James Edward Donnelly as executor of the estate of Sarah Shulman v Donnelly
[2020] WASC 254
•3 JULY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: JAMES EDWARD DONNELLY as executor of the estate of SARAH SHULMAN -v- DONNELLY [2020] WASC 254
CORAM: MASTER SANDERSON
HEARD: ON THE PAPERS
DELIVERED : 3 JULY 2020
PUBLISHED : 3 JULY 2020
FILE NO/S: CIV 1359 of 2020
BETWEEN: JAMES EDWARD DONNELLY as executor of the estate of SARAH SHULMAN
Plaintiff
AND
JAMES EDWARD DONNELLY
First Defendant
MELVILLE STANLEY BRODIE
Second Defendant
Catchwords:
Probate - Home made will meaningless - Proper approach to interpreting the will - Turns on own facts
Legislation:
Trustees Act 1962 (WA)
Wills Act 1970 (WA)
Result:
Property of deceased passes to first defendant under the will
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Butlers Barristers & Solicitors |
| First Defendant | : | Solomon Hollett Lawyers |
| Second Defendant | : | Cullen MacLeod Lawyers |
Case(s) referred to in decision(s):
Pringle v Pringle [2010] WASC 206
MASTER SANDERSON:
This is yet another case which illustrates the difficulties occasioned by so‑called 'home made' wills. There is every reason to believe the late Sarah Shulman intended to leave her entire estate to the first defendant. She had not had any contact with the second defendant for many years and was estranged from him. The deceased's will is meaningless. Even adopting the most benign interpretation of the will it simply does not in its terms provide any benefit for the first defendant. The position is saved by the Wills Act 1970 (WA).
The plaintiff is the executor of the deceased's estate. By originating summons he sought the following order:
1.Pursuant to s 92 of the Trustees Act 1962 (WA) the honourable court direct the applicant as to whether the proper construction of the will of the late Sarah Shulman is that it bequeaths to James Edward Donnelly the entire estate either:
(a)by specific bequest of the entire estate; or
(b)as the intended residual beneficiary in circumstances where no specific gifts were made.
The application was supported by four affidavits filed on behalf of the first defendant. No affidavit was filed on behalf of the second defendant. A number of objections were taken by the second defendant to each of the affidavits filed. Later in these reasons I will deal with the second defendant's objection to the various affidavits.
A copy of the deceased's will appears as attachment W to the plaintiff's first affidavit. The will is dated 22 August 2012. The will is a 'will kit' form with blank spaces for the testator to complete. The deceased completed the will by inserting her full name and address in clause 1 which contains the testator's details. She filled in the plaintiff's full name and address in clause 2 which appoints the executor of the will and trustee of the estate. There are 'ticks' adjacent to each name and address in clause 1 and 2. There is a cross striking through redundant parts and additional striking with letters 'N/A' on those parts.
Clause 3 is a clause designed to be completed for the purpose of appointing a guardian of minor children. This clause is struck through with the letters 'N/A'. The striking out of that clause mirrored the facts – the deceased never had any children.
Clause 4 deals with the provision of specific bequests. The words 'I leave the following special gifts free of all duties and charges to:' are left unaltered and unmarked. Below those words the spaces designed for inserting names of recipients of the bequests together with the property the subject matter of the bequests are:
1.Ticked but left blank in sub‑clause (a); and
2.Crossed and struck through in columns (b) and (c) with the letters 'N/A' added.
Clause 5 is designed to deal with the residue after the making of specific bequests. Both the main part of the clause and the sub‑paragraphs are left blank and struck through with the annotation 'N/A'.
Clause 6 makes provision for the event of the death of a child before the death of the testator. This clause is unaltered and unmarked.
Clause 7 dealing with donation of body organs has the word 'Yes' crossed out and the lines for listing body organs annotated with 'N/A'.
In clause 8 the word 'cremated' is both crossed and struck through and the place of burial is filled in in the deceased's handwriting as 'Karrakatta WA Jewish section'.
The word 'Testator' is handwritten on the bottom of page one adjacent to the deceased's signature. However, at clause 9 on page 2 the word 'Testator' is struck through (leaving the alternative form 'testatrix'). The pre‑populated date '19' is also crossed.
The deceased's writing on the will is legible and within the lines and spaces provided. In support of the application the plaintiff filed an affidavit of John Oswald Grace sworn 7 February 2020. Mr Grace was one of the witnesses to the will. The evidence of Mr Grace is to the effect the ticks, crosses and other annotations to the will were made by the deceased prior to the execution of the will. There is no suggestion to the contrary.
The will is otherwise executed and witnessed in accordance with the requirements of the Wills Act. Below I will go through the arguments put by the first defendant to the effect he should be regarded as the primary beneficiary under the estate or he should be entitled to the residuary estate. He is nowhere in the will mentioned as a primary beneficiary or a residuary beneficiary. Apart from being named as executor of the will he is not mentioned at all. No‑one is. It is not a question of the will being ambiguous. It is simply silent as to who is to benefit. Although it is a valid will because it complies with the provisions of the Wills Act apart from appointing the plaintiff as executor, it has no content. It makes no disposition. It is meaningless.
There was no dispute between the parties as to the principles applicable to the interpretation of a will. These were set out by Kenneth Martin J in Pringle v Pringle [2010] WASC 206 [25]. I will not repeat the principles. They should be regarded as incorporated by reference. Since that decision the principles have been widely adopted and, with respect, embodied accurately and concisely the approach to be adopted in interpreting a will.
In his written submissions, counsel for the first defendant points to the fact that construction of will is a two‑step process. The first step is to read the will on its own without regard to any evidence.[1] If this does not lead to an interpretation of the will then an attempt must be made to deduce the intentions of the testator. If those intentions cannot be readily discerned for any reason then the court should proceed to construe the will with the assistance of cannons of construction.[2]
[1] First defendant's written submissions filed 15 May 2020 [2].
[2] First defendant's written submissions filed 15 May 2020 [3].
As a statement of principle that is undoubtedly correct. I also accept that when the will is read on its own without other evidence it is meaningless. What I do not accept is the will is ambiguous.
Ambiguity arises frequently in wills. For instance a testator may leave his property to 'my nephews' who survive him. If in fact he does not have and has never had any nephews the will is clearly ambiguous. If, evidence is led that the testator's wife did have nephews with whom the testator had a close relationship, it is possible to resolve the ambiguity and conclude the testator's intention was to benefit his wife's nephews. What the first defendant is saying in this case is that the tick which appears next to the name of the first defendant and his address in clause 2 which appoints the first defendant as executor of the will and the tick which appears next to clause 4(a) and the space for the beneficiary's address is sufficient to import the name and address in clause 2 into clause 4. That is hardly an ambiguity. It requires a leap of faith which is unjustified. It is certainly true the fact the residuary clause is crossed out and said to be 'N/A'. That suggests the whole of the estate of the deceased was to be passed by way of clause 4. But to whom? The will does not say and cannot be interpreted in a way which answers the question.
Section 28A of the Wills Act is in the following terms:
28A. Use of extrinsic evidence to clarify will
(1)In proceedings to construe a will, evidence, including evidence of the testator’s intention, is admissible to the extent that the language used in, or other content of, the will renders the will or any part of the will -
(a)meaningless; or
(b)ambiguous on the face of the will; or
(c)ambiguous in the light of the surrounding circumstances.
(2)Evidence of a testator’s intention is not admissible to establish any of the circumstances referred to in subsection (1)(c).
(3)Nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will.
(4)This section applies to the will of any person dying on or after the day on which section 22 of the Wills Amendment Act 2007 comes into operation 1, whether the will was made or executed before, on or after that day, but does not apply to the will of a person who died before that day.
As I have indicated I am satisfied that the will is meaningless. Accordingly, under s 1(a) extrinsic evidence is available to clarify the will.
Turning then to the evidence and the plaintiff's affidavit, objection is taken to the second sentence of paragraph 24, paragraphs 58 and 59, paragraphs 80, 82, 85, the first sentence of paragraph 86, paragraph 93 and 100. All of these complaints are conceded and will be struck from the affidavit.
Objection is taken to paragraph 27 of the affidavit. Relevantly that paragraph says the plaintiff was told by the deceased she had visited a library to make her will and she had left everything to him. That is evidence of the testator's intention and is inadmissible save for the provision of s 28A. The plaintiff argues that if it is accepted there is an ambiguity in the content of the will then the paragraph is admissible evidence of the intentions of the testator by her use of language and symbols to dispose of her property. I do not accept that to be the case because I do not accept there is ambiguity in the will. But as I accept the will is meaningless, the paragraph is direct evidence of the testator's intention and as such it is admissible.
Objection is taken to paragraph 29. This paragraph deals with skype sessions between the plaintiff and the deceased. The date of the will was 22 August 2012. The skype records post‑dated the will and therefore are not evidence of the surrounding circumstances because they do not speak to the circumstances existing at the time the will was made. Paragraph 29 and annexure M will be struck from the affidavit.
Objection is taken to paragraph 30. That paragraph deals with what is said by the plaintiff to be a conversation with the deceased about whether the plaintiff would be willing to be her attorney. The date of the conversation is not given. It does however suggest a level of mutual trust and intimacy between the plaintiff and the deceased. While little weight can be given to the paragraph because of the failure to specify a date, I am satisfied it can remain.
Objection is taken to paragraph 32. This paragraph deals with the circumstances in which the will was signed. It is of interest by way of background and cannot affect the outcome of the application. In the interests of continuity it can remain.
Objection is taken to paragraph 33 to 42, paragraphs 44 to 46 and attachments P, Q and R to the affidavit. The second defendant says all of these paragraphs deal with events which occurred after the time the will was executed and is not evidence of surrounding circumstances at the time the will was made. The plaintiff says the evidence is relevant because it allows the court to draw inferences about the relationship between the testator and the plaintiff at the time the will was executed from the later conduct by the testator. In my view, these paragraphs deal with matters which occurred after the will was signed and are not relevant to any issue on this application. All of those paragraphs will be struck out.
Objection is taken to paragraphs 48 through to 54. This evidence deals with the relationship between Ms Dianne Boulden and Ms Boulden's involvement with the deceased primarily after the time the will was executed. With respect this evidence is irrelevant and should be struck out.
Complaint is made of paragraph 63. This evidence deals with the belief of Ms Jacqueline Brody, the daughter of the second defendant and what she believed about the place of residence of the deceased. It is not relevant to any issue and ought be struck out.
Objection is taken to paragraph 83. That paragraph contains the plaintiff's view on whether or not the will is ambiguous. With respect that is irrelevant and ought be struck out. Of course the fact the plaintiff has applied for direction indicates he was uncertain of the proper construction of the will. That is all that need be said on that issue.
Objection is taken to paragraph 86. The objection is essentially the same as the objection to paragraph 83, as is the conclusion. The views of the plaintiff as to the meaning of the will are not relevant and the paragraph will be struck out.
Objection is taken to paragraphs 90 and 91, and paragraphs 94 and 95. Essentially the objection is that the paragraphs are either conclusion or speculation. In each case that is correct. For instance in paragraph 90, the plaintiff says he believes it would have been impossible for the deceased to enter his details in the small space provided in the beneficiary section with her large handwriting. That paragraph does not constitute admissible evidence and will be struck out.
Objection is taken to the affidavit of Pamela Jean Donnelly sworn 2 March 2020. The affidavit is brief and simply is to the effect that where the plaintiff refers to his wife, the material is true and correct. While the affidavit adds very little to the overall factual matrix it is not in its form objectionable and it should stand.
Objection is taken to paragraph 5, 6 and 7 of the affidavit of John Oswald Grace sworn 7 February 2020. These objections are conceded and those paragraphs will be struck out.
Objection is taken to paragraph 8. The second defendant says that paragraph which says Mr Grace assisted the deceased with her will is embarrassing. Although it adds little if anything to the factual matrix it positions Mr Grace insofar as he is a witness to the will. The paragraphs can stand. Objection is taken to all of paragraph 16. In the first sentence of that paragraph Mr Grace gives evidence of what the deceased said to him at the time the will was signed. That is evidence of what occurred – the fact – and is admissible. The second sentence is Mr Grace's understanding of what the words the testator said meant. That is irrelevant and should be struck out.
Objection is taken to certain paragraphs of the affidavit of Ms Dianne Kathryn Boulden sworn 4 February 2020. Ms Boulden was a neighbour of the deceased and became a close friend. She clearly was of importance in caring for the deceased over a number of years. Objection is taken to paragraph 6. In that paragraph Ms Boulden says she recalls the deceased and her brother went to the United Kingdom to visit the plaintiff. Ms Boulden is setting out her understanding of the deceased's visit to the United Kingdom. The paragraph is of limited forensic value but is unobjectionable and should remain.
Objection is taken to paragraph 10. That is said to be speculation and hearsay. It is probably both. More importantly, it is irrelevant and should be struck out.
Objection is taken to paragraph 12. That paragraph reads as follows:
The deceased never mentioned any other relatives, and I would often ask her about it. The deceased would say they are 'all long gone'.
Objection is taken on the basis there is no reference to a date upon which these discussions took place. While that is true, the way in which the paragraph is framed suggests Ms Boulden discussed this issue with the deceased over a number of years. Given she knew the deceased for 'about 31 years' (see paragraph 1 of her affidavit) it is reasonable to assume these discussions took place before the will was signed. In my view, the paragraph is relevant and can stand.
Objection is taken to paragraphs 14, 16, 17, 18, 19 and 20 on the grounds of relevance. All of these paragraphs appear to deal with matters which occurred after the signing of the will. They are irrelevant to this application and although they are inoffensive and complete the narrative, they should be struck out.
Finally, complaint is made as to paragraph 25. That paragraph is in the following terms:
On a number of occasions the deceased mentioned having a will, in which she gave everything to James. I never saw this will during the time that I knew her.
This paragraph has no temporal context. Insofar as the second sentence is concerned it is a statement of fact and is unobjectionable. I am also satisfied the first sentence can stand. It must be said it is of little evidentiary consequence.
The relevant evidence then relates to three matters. First, what the deceased told the plaintiff about the contents of her will – paragraph 27 of his affidavit. Second, the evidence of Ms Boulden in paragraph 12 of her affidavit – evidence which, while it lacks a temporal context, can reasonably be assumed to relate to discussions which took place before the deceased signed her will. Third, what the deceased said to Mr Grace at the time she signed her will: paragraph 16. Importantly, all of the evidence is consistent with there being no contact between the deceased and any relatives other than the plaintiff such as would suggest someone else was to benefit under the will.
It must be acknowledged that the available evidence is not highly persuasive. But there is no other evidence which can be put against it. No evidence was led by the second defendant. Accordingly, I am satisfied that the deceased intended to leave her estate to the first defendant.
On publication of these reasons the parties ought confer in an attempt to agree orders. If no agreement can be reached, parties ought file competing minutes of orders within seven (7) days.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson3 JULY 2020
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