In the Estate of Jeeves
[2020] ACTSC 130
•1 April 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | In the Estate of Jeeves |
| Citation: | [2022] ACTSC 61 |
| Hearing Date: | 25 March 2022 |
| Decision Date: | 1 April 2022 |
| Before: | McWilliam AsJ |
| Decision: | See [30] |
| Catchwords: | WILLS, PROBATE & ADMINISTRATION – Informality – Wills Act 1968 (ACT) – where document could not be witnessed in accordance with s 9 – whether the timing of when the deceased had the requisite intention for the document is important – |
| whether document constituted the will of the deceased | |
| Legislation Cited: | Succession Act 2006 (NSW) s 8 Wills Act 1968 (ACT) ss 9, 11A Wills, Probate and Administration Act 1898 (NSW) (repealed) s 18A |
| Cases Cited: | Estate Angius; Angius v Angius [2013] NSWSC 1895 Estate of Moran; Teasel v Hooke [2014] NSWSC 1839 Hatsatouris v Hatsatouris [2001] NSWCA 408 In the Estate of Holtkamp [2017] ACTSC 346 In the Estate of Jansen [2020] ACTSC 130 In the Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 Re Estate of AJ (Deceased) (1996) 131 FLR 413 Re Letcher (deceased) (1993) 114 FLR 397 |
| Parties: | Beryl Linda Jeeves (Applicant) |
| Representation: | Counsel |
| A Freer (Applicant) | |
| Solicitors | |
| KJB Law (Applicant) | |
| File Number(s): | PRO 94 of 2022 |
| McWilliam AsJ |
1. The application before the Court for determination, filed 14 February 2022, seeks declaratory relief pursuant to s 11A of the Wills Act 1968 (ACT) (the Act), that a will informally made on 26 August 2021 validly constitutes the last will and testament of the late Kenneth Ellis Jeeves (the deceased), who died on 30 October 2021, aged
2. The applicant is Mrs Beryl Linda Jeeves, the wife of the deceased. She is the executor named in the document that is the subject of the present application. She is also the named executor of an earlier will of the deceased that was executed on 25 September 2018.
3. The reason the application is necessary is because the deceased signed the document that is the subject of the present application while he was in hospital and there were no witnesses to his signature. Section 9(1) of the Act requires (relevantly) that for a will to be valid:
(a) It must be in writing; (b)
It must be signed by the testator (or by another person in the presence of and by the direction of the testator);
(c)
Such signature must be in the presence of 2 or more witnesses present at the same time; and
(d)
Those witnesses must each attest that signing of the will and subscribe the will in the presence of the testator and of the other witness or witnesses.
The power of the Court to declare an informal will valid
4. The Court has the power under s 11A of the Act to order that a document constitutes the will of a deceased person, notwithstanding that it has not been executed in accordance with the required formalities under s 9 of the Act. Relevant to this case, that section requires the Court to be satisfied that the deceased person intended the document in question to constitute his or her will, or the revocation of his or her will respectively.
5. Section 11A of the Act is in the following terms:
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.
The Issues for determination
6. The overarching issue is whether the Court should declare the document dated 26 August 2021 to be the valid will of the deceased. That requires the Court to reach a state of satisfaction about the matters referred to in s 11A(1) of the Act.
Applicable principles
7. The proper interpretation of s 11A of the Act was considered in Re Letcher (deceased) (1993) 114 FLR 397 (Re Letcher) by Gallop J, who outlined the fundamental matters of fact that arise for determination in such matters at 401. His Honour states those issues 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?
8. Those three matters form the issues for determination. In relation to the last question, Gallop J went on to state at 401 that the Court may have regard to (relevant to this
case) “any evidence of the testamentary intentions of the deceased person, including
evidence of statements made by the deceased person.”
Re Letcher has since been applied numerous times, including in the Re Estate of AJ (Deceased) (1996) 131 FLR 413 (AJ) at 414-5, and by way of two more recent examples, In the Estate of Holtkamp [2017] ACTSC 346 (Holtkamp) at [7]-[8] and In the Estate of Jansen [2020] ACTSC 130 (Jansen) at [4] and [33].
10. In AJ, Miles CJ stated at 414 (emphasis added):
... what the third question requires is not simply proof of a document purporting to embody the testamentary intention of the deceased person, but the satisfaction on the part of the Court that the deceased intended that document to constitute his or her will. A document which does no more than express the testamentary intention of the deceased, such as instructions for the drawing up of a will, do not suffice.
11. His Honour’s made the above statement drawing upon similar reasoning in Re
Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, which was a decision of Powell J (with both authorities cited in Holtkamp and Jansen). It concerned a relevantly similar provision in New South Wales, being s 18A of the now repealed Wills, Probate and Administration Act 1898 (NSW). The equivalent section is now s 8 of the Succession Act 2006 (NSW).
12. However, in NSW, the third question has been framed as being whether, at the time the disputed document was brought into being or at some later time, the deceased, 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 Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56].
13. In Estate of Moran; Teasel v Hooke [2014] NSWSC 1839, Lindsday J (agreeing with an observation made by Hallen J in Estate Angius; Angius v Angius [2013] NSWSC 1895 at [260]) stated at [28]:
…use of the words "without more on her part", in deference to a formulation of the critical
question attributed to Powell J, can add nothing material to the language of s 8(2)(a). What those words do is direct attention to a consideration of whether the particular document was intended to operate as a will: to have present operation as such, not to serve merely as a draft, a diary note or the like.
14. For the facts of the case before the Court on the present application, the distinction and discussion about what is required for the third question or issue to be considered by the Court do not make a material difference. However, given the frequency with which Re Letcher is applied in this jurisdiction, it is of benefit to appreciate that the
scope of the evidence relevant to the third consideration of the Court’s satisfaction about the deceased’s intention may be broader than simply looking at what the
deceased did and said at the time the document in question was brought into existence or signed. Section 11A does not in terms require that the deceased person
had the requisite intention “at the time of the document being brought into existence”,
merely that the deceased intended that the document constitute his or her will, in the sense of a legal document intended to govern the disposition of his or her property after death.
The Evidence
15. In support of the application, the applicant relied upon three affidavits, two of which were sworn by her on 9 February 2022, and a third supplementary affidavit that was sworn on 29 March 2022 following an oral hearing. The purpose of the third affidavit was to provide the totality of the evidence relevant to the third question articulated above.
16. The affidavits set out the evidence relating to the manner of execution of the document and includes conversations Mrs Jeeves had with her husband before he died, and critically, conversations which occurred at the time that she deposes to him signing the document and shortly thereafter.
17. Also before the Court is the original document, dated 26 August 2021 and signed by the deceased, a copy of which was also annexed to the supplementary affidavit sworn by Mrs Jeeves.
18. From these documents, the following facts emerge (family members are referred to by the first names without any intended disrespect):
(a) The deceased had executed a valid will, signed by himself and witnessed by two people on 25 September 2018 (the 2018 Will). By the 2018 Will, and in broad summary, the deceased left his home in Mawson and its contents to his wife, the applicant. He gave any motor vehicle he owned to his daughter, Brenda. He gave $150,000 worth of shares to his other daughter, Stephanie. He gave the remainder of his estate equally to his four grandchildren. (b) The deceased had a sister, Elizabeth, who died on 24 September 2020. The deceased’s three children, Brenda, Stephanie and Andrew, were each listed
as beneficiaries of Elizabeth’s estate, which was said to be significant.(c) In November 2020, one of the deceased’s children, Brenda, died. She had no children.
(d) In June 2021, the deceased sold his house in Mawson and moved to a new residence in Narrabundah. (e) Due to his change in circumstances, including the sale of his house, the substantial inheritance received by his children from Elizabeth’s estate, and
the subsequent death of one of his daughters, the deceased decided to
update his will.(f) On 13 August 2021, the deceased was admitted to hospital. (g) On 20 August 2021, the deceased provided telephone instructions to his solicitors to prepare an updated will. (h) On 23 August 2021, the deceased’s solicitors emailed a draft of the updated will to him, seeking further instructions. The applicant printed out the
documents and delivered them to the hospital.(i) At the time when the deceased was in hospital, the Territory was in lockdown and no visitors were allowed into the hospital. Hospital policy was that staff were not authorised to witness legal documents. The deceased did not have a telephone or computer to enable him to use AVL technology to have the signing of his documents witnessed remotely, and in any respect, was not
comfortable with that approach. He told his wife on 25 August 2021, “I will
sign it myself and you can pick it up tomorrow”.(j) The deceased’s wife attended the hospital on 26 August 2021. The deceased gave her an express post envelope which was not sealed. She offered to
hand-deliver the envelope to the deceased’s solicitors. He said to her “I want
it posted so that there is a record of it being posted and received”.(k) His wife took the document and the envelope and went to post it, however, no doubt as a loving wife who wanted everything to be right, she took the trouble to make sure the deceased had signed the will in all the places he was meant to. The applicant deposes elsewhere in her affidavit to recognising her husband’s handwriting, signatures, and initials.
(l) She saw that the deceased had missed signing a page. She let the deceased know that she would go back to the hospital and get him to sign the page that was missing a signature. She remembers telling him, “[m]ake sure you bring
the same pen down”.(m) When the applicant returned to the hospital, she met the deceased outside the hospital entrance. She observed the deceased sign on the one page that was missing his signature. She said to him, “I will now go and post this at the post
office”.(n) Also included in the envelope was another document, which contained the deceased’s written responses to questions that had been asked by the
deceased’s solicitor.(o) Upon receipt of the envelope, the deceased’s solicitor sent an email on 27 August 2021 to both the deceased and his wife saying as follows:
Dear Beryl and Ken
Thank you for posting back the original Will signed by Ken and dated 26 August 2021 (unwitnessed) together with your separate handwritten notations. The original signed Will will be placed into safe custody at this office on your behalf.
For your convenience, a copy of Kenneth’s signed Will is attached.
Once Kenneth is no longer in hospital and the lockdown ends…, I recommend
that he signs a fresh Will in the presence of two independent adult witnesses.
(p)
The deceased was discharged from hospital later that day. After the lockdown in the Territory was lifted, the deceased made an appointment to re-sign the will as recommended by his solicitor. The appointment was scheduled for 9 November 2021.
(q) The deceased died on 30 October 2021. 19. I accept the affidavit evidence of the applicant and make the factual findings set out above.
Issue 1: Is there a document?
20. On the Court file is the document dated 26 August 2021 as referred to above,
accompanying the affidavit of the applicant. It is plainly prepared by the deceased’s
solicitor and described as the Last Will and Testament of Kenneth Ellis Jeeves.
21. I am satisfied that there is a document.
Issue 2: Does the document purport to embody testamentary intentions of a deceased person?
22. The contents of the document include the following (being a potted outline of what I consider to be the material aspects of the document):
1 Revocation clause
I revoke all previous testamentary acts.
2 Reading my Will
2.1 For ease of reference, I identify the following people: (a) BERYL means my wife … (b) STEPHANIE means my daughter… … 3 Disposition of property 3.1… 3.2 In my Will (a) any gift which depends on the beneficiary surviving me by a specified period or attaining a specified age is contingent and does not vest in the beneficiary unless and
until he or she has survived the specified period or attained the specified age; … … 4. Appointment of Executors
4.1 I appoint BERYL as Executor of my Will… 5 Gifts to BERYL 5.1 I give the sum of …$100,000.000 and any motor vehicle which I may own at the date of my death …to BERYL …
… 6 Personal Items and Household Items
6.1 I give my Personal Items and Household Items to BERYL … 7 Digital Records … 8 Distribution of residue of estate I give the residue of my estate both real and personal of whatsoever nature and wheresoever situate to my Executors upon trust after payment therefrom of all my just debts funeral and testamentary expenses and any taxes, death or estate duties
payable in consequence of my death for [the deceased’s four grandchildren]… 9 No provision to Stephanie and Andrew I declare that I have not made any provisions for STEPHANIE and ANDREW because each of them received a substantial inheritance from my late sister’s estate. 10 Priorities for Executors … 11 Protected moneys and superannuation … 12 Powers of My Executors 23. There is then a page with the date handwritten as 26th day of August 2021 and a signature next to the following words:
Signed by the Willmaker in our joint presence and attested by us in the presence of the
Willmaker and each other:24. This is followed by blank spaces providing for two signatures of witnesses, their full names, their addresses and their occupations.
25. It will be readily apparent from the parts that I have set out above that the document does purport to embody the testamentary intentions of the deceased, and I am so satisfied.
(3) Is the evidence which has been tendered such as to satisfy this Court that the
deceased person intended the document to constitute his or her will?
26. On the facts as found above, I am also satisfied that the deceased intended the document to constitute his will and not a draft. He was 94. He was in hospital. He had instructed solicitors. He signed the document. Significantly, in my view, he instructed his wife to send the signed document to his solicitors. From their response on 27 August 2021, his solicitors understood the document to be the Will of the
deceased and placed it into safe custody at their office, stating “a copy of Kenneth’s
signed Will is attached”.27. In the New South Wales Court of Appeal decision In the Estate of Masters
(Deceased); Hill v Plummer (1994) 33 NSWLR 446, Priestley JA (with whom Kirby P agreed at 453) dealt with a circumstance where the facts established that the deceased had left a handwritten document with a friend recording his testamentary wishes, pending anything further he might do after he left hospital. His Honour said at 469:
The handing over of the document to a friend for safe keeping indicates that [the deceased] was attaching importance to the document and regarding it as capable of affecting what happened to his property upon his death. The circumstances all indicate, it seems to me, that he wished the intentions expressed in the document to be carried out. The fact, if it was the fact, that he still had it in mind to dispose of his property by will in the formal manner when he became able to do so, does not mean that he had no testamentary intention at the time of handing the document to [his friend]. The handing over of the document and the accompanying words would be quite pointless if he was not signifying that his property was to be dealt with, upon his death, as he had written in his document.
…
28. The same reasoning applies with even greater force to the circumstances of this case, where the evidence establishes that the only reason two people did not witness and sign the document when the deceased did was because, at age 94, he was in
hospital during a period of “lockdown” which prevented him from having two
witnesses physically in his presence. The solicitors certainly understood the document to be the will of the deceased, notwithstanding the informality, and communicated that understanding to the deceased while he was alive.
29. I am therefore satisfied that the deceased intended the document to constitute his last will and testament.
Conclusion
30. For the above reasons, the orders sought in the application will be made. The Court orders as follows:
1. Pursuant to s 11A of the Wills Act 1968 (ACT), the document dated 26 August 2021, a copy of which is annexed to the affidavit of Mrs Beryl Jeeves, sworn 29 March 2022, constitutes the Will of the late Kenneth Ellis Jeeves.
2. The Registrar is directed to do all things and take all steps necessary to grant probate of the document constituting the last will of the deceased identified in order 1 to Beryl Linda Jeeves.
3. The costs of the application are to be paid out of the estate on a solicitor-client basis.
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: Zoe Saunders
Date: 1 April 2022
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