In the estate of Johnson
[2023] ACTSC 149
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | In the estate of Johnson |
| Citation: | [2023] ACTSC 149 |
| Hearing Date: | 9 June 2023 |
| Decision Date: | 9 June 2023 |
| Before: | Curtin AJ |
Decision: | 1. Pursuant to s 11A of the Wills Act 1968 (ACT), the Court declares that the document dated 17 February 2009, signed by the deceased and witnessed by Mr Travis, which has been produced to the Court and is annexure A to the affidavit of Mr Travis affirmed on 15 March 2023, constitutes the will of the late Rosemary Ann Johnson. |
| 2. The Registrar is directed to do all things and take all steps necessary to grant probate of that document referred to in Order 1 to Jillian Patricia Johnson. | |
| 3. The costs of this application are to be paid out of the estate on a solicitor-client basis. | |
Catchwords: | WILLS, PROBATE & ADMINISTRATION – Informality – Wills Act 1968 (ACT) – Where signature was only witnessed by one witness – Whether deceased intended document to constitute will |
| Legislation Cited: | Wills Act 1968 (ACT), s 11A |
| Cases Cited: | In the estate of Niko Ojvan [2023] ACTSC 42 |
| Parties: | Jillian Patricia Johnson (Applicant) |
| Representation: | Counsel |
| L Usher-Clarke (Applicant) | |
| Solicitors | |
| Elringtons Lawyers (Applicant) | |
| File Number: | PRO 357 of 2023 |
| CURTIN AJ: | |
| EX TEMPORE (REVISED) |
1. This is an application under s 11A of the Wills Act 1968 (ACT) (Wills Act).
2. It arises because the deceased executed a will dated 17 February 2009 which complies
with all necessary requirements except for the fact there was only one witness rather
than two.
3. The applicant relies on an affidavit of the one witness to the will, being Mr Garry Travis,
and an affidavit of the deceased’s sister.
4. Mr Travis gives evidence that the will dated 17 February 2009 was signed by the
deceased in his presence and also signed by him in the deceased’s presence.
5. He identifies the witness signature on the will as being his own.
6. Mr Travis says that the deceased approached him at work and said to him words to the
effect of, “I’m making my will, can you witness it for me?”. He recalls sitting down with
the deceased at their workplace to sign the document in her presence. Those
circumstances conveyed to him, and conveyed to me, that the deceased intended this
document to be her last will.
7. He gives evidence that although the will was executed some 14 years ago, the document
produced appears to him to be the document that he witnessed with no pages changed,
added, or removed.
The deceased’s sister also gives evidence. She is the executor appointed in that will.
9. After the deceased’s passing, she searched the deceased’s papers and found an earlier
will by the deceased dated 11 March 2004, which also appointed herself as the executor
and left the whole of the deceased’s estate to her.
The will, the subject of this application, also leaves the whole of the deceased’s estate
to her sister, Jillian Johnson.
Ms Johnson deposes to the fact that at the time of the deceased’s passing, the deceased
did not have a spouse or de facto partner and did not have any children. The deceased’s
father died on 5 October 2007, and her mother died on 22 November 1997. There were
no other siblings of the deceased other than Ms Johnson.
12. Subsections 11A(1) and (2) of the Wills Act say:
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.
13. The relevant authorities for an application of this sort were collected by McWilliams AsJ
(as Her Honour then was), In the estate of Niko Ojvan [2023] ACTSC 42 and need not
be repeated here.
14. Suffice to say, on the authorities referred to by her Honour, there are three questions to
be asked and answered. They are:
1. Is there a document?
2. Does the document purport to embody the testamentary intentions of the
deceased person?
3. Is there evidence to satisfy the 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?
15. The first question is clearly satisfied, there being a document which is dated 17 February
2009.
16. The second question is also satisfied. Mr Travis’s evidence, which I accept, establishes
that this document embodied the testamentary intentions of the deceased.
Mr Travis’s evidence also satisfies the third question, that is whether there is evidence
that at the time this document was brought into existence, the deceased person
demonstrated that it was his or her intention that the document operate as his or her will.
Mr Travis’s evidence establishes that the deceased knew the document was a will. Her
statement that she was “making my will” are words which demonstrated her then
intention that the document should operate as her will. The absence of any other
document supports that factual finding.
19. No other later wills have been discovered, and the deceased had no other immediate
living relatives other than Ms Johnson. That fact is also corroborative of the fact that the
deceased intended this document, which left all of the deceased’s estate to her sister, to
be the deceased’s last will.
Orders
20. I make the following orders.
1. Pursuant to s 11A of the Wills Act 1968 (ACT), the Court declares that the
document dated 17 February 2009, signed by the deceased and witnessed by
Mr Travis, which has been produced to the Court and is annexure A to the
affidavit of Mr Travis affirmed on 15 March 2023, constitutes the will of the late
Rosemary Ann Johnson.
2. The Registrar is directed to do all things and take all steps necessary to grant
probate of that document referred to in Order 1 to Jillian Patricia Johnson.
3. The costs of this application are to be paid out of the estate on a solicitor-client
basis.
I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin.
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