Mitchell v Mitchell - [2010] WASC 174

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MITCHELL -v- MITCHELL [2010] WASC 174

CORAM: EM HEENAN J

HEARD: 15 JUNE 2010

DELIVERED : 23 JULY 2010

FILE NO/S: CIV 2373 of 2009

BETWEEN: MICHAEL MITCHELL
Plaintiff
AND
JAMES MITCHELL
First Defendant
TERESA SUK SOON MITCHELL
Second Defendant

Catchwords:

Wills - Probate - Informal wills - Detailed instructions for will given to solicitors - Solicitors prepared will in accordance with instructions - Will delivered to testator in hospital for execution - Testator died suddenly before executing will - Whether deceased authenticated and adopted draft will

Legislation:

Administration Act 1903 (WA), s 14
Wills Act 1970 (WA), s 8, s 32

Result:

Informal will admitted to probate

Category: B

Representation:

Counsel:

Plaintiff:     Ms A T Greenwood
First Defendant            :     No appearance
Second Defendant        :     In person

Solicitors:

Plaintiff:     Gibson & Gibson
First Defendant            :     No appearance
Second Defendant        :     In person

Case(s) referred to in judgment(s):

Goldie v Adam [1938] P 85; [1938] 1 All ER 586
In re Williams (dec); Wiles v Madgin [1985] 1 WLR 905; [1985] 1 All ER 964
In the Will of Lobarto Shields v Caratozzolo (1991) 6 WAR 1
Oreski v IKAC [2008] WASCA 220
Rabin v Gerson Berger Association Ltd [1986] 1 WLR 526; [1986] ANZ Conv R 675
Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191
Sugden v Lord St Leonard's (1876) 1 P.D. 154; [1874 ‑ 80] All ER Rep 21

EM HEENAN J: This is an action for proof in solemn form of law of an alleged informal will of the deceased, Kenneth Mitchell, who died on 6 November 2008. The alleged informal will is a testamentary document prepared by the deceased's solicitors shortly before his death, on instructions from the deceased, which the solicitors recorded. The solicitors prepared the document in accordance with the instructions of the deceased and delivered the document to him in hospital for execution only two days before his death, but he died suddenly, without executing the document. The issue for determination, therefore, is whether or not the evidence establishes that, notwithstanding the lack of execution, witnessing or dating of the alleged informal will, the deceased nevertheless authenticated and adopted the document as embodying his testamentary instructions ‑ Wills Act 1970 (WA) s 32(2)(a).
Kenneth Mitchell was born in Edinburgh, Scotland, on 29 August 1949. He was by occupation a window cleaner and had for many years been living at 16 Belstead Avenue, Noranda, in this State. He married the second defendant, Teresa Suk Soon Mitchell (nee Hwang) at Tuart Hill in this State on 29 August 1980 and by her had two children, James Mitchell, born 14 December 1982, and Michael Mitchell, born 11 September 1984. They are, respectively, the first defendant and the plaintiff.
His marriage to the second defendant lasted for about 28 years, until they were divorced in May 2008. The deceased did not marry or enter into any de facto relationship after the divorce. He appears to have remained on good terms with the second defendant and with his children after the divorce.
According to the death certificate, the causes of the deceased's death was possible intracranial bleeding from brain metastases (one hour) and advanced metastasis of renal cell carcinoma (one month). The evidence is that only about three or four weeks before his death the deceased was diagnosed with a brain tumour and admitted to Sir Charles Gairdner Hospital and commenced on radiation treatment. After only one session of this treatment his condition deteriorated and he was advised that the treatment had been unsuccessful and that there was nothing more that medicine could offer. This was a fatal diagnosis and the deceased was so informed by his doctors. He was moved from Sir Charles Gairdner Hospital to Bethesda Hospital, Claremont, for palliative treatment and it was at the latter hospital that he died.
During this period of hospitalisation the second defendant, by profession a nurse, took holidays and visited the deceased constantly over the days leading up to his death. As will appear from the evidence examined later, their discussions turned to the subject of the deceased's testamentary intentions and, not having made any will before, he discussed with the second defendant arrangements to give instructions for the preparation of a will. These were implemented, solicitors contacted, instructions given personally by the deceased to the solicitors for the preparation of a will, the will prepared in accordance with those instructions, returned to the deceased in hospital for execution on 3 November 2008, and left with him for consideration. The deceased had some discussions with the second defendant and others about the contents of the will, and on the morning of his death, 6 November 2008, expressed the intention that he would execute the will later that morning. Before doing so, however, and not apparently in contemplation of an imminent death, he went to the bathroom to have a shower but he collapsed in the bathroom, never recovered, and died a little later without executing the document. At the time of his death he was 59 years of age.
These proceedings were commenced by a writ of summons issued 31 July 2009 seeking proof in solemn form of the unexecuted will document. As already noted, the plaintiff is the deceased's younger son, now aged 25 years, the first defendant is his older son, now aged 27 years, and the second defendant is their mother, the deceased's former wife until the divorce of 2008. Apart from this unexecuted document, the deceased left no other will.
Accordingly, if the alleged will is not valid the deceased will have died intestate. In that case, his estate will be wholly divisible between his two children, the plaintiff and the first defendant. However, if the alleged will is valid, his estate will be distributed in accordance with its terms. These provide for the first plaintiff to be executor and trustee and to receive all the deceased's real and personal estate, to be held on trust and, after the payment of all just debts, funeral and testamentary expenses, to be held on trust in two equal parts: the first part to be held for the deceased's son, Michael Mitchell, the plaintiff, and the second half to be applied to a testamentary trust established under cl 6 of the will in a fund to be known as the Kenneth Mitchell Testamentary Trust, including all accumulations of income and accretions and investments. That fund is to be held until a distribution date, being the eightieth anniversary of the deceased's death or such earlier date as the trustee of the fund may in her absolute discretion decide. The trustee of this fund is the deceased's former wife, the second defendant, Teresa Suk Soon Mitchell, or such other person or corporation as may be appointed under a testamentary power of appointment created by cl 6.8 conferring upon the guardian the power and authority from time to time to appoint a new trustee in place of, or in addition to, any existing trustee, and to remove any trustee ‑ such powers of appointment or removal to be exercisable by deed. The guardian established by the testamentary trust is the second defendant, the deceased's former wife, so that Teresa Suk Soon Mitchell is nominated both as the initial trustee and initial guardian of this testamentary trust.
Under the terms of the testamentary document, its trustee has wide discretionary powers to apply all or part of the income or capital of the fund to any one or more of the beneficiaries in such shares and amounts as the trustee thinks fit, without obligation to make payments to all beneficiaries or to ensure equality amongst those to whom payment is made. The beneficiaries of the testamentary trust are nominated as the deceased's older son, the first defendant, James Mitchell, his spouse or domestic partner, and his children and grandchildren born before the distribution date, and any company of which any of them is a director or shareholder or any trust of which any of them is a trustee or beneficiary.
The terms of the testamentary trust also provide that at the distribution date the trustee is to distribute the fund, or the balance of it, among such of the beneficiaries living or in existence at that time as the trustee shall in her absolute discretion determine and in such proportions without regard to payments previously made to or in respect of any of the beneficiaries, provided that in the event that no beneficiary exists or is living at the distribution date the trustee shall distribute the fund to such of the next-of-kin of James Mitchell as shall be living at the date as tenants in common and equal shares.
There are extensive other powers for the trustee of the testamentary trust, including expanded powers of investment, sale, accumulation and retention, together with the power to make distributions in specie rather than in monetary form. Extensive additional powers to the testamentary trustee are conferred by a schedule which forms part of the testamentary document.
The general structure of the proposed will, therefore, is relatively simple. The nett estate of the deceased is to be divided into two equal shares, with one share being immediately distributable to the younger son and executor, the plaintiff. The remaining half share is to be subject to the testamentary trust of which the second defendant is the initial trustee and guardian, and this trust may be continued for up to 80 years, with wide discretionary powers to distribute both income and capital before then to any of the beneficiaries named in such shares or proportions as the trustee thinks fit. The beneficiaries named are the elder son, James Mitchell, the first defendant, his spouse or partner, and any children or grandchildren born before the distribution date, with an ultimate power to distribute to next-of-kin of James who may not be within the class of beneficiaries as defined. The will creates a typical protective testamentary trust for the elder son who, as the evidence to be described later reveals, was thought by his father to be in need of such protection.
From this, it follows that the only persons entitled in distribution in the event of intestacy are the plaintiff and first defendant ‑ Administration Act 1903 (WA) s 14 item 5 of the Table and, in the event that the proposed will is valid, the persons entitled in distribution are the plaintiff and the second defendant, as trustee of the testamentary trust which is held for the benefit of the first defendant, his spouse, partner, children or grandchildren, associated trusts or companies or remoter next‑of‑kin.
The evidence is that the first defendant does not at present have any spouse or partner, nor is he entitled under any other trust or as director or shareholder of any eligible corporation. It is not clear whether or not he has any children. The potential for such beneficiaries to receive an interest at the discretion of the testamentary trustee, and for remoter issue of the first defendant to do the same, is adequately represented and catered for by the joinder of the second defendant as the trustee, and hence the legal owner of the moiety of the estate to be held on that testamentary trust. I am satisfied, therefore, that all interests or potential interests in distribution under the estate of the deceased are represented by the three parties named in this action.
The plaintiff has conducted the litigation by his solicitors. Each of the first and second defendants has entered an appearance in person and each has also lodged a notice of intention to abide by the decision of the court. There was no appearance or representation for the first defendant at the trial but the second defendant appeared in person and addressed the court. She supported the plaintiff's claim for the will being propounded.
The nature and value of the assets and liabilities of the estate of the deceased are set out in an affidavit of the plaintiff sworn 15 June 2010. This shows the gross value of the estate within the State of Western Australia to be worth $1,708,678.30 and the gross liabilities amounting to $758,697.92, producing a nett value of the estate within this State of $949,980.40. The principal assets of the estate are three properties located, respectively, at 16 Belstead Avenue, Noranda; Unit 22, 6 Verdelho Drive, The Vines; and 30 Lakefront Circuit, The Vines, estimated to be worth, respectively, $700,000, $500,000 and $500,000, a total of $1,700,000. The two properties located at The Vines are let and produce some rent, the details of which are presently unknown. There are mortgages on those three properties with the amounts outstanding being respectively $458,936.26, $135,199.20 and $135,199.20. There are some small cash or deposit accounts and a small value for furniture, chattels and personal effects. The other debts are funeral expenses and an amount of $20,000 due to the second defendant for reimbursement of expenses which she paid on behalf of the deceased before and after his death.
The evidence is that the deceased is also a co‑owner of property located in the Philippines, where he conducted business in conjunction with a Thelma Rodriguez, and together purchased some properties through a company known as Powerhouse Properties Inc in or about September 2008. There is evidence showing the purchase through that company of two units in Zen Tower in the Philippines but the plaintiff is unable to obtain any further information about the details or the value of those properties at present. Without a grant of probate or other representation he is unable to obtain access to information about them in the Philippines. At present the plaintiff does not know whether there is a mortgage over those properties or what the nature or extent of the deceased's share in those properties is. It is enough for present purposes to note the possible existence of an interest in property located in the Philippines which cannot at this point be better identified or valued.
There also appear to be two superannuation portfolios which included insurance policies upon the life of the deceased. One is said to be worth approximately $42,169.95 and the second to be worth approximately $523.34, but with a life protection policy component worth $194,190, of which the second defendant is the nominated beneficiary. These are not included in the statement of assets and liabilities of the deceased, although they are disclosed in the affidavit of means. At present it is not possible to say whether all or any part of both the superannuation portfolio entitlements forms part of the assets of the deceased or whether the second defendant or some other person or persons are the beneficiaries, or whether entitlement is at the discretion of the superannuation trustees. It is unnecessary to pursue this uncertainty further at present because it does not affect any question concerning the validity or otherwise of the proposed will. Whoever obtains a grant of representation of the estate of the deceased, whether as executor or as administrator, will, no doubt, in due course investigate that matter as part of the task of identifying the assets of the estate and entering upon administration.

Events leading to the preparation of the testamentary document

When dealing with informal wills and whether or not a document purporting to embody the testamentary intentions of the deceased, even though not executed in the manner required by the Wills Act constitutes a will, Parliament has prescribed by s 32(3) that:
32(3)In forming its view, the Supreme Court may have regard (in addition to the document) to any evidence relating to the manner of execution or testamentary intentions of the person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the person.
It follows that a wide scope of evidence relating to the testamentary intentions of the deceased is available for consideration.
This considerably expands the scope of admissibility because, previously, only the terms of the deceased's will could be considered in order to identify the testamentary intent and extrinsic evidence was excluded except in cases of ambiguity or equivocation: Goldie v Adam [1938] P 85; [1938] 1 All ER 586, 87, and In re Williams (dec); Wiles v Madgin [1985] 1 WLR 905; [1985] 1 All ER 964. In the latter case a letter from a testatrix to her solicitor explaining her intentions was received in evidence on the construction of the will, but only because of an ambiguity in the terms of the testament. By contrast, counsel's opinion as to the effect of a settlement was regarded as inadmissible in construing the terms of the settlement: Rabin v Gerson Berger Association Ltd [1986] 1 WLR 526; [1986] ANZ Conv R 675. The previous law in relation to statements by the deceased as to the existence or contents of his will was examined in detail in Sugden v Lord St Leonard's (1876) 1 P.D. 154; [1874 ‑ 80] All ER Rep 21. Writing in Cross On Evidence (7th Aust ed) Butterworths (2004) Heydon J says of this case at [33,315]:
Lord St Leonards' will could not be found at his death. It had been kept in a box in the deceased's house, and its contents were well‑known to his daughter and amanuensis, Charlotte, who was able to write down a considerable portion of the document from memory. She was a beneficiary under the will, and she, as well as other witnesses, could depose to statements made by the deceased, before and after the execution of his will, to the effect that he intended to benefit her and had in fact done so. It was held, first, that the presumption of law that a will which is not forthcoming at the testator's death has been destroyed by him with an intention to revoke it was rebutted by the fact that the deceased's condition was such as to render it improbable that he could have got to the box in which the will was kept without assistance from a member of the household; secondly, that secondary evidence of the contents of the will in the form of Charlotte's direct statements together with some drafts was admissible; thirdly, that the pre‑testamentary statements could be narrated so as to confirm this evidence; and, fourthly, that the post‑testamentary declarations could be received for a similar purpose.
In this case, obviously, there is no scope for the use of such evidence to establish due execution of the informal will, but, nevertheless, this authority supports the admissibility of statements by the deceased as to the existence of and content of any alleged testamentary intention, that is, both an intention to dispose of the deceased's property in a specified way by will and the details of the nature of the dispositions intended. The effect of s 32(3) is to confirm the admissibility of such materials and to broaden the scope of admissible evidence to include relevant statements of other persons and other material circumstantial or direct evidence. I am, accordingly, satisfied that the evidence sought to be relied upon by the plaintiff in the present case is admissible and material.
Other than an affidavit of scrips and an affidavit verifying the statement of assets and liabilities of the deceased and describing other assets, the evidence in support of the plaintiff's case is contained in three further affidavits, namely, an affidavit of the plaintiff, Michael Mitchell, sworn 24 June 2009; an affidavit of the second defendant, Teresa Suk Soon Mitchell, sworn 26 November 2009; and, finally, an affidavit of Craig Harry James, sworn 24 July 2009. Directions have previously been made in this action that the trial should be conducted on affidavit evidence. No person sought to cross‑examine any of these deponents and no other evidence was adduced.

In the first affidavit, that of the plaintiff, Michael Mitchell describes the death of the deceased, the family history, the absence of any adopted child or de facto partner. He then describes how the deceased was hospitalised for about three weeks at Sir Charles Gairdner Hospital before his death and was then diagnosed with a brain tumour. According to the plaintiff, his father informed him at the commencement of this period of hospitalisation that the tumour was not life‑threatening and the plaintiff was not aware at any stage before his father's death that it was. A few days before his death the deceased was transferred to Bethesda Hospital and the plaintiff was told that this was because the treatment at Sir Charles Gairdner Hospital had been completed and that his father would receive palliative treatment at Bethesda. During his father's hospitalisation at both Sir Charles Gairdner Hospital and at Bethesda Hospital the plaintiff visited the deceased and his father would sometime discuss with him his wishes for his estate in the event of death. The plaintiff recalls the nature of these conversations but is unable to say with any degree of accuracy when they occurred. However, he summarises the conversations and meetings as follows:
9.1The Deceased told me on a number of occasions that he wanted his estate to be divided in half, with me to have one half of the estate and James to have the other half of the estate. The Deceased did not want James to have control over his half of the estate until James was responsible and mature enough to manage his own affairs. The Deceased wanted Teresa to hold James' share of the estate on behalf of James and trusted that Teresa would be able to determine when James was in a position to manage his own affairs. The Deceased wished for Teresa to give to James any income generated from his half of the estate.
9.2The Deceased mentioned on a number of occasions that he would prefer if I were to have his residential home at 16 Belstead Avenue, Noranda, and also his portion of assets he owned in the Philippines as my half of the estate. Even in light of these statements, the Deceased made it clear that he wanted me to the be executor of the estate and that I was to be given absolute discretion to elect which assets of the estate I would keep as my half share.
9.3The Deceased informed me that he had instructed solicitors to prepare a Will.
9.4I was with the Deceased on 3 November 2008 when Mr Craig James of Gibson & Gibson, lawyers, delivered a Will to the Deceased at Sir Charles Gairdner Hospital ('the Informal Will'). I noted that the Deceased did not sign the Informal Will. I did not read or discuss the Informal Will with the Deceased at this stage …
9.5On a date after 3 November 2008 the Deceased informed me that he had read the contents of the Informal Will. The Deceased told me he was happy with the majority of the Will, except for one part of the Will which may have allowed a spouse of James to receive income from James' half of the estate. James was not married or in a de facto relationship at the time and to the best of my knowledge remains single.
9.6As I was not particularly comfortable discussing estate matters with the Deceased, little else was discussed between the Deceased and myself concerning the estate other than what is detailed above.
9.7I believe from the nature of the conversations I had with the Deceased that the Informal Will was in accordance with the Deceased's last wishes for his estate, save that the Deceased did not wish for any income of the estate to be distributed to the spouse of James.
To this affidavit of the plaintiff is attached a copy of the proposed informal will identifying it as the document to which the deponent refers and the document which was produced to his father by the solicitor shortly before his death.
By her affidavit sworn 26 November 2009 the second defendant describes details of her marriage to the deceased, the birth of their children and the later divorce. She also refers to the deceased's admission to Sir Charles Gairdner Hospital and diagnosis with a brain tumour, and confirms that at the initial stage of hospitalisation the tumour was not reported as being life‑threatening. She then describes how, after the first batch of unsuccessful radiation treatment, she was advised by the deceased's doctors that he would inevitably die from the tumour but that they could not say with any degree of certainty how long he might live and, after discussion with the doctors, she told them to tell the deceased of this fatal prognosis. She then went on to describe the events and circumstances leading up to the death of the deceased as follows:
7.I arranged through my employment annual leave and spent most of the day times and evenings with the Deceased at both Sir Charles Gairdner Hospital and Bethesda in the time prior to his death. During this period, the Deceased and I engaged in numerous conversations concerning the wishes of the Deceased for his estate should he die. In my opinion as a Nurse, the Deceased did not at any stage during his period of hospitalisation, including the day of his death, display any signs that he was likely to die. He always appeared to be in a stable mental condition and was able to comprehend everything as normal. Although I recall the nature of the conversations I had with the Deceased, I cannot say with any degree of accuracy on which dates such conversations may have taken place. Save where a date is specified, I summarise the relevant conversations and occurrences below:
7.1At the commencement of his period of hospitalisation, the Deceased expressed to me that he was concerned about the distribution of his estate as he had no formal Will. The Deceased's main concern was that a portion of his estate may inevitably be distributed to James. The Deceased told me that he wanted James to benefit from the estate but did not want him to have any control over any of the assets of the estate. James is currently serving a term of imprisonment for criminal offences committed by him.
7.2On a date at the start of his hospitalisation, the Deceased told me he would prefer to distribute a greater portion of his estate to Michael than would go to James. Not long after stating this, however, he told me he wanted an even distribution of his estate between his two sons as he thought this would be more fair.
7.3The Deceased told me he did not intend to give any of the estate to myself or any other person.
7.4The Deceased told me that he wanted me to retain ownership of James' share of the estate on behalf of James until such time as James 'pulled himself together'. If this did not happen in my lifetime, the Deceased requested that Michael be given James' share of the estate on behalf of James in the same manner as my appointment. The Deceased made it clear that any revenue generated by James' share of the estate was to be given to James immediately.
7.5The Deceased and I discussed with the staff of Sir Charles Gairdner Hospital whether or not they had a service for drafting Wills. The staff provided the Deceased with contact details of Gibson & Gibson Lawyers and the Deceased arranged for Gibson & Gibson Lawyers to take instructions from the Deceased for the creation of a Will.
7.6On 3 November 2008, I was with the Deceased at Sir Charles Gairdner Hospital when the Deceased informed me that Gibson & Gibson Lawyers had delivered to him a draft Will ('the Informal Will'). The Deceased informed me that he had not executed the Informal Will.
7.7The Deceased handed me the Informal Will and I read it aloud to the Deceased until I had read aloud cl 6.1.1, particularly where that clause said: 'the spouse or domestic partner of James Mitchell'. The Deceased stopped me at this point and expressed his concern that he did not wish for the spouse or domestic partner of James Mitchell to receive any distribution or income from the estate. The Deceased informed me that he intended to contact Mr James to discuss the operation of cl 6.1.1. I did not continue reading the remainder of the document to the Deceased after this discussion.
7.8The Deceased informed me on a later date that he had read the remainder of the Informal Will on his own accord whilst I was not present.
7.9On various occasions after 3 November 2008, the Deceased informed me that he wished to sign the Informal Will. He did not mention cl 6.1.1 of the Informal Will or whether or not he had contacted Mr James.
7.10Between the date of receiving the Informal Will and the date of his death, namely being between 3 November 2008 and 6 November 2008, the Deceased made the following relevant comments:
7.10.1The Deceased wished for Michael to be executor of the estate.
7.10.2The Deceased expressed that out of his estate, he intended for Michael to receive his residential property at 16 Belstead Avenue, Noranda and his investment properties in the Philippines. The Deceased did not wish for this distribution to be drafted into the Informal Will, as he wanted Michael to elect which properties, if any, he would receive. He did not wish for Michael to be forced to take certain properties if Michael's preference was for other properties or assets of the estate.
7.10.3The Deceased was happy for Michael to be given discretion to sell any of the estate assets or otherwise deal with them, provided that Michael discussed such matters with me first and considered my advice.
7.10.4The Deceased told me on a number of occasions after 3 November 2008 but prior to his death that he needed to sign the Informal Will. Most particularly, on the date of his death I arrived at the hospital earlier in the morning than I usually would. After I had assisted the Deceased with shaving and brushing his teeth, the Deceased said words to the effect of 'I've got a few things to sort out today. First, I must sign the Will. Secondly, I must contact AMP and the police so that I may make a claim for insurance. Most importantly, however, I must sign the Will first.' I replied to the Deceased that he should not be so worried about the Will and that he should eat breakfast first and sign it afterwards. The Deceased replied words to the effect of 'I'll go to the bathroom first, and then I'll sign the Will'. I contacted the hospital staff to assist the Deceased with the bathroom. The staff suggested that the Deceased take a shower whilst he was in the bathroom, since he would be up anyway. The Deceased agreed and the staff then suggested that I take a walk or get a coffee whilst the Deceased showered. I went and read the newspaper in the staff lounge, and after doing so, I came back to the Deceased's room and noticed that he was still in the bathroom and shower. I walked around the hospital corridors and had a conversation with the hospital's chaplain, whom I saw in the corridor. During this conversation, one of the staff approached me in the corridor and informed me that the Deceased was having a medical episode of some description. This episode led to the death of the Deceased.
8.I believe from the nature of the conversations I had with the Deceased as detailed above that the Informal Will was in accordance with the Deceased's wishes for his estate. I believe that the sudden nature of the Deceased's death is the only factor which prevented the Deceased from executing the Informal Will.
The third and final affidavit is by Craig Harry James and is sworn 24 July 2009. Mr James is a partner in the firm of Gibson & Gibson, who was contacted on 31 October 2008, after working hours, by a patient care worker at Sir Charles Gairdner Hospital who asked him to visit Kenneth Mitchell, then a patient at the hospital. He had had no prior contact with Kenneth Mitchell or his family. Mr James called at the hospital and met the deceased on Saturday, 1 November 2008, and spent about an hour with him obtaining instructions. Mr James describes how the deceased was in considerable pain and how the blinds in the window of his hospital room were closed because of his sensitivity to light. During the visit the deceased went to the bathroom and Mr James noticed that he experienced significant pain when walking slowly but, despite this, Mr James was satisfied that Kenneth Mitchell was aware of what he was doing, knew the details of his affairs and the purpose of a will.
Mr James had with him at this visit a pro forma instruction sheet which his firm had prepared for taking instructions from testators. This addressed a number of topics frequently addressed or considered by people making wills and against those headings are to be found Mr James' manuscript notes of the information or instructions provided to him by the deceased. This lengthy document is annexed to Mr James' affidavit. Among the many topics which it addresses and records it notes that the executor of the client was to be his son, Mr Michael Mitchell, that he had two children and that the elder, James, was then in prison. In manuscript in Mr James' instruction sheet is his note 'James is wayward. Would blow his inheritance if received now. Michael is trustworthy and could manage his share.' These notes record that the deceased valued his assets as being worth in the order of $1.5 million, described and listed his real estate, insurance policies and superannuation, bank accounts, other items of personal property and liabilities. In relation to testamentary dispositions the notes record the intention to divide the estate equally but for a testamentary trust to be created for James' share which had the capacity to distribute capital and income. In these notes Mr James has recorded in manuscript, among other things, the following:
James has a son who should be included in the class of beneficiaries.
I explained benefit of testamentary trust for people such as James. Ken clearly trusts his former wife with whom it would seem he shares the same level of concern over the welfare of James and his child. I explained that the trustee can control distribution of the capital or income as required.
After explaining these matters to Mr Mitchell, Mr James says that the deceased instructed him to incorporate a testamentary trust in his will to receive James' share of the estate and to name his former wife and James' mother as the trustee of that trust. After that, Mr James prepared a will based on the deceased's instructions on 3 November 2009 and at about 4.30 pm that day delivered the document by hand to the deceased at Sir Charles Gairdner Hospital under cover of a letter from his firm dated Monday, 3 November 2009. He describes the occasion as follows:
The Deceased told me that he did not wish to sign the Informal Will at that time as he wished to discuss it with Teresa Suk Soon Mitchell and to consider possibly amending the Informal Will to specify the gifting of specific properties in his estate to James and to Michael. The Deceased's son Michael was present at the meeting, the blinds were open, and the Deceased appeared to be in far less pain than on the previous Saturday. The Deceased hinted that discharge from hospital might have been a possibility.
Mr James left the will with the deceased at Sir Charles Gairdner Hospital and did not see him again, nor did he receive any contact from the deceased before his death. The next involvement of Mr James was when he was contacted by Mrs Mitchell on 26 November 2008, who explained that the deceased had died without signing the Informal Will.
Also annexed to Mr James' affidavit is a copy of the unexecuted will as drafted by him and delivered to the deceased in hospital and a copy of the letter from Mr James' firm to the deceased dated 3 November. This confirmed the instructions, provided some further explanation about the nature and purpose of a testamentary trust, and enclosed a copy of the will. The letter concludes with an invitation to the deceased or his family to contact the solicitors should any explanation of the will be required and, in particular, in relation to the operation of the testamentary trust.
The will as drafted by Mr James and left with the deceased is the document which the plaintiff seeks to have admitted to probate in this action. I am satisfied that, in every respect, it reflects and implements the oral instructions given by the deceased to Mr James at the meeting at the hospital on 1 November 2008 and as recorded in the manuscript instructions recorded on the instruction sheet as made by the solicitor during that visit. The will and its terms are also consistent with the expressions of intention of the deceased as described by his former wife and by his son, the plaintiff. Furthermore, the instructions, and their implementation in the will as drafted, appear to be entirely appropriate to the deceased's circumstances and, in particular, his concern for his elder son, the first defendant.
It would seem that, at the time the will was delivered to him, the deceased did not believe himself to be at immediate risk of death and that he wished to give further thought to the will and, in particular, whether he should attempt to provide that Michael should be able to choose which of the properties should be left to him, and to have that right of choice recorded in the will. I interpolate at this point that the terms of the will as drawn conferring upon the trustee the power to preserve the estate in its existing form of investment in whole or in part and to decide at his discretion how distribution should be made and to withhold selling all or any part of the estate all mean that the will as drawn provided for the possibility that Michael could, if he wished, make any such choice in relation to the property or properties coming to him under the will, so long as the effect of this was to achieve equality of division between his moiety of the estate and the other half which was to be the subject of the testamentary trust in favour of James.
The conversation which the deceased had with the second defendant, Mrs Mitchell, about the terms of the testamentary trust providing that any spouse or partner of James could be an eligible beneficiary is capable of suggesting that the deceased had some reservations about that provision in the will. Again, the terms of that trust as drafted meant that the trustee had full discretion over whether or not to make any distributions of capital or income and, if so, how much and to which beneficiaries, it expressly being stipulated that there need not be equality of distribution as between beneficiaries. Accordingly, the testamentary trust as drawn preserved power for the trustee from time to time to decide whether, and if so how much, if any, distributions might be made to James' spouse or partner.
Further reading and reflection upon the contents of the draft will would, I am satisfied, have led any reasonably intelligent and perceptive person to appreciate this. All the indications are that the deceased was in full possession of his mental faculties and showed a measure of thoughtfulness, deliberation and proper concern in the instructions which he gave for the preparation of his proposed will and the need to make suitable provision for James. It is, therefore, quite probable that on rereading the will himself after the occasion when the second defendant began to read its terms to him, the deceased would have appreciated the flexibility and potentiality of the testamentary trust as drafted and that this appreciation would probably have dispelled his initial concerns about specifying the spouse or partner of James as an eligible beneficiary of the testamentary trust.
The subsequent statements of the deceased to the second defendant about his intention to sign the will, including his specific statements on the morning of his death of his desire to sign the will as a matter of priority, support the inference that he was by then satisfied with the terms of the will as it had been drawn. Such a degree of satisfaction would have been a logical and justifiable state of mind having regard to the terms of the will and the nature of the concerns which he had expressed. There had been no attempt to contact Mr James, the partner who drafted the will, to modify the draft or to prepare a new will despite the invitation in the letter from Mr James' firm to contact them if there was any wish for further explanation. It is not as if Mr Mitchell had difficulty or had experienced delay in obtaining legal advice or service. The rapidity with which the partner, Mr James, attended the hospital in response to the request from the social worker, for a person who was not an established client, and the speed and efficiency with which the will was prepared and submitted for execution are most commendable. That would surely have led Mr Mitchell to believe that if he was in need of further legal advice or service it could quickly and effectively have been provided.

All the evidence is to the effect that the deceased was, by the morning of 6 November 2008, satisfied with the will as drafted and was intent upon executing it formally as soon as possible. To defer doing so, at the suggestion of the second defendant, until he had completed his morning ablutions is by no means inconsistent with this expression of purpose and, indeed, seems to be a very practical thing to do. Unfortunately, neither the deceased nor the second defendant had any reason to believe that he was at risk of sudden collapse and death and I am satisfied that the probabilities are that but for this sudden unexpected intervention of fate, he would have executed the will formally in its then form later that morning. This is a conclusion on the facts as established which also means and finds that the deceased intended the draft will as submitted to him for execution to constitute his last will and that the document embodied his testamentary intentions even though it had not been executed in the manner required by s 8 of the Wills Act. This means that the document being propounded by the plaintiff amounts to an informal will of the deceased within the meaning of s 32(1) of the Wills Act and that the plaintiff is entitled to a grant of probate in solemn form of law of that document.
Before turning to the orders which should be made on the evidence as advanced and the findings which I have reached it is, nevertheless, necessary to advert to the principles which have been established by the authorities dealing with informal wills under s 32 of the Wills Act. In the matter of In the Will of Lobarto Shields v Caratozzolo (1991) 6 WAR 1, 8 Nicholson J, when dealing with an application for proof of an informal will under s 32, observed:
The plain and natural meaning of s (32) read in conjunction with s 8 permits it to be applied (where the evidence permits it) to validate a document unsigned by the testator.
In another case involving an appeal against a decision of a registrar to refuse a grant of probate of an unsigned will on the basis that the deceased had not authenticated or adopted the draft will, Barker J said in Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191 [40]:
The correct approach … is effectively to ask whether there is evidence to show that the deceased has adopted or authenticated a document said to constitute his or her testamentary intentions. The issue is ultimately a factual one. One needs to ascertain whether the deceased by his or her acts or words adopted that particular document as his or her testamentary statement, that is to say, intended that the document in question should, without more, operate as his or her will.
The attempt to prove the draft will in Perriman failed because it could not be established that the deceased had authenticated or adopted the draft will. In that case the deceased had not seen the draft after it had been prepared by his solicitor on his instructions before his death and it could not be said that he had through his actions or words intended that the document should constitute his will. The decision of Barker J was affirmed in Oreski v IKAC [2008] WASCA 220.
Oreski v IKAC was also a case where an attempt to prove an alleged informal will of the deceased failed. In that case, there was an unexecuted will document found in the deceased's car after his death. The background was that there had been a history of visits to various solicitors where the deceased had discussed making a will but had never actually done so. The trial judge had held that it was not possible to conclude that the document found in the car reflected the deceased's testamentary intentions and that the only evidence in support of that case was the evidence of the discovery of the document behind the seat cover in the back of the car. In dealing with the requirements of s 34 of the Wills Act (as it then was) Newnes JA, with the agreement of Martin CJ and McLure JA, said at [51] ‑ [55] as follows:
[51]It is clear that the will document has not been executed in accordance with s 8 of the Act. Indeed, it has not been executed at all. But the fact that a document has not been signed by the testator or testatrix does not mean that it falls outside s 34 of the Act and cannot be admitted to probate. A document which is unsigned is, within the meaning of s 34, a document which has not been executed in accordance with s 8 of the Act: see, for example, In the Estate of Williams (Dec) (1984) 36 SASR 423, 425; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, 539; Re Estate of Perriman (Dec) [2003] WASC 191 [18].
[52]In Hatsatouris v Hatsatouris [2001] NSWCA 408 [56], Powell JA (with whom Priestley and Stein JJA agreed) identified three questions of fact that arise under the New South Wales equivalent to s 34, those questions being:
1.was there a document?
2.did the document purport to embody the testamentary wishes of the deceased?
3.did the evidence satisfy the court that, either at the time the document was brought into being or at some later time, the deceased, by some words or act, demonstrate that it was their intention that the document should, without more on his or her part, operate as his or her will?
[53]That approach was followed in Perriman and by the learned primary judge in this case. In my respectful opinion, his Honour was right to do so. For present purposes, there is no material difference between s 34 of the Act and its New South Wales counterpart.
[54]It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased's testamentary intentions, that is not of itself sufficient. Section 34 does not enable any document which expresses the deceased's testamentary wishes to be admitted to probate. The document must be intended to be the legally operative act which disposes of the deceased's property upon their death; that is, it must have been intended by the deceased to have present operation as his or her will. A person may have set down in writing their testamentary intentions but not intend that the document be operative as a will. Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased's lifetime, or to be a note of instructions, or a draft will or a 'trial run': In the Estate of Masters (Dec), Hill v Plummer (1994) 33 NSWLR 446, 455; Equity Trustees Ltd v Levin [2004] VSC 203. As Young CJ in Eq pointed out in Macey v Finch [2002] NSWSC 933 [23], even where a draft will has been prepared in accordance with the deceased's instructions, it is quite common for testators to change their mind after giving instructions or on seeing the draft will.
[55]It is therefore of fundamental importance that the person seeking to propound the document establish that the deceased, by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will.
As appears from the foregoing analysis of the evidence, the situation in the present case is significantly different. Mr Mitchell did receive the draft will, had part of its contents read to him by the second defendant, and later read it himself. It is apparent that the document is in all respects consistent with the instructions given by the deceased to the solicitor on the hospital visit on 1 November 2008 and that it is also consistent with his general description of his testamentary intentions before then to his former wife and to his younger son. It is also evident that the deceased, when examining the will closely, noted some points to which he wished to give further thought and deferred immediate execution of the will for that reason. It is also clear that he did read the will again during the two days before his death and by the morning of 6 November 2008, the day of his death, he made it known to the second defendant that he wished to execute the document as it had been drafted, signifying that he was content with its terms and wished to express his testamentary intentions by that document.
Some difficulty may be experienced with the phrase, utilised in Oreski v IKAC 'that the document [in question] should, without more on his or her part, operate as his or her will', because in a case such as the present the inference must surely be that, had he not collapsed in the bathroom and died soon after, Mr Mitchell would have executed the will so that his intention at the time may be regarded as including an intention to have the document formally executed as a valid will as required by s 8 of the Wills Act so that, upon such execution, it would take effect at law. It is, therefore, possible to say in a strict sense that the deceased's intention was that the draft will would operate as his will once it was executed. However, I do not consider that this detracts from the effectiveness of the document as an informal will because s 32 itself does not use that phrase. Clearly, Newnes JA in that case was using that language to emphasise the need for the document being propounded for proof as an informal will to express the concluded testamentary intentions and decision of the deceased rather than being some provisional, preliminary or tentative proposal which had not by then received the deceased's full assent. One must be careful to avoid placing any gloss upon the statutory language which, by s 32(2), focuses attention only on whether or not the document purports to embody the testamentary intentions of the deceased, even though it has not been executed in the manner required by the Act.
Where s 32 goes on to provide for this court to be satisfied that the person intended the document to constitute the deceased's will, it cannot be taken as intending that it be a will complying with the requirements of s 8 because, otherwise, there would be no need for Part X of the Act. This case highlights the position that the breadth of the section and the Parliamentary intention are that a document which embodies the testator's settled testamentary intention is entitled to be admitted to proof notwithstanding that it has not been executed.
Accordingly, I consider that the plaintiff is entitled to an order that the undated and unexecuted draft will produced in evidence should be the subject of a grant of probate in solemn form of law that, despite the fact that it is undated, it should be treated as a will having been made on 6 November 2008, that is, on the day when the deceased had resolved to execute the document but had temporarily deferred doing so and, in the meantime, unexpectedly collapsed and died.
The court will make a declaration to that effect and direct that the formal grant of probate in accordance with this judgment shall be settled by a probate registrar with liberty to apply for any incidental directions in relation to the grant as may be necessary.