In the Estate of Holtkamp
[2017] ACTSC 346
•16 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of Holtkamp |
Citation: | [2017] ACTSC 346 |
Hearing Date: | 16 November 2017 |
DecisionDate: | 16 November 2017 |
Before: | McWilliam AsJ |
Decision: | See [30] |
Catchwords: | SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Wills – where document not executed in accordance with formal requirements of Wills Act 1968 (ACT) – lack of two witnesses signing document – where Court satisfied that a document exists purporting to embody testamentary intention and that the deceased intended the document to constitute his will – declaration that the document constitutes the Will made |
Legislation Cited: | Wills Act 1968 (ACT) ss 9, 11A Court Procedure Rules 2006 (ACT) r 3092 |
Cases Cited: | Banks v Goodfellow (1870) LR 5 QB 549 In the Estate of Elaine Lilian Mitchell-Reynolds [2017] ACTSC 269 Re Letcher (1993) 114 FLR 397 |
Parties: | Roslyn Marie Taudevin Keay (Plaintiff) Paul Michael Taudevin (Defendant) |
Representation: | Counsel P Davey (Plaintiff) |
| Solicitors Dobinson Davey Clifford Simpson Lawyers (Plaintiff) | |
File Number: | PRO 207 of 2017 |
By an application in proceeding dated 21 March 2017, the plaintiff seeks an order that a document dated 15 November 2016 (annexed to the affidavit of Ms Rehana Leah Richard sworn 13 February 2017) constitutes the Will of the late Lyle Edwin Holtkamp, who died on 16 November 2016 (referred to hereafter as the deceased).
The underlying proceedings were commenced by originating application, also dated 21 March 2017, and seeks an order, presumably on the basis of a declaration to the above effect being made, that probate be granted to the applicant.
The foundation for the declaration sought is s 11A of the Wills Act 1968 (ACT) (Act), which is in the following terms:
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.
Rule 3092 of the Court Procedures Rules 2006 (ACT) permits the commencement of proceedings under s 11A of the Act by an application in existing probate proceedings.
As set out in more detail below, the reason the application is necessary is that a document signed by the deceased on the day before he died when he was in the Calvary Hospital was not signed by the deceased in the presence of two witnesses, as required by s 9 of the Act.
Issues
Mr Davey, who appeared for the plaintiff and mentioned the appearance of the defendant by consent, referred the Court to the applicable legal principles in the course of forming the requisite satisfaction under s 11A of the Act.
The Court must be satisfied of each of the following:
(a) There is a document;
(b) The document purports to embody the testamentary intentions of the deceased person; and
(c) The evidence that has been tendered establishes that at the time of the document being brought into existence, the deceased person intended the document to constitute his/her will.
These three requirements create the issues for resolution in the present application. They are derived from Re Letcher (1993) 114 FLR 397 at 401, were relied upon by Miles CJ in Re Estate of AJ (Deceased) (1996) 131 FLR 413 at 414-415, and have been recently cited in the decisions of In the Estate of SAS [2017] ACTSC 289 at [4] and In the Estate of Elaine Lilian Mitchell-Reynolds [2017] ACTSC 269 at [3].
By way of further explanation of the third requirement, it is not sufficient if a document exists which does no more than express the testamentary intention of the deceased, such as instructions for the drawing up of a will. The evidence must establish that the deceased intended the specific document to constitute the will: Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 cited in Re Estate of AJ (Deceased).
As Mr Davey submitted, the presumption of testamentary capacity pertaining to a formal will does not arise in the case of a document not formally executed and attested. That will be a matter relevant to the deceased’s intention.
Evidence
The plaintiff relied upon two affidavits of Ms Rehana Leah Richard sworn 13 February 2017 and 7 September 2017. Ms Richard was the solicitor who visited the deceased and took instructions from him on the day before he died.
The plaintiff also relies upon the affidavit of Ms Heather Ina Elliott, the deceased’s next door neighbour for many years prior to his death, affirmed 9 August 2017.
Two exhibits were also in evidence. The first was a medical report prepared by Associate Professor Chanaka Wijeratne, Consultant Psychiatrist dated 4 October 2017, which directly concerned the question of the testamentary capacity of the deceased. The second was a deed of settlement between the plaintiff and the defendant signed 10 October 2017, which disclosed both the defendant’s consent to the present application, which necessarily includes raising no issue about the deceased’s testamentary capacity at the time he signed the document the subject of these proceedings.
Is there a document?
The document annexed to Ms Richard’s first affidavit of 13 February 2017 is as follows:
Testamentary Intentions of Lyle Edwin Holtkamp
Of …Cook ACT 2614
This document contains my testamentary intention, as at 15 November 2016
I appoint my niece Rosalind Keay to be my executor and trustee.
I revoke any prior Wills I have made.
I give the whole of my estate to my niece Rosalind Keay if she survives me but if she does not survive me but leaves children who survive me then her share is to be divided equally between her surviving children.
I give to Rosalind Keay all the powers given to her as an executor by law to administer my estate.
I wish to be cremated following my death and my ashes interred in a location where the ashes of other ex-servicemen are interred.
The document is signed by both the deceased and Ms Richard, and dated 15 November 2016.
Having regard to the Dictionary in the Legislation Act 2001 (ACT) which defines ‘document’ to mean any record of information including (inter alia) anything on which there is writing, I am satisfied that there is a document.
Does the document purport to state the testamentary intentions of the deceased?
It is plain from the words used that the document purports to state the testamentary intentions of the deceased.
Did the deceased intend the document at the time that it was brought into existence to constitute his will?
The effect of Ms Richard’s uncontested evidence, which I accept, is that she attended the deceased’s room in the hospital, and was introduced to the deceased as a lawyer who had come to talk to the deceased about his will at the request of ‘Ros’ (the plaintiff).
The deceased nodded his head and said words to the effect of “Yes, good. I spoke with Ros today.”
Ms Richard then deposes to a detailed conversation she had with the deceased. First, the deceased confirmed that he knew what a will was, that he did not already have a will in place, that he communicated his full name and date of birth, that he answered a number of questions about the contents of his will, including whether he was married or in a relationship, whether he had children, any living relatives, any siblings, and whether the siblings had any offspring.
Second, the conversation covered the deceased’s assets and liabilities and Ms Richard explained the duties and responsibilities of an executor. The deceased further indicated that he could not think of any charities to support and that all his close friends were deceased.
Third, after the document was read aloud to the deceased, he confirmed that he did not require any changes to it and was “happy to sign it as is”.
Ms Richard deposes to each of them signing the document, to the lack of a second witness and to informing the deceased that she would return tomorrow with a typed version of the same document and with a colleague from her office to act as the second witness.
Ms Richard states:
It was my clear understanding that the deceased intended that the Handwritten Note should operate as his Will in the event that he did not ultimately sign the proposed type-written Will. This understanding is based on the fact that he wanted me to write out his instructions and then signed them in my presence.
Given the very detailed instructions and communications between Ms Richard and the deceased, and the fact that the deceased indicated he had no changes to make, I am satisfied that the document was not merely a step along the way to a concluded document. Rather, it was the final document. I am satisfied the deceased intended the document to constitute his will at the time that it was brought into existence.
Mr Davey fairly drew the Court’s attention to the fact that the defendant had been left out of the will, and to the authority of Banks v Goodfellow (1870) LR 5 QB 549, where indicia of the deceased being of sound mind, memory and understanding included an ability to comprehend and appreciate the claims to which he ought to give effect.
The affidavit of the deceased’s neighbour provides an explanation of prior communications the deceased had with her, where he indicated that it was his intention not to leave anything to the defendant. In those circumstances, I accept Mr Davey’s submission that the mere fact that the defendant is not referred to in the document is not indicative of a lack of testamentary capacity.
Having read the report of Dr Wijeratne, I am satisfied of the requisite capacity to form the intention at the time the deceased signed the document.
Conclusion
For these reasons, I am satisfied that the document dated 15 November 2016 satisfied the requirements of s 11A of the Act.
The Orders of the Court are:
1. The Court declares that the document dated 15 November 2016, a copy of which is annexure A to the Affidavit of Rehana Leah Richard sworn 13 February 2017, is the will of Lyle Edwin Holtkamp, notwithstanding that it has not been executed in accordance with the formal requirements of the Wills Act 1968 (ACT).
2. The costs of the Application are to be paid out of the estate on the solicitor-client basis.
3. To the extent necessary, the plaintiff has leave to approach the Registrar for the taking out of the grant of probate.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: |
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