In the Estate of Gaie Frances Ross

[2024] ACTSC 239

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the Estate of Gaie Frances Ross

Citation: 

[2024] ACTSC 239

Hearing Date: 

25 July 2024

Decision Date: 

25 July 2024

Before:

Elkaim AJ

Decision: 

See [12]

Catchwords: 

WILLS, PROBATE & ADMINISTRATION – INFORMALITY - Identical wills made by husband and wife – each testator mistakenly signs other testator’s will – single witness – application of s 11A of Wills Act 1968

Legislation Cited: 

Wills Act 1968 (ACT) ss 9, 11A

Parties: 

Linda Maria Constance Smith ( Applicant)

Representation: 

Counsel

A Pennetta ( Applicant)

Solicitors

Elringtons Lawyers ( Applicant)

File Number:

PRO 583 of 2024

ELKAIM AJ:  

1. Section 9 of the Wills Act1968 (ACT) (the Act) stipulates the necessary ingredients of a valid will. It must be in writing, signed at its end by the testator, and that signature must be witnessed by at least two persons who state, again in writing, that they have been witnesses.

2. Sometimes one or more of the above ingredients will be missing, leaving the executor and trustee of a will in a position where probate cannot be obtained in order to give effect to the will. The manner in which an apparent will does not fulfil the requirements of s 9 are many and varied. The deficiencies will normally only be realised after the testator has died, so that correction by the testator is impossible.

3. Section 11A of the Act steps in at this point to cure the defects, provided that “the Supreme Court is satisfied that the deceased person intended the document or part of the document to constitute his or her will …”.

4. This matter concerns a will which does not conform with s 9 for two reasons, one of them quite unusual. The plaintiff is the executor under the apparent will of her mother Gaie Frances Ross, who died on 12 May 2023, leaving a modest estate.

5. The plaintiff wishes to obtain probate but having recognised the defects in the will, filed an originating application on 25 June 2024 seeking a declaration that “under Section 11A of the Wills Act 1968 that the Will constitutes the last Will of the Deceased”.

6. The background is as follows: the deceased was married to Mr Terrence Ross. They wished to execute identical wills in which their survivor would inherit the whole of their respective estates, provided that if there was no survivor, the estate would be shared equally by their children.

7. Mr and Mrs Ross engaged a solicitor, Mr Michael Baumann, to prepare the identical wills. Mr Baumann carried out his instructions. On 25 February 2000, the two intended testators came to Mr Baumann’s office in Fyshwick and seemingly executed the two ‘mirror’ wills. They were witnessed by Mr Baumann only. The single witness is the first defect.

8. The second defect is that Mr Ross executed the will of Mrs Ross as if it was his will, and Mrs Ross executed the will of Mr Ross as if it was her will. Accordingly, the will of the deceased had not been signed by her as required by s 9.

9. The facts I have set out are derived from the affidavits of Mr Ross, sworn on 13 June 2024, Miss Annalyse Pennetta, sworn on 25 June 2024, and the plaintiff, affirmed on 13 June 2024. In addition to describing the above history, these affidavits also tell the court that:

   (a)No more recent will of the deceased has been identified.

   (b)No person takes objection to the grant of probate and no response has been generated by the notice of the application published on the ACT Supreme Court website on 13 July 2023.

   (c)The deceased remained married to Mr Ross after February 2000 and up to her death in 2023. There is no suggestion that she formed any other relationship.

   (d)Mr Baumann has left Fyshwick apparently for Queensland. Despite many attempts, he has not been able to assist with either of the two defects. His correspondence reasonably points out the long time that has passed since 2000 and the unfortunate imposition upon him of ill-health.

10. I do not see the single witness defect as significant. Mr Ross has confirmed the signing of the wills in Mr Baumann’s office and the witnessing of the wills by Mr Baumann.

11. Taking all of the above matters into account, I am satisfied that the will dated 25 February 2000, put forward for the grant of probate as the last will and testament of the deceased, was intended by the deceased to constitute her will. It obviously contains the testamentary intention of the deceased at the time it was executed. I think the factors referred to in s 11A(2) all point conclusively in this direction.

12. I make the following orders:

    (1)Pursuant to s 11A of the Wills Act 1968 (ACT), the document dated 25 February 2000 entitled “The Last Will and Testament of Gaie Frances Ross” attached to the Grant of probate (Form 3.4) constitutes the last will of Gaie Frances Ross who died on 12 May 2023.

    (2)The Registrar is directed to do all things and take all steps necessary to grant probate of the document referred to in Order (1) above to the plaintiff Linda Maria Constance Smith.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Elkaim.

Associate:

Date: 25 July 2024