Re Hodgkinson
[2020] WASC 452
•9 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: RE HODGKINSON [2020] WASC 452
CORAM: CURTHOYS J
HEARD: 26 OCTOBER 2020
DELIVERED : 9 DECEMBER 2020
FILE NO/S: PRO 3182 of 2020
BETWEEN: TERRENCE LESLIE HODGKINSON
Applicant
Catchwords:
Probate – Informal will – Whether informal will embodied deceased's testamentary intentions – Whether deceased intended informal will to be her will – Lack of familiarity with formal requirements – Documents which appear to be notes
Legislation:
Administration Act 1903 (WA), s 14(1)
Non-contentious Probate Rules 1967 (WA), r 5, r 8, r 20A
Wills Act 1970 (WA), pt X, s 32, s 28
Result:
Appeal allowed
Category: B
Representation:
Counsel:
| Applicant | : | J London |
Solicitors:
| Applicant | : | Robertson Hayles Lawyers |
Cases referred to in decision:
Banks v Goodfellow [1870] UKLawRpKQB 74; (1869 ‑ 1870) LR 5 QB 549
Borthwick v Mitchell [2017] NSWSC 1145
Devine v Richardson [2019] WASC 272
D'Unienville v Sakalo [No 2] [2013] WASC 469
Estate of Masters (decd), Re; Hill v Plummer (1994) 33 NSWLR 446
Estate of Puruto [2012] NSWSC 827
Fast v Rockman [2013] VSC 18
Gangemi v Monaco [2020] WASC 183
Leslie v McDowell; Estate of Commins [2000] NSWSC 727
National Australia Trustees Ltd v Fazey; Estate of Lees [2011] NSWSC 559
Newman v Brinkgreve; Estate of Verzijden [2013] NSWSC 371
Oreski v Ikac [2008] WASCA 220
Public Trustee v Nezmeskal [2018] WASC 394
Re Estate of Nicholls [2003] WASC 85
Re Estate of Perriman (Dec) [2003] WASC 191
Saunders v Public Trustee [2015] WASCA 203
Spencer v Spencer [2009] WASC 198
Yazbek v Yazbek [2012] NSWSC 594
CURTHOYS J:
Introduction
Donna Marie Martin (the deceased) died on 15 December 2017. The deceased did not make a formal will.[1]
[1] Applicant's Submissions for Appeal [1]; Affidavit of Jeremy Thomas London affirmed 17 June 2020 (London Affidavit).
The deceased's medical unit admission notes of 14 December 2017 notes that she had 'end‑stage liver disease/cirrhosis'.[2] She had a history of hepatitis and hepatic cirrhosis.[3]
[2] London Affidavit, 74.
[3] London Affidavit, 47 ‑ 77.
On 5 December 2017, 10 days before the deceased's death, the deceased's friend, Geoffery Steven Tozer, assisted the deceased in preparing a handwritten document (the Informal Will).[4]
[4] Applicant's Submissions [3].
The applicant and cousin of the deceased, Terrence Leslie Hodgkinson, submits that the document written by Mr Tozer on 5 December 2017 constitutes the deceased's informal will and should be admitted to probate in common form under s 32 of the Wills Act 1970 (WA) (the Wills Act).[5]
[5] Applicant's Submissions [13] ‑ [20].
Legislation
Section 32 of the Wills Act provides:
32. Court may dispense with formal requirements
(1)In this section and section 33 –
document means any record of information including –
(a)anything on which there is writing; or
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d)a map, plan, drawing or photograph,
and includes any part of a document within the meaning given by this subsection.
(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; or
(b)an alteration to a will of the person; or
(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.
(3)In forming its view, the Supreme Court may have regard (in addition to the document) to any evidence relating to the manner of execution or testamentary intentions of the person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the person.
(4)This section applies to a document whether it came into existence within or outside the State.
Documents in support of the application
The applicant filed the following documents in support of the application:
1.the Informal Will;
2.affidavit of the applicant affirmed 28 May 2020 (Hodgkinson Affidavit);
3.affidavit of Mr Tozer affirmed 22 May 2020 (the Tozer Affidavit); and
4.affidavit of Jeremy Thomas London affirmed 17 June 2020 (the London Affidavit).
Appeal
On 17 June 2020, the applicant applied for a grant of letters of administration in common form of the Informal Will.[6]
[6] See Applicant's Motion for Administration with Will Annexed, 17 June 2020.
On 1 September 2020, a Registrar refused the grant under s 32 of the Wills Act.[7]
[7] Order Refusing Grant of Probate, Registrar C Boyle, 1 September 2020.
On 8 September 2020, the applicant lodged a notice of appeal under r 5 of the Non‑contentious Probate Rules 1967 (WA) (Non‑contentious Probate Rules).[8]
[8] See Applicant's Notice of Appeal, 8 September 2020.
An appeal under r 5 of the Non‑contentious Probate Rules is an appeal de novo. This means that the matter is heard afresh and a decision is given on the evidence presented at that hearing, without any need for the appellate body to identify any error on the part of the original decision-maker.[9]
[9] Re Estate of Nicholls [2003] WASC 85 [14].
Requirements under s 32 of the Wills Act
Before granting an order under s 32 of the Wills Act, the court must be satisfied that:
1.there is a document within the meaning of s 32(1) of the Wills Act;
2.the document was not executed in the manner required by the Wills Act;
3.the document purported 'to embody the testamentary intentions' of the deceased; and
4.the deceased 'intended the document to constitute [her] will'.
An applicant for a grant of letters of administration with the will annexed must also set out certain standard facts pursuant to r 8 and r 20A of the Non‑contentious Probate Rules.
The questions that arise are whether:
1.there is a document;
2.the Informal Will was not executed with the required formalities;
3.the Informal Will embodies the deceased's testamentary intentions;
4.the deceased intended the Informal Will to constitute her will;
5.the deceased had testamentary capacity at the time of making the Informal Will;
6.the applicant's application satisfies the requirements of r 8 of the Non‑contentious Probate Rules; and
7.the applicant's application satisfies the requirements of r 20A of the Non‑contentious Probate Rules.
Text of the Informal Will
The contents of the document said to constitute the Informal Will are set out in the Tozer Affidavit.[10] The applicant prepared a table which conveniently sets out the contents of the handwritten document with a corresponding explanation. The contents of the document are set out in the left hand column of the table below. An explanation of the contents is set out in the right hand column.
[10] Tozer Affidavit [51] ‑ [94].
| Clause | Words of Informal Will | Commentary | Tozer Affidavit reference |
| Heading | Notes from 4th & 5th December 2017 Re Distribution D's Estate (with assumption that #110 Mississippi sold @ 300K | 'D' means Donna Marie Martin. The deceased lived at 110 Mississippi Drive, Greenfields. She estimated its net value to be $300,000. | [51] ‑ [55] |
| Debt | Current known Debt ~30K marridium Credit 30/60 credit card | The deceased had a Commonwealth Bank Viridian Line of Credit with approximately $30,000 owing out of a $60,000 credit limit. | [51], [53] |
| 1. & 2. | 1. GST Blue Car & PC & Me & Jean to ↓ (have/give away household goods) 2 Jean – Big TV & Jewellery & ↑ | 'GST' means the deceased's friend, Geoffery Steven Tozer. 'Me' also does, as he was writing the document for the deceased. 'Jean' means the deceased's friend, Jeanette Mary Leitch. 'PC' means personal computer. The arrows pointing from 'GST' and 'Jean' to the parenthetical words indicate Mr Tozer and Ms Leitch jointly being gifted all unspecified household goods. | [56] ‑ [60] |
| 3. | 3. 100K for aunty Dorisella Martin (Split with Her family GST to buy Brand new Toyota Corolla out of the above – Because Dori lives in the Bush | A gift of $100,000 to the deceased's uncle's wife Doris Marena Martin, whom the deceased called Aunty Dorisella. 'GST' again means Geoffery Steven Tozer. There is a direction for Mr Tozer (as presumed administrator) to buy a vehicle for Doris Martin from Doris Martin's share. | [61], [66] ‑ [67] |
| 4. | 4. 50K for Cousin Terry H & 50K for his Daughter Shannon (they were nice to me) | Gifts of $50,000 to the Deceased's cousin Terrence Leslie Hodgkinson (the only person that 'Cousin Terry H' could refer to) and to his daughter Shannon Bridie Hodgkinson. | [70] ‑ [71] |
| 5. | 5. Ballance after all cost Funeral/Legal/insurance, Hospital, Amb, Rates ect to part Cancer Research (Because Mum) & or Samies or good churches | The residue ('Ballance' [sic]) is to be paid to a cancer research charity, the Good Samaritans charity ('Samies' [sic] or 'good churches'. | [79] ‑ [84] |
| Minimum Possible to Bek & any other Family So they Can't Change my Will | 'Bek' means Rebecca Hodgkinson, the wife of the Deceased's cousin, Wayne William Hodgkinson. She had recently visited the Deceased in hospital. | [79], [86], [89] | |
| – Any other o/s to be Worked out with DM TH & GST | 'DM' means Doris Martin again (see cl 3 above). 'TH' means Terrence Hodgkinson again (see cl 4 above). 'GST' means Mr Tozer again. | [79], [90] | |
| 6. | 6. GST to have Jack | A gift of the deceased's cat, Jackson, to Mr Tozer. | [93] ‑ [94] |
Is there a document?
The Informal Will is clearly a document. It is an original document, not a copy.
Was the document executed with the required formalities?
The Informal Will was not executed by the deceased and does not meet the formal requirements of the Wills Act.
Does the Informal Will embody the deceased's testamentary intentions?
Legal principles
In Newman v Brinkgreve; Estate of Verzijden,[11] Hallen J explained what is required to constitute a deceased's testamentary intentions. His Honour said at [81]:
It is not necessary that the document said to be a will should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient if it is intended to dispose of property, or of rights of the deceased, in a disposition that is to take effect upon death, but until then is not to take effect but is to be revocable. Although usual, it is not legally essential to find a clear statement identifying the document as a will: Romano v Romano [2003] NSWSC 436, per Bryson J, at [6] ‑ [8].
[11] Newman v Brinkgreve; Estate of Verzijden [2013] NSWSC 371.
The same principles were expressed by Slattery J in Yazbek v Yazbek.[12]In that case, the deceased left a document entitled 'Will.doc' on his computer. That document was unsigned but was admitted to probate as an informal will. Slattery J said at [83]:
Testamentary intentions are an expression of what a person wants to happen to his or her property upon death: Re Trethewey[2002] VSC 83 at [16] per Beach J. In the context of informal wills 'a document in which a person says what that person intends shall be done with that person's property upon death seems ... to be a document which embodies the testamentary intentions of that person': Re Estate of Masters(1994) 33 NSWLR 446 at 469 per Priestley JA. Furthermore, although dissenting in the decision, Mahoney JA defined testamentary intentions as 'how property is to pass or be disposed of after ... death': Re Estate of Masters(1994) 33 NSWLR 446 at 455 per Mahoney JA.
Analysis
[12] Yazbek v Yazbek [2012] NSWSC 594.
I find little difficulty in concluding that the Informal Will was intended to embody the deceased's testamentary intentions. It is clearly an expression of what the deceased wished to happen to her estate upon her death, in particular:
(a)the Informal Will is headed 'Re Distribution D's Estate'. Viewed in context, 'D' clearly refers to Donna Marie Martin, the deceased;
(b)the Informal Will refers in its heading to '#110 Mississippi sold @ 300K'. This heading is a reference to the deceased's residence and an expectation of what it will realise on sale;
(c)the text of the Informal Will deals with the disposal of assets, principally her residence, but including the deceased's household possessions such as her television ('Big TV' in cl 2), personal computer ('PC' in cl 1), motor vehicle ('Blue Car' in cl 1), pet cat ('Jack' in cl 6) and money which could only be paid from the sale of her home ($100,000 in each of cl 3 and cl 4);[13]
(d)the Informal Will describes itself as a 'Will' in cl 5, where it states, 'Minimum possible to Bek & any other Family so they can't change my Will'. There is no other document purporting to be a will.
[13] Tozer Affidavit [18].
Did the deceased intend the Informal Will to constitute her will?
Legal principles
To determine whether the deceased intended the Informal Will to constitute her will, the relevant inquiry is 'whether there is evidence to show that the deceased has adopted or authenticated a document said to constitute his or her testamentary intentions.'[14]
[14] Re Estate of Perriman (Dec) [2003] WASC 191 [40].
The intention necessary for a document to constitute a will was set out in Oreski v Ikac.[15] Newnes AJA, with whom Martin CJ and McLure JA agreed, said at [54]:
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.
[15] Oreski v Ikac [2008] WASCA 220.
Similarly in Yazbek, Slattery J said at [92]:
In a number of cases the Court have said [that proof of the deceased's intention] will be met if there is evidence, whether in the form of the contents of the document itself, or evidence as to the circumstances in which the document came into being, such as to satisfy the Court that 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: Application of Kencalo; In the Estate of Buharoff (Unreported, NSWSC, Powell J, 23 October 1991); Hatsatouris v Hatsatouris[2001] NSWCA 408 at [56] per Powell JA (Stein JA agreeing); Bell v Crewes[2011] NSWSC 1159 at [43] ‑ [44] per White J. It has been observed that the deceased's relevant intention may exist either at the time the document in question came into existence, or any time subsequent to the time the document in question was created but before the death of the deceased: Bell v Crewes, at [28].
Probate will not be granted in respect of a document which contains only a preliminary, tentative or incomplete expression of the deceased's testamentary intention or where there is evidence that the document was prepared for further consideration and possible revision.[16]
[16] D'Unienville v Sakalo [No 2] [2013] WASC 469 [158].
Section 32 of the Wills Act is to be read beneficially. As Mahoney J explained in relation to the New South Wales equivalent in Estate of Masters (decd), Re; Hill v Plummer,[17] at 462:
[The provision] should, as I have indicated, be given a beneficial application. There are, in the history of this branch of the law, many cases in which the intention of the deceased has not been able to be given effect. That is an evil which should be remedied as far as may be. It may be understood why the legislature decided not to give testamentary effect merely to any statement of testamentary wishes, however casually stated and even if it was not contemplated that legal results would follow. The consequences of that as far as concerns proof and otherwise, can well be imagined. But the benefits of the change should not be withheld by requiring too rigid a manner of proof that what was put in a document should have legal effect. If a document is on its face such as contemplates legal effect, ordinarily it should be given effect unless - as in this case - there are contexts or circumstances that lead to the contrary conclusion.
[17] Estate of Masters (decd), Re; Hill v Plummer (1994) 33 NSWLR 446.
A lack of familiarity by a deceased person with the formal requirements of a will may allow a court to more readily infer that the deceased intended an informal document to constitute their will.[18]
Analysis
[18] Fast v Rockman [2013] VSC 18 [112] ‑ [113].
I find that the deceased intended the Informal Will to constitute her will for the following reasons:
(a)the Informal Will is consistent with the deceased's known family circumstances,[19] in that her chosen beneficiaries are her close friends, some extended family members she was on good terms with and some charities she was fond of. By contrast, the majority of her cousins and uncles, with whom she had little do with, are ignored;
[19] See Spencer v Spencer [2009] WASC 198 [48].
(b)the Informal Will is consistent with the deceased's financial resources, in that it successfully disposes of the whole of her estate without leaving a partial intestacy;[20]
[20] See Spencer v Spencer [48].
(c)several times shortly before her death, the deceased's friends raised with her the subject of preparing a will;[21]
[21] Tozer Affidavit [19], [21], [24], [28], [31], [35], [38].
(d)the Informal Will was made at a time shortly after the deceased had spent almost two months in hospital, from 19 September 2017 to 16 November 2017.[22] Although she did not apparently realise at the time of making the Informal Will that she was so close to death,[23] it is highly probable that her serious illness and its likely consequence were on her mind;
[22] London Affidavit [9] ‑ [11].
[23] Tozer Affidavit [32].
(e)the deceased was a simple person, not experienced in legal dealings.[24] There is nothing in the evidence to suggest that she had any concept of the formal requirements of making a will such as engaging a lawyer or purchasing a will kit;
(f)the deceased spent substantial time, three or four hours, deliberating about what should be written in the Informal Will.[25] The amount of time spent on the document suggests that it was of particular importance to her and that it would have effect as a will;
(g)the deceased had a high degree of trust in Mr Tozer and his ability to facilitate the wishes she had for her estate after her death;[26]
(h)the deceased spent time considering a number of alternatives for the distribution of her estate but settled on the distribution set out in the Informal Will;[27]
(i)the deceased indicated she was not interested in engaging a lawyer to draft a will.[28] The Informal Will cannot therefore have merely been a set of notes to refer to for the preparation of a later document. The deceased's intention in taking the time to carefully prepare the Informal Will indicates an intention for it to constitute her final will without anything further on her part;
(j)the deceased had firm opinions about who should benefit from her estate, so it was important to her that her wishes be effective without anything further;[29]
(k)the deceased indicated that it was important that her estate be distributed in accordance with the Informal Will and that certain people who would benefit from her intestacy not benefit;[30]
(l) the deceased made up her own mind and did not give Mr Tozer what he indicated he would have liked to receive from her estate;[31]
(n)the Informal Will was found in a prominent position on the deceased's kitchen benchtop after her death, indicating by her actions that she considered it to be an important document for her to keep and for someone else to find when required;[32] and
(o)the deceased observed Mr Tozer writing the Informal Will on her direction and orally indicated her satisfaction with it by saying, 'sounds good'.[33]
[24] Tozer Affidavit [30], [98] ‑ [100].
[25] Tozer Affidavit [48].
[26] Tozer Affidavit [8], [10], [23], [46], [68], [85], [90], [91].
[27] Tozer Affidavit [45] ‑ [49].
[28] Tozer Affidavit [99] ‑ [100].
[29] Tozer Affidavit [65], [66], [71], [95].
[30] Tozer Affidavit [75] ‑ [77], [86] ‑ [89]. See also London Affidavit [63].
[31] Tozer Affidavit [47].
[32] Tozer Affidavit [103]; eg in Leslie v McDowell; Estate of Commins [2000] NSWSC 727 [37]; Devine v Richardson [2019] WASC 272 [34].
[33] Tozer Affidavit [43] ‑ [50], [95].
The fact that the Informal Will is headed 'Notes', may suggest that the document was merely intended as a draft. However, having regard to the totality of the evidence, I conclude that the reference to notes should be seen as a layperson's expression of the recording of the deceased's wishes rather than a document intended to form the basis of a formal will to be made at a later date.
Courts have granted probate of a document which appeared to be notes for making a more formal will.[34] Even where the document was handwritten by someone other than the deceased and was not signed or read by the deceased, courts have been prepared to make a grant of probate.[35]
[34] Estate of Puruto [2012] NSWSC 827.
[35] Borthwick v Mitchell [2017] NSWSC 1145 [82] ‑ [85]. See also National Australia Trustees Ltd v Fazey; Estate of Lees [2011] NSWSC 559, where Windeyer AJ found at [19] that at the time the document was written, the deceased, who was familiar with wills, intended it only to be a list of instructions to a solicitor for making a will, but later intended the document to operate as her will.
In view of the above factors, I conclude that the deceased's actions in preparing the Informal Will disclosed an intention that the handwritten document is to operate as her will without more. That is, the Informal Will constitutes the final expression of the deceased's testamentary intentions.
Did the deceased have testamentary capacity?
Legal principles
Aside from the formalities of execution, for a formal will to be valid, the testator is required to have had:
(a)testamentary capacity; and
(b)knowledge and approval of the will's contents.
The requirement that the deceased had knowledge and approval of the Informal Will's contents is in effect subsumed by the requirement of s 32 that the deceased have intended the document to constitute her will.
Testamentary capacity of a testator involves an assessment of whether the testator:[36]
(a)understands the nature and effect of the document, which requires the testator to understand that they are creating a will, as well as the practical effect of the central clauses within the will;
(b)understands the extent of their property, which requires a general knowledge of the state of the testator's property, including what it consists of; and
(c)appreciates and comprehends any potential claims to which the testator ought to give effect.
[36] Banks v Goodfellow [1870] UKLawRpKQB 74; (1869 ‑ 1870) LR 5 QB 549, 565; Saunders v Public Trustee [2015] WASCA 203 [159]; Gangemi v Monaco [2020] WASC 183 [44].
The test of testamentary capacity is one of degree. It does not require perfect mental acuity and memory. Impaired mental faculties are not inconsistent with having testamentary capacity, provided the testator retains sufficient intelligence to understand and appreciate the testamentary act. Slowness, illness, feebleness and eccentricity are not sufficient features to disentitle a person from the right to dispose of their property by will. All that is required is for the testator to be of sufficiently sound mind to know and understand the business she was engaged in at the time of making the will.[37]
Analysis
[37] Banks v Goodfellow, 565; Gangemi v Monaco [45] ‑ [46]; Public Trustee v Nezmeskal [2018] WASC 394 [39] ‑ [40].
The applicant submitted the following medical evidence in support of the deceased's testamentary capacity:
(a)On 17 October 2017, Fiona Stanley Hospital (FSH) administered a Cognistat cognitive screening test, which showed that:[38]
(i)the deceased's scores for orientation, attention, similarities and judgment were within the average ranges for those characteristics;
(ii)the deceased's score for naming indicated very mild impairment;
(iii)the deceased had moderate impairment in comprehension;
(iv)the deceased had mild impairment in repetition and calculations; and
(v)the deceased had severe impairment in constructional ability and memory.
(b)FSH's opinion was that the deceased was demonstrating progress in her mental capabilities and would continue to improve with the benefit of rehabilitation;[39]
(c)The deceased stayed in Rockingham General Hospital (RGH) from 30 October 2017 to 16 November 2017 for rehabilitation. RGH records consistently refer to the deceased being alert and orientated over this period.[40]
[38] London Affidavit [47] ‑ [48].
[39] London Affidavit [47].
[40] London Affidavit [50] ‑ [51].
Taking into consideration the above medical evidence, as well as Mr Tozer's evidence, I am satisfied that the deceased had testamentary capacity.
Does the application satisfy the requirements of r 8 of the Non‑contentious Probate Rules?
The applicant filed the Hodgkinson Affidavit in support of its application to admit the deceased's document as an Informal Will which deposes to the matters required by r 8 of the Non‑contentious Probate Rules. The Registrar did not raise any issues about compliance with r 8.
I am satisfied that the applicant's application sets out the necessary facts to meet the requirements of this rule.
Does the application satisfy the requirements of r 20A of the Non‑contentious Probate Rules?
Rule 20A of the Non‑contentious Probate Rules imposes additional obligations on an applicant where pt X of the Wills Act, which relates to informal wills, is relevant.
The Hodgkinson Affidavit and the Tozer Affidavit depose to the requirements of r 20A. Consents for 13 of the 20 potential beneficiaries were attached to the Hodgkinson Affidavit.[41] I am satisfied that the applicant's application sets out the necessary facts to meet the requirements of this rule.
[41] Hodgkinson Affidavit [24]; Applicant's Submissions [61].
The applicant sought for the court to dispense with the requirement for consent from the remaining potential seven beneficiaries in the event of intestacy.[42] The positions of those seven potential beneficiaries under an intestacy can be summarised as follows:[43]
(a)four expressly declined to consent. One would be entitled to a 1/18 share, worth less than $10,000. The other three would each be entitled to a 1/36 share, each worth less than $5,000;
(b)two impliedly declined to consent. One would be entitled to a 1/18 share, worth less than $10,000. The other would be entitled to a 1/36 share, worth less than $5,000; and
(c)one could not be found. Her 1/18 share would be worth less than $10,000.
[42] Hodgkinson Affidavit [23].
[43] Applicant's Submissions [61].
The deceased's closest surviving relatives are three uncles and 17 cousins, who would be the beneficiaries of the deceased's estate in the event of an intestacy pursuant to item 10 of s 14(1) of the Administration Act 1903 (WA).[44]
[44] Hodgkinson Affidavit [18].
The deceased's net estate is approximately $242,000.[45] To require proof in solemn form would significantly reduce the amount in the estate and accordingly reduce the amount available for distribution to the beneficiaries. The procedures followed, and accordingly costs, should be proportionate to the amount of the estate. The potential beneficiaries in the event of an intestacy are not immediate family members; that is, they are not spouses, children or parents of the deceased. I am satisfied that it is just and expedient to dispense with the requirements for consent from the seven potential beneficiaries who have not consented.
[45] Hodgkinson Affidavit, 20 ‑ 21.
I thank counsel for his detailed submissions which form the basis of these reasons.
Orders
I make the following orders:
1.The appeal be allowed.
2.The decision of the Registrar be set aside.
3.The requirement to obtain consent of all persons who may be prejudiced by the grant of letters of administration be dispensed with pursuant to r 20A(2) of the Non-contentious Probate Rules.
4.The Informal Will be remitted to a Registrar to issue a grant of letters of administration in common form.
5.The applicant's costs of the application to the Registrar and of the appeal be paid from the estate of the deceased.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Research Associate to the Honourable Justice Curthoys
8 DECEMBER 2020
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