In the estate of Patricia Ada White

[2012] ACTSC 51

IN THE ESTATE OF PATRICIA ADA WHITE
[2012] ACTSC 51 (5 April 2012)

PROBATE AND ADMINISTRATION  - validity of will not executed with required formalities – testator instructing solicitors to prepare will – will prepared in draft form and approved by testator – testator dying before executing will – court satisfied that testator intended the unsigned will to constitute her will – declaration accordingly

Wills Act 1968 ss 7, 8, 9, 10, 11A

No.  P 90 of 2012

Judge:             Master Harper
Supreme Court of the ACT

Date:              5 April 2012

IN THE SUPREME COURT OF THE     )
  )          No.  P 90 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:IN THE ESTATE OF PATRICIA ADA WHITE

Applicant

AND:GRANT OF PROBATE

Respondent

ORDER

Judge:  Master Harper
Date:  5 April 2012
Place:  Canberra

THE COURT DECLARES THAT:

the deceased intended the unsigned will dated September 2011 referred to in paragraphs 5 and 7 of the affidavit of Peter Geoffrey Kaye affirmed on 16 February 2012 to constitute her will.

1. Patricia Ada White (the deceased) died on 22 September 2011.  She had made a will in June 1997 in which she left her estate to her three children in varying proportions.  On 13 September 2011 her son contacted her solicitor, Mr Kaye.  Mr Kaye is a partner in the firm which prepared the 1997 will.  The son of the deceased told him that she wanted to review and amend her will.

2. On 16 September 2011 the deceased attended at Mr Kaye’s office and gave him instructions to prepare a new will.  She told him that she had cancer but understood that her life was not at immediate risk.  Mr Kaye drafted a new will and on 19 September sent it to her son by email.  On 20 September the son responded on his mother’s behalf with two minor editing changes.  He asked Mr Kaye to let him know when the will was ready to sign, and said that he would bring his mother in to sign it.  Mr Kaye made the changes, but the deceased died before an appointment had been made for her to come in to sign it.

3. The new will made provision for the grandchildren of the deceased as well as her children.

4. All three of the children take the view that the new will represents their mother’s last wishes, which they want to respect.  The three children are the only people who will be disadvantaged if the new will is admitted to probate.

5. The Wills Act 1968 provides, in s 7, that a person may by her will devise, bequeath or dispose of any real property or personal property to which she is entitled at the time of her death. Section 8 provides that a will is not valid unless it is in writing signed by the testator or at the testator’s direction, and signed by at least two witnesses, all signing at the same time. Section 10 prescribes detailed requirements about the signature of a deceased to a will.

6. The new will of the deceased in the present instance was not signed by her or anybody else.  She saw it before her death in draft form but not in final form.  I am satisfied that the new will represented her last wishes and intentions as to the disposition of her estate, and that she intended to sign it in the immediate future and would have done so had her death not intervened.

7. Section 11A of the Wills Act is in the following terms:

   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—

   1.any evidence relating to the manner of execution of the document; or

   2.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.

1. The new will purports to embody the testamentary intentions of the deceased.  It has not been executed in accordance with the formal requirements of the Act.  I am satisfied that the deceased intended the new will to constitute her will.

2. The deceased must be taken to have been aware that the new will required formal execution as required by s 9 of the Act.

3. Two of the children of the deceased were appointed as executors under the 1997 will, and the same two children are appointed executors by the new will. They have applied to the court for an order under s 11A, preparatory to seeking a grant of probate of the new will. The application is unopposed, and can be regarded as supported by all of the family of the deceased.

4. The application raises the question of whether a will which has been prepared by a solicitor for formal execution by the testator, but not executed before the death of the testator, can satisfy the requirements of s 11A. In the unusual circumstances of the present application I am satisfied that they can. To require disposition of the estate of the deceased pursuant to the terms of the 1997 will would be contrary to her testamentary intentions. She made a decision as to how she wanted her estate divided between the members of her family. I am satisfied that although she knew that she had to sign the will, it would not have been her intention if she had known all that we now know, that her 1997 will should remain in force until she executed the new will.

5. It will be an extremely rare case where an unexecuted will, prepared by a solicitor on the understanding that it is to be formally executed by the testator, will satisfy the requirements of s 11A. I am satisfied that in the present circumstances the new will does meet the requirements of the section.

6. There will be a declaration that the deceased intended the new will to constitute her will at the time of her death.
   

   I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

   Associate:

   Date:     5 April 2012

Counsel for the applicants:  Mr GB Howes
Solicitors for the applicants:  Howes Kaye Halpin
Date of hearing:  30 March 2012
Date of judgment:  5 April 2012