Re Estate of Margaret Criddle;
[2011] WASC 169
•8 JULY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: RE ESTATE OF MARGARET CRIDDLE; EX PARTE NUMANS [2011] WASC 169
CORAM: REGISTRAR C BOYLE
HEARD: ON THE PAPERS
DELIVERED : 8 JULY 2011
FILE NO/S: PRO 4266 of 2010
EX PARTE
NIEK NUMANS
Applicant
Catchwords:
Will - Revocation - Informal documents - Application claiming intestacy as a result of informal revocation - Application of authorities covering informal wills to informal revocations - Turns on own facts
Legislation:
Wills Act 1970 (WA), s 14(a), s 15, s 32
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant: Mr J A Scurria
Solicitors:
Applicant: Joe Scurria & Associates
Case(s) referred to in judgment(s):
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 Graham, Deceased [1978] 20 SASR 198
In the Estate of Kirs (Deceased) [1990] 55 SASR 61
In the Will of Lobato (1991) 6 WAR 1
Mitchell v Mitchell [2010] WASC 174
Oreski v Ikac [2008] WASCA 220
re Estate of John William Henry Nicholls (Dec) [2003] WASC 85
The Application of K Kencalo (In the Estate of Ruth Buharoff) (Unreported, NSWSC, 23 October 1991)
The Estate of Frederick Raymond Reeve Perriman (Dec) [2003] WASC 191
The Estate of Kevin John Hines v Hines [1999] WASC 111
REGISTRAR C BOYLE: This is an application for a grant of letters of administration in intestacy of the estate of the deceased. The applicant is a brother of the deceased. The question is whether an undoubted will that she made in her lifetime was ever revoked.
Chronology
On 4 April 1998 the deceased, whose surname was until then Numans, married Mr Kim Criddle.
On 29 April 2003 the deceased executed a will. It is whether this will was ever revoked that is in issue. The will appointed as executors the deceased's husband Mr Criddle, Mr George Desmond, and a Ms Lynette Shirley Bowron. A copy of the will was produced on an earlier application in support of a preservation grant.
Of the executors, Mr Criddle has renounced and Ms Bowron cannot be found.
The will gave the deceased's estate to her husband if he survived her.
On 26 August 2003 Mr Criddle's mother Dorothy Criddle executed a transfer of properties at Walkaway, near Geraldton, to the deceased.
On a date that may have been around 1 October 2003, the transfer of the properties to the deceased was registered. She remained the registered proprietor of them at her death. After they were transferred to her, she mortgaged them for $50,000, apparently using the money for her own purposes.
The deceased and Mr Criddle separated on 18 April 2004.
Just over a year later, on 19 April 2005, the deceased wrote in her diary 'will cancelled'. When I say that was the date the deceased made that entry, the evidence is really no more than that that was the diary date against which the entry was made. The date the deceased actually wrote the words is a matter of inference.
On 29 April 2005, the deceased emailed a solicitor, Mr Nixon, to say that she had made a new will, and for him to destroy the existing will.
I will examine the evidence of these events in more detail later in these reasons.
On 15 January 2007, the deceased and Mr Criddle were divorced.
There were subsequent proceedings between the deceased and Mr Criddle in the Family Court for alteration of property interests. In May 2008, Dorothy Criddle swore an affidavit in the Family Court proceedings claiming to be the beneficial owner of the Walkaway properties notwithstanding that she had transferred them to the deceased. Dorothy Criddle died on 2 September 2008.
The deceased died on 14 January 2010. The trial in the Family Court of the property proceedings had been due to commence on 1 February.
The question of law
The deceased and Kim Criddle were divorced prior to the coming into operation of s 14A of the Wills Act 1970 (WA) (Wills Act) on 9 February 2008. The ending of the deceased's marriage therefore did not operate to revoke her will: Wills Act s 14A(4).
The means by which a will may be revoked are set out in s 15 of the Wills Act. There is no suggestion that either s 15(a) or (c) applies. Although the deceased in her email message to Mr Nixon asserted that she had made a new will, there is no evidence that statement was true. I proceed on the basis that the deceased did not at any time revoke her will of 29 April 2003 by making a later will.
Nor can there be any suggestion that s 15(c) operates. That is because despite persistent suggestions that the deceased had revoked the will by destroying it, it has now been found. The will itself has not been brought into court on this application as Non‑Contentious Probate Rule 13 requires. There are unsatisfactory elements of the history of enquiries as to the continued existence of this document, but I need not go into those for the purpose of these reasons.
There is no evidence that, pursuant to s 15(b), the deceased executed a writing declaring her intention to revoke her will in the manner in which a will is required to be executed.
The opening words of s 15(b) are 'Subject to Part X'. The applicant submits, which is undoubtedly correct, that just as a will can be made by a document not executed in compliance with s 8 of the Wills Act, so can it be revoked by a like document.
The critical provision is s 32(2):
(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;
(b)an alteration to a will of the person;
(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.
Section 32 is a restatement in materially equivalent language of an earlier provision.
Section 33 provides, in part:
(1)Section 32 applies only to persons dying on or after the day on which section 23 of the Wills Amendment Act 2007 comes into operation , but in respect of persons so dying extends to any document that came into existence before that day.
The effect is that because the deceased died after the coming into operation of the Wills Act (Amendment Act) 2007 (WA) which became operative from 9 February 2008, s 32 applies, even to documents made before that date.
The operation of pt X
Because s 32 of the Wills Act applies alike to the making of a will and to its revocation, the cases on the making of informal wills are applicable to the question of informal revocation. I have not been referred to any authority that suggests otherwise.
The leading authorities on informal wills are well known. The earlier ones, although dealing with legislative provisions in slightly different terms, are still valuable in discerning the history and philosophy of such legislation. Thus, I bear in mind such early decisions as Baumanis v Praulin [1980] 25 SASR 423; In the Estate of Graham, Deceased [1978] 20 SASR 198; In the Estate of Kirs (Deceased) [1990] 55 SASR 61; and The Application of K Kencalo (In the Estate of Ruth Buharoff) (Unreported, NSWSC, 23 October 1991) (Powell J): more recent interstate authority is Hatsatouris v Hatsatouris [2001] NSWCA 408.
In this jurisdiction, the authorities include: In the Will of Lobato (1991) 6 WAR 1; Henwood v Public Trustee (1993) 9 WAR 22; The Estate of Kevin John Hines v Hines [1999] WASC 111; The Estate of Frederick Raymond Reeve Perriman (Dec) [2003] WASC 191; re Estate of John William Henry Nicholls (Dec) [2003] WASC 85; and Mitchell v Mitchell [2010] WASC 174.
What is in my respectful view a helpfully concise and clear summary of the law is contained in the reasons of Newnes JA in Oreski v Ikac [2008] WASCA 220 [50] ‑ [55]. I am grateful for the assistance provided by those reasons, which are of course binding on me. Particularly apposite is the last paragraph:
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.
The evidence
The applicant swore an affidavit on 25 January 2011 that has been filed in support of this application. In response to a request, the applicant's solicitors have provided written submissions.
The affidavit and submissions refer to three documents that are respectively attachments 'B', 'C' and 'D' to the applicant's affidavit.
Attachment 'B' is a print of what appears to be a copy of an email the deceased sent to her solicitor Mr Nixon, who had prepared the 2003 will. The body reads:
To: Gary Nixon.
Dear Gary
I wish to have my Will ,drawn up by your Office, Destroyed.
My DOB is the 24 08 1949.
My spouse Kim Maitland Criddle, and I, Separated last year.
I have in the last two weeks drawn up a New will.
Rendering the one you have on file as un‑valid.
Please contact me if there is a problem.
With Thanks
Margaret Criddle JP.
It appears from the evidence that attachment 'B' is not a direct print of the email (apparently) sent by the deceased to Mr Nixon. For one thing, it is dated 18 January 2010. The explanation provided by the applicant in his affidavit is that after the death of his sister he checked on her computer and located the copy of the sent email in her outbox. What is attached to the applicant's affidavit is a print that bears the date on which it was printed.
Attachment 'C' is another copy of the same document. In this case, the applicant identifies it as a photocopy of an attachment to an earlier affidavit. That earlier affidavit was sworn by George Desmond on 3 May 2010 in support of his application for a preservation grant. It is attachment 'GD‑5' to Mr Desmond's affidavit. At paragraph 31 of his affidavit, Mr Desmond deposes:
Now produced and shown to me and marked with the letters 'GD‑4' and 'GD‑5' are the diary entry of the deceased dated 19 April 2005 and the fax from the deceased to Mr Gary Nixon of 29 April 2005.
It is apparent that attachment 'B' and 'C' to the affidavit of the applicant are copies derived by different methods from a common original message.
Attachment 'D' to the applicant's affidavit is a photocopy of two pages in a diary, for 18 and 19 April 2005. The evidence of the applicant was that when he was at the deceased's home in January 2010, he located her 2005 diary. Attachment 'D' is a copy. No reason is given why the original document has not been produced. The conduct of this application has been characterised by a failure to attend to the critical question of how a fact or a document is properly proved.
The words written on the page for Tuesday, 19 April 2005 are:
Mr Groom
Marriage Certificate
held by him.
to Send to Mandurah
Reg ‑ Post
(cancelled will)
The evidence considered
The applicant relies on these two documents.
The authorities to which I have referred make it abundantly clear that, in order to prove a will under pt X of the Wills Act, it is not enough just that there be a document not executed in accordance with the Act, which expresses the testamentary intentions of the deceased. It is critical that there be a document that the deceased 'intended, without more, to constitute his last will'.
Similarly, in order to prove a revocation under pt X, there must be identified a document not executed in accordance with the Wills Act, which is also an expression of an intent to revoke, and which, critically, intended to constitute the instrument of revocation.
The two documents under consideration must be viewed in light of that requirement. When they are, it is obvious that this application must fail.
The email to Mr Nixon is not in its language something that on any construction it could be said the deceased intended to constitute an instrument revoking her will. It instructs Mr Nixon to destroy her existing will. It asserts that the deceased had in fact made a new will, something which appears not to be correct. It also indicates the belief of the deceased that the existence of a new will rendered the one Mr Nixon held 'un‑valid'.
The email could be considered either as expressing the desire of the deceased to revoke her 2003 will, or as expressing the view that it had been invalidated already by the (supposed) making of a new will.
The language of the document does not come near to purporting to be an instrument of revocation. Nor is there any evidence that the deceased intended it to constitute an instrument of revocation.
Attachment 'D' is weaker still. At its highest, it is no more than an assertion by the deceased that she had done something, namely 'cancel' her will. Again, there is no possible construction of this document that supports the proposition that the deceased intended this diary entry to constitute an instrument revoking her will.
The balance of the affidavit of the applicant is no more than an elaboration on these fundamentally unsound foundations. At most, it goes to why the applicant thought the deceased had revoked her will, or perhaps would have expected her to have done so.
When this application was instituted, the original will of the deceased had not been found. In the letter of 4 April 2011 setting out submissions in support of the application, the solicitors for the applicant advised that they had on 29 March received the original will of the dated 29 April 2003 from solicitors who had been acting for another party. This meant that there could be no continued suggestion that the application was fortified by the presumption of revocation by destruction arising from the failure to find the will after the death of the deceased.
The authorities I have referred to together make it clear that it is not enough to prove an informal will that there be a document not executed in accordance with s 8 of the Wills Act. Nor is it enough that any such document also expresses the testamentary intentions of the deceased. There must be a document that the deceased intended to constitute his or her last will.
Likewise, in order to admit an informal revocation, it is not enough that there merely be a document. Two are offered here but there is nothing in either the affidavits nor the submissions that identifies which is said to be the instrument of revocation. Nor is it enough that the document evidences an intention to revoke a will. What is necessary is that there be a document that satisfies the court that this deceased intended to constitute that document to be the instrument that revoked her will. Evidence of an (understandable) intention to revoke is not enough: what is necessary is that the deceased intended the document to be the instrument of revocation. Neither the diary note nor the email can satisfy that requirement.
In the circumstances I am not able to find that the deceased died intestate. The application for a grant of administration on intestacy is accordingly refused.
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