In the estate of SAS
[2017] ACTSC 289
•20 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the estate of SAS |
Citation: | [2017] ACTSC 289 |
Hearing Date: | 20 September 2017 |
DecisionDate: | 20 September 2017 |
Before: | Mossop J |
Decision: | The document dated 1 November 2015, a copy of which is Annexure B to the affidavit of Jeffrey Maxwell Rawson, affirmed 11 August 2017, is the will of SAS, notwithstanding that it has not been executed in accordance with the formal requirements of the Wills Act 1968 (ACT). |
Catchwords: | SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Wills – formalities of – document not executed in accordance with requirements of Wills Act 1968 (ACT) – electronic signature – not witnessed – s 11A of the Wills Act 1968 (ACT) |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 3092 Legislation Act 2001 (ACT), Dictionary Wills Act 1968 (ACT), ss 9(1)(b), 9(1)(c), 9(1)(d), 11A |
Cases Cited: | Re Estate of AJ (Deceased) (1996) 131 FLR 413 Re Letcher (1993) 114 FLR 397 Yazbek v Yazbek [2012] NSWSC 594 |
Parties: | Jeffrey Maxwell Rawson (Applicant) |
Representation: | Counsel Ms L Barlin (Applicant) |
| Solicitors Aulich Civil Law (Applicant) | |
File Number: | P 700 of 2017 |
MOSSOP J:
Introduction
By Application in Proceeding, dated 6 September 2017, Jeffrey Maxwell Rawson seeks an order that the copy of the document, dated 1 November 2015, constitute the will of the deceased person. The underlying proceedings were commenced by originating application, dated 6 September 2017, seeking that letters of administration be granted to him.
Rule 3092 of the Court Procedure Rules 2006 (ACT) permits the commencement of proceedings under s 11A of the Wills Act 1968 (ACT) by an application in probate proceedings which are already on foot.
Section 11A of the Wills Act 1968
The section relied upon is s 11A of the Wills Act. It provides:
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.
In Re Estate of AJ (Deceased) (1996) 131 FLR 413 at 414-15, Miles CJ said:
As far as I can ascertain s 11A has been the subject of only one previous decision of the Court in Re Letcher (1993) 114 FLR 397, Gallop J said that there were three fundamental questions of fact to be decided, namely:
"(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?"
Furthermore, as Powell J pointed out in Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, in relation to a similar provision in New South Wales, what the third question requires is not simply proof of a document purporting to embody the testamentary intention of the deceased person, but the satisfaction on the part of the Court that the deceased intended that document to constitute his or her will. A document which does no more than express the testamentary intention of the deceased, such as instructions for the drawing up of a will, do not suffice.
Where a document expressing testamentary intention has been formally executed by the testator and attested to by the witnesses as a will, all in the presence of each other, then there is a presumption that it is what was conventionally called the last will and testament of the testator. That presumption does not arise in the case of a document not formally executed and attested. On the contrary, such a document may of itself or in the circumstances suggest that the person's testamentary wishes as set out in the document represent what the testator wants to have incorporated into a will to be executed in the proper way once a will is drawn up in accordance with those wishes. Hence, there is a need in the case of an informal or unexecuted document sought to be propounded as a will under s 11A for evidence of search to ensure that there is not a will which embodies the testator's intentions as recorded in the informal or unexecuted document.
The application of a provision equivalent to s 11A, namely s 8 of the Succession Act 2006 (NSW) is illustrated by the decision of Slattery J in Yazbek v Yazbek [2012] NSWSC 594. His Honour at [78] summarised the requirements of the equivalent section in similar terms to Gallop J in Re Letcher (1993) 114 FLR 397.
Evidence relied upon.
The plaintiff read on the application:
(a)an affidavit of Jeffrey Maxwell Rawson, affirmed 11 August 2017;
(b)an affidavit of Maxine Rawson-Rodríguez, affirmed 1 August 2017; and
(c)an affidavit of Fay Lynette Rawson, sworn 11 August 2017.
Facts
The deceased died on 29 March 2016 at her home. She had taken her own life. Her husband had, in 2002, predeceased her. She did not have any children.
Her relatives learned of her death on 1 April 2016. On 3 April 2016, her sister, Maxine Rawson-Rodríguez, obtained the keys to her home from police and found on the dining room table a pile of paperwork which included a document marked “Last Will and Testament”. She also located an electronic version of that document on the deceased’s computer. The document was taken from the house by Ms
Rawson-Rodríguez and given to Fay Lynette Rawson. Ms Rawson then gave it to her solicitors.
The document is dated 1 November 2015. It is headed “Last Will and Testament”. The language of the document is consistent with and intention to make a will. It refers to property being “bequeathed” to her brother Jeffrey Maxwell Rawson. It also refers to the manner in which her superannuation is to be divided and makes provision in case her mother, one of the recipients of the superannuation, predeceases her. It is signed using an electronic facsimile of her signature and dated again at the bottom “1 November 2015”. The placing of an electronic facsimile signature was consistent with her computer technology abilities and her likely ignorance of the legal requirements for a valid will.
The will was not witnessed as required by s 9(1)(c) or (d) of the Wills Act. It is not necessary to decide whether an electronic signature may be a signature for the purposes of s 9(1)(b).
Prior to her death the deceased had a conversation with her mother, Fay Lynette Rawson, in which she said “I’m leaving you my super”. Although Ms Rawson had encouraged her children to make a will, the deceased never indicated to her that she had made a will. The deceased had financial difficulties which may have been an impediment to her seeking legal assistance in the making of a will.
Are the requirements of s 11A satisfied?
Is the 1 November 2015 document a “document”?
The Dictionary in the Legislation Act 2001 (ACT) provides:
“document means any record of information, and includes –
(a) anything on which there is writing; or
...
The document dated 1 November 2015 clearly satisfies this requirement.
Does the document purport to state the testamentary intentions of the deceased?
The 1 November 2015 document clearly contains testamentary intentions of the deceased. That is indicated both by its title as well as the substantive content which refers to property being her possessions and superannuation to be bequeathed and divided in a manner consistent with its expressing the testamentary intentions of the deceased.
Did the deceased intend the document at the time that was brought into existence to constitute her will?
It is also clear that the deceased intended the document at the time that it was brought into existence to constitute her will. Once again that is made clear by the heading to the document, its contents and the fact that it was signed. It is clear that it was not intended to be merely a document antecedent to the preparation of a formal will. That is clear because there is nothing in the content of the document or elsewhere in the evidence that would suggest that this document was merely a step along the way as opposed to being the final document intended to record the testamentary intentions of the deceased.
Conclusion
For these reasons I am satisfied that the document dated 1 November 2015 satisfies the requirements of s 11A of the Wills Act.
Orders
The order of the Court is:
1.The Court declares that the document dated 1 November 2015, a copy of which is annexure B to the affidavit of Jeffrey Maxwell Rawson, affirmed 11 August 2017, is the will of SAS, notwithstanding that it has not been executed in accordance with the formal requirements of the Wills Act 1968 (ACT).
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 4 October 2017 |
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