In the Estate of Noel Joseph Edmund Thompson

[2024] ACTSC 110

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the Estate of Noel Joseph Edmund Thompson

Citation: 

[2024] ACTSC 110

Hearing Date: 

12 April 2024

Decision Date: 

15 April 2024

Before:

McWilliam J

Decision: 

(1) Pursuant to s 11A of the Wills Act 1968 (ACT), the document dated 1 October 2007 and amended on 19 January 2020, a true copy of which is annexed to the affidavit of Greg John Robert Thompson affirmed 22 February 2024 and marked ‘B’, constitutes the last will of Noel Joseph Edmund Thompson.

Catchwords: 

WILLS, PROBATE & ADMINISTRATION – informality – Wills Act 1968 (ACT) s 11A – where handwritten amendments to a valid will not witnessed but signed and dated by deceased – relief granted.

Legislation Cited: 

Legislation Act 2001 (ACT) Dictionary

Wills Act 1968 (ACT) ss 11A, 12(1), 21(b), Pt 2

Cases Cited: 

Hatsatouris v Hatsatouris [2001] NSWCA 408

In the Estate of Gallagher [2022] ACTSC 324

In the estate of Niko Ojvan [2023] ACTSC 42

Re Letcher (deceased) (1993) 114 FLR 397

Rodny v Weisbord [2020] NSWCA 22; 102 NSWLR 403

Parties: 

Greg John Robert Thompson (Applicant)

Rachel Margaret Glover (Applicant)

Representation: 

Counsel

M Fuller (Applicants)

Solicitors

BDN Lawyers (Applicants)

File Number:

SC 78 of 2024

McWILLIAM J:         

1․The application before the Court requires a determination of whether a document constitutes the last will of the late Noel Joseph Edmund Thompson, who died on 3 November 2023 (the deceased). It is brought by two of the deceased’s adult children, Greg John Robert Thompson and Rachel Margaret Glover.  There is a third child who is a beneficiary under the will (Mr Adam Thompson). As he is under a legal disability the applicants each hold a power of attorney for his financial affairs. 

2․There was a valid will created on 1 October 2007 (the 2007 Will).  This application concerns a subsequent document, which contains handwritten amendments to the 2007 Will dated 19 January 2020, with each of the amendments bearing the signature of the deceased (Informal Will).

Relief sought

3․The application is brought pursuant to s 11A of the Wills Act1968 (ACT) (the Act).  It seeks relief that, notwithstanding that the amendments to the 2007 Will were not executed in accordance with the formal requirements of the Act, the Informal Will constitutes a valid will of the deceased.

4․The lack of formality arises from the fact that the alterations to the 2007 Will were not witnessed by two or more people present with the testator when signed the amendments. Sections 12(1)(b) and (c) of the Act require two people to witness the testator’s signature and attest the same.

Evidence

5․In support of the application, the applicants relied upon:

(a)The affidavit of Greg John Robert Thompson affirmed on 22 February 2024;

(b)The affidavit of Rachel Margaret Glover affirmed on 16 February 2024; and

(c)Two affidavits of Matthew Fuller, solicitor for the applicants, affirmed on 1 March 2024.

Service on potentially interested persons

6․At the date of his death, the deceased was widowed.

7․The Informal Will names the three children as the beneficiaries of the deceased’s estate. If the relief sought is not granted, the 2007 Will remains the last valid will of the deceased.  That document again names the 3 children of the deceased as the beneficiaries of the estate in equal shares.  Accordingly, the evidence established that there was no other party who potentially had an interest in the deceased’s estate or in the present application. 

8․I considered whether a separate litigation guardian should have been appointed in respect of Mr Adam Thompson, as the applicants in the proceeding were also his powers of attorney.  However, as will become apparent, there was no possibility of a conflict of interest arising, nor was there any suggestion that the grant of the relief sought might adversely affect the interest of the applicants’ brother.  In those circumstances, I accepted that the additional protection of appointing an independent litigation guardian was unnecessary, and the matter proceeded unopposed.

Formalities for making a valid will or revoking an existing will

9․The formal requirements for making a valid will are set out in Part 2 of the Act. Among other things, s 12(1) requires that for an “obliteration, interlineation or other alteration” to the will to be valid, it must:

(a)be signed by the testator;

(b)be witnessed by two other persons who acknowledge the signature of the testator; and

(c)those two persons attest that signing and subscribe the alteration in the presence of the testator.

10․For completeness and because of the nature of the amendments that were made by the Informal Will, s 21 of the Act prescribes the requirements for a valid revocation of a will. Relevantly under s 21(b), a will or part of a will may be revoked in three ways:

21 Revocation of will

Subject to sections 8B, 16A, 20 and 20A, a will or part of a will is not revoked except—

… 

(a)whether or not the testator is a person to whom section 16 applies—

(i)   by a subsequent valid will of the testator;

(ii) 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; or

(iii)    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.

11․Other parts of the section are immaterial, as they address the specific provisions of the Act applying to children, those who lack testamentary capacity, soldiers and marriages/divorces.

Court’s power to declare a will valid

12․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 required formalities under s 11A of the Act, which is in the following terms:

11AValidity 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.

Applicable principles

13․The authorities relevant to the interpretation of s 11A of the Act have recently been discussed in In the Estate of Gallagher [2022] ACTSC 324 at [11]-[17]. They include the test as phrased by Gallop J in Re Letcher (deceased) (1993) 114 FLR 397 at 401, reformulated to follow the more recent decisions of Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56] and Rodny v Weisbord [2020] NSWCA 22; 102 NSWLR 403 at [17]-[18]. The reformulation was discussed in detail in In the estate of Niko Ojvan [2023] ACTSC 42 at [9]-[15]. The circumstances of the present case make it unnecessary to repeat the discussion here.

14․For the present case, it suffices to explain that the task for the Court may be broken down into satisfaction of three separate components. The first component deals with establishing there is a physical thing that falls within the definition of ‘document’. The second deals with the contents of the subject document. The third deals with the person’s intention with respect to the legal effect of the subject document. In determining whether it is satisfied that the document is one that the deceased person intended to constitute his will, Court asks the following questions:

(a)Is there a document?

(b)Does the document purport to embody testamentary intentions of a deceased person?

(c)Is the evidence which has been tendered such as to satisfy this 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 thenintention that the document should, without more on his or her part, operate as his or her will?

15․Those three questions form the issues for this application.

Issue 1: Is there a document?

16․In this case, it is uncontroversial that there is a document.  The Informal Will is a typed version of the 2007 Will, with handwritten markings constituting the amendments. The original document was sighted by the Court during the hearing. 

17․As submitted by the legal representative for the applicants, ‘Document’ is not defined in the Act, however, the typed document 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.

Issue 2: Does the document purport to embody the deceased’s testamentary intentions?

18․The document in question has as its foundation the 2007 Will, which is unquestionably a document that purports to embody the deceased’s testamentary intentions. The terms of the 2007 Will, commence as follows:

This Will is made by me NOEL JOSEPH EDMUND THOMPSON of 18 Bandulla Street, Isabella Plains, Australian Capital Territory.

19․The deceased goes on to name the applicants as executors of his will, states what he intends for the disposal of the entirety of his estate, states those who he wishes to benefit and is signed by the deceased.

20․The Informal Will then contains many handwritten amendments, including interlineations, to the 2007 Will.  Primarily because the document that was being amended was the existing valid will of the deceased, the Informal Will also purports to embody the deceased’s testamentary intentions.

21․The nature of the amendments may be summarised as striking through many of the provisions of the 2007 Will.  The deletions all concerned the creation, in a separate part of the 2007 Will (Part C), of a special disability trust in respect of Mr Adam Thompson, and for guardianship of him.  The amendments remove the creation of the said trust in the 2007 Will, with one of the notes recording:

The Protective Trust in issue should be sufficient to enable all matters including Adam’s care & maintenance including financial affairs.

22․The evidence established that at the time the amendments were purportedly made (19 January 2020) a protective trust had been established for the deceased’s third child, and it is apparent that the very detailed regime created in the 2007 Will was no longer required.

23․By way of example, Part C of the 2007 Will entitled “Terms of Special Disability Trust”, including Schedules A and B (spanning pages 13 to 30 of the 2007 Will) were struck out in full. The interlineations were all marked as “Deleted” and signed “N. Thompson” with the handwritten date also recorded as being 19 January 2020.  Again, there is a handwritten note at the heading of Part C explaining that “Adam has a Protective Trust”.

24․Accordingly, the express words of the document are sufficient to satisfy me that the document does purport to embody the deceased’s testamentary intentions. 

Issue 3: Does the evidence establish that, at the time the document was brought into existence, the deceased person intended the document to constitute his will?

25․The Informal Will constitutes a marked-up version of the 2007 Will, which was plainly intended to constitute the deceased’s testamentary intentions. All substantive alterations to the 2007 Will were clearly crossed out, as noted above, and marked with the word “deleted”, signed by the deceased and dated 19 January 2020. Both applicants identified the signature on the Informal Will as being that of the deceased.

26․The signing of each amendment with the date next to each signature is important.  Those markings are strong indicators that the particular document that was amended was one that the deceased intended to have legal effect from the date written. 

27․By a contrasting example, the deletions were not just for the purpose of then providing the marked-up document to a solicitor to create a further document for the deceased to then sign. 

28․Further support for the inference that the deceased intended the document to constitute his will are the remaining handwritten words which were not expressly accompanied by a signature and date.  They were either explanations for why the deceased intended to delete or insert certain parts, or explanations of the deceased’s thought process (for example, in relation to the number and ages of his grandchildren) rather than amendments with any operative force.

29․There was nothing to suggest that there was any matter affecting the deceased’s testamentary capacity as at 19 January 2020.

30․Finally, both applicants deposed to their belief that the document reflects their father’s last testamentary attentions, notwithstanding its failure to meet the formalities for a valid will.  Ms Glover deposed to the document being kept with the deceased’s paperwork. While that statement is somewhat ambiguous, I take it as intended to mean kept with the deceased’s important formal documents.

31․Accordingly, from the contents of the document itself, both as to form and as to substance, and the surrounding circumstances, I am satisfied that, from 19 January 2020 (when the deceased signed the amendments) the deceased intended the Informal Will to constitute his will.

Conclusion and orders

32․As each of the three limbs has been established (on the balance of probabilities), I am satisfied that at the time the Informal Will was brought into existence, the deceased did intend it to constitute his will. 

33․Accordingly, it is appropriate to grant the relief sought, which has the effect, by virtue of s 21(b)(i) of the Act, of revoking the previous 2007 Will.  The Court makes the following order:

(1)Pursuant to s 11A of the Wills Act 1968 (ACT), the document dated 1 October 2007, as amended on 19 January 2020, a copy of which is annexed to the affidavit of Greg John Robert Thompson affirmed 22 February 2024 and marked ‘B’, constitutes the last will of Noel Joseph Edmund Thompson.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.

Associate:

Date: