Re Estate of Frederick Raymond Reeve Perriman (dec)
[2003] WASC 191
RE ESTATE OF FREDERICK RAYMOND REEVE PERRIMAN (DEC) [2003] WASC 191
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 191 | |
| Case No: | PRO:3989/2002 | 22 MAY 2003 | |
| Coram: | BARKER J | 7/10/03 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | DILMA LOPEZ |
Catchwords: | Wills Probate Appeal against decision of Registrar dismissing application to admit draft will to probate Instruction to solicitor to prepare will prior to death Will prepared accordingly but person died before will executed Deceased did not sign or see the document prior to his passing Whether document should be admitted to probate as will of deceased Whether deceased intended the document to constitute his will Whether deceased "authenticated or adopted" the draft will |
Legislation: | Non-Contentious Probate Rules 1967 (WA), r 5(2) Wills Act 1970 (WA), s 8, s 34 |
Case References: | Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 Application of Kencalo; In the Estate of Buharoff, unreported; SCt of NSW (Powell J); 23 October 1991 Baumanis v Praulin (1980) 25 SASR 423 Hatsatouris v Hatsatouris [2001] NSWCA 408 Henwood v Public Trustee (1993) 9 WAR 22 In the Estate of Blakely (Decd) (1983) 32 SASR 473 In the Estate of Masters (Decd) (1994) 33 NSWLR 446 In the Estate of Vauk (Decd) (1986) 41 SASR 242 In the Estate of Williams (Decd) (1984) 36 SASR 423 In the Will of Lobato Shields v Caratozzolo (1991) 6 WAR 1 Kedzier v Postle [2002] NSWSC 875 Macey v Finch [2002] NSWSC 933 Permanent Trustee Co Ltd v Milton (1995) 39 NSWLR 330 Public Trustee v NSW Cancer Council [2002] NSWSC 220 Re Estate of Parkinson (Decd) (1988) 143 LSJS 336 The Public Trustee v Head [2003] WASC 91 Estate of Hines v Hines [1999] WASC 111 In the matter of Trinidad (Decd); Ex parte The Public Trustee, unreported; SCt of WA (Templeman J); Library No 980504; 28 August 1998 Leslie v McDowell [2000] NSWSC 727 Public Trustee v Commins; Estate of Wray, unreported; SCt of NSW (Powell J); 19 June 1992 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
MATTER : Estate of FREDERICK RAYMOND REEVE PERRIMAN (DEC)
and
Decision of REGISTRAR WATT refusing an Application for a Grant of Probate of an Informal Will
- Applicant
Catchwords:
Wills - Probate - Appeal against decision of Registrar dismissing application to admit draft will to probate - Instruction to solicitor to prepare will prior to death - Will prepared accordingly but person died before will executed - Deceased did not sign or see the document prior to his passing - Whether document should be admitted to probate as will of deceased - Whether deceased intended the document to constitute his will - Whether deceased "authenticated or adopted" the draft will
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Legislation:
Non-Contentious Probate Rules 1967 (WA), r 5(2)
Wills Act 1970 (WA), s 8, s 34
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Applicant : Mr J J Hockley
Solicitors:
Applicant : Conal O'Toole
Case(s) referred to in judgment(s):
Application of Brown; Estate of Springfield (1991) 23 NSWLR 535
Application of Kencalo; In the Estate of Buharoff, unreported; SCt of NSW (Powell J); 23 October 1991
Baumanis v Praulin (1980) 25 SASR 423
Hatsatouris v Hatsatouris [2001] NSWCA 408
Henwood v Public Trustee (1993) 9 WAR 22
In the Estate of Blakely (Decd) (1983) 32 SASR 473
In the Estate of Masters (Decd) (1994) 33 NSWLR 446
In the Estate of Vauk (Decd) (1986) 41 SASR 242
In the Estate of Williams (Decd) (1984) 36 SASR 423
In the Will of Lobato Shields v Caratozzolo (1991) 6 WAR 1
Kedzier v Postle [2002] NSWSC 875
Macey v Finch [2002] NSWSC 933
Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330
Public Trustee v NSW Cancer Council [2002] NSWSC 220
Re Estate of Parkinson (Decd) (1988) 143 LSJS 336
The Public Trustee v Head [2003] WASC 91
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Case(s) also cited:
Estate of Hines v Hines [1999] WASC 111
In the matter of Trinidad (Decd); Ex parte The Public Trustee, unreported; SCt of WA (Templeman J); Library No 980504; 28 August 1998
Leslie v McDowell [2000] NSWSC 727
Public Trustee v Commins; Estate of Wray, unreported; SCt of NSW (Powell J); 19 June 1992
Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535
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- BARKER J:
Introduction
1 On Saturday 6 April 2002, Frederick Raymond Reeve Perriman ("Mr Perriman") of 11 Calabar Court, Merriwa, Western Australia, retired police officer, died suddenly at the age of 76 years from the rupture of an abdominal aortic aneurysm.
2 At the time of his death Mr Perriman had not signed a will. However, on Thursday 4 April 2002, two days before his death, Mr Perriman had attended at the office of Mr Glenn, a solicitor at Joondalup, and given Mr Glenn instructions for the preparation of a will. When he saw Mr Glenn and gave these instructions, Mr Perriman was accompanied by Mrs Lopez, the appellant in this appeal. Mr Perriman instructed Mr Glenn that he wished to leave all of his estate to Mrs Lopez.
3 Mr Glenn's normal practice in relation to the drafting and execution of wills by his clients is to send the draft will, once he has prepared it, by post to his client for approval. However, in this case, because Mr Glenn considered the will to be straightforward, he told Mr Perriman that he should return the following day, Friday 5 April, and he would have the will ready for execution by him. Mr Perriman told Mr Glenn he would prefer to come back on Monday 8 April for that purpose. Mr Glenn then made an entry in his diary that Mr Perriman would be attending to sign the will at 12 noon on Monday 8 April 2002.
4 On Thursday 4 April 2002, after he had received Mr Perriman's instructions concerning the will, Mr Glenn prepared the will ready for execution on the following Monday. Annexed to these reasons is the simple form of will then drafted by Mr Glenn. The terms of this document confirm that when Mr Perriman saw Mr Glenn he instructed him that he desired the whole of his estate to go to Mrs Lopez absolutely in the event of his death, although if she should die before him, leaving a child or children, then such child or children should take, and if more than one equally, the share which his or her parent would otherwise have taken.
5 On 6 April 2002, Mr Perriman died suddenly without signing the will Mr Glenn had prepared for him.
6 Following Mr Perriman's death, Mr Conal O'Toole, barrister and solicitor, on behalf of Mrs Lopez, applied for a grant of probate in
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- respect of the unsigned form of will relying on s 34 of the Wills Act 1970 (WA) governing "informal wills". The application was refused by a Registrar of the Court on 25 February 2003, for two reasons:
"(1) Clearly, the deceased was not aware that the Will existed. Therefore, he can have no intentions with respect to it - an essential requirement of s 34 of the Wills Act".
(2) Furthermore, it cannot be the case that an unsigned Will prepared in accordance with the testator's instructions satisfies the requirements of s 34, as this would not allow for the not-infrequent changes of mind by testators between instructions and first perusal."
Section 34 of the Wills Act 1970
8 The Wills Act 1970 governs the law relating to wills in Western Australia. By s 8 of the Act, subject to the provisions of Pt VI and s 34 of the Act, a will is not valid unless it is in writing, it is signed by the testator or signed in his name by some other person in his presence and by his direction, in such place on the will to say that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his will, that the testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time and those witnesses attest and subscribe the will in the presence of the testator, although no publication or form of attestation is necessary.
9 In this case it is plain that the form of will, the subject of the application for probate by Mrs Lopez, did not conform with the requirements of s 8 of the Act. It had not been signed or witnessed as required.
10 The provisions of the Act to which s 8 is subject include those set out in Pt VI and s 34. The provisions of Pt VI, dealing with privileged wills, are not here relevant. The question is whether s 34 is relevant.
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11 Section 34 appears in Pt X of the Wills Act which deals generally with "informal wills". Section 34 provides that:
"34. A document purporting to embody the testamentary intentions of a deceased person is a will of that person, notwithstanding that it has not been executed in accordance with section 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his will."
- It is sometimes referred to as the "dispensation power".
12 In this case, Mrs Lopez, by counsel, submits that on all the evidence before the Court, the Court can be satisfied that the deceased intended the form of will lodged for probate to constitute his will, notwithstanding that Mr Perriman did not sign or even see the document prior to his passing.
13 Prior to the introduction of the dispensation power created by s 34, the formalities governing the execution of wills were such that the question raised on this appeal either could not have arisen or would have been raised only in exceptional cases. However, s 34 has transformed the landscape concerning testamentary dispositions and appears to have led to what academic commentators have called a "tranquil revolution" in Probate law: J H Langbein, "Excusing Harmless Errors in the Execution of Wills: A Report on Australia's Tranquil Revolution in Probate Law" (1987) 87 Col L Rev 1; see also R Atherton "Dispensing with Wills Formality in Australia: The Problem of the Draft Will in the Tranquil Revolution" (1994) 2 APLJ 68.
14 Section 34 of the Wills Act in this State is modelled on s 12(2) of the Wills Act (Amendment Act) 1975 (SA) and was introduced by the Wills Amendment Act 1987 (WA). All Australian jurisdictions now have a dispensation power modelled on the initial South Australian provision.
15 In Baumanis v Praulin (1980) 25 SASR 423, Mitchell J, in an early decision to do with s 12(2) of the South Australian Act, was required to determine whether a will prepared by a clergyman, read to the testator, and then further amended by the clergyman on the further instructions of the testator, could be admitted to probate in circumstances where the testator had died before the clergyman had retyped the final form of the will and returned with it to the testator for
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- execution. Her Honour refused to exercise the dispensation power because the document had not been signed and the Court could not be satisfied that the document so prepared by the clergyman was intended by the deceased to constitute his will.
16 As to the first ground for refusing to exercise the dispensation power, Mitchell J took the view, at 425, that a failure to sign a will at all could not be considered a failure to meet the "formalities" concerning execution of a will to which the South Australian Wills Act referred.
17 As to the second ground for her decision, her Honour stated, at 426:
"There is no evidence here that the deceased intended the document which is before me to constitute his will. The evidence is quite to the contrary. He intended to execute another document in the like terms to the document which he had read but with the variations which he required. The Shorter Oxford Dictionary gives as one meaning of the verb 'to constitute' 'to make (a thing) what it is'. That appears to me to be the sense in which the words 'to constitute' are used in section 12(2). In order to admit the document to probate the court must be satisfied therefore that the deceased intended that document, not a document in similar form, to be his will." (Emphasis in original).
18 The factual circumstances of Baumanis are not unlike those in the appeal before me. However, since the decision in Baumanis it has been well recognised that the fact that a document is not signed does not necessarily mean it cannot be admitted to probate: see, eg, In the Estate of Blakely (Decd) (1983) 32 SASR 473; In the Estate of Williams(Decd) (1984) 36 SASR 423; Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 539; In the Will of Lobato Shields v Caratozzolo (1991) 6 WAR 1 at 7 - 8; The Public Trustee v Head [2003] WASC 91. The fact that a document purporting to be a will is not signed and so does not conform with the requirements of s 8 of the Wills Act is merely one circumstance which enlivens the power of the Court to find that a particular document in fact constitutes a person's will.
19 Therefore, the primary question that arises under s 34 is the second matter considered by Mitchell J in Baumanis, namely, whether the deceased intended a document purporting to embody his or her testamentary intentions to constitute his or her will. If the Court is
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- satisfied, on the balance of probabilities, that the deceased intended the document to constitute his or her will, then it is the will of that person, notwithstanding that it has not been executed in accordance with s 8.
20 In the present appeal before me, it is said, on behalf of the appellant, that the document prepared by Mr Glenn, the solicitor, is "a document purporting to embody the testamentary intentions" of Mr Perriman.
21 While the decision of Mitchell J has been criticised for taking a narrow view of what is required to be proved before a Court can find a deceased intended a particular document "to constitute" his or her will (see White J in Estate of Blakely (supra) and Re Estate of Parkinson (Decd) (1988) 143 LSJS 336, referred to in R Atherton (supra) at 73), it is generally accepted that there needs to be a "document" in existence before s 34 can have any application to it.
22 In Henwood v Public Trustee (1993) 9 WAR 22, Walsh J was called upon to deal with the potential application of s 34 to a document that was not in existence at the date of death of the deceased, but which was prepared by a solicitor from instructions given by the deceased prior to death. His Honour noted, at 24, that there are numerous authorities showing that relief may be granted where the document existed prior to death, but had not been executed or properly attested or altered. However, at 25, his Honour noted that he had not been afforded any authority which was relevant to a document, such as the one before him, which has in fact been prepared after death, but in accordance with the intentions of the deceased as advised prior to death.
23 Walsh J accepted what Powell J stated in Application of Kencalo; In the Estate of Buharoff, unreported; SCt of NSW (Powell J); 23 October 1991 in relation to s 18A of the Wills, Probate and Administration Act 1898 (NSW), which is in terms almost the same as those in s 34 of the Wills Act in this State. Section 18A(1) says that:
"A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person … if the court is satisfied that the deceased person intended the document to constitute the person's will … ".
- Of s 18A, Powell J said, at 10:
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- "It seems to me, however, that before the jurisdiction conferred upon the Court by s 18A of the Wills, Probate and Administration Act 1898 (NSW) may be exercised:
1. there must be a document;
2. that document must purport to embody the testamentary intentions of the relevant deceased;
3. the evidence - whether it be the form, or the contents of the document itself, or evidence as to the circumstances in which that document came into being - must be such as to satisfy the Court that, either at the time of the document being brought into being, the relevant deceased, by some act, or words, demonstrated that it was his, or her, then intention that the document in question should, without more, operate as his, or her, will."
24 Walsh J also adopted the further dicta of Powell J to the effect that while the dispensation power created by s 34 is remedial in nature, it was intended to be exercised to preserve as valid a testamentary act which would otherwise fail for want of compliance with the formal requirements of the Wills Act, and it was not the intention of the Act that the law should revert to its state prior to the passing of the Wills Act 1837 (Imp). In particular, it was not intended that nuncupative wills should be reintroduced. In other words, Walsh J accepted that s 34 should not facilitate the former practice of submitting to probate instructions for the making of a will in cases in which the coming into existence of the further document was prevented by the death of the intending testator.
25 Walsh J, at 26, concluded that what the plaintiff was seeking to do in the case before him was virtually to adopt the nuncupative will procedure which validated a declaration of a will made before witnesses in certain circumstances without there being any document to support that declaration. His Honour noted that such a procedure is not now permitted and added:
"In my view, the plain meaning of the legislation as set out in s 34 of the Wills Act flies clearly in the face of this situation where a document is sought to be proved which was not prepared at the date of death and which was not seen by the deceased, therefore, prior to his death."
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26 In Estate of Springfield (supra) at 540, Powell J stated, in relation to a case where the relevant document was prepared by someone other than the deceased on the basis of the deceased's instructions and the deceased had never seen the actual document:
"Where … the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased, was, in truth no more than 'instructions', or a note of 'instructions' for a will … I would, I believe, find it very difficult, indeed, to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will."
27 The approach evinced in these single instance decisions has been confirmed in the Court of Appeal of New South Wales by reference to s 18A of the Wills, Probate and Administration Act 1898 (NSW). In Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56], Powell JA (with whom Priestley and Stein JJA agreed) stated:
" … the questions arising on applications raising a question as to the applicability of section 18A are essentially questions of fact, the particular questions of fact to be answered being:
(a) was there a document
(b) did that document purport to embody the testamentary intentions of the relevant Deceased?
(c) did the evidence satisfy the court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will?" (Emphasis in original).
- See also In the Estate of Masters (Decd) (1994) 33 NSWLR 446, especially Kirby P (as he then was) at 449 and Mahoney JA at 455 to similar effect.
28 I consider that these same three matters must be proved to admit a document to probate under s 34 of the Wills Act in Western Australia.
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29 In this case, the answer to the first two questions may be answered in the affirmative: there was a document at the date of Mr Perriman's death - the draft will; and it purported to embody the testamentary intention of the deceased. What is of particular importance in this case is the third matter and whether or not it can be demonstrated that the intention of the deceased was that the document prepared by Mr Glenn, the solicitor, after Mr Perriman had instructed him as to the terms of his will - the draft will, was intended by Mr Perriman, without more, to operate as his will.
30 On the approach of the Court in the authorities I have cited, the question of the "adoption" or "authentication" by the deceased of a document as his will, even a document not seen by the deceased, is critical to the question whether or not that document may be admitted to probate. Unless it can be shown on the balance of probabilities that a particular document has been adopted or authenticated by the deceased with the intention that it should operate as his or her will without more, then it cannot be said, for the purposes of s 34, that "the deceased intended the document to constitute his will".
31 On this approach, the words "the document" referred to in s 34 mean a particular document of which the deceased had some knowledge and not merely "a document" which happens coincidentally to conform to the deceased's testamentary intentions as he may have expressed them, for example, orally to another person. That this is so, is borne out by other cases.
32 In In the Estate of Vauk (Decd) (1986) 41 SASR 242, the deceased died by committing suicide. Some three or four days before his death, he had given instructions for a will to a wills officer of the Public Trustee of South Australia. That officer took handwritten notes and prepared a draft will from the instructions. The draft will corresponded with alterations the deceased had made on an earlier 1971 will found among his papers. The deceased was to attend at the offices of the Public Trustee four days after he gave the instructions in order to execute his will. But he died beforehand. Thus, the will prepared before his death had not been seen by him. However, when he died, the deceased left a piece of paper on which appeared the words:
"There … will … the Pu … Trustee (unsigned … - changed: to be valid!" (Emphasis in original).
33 In these circumstances, Legoe J concluded that the deceased's intention revealed in the piece of paper enabled him to exercise the
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- dispensation power and to admit to probate the draft will, notwithstanding the fact that the deceased had never seen it. The deceased's actions thus provided written confirmation that he intended the document drawn up by the Public Trustee's wills officer to constitute his will.
34 In Macey v Finch [2002] NSWSC 933, Young CJ in Equity had to deal with a question not unlike that raised before me on this appeal. The deceased died unexpectedly on 16 August 2001. Earlier that day, he had attended the office of his solicitor for the purpose of making his will. The solicitor wrote the instructions of the deceased on a piece of paper and then read out the contents of his notes to the deceased which were confirmed by him. The solicitor then told the deceased he would type up a copy of the will and send it to him "to see if it is all right". Mr Munro died suddenly later that day.
35 The form of will that apparently reflected the instructions the deceased had given the solicitor was prepared subsequent to the death of the deceased by the solicitor. The executor referred to in that document sought to have the document admitted to probate. Before Young CJ in Equity, the applicant acknowledged authority which says that instructions for a will or a draft will do not qualify for admission to probate under s 18A of the New South Wales Act. However, it was contended that the case before the Court was of a class of case that stood outside that rule, it being a case where the testator had made up his mind what he wanted to do. However, the Chief Justice in Equity was not convinced. Having noted that there are some cases, of which Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330 and Public Trustee v NSW Cancer Council [2002] NSWSC 220 are examples, where one does not have to find that when the testator left the solicitor's office he or she had made a will that was to last for decades and all that needs to be found is that the person has made a stop-gap will, intending that to operate as the will until a more formal and complete document is prepared, the case before him was not such a case. There was no evidence to suggest that the document created by the solicitor as his own notes would operate as a stop-gap will.
36 In the event, the Chief Justice in Equity, at [27] and [28], concluded that even if all the circumstances contented for were proved, it could not be established that there was an intention that what the solicitor wrote down was to operate as the deceased's will without more. His Honour also found that no significance could be placed on the
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- document purporting to be the draft will created by the solicitor, as it was not engrossed during the deceased's lifetime.
37 In the course of his reasons, Young CJ in Equity, at [23], noted that it is quite common for a person when he or she sees a draft of what has been typed up to realise that there needs to be some changes in expression, or even in disposition. The point is obvious and has been remarked on in many cases: see, eg, Kedzier v Postle [2002] NSWSC 875 per Macready AJ, at [33], citing Estate of Parkinson (supra).
38 In the case before me, it is undisputed that Mr Perriman did not see the form of will prepared on his instructions by Mr Glenn before he died. It is also undisputed that the form of will that Mr Glenn prepared was prepared prior to the death of Mr Perriman. In that regard, the factual circumstances of the case before me is not far removed from that of Henwood or Macey v Finch. The material difference is that the form of will in the case before me was physically prepared and came into existence prior to and not after the death of the deceased, as in Vauk. That, however, seems to me to be a spurious basis upon which to distinguish the cases of Henwood and Macey v Finch from the case before me.
39 The fundamental question is whether, as explained by Powell J in Re Application of Kencalo and confirmed by the New South Wales Court of Appeal in Hatsatouris, the deceased, by some act, or words, demonstrated that it was his or her intention that the document in question should, without more, operate as his or her will; or as Powell J said in Application of Brown; Estate of Springfield (supra) whether the evidence shows that the deceased "authenticated or adopted" the document in question as his or her will. In The Estate of Hines v Hines [1999] WASC 111, Owen J, at [9], also accepted that for s 34 to apply, the Court must be able to infer from the circumstances that the deceased adopted or authenticated the document such as to show that he or she intended the document to take effect as a testamentary instrument.
40 In my view, the correct approach to s 34 of the Wills Act is effectively to ask whether there is evidence to show that the deceased has adopted or authenticated a document said to constitute his or her testamentary intentions. The issue is ultimately a factual one. One needs to ascertain whether the deceased by his or her acts or words adopted that particular document as his or her testamentary statement,
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- that is to say, intended that the document in question should, without more, operate as his or her will.
41 Another approach has been suggested by reference to the authorities, namely, whether the deceased intended to sign the subject document: see R Atherton (supra) at pp 71 - 72. On this approach in a case such as the present, it would be said that if the Court is satisfied that the deceased would have signed the draft will, then the Court should be satisfied the document constitutes his will. I am not attracted to this approach and it does not accord with the weight of authority to which I have referred.
42 It has been suggested that the decision in The Will of Lobato(supra) of Nicholson J in this Court lends support to this other approach: see R Atherton (supra) at pp 73 - 75. I am not sure that it does. In Lobato, the deceased initially executed a will in 1982. In 1985 she executed a further document addressed to her solicitor and described it as a "codicil". In about late April 1989, the deceased apparently produced a further document while in hospital in Bicton, which she had a friend and a nurse, sign. She placed that document in a stamped, addressed envelope and asked her friend to post it. However, there was no trace of this document. Soon after she was admitted to the Fremantle Hospital and spoke to a solicitor by telephone. She instructed the solicitor she wanted to cancel her will and that a person who previously was to get "everything" under it was now not to benefit. She gave other instructions as to what gifts she wished to be made. By the end of May 1989, the solicitor had prepared a draft will and a covering letter dated 29 May 1989 which he intended to send to the deceased at the Fremantle Hospital. At about the same time as the deceased instructed the solicitor by telephone, she also wrote a number of words on a piece of hospital notepaper.
43 In drafting the new will, the solicitor used two photocopies of what he understood were the 1982 will, although he was mistaken in that regard. They were earlier drafts of the 1982 will and not identical to it. It also appears the solicitor was not aware of the 1985 "codicil". The solicitor did not send the letter dated 29 May 1989, but sent a letter in identical terms dated 21 June 1989 to the deceased at the Fremantle Hospital, together with the draft will. The deceased was discharged from the hospital on 8 June. However, the evidence did not disclose what had become of the draft will sent by the solicitor to the Fremantle Hospital. The solicitor did not receive from the deceased an executed will in the form of the draft posted to her, or in any other form. A
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- brother of the deceased received a telephone call from the deceased not long after her discharge from hospital and two days prior to her death. He said she told him that she would leave everything to a Mrs Osborn without encumbrances and that she had made a will which had been witnessed by his cousin, Mrs O'Connor. Mrs Lette, a sister of the deceased, also received a telephone call from her shortly before the deceased's death in which she said the deceased told her she had taken her advice and made a new will in which she left everything to Mrs Osborn, apart from a few gifts to friends who had stood by her. She was also told by the deceased that the new will had been witnessed by a sister at the hospital and Mrs O'Connor, who had also posted it.
44 In these circumstances, Nicholson J, at 7, stated:
"In my opinion, I may have regard to portion of the statements of the deceased to Mr Robinson and Mrs Lette pursuant to the exception to the hearsay rule in respect of post-testamentary declarations of testators concerning the contents of their wills. That exception allows the admission of oral or written statements of a deceased testator after the execution of his will as evidence of its contents but not of its execution: see Cross on Evidence (4th Aust ed, 1991, pp 895-896). I have regard to their statements, therefore, as evidence that the deceased had a will the contents of which were to the effect described in the statements, but not that the deceased had in fact properly executed such a will."
45 In light of this finding, Nicholson J then determined, at 7, that, on the face of it, the 1989 document - the draft will prepared by the solicitor - was the one which purported to embody the testamentary intentions of the deceased.
46 As I understand the reasoning of Nicholson J, it was in these perhaps unusual and certainly hazy factual circumstances that his Honour concluded that there did indeed exist a document - the 1989 draft will - that existed to the knowledge of the deceased and which she had, in effect, adopted or authenticated by her statements to her brother and sister.
47 Nicholson J then undertook a comparison of the 1982 draft wills upon which the solicitor had drafted the 1989 draft will, the 1982 will, the 1985 document and the 1989 draft will in order to determine the testamentary intentions of the deceased. By this process, his Honour appears to have formed the view that certain of the clauses included in
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- the 1989 draft will, following the terms of the draft 1982 wills, did not reflect the testamentary intentions of the deceased. His Honour was satisfied that the deceased intended all portions of the 1989 document, other than cls 3, 4(g) and 4(h), to constitute her will and that the relevant parts of the 1989 document should be admitted to probate.
48 It may be said that the circumstances of Lobato are unusual. To some extent, it may be suggested that in Lobato Nicholson J was less concerned with the form of the document to be admitted to probate than he was with the substance of the document and the testator's intentions with respect to that substance: see R Atherton (supra) at 71. However, it is also clear that in Lobato Nicholson J strived to identify the existence of a particular document apparently authenticated or adopted by the deceased which constituted her testamentary intentions. Because of the unusual factual circumstances, and because the 1989 draft will prepared by the solicitor was not drafted by reference to the 1982 will actually signed by the deceased, but earlier and different drafts of that will, the terms of the 1989 draft were found by his Honour not accurately to reflect the testator's intentions.
49 However, all in all, it does not seem to me that Nicholson J simply attempted to identify the testamentary intentions of the deceased as orally expressed to her solicitor and then admit to probate a document which the deceased had not adopted or authenticated in some way on the basis that it reflected those testamentary intentions. Rather, I consider Nicholson J had regard to the acts and words of the deceased in order to decide whether the 1989 document (or some other document or documents) constituted her will, notwithstanding that she had not signed it and, if it did, whether all or only parts of the document constituted her will. The dealings of the deceased with her solicitor and her statements to her brother and sister a few days before her death constituted evidence of acts and words of the deceased from which his Honour was prepared to infer that the deceased adopted the 1989 document in large part as her will. In that regard, Nicholson J followed the same approach suggested by authorities such as Williams and Vauk, which he expressly relied upon: see at 7 - 8.
50 Accordingly, in my view, it would not be correct to characterise the decision of Nicholson J in Lobato as one whereby the Court admitted to probate a document (or parts thereof) not authenticated or adopted as his or her will by the deceased and it is this test which must be satisfied before a document can be admitted to probate under s 34 of the Act.
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Whether the deceased adopted or authenticated the draft will
51 In the appeal before me, apart from giving express instructions to Mr Glenn, his solicitor, Mr Perriman did nothing further to adopt as his will the particular document that Mr Glenn prepared after he had been consulted by Mr Perriman. Nor did the deceased do anything thereafter to authenticate that document as his will.
52 Mrs Lopez, as I have noted, confirms the circumstances in which Mr Perriman instructed Mr Glenn concerning the terms of his will. She has explained how Mr Perriman became friendly with her and her husband in 1987 when they opened a Spanish restaurant in Sydney. Mr Perriman was a customer. Over the years they all became quite friendly. In January 2000 Mrs Lopez, her husband and daughter commenced living in Western Australia. Mr Perriman visited them soon after they moved to Western Australia and stayed with them at their home. He then decided to relocate from Sydney to Perth permanently in January 2002. On his arrival in Perth he lived with Mrs Lopez and her family for two months. He initially wished to build a small house at the rear of their home, but then found a home nearby to the Lopez residence, at 11 Calamar Court, Merriwa, which he purchased. It is this property which would pass to Mrs Lopez under the will if it were admitted to probate. That house and land constitutes the main asset of the deceased's estate.
53 Mrs Lopez says that in the week the Queen Mother (a reference as I understand it, to the mother of the Queen of England) passed away Mr Perriman was very sad because he had a great affection for her. He told Mrs Lopez that he would die soon as well and that he wished to be cremated and laid to rest in Pinnaroo Cemetery, not far from where he lived.
54 Mrs Lopez says that during the time Mr Perriman lived close to her family she looked after him and would often take him shopping. She says they spoke frequently and he told her he wished to make a will and leave everything to her in case anything happened to him, so that the house would be for her and her family. Towards the end of March or early April 2002 Mr Perriman asked Mrs Lopez to take him to a solicitor so that he could give instructions for the preparation of his will.
55 Mrs Lopez says that she attended at Mr Glenn's office on 4 April 2002 and Mr Perriman gave instructions to Mr Glenn for the preparation of the will. She says Mr Perriman told Mr Glenn in her
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- presence that he wished to leave everything to her and that he paid Mr Glenn for the drafting of the will.
56 Mrs Lopez also says that after she and Mr Perriman left Mr Glenn's office they returned to Mr Perriman's house to have dinner. At that time he told her that he was annoyed because he couldn't sign the will immediately. He had wanted to sign it there and then, according to Mrs Lopez. That evidence, it may be remarked, appears to be slightly at odds with the evidence of Mr Glenn that Mr Perriman said he could not return on the Friday to sign the will and that it would better suit him to sign the will on Monday 8 April 2002. However, what Mrs Lopez says Mr Perriman said is not necessarily inconsistent with what Mr Perriman apparently said to Mr Glenn earlier. He may well have been anxious to sign a will, but unable to do so until the Monday by reason of a commitment on the Friday.
57 Mrs Lopez says that on 5 April 2002, the day before Mr Perriman died, he said to her that he wished to write on a piece of paper that he was leaving the house to her and sign it. She says that she told him not to worry because he was going to sign the will on the Monday.
58 On Saturday 6 April, Mrs Lopez found Mr Perriman in his house lying on his bed unconscious. She immediately telephoned for an ambulance and did CPR until the ambulance arrived and took him to hospital. Unfortunately Mr Perriman died on the way to hospital.
59 As much as the evidence supports the view that Mr Perriman intended to make a will in terms of the document prepared by Mr Glenn on Thursday 4 April 2002, after Mr Glenn had taken Mr Perriman's instructions for the preparation of a will, I am not satisfied that the document prepared by Mr Glenn is itself one that was at any material point adopted or authenticated by the deceased or that he intended without more to operate as his will.
60 What might be said on the evidence before me, and indeed I am satisfied on the balance of probabilities that this is so, is that the deceased intended to make a will in the same terms as the document drafted by Mr Glenn, and that in all probability Mr Perriman would not have altered the document drafted by Mr Glenn before executing it in conformity with s 8 of the Wills Act. However, it appears to me that findings to that effect do not materially assist in answering the question whether the deceased "intended the document to constitute his will". In circumstances where the deceased did not see the document, did not have the terms of the document read out to him or did not otherwise do
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- or say anything whereby he adopted the document prepared by Mr Glenn as his will, I cannot be satisfied that he intended that document to constitute his will without more.
61 The only evidence capable of qualifying this view is the evidence of Mrs Lopez, which I have no reason to reject, that on 5 April, the day before he died, Mr Perriman said to her that he wished to write on a paper that he was leaving the house to her and sign it. That perhaps constitutes evidence to support the view that Mr Perriman, in all probability, on the Monday would have signed unaltered the document prepared by Mr Glenn on the Thursday. However, it may also constitute evidence that Mr Perriman appreciated he needed to sign a will to make a testamentary disposition and that, at that point, there did not exist any document purporting to state his testamentary intentions that could be called his.
62 Ultimately, like Walsh J in Henwood v Public Trustee, I would be concerned, if I were to order that the document prepared by Mr Glenn be admitted to probate pursuant to s 34 of the Wills Act, that I would effectively be adopting the former nuncupative will procedure which was used to validate a verbal declaration of a will made before witnesses (in this case Mr Glenn and Mrs Lopez) in certain circumstances without there being any document to support that declaration. Such a procedure is not now permitted, as Walsh J pointed out in Henwood, and in my view it would be inappropriate to find, in effect, that it has been reintroduced by s 34 of the Wills Act.
Conclusion and orders
63 In all the circumstances, and notwithstanding that I am satisfied Mr Perriman would have signed the document prepared by Mr Glenn on Monday 8 April, if he had survived until that day, I do not consider that that finding is sufficient to enable me to find that s 34 of the Wills Act applies in this case. That Mr Perriman intended to make a testamentary disposition on terms that are reflected in the draft will prepared by his solicitor is, I think, undoubted. However, in my view, that the deceased so intended does not mean, having regard to the particular facts of this case, that the deceased intended the draft will lodged for probate, without more, to be the document that constituted his will.
64 For these reasons, I would dismiss the appeal.
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