O'Rourke v the Perpetual Trustees
[1987] TASSC 45
•6 August 1987
TASSC A41/1987
CITATION: O'Rourke v The Perpetual Trustees & Ors [1987] TASSC 45; A41/1987
PARTIES: O'ROURKE
v
THE PERPETUAL TRUSTEES & ORS
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: A41/1987
DELIVERED ON: 6 August 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF: Underwood J
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiffs:
Defendants:
Solicitors:
Plaintiffs:
Defendants:
Judgment Number: TASSC A41/1987
Number of paragraphs: 26
Serial No A41/1987
File No 2091/1985
O'ROURKE v THE PERPETUAL TRUSTEES & ORS
REASONS FOR JUDGMENT UNDERWOOD J
6 August 1987
This is an action for a decree of probate of a Will in solemn form. The deceased, Leo Bernard Kirkham, was a priest of the Roman Catholic Church. He died at Launceston on the 11 April 1985. By this action the plaintiffs propound the Will of the deceased dated the 20 May 1974 in which they are named executors. This Will is a valid will. It was drawn by a solicitor. It complies with the provisions of the Wills Act 1840, s9. By its terms, the deceased bequeathed the whole of his estate to the plaintiffs (after making provision for sale, postponement, payment of debts etc) upon trust:
"To pay or apply the whole or any part of the income or capital of my estate to such of my brothers sisters their children and descendants and all other relations not beyond the third degree as my trustees in their absolute discretion consider deserving or in need of financial assistance for their maintenance education advancement or benefit in life or such other purpose as my trustees in their absolute discretion think fit PROVIDED THAT none of my trustees shall be bound to see to the application of any income or capital so applied or paid as aforesaid. At the expiration of twenty years from the date of my death I DIRECT my trustees to pay the balance of my estate then remaining to the trustees of the property of the Roman Catholic Church in Tasmania for their own use and benefit absolutely."
The only issue in these proceedings is whether the deceased subsequently revoked that Will. The evidence was taken on affidavit and there were no disputed matters of fact.
In 1981, the deceased visited a Mr and Mrs O'Byrne of Launceston. He had with him a printed Will form of the type commonly available from stationers This form had printed on it these words:
"This is the last Will and Testament of me … of ... in the State of … I revoke all other wills made by me. I appoint … to be my Execut … , and direct that my Funeral and Testamentary Expenses and all my debts shall be paid as soon as conveniently may be after my decease.
I Give, Devise and bequeath unto"
At the foot of this page an attestation clause with appropriate blanks in it was printed.
On the reverse side 13 "directions" are printed, the sixth one of which reads:
"Every Will should be signed at the foot or end thereof by the person making it, or by some other person in his presence and by his direction; such signature must be in the presence of at least two witnesses, who must sign their names and addresses against the attestation clause before either leaves Testator's presence. It is not necessary that the witnesses should know the contents of the Will – all they have to do is to witness the Testator's signature."
On this form, in the space provided for the date, someone has written with a blue ballpoint pen, "eighty–one". The form bears the signature of the deceased and Mr and Mrs O'Byrne. It is not otherwise completed or filled in. Mr nor Mrs O'Byrne have any recollection of signing the document, or of any circumstances attending the affixation of their signatures or the signature of the deceased. The question is whether, in these circumstances, this document constitutes a revocation of the 1974 will. The printed words "I revoke all other Wills made by me" comprised the only complete sentence in the document. The Wills Act, s20, (so far as is material for the purposes of this case) provides:
"No Will or Codicil, or any part thereof, shall be revoked otherwise than as aforesaid, ... or by some writing declaring an intention to revoke the same, and executed in the manner in which a Will is herein before required to be executed ... "
I shall return to this question shortly but first, it is necessary to detail some later events as they have a bearing upon the execution of the document in 1981 (hereafter referred to as "the 1981 document").
By January 1983, the deceased was quite ill, unable to read much and dependant upon his sister, Cecily Kirkham who was and is a member of the order of the Presentation Sisters of the Blessed Virgin Mary. At the request of the deceased, Sister Kirkham bought a blank Will form from a newsagent. On the 18 January 1983 the deceased visited his sister, Joan Theresa Jones and her husband Maurice Gilbert Jones He had with him the blank Will form. It was a different form from the 1981 document. It commenced as follows:
"This is the last Will and Testament of Me …of … in the State of … I hereby revoke all Wills heretofore made by me, and declare this to be my last Will and Testament.
I appoint … of … to be Execut… and Trustee of this my Will.I Give Devise and Bequeath"
The rest of the page was left blank. At the foot, the following words are printed:
"IMPORTANT: See Note at foot of next page re Date and Signature".
On the reverse side of that page there was printed at the top, "The Will Continued". The whole of the next page is blank except for a printed date and attestation clause at the foot. At the very bottom of the page the following note was printed:
"NOTE: If the whole of the Will is written on the front page it should not be signed on this page but the word 'Dated' and all the words following it on this page should be recopied on to the front page immediately below the end of the Will and the Will then completed and signed by the testator and witnesses on the front page. If the Will extends on to this page it should be signed on this page and need not be signed on the front page, but a line should be drawn from the end of the last paragraph down to the word 'Dated'."
On another page, the document contains suggested forms of words which testator could use to write his will and in one section under the heading "DIRECTIONS" was printed:
"Every Will should be signed at the foot or end thereof (that is immediately after the last line of it and WITHOUT LEAVING ANY SPACE BETWEEN THE LAST LINE AND THE TESTATOR'S SIGNATURE) by the Testator or by some other person in his presence and by his direction and such signature should be made or acknowledged by the Testator in the presence of two or more witnesses present at the same time and such witnesses should witness and sign the Will in the presence of the Testator. In case the Testator is not able to write his name and to read he should request his witnesses to read the Will over to him and explain it to him and should then place his mark at the foot or end of the Will in the presence of two or more witnesses present at the same time and such witnesses should witness and sign the Will in the presence of the Testator. The Testator and both Witnesses should preferably use the same pen."
Mrs Jones filled in the name and address of the deceased at the top of the form. Mr Jones, no doubt having read the note at the foot of the first page, wrote the date, the 18 January 1983, and the whole of the attestation clause at the foot of the first page. He also filled in the date and the particulars left blank in the printed attestation clause at the foot of the second page. The deceased then signed the document at the foot of both pages in the sight and presence of Mr and Mrs Jones who, in the sight and presence of each other, signed in both places as witnesses to the signature of the deceased. The deceased made no mention to Mr and Mrs Jones of the 1974 Will or the 1981 document. Once signed, he simply took the form with him saying, "Cec and I will fix the rest."
At that time, like the 1981 document, the printed words, "I hereby revoke all Wills heretofore made by me, and declare this to be my last Will and Testament" was the only complete sentence apart from the attestation clauses.
If the 1981 document did not revoke the 1974 Will, the same question arises with respect to this document (hereafter called "the 1983 document").
The next day, the deceased returned to Sister Kirkham and handed her the 1983 document. He then dictated to her some clauses which she drafted out on rough paper. He referred to the 1974 Will. Sister Kirkham was familiar with its contents On prior occasions she and the deceased had discussed it. He instructed her to "write out something that would give benefit to my brothers and sisters because they have been helping me when I needed it with $20 here and $10 there and other monies". He looked at Sister Kirkham's drafts, referred to the wording of the 1974 will, and said "you can leave all that rigmarole out". He said "can't you make a simple clause just so that my brothers and sisters get it".
The deceased finally approved Sister Kirkham's draft. He told her, "just as a matter of courtesy put in the Catholic Church and Austcare too. Surely after 15 years you will not be in need and some of you will in fact be dead". There followed some discussion between them about the members of his family receiving the money. Sister Kirkham then filled in the first page of the 1983 document so that it read:
"This is the last Will and Testament of Me Reverend Leo Bernard Kirkham of Campbell Town Tasmania in the State of Tasmania I hereby revoke all Wills heretofore made by me, and declare this to be my last Will and Testament. I appoint Sister Cecily Kirkham P B V M of Campbell Town Tas Mr Morris Jones of Bellerive Tas Mrs Joan Jones of Bellerive Tas Rev Joseph McMahon of Beaconsfield of Tasmania to be Executors and Executrix and Trustee of this my Will.
I give Devise and Bequeath
I give devise and bequeath the whole of my estate both real and personal, after payment of my just debts and funeral and testamentary expenses, to be sold, and proceeds invested. The proceeds of these investments shall be reinvested, or paid according to the needs of the Kirkham family as deemed necessary by the Trustees These arrangements are to stand for the next fifteen years After this time my assets are to be equally divided between the Archdiocese of Tasmania and 'Austcare'."
Sister Kirkham pointed out that as his sister Joan was an executor she would not benefit under the Will. The deceased said "If Joan Theresa needs a holiday or needs anything else she is to get it".
The question of voluntary revocation is largely a question of the intention of the testator and hence, a question of fact in each case. Although the Wills Act, s20, provides that no will shall be revoked other than (inter alia) by writing executed in the same manner as a valid will is required to be executed, it does not provide that such writing will operate to revoke a will. The act or document of purported revocation will be ineffectual unless accompanied by animus revocandi. See for example; Re Durances' Goods (1872) L R 2 P & D 406; Re Spracklan's Estate [1938] 2 All ER 345; Powell v Powell (1866) L R 1 P & D 209; Smith v Cunningham (1823) 1 ADD 448, 162 ER 158.
Since ancient times, the right to revoke a will has been recognised. Until the enactment of the Statute of Frauds, no forms were prescribed for revocation. The intention of the testator was the governing factor. See, W S Holdsworth A History of the English Law, Vol VII 362 et seq; Burton v Cowell (1958) Cro Eliz 306; 78 ER 557 thus, it might be said that the Statute of Frauds (Wills Act; s20) made provision for an added requirement for valid revocation but did not affect the necessity for the existence of animus revocandi. F H Newark referred to the relationship between the provision of the Statute and animus revocandi in an article "Dependant Relative Revocation" (1955) 71 LQR 374 at 376:
"The argument can be advanced that Parliament, first in the Statute of Frauds and later in the Wills Act, laid down rules of form for the making and revocation of wills, and Parliament did this to avoid doubts and uncertainties in the expression of a man's last intentions Therefore, to import into a formal revocation made in accordance with the Statute a condition proved by parol evidence dehors the revocation is simply to ignore the Statute.
An answer that can be made against such an argument is that the Statute provides that a valid revocation can be effected only by following certain forms: it does not provide that following the forms can only have the result of effecting a valid revocation. (Note. The Statute of Frauds said nothing about animus revocandi, but the courts never doubted that a formally valid revocation would not revoke if there was no such animus.)"
As it is not disputed that the 1974 will is a valid will and that there is no other valid will, the onus lies upon the defendants to establish that the will has been revoked. In Harris v Berral [1856–60] 1 SW and TR 153 at 154; 164 ER 671 at 672 Cresswell J said:
"By 1 Vict c26, every will is required to be executed as therein prescribed. If it is once proved that a will has been duly executed, I hold that it is entitled to probate, unless it is also shewn that it has been revoked by one of the several modes pointed out by that Statute; and I am of the opinion that the burden of shewing that it has been so revoked lies upon the party who sets up the revocation."
See also Sprigge v Sprigge (1868) LR 1 P & D 608; Benson and Sankey v Benson (1870) L R 2 P & D 172. The case is otherwise when the revocatory clause forms part of a later otherwise valid, will. See Lowthorpe–Lutwidge and Anor. v Lowthorpe–Lutwidge and Ors [1935–37] 151.
With respect to the 1981 document, there is no evidence that it was signed by the deceased in the sight and presence of both Mr and Mrs O'Byrne nor, that either of them subscribed to the document in the presence of the deceased. It may have been signed by the deceased before he saw Mr and Mrs O'Byrne; he may have signed it in the presence of one and not the other. The printed date and attestation clauses are incomplete. I am not satisfied that the 1981 document was executed as required by the Wills Act, s20, and therefore it cannot operate to revoke the 1974 will.
The 1983 document is a different matter. In this case I am satisfied that the requirements of s20 have been fulfilled and thus, the document will revoke the 1974 will if the defendants discharge the onus of proof that the execution was accompanied by the necessary animus revocandi.
It would appear clear that the deceased was at all times aware of the existence of the 1974 will. The conclusion is inescapable that in both 1981 and 1983, upon the purchase of the blank stationer's will form, the deceased intended to make a new will. There would not otherwise be any purpose in obtaining the forms, signing them and obtaining two other signatures
The 1981 form contained the direction that it was not necessary that the witnesses should know the contents of the will. It directed that all the witnesses had to do was to witness the testator's signature. Although this statement is strictly correct, persons likely to resort to the use of such documents could easily be mislead by that direction, into the belief that the writing effecting disposition of the estate could be completed after the signatures had been appended. Of course, I cannot say that this was the deceased's belief, but it is a possible explanation for what occurred, both in 1981 and 1983. Although the direction printed on the 1983 form is much clearer, it is unlikely the deceased read it. By that stage his sight was very poor and the print is not very easy to make out.
Whatever the explanation is for appending the signatures before effecting disposition of the estate, I am satisfied that in 1983, the deceased intended to make a new will; perhaps one, as he instructed his sister, without what he considered to be unnecessary lawyer's verbiage. If the 1983 document had been executed after, instead of before, the appointment of executors and trustees and the disposition of property, it would be clear that the testator intended to revoke the 1974 will.
However, it is most unlikely that the testator believed, that the execution of the document in blank had any testamentary effect at all. The probabilities are that he intended the document to take effect when completed by Sister Kirkham at his direction.
To establish that the 1974 will was revoked, the defendants must show that the act relied upon (the execution of the 1983 document in blank) was accompanied by the requisite intention. See In the Estate of Simkin [1950] VLR 341; Mills v Millward (1889) 15 PD 20; Re Booth (1926) P D 118; In the Goods of Colberg (1841) 2 Curt 832, 163 ER 600; Clarke v Scripps (1852) 2 Rob Eccl 563; 163 ER 1414.
Although the court was assisted by the able arguments of counsel upon the doctrine of dependent relative revocation, I do not think the facts of this case require a consideration of that doctrine which only arises where there is some form of animus revocandi albeit conditional upon the happening of another event. The inference is inescapable, that at the time of the execution of the 1983 document, the deceased did not intend it to have any effect at all. No doubt, he intended it to have effect after completion at a later time, by Sister Kirkham at his direction. Accordingly, I reach the conclusion that the execution of the 1983 document, being a document the formal requirements of which comply with the Wills Act s20, did not operate to revoke the 1974 Will as at the relevant time the deceased was not possessed of the necessary intention to revoke that will.
The court pronounces for the force and validity of the Last Will and Testament of Leo Bernard Kirkham being the document bearing date the 20 May 1974.
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