Re Davis (a pseudonym)
[2023] VSC 293
•2 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2021 2021 21389
IN THE MATTER of the will and the estate of FRED DAVIS (a pseudonym), deceased
| GABE DAVIS (a pseudonym) | Plaintiff |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Written submissions |
DATE OF JUDGMENT: | 2 June 2023 |
CASE MAY BE CITED AS: | Re Davis (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 293 |
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WILLS AND ESTATES – Application to admit informal will to probate – Whether deceased had testamentary capacity – Whether deceased intended informal will to be his will – Application granted – Wills Act 1997, ss 7 and 9 – Banks v Goodfellow (1870) LR 5 QB 549; Re Hodges (1988) 14 NSWLR 698; Stuart v Kirkland-Veenstra (2009) 237 CLR 215; Fielder v Burgess [2014] SASC 98; Robinson v Jones [2015] VSC 222; Re White; Montgomery & Anor v Taylor [2018] VSC 16; Application by Maggie Riman (Estate of Rita Riman) [2022] NSWSC 872; Re Kairouz [2023] VSC 168.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms L Dawson | Gordon Legal |
HIS HONOUR:
Fred Davis[1] died by suicide on or around 11 June 2021 leaving a document dated 11 June 2021 which he signed and which was described as a will (the 2021 document). The 2021 document does not, however, comply with the formal requirements for the execution of a will. It was not made or acknowledged by the deceased in the presence of two or more witnesses, who also signed the will in the presence of the deceased, as required by ss 7(1)(c) and (d) of the Wills Act 1997 (the Act).
[1]A pseudonym.
The 2021 document purports to appoint an ‘attorney’ as executor of the deceased’s estate, but does not name a specific person.
On 6 December 2021, the plaintiff filed an originating motion for a grant of probate of the 2021 document. The plaintiff is one of the deceased’s two adult sons and one of the beneficiaries under the 2021 document. The inventory of assets and liabilities filed with the application records the gross value of the estate to be $2,492,773.56.
Factual background
The deceased was married twice, first in 1997 and then in 2003. The deceased and his second wife divorced in around 2007.
Prior to his death, the deceased was in a domestic relationship with Caroline Keaton[2] for about 10 years. Ms Keaton has two children, one of whom is Heather.[3]
[2]A pseudonym.
[3]A pseudonym.
At the time of his death, the deceased was working as a senior advisor in a specialist office within a government department.
The events leading up to the deceased’s death were as follows:
(a) On 8 June 2021, Heather disclosed to her school therapist that she had been sexually assaulted by the deceased. It appears that the school made a report to the relevant authorities and Ms Keaton was notified. Ms Keaton immediately applied for an intervention order against the deceased.
(b) On or around 9 June 2021, the police served the intervention order on the deceased and confiscated his firearms.
(c) On 9 and 10 June 2021, the deceased attended his workplace. The deceased’s executive manager, Peter Gerhard,[4] deposed that he did not notice the deceased acting differently to usual on these days.
(d) On the morning of 11 June 2021, Mr Gerhard noticed that the deceased had taken steps to clean up his desk and tie up loose ends at work. Mr Gerhard made unsuccessful attempts to get in contact with the deceased and called police to request they conduct a welfare check on him.
(e) On the material before the Court, 10 June 2021 was the last day the deceased was seen alive.
[4]A pseudonym.
Police discovered the deceased’s body in woodland on 13 June 2021. The 2021 document was found with his body. In the course of their investigation, police obtained the deceased’s mobile phone on which they found a video recording dated 11 June 2021 (the video recording). A transcript of what was said and occurred in the video recording was in evidence. The transcript notes that the deceased recorded himself signing and dating the 2021 document.
The deceased’s date of death is uncertain, but is expected to have occurred after he made the video recording on 11 June 2021.
The 2021 document makes the following provisions:
(a) gifts a property in Tasmania to Ms Keaton;
(b) gifts a car to a friend; and
(c) provides for the residue of the estate to be split equally between the deceased’s sons (the plaintiff and Troy Davis[5]).
[5]A pseudonym.
The persons affected by admission to probate of the 2021 document are therefore the plaintiff, Troy, Ms Keaton and the deceased’s friend. It is uncertain whether Ms Keaton would be entitled to share in the deceased’s estate in the event of intestacy. Although Ms Keaton was the domestic partner of the deceased for approximately a decade, it is uncertain whether that partnership continued at the time of the deceased’s death.[6]
[6]For the reasons outlined above at paragraph 7(a).
The plaintiff has received written consent from Troy and the deceased’s friend in support of his application. The plaintiff has not received written consent in the proper form from Ms Keaton.
A single prior will of the deceased dated 22 June 1990 was located (the 1990 will). The 1990 will provided that the deceased’s father was appointed as executor and was to receive the whole of the deceased’s estate. In the event that the deceased’s father did not survive the deceased by 30 days, the 1990 will provided for two of the deceased’s three sisters to act as executors and for the estate to be distributed by way of gifts of $20,000 each to all three of the deceased’s sisters, gifts of $10,000 each to the deceased’s mother and the Uniting Church, and for the residue to be distributed to ‘any charity selected by [the deceased’s] Trustees’.
On 18 November 2022, the Court made orders directing the plaintiff to give notice of the proceeding to Ms Keaton and the persons named in the 1990 will so that they could consider whether they wished to be named as defendants.
Responses to the notice were received from Ms Keaton, one of the deceased’s sisters and the Uniting Church in Australia Property Trust (Tasmania), who all indicated that they did not wish to be named as defendants in the proceeding. The deceased’s mother and his two other sisters did not provide any response to the notice.
Legal principles
The plaintiff accepts that the 2021 document does not comply with the requirements of ss 7(1)(c) and (d) of the Act. The matter for determination is whether the 2021 document should be admitted to probate as a will of the deceased pursuant to s 9 of the Act.
I recently summarised the legal principles relevant to admitting an informal will to probate in Re Kairouz which, for convenience, I restate below:[7]
[7][2023] VSC 168, [10] – [12] (citations omitted) (‘Re Kairouz’).
Section 9 is a remedial provision which enables the Court to dispense with the formal requirements for the execution of a will when admitting a will to probate. It relevantly provides as follows:
9 When may the Court dispense with requirements for execution or revocation?
(1) The Supreme Court may admit to probate as the will of a deceased person—
(a)a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b)a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act—
if the Court is satisfied that that person intended the document to be his or her will.
(2) The Supreme Court may refuse to admit a will to probate which the testator has purported to revoke by some writing, where the writing has not been executed in the manner in which a will is required to be executed by this Act, if the Court is satisfied that the testator intended to revoke the will by that writing.
(3) In making a decision under subsection (1) or (2) the Court may have regard to—
(a) any evidence relating to the manner in which the document was executed; and
(b) any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
(4) This section applies to a document whether it came into existence within or outside the State.
…
(6)In this section document has the same meaning as in the Interpretation of Legislation Act 1984.
In Estate of Brock, Hollingworth J described the remedial nature of s 9 as follows:
Section 9 is remedial in nature, meaning that it provides a means by which the court can give effect to the testator's true testamentary intentions, despite the fact that a will has not been validly executed. Where legislation is remedial, it should be given a broad as opposed to a narrow construction, one which will serve to achieve the broad objects and purposes which parliament had in mind. Here, parliament's clear intention was to avoid failure of the testamentary purpose caused by non-compliance with the formalities due to ignorance or inadvertence.
Notwithstanding the remedial nature of the section, care must nevertheless be taken to ensure that the statutory formalities enshrined in the Act are not unduly relegated in importance.
It is well established that there are three requirements for an informal will to be admitted to probate under s 9 of the Wills Act 1997:
(a) there must be a ‘document’;
(b)the document must express or record the testamentary intentions of the deceased; and
(c)the document must have been intended by the deceased to be their will.
The propounder of an informal will must establish these elements on the balance of probabilities, with the evidence to be evaluated in accordance with the Briginshaw principles reflected in s 140 of the Evidence Act 2008.
The 2021 document satisfies the first two of the above requirements in s 9 of the Act: it is a document,[8] and it records the deceased’s testamentary intentions. The latter is apparent from the fact that the 2021 document is described as a will, it contains the deceased’s name, address and occupation, it refers to the appointment of an executor (albeit invalidly)[9] and contains a complete set of dispositive clauses.
[8]The document consists of 13 pages, which contain typed, handwritten and photocopied information.
[9]See above at [2].
The remaining issue is therefore whether the deceased intended the 2021 document to be his will. In Re Kairouz, I summarised the principles relevant to establishing the intention of the deceased, and the related issue of their testamentary capacity, as follows:[10]
[10]Re Kairouz (n 7), [14] – [17] (citations omitted).
… The principles relevant to this issue were summarised by McMillan J in Re White; Montgomery & Anor v Taylor as follows:
The third requirement is that the deceased intended ’that particular document to be his or her final will and did not want to make changes to it’. As stated by Whelan J (as his Honour then was) in Equity Trustees Ltd v Levin, ’it cannot be a document intended as a personal memorandum or a note of intended instructions, it cannot be a draft or a ”trial run”’. The relevant intention must be possessed ’either, at the time of the subject document being brought into being, or, at some later time’.
Satisfying the third requirement depends upon the facts and circumstances of each case. The Court may consider evidence regarding the making of the will, as well as direct evidence of testamentary intent. Ultimately, the inquiry remains:
whether the document itself, the circumstances regarding its contents … and other relevant circumstances … lead to the conclusion that the relevant deceased intended the subject document to constitute his will;
that, while each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will.
A relevant consideration under the third requirement is the deceased’s testamentary capacity. Where a deceased lacked the capacity to make a will, then the Court cannot be satisfied that he or she intended the document to be his or her will. In the context of an informal will, the usual presumptions as to testamentary capacity do not apply. While the Court considers the evidence as a whole, the onus of proving testamentary capacity rests upon the party seeking to propound the informal will.
As McMillan J noted, an informal will does not benefit from the same rebuttable presumptions which apply to duly executed wills. Accordingly, the plaintiff, as the propounder of the informal will, also bears the onus of satisfying the Court on the balance of probabilities that the deceased had testamentary capacity and knew and approved of the contents of the informal will.
In order to establish a testator’s testamentary capacity, the principles in Banks v Goodfellow require the propounder of a will to show that the testator:
(a)understood the nature and effect of making their will;
(b)was aware of the general nature and value of their estate;
(c)was aware of those with a natural claim on their estate; and
(d)was able to evaluate and discriminate between such claims.
As explained by McMillan J in Re Martin, determining whether a deceased person knew and approved of the contents of an informal will:
… involves consideration of whether the deceased actually understood the document and its effect, such that it can be said that the document represents the deceased’s testamentary intentions. The sufficiency of evidence will depend upon the circumstances of each case. While evidence that the document was read by the deceased is relevant, and should be given due weight, it will not be conclusive. Other considerations include the mental acuity and sophistication of the testator, the complexity of the contents of the document and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon an estate, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice.
Testamentary capacity and suicide
The authorities clearly establish that the suicide of a testator after making a will does not give rise to a presumption that the testator lacked testamentary capacity.[11]
[11]Re Hodges (1988) 14 NSWLR 698 (‘Re Hodges’); Stuart v Kirkland-Veenstra (2009) 237 CLR 215 (‘Stuart v Kirkland-Veenstra’); Fielder v Burgess [2014] SASC 98 (‘Fielder v Burgess’); Robinson v Jones [2015] VSC 222 (‘Robinson v Jones’); Re White; Montgomery & Anor v Taylor [2018] VSC 16 (‘Re White’); Application by Maggie Riman (Estate of Rita Riman) [2022] NSWSC 872 (‘Application by Maggie Riman’).
In Re Hodges,[12] a 1988 decision of the New South Wales Supreme Court, the testator was in a state of severe depression and wrote and executed a will in the presence of two friends, and a short time later shot himself. Having not been referred to any past English or Australian authorities on the point, Powell J accepted that the testator’s suicide did not give rise to any presumption of testamentary incapacity.
[12]Re Hodges (n 11).
In Stuart v Kirkland-Veenstra, a 2009 decision of the High Court which concerned allegations of negligence against police in connection with their arrest and subsequent release of a person who soon after suicided, French CJ stated that:[13]
… suicide and attempted suicide are seen as reflective of psychological or psychiatric issues which may or may not involve ‘mental illness’ according to established diagnostic conventions. …
The common law does not even support the general proposition that attempted suicide or suicide give rise to a presumption of mental illness, at least not to the extent that would amount to testamentary incapacity. A testator’s suicide, following shortly upon the making of a will, does not raise a presumption of testamentary incapacity. … given the complexity and variety of factors which may lead to suicidal behaviour, it would be a bold legislative step indeed to sweep it all under the rubric of mental illness.
[13]Stuart v Kirkland-Veenstra (n 11), [45] – [46].
In Fielder v Burgess,[14] a decision of the South Australian Supreme Court, the testator made an informal will some two weeks prior to his suicide. The probable motive for his suicide was his distress over the perceived infidelity of a woman for whom he had feelings. Kourakis CJ stated:[15]
There is no reason arising from the Court’s knowledge of human affairs to infer, in the absence of other evidence on the issue, that the psychological distress which leads to suicide necessarily so compromises a person’s reasoning capacity as to deny him or her the capacity to understand the nature and effect of his or her purported disposition of property and the way which it resolves the competing moral and quasilegal claims to that property.
[14]Fielder v Burgess (n 11).
[15]Ibid [29].
In Robinson v Jones,[16] a decision of this Court which concerned an informal will made by the testator in the weeks prior to his suicide, McMillan J considered the principles relating to testamentary capacity and suicide. Her Honour noted that ‘whilst the many cases referred to provide guidance as to whether the evidence before the Court will satisfy the burden of proof, the determination of the issue ultimately depends on the facts and the evidence of each case.’[17] McMillan J did not find a presumption of testamentary incapacity by reason of the deceased’s suicide, but upon a detailed examination of the facts and circumstances surrounding the preparation of the informal will found she was not satisfied that the deceased had testamentary capacity at the relevant time.[18]
[16]Robinson v Jones (n 11).
[17]Ibid [92].
[18]Ibid [127] – [133].
In Re White; Montgomery & Anor v Taylor,[19] a decision of this Court, the testator made an informal will the day prior to his suicide. The Coroner found that it was likely that the deceased was suffering from undiagnosed depression and determined that the deceased took his own life by way of intentional overdose.[20] McMillan J, finding that the informal will was valid, stated:[21]
… suicide does not give rise to a presumption of mental illness or lack of testamentary capacity. … However, even if a mental illness or disturbance could be identified in the circumstances before the Court, ‘there must be evidence that the testator’s state of mind was so affected as to make him or her unequal to the task of disposing of his or her property’. The weight of evidence, regarding both the structure and content of the informal will and the circumstances in which it was created, suggests that the deceased’s mind was not ‘so effected’.
[19]Re White (n 11).
[20]Ibid [31].
[21]Ibid [63] (citations omitted).
In Application by Maggie Riman,[22] a decision of the New South Wales Supreme Court in 2022, Hallen J noted several of the above authorities with approval and found that the informal will of the testator was valid, not placing any significance on the fact she had suicided shortly after preparing it. In that matter, similarly to the present case, the testator took steps to finalise her affairs prior to her suicide, including preparing but not properly executing an online will using an ‘online will platform’.
[22]Application by Maggie Riman (n 11).
The deceased’s testamentary capacity
The plaintiff submitted that there was no aspect of the deceased’s actions in the lead-up to executing the 2021 document which indicate that the requirements of Banks v Goodfellow[23] are not satisfied. In support of this submission, the plaintiff relied upon two affidavits made by him and an affidavit made by Mr Gerhard. For the reasons which follow, I am satisfied on the basis of this material that the deceased had testamentary capacity when he executed the 2021 document.
[23]See above at [19].
Mr Gerhard had known the deceased for ten years and was the deceased’s supervisor for eight years. Mr Gerhard and the deceased developed a strong working relationship: Mr Gerhard came to know the deceased well, due to his supervisory role, and the fact that the deceased’s desk was in close proximity to Mr Gerhard’s office.
The deceased had never disclosed any mental health concerns to Mr Gerhard and Mr Gerhard had never formed any concern as to the deceased’s mental capacity during their working relationship. In the days before the deceased’s death, Mr Gerhard interacted with the deceased at work and observed that he did not show any signs of psychological distress, noting that the deceased continued working at ‘full capacity’ and that ‘on those final days [he] acted no different to how he always acted’.
Mr Gerhard’s opinion of the deceased was that he was ‘always well organised and methodical with his work’, and that he was not an impulsive person. Mr Gerhard deposed to his belief that although the deceased did not disclose his intentions to Mr Gerhard, he must have formed an intention to suicide and made a ‘plan to tie up all his loose ends before he did.’ On around 11:00pm on 10 June 2021, the deceased sent an email to a colleague describing the status of his outstanding work projects and included directions to where his work equipment was left, including passwords to access them. The deceased also set up an automated ‘out of office’ email which stated “I no longer work for [the department]”.
The nature of the deceased’s role in his employment required him to have highly proficient technical and analytical skills. He was, according to Mr Gerhard, a skilled and competent employee.
The plaintiff is the deceased’s eldest son and deposed to having always had a ‘pretty close relationship with [his] father’. The plaintiff last saw the deceased on 7 June 2021, four days before the deceased is presumed to have died. The plaintiff did not depose to any concerns he had regarding the deceased’s mental health at this time.
The plaintiff does not have any knowledge of the deceased having a regular doctor, nor being in the care of any medical professional. Such evidence is not essential or determinative.[24] As far as the plaintiff was aware, the deceased did not have any prior mental health conditions, had no prior suicide attempts, and no history of alcoholism or drug abuse.
[24]Re Papavasiliou [2023] VSC 43, [69].
The evidence of Mr Gerhard and the plaintiff raises no concern that the deceased suffered from any ongoing or intermittent limitations on his capacity in the last decade or so of his life. Had he suffered from any such conditions, it is likely that, over time, at least one of Mr Gerhard or the plaintiff would have observed, or become aware of, at least some change in the deceased’s apparent state of mind or condition.
More particularly, it is significant that both Mr Gerhard and the plaintiff had interactions with the deceased in the days shortly before his death and when he executed the 2021 document. Their observations about the deceased, outlined above, do not raise any doubts about his testamentary capacity.
The 2021 document is rational on its face and was prepared by the deceased in a purposive and coherent manner. The deceased included in the document a comprehensive inventory of his assets, as well as listing relevant usernames and passwords required to access his various bank and investment accounts. The document is logical and purports to benefit those with whom the deceased was close.
The drafting of the 2021 document and the matters contained in the transcript of the video recording demonstrate that the deceased comprehended the nature of what he was doing in executing the 2021 document and recognised the extent and character of the property in his estate. They also show that the deceased was aware of those persons who had a natural claim to his estate, being his sons, his domestic partner, his ex-wife from his second marriage, and his friend named in the 2021 document, and that he was able to weigh those claims persons against each other.[25]
[25]For example: he made provision for Ms Keaton despite the allegations made against him by Heather; he made no provision for his ex-wife from his second marriage in favour of making provision for his sons; and he expressed his wish that Troy’s distribution be held on trust until he was 18, on account of him being a minor at the time.
As I have explained, the suicide of a testator after making a will does not give rise to a presumption that the testator lacked testamentary capacity at the relevant time. There is no suggestion in the evidence that the deceased’s suicide was the result of any mental disturbance or limitation or compromise his mental capacities. In circumstances where the conduct of the deceased immediately prior to his suicide was deliberate, organised and considered, the evidence supports a conclusion that his suicide was an acute response to his past sexual offending coming to light. In the video recording, the deceased effectively admits to and apologises for the allegations made against him by Heather.
The plaintiff has accordingly discharged the onus upon him to prove that the deceased had testamentary capacity when he executed the 2021 document.
Whether the deceased intended that the 2021 document be his will
Upon the deceased’s marriage to his first wife in 1997, the 1990 will was revoked by operation of s 13 of the Act.
I am satisfied that the deceased intended the 2021 document to be his final will. The document is described as being the ‘last will and testament’ of the deceased, it is intelligible and complete in its terms and makes grammatical and legal sense. It is expressed in clear and precise language and contains dispositive terms which are rational on their face. As I have explained, it demonstrates that the deceased duly considered his assets and the claims which his sons, Ms Keaton and his ex-wife from his second marriage might have over his estate. With all of these characteristics, the deceased’s signature, which appears on the three pages of the document which contain dispositive terms, demonstrates an intention that the document be binding and have testamentary effect.
This conclusion is supported by a consideration of the circumstances surrounding the making of the 2021 document.
(a) The 2021 document was prepared by the deceased at a time when he intended to soon take his own life. Such circumstances evidently necessitated, in the deceased’s mind, the making of a will.
(b) The deceased appears to have initially prepared and printed at least two pages of the 2021 document on 10 June 2021, and then reformatted the information on those pages into a ‘statutory declaration template’, which was subsequently signed on 11 June 2021.
(c) In the video recording, the deceased states that he ‘wrote these stat decs (sic) up last night’ but was not able to get them witnessed by a ‘JP’ and so instead would ‘try and use this video evidence’. The video recording shows the deceased signing and dating the 2021 document on 11 June 2021. The deceased also subsequently says the following: ‘I think I have clearly outlined my wish for what happens with my estate’. I agree with the submission made on behalf of the plaintiff that this suggests that the deceased understood, at least to some degree, that the execution of a will in the absence of witnesses might later be the subject of scrutiny, and so took steps to provide proof of his execution of the 2021 document in the video recording.
(d) The deceased prepared the 2021 document with sufficient information to enable his executor to identify and administer his estate. As noted above, the deceased included a comprehensive inventory of his assets in the 2021 document. He also printed and collated a series of additional pages containing relevant information about his bank accounts and investments which were annexed to the 2021 document, as well as listing the relevant usernames and passwords for such accounts.
(e) The plaintiff’s evidence was that the deceased was very organised and careful with his finances. In keeping with this, the deceased prepared and signed the detailed 2021 document, seemingly in an effort to assist his executor to understand and wind up his affairs after his suicide. The deceased also finalised loose ends at work on the evening of 10 June 2021. All of these actions in the days and hours prior to his death demonstrate that the deceased was acting purposively and considering how his impending death would impact those around him.
The deceased alone drafted and executed the 2021 document. There is no evidence before the Court to suggest that the 2021 document was prepared by some person other than the deceased, or that it may record another person’s intentions other than the deceased. I am accordingly satisfied the deceased knew and approved of the contents of the 2021 document.
Disposition
It follows that the 2021 document is to be regarded as an informal will, and a grant of probate should be made to the plaintiff. The Court will so order.
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