In the Estate of Elaine Lilian Mitchell-Reynolds

[2017] ACTSC 269

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the Estate of Elaine Lilian Mitchell-Reynolds

Citation:

[2017] ACTSC 269

Hearing Date(s):

24 August 2017

DecisionDate:

24 August 2017

Before:

McWilliam AsJ

Decision:

1. The document dated 19 December 2006, accompanying the affidavit of Gregory Burn affirmed 31 March 2017 and marked exhibit A in these proceedings constitutes the last will of the deceased person pursuant to s 11A of the Wills Act 1968 (ACT).

Catchwords:

WILLS, PROBATE & ADMINISTRATION – informality – Wills Act 1968 (ACT), s 11A

Legislation Cited:

Wills Act 1968 (ACT) s 11A

Cases Cited:

Re Letcher (deceased) (1993) 114 FLR 397

Parties:

ACT Public Trustee and Guardian (Applicant)

Representation:

Counsel

W. M. Andrews (Applicant)

Solicitors

Snedden Hall & Gallop Solicitors (Applicant)

File Number(s):

P 845 of 2016

McWilliam AsJ:

1. Before the Court is an application seeking relief pursuant to s 11A of the Wills Act1968 (ACT) (the Act).  In support of the application, the affidavit of the Deputy Public Trustee and Guardian, Mr Gregory Burn, affirmed 31 March 2017 was read, along with two affidavits of the solicitor instructed in the matter, Mr William Michael Charles Andrews, the first being sworn on 28 June 2017, and the second being sworn on 23 August 2017. 

1. The Court has the power to order that a document constitutes the will of a deceased person, notwithstanding that it has not been executed in accordance with the acquired formalities under s 11A of the Act. Relevant to this case, that section requires the Court to be satisfied that the deceased person intended the document to constitute his or her will, or the revocation of his or her will respectively.

1. The proper interpretation of s 11A of the Act was considered in Re Letcher (deceased) (1993) 114 FLR 397 by Gallop J who outlined the fundamental matters of fact that arise for determination in such matters at 401. His Honour states as follows:

(1) Is there a document?

(2) Does the document purport to embody testamentary intentions of a deceased person? and

(3) Is the evidence which has been tendered such as to satisfy this Court that at the time of the document being brought into existence the deceased person intended the document to constitute his or her will? 

1. Gallop J went on to state at 401 that in relation to the last question, the Court may have regard to (relevant to this case) any evidence of the testamentary intentions of the deceased person, including evidence of statement made by the deceased person.

1. I will return to each of those matters shortly.  First, I note that through the affidavit of Mr Andrews of 23 August 2017, I am satisfied that all potential beneficiaries or interested persons in this application today have been properly notified of the proceedings.

1. I have before me Exhibit A, being the document dated 19 December 2016 accompanying the affidavit of Gregory Burn, affirmed 31 March 2017. It is on a standard will form and reads:

1.  I revoke all Wills and documents of testamentary intent previously made by me; this is my last Will and Testament;

2. I appoint Keith and Helen Gammie of [XXX] Claremont WA 6010 to be Executor or Executrix and Trustee of this my will.

3.  I give          my mahogany coffee table to Michael;

my marble coffee table to Greg Michael;

my diamond ring to Cecile O’Neil;

my antique gold watch to Raelene and Bill Graham;

my gold Egyptian peacocks to Mitchell Gammie;

my Italian jewel box to Dawn Buerdnmayer;

my mother’s small cabinet to David Streeter;

my Fiji small table to Nigel Atkinson;

my jewelled bracelet worn by me at Helen & Keith’s wedding to Emma O’Neil;

my gold necklace and earrings to Megan Gammie;

my Indian necklace, gold and turquoise to my sister Helen;

all furniture, china, glassware to be shared between next generation of the family if they choose and can remove them;

our mother’s paintings; the summer and winder stars to Alan to pass on to his boys; whoever would treasure them;

my photos in albums and others relate to family weddings and may be divided up for relevant members if they wished;

my TV cabinet stand to Bill and Raelene to pass on to James or Alan or Amelia as they set up house;

I have some vintage clothes the girls may like in cases;

my bank deposits and shares to be cashed and shared equally between my brothers and sisters & if they chose in turn to pass on to their children in due course.

1. I note that the will is signed by Elaine Mitchell-Reynolds, the deceased, and is dated ‘this Monday 19 December 2006’, although I am informed by Mr Andrews that that date does not in fact correlate to a Monday.  However, it is not witnessed, and therein lies the reason for this application.

1. I am satisfied that there is a document and that the document purports to embody the testamentary intentions of the deceased person. 

1. As to the evidence which has been tendered such as to satisfy the Court that at the time the document was brought into existence, the deceased person intended the document to constitute his or her will, Mr Andrews relies on conversations that he has had with the deceased's sister, Ms Helen Jean Gammie, set out at paragraph 8.2 of his affidavit of 28 June 2017.

1. Significantly, the deceased's sister kept a diary and she recorded notes which have reminded her of the telephone discussions that she had with the deceased in about December 2006.  One note records that her sister, the deceased, telephoned her on 5 December 2006 and told her words to the effect that doctors had discovered cancerous polyps in her bowel and that surgery was planned for the near future.  She recalls the conversation as it was very significant and she felt devastated afterwards. 

1. On 19 December 2006, the deceased telephoned her to say words to the effect that she had been admitted to hospital for surgery on that day.  She recalls the deceased saying words to the effect:

I know I have to put my affairs in order and I’ll write it all out. 

I know what I want to say in my will. 

I want you and Keith to be my executors. 

1. I am satisfied on the basis of that communication and the other paragraphs of the affidavit, the context of which it is unnecessary to set out here, that at the time the document was brought into existence the deceased did intend it to constitute her will. 

1. Accordingly, I am prepared to make the order sought.  The order of the Court will be:

1. The document dated 19 December 2006 accompanying the affidavit of Gregory Burn affirmed 31 March 2017 and marked exhibit A in these proceedings constitutes the last will of the deceased person pursuant to s 11A of the Wills Act 1968 (ACT).

I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.

Associate:

Date: