Nurse v Morfitt
[2024] WASC 96
•27 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: NURSE -v- MORFITT [2024] WASC 96
CORAM: ACTING MASTER MCDONALD
HEARD: ON THE PAPERS
DELIVERED : 27 MARCH 2024
FILE NO/S: CIV 1608 of 2022
BETWEEN: DALE ELIZABETH NURSE
Plaintiff
AND
GLEN DENIS MORFITT
First Defendant
KIM DOUGLAS MORFITT
Second Defendant
WAYNE RICHARD MORFITT
Third Defendant
Catchwords:
Wills and probate - Proof of lost Will - Presumption of destruction with intention of revocation - Presumption rebutted - Wills and probate - Informal document to operate as codicil to existing will
Legislation:
Wills Act 1970 (WA)
Result:
Order pronouncing that the 2003 Will and informal Codicil is valid and has force and effect in solemn form
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Peel Legal Barristers & Solicitors |
| First Defendant | : | Birman & Ride |
| Second Defendant | : | Birman & Ride |
| Third Defendant | : | Birman & Ride |
Case(s) referred to in decision(s):
Curley v Duff (1985) 2 NSWLR 716
Larussa v Anna Carr as administratrix of the estate of the late Giuseppe Larussa [2018] WASCA 127
McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434
McLaren v Norton [2006] WASC 305
Orifici as Executor of the Estate of Rosario Giuseppe Orifici v Orifici [2007] WASC 74
Perrin v Morgan [1943] AC 399
Powell v Dinwoodie [2012] WASC 139
Re Hampshire [1951] WN 174
Sawyer v McKenzie [2011] WASC 215
Walsh v Adrian Corey Sloan as executor of the estate of the late Laurette Dorothy Keddie [2019] WASCA 107
Wheatley v Edgar [2003] WASC 118
ACTING MASTER MCDONALD:
Lola Wyndham Morfitt (the deceased) died on 19 October 2020. The deceased was widowed at the date of her death. The deceased had four children who survived her, Dale Nurse, Glen Morfitt, Kim Morfitt and Wayne Morfitt.
Given a number of the parties share the same last name, I will refer to them by their first names with no disrespect intended.
The deceased made two wills during her lifetime, one dated 31 October 1986 and one dated 12 February 2003. The 2003 Will is lost and only a copy can be found. The deceased also made a handwritten document dated 1 May 2010 in which she provided that certain funds were to go to the Kim.
Dale commenced these proceedings seeking orders propounding the 2003 Will and 2010 document (as a codicil to the 2003 Will) in solemn form. Dale also seeks an order as to the proper construction of the 2010 document.
For the reasons that follow, I make the orders sought by Dale.
Procedural History
Dale commenced this action by writ filed 15 June 2022. Glen, Kim and Wayne are the first, second and third defendants respectively to the proceedings.
On 15 March 2023, Registrar Davies made orders that the plaintiff be granted leave to adduce any evidence by affidavit.
On 15 June 2023, Master Sanderson made orders that the determination of the application be made on the papers, with submissions to be filed by the parties by 4 August 2023.
In support of her application, Dale relies on:
(1)her affidavit sworn 21 June 2023 (Dale's first affidavit);
(2)her further affidavit sworn 21 June 2023 (Dale's second affidavit);
(3)her affidavit of scripts sworn 21 June 2023 (Dale's affidavit of scripts); and
(4)her affidavit sworn in the probate application on 24 June 2022 (Dale's probate affidavit).
Dale also relies upon an outline of submissions filed 31 July 2023.
Glen, Kim and Wayne have filed appearances but do not seek to be heard on the application.
Factual background
The 1986 Will & 2003 Will
The deceased made two wills in her lifetime, one dated 31 October 1986 (1986 Will)[1] and another dated 12 February 2003 (2003 Will).[2]
[1] Dale's affidavit of scripts [2.1]; annexure DEN1.
[2] Dale's affidavit of scripts [2.2]; annexure DEN2.
The 1986 Will was prepared by solicitors and appoints West Australian Trustees Limited as sole executor.[3] The 2003 Will was a standard form will which was completed by the deceased and appoints Dale and Glen as executors.[4] Each of the wills were duly executed before two witnesses.[5]
[3] Dale's affidavit of scripts [2.1]; annexure DEN1.
[4] Dale's affidavit of scripts [2.2]; annexure DEN2; Plaintiffs submissions [12(b)].
[5] Dale's affidavit of scripts [2.1], [2.2], annexures DEN1 and DEN2.
Save for the bequest of an engagement ring to Dale by the 2003 Will,[6] each of the wills provide that, after payment of usual expenses and debts, the residue of the estate is left to the deceased's four children in equal shares.[7]
[6] Dale's affidavit of scripts [2.2]; annexure DEN2.
[7] Dale's affidavit of scripts [2.1], [2.2]; annexures DEN1 and DEN2; Plaintiff's submissions [12(c)].
The 2003 Will expressly revokes 'all previous wills and testamentary acts and dispositions'[8] with the result that the 1986 will was revoked. The original of the 2003 Will cannot be located.
[8] Dale's affidavit of scripts [2.2]; annexure DEN2; Plaintiff's submissions [12(a)].
On 1 June 2021, Glen renounced his entitlement to apply for probate of the 2003 Will.[9]
The 2010 Codicil
[9] Dale's first affidavit; annexure DEN5; Plaintiff's submissions [13].
The deceased left a handwritten note alleged to be an informal codicil to the 2003 Will (2010 Codicil).[10] The 2010 Codicil is handwritten on the back of a letter written by the deceased thanking her family for support and outlining her wishes for her funeral.[11]
[10] Dale's affidavit of scripts [2.3]; annexure DEN3; Plaintiff's submissions [14].
[11] Dale's affidavit of scripts [2.3]; annexure DEN3.
The 2010 Codicil is headed 'Family' and is in the following terms:[12]
Any thing (sic) over $100.000 in Police + Nurses Acc. (sic) is to go to Kim for all the extra care he has given me.
Following those words is the signature of the deceased and the date, '1‑5.10', followed by the word 'Thankyou'.[13]
[12] Dale's affidavit of scripts [2.3]; annexure DEN3.
[13] Dale's affidavit of scripts [2.3]; annexure DEN3.
The 2010 Codicil does not refer to the 1986 Will or the 2003 Will and does not contain an attestation clause.
The deceased's medical records
The deceased died on 19 October 2020.[14] The death certificate records the causes of her death as septic shock from pneumonia, non-ST segment myocardial infraction and, as contributory causes, breast cancer, Alzheimer's disease and chronic kidney disease.[15]
[14] Dale's first affidavit; annexure DEN5; Plaintiff's submissions [8].
[15] Dale's first affidavit; annexure DEN5; Plaintiff's submissions [8], [22].
The medical records of the deceased included consultation notes detailing the deceased's history with Alzheimer's disease between about April 2011 to February 2020. The earliest notes indicate issues with the deceased's memory and issues with increasing memory loss in consultation notes dated 5 April 2011 and 18 August 2011, respectively.[16] The consultation notes indicate the deceased was prescribed medication for the treatment of mild to moderately severe Alzheimer's disease from 7 May 2013 and remained on that medication until the date of her death. [17]
The deceased's estate
[16] Dale's second affidavit; annexures DEN3 and DEN4.
[17] Dale's second affidavit [4], [8], [9], [10], [12]; annexures DEN, DEN6, DEN7, DEN8, and DEN10; Plaintiff's submissions [23].
The deceased held moveable property in Western Australia comprised primarily of money held in bank accounts and a retirement home deposit. Relevantly, included in the net value of the estate is money held in a P & N Bank Term Deposit Account ($124,000 as at 30 June 2020)[18] and money held in a P & N Bank Savings Account ($6,253.13 as at 5 June 2020).[19] The deceased held no immovable assets. The total net value of the deceased's estate as at 24 June 2022 was $430,585.65.[20]
Events following the deceased's death
[18] Dale's probate affidavit [3]; annexure B; Plaintiffs submissions [25].
[19] Dale's probate affidavit [3]; annexure B; Plaintiffs submissions [25].
[20] Plaintiff's submissions [24].
On 21 December 2020, Dale received an email from Perpetual Limited which, among other things, enclosed copies of: [21]
(1)the deceased's death certificate;
(2)an undated will made in 1986;
(3)A P&N Bank certificate dated 30 June 2020;
(4)A P&N Bank certificate of term deposit dated 5 June 2020; and
(5)the 2003 Will.
[21] Dale's first affidavit [20]; annexure DEN3.
On 7 August 2021, Glen sent Dale's solicitors an email which recorded:[22]
(1)some years prior to her death, the deceased told him that her will and other relevant papers were kept in her bedside cabinet drawer in her home, in a retirement village at Willagee. She asked Glen to photocopy the 2003 Will for safekeeping. Glen photocopied the 2003 Will.
(2)After the deceased's death, the original 2003 Will could not be found where the deceased said it would be or on completion of the clearing of the deceased's premises.
(3)Glen found a document dated 1 May 2010 in the deceased's handwriting which was located with the deceased's other papers that were in her bedside cabinet drawer.
(4)Glen provided the parties with a copy of the 2003 Will and a copy of the 2010 Codicil.
(5)Glen wished to renounce his entitlement as executor as a result of stress and conflict between himself and Dale arising from over the affairs of the deceased.
[22] Dale's first affidavit [22]; annexure DEN4.
Issues for determination
The following issues arise for determination:
(1)Should the court order a grant of probate of a copy of the lost 2003 Will in solemn form?
(2)Was the 2010 Codicil a valid testamentary document?
(3)If the 2010 Codicil is a valid testamentary document, what is the proper construction of the 2010 Codicil?
Should the court order a grant of probate of a copy of the lost 2003 Will in solemn form?
Glen, Kim and Wayne do not oppose the orders sought by Dale. Whilst the court takes this fact into consideration, a grant of probate in solemn form cannot be made by the consent of the parties alone.[23]
[23] Wheatley v Edgar [2003] WASC 118 [26].
The court must still be satisfied of the following five matters in order to make a grant of probate of a lost will:[24]
(1)there actually was a will;
(2)the will revoked all previous wills;
(3)the propounder of the will must overcome the presumption that when a will is not produced it has been destroyed with the intention of revocation;
(4)there must be evidence of its terms; and
(5)there must be evidence of its due execution.
[24] Curley v Duff (1985) 2 NSWLR 716 cited with approval in McLaren v Norton [2006] WASC 305 [16]; Orifici as Executor of the Estate of Rosario Giuseppe Orifici v Orifici [2007] WASC 74 [56]; Powell v Dinwoodie [2012] WASC 139 [37].
The onus of proving these matters, including the onus of overcoming the presumption of destruction with the intention of revocation, lies on the party propounding the lost will. The standard of proof is the balance of probabilities.[25]
[25] Powell v Dinwoodie [38].
Dale's evidence establishes that requirements 1, 2, 4 and 5 have been met. There was a 2003 Will, it revoked previous wills, there is evidence of its terms by production of a copy thereof and it was duly executed. It is the requirement that Dale overcome the presumption that the 2003 Will has been destroyed by the deceased with the intention of revocation that is the issue.
Where a will is traced into the possession of a testator and cannot be found on their death, there is a presumption that they destroyed it with the intention of revoking it. The strength of the presumption that needs to be rebutted will depend upon a variety of circumstances, including the character of the testator's custody over it, whether the terms of the will itself make careful and complete disposition of the testator's property and whether the testator did or did not have any motive for destroying the will.[26]
[26] McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434, 438.
The presumption may then be rebutted by evidence pointing to a higher probability that the will simply went missing or was lost or destroyed, as opposed to having been destroyed with the intention of revoking it.[27]
[27] Re Hampshire [1951] WN 174.
The onus of rebutting the presumption is on the party propounding the will.
Where the will makes a careful and complete disposition of the testator's property and the only fact that raises the presumption of revocation is that the will cannot be found, then the presumption is properly classified as weak.[28]
[28] Sawyer v McKenzie [2011] WASC 215 [36] - [37].
In Larussa v Anna Carr as administratrix of the estate of the late Giuseppe Larussa,[29] the Court of the Appeal said the following in relation to the presumption of revocation by destruction:
[T]he ordinary standard of proof on the balance of probabilities applies, but the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved. Even where the presumption may be weak, the court must still be satisfied that it has been displaced - that is, in this case the court must feel an actual persuasion that the deceased did not destroy the will with the intention to revoke it.
[29] Larussa v Anna Carr as administratrix of the estate of the late Giuseppe Larussa [2018] WASCA 127 [131].
I make the following findings of fact on the basis of Dale's unchallenged affidavit evidence:
(1)the deceased told Glen that she kept her will and other relevant papers in her bedside cabinet drawer in her unit at the retirement village in Willagee;
(2)the deceased asked Glen to photocopy the 2003 Will for safekeeping;
(3)Glen took a photocopy of the 2003 Will;
(4)there is no evidence as to whether the deceased put the 2003 Will back in the bedside cabinet after Glen photocopied it;
(5)there is no evidence that anyone removed the 2003 Will from the bedside cabinet drawer;
(6)the 2003 Will provided for the disposition of the whole of the deceased's estate;
(7)the original of the 2010 Codicil was found in the deceased's bedside drawer - the 2010 Codicil is not a will and it gives rise to an inference that it must be read together with a will of the deceased and that the deceased did not intend to die intestate;
(8)the disposition in the 2010 Codicil does not disturb the intention of the deceased that the balance of her estate be divided between her four children; and
(9)between 2010 and the date of the deceased's death, there is no evidence that the deceased's circumstances changed such that they would have a bearing on the probability of the deceased changing her mind in relation to her dispositions in the 2003 Will read together with the 2010 Codicil.
Having regard to this evidence, I am satisfied that Dale has displaced the presumption of destruction by revocation. I am positively persuaded that that the deceased did not destroy the 2003 Will with the intention to revoke it.
I am satisfied that the court should make an order propounding in solemn form a copy of the 2003 Will.
Was the 2010 Codicil a valid testamentary document?
As with an informal will, an informal codicil may be admitted to probate together with the will pursuant to s 32 of the Wills Act 1970 (WA). Section 32 of the Wills Act provides:
32. Court may dispense with formal requirements
(1)In this section and section 33 -
document means any record of information including -
(a)anything on which there is writing; or
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d)a map, plan, drawing or photograph,
and includes any part of a document within the meaning given by this subsection.
(2)A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes -
(a)a will of the person; or
(b)an alteration to a will of the person; or
(c)the revocation of a will of the person; or
(d)the revival of a will or part of a will of the person,
if the Supreme Court is satisfied that the person intended the document to constitute the persons will, an alteration to the persons will, the revocation of the persons will or the revival of a will or part of a will of the person, as the case may be.
(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.
(4)This section applies to a document whether it came into existence within or outside the State.
Before granting an order under s 32 of the Wills Act, I must be satisfied that:
(1)the 2010 Codicil is a document within the meaning of s 32(1) of the Wills Act;
(2)the 2010 Codicil was not executed in the manner required by the Wills Act;
(3)the 2010 Codicil purports to embody the testamentary intentions of the deceased; and
(4)The deceased intended the 2010 Codicil to constitute a codicil to her 2003 Will.
I am satisfied that the 2010 Codicil is a document within the meaning of s 32 of the Wills Act in that, although it was signed by the deceased, it was not witnessed, and therefore not executed, in the manner required by the Wills Act.
Given the terms of the 2010 Codicil, I am satisfied that it embodies the intentions of the deceased.
Finally, I am satisfied that, based on Dale's evidence, the deceased, given she kept the original of the 2010 Codicil in her bedside cabinet drawer, intended the 2010 Codicil to constitute a codicil to her 2013 Will.
Proper construction of the 2010 Codicil
The 2010 Codicil states 'Any thing (sic) over $100.000 in Police + Nurses Acc. (sic) is to go to Kim for all the extra care he has given me'.[30]
[30] Perrin v Morgan [1943] AC 399, 406, cited with approval in Walsh v Adrian Corey Sloan as executor of the estate of the late Laurette Dorothy Keddie [2019] WASCA 107 [24].
Given the deceased had two Police & Nurses bank accounts, the issue is whether the 2010 Codicil refers to both or either of those accounts.
Dale's evidence establishes that one of the accounts has a value of $124,000 and the other a value of $6,253.
Dale says that properly construed, the 2010 Codicil has effect with respect to both accounts - the effect being that the money in both accounts is added together and the specific gift to Kim is the excess of such total over the sum of $100,000.
In construing a will, the object is to ascertain the intention of the testator as expressed in the will itself. The same principles apply in construing a codicil. In an oft-cited passage, Lord Simon LC said in Perrin v Morgan:
[T]he fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case - what are the expressed intentions of the testator.
I am satisfied that by referring to her Police & Nurses Acc. in the 2010 Codicil, without differentiating between individual accounts held at the institution, the deceased intended to refer to the balance of all her Police & Nurses accounts such that the construction contended for by Dale is the appropriate one.
Final Orders
I make the following orders in accordance with the plaintiff's minute of proposed orders filed 31 July 2023:
(1)It is pronounced that the last will and testament of the late Lola Wyndham Morfitt dated 12 February 2003 (Will) and the handwritten Codicil dated 1 May 2010 (Codicil) to the Will is valid and has force and effect in solemn form of law as the Will and Codicil of the late Lola Wyndham Morfitt.
(2)The Probate Registry of this Court is directed to issue a grant of probate of a copy of the Will and the original of the Codicil.
(3)Upon the proper construction of the Codicil to the Will, the Codicil provides that the sum of funds in both of the deceased's Police & Nurses accounts over $100,000 is to be distributed to Kim Douglas Morfitt.
(4)A certified copy of these orders is to be included in the grant of probate of the Will and Codicil.
The plaintiff's costs of the action be paid from the estate of the late Lola Wyndham Morfitt on a solicitor and client basis.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LR
Associate to Acting Master McDonald
27 MARCH 2024
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