Re Estate Of Annie Margaret Kent (Dec)
[2017] WASC 239
•18 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: RE ESTATE OF ANNIE MARGARET KENT (DEC); EX PARTE BONKER [2017] WASC 239
CORAM: REGISTRAR C BOYLE
HEARD: ON THE PAPERS
DELIVERED : 18 AUGUST 2017
FILE NO/S: PRO 778 of 2017
MATTER :Estate of Annie Margaret Kent (Dec)
EX PARTE
DARREN JOHN BONKER
Applicant
Catchwords:
Informal will - Test for granting probate - Deceased declined to sign document propounded
Legislation:
Wills Act 1970 (WA), s 32
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant: No appearance
Solicitors:
Applicant: Byford Legal
Case(s) referred to in judgment(s):
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the Estate of John Leslie Xavier Monaghan (Dec) [2012] SASC 130
Mitchell v Mitchell [2010] WASC 174
Oreski v Ikac [2008] WASCA 220
Re Estate of Perriman (Dec) [2003] WASC 191
REGISTRAR C BOYLE: Annie Margaret Kent died on 1 March 2016. The question is whether an unexecuted will that is described later in these reasons should be admitted to probate pursuant to s 32(2) of the Wills Act 1970 (WA).
For the reasons that follow, I am not satisfied that the deceased intended the document to constitute her last will. The application will be refused.
The law
Section 32 of the Wills Act provides, in part,
(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; or
(b)an alteration to a will of the person; or
(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.
There is a significant body of decisions in this and other cognate jurisdictions that assist in applying such statutory provisions. The state of those authorities was conveniently summarised by Newnes AJA (Martin CJ and McLure JA concurring), in Oreski v Ikac [2008] WASCA 220 [52], referring with approval to Hatsatouris v Hatsatouris [2001] NSWCA 408 [56] (Powell JA, Priestley & Stein JJA agreeing) and Re Estate of Perriman (Dec) [2003] WASC 191, as involving three questions:
1.was there a document?
2.did the document purport to embody the testamentary wishes of the deceased?
3.did the evidence satisfy the court that, either at the time the document was brought into being or at some later time, the deceased, by some words or act, demonstrate the intention that the document should, without more on his or her part, operate as his or her will?
What is critical to the determination of the present application is what Newnes AJA observed in Oreski:
It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased's testamentary intentions, that is not of itself sufficient. Section 34 does not enable any document which expresses the deceased's testamentary wishes to be admitted to probate. The document must be intended to be the legally operative act which disposes of the deceased's property upon their death; that is, it must have been intended by the deceased to have present operation as his or her will. A person may have set down in writing their testamentary intentions but not intend that the document be operative as a will. Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased's lifetime, or to be a note of instructions, or a draft will or a 'trial run': In the Estate of Masters (Dec), Hill v Plummer (1994) 33 NSWLR 446, 455; Equity Trustees Ltd v Levin [2004] VSC 203. 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.
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 [54] ‑ [55].
The error underlying this application is that it assumes that the test is:
Did the deceased intend to make a will in terms of this document?
Whereas the correct test is:
Did the deceased intend this document to constitute her last will?
Probate is not granted of a set of ideas or intentions. It is granted of a testamentary document.
What Mrs Kent did
Statements of a legal rule are one thing: the disposition of any application such as this ultimately turns on the facts. The following summary is drawn from the initial affidavit of the applicant, and two affidavits of the solicitor who took instructions.
The applicant is Mr Darren Bonker. He was the deceased's accountant and also held her power of attorney.
In early October 2015 Mr Bonker saw the solicitor, Ms See, to ask her to draw a will for the deceased. On 8 October Ms See and Mr Bonker attended on the deceased at her home and Ms See took instructions.
On 12 October, Mr Bonker telephoned Ms See to say that the deceased's carer, Ms Hughes, had died in a car accident the previous weekend. The instructions the deceased had given Ms See on 8 October had included a gift to Ms Hughes. Mr Bonker asked Ms See to cease work on the will.
On 24 November, Mr Bonker conveyed to Ms See that the deceased's instructions as to her will stood, save so far as those instructions had provided for Ms Hughes.
On 11 December 2015, Ms See visited the deceased at her home, taking a draft will. The deceased did not give instructions as to the final form of her will at that point. She expressed that she was unsure whether she should provide anything for the fiancé of her deceased carer. The solicitor and the deceased agreed that the solicitor would telephone the deceased in a week or so to discuss the matter further.
Shortly after that, the deceased became unwell and was hospitalised and then placed in respite care. Nothing further happened for some time.
On 14 January 2016 Ms See spoke to the deceased by telephone. The evidence of Ms See is that the deceased had decided that she should make a gift of $10,000 to the fiancé of her deceased carer. At that date, the deceased had not returned to her home but was in a care facility.
The solicitor prepared a will for execution and the same day sent it to the deceased at the care facility under cover of a letter that carefully set out the requirements for execution. It is the document forwarded with that letter that is the document sought to be admitted to probate.
What happened after that is summarised in the concluding paragraphs of Ms See's affidavit of 7 February 2017:
14On or about early February 2016 I received a telephone call from Byford Accountants advising that the deceased had not as yet signed the will because she felt uncomfortable with the fact that several of her nephew and nieces were present when the will was read out to her prior to her signing it. I was advised by Byford Accountants that the deceased was being released from respite care and returning home and to contact her after this date.
15I contacted the deceased on 5 February 2016 to again discuss finalising her will and for me to attend at her place of residence so that we could attend to signing it. The deceased had advised me she had only just returned home from the respite care and could I call back next week.
16I contacted the deceased again on 11 February 2016. During this call the deceased advised me that the reason she had not as yet signed the will was because her address was now incorrect, being that of the care facility, however she was happy with the contents of the will otherwise. I advised her that I would amend her address back to her residential address and made arrangements to attend at her residence to finalise. We arranged to meet on 16 February 2016 at 11am.
17On 16 February 2016 Byford Accountants contacted me as the deceased had contacted them to advise them that she was not feeling well enough for me to attend at her residence and finalise her will. I was advised that she would contact me when she was feeling better to arrange another time.
What all that means
Those facts have to be tested against the statutory test as explained in the cases.
It is clear that the first requirement for admission to probate of an informal will is satisfied: there is a document that has not been executed in compliance with s 8 of the Wills Act. It is not signed at all.
The second question is also answered affirmatively: the document purports to embody the testamentary intentions of the deceased.
That leaves, as usual, the third question. That question can only be answered affirmatively if two conditions are satisfied. First, the document must be shown to represent the established testamentary intentions of the deceased. That may sometimes appear from the text of the document itself, but not necessarily, and not in this case. Secondly, the deceased must have formed the relevant intention in relation to that document, namely that it constitute her last will.
The history invites the following comments and conclusion.
First, there were too many intermediaries between the will maker and the solicitor taking instructions. At various times, persons were present who should not have been. Without suggesting inappropriate pressure, it does necessarily reduce the court's capacity to be sure that what is expressed in the informal will was in fact the settled intentions of the deceased.
Secondly, this is not a case of an intending will maker who was prevented only by physical inability or supervening circumstances (such as in Mitchell v Mitchell [2010] WASC 174) from executing a formally valid will expressing her certain and settled testamentary intentions.
Ms See had posted the will to Mrs Kent on 14 January. Allowing a few days for post, the deceased had the will for a good two weeks before the next report of her intentions in 'early February'. That was when she was reported to have been 'uncomfortable' with the presence of nieces and nephews when the will was read to her.
On 5 February, when Ms See rang her to arrange an appointment to sign the will, the deceased put her off.
It was only six days later when the solicitor rang her again on 11 February, that the deceased raised the point that the will sent to her nearly a month before did not show her correct (home) address.
The deceased had ample opportunity to execute the will between receiving it shortly after 14 January and when she became terminally ill a month later. If the only thing that needed to be changed was the deceased's address, that could have been done by a handwritten alteration at the time of execution. Mrs Kent could have made the alterations herself and found witnesses: or she could have had the solicitor make the alterations without having to reprint the whole document for the sake of something that had no testamentary consequence.
Rather, it seems to me that the deceased used a series of increasingly slender excuses not to execute her will. The ultimate failure to sign her will suggests that Mrs Kent was not settled in her intentions.
The affidavits of each of the applicant and the solicitor express opinions that the deceased had settled on her testamentary intentions. Those expressions are clearly inadmissible on ordinary principles, and they are not made admissible by s 32(2) of the Wills Act: they are evidence of the opinions of the deponents, not the intentions of the deceased. No doubt those around Mrs Kent, including her professional advisers, were properly alert to the desirability of her making a will. Again, I am not suggesting any improper pressure, but the impression I have is that Mrs Kent was not to be rushed.
Given the circumstances, I am unable to be satisfied that the deceased intended the document to constitute her last will. The circumstances speak to me of a person who, whether because of indecisiveness or perceived pressure from others, was unwilling to commit herself to the terms of a particular will. If she had wanted to make this her will, she had time and opportunity to do so. That she did not strongly suggests to me that she had not settled on a particular testamentary intent.
That is a rather general observation, but there is one very specific fact that by itself in my view emphatically negatives any possible conclusion that the deceased intended this document to constitute her last will. That is of course that Mrs Kent had specifically declined to execute the document. That was on 11 February when Ms See telephoned Mrs Kent, as deposed to in par 16 of Ms See's affidavit, set out earlier. That is the last available evidence of Mrs Kent's attitude toward the document that is now propounded as her informal will. There is no evidence that she later recanted and expressed a desire to adopt it.
It seems to me that it is quite impossible to assert that a document an intending will maker has expressly declined to sign could be a document the deceased intended to constitute her last will.
There remains one matter that I deal with only because it was raised in submissions. Those submissions relied on the South Australian decision of In the Estate of John Leslie Xavier Monaghan (Dec) [2012] SASC 130. That case is clearly distinguishable from the present because there the deceased asked his wife to make handwritten alterations to a draft will prepared by his solicitor, and instruct the solicitor to amend the will accordingly. In other words, the deceased in Monaghan had taken positive steps to bring a draft will into compliance with his intentions. That is a very different set of facts from the present.
Further, I think it not inappropriate to point out that Monaghan is a decision of the Supreme Court of another State. I would suggest, with the greatest respect to the eminent judge involved, that the decision in Monaghan is difficult to reconcile with the authority of Oreski v Ikac that is directly binding on me. That is, the document in Monaghan set out the deceased's instructions, but there was no finding that the deceased intended the document (that is, the amended draft), without more, to constitute his will.
The application is accordingly refused.
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