In the Estate of Kay Maureen Leighton
[2018] ACTSC 75
•22 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of Kay Maureen Leighton |
Citation: | [2018] ACTSC 75 |
Hearing Date: | 15 March 2018 |
DecisionDate: | 22 March 2018 |
Before: | McWilliam AsJ |
Decision: | 1. Pursuant to s 11A of the Wills Act 1968 (ACT), the document dated 12 February 2015, a copy of which is annexed to the affidavit of Gail S Westman sworn 8 December 2017 and marked ‘A’, constitutes the last will of Kay Maureen Leighton. |
Catchwords: | WILLS, PROBATE & ADMINISTRATION – informality – Wills Act 1968 (ACT) s 11A |
Legislation Cited: | Wills Act 1968 (ACT) ss 9, 11A, 21, pt 2 Legislation Act 2001 (ACT) Dictionary |
Cases Cited: | Re Letcher (dec’d) (1993) 114 FLR 397 |
Parties: | Ms Gail Westman (Applicant) |
Representation: | Counsel Ms J Bridgewater (Applicant) |
| Solicitors Colquhoun Murphy Solicitors (Applicant) | |
File Number: | PRO 166 of 2018 |
The application before the Court concerns whether a handwritten note constitutes an informal will. It is brought ex parte, by Ms Gail Westman, the daughter of the late Kay Maureen Leighton (the deceased).
Relief sought
The relief sought by the applicant is an order, pursuant to s 11A of the Wills Act1968 (ACT) (the Act), that notwithstanding the testamentary document of the deceased dated 12 February 2015 was not executed in accordance with the formal requirements of the Act, the document constitutes a valid will of the deceased.
The lack of formality arises from the fact that the deceased only had one person witness her signature. Sections 9(1)(c) and (d) of the Act require two people.
If that part of the application is unsuccessful the applicant seeks, in the alternative, leave to amend the originating application for probate to an application for letters of administration within seven days.
Evidence
In support of the application, the applicant relies upon two affidavits sworn by her on 8 December 2017 and 9 February 2018 and an affidavit of Dr Ameer Alaraji affirmed 8 February 2018, who was the treating doctor of the deceased, and witnessed the signature of the deceased on the document dated 12 February 2015.
The applicant also subsequently tendered correspondence between her legal representatives and the Public Trustee and Guardian of the ACT (Public Trustee).
Service on potentially interested persons
The deceased had three children, being the applicant and her two brothers, Mr Mark Roberts and Mr Wayne Roberts. They are the only named beneficiaries. The applicant’s brothers have both provided their written consent to this application.
Neither the deceased nor the beneficiaries have been in contact with the father of the beneficiaries for many years, and the deceased’s subsequent partner has pre-deceased her.
The correspondence between the applicant’s solicitors establishes that it made enquiries of the Public Trustee as to whether it wished to be joined to the proceedings. The deceased had previously made a will on 9 March 2010, which had been lodged with the Public Trustee and nominated the Public Trustee as the executor of the deceased.
The Public Trustee confirmed its awareness of these proceedings but communicated to the applicant that it did not consider that it had ‘any role to play’ in the proceedings. It may be accepted that the Public Trustee was not seeking to uphold or contest the validity of the testamentary document the subject of the application. However, the Public Trustee remained a party potentially interested in the outcome of the application because the earlier will lodged with the Public Trustee had not been revoked (discussed further below), meaning that the Public Trustee remained the named executor of the earlier operative will until the applicant established otherwise by this application.
The applicant did not then seek to join the Public Trustee. Had the applicant been unsuccessful in obtaining the primary relief sought, it would have been necessary to join the Public Trustee before considering whether letters of administration ought be granted.
In any event, I am satisfied that all potential beneficiaries or interested persons in this application have been properly notified of the existence of these proceedings.
Formalities for making a valid will or revoking an existing will
The formal requirements for making a valid will are set out in pt 2 of the Act. Among other things, s 9 requires that for a will to be valid, it must be in writing and signed by the testator in the presence of two witnesses.
Section 21 of the Act prescribes the requirements for a valid revocation of a will. Putting to one side circumstances where particular provisions apply (such as children, those who lack testamentary capacity, soldiers and where a person marries or divorces), a will or part of a will may be revoked in three ways:
(a)by a subsequent valid will of the testator (s 21(b)(i) of the Act);
(b)by the testator executing a document in like manner as a will is required by part 2 to be executed that shows his or her intention to revoke the will or part (s 21(b)(ii) of the Act); or
(c)by burning, tearing or otherwise destroying the will or part by the testator, or a person acting in the presence of and by the direction of the testator, with the intention of revoking the will or part (s 21(b)(iii) of the Act).
Section 12 of the Act contains requirements for altering a will but that is not material to this case.
Court’s power to declare a will valid
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. Section 11A is in the following terms:
(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.
Interpretation of s 11A of the Act
The proper interpretation of s 11A of the Act in cases seeking an order that an informal will is valid 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:
(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?
Those three questions thus form the issues for this application.
Consideration one: there is a document
In this case, it is uncontroversial that there is a document. It is a handwritten note, dated 12 February 2015, a copy of which constitutes annexure ‘A’ to the affidavit of Ms Westman sworn 8 December 2017. The original document is on the Court file. The document reads:
I, Kay M Leighton, [XX] Theodore ACT 2905, wish to advise I have made my daughter Gail S. Westman, [XX] Gunning NSW, executor of my will but I would like it made known, when I have reached a stage of no return my house it to be sold & St George Bank to be paid back. Any money left to be shared between my three children Gail S. Westman, Mark C. Roberts, Wayne S. Roberts. Any furniture they want it’s there’s [sic].
‘Document’ is not defined in the Act, however, the handwritten note squarely falls within the definition set out in the Dictionary of the Legislation Act 2001 (ACT), being a record of information on which there is writing. On the facts of this case, it is unnecessary to consider whether the scope of the word ‘document’ in the Act extends further than that definition.
Consideration two: the document purports to embody the deceased’s testamentary intentions
The words set out above refer to the deceased, name the applicant as executor of her will, states what she intends for the disposal of her assets, states those who she wishes to benefit and is signed by the deceased.
The express words of the handwritten note are sufficient to satisfy me that the document does purport to embody the deceased’s testamentary intentions. It is unnecessary to have regard to other evidence to assist in forming that view, although such evidence is discussed below in relation to the third issue and it will become apparent that it supports the conclusion I have reached from the express words of the handwritten note alone.
Consideration three: the evidence establishes that at the time of the document being brought into existence, the deceased person intended the document to constitute her will
The handwritten note refers to ‘my will’, but it does not state in terms that by those words, the deceased means the handwritten note to constitute her will. The handwritten note could be a reference to some other document that the deceased considered to be her will, for example.
However, there are three aspects of the evidence as to the circumstances surrounding the creation of the handwritten note, which ultimately satisfy me that this was intended to be the will of the deceased.
The first is the evidence relating to the earlier will dated 9 March 2010, which was a valid will because it complied with all the formalities under the Act. It was lodged with the Public Trustee. It provides some evidence of the testamentary intentions of the deceased at an earlier date and can therefore be taken into account.
As mentioned above, the will dated 9 March 2010 in evidence names the Public Trustee as executor. It contains a slightly different regime for the allocation of furniture as between the siblings (which they are aware of and make no issue about), and gives specific powers to the named executor.
On 19 October 2011, the deceased sent a letter to the Public Trustee (signed and dated) which states:
This letter is in regards to my last will issued 2 March 2010. I wish to cancel this will 2.3.2010.
It may be noted in passing that this letter did not revoke the will. The letter is not signed by two witnesses. It also refers to a will issued 2 March 2010, where the only earlier will in evidence was one dated 9 March 2010. Accordingly, the letter falls short of the requirements for valid revocation of a will under s 21(b)(ii) of the Act.
The Public Trustee then responded on 22 September 2011, by requesting the deceased to fill out some paperwork ‘to enable us to update our data base’, but the deceased did not respond. The paperwork comprised a form to be signed by the deceased, although as there was no provision for the signature to be witnessed by two people, even if the paperwork had been completed, it would have been insufficient to achieve formal compliance with the Act in terms of revocation (and that was plainly not the purpose of the request).
However, any question as to whether revocation of the earlier will might have been achieved through s 11A of the Act may be put to one side. The relevance of this evidence to the question of the Court’s satisfaction is that it establishes the deceased believed that she had ‘cancelled’ her earlier will, notwithstanding that she was wrong about the date and later failed to fill out requested paperwork.
The second aspect of evidence is that of Dr Alaraji, who deposes to attending upon the deceased on 12 February 2015. On that date, he witnessed the deceased sign the handwritten note.
Third (and finally) there is the applicant’s own written testimony, to the effect that she recognises the handwriting and the signature of the document as her mother’s. Further, she actually took her mother to the doctor on 12 February 2015. At that time, the applicant had conversations with her mother to the effect that her mother thought the earlier will had been revoked and she intended to make her daughter her executor:
In or around the end of 2014, the deceased said to me words to the effect of “I’m sure I revoked my will with the Public Trustee.”
I confirmed with the Public Trustee and Guardian that the deceased’s will held by them was no longer valid.
The deceased said to me and my brothers in words to the effect of “I want to appoint all three of you to be joint executors.”
My brothers refused as said words to the effect of “It would be easier for Gail to do it alone.”
These conversations, combined with the deceased’s earlier correspondence with the Public Trustee, satisfy me that when the deceased went to the doctor’s surgery, she was intending to sign a document which she considered would have the necessary formality to constitute her will. She was not intending to refer to another document (such as the earlier will held by the Public Trustee), nor was she intending to draft a further document, or to later engage a solicitor to engross the contents of the handwritten note.
Conclusion and orders
As each of the three limbs has been established (on the balance of probabilities), I am satisfied that at the time the handwritten note was brought into existence, the deceased did intend it to constitute her will.
Accordingly, I am prepared to make the declaration sought, which has the effect by virtue of s 21(b)(i) of the Act of revoking the previous will. The order of the Court will be:
1. Pursuant to s 11A of the Wills Act 1968 (ACT), the document dated 12 February 2015, a copy of which is annexed to the affidavit of Gail S Westman sworn 8 December 2017 and marked ‘A’ constitutes the last will of Kay Maureen Leighton.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: 22 March 2018 |
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