Plan B Trustees Ltd v Stone - [2012] WASC 81

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PLAN B TRUSTEES LTD -v- STONE [2012] WASC 81

CORAM: MASTER SANDERSON

HEARD: 16 FEBRUARY 2012

DELIVERED : 16 FEBRUARY 2012

PUBLISHED : 13 MARCH 2012

FILE NO/S: CIV 2068 of 2011

BETWEEN: PLAN B TRUSTEES LTD as Administrator of the Estate of ANNA MINA STONE ROBINSON
Plaintiff
AND
ELISABETH GEORGINA STONE
PETER JOHN STONE
First Defendants
STEPHANIE CLARE BRAUN
Second Defendant
CATHERINE MICHELLE STONE
Third Defendant

Catchwords:

Wills and probate - Document not complying with requirements of Wills Act - Original document disappeared - Whether copy should be admitted to probate - Turns on own facts

Legislation:

Wills Act 1970 (WA), s 32

Result:

Copy document admitted to probate

Category: B

Representation:

Counsel:

Plaintiff:     Mr D M Bruns
First Defendants           :     In person
Second Defendant         :     In person
Third Defendant           :     In person

Solicitors:

Plaintiff:     Pamela G McMahon
First Defendants           :     In person
Second Defendant         :     In person
Third Defendant           :     In person

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

Nil

MASTER SANDERSON: This was the plaintiff's application seeking:
1.letters of administration with a copy of an informal Will annexed be granted to the plaintiff; and
2.there be a declaration that the informal Will dated 3 February 2010 is the effective Will of the deceased.
The deceased died on 7 February 2010. She left a document purporting to embody her testamentary intentions dated 3 February 2010. The original of that document has been mislaid. Furthermore, it was only witnessed by one person. Clearly, it did not comply with the provisions of the Wills Act 1970 (WA). The plaintiff sought an order pronouncing for the force and validity of the document of 3 February 2010 in solemn form. At the conclusion of the hearing, I indicated I would make such an order. I indicated I would publish reasons at a later date. These are those reasons.
Before detailing the facts, I should mention at the hearing the plaintiff was represented by counsel. The first defendants entered an appearance and indicated they supported the plaintiffs' application. The first‑named first defendant appeared at the hearing. The second defendant also entered an appearance, but did not file a defence. She appeared at the hearing and indicated she opposed the making of the order sought. I will have more to say about her grounds for opposing the order later in these reasons. The third defendant entered an appearance and supported the application. She appeared at the hearing.
The photocopy of the document in question appears as Annexure A to these reasons. It leaves the deceased's entire estate equally to her son, Peter John Stone, and her daughter, Elizabeth Georgina Stone. The second defendant, also the daughter of the deceased, is specifically excluded as a beneficiary under the Will. The document is signed on the bottom left‑hand corner by Dr Anthony L Barr. The document is dated 3 February 2010 and it is signed by the deceased.
The circumstances in which the document was produced are set out in the affidavit of Edward Alexander Robinson, sworn 22 April 2010. Mr Robinson is the husband of the deceased. He says he recalls the deceased preparing the document whilst sitting in the back seat of a car he was driving to an appointment with Dr Barr. Mr Robinson says during the course of the appointment with Dr Barr, the deceased asked Dr Barr if he could witness her signature. He did so, and the deceased took the document and put it back in her handbag. Mr Robinson says he was aware a valid Will needed two witnesses, but in keeping with his usual practice, did not interfere in the affairs of his late wife.
As the deceased was leaving Dr Barr's consulting room, Mr Robinson says, she spoke with the receptionist. He did not overhear the conversation and does not know what was said. He does not know what became of the original of the document signed by the deceased and Dr Barr, nor does he know how a photocopy came to be produced.
The second‑named first defendant has sworn an affidavit dated 23 April 2010. He is unable to say anything about the circumstances of the signing of the document on 3 February 2010. He is a resident of Victoria and did not arrive in Perth until 10 February 2010, some three days after the deceased's passing. He says on 10 February 2010, he attended at the deceased's residence at 10 Oliver Street, Scarborough. He was advised by a member of the family, whose name he cannot recall, of a document that was 'in the purple bag'. He noticed the bag was in the lounge of the Oliver Street property, near several boxes of papers. At that time, he did not take the matter any further.
On the morning of 11 February 2010, he looked in the purple bag and found nothing. He recalls his stepfather, Mr Robinson, mentioning the document might be in the bedroom. Mr Robinson went off and returned five to 10 minutes later with a dark‑red, plastic wallet. In it were two documents. One was a copy of a professionally‑drawn Will dated 1991. The other was the handwritten document dated 3 February 2010. At first he thought it was an original. On closer inspection, he realised it was a copy. He returned the document to its wallet and put it in a box with other papers. There it remained until it was delivered to the plaintiff.
On the weekend of 13‑14 February 2010, Mr Stone was joined at the Oliver Street premises by his sister, the second defendant, and his nephew, Shannie Braun, his sister's son. The second defendant wanted to retain a copy of the documents which were to be passed on to the plaintiff. For that purpose, she had with her a printer/copier. Mr Stone was not present when the papers were taken and copied, but he says he did his best to ensure that all papers had been returned. He says he has no reason to believe the papers copied by Ms Braun were not the same as those she returned to him.
Mr Stone says he only became aware of the possible existence of the original of the document of 3 February 2010 when he first went for an interview with the plaintiff. When the photocopy was produced, his sister, the first‑named first defendant, commented she had seen the same thing, but on a different piece of paper. They discussed the matter and Mr Stone says it became clear he and his sister had seen different documents. A search was undertaken for the original of the document. He says it has not been located.
Ms Stone, the first‑named first defendant, has affirmed an affidavit dated 30 April 2010. Ms Stone says she became aware of the existence of the 3 February 2010 document the same day the deceased passed away. Her stepfather, Mr Robinson, mentioned the deceased had written the document and had it witnessed by Dr Barr. She was told by Mr Robinson that he did not know of its whereabouts.
On 9 February 2010, Ms Stone had a conversation with her sister, Ms Braun. By this stage, Ms Braun had moved into the Oliver Street property. During the course of the conversation, Ms Braun advised Ms Stone that in going through the deceased's papers she had found the 3 October 2010 document. Ms Braun said she had found it tucked beside the bed on the side where her mother slept.
On the afternoon of 9 February 2010, Ms Stone attended the Oliver Street property. Also present were Mr Robinson, Ms Braun, her niece, Catherine Michelle Stone, and one Gemma Stacey. The 3 February 2010 document was discussed. Ms Braun seemed reluctant to show Ms Stone the document. Mr Robinson indicated it was in a purple bag, on the floor in the lounge. Ms Stone took a red vinyl wallet out of the bag and found two documents - one being a professionally‑drawn typed‑up Will and the other being what she believes was the original of the handwritten document of 3 February 2010.
At par 10 of her affidavit, Ms Stone says:
The handwritten document was definitely an original as I could tell by the paper's texture, the off‑white tones of the paper and obvious ink on the page. The page was an irregular size, being shorter than A4, with the doctor's signature cramped in the bottom left corner. I remember thinking that it was so characteristic of mum to write by hand on an odd sized sheet of paper. I believe that the page annexed hereto and marked "A" is a photographic copy of the original document that I first saw and read.
Exhibit A is a photocopy of the document of 3 February 2010.
Ms Stone says she passed the original document to both Catherine and Gemma. She saw Gemma return the papers to the wallet and Ms Stone then put the wallet back in the purple bag in the lounge. As Catherine was leaving, Gemma, Catherine and Ms Stone discussed the security of the original document and the need to get 'certified photographic copies' as soon as possible. The trio resolved they would leave it to their brother, Mr Stone, who was arriving the next day.
The next time she saw the document was in the plaintiff's offices. She was surprised and 'a little horrified' to note what was produced was a photocopy and not the original she had seen. She is unable to say what became of the original and she has not undertaken any searches in an attempt to locate it. This she says is because her sister, Ms Braun, was residing in the Oliver Street premises.
Gemma Elisabeth Stacey has sworn an affidavit dated 1 June 2010. She confirms what Ms Stone says in her affidavit. She saw Ms Stone go to the purple bag and take out a maroon wallet. She read the 3 February 2010 document. She is certain it was an original. She runs through a number of reasons why she is satisfied that is the case. In particular, she noticed the document was written with a fine felt‑tip nib and she could see the slight indentations of the writing. She noted it was signed by Dr Barr and it was an irregular‑sized page. She saw Ms Stone place the original of the document back where it had come from.
Catherine Michelle Stone has sworn an affidavit dated 6 June 2010. She read what she describes as the original of the 3 February 2010 document. She describes it in some detail. She says after reading it, she gave it to Ms Stone. That was the last time she saw it. She says she has no idea what became of the original.
Dr Anthony Lawrence Barr has sworn an affidavit dated 5 May 2010. Dr Barr confirms he saw the deceased on 3 February 2010. She asked him to sign a document. He did not read it and he did not realise it was a Will. Dr Barr is satisfied when she signed the document the deceased was alert and fully cognisant.
Janice Mary Kennedy has sworn an affidavit dated 10 June 2010. Ms Kennedy is Dr Barr's receptionist. She saw the deceased on 3 February 2010, when the deceased attended with Mr Robinson for a consultation with Dr Barr. She says when the deceased left Dr Barr's consulting room, Dr Barr handed her (Ms Kennedy) a single sheet of paper and asked her to photocopy it. Ms Kennedy did not read the paper, but says it was smaller than A4 size. It was a handwritten document. Ms Kennedy noticed the word 'testament' on the document and assumed it was a Will. She says that the 3 February 2010 document is the photocopy she prepared. She handed the original and the photocopy to the deceased who placed them in her handbag. She knows nothing further as to the whereabouts of the original document.
Based upon the affidavit evidence, I am satisfied of the following facts. The deceased prepared a document in her own writing on 3 February 2010 while she was seated in the back seat of her husband's car on the way to an appointment with Dr Barr. The document represented her testamentary intentions. She signed the document in the presence of Dr Barr and she was of sound mind when she did so. When she left Dr Barr's surgery, Ms Kennedy photocopied the document and handed both the original and the photocopy to the deceased.
The deceased took both the original of the document and the photocopy home with her. She left the original in her bag, which remained in the front room of her home in Oliver Street, Scarborough. The copy she tucked down on her side of the bed. When Ms Stone attended the Oliver Street property on the day of the death of the deceased, she, Catherine Michelle Stone and Gemma Elisabeth Stacy all sighted the original of the document and noted its comments. By the following day, the original had disappeared, leaving only the copy. The document presently available is an exact replica of the document signed by the deceased.
As I indicated above, I gave the second defendant the opportunity to make submission as to why the 3 February 2010 document ought not be regarded as the Will of the deceased. As she had filed no defence and no evidence, it was difficult to know what her position might be. As I understand what she had to say, she was of the view insufficient efforts had been made to find the original of the document. In my view, nothing more could be done. The fact is the original has disappeared. The document that is available is, however, an exact copy of the document signed by the deceased and witnessed by Dr Barr.
Section 32 of the Wills Act is in the following terms:
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;
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
(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;
(b)an alteration to a will of the person;
(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 person’s will, an alteration to the person’s will, the revocation of the person’s 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.
In this case, I am satisfied that the 3 February 2010 document does embody the testamentary intent of the deceased. The document describes itself as the 'Last Will & Testamen' [sic] which is a strong indication of the deceased's intent. There is independent evidence from Dr Barr the deceased was of sound mind and she well understood what she was doing.
In all the circumstances, I am satisfied the proper order was to pronounce for the document of 3 February 2010 being the Will of the deceased.