In the Estate of Marianne Mildred Ilbery

[2023] ACTSC 349

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	In the Estate of Marianne Mildred Ilbery
Citation:	[2023] ACTSC 349
Hearing Dates:	27 October 2023, 9 November 2023
Decision Date:	24 November 2023
Before:	Curtin AJ
Decision:	(1) Pursuant to s 11A of the Wills Act 1968 (ACT), the Court

declares that the document dated 10 March 1999, signed by
the late Marianne Mildred Ilbery and witnessed by John
Lehoczky, constitutes the will of the late Marianne Mildred
Ilbery.

(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 to Peter William Mitchell Ilbery and Katherine

Elizabeth Ilbery.

(3) The costs of the application are to be paid out of the estate

on a solicitor-client basis.

Catchwords:	WILLS, PROBATE & ADMINISTRATION – INFORMALITY – Wills Act 1968 (ACT) – Where will was signed by the deceased but only witnessed by one person – whether deceased intended
document to constitute her last will
Legislation Cited:	Wills Act 1968 (ACT), ss 9, 11A
Cases Cited:	In the estate of Johnson [2023] ACTSC 149 In the estate of Niko Ojvan [2023] ACTSC 42 In the estate of Radosav Srejic [2023] ACTSC 135
Parties:	Peter William Mitchell Ilbery and Katherine Elizabeth Ilbery (Applicants)
Representation:	Counsel
D Williams (Applicants)
Solicitors
Whitehead Cooper Williams (Applicants)
File Number:	PRO 795 of 2023
CURTIN AJ:
Introduction
1․	This is an application under s 11A of the Wills Act 1968 (ACT) (the Wills Act).
2․	The application arises because Marianne Mildred Ilbery (the deceased) executed a will
dated 10 March 1999 (the Will) which did not comply with the formalities of the Wills Act,
namely, it was witnessed by one person rather than the requisite two.
3․	The application is made by the son and daughter of the deceased, Peter William Mitchell
Ilbery and Katherine Elizabeth Ilbery (the applicants), who were both named as
executors in the Will.
4․	The deceased had two other children, Robert James Ilbery and Marianne Florin (also
known as Marianna Mildred Ilbery), who were also named as executors in the Will but
who are not part of the present application having previously renounced probate.
5․	The applicants seek a declaration that, despite the informality, the Will constitutes the
last will of the deceased.

Legislation

6․	Section 9 of the Wills Act stipulates that a will is not valid unless, amongst other things,
it is signed before two witnesses. It says:

9              Will to be in writing and signed before 2 witnesses

(1)

Subject to this Act, a will is not valid unless—

(a)	it is in writing; and
(b)	it is signed at the foot or end by the testator, or by another person in the presence of and by the direction of the testator; and
(c)	the signature of the testator is made or acknowledged, or the signature of the person who signs the will by the direction of the testator is acknowledged, by the testator in the presence of 2 or more witnesses present at the same time; and
(d)	2 or more of those witnesses each attest that signing of the will or that acknowledgment of the signing of the will and subscribe the will in the presence of the testator and of the other witness or witnesses.

(2)

Subsection (1) shall not be taken to require any form of attestation on a will.

7․	Section 11A of the Wills Act empowers the Court to declare that a document is a will
despite any informality if it is satisfied the deceased intended the document to constitute
their will. It says:

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.

Principles

8․	In In the estate of Niko Ojvan [2023] ACTSC 42, McWilliam AsJ (as her Honour then
was) dealt with a similar application for a declaration that a document constituted the last
will of the deceased notwithstanding the fact that there were no witnesses to the
deceased’s signature.
9․	Having considered the relevant authorities at [4]-[15], her Honour described the
applicable test as boiling down to three essential questions.
10․	I adopted her Honour’s summary of principle in In the estate of Radosav Srejic [2023]
ACTSC 135 at [7] and In the estate of Johnson [2023] ACTSC 149 at [14]. I phrased
those three questions as follows:

(a)	Is there a document?
(b)	Does the document purport to embody the testamentary intentions of the

deceased person?

(c) 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 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?

Evidence

11․	The applicants rely on six affidavits in support of the application, including an affidavit of
the one witness to the Will, John Lehoczky, two affidavits of the deceased’s long-time
family lawyer, Denis Paul Williams (also the lawyer for the applicants), one affidavit of
Peter William Mitchell Ilbery, and two affidavits of Katherine Elizabeth Ilbery.
12․	Mr Williams and Ms Ilbery also gave oral evidence after I expressed some concern at
gaps in the affidavit evidence.

Affidavit of Peter William Mitchell Ilbery affirmed on 20 July 2023 and affidavit of

Katherine Elizabeth Ilbery affirmed on 1 August 2023

13․	The affidavit of Peter William Mitchell Ilbery affirmed on 20 July 2023 and the affidavit of
Katherine Elizabeth Ilbery affirmed on 1 August 2023 are to similar effect.
14․	They said that they recognised the signature of the deceased on the Will as they had
seen the deceased sign her name on many occasions.
15․	They said that they believed that the deceased intended for the Will to operate as her
last will despite it not being witnessed in accordance with the statutory requirements.
They said that they held this belief on the basis that:

(a) the Will describes itself as the “Last Will and Testament of Marianne Mildred

Ilbery”;

(b) clause 1 of the Will says that the deceased revoked all former testamentary

dispositions; and

(c) the language and form of the Will are consistent with that of a formal will.

Affidavit of John Lehoczky affirmed on 7 August 2023

16․	The affidavit of John Lehoczky affirmed on 7 August 2023 said that he is a retired travel
agent.
17․	He said that on 10 March 1999, the deceased and her husband visited his travel agency
‘BRITAIN & EUROPE TRAVEL BUREAU’ (in England) and brought two wills (one each)
that they requested he witness. He says that he witnessed a will for the deceased, which
consisted of one cover page and two operative pages. He says that he witnessed the
deceased sign her name on the last page of that will. Annexure A to his affidavit is a scan
of the will that he witnessed the deceased sign, and it is a true copy of the Will.

Affidavit of Denis Paul Williams affirmed on 21 September 2023

18․	The affidavit of Denis Paul Williams affirmed on 21 September 2023 said that he is the
solicitor for the estate of the deceased. He said that he knew the deceased for over 40
years and was close friends with the deceased and her husband.
19․	He said that he believed that the deceased intended for the Will to operate as her last
will despite it not being witnessed in accordance with the statutory requirements. He said
that he held this belief on the basis that:

(a) the Will describes itself as the “Last Will and Testament of Marianne Mildred

Ilbery”;

(b) clause 1 of the Will says that the deceased revoked all former testamentary

dispositions; and

(c) the language and form of the Will are consistent with that of a formal will.

Affidavit of Denis Paul Williams affirmed on 30 October 2023

20․	The further affidavit of Denis Paul Williams affirmed on 30 October 2023 deposes to a
conversation Mr Williams had with the deceased when he acted for her in her capacity
as executor of her late husband’s estate in January 2018. In that conversation he asked
the deceased whether she wanted to make a new will. He recalls that the deceased said:

“No, I don’t see any need to do that for now. I may get a new Power of Attorney done but

that can be done locally. If I think I might change the Will I signed in 1999, I will contact you. I could do one locally, but I see no point in doing it. My estate goes to my four children,

doesn’t it?”

21․	He said that the Will was drafted by the law firm Dibbs Crowther & Osborne. He said that
he did not attempt to contact Dibbs Crowther & Osborne as the firm no longer exists. He
described the deceased’s late husband telling him many years ago that they (the
deceased and her husband) did not use “Dibbs” anymore.
22․	He said that Ms Ilbery informed him in early 2023 that the deceased had dealings with
Canberra law firm O’Connor Harris and a person at that firm named Aleira Plath. He said
that he wrote an email to Ms Plath to ask whether the firm held any wills or other
documents on behalf of the deceased. He did not receive a response from Ms Plath but
did receive a response from a person at the firm by the name of Kobi Fogg, who advised
that a search of the firm’s records was conducted and no will was located. Ms Fogg said
that the firm did hold an original Enduring Power of Attorney dated 11 January 2018, a
certified copy of which was collected in August 2018. Ms Fogg said that a file was created
for the deceased in December 2017 with instructions to prepare a will, but on 11 January
2018 the deceased instructed that she no longer wanted to continue with that will.
23․	Mr Williams said that he had corresponded with Mr Lehoczky in 2018 regarding the will
of the deceased’s husband, which Mr Lehoczky also witnessed. He recalls Mr Lehoczky
saying he could not remember any details of the conversations he had with the deceased
and her husband on the day he witnessed the Will, other than that the deceased and her
husband came in to finalise travel arrangements.

Oral evidence of Denis Williams

24․	Mr Williams said that at various times of the years immediately preceding their passing,
both the deceased and her husband had contacted him and sought his advice in regard
to certain things, including their estates.
25․	I asked Mr Williams whether he recalled what it was that they contacted him about in
relation to their estates. In response he said:

They were aware of the fact that they had made wills a long time previously, and they sent

copies up to me…and asked me whether there was any purpose in them updating them. As

the wills in question initially left their respective estates to each other, and then if their spouse had predeceased them, to their four children in equal shares, I advised them that there was little point in making any change because the wills appeared to be, at the time, properly executed. Subsequent to that, unbeknownst to me, they had some drafts which they had

obtained from Dibbs Crowther & Osborne, and [the deceased’s husband] had had them on

his work desk for years, and unbeknownst to me, immediately prior to one of their trips to England, of which there were many, they apparently went and got the local travel agent to

witness their signatures…

Affidavit of Katherine Elizabeth Ilbery affirmed on 1 November 2023

26․	The affidavit of Ms Ilbery affirmed on 1 November 2023 deposed to a conversation
between the deceased, Ms Ilbery, and her siblings that occurred in about 2018. She said
that the deceased spoke about wanting to change her Will to give a monetary gift to each
of her grandchildren, but otherwise leave the Will as it was.
27․	She said that the deceased had told her that she had instructed O’Connor Harris to
prepare a will, but the deceased later advised Ms Ilbery and her siblings she would prefer
to simply give the gifts of money to her grandchildren while she was alive. She said that
the deceased made those gifts during her lifetime.

Oral evidence of Katherine Elizabeth Ilbery

28․	Ms Ilbery gave the following oral evidence in respect of the steps she took to ascertain
whether there existed any other formal will or document claiming to contain the
testamentary intentions of the deceased:

She had a desk and the top right-hand drawer of her desk contained her appointment powers of attorney, enduring guardians, living will, and her will.

29․	She said that she located the Will in the deceased’s desk drawer as well as three
previous wills of the deceased, one which was drafted but not sworn, one which was
made when Ms Ilbery was a child, and one dated 20 February 1983.
30․	She said she did not find any other signed wills of the deceased in the deceased’s
papers.

Consideration

Question 1

31․	The first question is clearly answered in the affirmative, there being a document dated
10 March 1999.

Question 2

32․	In my view, the Will purports to embody the testamentary intentions of the deceased for
the following reasons.
33․	The cover page of the Will is headed “WILL OF MARIANNE MILDRED ILBERY”. The
first sentence of the first operative page of the Will reads “I, MARIANNE MILDRED
ILBERY of [address] DECLARE this to be my last Will and Testament HEREBY
REVOKING all former Wills and testamentary dispositions made by me.”
34․	The final sentence of the last operative page of the Will reads “IN WITNESS whereof I
have set my hand to this my Will contained on this and the preceding page” followed by
the handwritten date. A signature appears underneath the date in what is plainly the
same handwriting and pen. Underneath the signature are the words “SIGNED by the
Testatrix”.
35․	The applicants’ evidence establishes that the signature is the signature of the deceased,
them having seen the deceased sign her name during her life. This is corroborated by
Mr Lehoczky’s evidence that he witnessed the deceased sign her name on the last
operative page of the Will.
36․	Clauses 2, 3 and 4 concern specific bequests and include the words “I GIVE”.
37․	The evidence given by Ms Ilbery and Mr Williams refers to conversations had with the
deceased during her lifetime about her testamentary intentions, those intentions being
consistent with the contents of the Will and consistent with the Will being the document
containing the deceased’s testamentary intentions.
38․	Other formal earlier wills were found, but none which post-dated the date of the Will.
39․	Collectively, the express words of the Will and the above evidence satisfies me that the
Will embodies the testamentary intentions of the deceased.

Question 3

40․	I am also of the view that the deceased, by both her acts and words, demonstrated it
was her then intention that the Will should, without more on her part, constitute her last
will.
41․	This is in light of [29]-[32] above and the evidence about the deceased’s dealings with
O’Connor Harris. Both Mr Williams’ enquiries with O’Connor Harris and Ms Ilbery’s
conversation with the deceased about instructing O’Connor Harris establish that the
deceased did not intend to create a new will and intended the Will to remain as her final
will.
42․	The evidence of Ms Ilbery also indicates that extensive searches of the deceased’s
papers failed to uncover any other document purporting to be a new will.
43․	Having regard to the above evidence relating to the manner of execution of the Will and
the evidence of the testamentary intentions of the deceased, I am satisfied that the
deceased intended the Will to constitute her will.

Orders

44․ I make the following orders:

(1)	Pursuant to s 11A of the Wills Act 1968 (ACT), the Court declares that the
document dated 10 March 1999, signed by the late Marianne Mildred Ilbery
and witnessed by John Lehoczky, constitutes the will of the late Marianne
Mildred Ilbery.
(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 to Peter William Mitchell Ilbery
and Katherine Elizabeth Ilbery.
(3)	The costs of the application are to be paid out of the estate on a solicitor-client
basis.

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin.

Associate:

Date: