In the Estate of the late David Eric Platt
[2020] ACTSC 316
•30 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of the late David Eric Platt |
Citation: | [2020] ACTSC 316 |
Hearing Date: | 24 November 2020 |
DecisionDate: | 30 November 2020 |
Before: | McWilliam AsJ |
Decision: | See [31] |
Catchwords: | WILLS, PROBATE & ADMINISTRATION – Informality – Wills Act 1968 (ACT) s 11A |
Legislation Cited: | Legislation Act 2001 (ACT) Wills Act 1968 (ACT) ss 9, 11A |
Cases Cited: | Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 Banks v Goodfellow (1870) LR 5 QB 549 Timbury v Coffee (1941) 66 CLR 277 |
Parties: | Kaysarhn-Louisa Mary Mills (Applicant) |
Representation: | Counsel Mr A Nicolaidis (Applicant) |
| Solicitors Baker Deane & Nutt (Applicant) | |
File Number: | SC 360 of 2020 |
David Eric Platt died on 9 September 2019. He was known as ‘Wally’ to his family and is referred to as such throughout this judgment without any intended disrespect. In the days before Wally’s death, he created two documents which were handwritten at the end of a lined notepad with a lime green cover. The first document (chronologically) is dated 2 September 2019 and commences “my will or as I say [where] my stuff goes” (the informal will). The second document is dated 5 September 2019 and bears the heading “to my family from Wally” (the letter). The question for the Court’s determination is, in essence, whether one or other (or both) of those documents constitutes Wally’s final will.
Nature of the application
Proceedings have been brought ex parte by Ms Kaysarhn-Louisa Mary Mills, who is Wally’s half-sister. The Wills Act 1968 (ACT) (the Act) has a number of formal requirements for a will to be valid. In summary, a will must be in writing: s 9(1)(a). It must be signed at the foot or end by the testator (or on the testator’s behalf at their direction) in the presence of two or more witnesses who are present at the same time: ss 9(1)(b) and 9(1)(c). Those witnesses must then each attest that this occurred, through subscribing the will in the presence of the testator: s 9(1)(d).
In the present case, neither document is signed at the foot by Wally, and there is no signature of any witness to either document. Accordingly, an order (or really, a declaration) is sought pursuant to s 11A of the Act, that the informal will constitutes the will, notwithstanding that such document was not executed in accordance with the formal requirements of the Act.
Service on other potentially interested persons
The application is a preliminary step to any grant of probate (if necessary, noting that no real estate is involved here). In applications of this kind, made without the benefit of an active contradictor, it is important that notice of the proceedings be given (so far as may be practicable) to all persons who have, or may have, an interest in the proceedings. This is to give effect to the principle that where a person who is interested in the outcome of probate proceedings has been given notice of those proceedings and a reasonable opportunity to intervene in them, that person may be bound by the outcome even if not formally made a party to those proceedings: see Osborne v Smith (1960) 105 CLR 153 at 158-159.
Wally was neither married nor in a relationship at the time of his death. Both his parents are deceased, and he has no children.
Wally’s sister, Emily Elizabeth Platt, has affirmed an affidavit supporting the application and was present in Court during the hearing. Wally’s half-brother, John Thomas McCabe, similarly affirmed an affidavit supporting the application and was also present in Court during the hearing.
The only other potentially interested person is another half-brother, Timothy Mills. The evidence establishes that he has been estranged for many years, not just from Wally, but from the three other family members as well. Pursuant to an order made by the ACT Civil and Administrative Tribunal (GT418/2002), the Public Trustee and Guardian (PTG) is the appointed manager for Mr Mills. An affidavit of service on the PTG was before the Court. Correspondence from a representative of the PTG indicates that there was no intention to oppose the application, merely a request that the applicant inform the PTG of the outcome of the hearing and orders made.
I am thus satisfied that all potential beneficiaries or interested persons in this application have been properly notified of the existence of these proceedings.
The Court’s power to declare that an informal will is valid
The empowering provision is s 11A of the Act, which 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—
(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
10. The proper interpretation of s 11A of the Act in cases seeking an order that an informal will be declared valid was considered in Re Letcher (dec’d) (1993) 114 FLR 397 (Re Letcher) 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? 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?
11. In Estate of AJ (Deceased) (1996) 131 FLR 413, Miles CJ stated at [3] (emphasis added):
… 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.
12. The Chief Justice was there drawing upon observations made by Powell J in Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 540. The principle has also been recently referred to by Mossop J in In the Estate of Jansen [2020] ACTSC 130 at [4]. The three questions set out by Gallop J in Re Letcher form the issues for this application.
Consideration 1: Is there a document?
13. ‘Document’ is not defined in the Act, however, each of the two handwritten pages in the notebook fall within the definition of document 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 2: Does the document purport to embody Wally’s testamentary intentions?
14. The informal will is one page. It commences with the words, “my will”. Those express words are a clear indicator that the contents of the document that follow purport to embody Wally’s testamentary intentions. There is no suggestion that the document was written by anyone other than Wally. It was found in his very personal notebook, by his side, is written in language he uses, and his family recognises the handwriting as Wally’s. The document then contains a number of statements, which I have paraphrased for ease of reading, to the following effect:
(1)My ute (the Triton) is to go to my brother John McCabe.
(2)All my clothes and bits and pieces also go to John.
(3)Everything is John’s.
(4)My trust fund is to be split three ways between John, Kay and ‘Dottie’, also known as Emily.
15. The remainder of the document contains expressions of affection for John, Kay and Dottie, the details of which are unnecessary to set out here. It suffices to state that the remainder of the document confirms it was prepared in contemplation of death.
16. The document is unsophisticated, both in the language used and as to its contents. For example, the document is silent on matters such as appointing an executor. However, what is set out in the informal will as described above is sufficient to satisfy me that it nevertheless purports to embody Wally’s testamentary intentions.
Consideration 3: Does the evidence satisfy the Court that at the time of the document being brought into existence, the deceased person intended the document to constitute his will?
17. As emphasised in [11] above, this consideration requires the Court to turn its mind to what the deceased intended in writing the document. In the present case, part of that consideration involves the Court being satisfied that the author of the document had testamentary capacity, so as to form the requisite intention.
18. The solicitor for the applicant addressed this as a preliminary issue, because although the document dated 2 September 2019 was rational on its face, the presumption that the testator knew and approved of the contents of the will (as to which see Banks v Goodfellow (1870) LR 5 QB 549 at 565) does not arise, because it had not been executed in accordance with the Act.
19. Relevant to the submissions made on this application, satisfaction that Wally had testamentary intention involves the Court assessing whether Wally appreciated the extent of the property of which he was disposing, and whether he comprehended the claims to which he ought to give effect: see Timbury v Coffee (1941) 66 CLR 277 at [283].
20. There were also a number of matters that could potentially give rise to a concern about a lack of testamentary capacity. The first was the fact that the trust fund referred to in the document was in fact managed by the PTG. The solicitor appearing for the applicant was concerned to ensure that the Court be made aware that the reason the PTG was appointed to manage the trust was unrelated to Wally’s mental capacity. Having regard to the evidence before the Court, I accept that submission.
21. Secondly, the informal will does not refer to an amount of superannuation that Wally appears to have earned. The explanation for the document’s lack of a specific reference to superannuation as an asset forming part of Wally’s estate was that, due to the perceived modest amount, Wally was either unaware of its existence or it could be inferred that he did not consider it to be of sufficient value to single out for mention in the informal will. It was not a case of Wally not having sufficient mental capacity to realise the extent of the property he was dealing with. Again, I accept that submission.
22. Thirdly, Mr Mills is not referred to in the informal will, despite having a familial relationship with Wally. The affidavit evidence established that due to the estrangement of many years, Wally simply did not consider Mr Mills to be part of his family. I therefore accept the lack of a reference to Mr Mills does not give rise to any inference that Wally did not appreciate who might have a claim on his estate.
23. Other circumstances were also discussed during the hearing which were relevant to Wally’s state of mind at the time the document was purportedly written, but none of those matters, either individually or in combination, led me to draw any inference that Wally may not have had testamentary capacity at the time he created the informal will.
24. On the contrary, I accept the submissions of the applicant that, at the time the informal will was brought into existence, the deceased intended that document to constitute his last will.
25. The obvious starting point supporting that conclusion is that the document is headed “my will”. The timing also supports such a finding, in that the date indicates that the informal will was prepared in close proximity to, and in contemplation of, Wally’s death. Although Wally did not sign it, there is nothing about the document that suggests it was a draft or in any way incomplete. The notebook in which the informal will was found was kept as part of a bundle of documents which included bank account statements and other documents of a similar nature that Wally had next to him when he died. It was clear from the circumstances of the location of the bundle of documents that Wally had attempted to gather together the necessary items that would assist his family in the distribution of his estate after he had died.
26. The evidence discloses that a thorough search has been made and that there is no other document purporting to contain Wally’s testamentary intentions, apart from the letter. In my view, the existence of the letter provides further support for the conclusion that Wally intended the informal will to be his final will. The letter commences with the words “to my family from Wally”. What follows is a single page where Wally has written a personal message to each of Dottie, John and Kay. The tone and content of the letter are very personal to the family and it is unnecessary to set it out in full in these reasons.
27. There is no explicit reference in the letter to the informal will. However, as the page on which the letter was written immediately precedes the informal will in the bound notebook, it may be readily inferred that Wally intended the two documents to be read at the same time. There is also one part of the letter that (to my mind) carries some significance for the determination of this application. That passage is as follows:
…now let me say dottie…[you are] my lil sis and if u get everything Pleas[e] do the …right thing split it 3 ways u John and Kay ok the money split John is to have my ute no matter [what, got it?] no matter [what].
28. The reference to “if you get everything” suggests that Wally either knew or suspected the informal will had not been properly executed and that this might have legal consequences, one of which would be that his sister may have priority on intestacy over his two half-siblings, John and Kay. The letter then broadly repeats the testamentary intentions expressed in the informal will and set out above at [13], although in greater detail.
29. Due to the letter discussing Wally’s testamentary intentions, and the fact that such document is dated at a later point in time, it is necessary to give separate consideration to whether in fact, the letter was intended by Wally to constitute his final will, or possibly to supplement (in the sense of a codicil) the earlier document. I do not find that to be the case. On its face, the language and content of the letter is more in the form of an explanation to his family of the reasons behind the terms of the informal will, as well as a message of love to them. I have therefore concluded that it is only the earlier document that Wally intended to be his will, although it perhaps makes little difference in this matter, as the terms of the letter and the informal will are broadly consistent as to the substance of Wally’s intentions. I have said broadly, because the letter does make reference to each of John, Kay and Dottie taking “something to remember me by”. However, as submitted by the solicitor for the applicant – on instructions from her and with the apparent consent of John and Dottie – this has been interpreted as meaning that Wally was giving each of them the opportunity to choose one of Wally’s hooded jumpers, described as a ‘hoodie’. This is not the forum for interpreting the words of the letter. It is sufficient to say that the additional comment in the letter does not cause me to alter any of the above findings.
Conclusion and orders
30. For these reasons, I have accepted the submissions made by the solicitor appearing for the applicant and determined that the informal will is the document constituting the will. Accordingly, I am prepared to make a declaration to give effect to the order sought.
31. The Court declares that:
1. Pursuant to s 11A of the Wills Act 1968 (ACT), the document signed by David Eric Platt, dated 2 September 2019, and produced to the Court, a true copy of which is annexed to the affidavit of Kaysarhn-Louise Mary Mills affirmed 9 September 2020 and marked ‘B’, constitutes the last will of the late David Eric Platt.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: |
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