Re Hancock; Rennie v The Whippet Association of Victoria Inc
[2016] VSC 496
•24 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2015 14901
| PETER LESLIE RENNIE | Plaintiff |
| v | |
| THE WHIPPET ASSOCIATION OF VICTORIA INC | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 June 2016 |
DATE OF JUDGMENT: | 24 August 2016 |
CASE MAY BE CITED AS: | Re Hancock; Rennie v The Whippet Association of Victoria Inc |
MEDIUM NEUTRAL CITATION: | [2016] VSC 496 |
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WILLS AND ESTATES — Application by plaintiff to admit seven pages of will instructions to probate — Whether testator intended the seven pages to be his final will — Standard of proof — Insufficient evidence to satisfy the burden of proof — Fast v Rockman [2013] VSC 18 — Briginshaw v Briginshaw (1938) 60 CLR 336 — Wills Act 1997, s 9
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R B Phillips | Dandanis & Associates |
| For the Defendant | Mr R R Boaden | Aitken Partners |
HER HONOUR:
Introduction
Gary Robert Hancock (‘the deceased’) died on either 22 April 2015, according to his death certificate, or on about 14 April 2015, according to the plaintiff.
The deceased left a will dated 4 February 2009 (‘the 2009 will’) and instruction sheets comprising seven pages headed ‘will instruction sheet’ dated 21 March 2015 (‘the will instruction sheets’).
The 2009 will appointed the plaintiff as his executor and left his estate to The Whippet Association of Victoria Inc. (‘the Whippet Association’).
The will instruction sheets purport to appoint the plaintiff as executor and, according to the plaintiff, make certain gifts of chattels and leave the residuary estate to six individuals in equal shares, one of whom is the plaintiff.
Plaintiff’s application
Pursuant to s 9(1) of the Wills Act 1997 (‘the Act’), the plaintiff seeks to propound the will instruction sheets as the deceased’s final will. The plaintiff says the will instruction sheets consist of the deceased’s instructions for his will provided to his solicitor, Mr Dylan Chaplin-Burch of the firm Hicks Oakley Chessell Williams in Mount Waverley (‘the firm’) on 21 March 2015, and signed by the deceased at the base of the first page of the document, with his signature witnessed by Mr Chaplin-Burch on the same page.
The Whippet Association challenged the plaintiff’s application to propound the will instruction sheets on the ground that the deceased lacked testamentary capacity and that the deceased did not intend the will instruction sheets, without any alteration or reservation, to have effect as his will.
Because the deceased suffered from alcoholic liver disease for 20 years, the Whippet Association relied on the ground of lack of testamentary capacity until the plaintiff obtained access to the relevant medical evidence.
In response to this ground, the plaintiff filed an affidavit of Dr Ibrahim Elnazak sworn 6 April 2016 that established the deceased did have testamentary capacity at the time the deceased provided his instructions to Mr Chaplin-Burch. As a result, the Whippet Association no longer relied on the ground of the deceased’s lack of testamentary capacity to challenge the plaintiff’s application.
Applicable principles
Section 9 of the Act allows the Court to admit to probate a will that has not been executed in conformity with s 7 of the Act. Ordinarily, for there to be a valid will, it must be signed by the testator in the presence of two witnesses.
However, s 9 of the Act allows a will that fails to satisfy the requisite formalities to be admitted to probate as long as certain conditions are met:
9 When may the Court dispense with requirements for execution or revocation?
(1) The Supreme Court may admit to probate as the will of a deceased person—
(a) a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b) a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act—
if the Court is satisfied that that person intended the document to be his or her will.
…
(3) In making a decision under subsection (1) or (2) the Court may have regard to—
(a) any evidence relating to the manner in which the document was executed; and
(b) any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
Section 9 of the Act is a remedial provision, enabling the Court to dispense with the formal requirements for the execution of a will when admitting a will to probate. Ordinary principles of statutory construction dictate that it should be given a broad construction. However, its remedial nature must be tempered by an acknowledgement that the legislature is not to be taken to have unduly relegated the importance of the formalities of execution.[1]
[1]Estate of Peter Brock [2007] VSC 415 (24 October 2007) [19]–[20] (Hollingworth J).
In order to admit an informal will to probate under s 9 of the Act, the Court needs to be satisfied that the following criteria have been established on the balance of probabilities:
(a) there must be a ‘document’;
(b) the document must express or record the testamentary intentions of the deceased; and
(c) that document must have been intended by the deceased to be his or her will.[2]
[2]Fast v Rockman [2013] VSC 18 (7 February 2013) [46] (Habersberger J); Rowe v Storer [2013] VSC 385 (2 August 2013) [32] (McMillan J). See also, Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [56] (Powell JA, with whom Priestley and Stein JJA agreed); Oreski v Ikac [2008] WASCA 220 (31 October 2008) [52]–[53] (Newnes AJA, with whom Martin CJ and McLure JA agreed); Re Trethewey (2002) 4 VR 406, 408 (Beach J); Equity Trustees v Levin [2004] VSC 203 (26 May 2004) [15] (Whelan J); Prucha v Standing [2011] VSC 90 (22 March 2011) [6] (Beach J); In the Will and Estate of Brian Bateman [2011] VSC 277 (24 June 2011) [42] (J Forrest J).
The requirements that there must be a document and that the document must express or record the testamentary intentions of the deceased are clearly met in this proceeding.
The issue in dispute is whether the will instruction sheets were intended by the deceased to be his will. In considering whether the deceased intended the will instruction sheets to be his will, the Court must be satisfied that the deceased, by some words or act, demonstrated an intention that, without any alteration or reservation, the document should have effect as his will. If the Court can be satisfied of this, it is clear that the person must also have intended the document to be a legally operative act that disposes of the person’s property upon his or her death.[3]
[3]Fast v Rockman [2013] VSC 18 (7 February 2013) [59], [73], [75], [86], [92], [96], [105]–[110], [114] (Habersberger J).
What is required to satisfy the third element was considered by Powell J in Re Springfield:
… the ultimate inquiry remains, whether the document itself, the circumstances regarding its contents … and other relevant circumstances … lead to the conclusion that the relevant deceased intended the subject document to constitute his will …
… while each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will.
Where, however, 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.[4]
[4]Re Springfield (1991) 23 NSWLR 535, 539–540 (discussing the equivalent NSW provisions).
The Court may receive direct evidence of statements made by a testator and what the testator said and did and may also receive evidence surrounding the making of the ‘will’.[5] In Re Becroft, Harper J held that statements of a testator are admissible as evidence of his or her intentions:
In determining whether the deceased intended the document to have testamentary effect, the court is not restricted to the document itself but may have regard, in addition, to evidence of what the deceased did and said. Evidence of subsequent statements by the deceased is admissible for the purposes of establishing a testamentary intention.[6]
[5]Ibid 539.
[6]Re Becroft [2009] VSC 481 (15 October 2009) [10] (Harper J).
The intention of the deceased is a matter of fact and each case depends on its own facts and circumstances.[7] An application under s 9 of the Act is assessed by reference to the requisite document, with the inquiry directed towards whether the deceased intended the document to have effect as a testamentary document.
[7]Estate of Peter Brock [2007] VSC 415 (24 October 2007) [23] (Hollingworth J).
In Hatsatouris v Hatsatouris, the NSW Court of Appeal observed that it would be necessary for a court to be satisfied that the deceased possessed the relevant intention, ‘either, at the time of the subject document being brought into being, or, at some later time’.[8] A will that has not been validly executed but satisfies the requirements of s 9 of the Act could still in theory be refused probate where the testator lacked testamentary capacity, did not know and approve of the will, or was affected by undue influence in making the will. If the deceased lacked the capacity to make a will, then the Court could not be satisfied that the deceased intended the document to be his or her will. If the deceased did not know and approve of the document, then the Court could not be satisfied that the deceased intended the document to be his or her will. If the deceased was unduly influenced in the sense recognised by the Courts of Probate, such that his or her will were overborne, then the Court could not be satisfied that the deceased intended the document to be his or her will.[9]
[8]Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [56] (Powell JA). See also National Australia Trustees Ltd v Fazey; Estate of Nancy Elaine Lees [2011] NSWSC 559 (10 June 2011) [17] (Windeyer AJ).
[9]Re Stuckey [2014] VSC 221 (23 May 2014) [40]–[41] (McMillan J).
For these reasons, issues related to the capacity of the deceased, the knowledge and approval of the deceased and any undue influence on the deceased are relevant factors in considering whether the will instruction sheets satisfy s 9 of the Act.
The application of s 9 of the Act and the standard of proof required was set out by Habersberger J in Fast v Rockman:
The person seeking to propound an informal will must establish the requisite elements on a balance of probabilities. Furthermore, because of the nature of probate, the consequences of any findings that may be made and the inability to hear any evidence from the deceased as to his actual intentions, the Court needs to evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw principle.[10]
[10]Fast v Rockman [2013] VSC 18 (7 February 2013) [48] (citations omitted).
When an informal will or codicil is to be admitted over a formally executed will, Briginshaw dictates that reasonable satisfaction should not be attained by ‘inexact proofs, indefinite testimony, or indirect inferences’.[11]
[11]Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
The evidence
In his affidavit sworn 22 September 2015, Mr Chaplin-Burch deposes that he met the deceased as a result of the death of the deceased’s mother. His firm held the mother’s will and it subsequently acted for the deceased in obtaining a grant of probate of the mother’s will and estate.
After the mother’s estate had been distributed to the deceased, the deceased mentioned to Mr Chaplin-Burch about updating his will as he ‘felt that he should not leave it all to the [Whippet Association]’, which ‘was the sole beneficiary under his [2009] will’.
During 2014, the deceased made a number of appointments to attend at the firm’s office but those appointments were cancelled by the deceased. Mr Chaplin-Burch did not hear from the deceased until March 2015 when he was contacted by the deceased to do his will.
On 21 March 2015, Mr Chaplin-Burch took the deceased’s instructions for his will. The deceased attended at Mr Chaplin-Burch’s office, bringing with him two documents: three pages of his handwritten notes setting out his will instructions and a copy of his 2009 will. Mr Chaplin-Burch found the deceased’s handwritten notes unclear and he used the firm’s pro forma will instruction sheets to record the deceased’s instructions.
This pro forma document comprises seven pages and is commonly used by the solicitors as an aide memoire for the purposes of taking instructions for a will, for powers of attorney and generally for advising a client about his assets, liabilities and family matters. The document is to assist a solicitor in the process of taking proper and adequate instructions. Throughout the document, there are prompts and reminders for the solicitor to advise the client of certain matters. The document contains various headings, with questions and information under the headings, such as the name and address of the person giving instructions, the client’s family situation, whether there are any joint assets, whether there has been a second marriage, details of children, pension entitlements, assets, superannuation, private companies and trusts. There are further headings for instructions for a will, a heading ‘TFM Part IV Claims’ and a heading ‘Life Interest/Right to occupy’. The remaining pages set out the details required for an enduring power of attorney.
At the top of the first page of the will instruction sheets there is a handwritten date of ‘21/3/2015’. The will instructions commence on page 4 under the heading ‘Will Instructions’. This page records the full name of the deceased, that a doctor’s letter is not required and that the will-maker must satisfy the criteria for testamentary capacity, all of which have been ticked. Under the heading ‘Executor’ there is a circled number one and then the plaintiff’s name and address. Above the first letter of the plaintiff’s surname is an arrow and then the words ‘Beneficiary as well’. These words are written in a lighter shade of ink than the other writing on the page, having the appearance of being written with a different pen. The words are also written in smaller handwriting than the other writing. On the next line under the heading ‘Executor’ is the word ‘alternate’ next to which is a circled number two and then the name of the plaintiff’s wife and the words ‘same address’. Below that is a circled number three and the name of the plaintiff’s daughter and marks to indicate the same address as her parents.
On page 5 of the will instruction sheets there is a heading ‘Alternative Executor’ with a handwritten asterisk and the words ‘previous page’. There is also the handwritten name ‘Glenn Raymond Paynter’, an address and the words ‘all books + soldiers’. The next heading on page 5 is ‘Who gets what’. Under this heading are written five names: Gary Croucher, David Charles Bugg, John Higginbotham, Vaugh Griffiths and Dr Marno Ryan. Next to each name is an address. Under the address of Mr Bugg are the words ‘- civil war cannon’. On a new line under the five names and addresses are the words ‘divided equally between them’. The next heading on page 5 is ‘Residuary goes to’. No words are written underneath this heading. The final heading is ‘TFM Part IV Claims’ and the word ’Exclusion’ with the handwritten words ‘Maxine Burns not to get anything’.
Mr Chaplin-Burch deposes that the deceased’s ‘final instructions’ were as follows:
(a) his executor was to be the plaintiff, with the alternate executors being the plaintiff’s wife and, if she was unwilling or unable to act, then the plaintiff’s daughter;
(b) all his books and soldiers to be given to Mr Payntor (spelt ‘Paynter’ on page 5 of the will instruction sheets), his civil war cannon to Mr Bugg, all his war medals and war related documentation to the Canberra War Memorial, all his St Kilda Football Club memorabilia, including the 1948 Best and Fairest medal to the St Kilda Football Club and all his paintings to the plaintiff;
(c) the residue of his estate to be divided equally between the plaintiff, Mr Croucher, Mr Bugg, Mr Higginbotham, Mr Griffith and Dr Ryan; and
(d) Maxine Burns was not to receive anything from his estate.
These ‘final instructions’ are different to what Mr Chaplin-Burch wrote under the heading ‘Who gets what’ on page 5 of the will instruction sheets. The ‘final instructions’ include the plaintiff as a residuary beneficiary whereas the will instruction page under ‘Who gets what’ does not. In respect of this difference, Mr Chaplin-Burch deposes:
When [the deceased] initially told me who he wanted to be his residuary beneficiaries, he did not mention [the plaintiff] as a beneficiary as he had been named as an executor. It was after finalising [the deceased’s] will instructions that [he] remembered that he wanted [the plaintiff] to be a residuary beneficiary as well. He told me this and so I noted on page 4 of the Will Instruction Sheet[s] the words by [the plaintiff’s] name ‘beneficiary as well’.
Mr Chaplin-Burch deposes that once the will instruction sheets were completed and after the discussion about the plaintiff being a beneficiary, he advised the deceased that he should sign the will instruction sheets:
… because, should he not be able to sign his Will for any reason, the Will Instruction Sheet[s] could be used as an informal will, not an interim will and could be admitted to probate.
He deposes that the deceased told him that he understood this and thought it was a good idea. The deceased then signed ‘at the foot of the Will Instruction Sheet[s]’ and Mr Chaplin-Burch witnessed the deceased’s signature. The deceased then told Mr Chaplin-Burch that he could not make up his mind as to whether he was to be buried or cremated and that he would get back to him as soon as he had made up his mind about this.
On 25 March 2015, Mr Chaplin-Burch prepared a file note dated that day for Mr Lachlan James Vallance, a senior associate of the firm. In his file note, he referred to his meeting with the deceased the previous day to ‘get his Will done’. He deposes that he inadvertently left out the plaintiff as a residuary beneficiary in his file note.
In his affidavit sworn 22 September 2015, Mr Vallance deposes that by letter dated 25 March 2015 to the deceased, he referred to the meeting with Mr Chaplin-Burch on 24 March and enclosed a draft will that he had prepared in accordance with the deceased’s instructions. The draft will is marked ‘draft’ in large letters diagonally across each page. In his letter, Mr Vallance asked the deceased whether he wished to be buried or cremated and whether he had advised the plaintiff of his wishes in that regard.
Mr Vallance deposes that on 2 April 2015, the deceased rang him to tell him that the plaintiff was to be included as a residuary beneficiary of his will. He also requested that should the plaintiff predecease him, his share should pass to his wife and his daughter. Mr Vallance deposes that in all other respects the deceased confirmed the contents of the draft will, apart from whether he wanted to be buried or cremated. The deceased said he would come to the office to sign the will as soon as possible.
Mr Vallance deposes that the deceased made a number of appointments to come to the office to sign the will, but cancelled each one. Mr Chaplin-Burch also deposes that after the draft will had been sent to the deceased, there were a number of further appointments booked in for the deceased to attend for the purpose of signing his final will, but on all these occasions the deceased cancelled his appointment.
In his affidavit sworn 9 September 2015, the plaintiff deposes that on 3 April 2015, he visited the deceased at his home. The deceased showed the draft will to him and told him that he was the executor of the will. The deceased also told him that his solicitors had forgotten to include the plaintiff as a beneficiary of his will, ’so he was getting that fixed up and ‘that would be it’’.
The plaintiff produced copies of the deceased’s calendar pages for the months of March and April 2015. He refers to a handwritten notation ‘Hicks + Oak’ and ‘02.30PM’ on 7 April 2015 and suggests the deceased may have arranged to visit his solicitors on that date at 2.30pm.
Plaintiff’s submissions
The plaintiff submits that the evidence establishes that the deceased intended the will instruction sheets signed by him and witnessed by Mr Chaplin-Burch on 21 March 2015 to be his will and, from that time on, that document was his last will until revoked by him and it was not revoked prior to his death.
The plaintiff submits that Mr Chaplin-Burch’s evidence as to the reasons why the will instruction sheets was signed at the foot of the front page by the deceased, and his signature witnessed by Mr Chaplin-Burch, is of crucial significance. It shows that in case the deceased did not sign the will once drawn for any reason, the will instruction sheets could be used as an informal will and this was agreed to by the deceased. The plaintiff submits this establishes that the deceased intended the will instruction sheets to be his last will.
The plaintiff contends that the fact that the will instruction sheets did not contain a revocation clause is overcome by there being an implied revocation of the 2009 will as, by the will instruction sheets, the deceased has made an inconsistent testamentary document that revokes the 2009 will to the extent of any inconsistency.
Consideration
In considering the principles to be applied on this application, it is important to draw a distinction between the intention to make a will and the intention for a particular document to have testamentary effect.
The plaintiff must establish on the balance of probabilities that the deceased intended that particular document to have testamentary effect. The Court must be satisfied on the balance of probabilities that the deceased had decided this particular document would govern how his estate was to be distributed after his death.
Mr Chaplin-Burch deposes that he took instructions from the deceased on 21 March 2015, which was a Saturday. This date is written at the top of page one of the will instruction sheets. Mr Chaplin-Burch’s file note to Mr Vallance dated 25 March 2015 records that he saw the deceased to take his instructions ‘yesterday’, being 24 March 2015, which was the following Tuesday. Although it is unnecessary to resolve this discrepancy for the purposes of this application, it is a matter that remains in definite and inexact and could have been clarified by Mr Chaplin-Burch.
When Mr Chaplin-Burch took the deceased’s instructions, he had the deceased’s handwritten notes for his will instructions that referred to gifts of five groups of the deceased’s significant personal possessions: all his books and soldiers, his civil war cannon, his war medals and war related documentation, his St Kilda Football Club memorabilia, including the 1948 Best and Fairest medal, and all of his paintings. On page 5 of the will instruction sheets, there is only a reference to two groups of personal possessions: ‘all books + soldiers’ and ‘civil war cannon’.
Page 4 of the will instruction sheets records the plaintiff as the deceased’s executor. Under the word ‘alternate’, there is the name of the plaintiff’s wife, then the name of the plaintiff’s daughter. Mr Chaplin-Burch deposes that this means the alternate executors are the plaintiff’s wife and, if she was unwilling or unable to act, then the plaintiff’s daughter. This is not clear from the written words: on page 4 of the will instruction sheets it appears to read that the two of them are appointed as joint alternate executors.
Mr Chaplin-Burch deposes that the deceased’s instructions were that the residuary beneficiaries in the will instruction sheets were the five named individuals on page 5 and the plaintiff in equal shares. The plaintiff is not listed together with the five named individuals as beneficiaries on page 5. Where it says ‘Beneficiary as well’ on page 4 above the plaintiff’s name, it is not recorded that the plaintiff was to be a beneficiary with the other five named individuals. None of these individuals are listed under the heading ‘Residuary goes to’. Under that heading, there are no written words at all. Mr Chaplin-Burch has converted, without explanation, the notations of page 5 under ‘Who gets what’ in the will instruction sheets to a residuary disposition in his file note to Mr Vallance and his testimony changed the disposition of his notations, filling in the blanks that exist in them.
The five individuals are listed under the heading ‘Who gets what’, with the words below ‘Divided equally between them’. It is not specified in these notations what these five individuals might actually receive as there is no residuary disposition in the will instruction sheets. There is no clarification in these words as to what is being given equally amongst them or what is the extent of the gift to the plaintiff by the words ‘Beneficiary as well’. If the five or six named individuals are intended to be the universal beneficiaries, there would be no residue of the estate. It is also unclear as to whether the five individuals are to receive the deceased’s three remaining groups of personal possessions that are not referred to in the will instruction sheets, but are contained in the deceased’s handwritten will instructions.
There is no clear explanation as to the written words ‘Beneficiary as well’ appearing to be a lighter shade of ink to the other words on the will instruction sheets and in smaller handwriting than the other writing on the document. Mr Chaplin-Burch deposes that these words were added by him after the deceased had finalised his instructions on the day he saw the deceased. He said the deceased revisited what he had said and remembered that he wanted the plaintiff to be a residuary beneficiary as well. Mr Chaplin-Burch did not write the words ‘residuary beneficiary’ and did not include the plaintiff’s name in the most relevant part of the will instruction sheets, namely, under the heading for the residuary beneficiaries and did not include the plaintiff as a residuary beneficiary in his file note to Mr Vallance. Mr Chaplin-Burch explained this by deposing that he inadvertently left the plaintiff out as a residuary beneficiary in his file note. This file note was done after Mr Chaplin-Burch told the deceased to sign page one of the will instruction sheets as it could stand as his informal will if for some reason the deceased did not sign a formal will.
At no stage did Mr Chaplin-Burch correct his inadvertence. It was not until 2 April 2015 that the deceased called Mr Vallance and told him that he wanted the plaintiff as a residuary beneficiary, and on 3 April 2015 the deceased told the plaintiff that his solicitors had forgotten to include the plaintiff as a beneficiary of his will.
Considering that the standard of proof on applications to admit an informal document to probate is a standard that does not allow inexact proofs, indefinite testimony, or indirect inferences, this omission by Mr Chaplin-Burch is significant. His evidence fails to establish with reasonable satisfaction what he purports to establish. The inference from his testimony is that the words ‘Beneficiary as well’ may have been added on page 4 after the deceased signed at the foot of page 1 of the will instruction sheets, possibly on the same day or possibly on 2 or 3 April 2015.
According to Mr Chaplin-Burch’s file note to Mr Vallance and Mr Vallance’s letter to the deceased, the deceased had not yet provided his instructions as to whether he wished to be buried or cremated. In his conversation with Mr Vallance on 2 April 2015, the deceased told him that he would get back to him on this point. This means that at the time the deceased gave instructions for his will to Mr Chaplin-Burch, he was undecided on his funeral arrangements.
Mr Chaplin-Burch deposed that the deceased signed at ‘the foot of the Will Instruction Sheet[s]’. In fact, the deceased signed at the end of page 1 of the will instruction sheets which contain no will instructions at all. The plaintiff contends that the document that the deceased intended to have testamentary effect was the will instructions sheets, comprising seven pages in total, whereas only page 1 was signed by the deceased. Although, Mr Chaplin-Burch witnessed the deceased’s signature, it was not attested by him, a process that would ordinarily occur when a witness, particularly a legal practitioner, witnesses a signature intended to be what the plaintiff now submits as being the final testamentary intentions of the deceased.
Mr Chaplin-Burch’s evidence is that he advised the deceased that he should sign the will instruction sheets because, should he not be able to sign his will for any reason, then the document ‘could be used as an informal will, not an interim will and could be admitted to probate’. He did not give an explanation as to what he meant by this advice. Mr Chaplin-Burch deposes that the deceased said he understood this and thought it was ‘a good idea’ for him to sign the document. Whatever may have been Mr Chaplin-Burch’s purpose and motivation in getting the deceased to sign page 1 of the will instruction sheets, his views as what he thought the deceased understood by his advice, are irrelevant and inadmissible in ascertaining whether the deceased intended the will instruction sheets to be his final will.
Both Mr Vallance and Mr Chaplin-Burch depose that after the appointment when the will instruction sheets were prepared, there were a number of appointments booked in for the deceased to attend and sign his final will, but the deceased cancelled all of the appointments. Neither of them refer to the source of these statements or whether either of them spoke with the deceased when he made and then cancelled them. There is no evidence, such as file notes, from either of them to support their testimony. Cancellation of appointments can result from a number of reasons, one of which is a hesitation on the part of the deceased about his final testamentary intentions. The evidence suggests that the deceased was a careful person, for example, his handwritten will instructions for the disposition of his personal possessions and his telephone call to Mr Vallance making changes to the draft will. A careful person would want to check with his solicitor that the draft will in fact recorded all of his testamentary intentions before it was signed.[12] The evidence does not support a conclusion that the appointments were made for the purpose of signing his will nor does it support a conclusion that his failure to keep the appointments was beyond his control, such as ill health.
[12]Fast v Rockman [2013] VSC 18 (7 February 2013) [112]–[113] (Habersberger J); Prucha v Standing [2011] VSC 90 (22 March 2011) [68] (Beach J); Rowe v Storer [2013] VSC 385 (2 August 2013) [51] (McMillan J).
The production of the deceased’s calendar for the months of March and April 2015, with the notation regarding the firm on 7 April 2015, is not admissible for the purpose of establishing that the deceased intended to attend and sign his will that day. There could be many reasons for the notation and the deceased’s intentions in making the notation are unknown.
The totality of the evidence establishes that, on balance, the will instruction sheets are incomplete in terms of what the deceased wanted included in his will with the deceased’s instructions derived from different sources. The first is his handwritten instructions that set out his wishes in respect of his five groups of personal possessions. The fact that the deceased included his five groups of personal possessions in his handwritten instructions, which he then gave to Mr Chaplin-Burch, means they were significant to him. The second is the will instruction sheets which included only two of the groups of his personal possessions, failed to include the plaintiff as a residuary beneficiary and failed to include the gift over to the plaintiff’s wife and daughter in the event of the plaintiff predeceasing the deceased. The third is the draft will which, without explanation, included the five groups of personal possessions, included a different residuary clause and no gift over for the gift to the plaintiff. The fourth is the deceased himself, who had not given any instructions about his preferred funeral directions in circumstances where he told both Mr Chaplin-Burch and Mr Vallance that he would do so.
Conclusion
There is no one document, standing alone, and without any alteration or reservation, that can be said to have been intended by the deceased to have effect as his will.
I am not satisfied on the balance of probabilities that the deceased intended the will instruction sheets, without any changes whatsoever, to have effect as his final will and to operate as his final will.
The plaintiff’s application to propound the will instruction sheets as the deceased’s final will is dismissed.
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