Re Lynch [2016] VSC 758 – Estate of Elzow [2018] VSC 498.
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APPEARANCES: | Counsel | Solicitors |
| For the First and Second Plaintiffs | Mr S P Newton | Boothby & Boothby |
| For the Defendant/Caveator | Mr M C McKenzie | Prior Law |
HER HONOUR:
Mr Bruce William Standish was 79 years old and in hospital. Christmas was fast approaching. On 16 December 2017 he executed a formal will. On 21 December 2017, Mr Standish executed a codicil to the formal will. The formal will and codicil were prepared by solicitors Boothby & Boothby.[1] On 22 December 2017, a different solicitor, Mr Beecher, attended the deceased in hospital to take instructions for an enduring power of attorney, which was executed later that day. On 23 December 2017, Mr Beecher attended the deceased and took instructions, which were audio recorded on his mobile telephone, regarding a new will. Mr Standish (‘the deceased’) died on New Year’s Day.
[1]The back page of the will is marked with the firm’s name and a solicitor to the firm witnessed the codicil.
This ruling concerns applications for summary dismissal in three related proceedings. The issue for determination is whether or not there is any real prospect of the audio recording being admitted to probate as an informal will.
Summary
I will dismiss the application for summary judgment in each of the three proceedings.
Background
The application for summary judgment is made by Graeme Standish and Gweneth Steed (‘the applicants’) who are siblings of the deceased. There are three related proceedings and the application is made in each proceeding. The application for summary judgment is opposed by Mr Zalan Glen (‘the respondent’).
On 23 February 2018, the respondent filed a caveat in respect of the deceased’s estate seeking that nothing be done in respect of the estate without first giving him notice.[2]
[2]Proceeding S CAV 2018 00028.
On 16 March 2018, the applicants filed an originating motion seeking a grant of probate in respect of the formal will and codicil, and to be named as executors.[3]
[3]Proceeding S PRB 2018 04311.
On 3 April 2018, the respondent filed an originating motion seeking a grant of probate in respect of the audio recording as an informal will and to be named as an executor.
On 26 April 2018, Mr Philip Ross, who was named as an executor in both the formal will and the audio recording, signed a renunciation of probate.[4]
[4]Exhibit ‘A’ to the affidavit of Rosemary Clare Prior, solicitor, sworn on 27 April 2018.
On 31 May 2018, the applicants filed summons in all three proceedings seeking summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (‘the CPA’) or rr 22.03 or 22.16 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).
Evidence
I have considered the affidavit evidence filed in respect of the three proceedings. The substantive affidavits are as follows.
The affidavits filed on behalf by the applicants’ solicitors are as follows:
(a) affidavit sworn by both applicants on 13 March 2018;
(b) affidavit sworn by one applicant, Mr Graeme Standish, on 29 May 2018; and
(c) affidavit sworn by Mr David Tonkin, solicitor, on 24 August 2018.
The affidavits filed on behalf by the respondent’s solicitors are as follows:
(a) affidavits affirmed by the respondent on 23 March 2018 (‘the first Glen affidavit’), 17 May 2018 (‘the second Glen affidavit’) and 21 June 2018 (‘the third Glen affidavit’);
(b) affidavit sworn by Rosemary Clare Prior, solicitor, on 27 April 2018;
(c) affidavit affirmed by Francis Daniel Beecher, solicitor, on 9 May 2018 (‘the Beecher affidavit’); and
(d) affidavit affirmed by Judy de Groot on 25 July 2018.
Agreed Facts and Issues
There are a number of issues which are not in dispute between the parties.
There are no allegations of duress or undue influence in respect of the formal will and codicil.
For the purpose of s 9 of the Wills Act 1997 (Vic) (‘the Act’), the audio recording may be considered a ‘document’.
There is no dispute about the deceased’s testamentary capacity.
The following facts were not in dispute between the parties:
(a) the audio recording is of a conversation between the deceased and solicitor Mr Beecher;[5]
[5]A disc of the audio recording forms Exhibit ‘B1’ to the first Glen affidavit.
(b) the audio recording is incomplete because the battery ran out;
(c) the nineteen page transcript in evidence[6] is a transcription of the audio recording (‘the transcript’); and
(d) that Mr Beecher drafted a written will following the conversation above with the deceased.[7]
[6]A transcript of the audio recording forms Exhibit ‘B2’ to the first Glen affidavit.
[7]The draft will forms Exhibit ‘B3’ to the first Glen affidavit.
Should the proceedings be summarily dismissed?
There is no dispute between the parties as to the principles applicable to a summary judgment application. Section 63 of the CPA provides:
63 Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c)on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
The Court of Appeal outlined the following tests for summary judgment in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd:[8]
a)the test for summary judgment under s 63 of the [CPA] is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[9]
[8](2013) 42 VR 27.
[9]Ibid 40 [35].
Rule 22.03 of the Rules states as follows:
Application by plaintiff for judgment
An application under section 61 of the Civil Procedure Act 2010 by a plaintiff in a civil proceeding for summary judgment in the proceeding shall be made in accordance with this Part of this Order.
Rule 22.16 of the Rules states as follows:
Application by defendant for judgment
An application under section 62 of the Civil Procedure Act 2010 by a defendant in a civil proceeding for summary judgment in the proceeding shall be made in accordance with this Part of this Order.
The question is whether there is any real prospect of the respondent establishing that the deceased intended the audio recording to reflect his final testamentary intentions. That is, whether the deceased intended it to be his final will.
Applicants’ submissions
The applicants say the audio recording cannot have represented the final testamentary intentions of the deceased for the following reasons.
Firstly, it is an audio recording. The applicants say there was no opportunity for the deceased to check it and consider the seriousness of the act he was said to be performing, which disposes of his estate comprising of assets of approximately $1.7 million and revokes the recently made formal will. There was no attempt to formalise the will and formalities should not be relegated.
Secondly, the audio recording is an incomplete record. The battery ran out before the conversation concluded. The applicants say the fact that Mr Beecher deposes to the subsequent conversation does not cure this.[10]
[10]Beecher affidavit, [7].
Thirdly, the audio recording is uncertain as to the deceased’s testamentary intentions. Reference is made to parts of the recording being musings on the way the estate may be administered. The applicants say the nature of the trust is completely unclear. It is uncertain as to whether the very significant gifts that the deceased was intending to make to his siblings under the formally executed will were finally determined.
Fourthly, the audio recording is unclear. There are parts of it which are indistinct and could not be transcribed. This is the first time that the deceased was discussing his testamentary intentions with this solicitor. It is unclear that the deceased understood the significance of what he was being asked by the solicitor when he was asked if he wanted it recorded that they were making his final will and he responded ‘Yeah, yes I would.’ As the testator was aware of the formalities of executing a will, it is less likely he intended the recording to be his final document. His brief response does not indicate that understanding. The applicants say that the deceased could have been asked other questions to clarify his final testamentary intention but was not.
Fifthly, the document prepared by Mr Beecher subsequent to meeting with the deceased is marked ‘draft’. It could have been written out and executed on the day he met with the deceased if it reflected his final testamentary intentions.
Respondent’s submissions
The respondent says the issue here is the deceased’s intention, not how the document should be construed. The critical element is:
Does the evidence satisfy the Court that the deceased, by some act or words, demonstrated that it was his or her then intention that the document should, without more on his or her part, operate as his or her will?[11]
[11]Oreski v Ikac [2007] WASC 195, [105] (Barker J) citing Re Estate of Perriman (decd) [2003] WASC 191.
The respondent relies upon the following part of the audio recording:
Mr Beecher: If you were to expire before I got this paper in front of you, would you want this record that we’re making today to be your will.
The deceased: Yeah, yes I would. Yeah.[12]
[12]Transcript, 18.
The respondent says that if the Court accepts this exchange at face value then it evidences the deceased’s intention.
The respondent says that the deceased having arranged for a solicitor to attend to take instructions supports the fact he wanted to change his will. He understood what a will was about. The audio recording includes discussion about the formal will and it ceasing to apply when the new will is in operation.
The respondent says that instructions for a will when produced in a document and that document is treated as a will can become an informal will. The intention being that should the later will not be generated prior to death then the instructions constitute the will of the deceased.
Analysis
I adopt the principles outlined by McMillan J in Re Lynch.[13]
[13][2016] VSC 758, [10]–[20], [25], [26] (citations omitted).
Applicable principles
Section 9 of the Act allows the Court to admit to probate a will that has not been executed in conformity with s 7 of the Act. Ordinarily, for there to be a valid will, it must be signed by the testator in the presence of two witnesses.
However, s 9 of the Act allows a will that fails to satisfy the requisite formalities to be admitted to probate as long as certain conditions are met:
9When may the Court dispense with requirements for execution or revocation?
(1)The Supreme Court may admit to probate as the will of a deceased person—
(a)a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b)a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act—
if the Court is satisfied that that person intended the document to be his or her will.
…
(3)In making a decision under subsection (1) or (2) the Court may have regard to—
(a)any evidence relating to the manner in which the document was executed; and
(b)any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator
Section 9 of the Act is a remedial provision, enabling the Court to dispense with the formal requirements for the execution of a will when admitting a will to probate. Ordinary principles of statutory construction dictate that it should be given a broad construction. However, its remedial nature must be tempered by an acknowledgement that the legislature is not to be taken to have unduly relegated the importance of the formalities of execution.
In order to admit an informal will to probate under s 9 of the Act, the Court needs to be satisfied that the following criteria have been established on the balance of probabilities:
(a) there must be a ‘document’;
(b)the document must express or record the testamentary intentions of the deceased; and
(c)that document must have been intended by the deceased to be his or her will.
The requirements that there must be a document and that the document must express or record the testamentary intentions of the deceased are met in this proceeding.
The issue in dispute is whether the document prepared by the deceased on or around 19 January 2007 was intended by the deceased to be his will. In considering whether the deceased intended the document to be his will, the Court must be satisfied that the deceased, by some words or act, demonstrated an intention that, without any alteration or reservation, the document should have effect as his will. It is clear that the person must also have intended the document to be a legally operative act that disposes of the person’s property upon his or her death rather than a provisional, preliminary or tentative proposal.
The difference between the deceased’s testamentary intentions and the intention that a specific document would constitute his or her will are explained as follows:
The cases indicate that, in making an application under s 9 of the Act, an applicant must put forward persuasive proof that the will was intended by the deceased to be his or her final will. It is not enough to show that a document sets out the deceased’s testamentary intentions or that it is consistent with other statements the deceased made about what he or she wanted to happen to his or her property after death. Rather the applicant must prove, on the balance of probabilities, that a deceased wanted that particular document to be his or her final will and did not want to make any changes to it.
What is required to satisfy the third element was also considered by Powell J in Re Springfield:
… the ultimate inquiry remains, whether the document itself, the circumstances regarding its contents … and other relevant circumstances … lead to the conclusion that the relevant deceased intended the subject document to constitute his will …
… 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 relevant deceased intended the subject document to be his will.
… where the subject document is either wholly written out, or, being on a will form, has been filled in, in the handwriting of the relevant deceased, and in cases where the subject document bears the signature of, or some mark made by, the relevant deceased indicating his intention to adopt it as his own, I would have little difficulty in finding myself satisfied that it was intended by the relevant deceased that the subject document should constitute his will. Where, however, the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased, was, in truth, no more than ‘instructions’, or a note of ‘instructions’, for a will … I would, I believe, find it very difficult, indeed, to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will.
The intention of the deceased is a matter of fact and each case depends on its own facts and circumstances. The fact that a deceased has read and signed a document is not determinative of the issue. An application under s 9 of the Act is assessed by reference to the requisite document, with the inquiry directed towards whether the deceased intended the document to have effect as a testamentary document.
The Court may receive direct evidence of statements made by a testator and what the testator said and did and may also receive evidence surrounding the making of the ‘will’. In Re Becroft, Harper J held that statements of a testator are admissible as evidence of his or her intentions:
In determining whether the deceased intended the document to have testamentary effect, the court is not restricted to the document itself but may have regard, in addition, to evidence of what the deceased did and said. Evidence of subsequent statements by the deceased is admissible for the purposes of establishing a testamentary intention.
In Hatsatouris v Hatsatouris, the NSW Court of Appeal observed that it would be necessary for a court to be satisfied that the deceased possessed the relevant intention, ‘either, at the time of the subject document being brought into being, or, at some later time’.
…
The application of s 9 of the Act and the standard of proof required was set out by Habersberger J in Fast v Rockman:
The person seeking to propound an informal will must establish the requisite elements on a balance of probabilities. Furthermore, because of the nature of probate, the consequences of any findings that may be made and the inability to hear any evidence from the deceased as to his actual intentions, the Court needs to evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw principle.[14]
When an informal will or codicil is to be admitted, the Briginshaw v Briginshaw principle dictates that reasonable satisfaction should not be attained by ‘inexact proofs, indefinite testimony, or indirect inferences’.[15]
[14]Fast v Rockman [2013] VSC 18, [48] (citations omitted).
[15]Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J). Note that this standard of proof is set out in s 140 of the Evidence Act 2008.
I adopt the principles recently summarised by Lyons J in Estate of Elzow.[16]
[16][2018] VSC 498, [18]–[27]; see also Re Lynch [2016] VSC 758, [10]–[26].
The parties agree that the third element is the only real element in dispute in this proceeding. It is a question of fact: the Court must determine whether all the circumstances lead to the conclusion that the deceased intended the subject document to constitute his or her will. As noted in s 9(3) of the Act, the Court may have regard to any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
However, as a general rule, the greater the departure from the requirements of s 7 of the Act, the more difficult it will be to satisfy the Court that the deceased intended the relevant document to be his or her will.[17] This is because courts have noted that, notwithstanding that s 9 of the Act is remedial, care must be taken to ensure that that the statutory formalities in s 7 of the Act are not unduly relegated in importance.[18]
[17]Re Springfield (1991) 23 NSWLR 535, 539–40.
[18]See, eg, Estate of Peter Brock [2007] VSC 415, [20] (‘Brock’).
While a party seeking to admit an informal will to probate under s 9 of the Act must establish the requisite elements on the balance of probabilities, the Court needs to evaluate such evidence with great care in accordance with the Briginshaw[19] principles, namely that reasonable satisfaction should not be ascertained by ‘inexact proofs, indefinite testimony or indirect references’.[20]
[19]Briginshaw v Briginshaw (1938) 60 CLR 336.
[20]See, eg, Re Estate of Robertson [2018] VSC 373, [26]–[30].
There has been debate in the authorities about whether a relevant document can be intended by the deceased to be his or her will if:
(1) the deceased never saw or read that document; and/or
(2)that document is an unsigned will which the deceased intended to execute but did not do so before death.
The argument regarding the second issue is that, if the deceased knew the will needed to be executed to have legal effect, how can it be intended to be his or her will if it was not in fact signed? This argument arises because many authorities have referred to the third element of s 9 as requiring that the relevant document ‘should, without more on his or her part, operate as his or her will’ (emphasis added).[21]
[21]As noted by Habersberger J in Fast v Rockman [2013] VSC 18, [70] (‘Fast’), the genesis of this phrase and its narrow application appears to be the unreported decision of Powell J of the New South Wales Supreme Court in Application of Kencalco; In the Estate of Buharoff (Unreported, Supreme Court of New South Wales, Powell J, 23 October 1991). See also the judgment of Powell JA in Hatsatouris v Hatsatouris [2001] NSWCA 408, [56].
Both of these issues were the subject of a detailed and thorough review by Habersberger J in Fast.[22] After surveying the relevant authorities, Habersberger J concluded, in summary, that:
[22]Fast [2013] VSC 18, [56]−[118].
(1)there is no absolute rule that a document must have been seen or read to a person before a court can be satisfied that the person intended the document to be his or her will; it depends on the state of the evidence;[23]
[23]Ibid [66].
(2)the words ‘without more’ merely emphasise that the Court ‘must be satisfied that the deceased really did intend the terms of the document – “without any alteration or reservation” – to be the manner in which his or her property was to be disposed of upon his or her death’;[24] and
[24]Ibid [114] quoting Dolan v Dolan [2007] WASC 249, [22].
(3)the fact that a deceased knew or was likely to have been aware of the need to execute the will but failed to do so is only one of the factual circumstances which a court will take into account in assessing what ultimately is a question of fact as to whether the deceased intended the document to be his or her will.[25]
[25]Ibid [113].
In reaching the conclusions set out in subparagraphs (2) and (3) above, Habersberger J said:
I accept that a deceased’s awareness of the formalities required for a will may bear on a court’s assessment as to whether he or she intended an informal document to be his or her will. Where a deceased is aware of those formalities and had an opportunity for the will to be executed in conformity with those requirements but failed to do so, that failure tends to point against the conclusion that the deceased intended the document to be his or her will. Conversely, a lack of full familiarity or awareness with those formalities may allow a court more readily to infer that the deceased intended the informal document to have legal effect according to its terms after his or her death. Further, if a deceased had failed to sign a will or comply with the formalities not by virtue of inadvertence or “act of God” beyond his or her control, but as a result of a conscious decision not to do so, including a reluctance to do so, the court is likely to decline to admit the documents to probate.[26]
[26]Ibid [112] citing Brock [2007] VSC 415, [34]–[38], [40]; Estate of Dunn [2002] NSWSC 900 (‘Dunn’); Kedzier v Postle [2002] NSWSC 875 (‘Kedzier’); Re Masters (1994) 33 NSWLR 446, 456.
I adopt his Honour’s analysis of these legal principles, which has also been applied in other cases since that time.[27]
[27]See, eg, Estate of Laura Angius [2013] NSWSC 1895, [266]; Lindsay v McGrath [2016] 2 Qd 160, 161–2 (Boddice J; Gotterson JA agreeing); Estate of Drummond [2017] NSWSC 856, [21]; Public Trustee v Bott [2017] TASSC 43, [37].
In Fast, there were three relevant wills:
(1) an executed will dated 1 April 2010;
(2)an unsigned will prepared in mid-August 2010 which the deceased had read and approved but which had not been signed because it had been prepared on the basis that the deceased’s divorce would be absolute and that event had not taken place (the ‘first unexecuted will’); and
(3)an unsigned will prepared in late August 2010 after the divorce had become absolute with minor changes relating to whether the trustees should agree unanimously or by majority. The deceased stated that he would leave the choice about this to two advisers, Mr Fast and Mr Brown, as he did not consider it affected the gifts made under the will. However, the deceased did not see or execute this will before his death (the ‘second unexecuted will’).
Habersberger J admitted to probate the second unexecuted will. He concluded on the facts before him, in a passage which appears particularly relevant to the determination of the issues in this proceeding, as follows:
Here, it was clear that Mr Rockman knew that for a document to have legal effect as a will, it had to be signed. But, with respect to the second unexecuted will, it does not follow, in my opinion, that it could not be admitted to probate for want of his signature. This was not a case where the evidence raised doubts about whether Mr Rockman wanted to think further about the dispositive clauses of his will or where the evidence did not disclose any act or words by the deceased “adopting” the document as his intended will, unlike cases such as Re Estate of Perriman (Dec), Estate of Peter Brock, Oreski v Ikac and Prucha v Standing. Nor was it a case where Mr Rockman was making a mirror will with the intention that both of the mirror wills became operative at the same time as in Bell v Crewes. This was also not a case where Mr Rockman, armed with the awareness that a document must be executed in accordance with legislative requirements to have operative effect as a will, had exhibited reluctance to do so when given an opportunity. Rather, it was a case where he was not presented with an opportunity to sign the document and, therefore, to implement his intention of doing so. Death intervened before he could do so.[28]
[28]Fast [2013] VSC 18, [117].
The powers of summary judgment must be exercised with caution.
I find that the applicants have not established that the respondent has no real prospect of success in having the audio recording admitted to probate.
Firstly, such a finding would fly in the face of the deceased’s instructions to his solicitor, referred to above, that he wanted the recording to operate as his will if he died (before it was committed to writing).
Having already recently made a formal will, the deceased was clearly aware of the formalities of making a will. There is a discussion about the making of a previous will, which may be the formal will. The deceased refers to it being prepared by Boothby and says that is his brother’s solicitor. The deceased discusses his assets and control of them. Mr Beecher then expresses concern that the deceased’s brother or sister may contest the will.[29] The transcript records the following discussion, which is prior to the one above.
[29]Transcript, 14–15.
The deceased: … the last will that was done was extremely different, and it mainly, a lot of it: one third, National Health Association; one third, my sister; and one third, my brother. That was the last will that one done by Boothby.
Mr Beecher: Right.
The deceased: And that was what he was thinking was the wisest thing to do, and I went along with that, only because I didn’t want to argue with him at that time.
Mr Beecher: Who thought it was the best way?
The deceased: He thought that was the best thing to do then.
Mr Beecher: Who, Boothby or your brother?
The deceased: My brother….
Mr Beecher: … you did sign it, because you just wanted to get along, is that what you’re saying?
The deceased: Yeah.
Mr Beecher: All right, how long ago was that?
The deceased: Boothby did it over two months ago. It was ages before we actually – my brother actually picked up a copy only about one or two weeks ago.
Mr Beecher: Right.
The deceased: Not long ago at all.
Mr Beecher: All right.
The deceased: Yeah. It took him a long time to do it, but the will, it got done.[30]
[30]Transcript, 16–17.
There is then discussion about some of the deceased’s assets. The transcript indicates the deceased is aware that Mr Beecher is recording the conversation.
Mr Beecher: … I should ask you, given that it’s going to take a little while to type this up for your, and we all hope that you’ve got another decade or two up your sleeve. But if for example, I mean, it’s just best practice for me to ask you for the record.
The deceased: Yeah, of course.
Mr Beecher: If you were to expire before I got this paper in front of you, would you want this record that we’re making today to be your will?
The deceased: Yeah, yes I would. Yeah.
Mr Beecher: All right…[31]
[31]Transcript, 18
How this discussion is ultimately construed is a matter for trial. For current purposes, it is suffice to establish that the respondent’s submission that the audio recording reflects the deceased’s final testamentary intentions is not a fanciful one.
Secondly, the document may express the deceased’s final testamentary intentions although he has not read a written version of it. I refer to the principles outlined above. In the recent case of Estate of Elzow,[32] Lyons J allowed a will to be admitted to probate in circumstances where the solicitor prepared it and discussed it with the deceased over the telephone, but it was not signed or seen by the deceased prior to her death a short time later.
[32][2018] VSC 498.
Thirdly, having read the transcript of the audio recording, I do not consider the applicants have established that there is no real prospect of establishing that it expresses the deceased’s testamentary intentions. I accept their submissions that there are vagaries in it. However, the testamentary intentions need not be expressed perfectly for the document to be admitted to probate as an informal will. Wills are sometimes vague and uncertain. Section 9 of the Act does not demand perfection. As discussed above, the document must record testamentary intentions and be intended by the deceased to be their will. The further construction of the document is more appropriately ventilated at trial.
Fourthly, Mr Beecher is available to give evidence about the audio recording and his discussion with the deceased. The battery on the recording ran out. As is evident from the transcript, Mr Beecher had already said that he did not think they would be going for much longer.[33] Mr Beecher provides evidence as to the conclusion of the conversation with the deceased.[34] Mr Beecher may or may not be able to give evidence as to the indistinct parts of the transcript. These are matters appropriately ventilated at trial.
[33]Transcript, 18.
[34]Beecher affidavit, [7].
Fifthly, the document prepared by Mr Beecher is titled ‘Last Will and Testament’ and has ‘DRAFT’ stamped on it. It bears the date 31 December 2017. That is a Sunday and the day before the death of the deceased. The document is not exhibited to Mr Beecher’s affidavit but rather Mr Glen’s affidavit. There is no direct evidence from Mr Beecher regarding this document. Any issues concerning this document are more appropriately ventilated at trial. There are procedures in place, such as Order 54 of the Rules, for the Court to provide direction in respect of wills.
Given the above, orders will be made dismissing the applications for summary judgment.
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