Re Black
[2019] VSC 29
•5 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2018 00689
IN THE MATTER of the will of CHERLEE MERILYN BLACK, deceased
-and-
IN THE MATTER of s 9 of the Wills Act 1997
| SUSAN GAI STEWART | Plaintiff |
---
JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 5 February 2019 |
CASE MAY BE CITED AS: | Re Black |
MEDIUM NEUTRAL CITATION: | [2019] VSC 29 |
---
WILLS ¾ Informal wills ¾ Whether deceased intended informal document to be her will ¾ Where deceased gave informal document to named executor for safekeeping ¾ Where subsequent dated and initialled alterations made to informal document ¾ Where alterations purport to dispose of 110 per cent of estate ¾ Wills Act 1997, s 7, s 9.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R C Wells | Hicks Oakley Chessell Williams |
| For the Contradictor | Ms R Grayson Morison |
HER HONOUR:
Introduction
Cherylee Merilyn Black died on 12 December 2017. At the date of her death, the deceased was divorced, had no children and her parents had predeceased her. The deceased’s estate totalled $254,416.33.
By an informal document dated 21 July 2014, the deceased appointed the plaintiff as her executor and devised her estate to a number of beneficiaries. The informal document was witnessed by the deceased’s general practitioner, Dr Shirley Tang, of Blackburn South Medical Centre, 164 Middleborough Road, Blackburn South. The informal document does not comply with s 7(1)(c) of the Wills Act 1997 (‘the Act’), which requires a will must be witnessed by two or more persons.
The informal document is handwritten in black ink in capital letters on what appears to be both sides of a page from a notebook. Subsequent to the signing of the informal document, it appears that the deceased made some alterations to one of the dispositions. The informal document is headed:
1/2
21st JULY 2014
LAST WILL & TESTIMONY OF CHERYLEE M. BLACK OF 10 HOLROYD CRT BLACKBURN STH, 3130 – ALSO KNOWN A [sic] ‘LEE’
…
21 JULY 2014
2/2
LAST WILL & TESTAMENT OF CHERYLEE BLACK
After the appointment of the plaintiff as executor of the estate, the informal document, with the alterations, bequeaths the deceased’s estate as follows:
I bequeath 20% of my estate to Ms Tina M Mortimor … Should I live to succeed the life of Tina, I bequeath the 20% to ‘Animal Liberation’ Australia.
I bequeath 40% of my estate to Linda Pientka … Should I live to succeed her life, I bequeath that 40% to W.W.F. (World Wide Fund – for Animals).[1]
I bequeath 10% to Heather & John Fennel … In the event of the [sic] preceeding [sic] my death, the 10% I bequeath to Sarah (nee) Fennel & Tristan Fennel, the children of Heather & John, to be divided evenly.
I bequeath 10% of my estate to Marilyn Ann Steele … In the event of Marilyn’s death preceeding [sic] mine, I bequeath the 10% to her children, Melissa Steele-Brown and Brett Steele …
I bequeath 10% of my estate to the Lort Smith Animal Rescue, Melbourne Vic.
I bequeath 10% of my estate to the North Melbourne Animal Hospital & 10% to the North Melbourne Animal Shelter.
[1]The number 40 alters the original number 30 (‘the alterations’). The alterations are initialled ‘CB’ and the date ‘7/9/14’ is written next to both alterations in the left hand margin of the page.
The last clause of the informal document states that the deceased’s estate will not include ‘my paintings, prints and posters, as I bequeath those to Susan & Douglas Stewart’.
Plaintiff’s application
On 18 January 2018, the plaintiff filed an application prepared by her for a grant of probate of the will dated 21 July 2014.
On 19 January 2018, the Deputy Registrar of Probates raised certain requisitions in respect of the application as follows:
It is apparent that the will propounded for Probate has not been executed in conformity with section 7 of the Wills Act 1997and is accordingly invalid. The Court however, is empowered pursuant to section 9 of the Act to admit such a document to Probate if it is satisfied that the deceased intended the document to be their [sic] last will; and
It appears that the Will was altered 7 September 2014 and these alterations have not been executed in a manner in which a will is required to be executed.
…
The applicant should file affidavits in support stating the acts, facts, matters and circumstances as relied upon to establish the deceased intended the document to be a will, also addressing the informal alteration.
The alterations to the informal document mean that the deceased has purported to dispose of 110 per cent of her estate. Further, the alterations were not executed in the manner in which alterations to a will are required to be executed under s 15(1) of the Act as the initials accompanying the alterations are not witnessed.
The plaintiff accepts that the deceased did not intend the alterations to have effect, however, in the event that the Court was minded to admit the alterations to probate, submissions were made as to how the estate should then be administered. In light of the plaintiff’s position, it is unnecessary to consider the issue in any detail, other than to observe that it would be improbable that the deceased would have intended to dispose of 110 per cent of her estate.
Pursuant to s 9 of the Act, the plaintiff now seeks orders that the informal document, without the alterations, be admitted to probate, notwithstanding non-compliance with the formal requirements of the Act.
In the event of the informal document not being admitted to probate, the estate of the deceased would stand to be distributed to the intestacy beneficiaries.
Procedural History
On 21 September 2018, the proceeding was adjourned to enable the plaintiff to give notice of the application to the deceased’s intestacy beneficiaries, being various paternal and maternal uncles, aunts and first cousins.
By letter dated 29 October 2018, the plaintiff’s solicitor notified the Attorney-General of Victoria of the informal document and the possibility of a portion of the estate being distributed pursuant to a cy-près scheme. This was as a result of the gifts in the informal document to the North Melbourne Animal Hospital, North Melbourne Animal Shelter and Lort Smith Animal Rescue being organisations that do not appear to exist. There are similar services in the same suburbs as the named organisations, namely, the Lost Dogs’ Home at 2 Gracie Street, North Melbourne and Lort Smith Animal Hospital at 24 Villiers Street, North Melbourne. These latter organisations are aware of this application.
The Court was subsequently satisfied that it was uneconomical or impracticable to ascertain the next of kin of the deceased. By order of the Court made 13 November 2018, independent counsel was appointed contradictor to represent the interests of the intestacy beneficiaries. Orders were also made for the filing of written submissions so that the application could be determined on the papers.
Applicable principles
In order to admit an informal will to probate under s 9 of the Act, the Court must be satisfied that the following criteria have been established, on the balance of probabilities:
(a) there must be a ‘document’;
(b) the document must express or record the testamentary intentions of the deceased; and
(c) that document must have been intended by the deceased to be his or her will.[2]
[2]Fast v Rockman [2013] VSC 18 (7 February 2013) [46]; Rowe v Storer [2013] VSC 385 (2 August 2013) [32]. See also, Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [56] (Powell JA, Priestley and Stein JJA agreeing); Oreski v Ikac [2008] WASCA 220 (31 October 2008) [52]–[53] (Newnes AJA, Martin CJ and McLure JA agreeing); Re Trethewey (2002) 4 VR 406, 408 (Beach J); Equity Trustees v Levin [2004] VSC 203 (26 May 2004) [15]; Prucha v Standing [2011] VSC 90 (22 March 2011) [6]; In the Will and Estate of Bateman [2011] VSC 277 (24 June 2011) [42].
While s 9 of the Act is a remedial provision and, ordinarily, principles of statutory construction dictate that it be given a broad construction, its remedial nature must be tempered by an acknowledgement that the legislature is not to be taken to have unduly relegated the importance of the formalities of due execution[3] or to allow an amendment that is clearly improbable.
[3]Estate of Brock [2007] VSC 415 (24 October 2007) [19]–[20].
The first two requirements, that there must be a document and that the document must express or record the testamentary intentions of the deceased, are met in this proceeding.
In respect of the third requirement, the intention of the deceased is a matter of fact and each case depends on its own facts and circumstances.[4] Pursuant to s 9(3)(b) of the Act, the Court may have regard to evidence of statements made by the testator. Ultimately, the Court must be satisfied on the balance of probabilities that the deceased, by some words or act, demonstrated an intention that, without any alteration or reservation, the document should have effect as his or her will as a legally operative document rather than a provisional, preliminary or tentative proposal.[5]
[4]Ibid [23].
[5]Fast v Rockman [2013] VSC 18 (7 February 2013) [59], [73], [75], [86], [92], [96], [105]–[110], [114].
Ordinarily the time for assessing a testator’s intention is the time of making the will, although statements and acts made after the date of the document may be taken into account to show the necessary intention.[6] As noted by Powell JA in the NSW Court of Appeal’s decision in Hatsatouris v Hatsatouris, it is necessary for a Court to be satisfied the deceased possessed the relevant intention, ‘either, at the time of the subject document being brought in being, or, at some later time’.[7]
[6]See generally In the Estate of Kelly, deceased (1983) 32 SASR 413, 417–18; Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449, 451 (Kirby P), 454–5 (Mahoney JA), 466–8 (Priestley JA); McCann v McCann [2013] NSWSC 78 (30 January 2013); cf Dolan v Dolan [2007] WASC 249 (29 October 2007) [26].
[7][2001] NSWCA 408 (30 November 2011) [56].
A will that has not been validly executed, but satisfies the requirements of s 9 of the Act, could still be refused probate where the testator lacked testamentary capacity or did not know and approve of the contents of the will. If the deceased lacked the capacity to make a will, or did not know and approve of the document, then the Court could not be satisfied that the deceased intended the document to be his or her will.[8]
[8]Re Stuckey [2014] VSC 221 (23 May 2014) [40]–[41].
To establish testamentary capacity, the Court must be satisfied that the testator understood the effect of making a will; was aware of the general nature and value of their estate; was aware of those who would have a natural claim to their estate; and was able to evaluate and discriminate between such claims[9]. A person who has capacity to make a will must also know and approve the contents of the will. In the ordinary case, proof of due execution and capacity is prima facie evidence of knowledge and approval. In the context of a document that has not been duly executed, the usual presumptions as to testamentary capacity and knowledge and approval do not apply. The presumption also does not arise where there are suspicious circumstances surrounding the making or execution of the will.[10]
[9]Banks v Goodfellow (1870) LR 5 QB 549; Bailey v Bailey (1924) CLR 558,566–7.
[10]Barry v Butlin (1938) 2 Moo 480; 12 ER 1089; Nock v Austin (1918) 25 CLR 519, 528; Fulton v Andrew [1874] All ER 1240.
For these reasons, issues related to the capacity of the deceased and knowledge and approval of the deceased are relevant factors in considering whether the informal will satisfies s 9 of the Act.
The evidence
The plaintiff was a close friend of the deceased for almost 20 years having first met the deceased in about 1998. Between May and October 2014, the deceased asked the plaintiff if she would be her executor. In September or October 2014, before the deceased left for overseas, the deceased gave the plaintiff an envelope and told her it contained her will. The deceased asked the plaintiff to keep it safe. The plaintiff did not open the envelope and filed it away. Soon after, the deceased went overseas. There is evidence that the deceased may have considered moving overseas but ultimately she returned to Australia in 2015 and purchased a property in rural Victoria in Wodonga. She also considered selling her Wodonga property and moving to Newcastle but this did not occur.
After the death of the deceased in December 2017, the deceased’s cousin rang the plaintiff to tell her of the deceased’s death. The cousin said he had searched the deceased’s house in Wodonga for a will but had not found one. The cousin described the plaintiff as a private person who never talked to him about her will. The plaintiff told the cousin that she held the deceased’s will. Although the plaintiff felt sure that the plaintiff would have told her if she had made another will, the plaintiff nevertheless made a number of enquiries, including to lawyers, as to whether the deceased made another will, other than the document given to her by the deceased in 2014. Upon being satisfied there was no later will, the plaintiff decided to make an application for probate of the informal document.
Dr Shirley Tang witnessed the deceased’s signature. In correspondence to the plaintiff dated 27 May 2018, Dr Tang said that the deceased was her patient from 27 June 2011 to 19 September 2014. On 21 July 2014, the deceased attended and was seen by a locum doctor for ear pain. Following that appointment, the deceased came into Dr Tang’s room and requested that Dr Tang witness her signature to the informal document. The deceased signed the informal document in the presence of Dr Tang. Dr Tang stated that the deceased asked her to witness the informal document because she was her regular general practitioner, seeing the deceased on average one to two times a month. Dr Tang does not know who prepared the informal will or if the deceased has any prior wills. The deceased did not tell Dr Tang the reason for making the informal will or the reasons for leaving her assets in the manner set out in the informal will.
Dr Tang stated that she did not believe the deceased’s decision making capacity was impaired on 21 July 2014. This statement was made from a medical point of view as Dr Tang stated she is not trained ‘in any legal capacity’. Dr Tang stated that from a medical point of view, the deceased’s decision making capacity was not impaired when considering the four cognitive functions outlined by neuropsychiatrist Dr John Lloyd and on 21 June [sic] 2014. The deceased did not demonstrate any cognitive impairment during her interaction with Dr Tang, nor did she have any history of doing so.
Consideration
The deceased’s failure to comply with the formal requirements for the execution of a will was no doubt due to her lack of knowledge of those requirements. Nevertheless, the steps taken by the deceased for the purpose of finalising her will before her trip overseas shows that she intended the informal document to operate and take effect as her will. The informal document is headed as the deceased’s last will, appoints an executor and the various dispositive clauses are structured in the manner of a will. The fact that the deceased attended on her regular medical practitioner to witness her signature, instead of asking the locum doctor that she saw that day, shows that the deceased believed she was executing a legally significant document. Further, the fact that when the deceased handed the envelope to the plaintiff she told the plaintiff it contained her will and to keep the document safe supports the contention the deceased considered the informal document an important document. These factors support the conclusion that the deceased intended the informal document to be her will.
Although Dr Tang states that she is not trained in any legal capacity, she states that from a medical point of view the deceased did not demonstrate any cognitive impairment during her interactions with Dr Tang, nor did she have any history of doing so. There is also no evidence that the deceased suffered from any condition that would diminish or impugn her testamentary capacity at the time she executed the informal will. Although Dr Tang did not conduct a formal assessment of the deceased’s testamentary capacity, her view strongly supports that the deceased had testamentary capacity to make a will and that she knew and approved of the contents of the informal document.
Conclusion
The Court is satisfied, on the balance of probabilities, that the deceased intended the informal document, without alterations, to be her will.
Remaining issue
As stated, the informal document bequeaths part of the deceased’s estate to organisations that do not appear to exist, namely, North Melbourne Animal Hospital, North Melbourne Animal Shelter and Lort Smith Animal Rescue. The proceeding will be listed for further directions in relation to this remaining issue.
Orders
The Court orders that pursuant to s 9(1) of the Wills Act 1997, probate of the informal document of Cherlee Merilyn Black dated 21 July 2014, without any of the alterations made on 7 September 2014, be granted to the plaintiff, Susan Gai Stewart (in the will called Susan Stewart), of 26 Highview Grove, Burwood East in the State of Victoria, the executor named therein.
---
0
10
0