Re Estate of Sophia Alexandra Hicks (Dec);
[2020] WASC 170
•21 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE ESTATE OF SOPHIA ALEXANDRA HICKS (DEC); EX PARTE HICKS [2020] WASC 170
CORAM: REGISTRAR C BOYLE
HEARD: ON THE PAPERS
DELIVERED : 21 MAY 2020
FILE NO/S: PRO 665 of 2020
MATTER: ESTATE OF SOPHIA ALEXANDRA HICKS (DEC)
EX PARTE
STEPHEN RYDER ROSS
Applicant
Catchwords:
Probate - Informal will - Document in accordance with will maker's intentions - Document not seen by deceased - Whether capable of proof
Legislation:
Non–contentious Probate Rules 1967 (WA)
Rules of the Supreme Court 1971 (WA)
Wills Act 1837 (UK) (Imp)
Wills Act 1970 (WA)
Wills Amendment Act 1987 (WA)
Wills Amendment Act 1989 (WA)
Wills Amendment Act 1997 (WA)
Result:
Application refused
Category: B
Representation:
Counsel:
| Applicant | : | No appearance |
Solicitors:
| Applicant | : | Granich Partners |
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) HCA 34; 60 CLR 336
In the Estate of Graham, deceased (1978) 20 SASR 198
Oreski v Ikac [2008] WASCA 220
REGISTRAR C BOYLE:
When Sophia Alexandra Hicks died on 16 October 2019, she and her de facto husband had instructed a solicitor to prepare wills for them. The document that is now sought to be proved is an unexecuted will prepared in accordance with her instructions. It names the deceased's de facto husband Stephen Ryder Ross as institute executor and in that capacity he is the applicant. The question is whether the document should be admitted to probate as the last will of the deceased under s 32 of the Wills Act 1970.
The facts are deposed to in the affidavits of the applicant,[1] the deceased's friends Nicoletta Dragicevic[2] and Daniela Sain,[3] and the deceased's solicitor Alexander Granich.[4] Submissions have also been filed in support.
[1] Affidavit of Stephen Ryder Ross affirmed 6 December 2019.
[2] Affidavit of Nicoletta Dragicevic sworn 30 January 2020.
[3] Affidavit of Daniella Maria Fiore Sain sworn 30 January 2020.
[4] Affidavit of Alexander Peter Granich sworn 6 February 2020.
What the lawyer did
It is convenient to build the narrative around Mr Granich's part. Mr Granich deposes that Ms Hicks and Mr Ross first saw him on 3 September 2019 'to discuss their estate planning matters so that I could draft Wills, Enduring Powers of Attorney and Enduring Powers of Guardianship for them.'[5]
[5] Granich affidavit [3].
Mr Granich responded by sending Ms Hicks and Mr Ross draft documents including wills on 9 September 2019. He heard nothing further until he received an email on 24 September requesting amendments. Next, Mr Granich deposes that 'on or about 7 October 2019 I received a call from Stephen and Sophia from a hospital. During this telephone call, Sophia and I discussed the amendments to her draft will.'[6]
[6] Ibid, [5].
He made the amendments and on 10 October forwarded a further draft of the will for Ms Hicks. On 12 October Mr Granich received an email from her that relevantly read 'please go ahead and organise the finalised documentation for signing.'[7]
[7] Ibid, [7] and annexure APG 1.
That was a Saturday. On Monday 14 October Mr Granich spoke by telephone to Stephen Ross, who wanted to make a time to come in to collect the final documents so that he and Ms Hicks 'could sign them as soon as possible.'[8] The next day, Mr Ross attended Mr Granich's office and collected a covering letter together with a suite of documents consisting of wills for each of Sophia Hicks and Stephen Ross and their respective enduring powers of attorney and enduring powers of guardianship.
[8] Ibid, [8].
The document now propounded as the last will of the deceased is the will that was given to Mr Ross on Tuesday 15 October.
What the applicant did with the will
The evidence of Mr Ross corroborates that of Mr Granich to that point. What happened next? I do not overlook that the applicant's partner was dying of cancer: she was only 45 years of age. They had three children, the oldest of whom was only 10 years of age and the youngest not yet 7. The circumstances were oppressively tragic.
The applicant deposes very shortly to what happened after he collected the will and other documents from Mr Granich's office:[9]
13.However, before Sophia was able to sign the document … her condition worsened and Sophia died on 16 October 2019.
14.I believe that … it was Sophia's intention that she should sign that document and for that document to operate as her Last Will and Testament.
[9] Affidavit of Stephen Ryder Ross affirmed 6 December 2019, [13] ‑ [14].
Of course, what Mr Ross believed is not what counts.
At the hospice
The deceased's friends Daniela Sain and Nicoletta Dragicevic visited the deceased in the hospice on 12 October. It appears from their affidavits that Mr Ross was not present on that occasion: Ms Sain deposes that he had asked her to remind the deceased 'to check her emails for an amended draft Will from Alex'.[10]
[10] Sain affidavit [5].
At that reminder, the deceased checked her emails on her phone and found Mr Granich's email of 10 October. The three discussed the document, and
6.… Sophia said that she was happy with the amendments to the draft Will and that she would email Alex and advise him that she agreed to the amendments.
7.Nikki asked Sophia if she wanted her to type the email for Sophia and Sophia said yes. Sophia then dictated the email to be sent to Alex. Nikki typed the email on Sophia's phone as Sophia was dictating it to Nikki.
8.Nikki read the email back to Sophia and Sophia said she was happy for Nikki to send it. Nikki then sent the email to Alex.
Ms Dragicevic by her affidavit corroborates this narrative and I accept it wholly.
The email typed by Ms Dragicevic at the instructions of the deceased and then sent is of course that referred to in Mr Granich's evidence. It was in accordance with those instructions that Mr Granich prepared the will that Mr Ross collected but the deceased did not execute.
What the law requires
The law governing the admission to probate of a will that has not been executed in accordance with s 8 of the Wills Act is settled. The Court's power to make such a grant is contained in s 32 of the Wills Act. That was formerly numbered s 34. In this jurisdiction, the authoritative summation of the law, binding on me, is contained in the observations of Newnes AJA (Martin CJ and McLure JA concurring) in Oreski v Ikac:[11]
[11] Oreski v Ikac [2008] WASCA 220.
52In Hatsatouris v Hatsatouris [2001] NSWCA 408 [56], Powell JA (with whom Priestley and Stein JJA agreed) identified three questions of fact that arise under the New South Wales equivalent to s 34, those questions being:
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 that it was their intention that the document should, without more on his or her part, operate as his or her will?
53That approach was followed in Perriman and by the learned primary judge in this case. In my respectful opinion, his Honour was right to do so. For present purposes, there is no material difference between s 34 of the Act and its New South Wales counterpart.
54It 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.
55 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 passage is frequently cited but, in my experience, not so frequently read carefully or applied with the rigour the words demand. The comparative brevity of those paragraphs should not be mistaken for a paucity of content.
The topic of informal wills tempts some into an improper liberality. The desires of the living are not the intentions of the deceased, and cannot be allowed to substitute for them.
It is not right simply to proceed on the basis that s 32 is a remedial provision and ought to be applied purposively, even generously. That way lies error. The reason the Wills Act (Imp) imposed a requirement for formality in the execution of wills was that by the early 19th century documents of such informality were being admitted to probate in the ecclesiastical courts that it had become impossible to predict what would or would not be proved, and there were grave suspicions of abuse.
The first Australian jurisdiction to enact legislation containing what became known as the dispensing power was South Australia. The scope and purpose of the legislation was considered in a number of early cases in that jurisdiction. In In the Estate of Graham,[12] Jacobs J of the Supreme Court of South Australia related the state of the law prior to the Imperial Act of 1837 and noted:
It is not surprising that the ease with which informal testamentary documents were proved in the Ecclesiastical Courts provoked adverse comment. In Matthews v. Warner, Lord Chancellor Loughborough said:
'If such things are to be established as wills, it loudly requires the interference of the legislature to prevent such latitude in that respect, as makes the disposing of all a man's fortune the most slight and trivial act, attended with much less of form, solemnity, and precision, than any act he could do with regard to any part of his property during his life.'
It was against this background that the legislation of 1837 was enacted, and it prompted the learned author of Jarman (4th ed. (1881), at p. 31) to observe that 'the exclusion ... by the statute 1 Vict. of all testamentary papers which are not attested by two witnesses has materially checked the evil which has been the subject of complaint'.
[12] In the Estate of Graham, deceased (1978) 20 SASR 198.
It was never the purpose of provisions of the kind contained in Part X of the Wills Act (WA) to return the law to the state it was in prior to the Imperial statute of 1837. If that had been the intention, the requirements for execution in the presence of two attesting witnesses could simply have been repealed. Rather, the purpose was stated to be to ameliorate what was said to be injustice caused by strict insistence on formal requirements.
When s 34 was inserted in our Wills Act in 1987,[13] it provided:
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 in a probate action is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will.
[13] Wills Amendment Act 1987, no. 69 of 1987, s 9.
There was a doubly stringent safeguard: the dispensing power could be exercised only in a probate action,[14] and the standard of proof was satisfaction beyond reasonable doubt. The limitation that the power could be exercised only in a probate action was repealed in 1989,[15] and the requirement for proof beyond reasonable doubt in 1997.[16]
[14] That is, an action commenced by writ in accordance with Rules of the Supreme Court O 73.
[15] Wills Amendment Act 1989, no.17 of 1989, s 5.
[16] Wills Amendment Act 1997, no.47 of 1997, s 4.
Notwithstanding that the standard of proof is now the ordinary civil standard of reasonable satisfaction, a finding that a deceased intended a document to constitute her last will is one of considerable gravity. Plainly, it affects the disposition of the deceased's entire estate. While the standard of proof remains constant, the gravity or consequentiality of the fact to be found influences the weight of evidence required to meet that standard: Briginshaw v Briginshaw.[17]
[17] Briginshaw v Briginshaw (1938) HCA 34; 60 CLR 336, especially per Dixon J at 60 CLR 360 ‑ 363.
Do the facts satisfy the test for admission?
The application is expressly made in relation to the will that Mr Granich prepared after receiving the deceased's email of 12 October. It is not made in respect of the draft that was emailed to the deceased and which she read when Ms Sain and Ms Dragicevic were with her. That observation should not be taken as suggesting what the result of such an application might be. As I have related already, Mr Ross collected the document the subject of this application from Mr Granich on 15 October and Ms Hicks died the next day without—so far as the evidence shows—having seen it. The absence of any such evidence points strongly to the conclusion that the deceased never saw the engrossed will.
When the evidence is subjected to the test laid down in Oreski, it is clear that this application must fail.
It is not correct to admit a document the intending will maker never saw because the court is persuaded that had the will maker seen the document she would have executed it if possible or at least demonstrated an intention that it should constitute her last will. The test is not 'Would the deceased have executed this will if she saw it?'. That seems to be the premise underlying this and similar applications.
The Wills Act 1970 (WA) requires,[18] as did its progenitor the Wills Act 1837 (Imp), that a will be in writing. Probate is granted, not of a set of ideas or a summary of testamentary intentions, but of a testamentary writing or writings. The expanded definition of 'document' for the purposes of ss 32 and 33 is not relevant to this application. The application is for a grant of probate of the printed, bound, document that Mr Granich engrossed after receiving the email from the deceased on 12 October and gave to Mr Ross on 15 October.
[18] Section 8(a).
Although the bound document has been has marked by the applicant and the person taking his affidavit as if in accordance with r 12 of the Non‑contentious Probate Rules 1967, the applicant has not sworn to having done so as is the proper practice. Instead, a photocopy of the document is attached to his affidavit and marked as 'SSR5'. The applicant has sworn[19] that that is the 'true and last Will of Sophia'. It is not. Attaching a photocopy of a will to the applicant's affidavit is bad practice and in this instance suggests a failure to understand the very point that is critical to the application: what is the document sought to be admitted? Let me be clear that the outcome of the application does not turn on that failure. I treat the application as being for a grant in respect of the engrossed will prepared for execution, and the failure to comply with r 12 is an irregularity that I mention only because it instances an insurreption that demands correction.
[19] Applicant's affidavit [14] and attachment SSR5.
The application is in respect of a document that there is no evidence the deceased ever saw.
That being so, it is impossible to satisfy the requirement that 'either at the time the document was brought into being or at some later time, the deceased, by some words or act, demonstrate that it was their intention that the document should, without more on his or her part, operate as his or her will'. The emphasis is mine. The language of both Hatsatouris and Oreski explicitly requires that the sequence must be first, that there is a document. Then and only then can the intending will maker by some act or words evidence an intention that that document constitute her last will.
There is no evidence that the deceased ever expressed any intention in relation to the document in question. She could not, because she did not see it. That Mr Granich engrossed a will in accordance with the deceased's testamentary intentions as expressed in her email of 12 October is not enough. The Hatsatouris test, as emphasised by Newnes AJA at Oreski [55], requires more than just that the document purport to embody the testamentary intentions of the deceased. In this application, there is simply no evidence that the deceased, by some word or act at a time when the document was in existence, demonstrated her intention that she intended that that document constitute her last will.
The application is accordingly refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
Court Officer21 MAY 2020
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