Re David Stevenson Gregg (Dec)

[2013] WASC 325

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE DAVID STEVENSON GREGG (DEC); EX PARTE GREGG [2013] WASC 325

CORAM:   REGISTRAR C BOYLE

HEARD:   ON THE PAPERS

DELIVERED          :   28 AUGUST 2013

FILE NO/S:   PRO 3598 of 2013

MATTER                :The Estate of David Stevenson Gregg late of 8 Edward Street, Cottesloe, Western Australia (dec)

EX PARTE

AMANDA GREGG
PATRICK GEOFFREY LILBURNE
Applicants

Catchwords:

Wills - Informal will - Evidence - Absence of evidence as to intention of deceased - Need for such evidence

Legislation:

Wills Act 1936 - 1975 (SA)
Wills Act 1970 (WA)

Result:

Application refused

Category:    C

Representation:

Counsel:

Applicants:     Mr R P Camm

Solicitors:

Applicants:     Camm & Associates

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

Baumanis v Praulin (1980) SASR 423

Briginshaw v Briginshaw [1938] 60 CLR 336

Henwood v Public Trustee (1993) 9 WAR 22

In the Estate of Graham, Deceased (1978) 20 SASR 198

Kencalo; In the Estate of Buharoff; (Unreported, NSWSC, 23 October 1991)

Matthews v Warner [1798] 4 Ves 186, 31 ER 96

Oreski v Ikac [2008] WASCA 220

Quinlivan Re Michial Quinlivan; Ex parte Quinlivan [2013] WASC 286

Re Estate of Frederick Raymond Reeve Perriman (Dec) [2003] WASC 191

1. REGISTRAR C BOYLE:  David Stevenson Gregg died on 9 March 2013 at the age of 51 years.  It seems that his death was unexpected and the cause of death is still subject to coronial enquiry.  This is an application pursuant to pt X of the Wills Act 1970 (WA) for proof of an informal will. The informal will is said to be constituted by a document that was an attachment to an email from his solicitor. The applicants are the persons named in that document as the deceased's intended executors.

The deceased's instruction and subsequent communications

1. The evidence as to the circumstances in which the document came into existence is contained in the affidavit of Andrew John McGuiness.  He is a solicitor.  He deposes that he met the deceased on 18 February 2013.  Mr McGuiness took instructions to prepare wills for the deceased and the deceased's wife.

2. Two days later Mr McGuiness emailed the deceased with draft wills.  The deceased responded promptly with an acknowledgement and a message to the effect that he and his wife would read the drafts.

3. On 4 March (that is, 12 days after he received the draft wills and two weeks after the conference giving instructions) the deceased emailed Mr McGuiness with further instructions.  Those nominated an additional executor and also alternative residuary beneficiaries in certain circumstances.

4. On the next day the deceased telephoned Mr McGuiness and there was a discussion about 'the general terms of the will'.  Later that day Mr McGuiness sent the deceased a further email attaching draft wills.  He also asked for the address of the proposed additional executor, and made suggestions about whether the appointment of a co‑executor was necessary.

5. Nothing further passed between the deceased and Mr McGuiness.

6. Mr McGuiness sent the deceased the email with the last version of the draft will at approximately 4.56 pm on 5 March, which was a Tuesday.  The deceased died on 9 March, the following Saturday.  There is no evidence that the deceased even saw the email from Mr McGuiness, or opened the attachment.  He made no response to Mr McGuiness indicating his final approval of the draft.  There is no evidence that he said anything to anyone evidencing his intention that the document should have effect as his will.  Nor is there any evidence that a printed copy of the draft was found after the death of the deceased, marked by him in some way so as to indicate approval.

Is that enough?

1. A convenient summary of the requirements for proof of an informal will is found in the reasons of Newnes AJA (Martin CJ and McLure JA concurring) in Oreski v Ikac [2008] WASCA 220 at [52] ‑ [55]. The last paragraph of that passage is critical to an application such as this:

   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.

2. The evidence in support of this application fails that requirement.  First, it does not even identify what is the 'document' in relation to which the deceased demonstrated an intention.  There was filed with the application and marked in accordance with r 12 a printed will, each page of which is inescapably marked 'draft'.  The origin of this document is not explained.  It is identical with the document attached to the affidavit of Mr McGuiness, which he swears to be a copy of the draft will electronically sent to the deceased.

3. Probate is not granted of a set of ideas.  It is granted of a testamentary document or a copy or a reconstruction of such a document.

4. The extended definition of 'document' in s 32(1) of the Wills Act does not diminish the fundamental requirement to identify the document it is said should be admitted to probate.  In fact, that extended definition underlines the importance of doing so:  how can it be said that a deceased intended a particular document to constitute his last will, when the document is not itself identified?  There must be an identified document in relation to which that intention is demonstrated.

5. If that question had been considered, then attention might have been paid to the question of whether there was any evidence that the deceased evinced the necessary intention.

6. All that the evidence does is establish that the draft was in accordance with the deceased's instructions as to his testamentary intentions.  Even there, there is an area of uncertainty:  the affidavit of Mr McGuiness shows that it was the deceased who first raised the question of an additional executor, in the belief that his wife would need assistance in executorial functions, should he be the first to die.  In his last email to the deceased, Mr McGuiness raised a question about whether that was necessary.  So there is a small area of uncertainty.

7. But even if there were not that uncertainty that is not enough.  In Oreski at [54] Newnes AJA noted,

   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.

8. In my recent published reasons in Quinlivan Re Michial Quinlivan; Ex parte Quinlivan [2013] WASC 286, I drew attention to the prevalence of applications for proof of informal wills where there is a document, but the evidence establishes no more than that the document is consistent with what was known of the deceased's testamentary intentions, and there is no evidence that the deceased intended the document in question to constitute his will. This application is another example of the phenomenon.

The dispensing power

1. It is worth noting the historical origins of the kind of legislation of which the provisions of pt X of the Wills Act in its present form are an instance.

2. The first Australian jurisdiction to enact legislation of this kind was South Australia. The first occasion on which the Supreme Court of South Australia had cause to consider what was s 12 of the Wills Act1936 ‑ 1975 (SA) was In the Estate of Graham, Deceased (1978) 20 SASR 198. The history summarised by Jacobs J at 20 SASR 201 ‑ 205 may very shortly be summarised in this way. Before 1837 the ecclesiastical courts would admit to proof a will of personal estate that was neither signed nor sealed by the will‑maker, nor witnessed. The position was eventually reached that solemnity other than writing was invariably necessary. In Matthews v Warner [1798] 4 Ves 186, 31 ER 96, Loughborough LC said:

   If such things are to be established as wills, it loudly requires the interference of the legislature to prevent such latitude in that respect, as makes the disposing of all a man’s fortune the most slight and trivial act, attended with much less of form, solemnity, and precision, than any act he could do with regard to any part of his property during his life.

3. Informality breeds uncertainty breeds controversy, and the legislature responded to the entreaties of Loughborough LC by enacting the Wills Act of 1837.  That is the progenitor of the Wills Acts of all Australian and many other jurisdictions. In its original form, more stringent than the present s 8 of the Wills Act (WA), it required that the testator should have signed the will at 'the foot or end thereof'. It also required attestation by two witnesses, as now. The prescription as to the place of execution (in particular) gave rise to claims that legitimate expressions of testamentary intention were being defeated by excessive requirements of formality. The result, after a century and a half, was legislation in the form now under consideration. From the beginning, these provisions in the South Australian legislation were often referred to as a 'dispensing power' because they enabled the court to dispense with the need for formal execution by the testator and attestation by witnesses.

4. In Baumanis v Praulin (1980) SASR 423 Mitchell J held that a document that, although embodying the testamentary intentions of the deceased person, had not been executed at all by that person, was not to be admitted to probate. However, the South Australian legislation as it then stood spoke of a document that 'has not been executed with the formalities required by this Act'. That is not what s 32 of the Wills Act provides, and there is no doubt that in Western Australia an unsigned document may be admitted to proof.  While the decisions in The Estate of Graham and Baumanis v Praulin are not directly applicable to the present Western Australian legislation, the point is that provisions of such a kind were not intended to undo entirely the fundamental reform affected by the Will Act of 1837 that required (as a general rule) that wills need to be executed and witnessed.

5. In application of Kencalo; In the Estate of Buharoff; (Unreported, NSWSC, 23 October 1991), (Powell J), Powell J observed, at 11

   It was not the intention of the Commissioners that the law should revert to the state in which it was prior to the passing of the Wills Act 1837 (Imp), thus reviving the very problems which the passing of that Act was designed to overcome ­ in particular, it is clear, in my view, that nuncupative wills (see, for example In the Goods of Scott (1903), P 243; In the Estate of Yates (1919), P 93) should not be reintroduced, nor, so it seems to me, was it intended that there should be revived the former practice of admitting to Probate instructions for the making of a will in cases in which the coming to existence of further document was prevented by the death of the intending testator.

6. These observations have been approved in judgments of this Court.  They include Henwood v Public Trustee (1993) 9 WAR 22 and Re Estate of Frederick Raymond Reeve Perriman (Dec) [2003] WASC 191.

7. The standard of proof is reasonable satisfaction.  While that remains constant, the nature of the fact to be found may influence the cogency of the evidence necessary to achieve that satisfaction:  Briginshaw v Briginshaw [1938] 60 CLR 336 per Dixon J at 362 ‑ 363. The law has always regarded the proof of testamentary intention as a matter of gravity. Although s 32 of the Wills Act may be a remedial provision, it remains the case that in order for a trier of fact to be reasonably satisfied that a document was intended by a deceased person to constitute his will, cogent evidence is needed.  That must be evidence of all the elements that the authorities make clear are the necessary elements, including ‑ most critically ‑ the evidence of how the deceased's intention was manifested.

8. That evidence is missing.  The application is refused.