In the estate of Dora Marleny Rodriguez Navarro

[2024] ACTSC 211

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the estate of Dora Marleny Rodriguez Navarro

Citation: 

[2024] ACTSC 211

Hearing Date: 

21 June 2024

Decision Date: 

4 July 2024

Before:

Baker J

Decision: 

See [19]

Catchwords: 

CIVIL LAW – application for a video made by the deceased to constitute a valid last will – s 11A of the Wills Act 1968 (ACT) – application for a grant of letters of administration to be issued to the applicant as administrator – s 9 of the Administration and Probate Act 1929 (ACT) – application consented to by each of the possible beneficiaries of the Estate - a grant of letters of administration is to be issued to the applicant as administrator.

Legislation Cited: 

Administration and Probate Act 1929 (ACT), s 9

Court Procedure Rules 2006 (ACT), rr 3005, 3006, 3010, 3012, 3015, 3046

Legislation Act 2001 (ACT), s 144

Wills Act 1968 (ACT), s 11A

Cases Cited: 

In the Estate of Gallagher [2022] ACTSC 324

In the Estate of Rodopoulos [2019] ACTSC 56

In the Estate of Yit Oi Hoi [2022] ACTSC 340

Radford v White [2018] QSC 306

Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107

Parties: 

Christopher Nicholas Lourandos ( Applicant)

Representation: 

Counsel

J Cunliffe ( Applicant)

Solicitors

Snedden Hall & Gallop ( Applicant)

File Number:

PRO 168 of 2024

BAKER J:      

Introduction

1․This is an application for orders under s 11A of the Wills Act 1968 (ACT) that a video made by Dora Marleny Rodriguez Navarro (the deceased) constitute a valid last will and that the transcript of the will may be annexed to the grant of representation as a true copy of the last will of the deceased. The application also seeks orders under s 9 of the Administration and Probate Act 1929 (ACT) and r 3015 of the Court Procedure Rules 2006 (ACT) for a grant of letters of administration with will annexed be issued to the applicant as administrator.

2․The application is brought by the deceased’s husband. It is consented to by each of the possible beneficiaries of the Estate.

Background

3․In December 2023, Dora Marleny Rodriguez Navarro travelled to Lima, Peru, with her husband and two daughters for a holiday. After they arrived in Lima, the deceased told her husband that she had booked surgery with a doctor in Lima for cosmetic and abdominal surgery.

4․The surgery was performed on 26 December 2023. Regrettably, there were complications during the surgery. The deceased’s husband was called to the hospital at 3:20am on 27 December 2023. When he arrived at hospital, the deceased was in an induced coma in the Intensive Care Unit (ICU). The deceased’s husband was told that the deceased had suffered brain damage as a result of suffering 20 minutes without oxygen. There was no change to her condition in the days that followed, and the deceased passed away on 30 December 2023. The cause of death was cerebral oedema and pulmonary oedema leading to organ failure.

5․The deceased had not made a formal will prior to her death. However, after her death, the deceased’s husband found a video on the deceased’s phone which she had made prior to her death. The video was taken on the deceased’s phone, whilst she was in hospital awaiting surgery. The following is a transcript of what the deceased states in the video:

Hello. This is Dora Marleny Rodriguez Navarro. I am 31 years old. I’m about to do an operation in an hour, however just so everything is clear – I’m alone here waiting for the doctor – I would like to give all my money to Chris so my daughters can have good – a good education. And Christopher will – I know he will manage great my money and – and my properties. Yeah, so everything to Chris. And then – yeah, and a portion – little – and a small portion for my parents, as they helped me so much.

6․The application is not opposed. Each of the potential beneficiaries consent to the orders sought.

Application under s 11A of the Wills Act

7․The video does not comply with s 9 of the Wills Act, and is therefore not a formal will. However, s 11A enables the Court to determine that a will is valid despite non-compliance with s 9. Video wills were accepted as valid wills (or part thereof) under similar interstate provisions in Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107 and Radford v White [2018] QSC 306.

8․Section 11A of the Wills Act provides as follows:

11A Validity of will etc not executed with required formalities

(1)A document, or a part of a document, purporting to embody testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the formal requirements of this Act, constitute a will of the deceased person, an amendment of the will of the deceased person or a revocation of the will of the deceased person if the Supreme Court is satisfied that the deceased person intended the document or part of the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will respectively.

(2)In forming a view of whether a deceased person intended a document or a part of a document to constitute his or her will, an amendment of his or her will or a revocation of his or her will, the Supreme Court may, in addition to having regard to the document, have regard to—

(a)any evidence relating to the manner of execution of the document; or

(b)any evidence of the testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or not) of statements made by the deceased person.

9․There are three issues that must be considered in an application under s 11A:

(a)Is there a document?

(b)Does the document purport to embody testamentary intentions of the deceased person?

(c)Does the evidence satisfy the Court that, at the time of that the document was brought into existence (or at some later time), the deceased person, 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?

See In the Estate of Rodopoulos [2019] ACTSC 56 at [21] and In the Estate of Yit Oi Hoi [2022] ACTSC 340 at [6].

Is there a document?

10․A video is a “document”, being a “record of information… from which images, sounds, messages or writings can be produced or reproduced, whether with or without the aid of anything else”: Legislation Act 2001 (ACT), s 144, Dictionary Pt 1, definition of “document”, para (c).

Does the document purport to embody testamentary intentions of the deceased person?

11․The words spoken by the deceased in the video have been set out at [5] above. It is clear that those words purport to embody the deceased’s testamentary intentions. In the video, the deceased personally records her intention as to how to distribute the entirety of her estate.

Is the evidence which has been tendered such as to satisfy this Court that at the time of the document being brought into existence or at some later time, the deceased person, 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?

12․In In the Estate of Gallagher [2022] ACTSC 324 at [16], McWilliam AsJ (as her Honour then was) observed that s 11A(2) is a requirement to consider “whether it was the intention of the deceased … that the document should, without more on the part of the testator, operate as her will”.

13․I am satisfied that this requirement is met for the following two reasons:

(a)The circumstances in which the video was recorded (that is, shortly before the deceased was to undergo surgery) clearly indicate that the deceased intended the video to constitute her will, without any further action to be taken on her part. This intent is also confirmed by the words used by the deceased in the video (for example, “just so everything is clear”); and

(b)There is no evidence of any other document which contradicts the deceased’s apparent testamentary intention as expressed in the video, that the recording itself operate as her will.

Conclusion

14․For the reasons outlined above, each of the requirements of s 11A of the Wills Act are satisfied.  It follows that a declaration should be made in the terms sought in the application.

Application for a grant of letters of administration

15․The applicant also seeks an order under s 9 of the Administration and Probate Act, which provides as follows:

9.Probate or administration may be granted

(1)The Supreme Court has jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, within the ACT.

(2)The Supreme Court has jurisdiction to grant probate of the will, or administration of the estate, of a deceased person who did not leave property, whether real or personal, within the ACT, if the court is satisfied that the grant of probate or administration is necessary.

16․Rule 3015 of the Court Procedure Rules provides as follows:

3015     Grant of representation – when hearing not required

Unless a caveat is in force in relation to the application or division 3.1.9 (Other probate proceedings) applies to the application, the court may grant representation for the estate without a hearing.

17․An application under s 9 has been made in accordance with r 3005 of the Court Procedures Rules, and is supported by an affidavit in compliance with r 3010 of the Court Procedure Rules; the applicant has published an online notice on the ACT Supreme Court website of his intention to apply for grant of representation (r 3006); proof of the identity of the deceased has been provided (s 9A of the Administration and Probate Act) and further proof as to the identity of the deceased is not required (r 3012) and all interested parties consent to dispensing with an administration bond (rule 3046).

18․I am satisfied that it is appropriate for an order under s 9 to be made. I will direct the Registrar to do all things and take all steps necessary to grant letters of administration.

Orders

19․The orders of the Court are:

(1)Pursuant to s 11A of the Wills Act 1968 (ACT), the video made by the deceased on 26 December 2023 constitutes a valid last will of the deceased.

(2)Pursuant to s 11A of the Wills Act 1968 (ACT), the transcript of the video made by the deceased on 26 December 2023 may be annexed to a grant of representation as a true copy of the last will of the deceased.

(3)Under s 9 of the Administration and Probate Act 1929 (ACT) and r 3015 of the Court Procedure Rules 2006 (ACT), a grant of letters of administration with will annexed is to be issued to the applicant as administrator.

(4)The proceedings are to be referred to the Registrar to complete the grant.

(5)The instrument of grant record a recital to the following effect: “The will is in the form of a video recording made on 26 December 2023. A transcript of the recording is annexed”.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: A Watson

Date: 4 July 2024