In re West Estate

[2024] TASSC 23

[2024] TASSC 23

COURT:	SUPREME COURT OF TASMANIA
CITATION:	In re West Estate [2024] TASSC 23
PARTIES:	WEST Grant Dean, In the Estate of (Deceased)
FILE NO:	365/2024
DELIVERED ON:	13 May 2024
DELIVERED AT:	Launceston
HEARING DATE:	8 May 2024
JUDGMENT OF:	Pearce J
CATCHWORDS:

Succession – Making of a will – Execution - Informal document intended to be will – No reasonable doubt maker intended document as will

Wills Act 2008, s 10

Aust Dig Succession [1064]

REPRESENTATION:

Counsel:

Applicant:  O Jenkins

Solicitors:

Applicant:  Rae and Partners

Judgment Number:	[2024] TASSC 23
Number of paragraphs:	11

Serial No 23/2024 File No 365/2024

MATTER OF THE ESTATE OF GRANT DEAN WEST (DECEASED)

REASONS FOR JUDGMENT PEARCE J
13 May 2024

1             Sonya West applied under the Wills Act 2008, s 10(1), for an order that a document constitutes a will of her late husband, Grant Dean West, even though the document was not executed in the manner required by the Act. At the conclusion of the hearing of the application I announced that I was satisfied that the document constituted a will of Mr West. These are my reasons.

2             Mr West died on 26 September 2023 aged 55. At the time of his death he was married to the applicant. They had been married for over 30 years. There were three children of the marriage who were, at the time of their father's death, respectively aged 30, 27 and 21.

3             To his wife's knowledge, Mr West had no other children and had not previously been married or involved in any other relationship which may be a significant relationship within the meaning of that term in the Relationships Act 2003, s 4. There was no evidence that Mr West ever made a will other than the document to which I will refer shortly. On 1 November 2023 Mrs West's solicitor placed an advertisement in the Law Society of Tasmania newsletter requesting advice from other law firms as to whether they held a will for Mr West, but there was no response. Enquiries were made with the Public Trustee and with TPT Wealth Ltd (formerly Tasmanian Perpetual Trustees Ltd). The latter is a trustee company through which wills were and are commonly made and held in Tasmania. Neither company had any record of making or holding a will for Mr West. It is a very small estate. The only asset of any substance is the house at Carrick in which Mr and Mrs West lived but which was registered in Mr West's name. The property is of modest value and is subject to two mortgages which secure the total sum of about $110,000. There is a liability for the funeral account of about $12,000 and a small credit card bill.

4             Mrs West's evidence consisted an affidavit sworn on January 2024 and some additional oral evidence. It may be summarised as follows. Her husband was diagnosed with brain cancer in March 2022. Surgery and chemotherapy did not halt the development of the disease. A decision was made to cease treatment in late June 2023. Mr and Ms West had already decided, as part of organising Mr West's affairs, to each make a will. In substance, they agreed to leave all of their property to the other, but, in the event that one predeceased, there would be a devise of $20,000 to each grandchild with the residue to be divided equally between the three children. Unfamiliar with the formal requirements for making a will, documents were prepared by Mrs West on the computer at home. They made an appointment with a justice of the peace and, on 8 June 2023, the two documents were both signed. Both are single page. The document signed by Mr West is entitled "Will and Testimony of Mr Grant West" and relevantly reads:

"Upon my death all my assets and belongings will go to my wife, Sonya Jean West. If my wife has passed before me then all my major assets such as my house and any vehicles are to be sold and $20,000 will be allocated to each of my grandchildren and the remainder of the monies will then be divided equally between my three children, Kodey Ryan West, Danieka Grace West and Mitchell Grant West. If I pass before my grandchildren turn 21 then their monies are to be put in a trust fund until their 21st birthday. All household contents can be sorted by my 3 children. Any monies in bank accounts will be used to pay for my funeral and the remainder divided equally between my 3 children.

…

2   No 23/2024

I am to be cremated and my ashes are to be spread into the water at the Ulverstone Surf
Club."

5            The document signed on the same day by Mrs West was in identical reciprocal terms except that she made a specific devise of her wedding and engagement rings to her daughter.

6             However, the documents were both signed in the presence of only a single witness, the justice of the peace, Janet Keeling. Mrs Keeling swore an affidavit in which she deposed that Mr and Mrs West made an appointment to see her in her capacity as justice of the peace. She had not previously met them. She confirmed their respective identities by their driver licences. Mr West and the witness Mrs Keeling, both signed and dated the document which was expressed as his will at the foot of the page. The same was done with the document signed by Mrs West.

7   The Wills Act, s 8(1), provides:

"A will is not valid unless –

(a) it is in writing and signed by the testator or by some other person in the presence of
and at the direction of the testator; and

(b) the signature is made or acknowledged by the testator in the presence of 2 or more
witnesses present at the same time; and

(c) at least 2 of those witnesses attest and sign the will in the presence of the testator
(but not necessarily in the presence of each other)."

8 The document signed by Mr West satisfied subs (a) of that provision, but it did not comply with subss (b) and (c) because it was signed in the presence of only one witness, and only that witness attested and signed the will. According to the terms of s 10, I may determine that the document constitutes Mr West's will even though it has not been executed in the required manner, but only if satisfied beyond reasonable doubt that he intended the document to constitute his will. I was able to have regard, in addition to the terms of the document itself, to any evidence relating to the manner of its execution or the testamentary intentions of the deceased person, including evidence of statements made by him: s 10(2).

9 Rule 800 of the Supreme Court Rules 2000 provides that an application for a grant of probate or letters of administration relying on s 10 of the Wills Act is to join as a respondent each person whose interests might be affected by the making of the order sought. This application, by its terms, is not an application for a grant of probate or letters of administration. What is sought is an "order" that the document in question constitutes a will although s 10 does not refer to the making of an order. However, there are no persons other than the applicant whose interests may be affected. As will be explained, if the document is a will Mrs West is the sole beneficiary. If the document is not a will the result will be that Mr West died intestate. In that case, the effect of the Intestacy Act 2010, s 13, is that Mrs West is entitled to the whole of the estate. In either case she is the person with priority to apply for letters of administration: Probate Rules 2017, rr 18 and 19. For that reason, even though there was no contradictor and her evidence was not challenged in the usual sense, there was no apparent reason to doubt her truthfulness and reliability. Her evidence was rational and plausible and supported by the evidence of Mrs Keeling. There was a strong interest in determining the application without undue formality and unnecessary additional cost.

10           It is very clear from the terms of the document that Mr West intended that it be his will. It exhibits all of the characteristics of a will. It bears his signature. Despite his illness there was no reason to doubt, on 8 June 2023, his mental capacity and understanding. The document is headed "Will and Testimony" and contains an expression of his intention as to distribution of his property upon his death: Attorney-General (UK) v Jones (1817) 3 Price 368; 146 ER 291, Re Westminster's Deed of

3   No 23/2024

Appointment [1959] Ch 265 at 271. To use the terms of s 10 of the Wills Act, it purports to embody the testamentary intentions of a deceased person. I was satisfied that it was signed by him after a discussion with his wife about organising his affairs in circumstances which suggested that he was contemplating the possibility of his death. It records his intentions in a complete, concluded and immediate way. Arrangements were made for it to be signed, at the same time an equivalent document was signed by his wife, before a witness who held the office of justice of the peace, thus adding a degree of formality and the force of the contention that he intended to give the document legal effect. It might be inferred from the absence of any previous will that Mr West was not familiar with the formalities required for execution of a will, and the defect in formality occurred through ignorance. There is no suggestion of a conscious and knowing decision to ignore the formal requirements.

11           For those reasons I was satisfied beyond reasonable doubt that Mr West intended the document signed by him on 8 June 2023 to constitute his will. I found that, in accordance with the Wills Act, s 10(1), the document, a copy of which is annexure "SJW2" to the affidavit of Sonya Jean West sworn 25 January 2024, even though it was not executed in the manner required by the Act, constitutes a will of Mr West. The findings recorded in these reasons will hopefully facilitate, at least in part, an application for a grant letters of administration should such an application be made.