Re Estate of Barry Richardson Hick (Dec)
[2017] WASC 317
•7 NOVEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: RE ESTATE OF BARRY RICHARDSON HICK (Dec); EX PARTE DEVINE [2017] WASC 317
CORAM: REGISTRAR C BOYLE
HEARD: ON THE PAPERS
DELIVERED : 7 NOVEMBER 2017
FILE NO/S: PRO 4453 of 2016
MATTER :ESTATE OF BARRY RICHARDSON HICK (Dec)
EX PARTE
SANDRA DOROTHY DEVINE
Applicant
Catchwords:
Probate and administration - Informal will - Caveat - Ex parte nature of non-contentious application - No right to make submissions against grant - Turns on own facts
Legislation:
Administration Act 1903 (WA), s 6
Non-contentious Probate Rules 1967 (WA), r 4(3), r 6(1), r 9B
Wills Act 1970 (WA), s 32(2)
Result:
Grant of letters of administration with informal will annexed
Category: B
Representation:
Counsel:
Applicant: No appearance
Solicitors:
Applicant: McFarlane Lawyers
Case(s) referred to in judgment(s):
Hobhouse v Macarthur Onslow [2016] NSWSC 1831
Hoff & Ors v Atherton [2004] EWCA Civ 1544
Oreski v Ikac [2008] WASCA 220
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Wheatley v Edgar [2003] WASC 118
REGISTRAR C BOYLE: One day Barry Hick placed an envelope on the table facing the front door of the Yorkshire apartment where he had been staying. He went out. At about 6.30 pm that day, his brothers Trevor and Ian arrived: Trevor and Barry had arranged to meet. They were surprised that Barry's car was not outside the apartment. Trevor tried to telephone Barry but had no response. The brothers tried the front door and found it unlocked. They went in and saw the envelope. On the outside it read:
Trevor
Please take care of these please
Thank you, Barry.
Trevor and Ian took the envelope outside and sat in Ian's car reading the contents. Disturbed, they drove to the nearest police station to report Barry as a missing person. They showed the police the contents of the envelope. There were questions. Connections were made. The police told Trevor and Ian that Barry had been found dead earlier that day. He had died on the M62 motorway under the Hartshead Moor bridge, near Scholes. The death certificate gives the cause of death as 'Traumatic Head Injuries' and concludes: 'Barry Richardson Hick took his own life'. The place where he died was only a few miles from Batley where he had been born 72 years earlier. It was 6 July 2015.
One of the documents in the envelope was a writing that the applicant Sandra Dorothy Devine seeks to prove as an informal will. It appoints no executor and so the application is for letters of administration with the informal will annexed. Sandra and Barry had been in a de facto relationship for nearly 30 years. They had no children. Barry had one son, Karl Richardson, by his dissolved marriage.
There is no suggestion that Barry made an earlier formal will or a later will whether formal or informal. If he died intestate, those entitled in distribution would be Sandra Devine and Karl Richardson.
The nature of the non-contentious application
The application was filed some time ago. It was requisitioned for further evidence, and for notice to be given to Karl Richardson. Karl lodged a caveat against grant. No grant could be made until that caveat was withdrawn, or was removed by order, or expired. While the caveat was still current, further affidavits were filed answering the requisitions. The caveat has now expired. The solicitors acting for the caveator wrote to the court before it expired, putting submissions as to why a grant should not be made on the application. Karl Richardson has not commenced contentious proceedings seeking a grant on intestacy.
An application to the court in its non-contentious jurisdiction is a proceeding ex parte: Non-contentious Probate Rules 1967 (WA), r 6(1). A Registrar may require an application to be brought by summons, and may require an application, however made, to be brought before a judge by summons or before the court on motion: r 4(3). No such requirement has been made in this instance.
It happens occasionally that someone antipathetic to a non-contentious application writes to the court expressing views as to why a grant should not be made. More occasionally (although not in this instance) they seek to file affidavit evidence in opposition. There is no right to do either. Since the application is ex parte until and unless directed otherwise, nobody other than the applicant has a right to be heard by way of submissions or otherwise. It seems worth making that point by publishing these reasons.
I have treated the submissions on behalf of the caveator only as a convenient aid to memory directing attention to those matters that need to be found in order to make a grant.
In skeletal form, those necessary facts and findings can be grouped under three headings.
First, the death of a deceased and that the deceased left estate within Western Australia must be established. The requirement that there be estate in Western Australia is a jurisdictional requirement: Administration Act 1903 (WA) s 6.
Secondly, in relation to any will it is necessary to establish that the deceased had testamentary capacity and also that the deceased knew and approved of the content of the will. In the case of a formally valid will, it is also necessary to prove due execution. In the case of a will that is rational in its terms and appears on its face to have been duly executed, capacity, knowledge and approval, and due execution are presumed. Those presumptions, however, do not apply to an informal will and each of capacity, and knowledge and approval, must be established by admissible evidence.[1]
[1] Wheatley v Edgar [2003] WASC 118, per EM Heenan J at [24]; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 [44] ‑ [48].
Thirdly, in relation to informal wills to be proved under s 32(2) of the Wills Act 1970 (WA), it must be established that there is a document, that it was not executed in compliance with the Act, and that the deceased intended the document to constitute his or her last will.[2]
[2] Oreski v Ikac [2008] WASCA 220, [50] ‑ [55] and the cases there cited.
Jurisdiction: death and estate
The fact and date of the death are established by the death certificate and also sworn to by the applicant and the deceased's brother Trevor.
The applicant has sworn that the deceased left estate in Western Australia, including a half interest in the house in Bullsbrook where they lived. She has identified the assets and liabilities in the usual way by a statement made in compliance with r 9B of the Non-contentious Probate Rules 1967 verified by her founding affidavit.
I find that Barry Richardson Hick died on 6 July 2015 and that he left estate within Western Australia.
Knowledge and approval and capacity
These are distinct questions, although often conflated[3].
[3] See, for explanations of the difference and why it can matter, Hoff & Ors v Atherton [2004] EWCA Civ 1544 [33]; and Hobhouse v Macarthur Onslow [2016] NSWSC 1831 [399] ‑ [474].
In this case, the matter of knowledge and approval can be disposed of simply. The evidence is that the informal will is in the deceased's hand. Both Sandra Devine and Trevor Hick depose to that. Its terms, described below, are plain. If the deceased had capacity, he knew and approved of the contents of the informal will.
Barry was born on 12 November 1942 at Batley, which is between Leeds and Huddersfield. He had lived in Australia for many years, although it is not clear how long. For some years at least he had been making trips back to the area of his birth.
Trevor Hick's affidavit filed 18 July explains Barry's trips. Trevor deposes[4] that Barry travelled to the United Kingdom '… frequently … to visit friends and relatives'. He
… used to stay in accommodation near to his favourite pub where he participated in the usual pub activities dominoes, darts and talking about sport.
[4] Affidavit of John Trevor Hick sworn 24 April 2017, par 10.
Trevor goes on to depose that on his last trip, Barry had a colonoscopy: Trevor has cancer, and so does a sister. Barry was concerned. In June 2015 Trevor and his wife had met Barry at a pub. Barry[5]
…. seemed in reasonable spirits although he informed us that SANDRA'S dog had died and he was then concerned for SANDRA's wellbeing. BARRY maintained regular contact with SANDRA during his visits to the United Kingdom and kept us informed about things that were happening with SANDRA and their horses.
[5] Paragraph 14.
Barry also said that:[6]
… he wasn't enjoying his visit as much as usual and that his group of friends had started to fragment and were no longer frequenting their usual pub.
[6] Paragraph 15.
The last time Trevor saw Barry was on 1 July when Barry called at Trevor's house to make an internet transfer of money to Sandra and[7]
To the best of my recollection BARRY and I discussed the same topics: SANDRA, horses and sport.
[7] Paragraph 17.
Barry had seen Dr Nigel Myers on 3 July 2015. Dr Myers has provided an affidavit[8]. When he saw Barry he referred to notes about Barry's previous visits to the practice. Those showed that on 26 June Barry had seen another doctor. He was treated for 'high blood pressure, low mood and insomnia'.[9] He had 'no self harm thoughts, good eye contact'.[10]
[8] Affidavit of Nigel Andrew Myers sworn 26 April 2017.
[9] Myers par 8.
[10] Myers par 8.
Dr Myers treated Barry for an ear infection: he prescribed antibiotics and a mild analgesic.
Dr Myers has been shown the death certificate, and the informal will. His affidavit concludes:
15 On 3 July 2015 at the time of his consultation with me, Mr Hick did not give me any cause to consider that he was at risk of self‑harm or that he was suffering from any mental disturbance that would have affected his capacity to make the Will.
16 The Brookroyd Surgery full patient records for Mr Hick do not indicate that Mr Hick suffered from any lack of insight or judgment, or any mental disorder that would have affected his ability to:
16.1 understand the nature and effect of executing a Will;
16.2 appreciate the extent of the property of which he was disposing; and
16.3 comprehend and appreciate the moral claims to which he ought to give effect.
17It is also my opinion during the period from 26 June 2015 to 4 July 2015 being the date of his Will, Mr Hick was not suffering from a disorder of his mind and/or a mental delusion that was sufficient to poison his affections, pervert his sense of right, and prevent the exercise of his natural faculties and influence his will in disposing of his property.
18I do not have any reason to question whether Mr Hick had the requisite mental capacity to make a Will on 4 July 2015.
19Therefore it is my opinion that Mr Hick did have the requisite testamentary capacity to make the Will dated 4 July 2015.
Trevor's evidence of Barry's conduct gives no reason to question Barry's testamentary capacity in the weeks before his death. The picture he paints is of a man who may have been having intimations of mortality, and may have been suffering from health problems unsurprising at his age, but who was living his life as a man of normal capacities.
Dr Myer's observations and conclusions are consistent with the evidence of Trevor Hick. His opinion in my view is properly grounded in relevant observations, and formed by reference to a correct briefing on the legal test of capacity.
I find that Barry Hick had testamentary capacity when he wrote the informal will.
Did the deceased intend the document to constitute his last will?
There is no evidence that Barry Hick ever made any formally valid will. He had produced other informal testamentary writings. They are described in the applicant's founding affidavit.[11]
[11] Affidavit of Sandra Dorothy Devine sworn 16 August 2016, pars 1016 and attachments G and H.
One, found among his papers at his Bullsbrook home, is dated 1 February 2010. On a small sheet of paper he wrote a text that reads, in part,
I … do hereby leave all my assets and possessions, bank accounts, premium bonds, everything to Sandra Devine
He signed that. Later, he wrote on the reverse of that same piece of paper,
Reconfirmed; all my assets and possessions shall be left to Sandra Dorothy Devine…
Barry signed that side of the sheet as well and dated it 24 March 2014.
The envelope Barry left for Trevor to find contained the informal will and other documents. They are sworn to in the affidavits and copies attached.
The informal will was in another, small letter-sized, envelope. On the face Barry wrote 'MY WILL' and underneath he signed and then printed his full name. The will reads:
Last will and testament of Barry Richardson Hick of [Bullsbrook address]
Sunday 4th July 2015
I, Barry Richardson Hick wish to leave all my possessions, Bank accounts cash and BT super fund cash to Sandra Dorothy Devine of the same address. I leave my share of our joint ownership of our house at [address] to Sandra Dorothy Devine of the same address.
I leave my gold watch to my son, Karl Richardson, owner of [business name and location].
Signed this day 4-7-2015
(signature B R Hick)
Barry Richardson Hick
One of the other documents was a letter addressed to Barry's son Karl Richardson. It is not necessary to set it out in full: it shows that there had been an estrangement between the two. It does include this passage:[12]
I beg you Karl to let Sandra have my share of our house and any money I have in my ANZ bank accounts and BT super fund. I believe you are very successful in your business, for which I am extremely proud of you.
[12] Affidavit of Sandra Dorothy Devine sworn 16 August 2016, par 7.7 and attachment E
A postscript reads:
I leave you my gold watch which was given to me by my Dad.
There was also another, shorter, letter addressed to 'My Family'.[13] It is a message of love and apology. There is a separate note to Trevor, asking him for his assistance with the will and with caring for Sandra.
[13] Affidavit of Sandra Dorothy Devine sworn 16 August 2016, par 7.2 and 7.6 and attachment D
Barry Hick wrote in block capitals and there are some obvious spelling errors that have not been reproduced above. If Clancy's mate could communicate with a thumbnail dipped in tar, Barry Hick could make his meaning clear in ballpoint pen on a handy scrap of notepad.
There can be no doubt that the informal will contained his testamentary intentions. The terms of the will are consistent with the desire he had expressed consistently to leave at least the bulk of his estate to Sandra Devine. He left other letters that make it clear those were his intentions.
The informal will is unambiguously a testamentary document. It deals with all that Barry could think of that he owned. It would be a lawyer's quibble that it contains no explicit residuary clause. He left that document where it would be found after his death. He left it with other documents that are consistent with it. The circumstances are eloquent.
Barry Hick was an adult of sound disposing mind. He wrote the informal will and it expresses his testamentary intentions. Did he intend the document to constitute his last will? Of course he did: no other conclusion is possible. There will be a grant of letters of administration with the informal will annexed to the applicant Sandra Devine.
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