In the Estate of Peter Ronald Wiseman
[2018] ACTSC 292
•24 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of Peter Ronald Wiseman |
Citation: | [2018] ACTSC 292 |
Hearing Date: | 19 October 2018 |
DecisionDate: | 24 October 2018 |
Before: | McWilliam AsJ |
Decision: | See [29] |
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 (deceased) (1993) 114 FLR 397 |
Parties: | Rachael Wiseman (Applicant) |
Representation: | Counsel Mr A Freer (Applicant) Solicitors KJB Law (Applicant) |
File Number: | PRO 235 of 2018 |
The application before the Court concerns whether a document dated 12 June 2010 constitutes an informal will of the late Peter Ronald Wiseman (the deceased). It is brought by Ms Rachael Wiseman, a daughter of the deceased and one of two executors named in the document. The application is unopposed.
Relief sought
The relief sought by the applicant is an order, pursuant to s 11A of the Wills Act1968 (ACT) (Act), that notwithstanding the testamentary document of the deceased dated 12 June 2010 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 did not have anyone witness his signature. Sections 9(1)(c) and (d) of the Act require two people to witness the signature of the testator at the same time.
Evidence
In support of the application, the applicant tendered affidavits of herself, sworn on 23 March 2018, Ms Rehetta Anne Wiseman, who is a second daughter of the deceased, sworn on 21 August 2018, a town clerk named Ms Sarah Walmsley-Stonehouse, sworn on 5 April 2018 and deposing to the appropriate searches having been undertaken, and the solicitor for the applicant, Mr Andrew Grant Freer, affirmed on 31 August 2018.
The evidence includes a copy of an earlier will dated 23 March 1988, which is plainly valid, having been evidently signed in the presence of two witnesses.
Both the applicant and Ms Rehetta Wiseman depose to the circumstances in which the document dated 12 June 2010 came into existence, discussed further below.
Service on potentially interested persons
The deceased had only two children, Rachael and Rehetta. One is the applicant and the other has sworn an affidavit consenting to the application and indicating, among other things, that she consents to the orders sought in the application, including to probate being granted solely to her sister.
At the date of his death, the deceased was married to Mrs Deborah Ann Wiseman, who has also provided written consent to the grant of probate solely to one of her daughters, the applicant.
The deceased’s two children and their mother are the only relevant beneficiaries of the last Will, having each survived the deceased. Another, more distant, relative was named, but only in the event that the deceased’s children did not survive him.
I am satisfied that the relevant 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.
Given that there is an earlier will in existence, it is relevant to note that s 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 where the person making the will is a child, 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).
I am satisfied that the testator executed a document in a like manner as a will that showed his intention to revoke the will, pursuant to s 21(b)(ii) 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?
(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 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 typed document, dated 12 June 2010. The original document is on the Court file.
The document is headed “To Whom It May Concern”, contains the address of the deceased, the date and was signed by him. It reads:
I Peter Ronald Wiseman advise that I am replacing my previous will dated 23 March 1988 and that I wish the changes to be effective from today’s date. My will is to be amended to include the following provisions:
1. The joint executors of my will are to be Rehetta Ann Wiseman and Rachael Maree Wiseman.
2. My assets are to be distributed equally between Rehetta Ann Wiseman and Rachael Maree Wiseman except as follows:
a. My DFRDB pension entitlements are to be distributed according to the rules of the fund, and
b. My Australian Public Service superannuation entitlement are to be divided equally between Deborah Ann Wiseman (Shiels), Rehetta Ann Wiseman and Rachael Maree Wiseman except in the case where Deborah Ann Wiseman (Shiels) either remarries or enters into a de-facto relationship in which case the entitlement is to be split between Rehetta Ann Wiseman and Rachael Maree Wiseman only.
3. In the event that one beneficiary out-lives the other, then the remaining shall be the sole recipient.
4. In the event that I survive both nominated beneficiaries, then I nominate Richard Wiseman to be the sole beneficiary.
…
‘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.
Consideration two: the document purports to embody the deceased’s testamentary intentions
The words of the document refer to the deceased, name the applicant as executor of his will, state what he intends for the disposal of the entirety of his estate, states those who he wishes to benefit with specificity and is signed by the deceased.
The express words of the document are sufficient to satisfy me that the document was intended to be a stand-alone document, notwithstanding the reference to the will being ‘amended’ and that the contents of the document embody the deceased’s testamentary intentions.
Consideration three: the evidence establishes that at the time of the document being brought into existence, the deceased person intended the document to constitute his will
The deceased died on 21 April 2017. The previous will of the deceased, dated 23 March 1988 provided for Deborah Ann Wiseman to receive the whole of the deceased’s estate. It was signed by the deceased and a comparison with the document dated 12 June 2010 makes it clear that it bears the same signature.
The words of the document itself establish that at the time the document was brought into existence, the deceased intended it to constitute his will. That is made clear by language such as “I am replacing my previous will dated 23 March 1988” and “I wish the changes to be effective from today’s date”. That is a clear current testamentary intention, and not a future intention or a draft of a document that was to be created in the future. The intention of the deceased was that it had testamentary effect from 12 June 2010.
In addition to this, the unchallenged affidavit evidence is that on or about 15 June 2010, the deceased gave a sealed envelope to his daughter, Rehetta Wiseman. When handing her the envelope the deceased stated “Please keep this safe, in case something happens to me. It contains my Will.” That envelope contained the document of 12 June 2010 which Rehetta opened after the deceased had died and gave directly to Mr Freer, solicitor for the applicant.
Both the applicant and her sister, Rehetta, depose to their belief based on statements their father said to Rehetta at the time that the document reflects their father’s last testamentary attentions, notwithstanding its failure to meet the formalities for a valid will.
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 document dated 12 June 2010 was brought into existence, the deceased did intend it to constitute his 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 orders of the Court are as follows:
(1) Pursuant to s 11A of the Wills Act 1968 (ACT), the document dated 12 June 2010, the original of which accompanied the application filed 3 September 2018, constitutes the last will of Peter Ronald Wiseman.
(2) Probate is granted to the applicant, Rachael Maree Wiseman, solely.
(3) The applicant has leave to approach the Registrar for the taking out of the Grant of Probate.
(4) The costs of the application are to be paid out of the estate on a solicitor client basis.
| I certify that the preceding twenty nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |