Re Leonard Michial Quinlivan
[2013] WASC 286
•2 AUGUST 2013
RE LEONARD MICHIAL QUINLIVAN; EX PARTE QUINLIVAN [2013] WASC 286
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 286 | |
| Case No: | PRO:3336/2013 | ON THE PAPERS | |
| Coram: | REGISTRAR C BOYLE | 2/08/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| C | |||
| PDF Version |
| Parties: | TODD MICHIAL ROBERT QUINLIVAN |
Catchwords: | Probate Informal will No evidence of deceased's intention Observations on evidence in such application Whether named executor obliged to apply |
Legislation: | Supreme Court Rules 1971 (WA) Wills Act 1970 (WA) |
Case References: | Baumanis v Praulin [1980] 25 SASR 423 Cahill v Rhodes [2002] NSWSC 561 Curley v Duff (1985) 2 NSW LR 716 Oreski v Ikac [2008] WASCA 220 Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 Powell v Dinwoodie [2012] WASC 139 Proud v Proud [2012] WASC 134 Sawyer v McKenzie [2011] WASC 215 The Application of Kencalo (in the Estate of Ruth Buharoff), (Unreported, NSWSC, 23 October 1991) The Estate of Kevin John Hines v Hines [1999] WASC 111 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
TODD MICHIAL ROBERT QUINLIVAN
Applicant
Catchwords:
Probate - Informal will - No evidence of deceased's intention - Observations on evidence in such application - Whether named executor obliged to apply
Legislation:
Supreme Court Rules 1971 (WA)
Wills Act 1970 (WA)
Result:
Application refused
Category: C
Representation:
Counsel:
Applicant : No appearance
Solicitors:
Applicant : Jackson McDonald
Case(s) referred to in judgment(s):
Baumanis v Praulin [1980] 25 SASR 423
Cahill v Rhodes [2002] NSWSC 561
Curley v Duff (1985) 2 NSWLR 716
Oreski v Ikac [2008] WASCA 220
Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74
Powell v Dinwoodie [2012] WASC 139
Proud v Proud [2012] WASC 134
Sawyer v McKenzie [2011] WASC 215
The Application of Kencalo (in the Estate of Ruth Buharoff) (Unreported, NSWSC, 23 October 1991)
The Estate of Kevin John Hines v Hines [1999] WASC 111
1 REGISTRAR C BOYLE: Leonard Michial (Mick) Quinlivan died on 17 November 2010 on a farm east of Esperance. He was 68 years old and died unexpectedly and suddenly.
2 The deceased was a man of substance: the statement of assets and liabilities filed with the application shows gross assets of approximately $13.4 million. Yet, following his death, no will could be found.
3 It does appear that in 1995 (that is, approximately 15 years before his death) Mr Quinlivan had been in touch with a solicitor who prepared and sent to him a draft will. The institute executor named in that draft will, the deceased's son Todd Michial Quinlivan, now applies for probate of a copy of that will pursuant to pt X of the Wills Act 1970 (WA).
Why a copy of the draft?
4 In 2000 there was a fire on the deceased's farm. It destroyed a former single men's quarters that was being used to store documents. No doubt the changed use of the building reflects the change in circumstances of Australian farms: less labour, but more paper.
5 The applicant suggests that the draft will the solicitors sent his father in 1995 was in that building and destroyed by the fire. I think that it is reasonable to assume that if the draft still existed, it was in that building and destroyed, and I proceed on that basis. I find that the document now lodged is a copy of the file copy of the draft, produced from the solicitor's file.
6 That does not, however, actually simplify this application.
7 The draft will had an execution and attestation clause at its end: the only indication that it was a draft was that word stamped on the front cover sheet. If there had been evidence that the late Mr Quinlivan had executed the draft in the presence of two witnesses as required by s 8 of the Wills Act then the evidence about the fire would have been sufficient to rebut the presumption of revocation by destruction, and a copy could be admitted to probate: Curley v Duff (1985) 2 NSWLR 716; Cahill v Rhodes [2002] NSWSC 561; Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74; Sawyer v McKenzie [2011] WASC 215; Proud v Proud [2012] WASC 134; and Powell v Dinwoodie [2012] WASC 139.
8 But in the absence of evidence of execution, it is I think correct to assume that the draft was never executed.
What happened to the draft between 1995 and the fire?
9 No fewer than six affidavits have been lodged in support of the application. There is the usual substantive affidavit by the applicant. That refers to another affidavit he had sworn on an earlier date. That earlier affidavit of the applicant, and the affidavits of four other witnesses, were prepared by solicitors other than those acting in the application.
10 In his substantive affidavit the applicant relies as to the circumstances surrounding the coming into existence of the claimed informal will largely on his earlier affidavit, save for some further evidence about the fire. I have already disposed of that and accepted the proposition put on behalf of the applicant that the 1995 draft will, if it still existed, was destroyed in the 2000 fire.
11 Otherwise the earlier affidavit of the applicant (sworn 10 May 2013) goes no further than to show that the provisions of the draft will were consistent with what he believed his father's testamentary intentions were, and certainly that it was consistent with his expectations of inheritance.
12 There is an affidavit of Peter James Michael sworn 6 May 2013. Mr Michael was the solicitor the deceased contacted in 1995. There was a pre-existing relationship between the deceased and Mr Michael: they had both been directors of a company called Esperance Meat Exports Ltd, and the deceased was later the manager of the Esperance Land Development Company and gave instructions to Mr Michael to act in various matters as the solicitor for that company.
13 It is unfortunate that in parts of this affidavit Mr Michael lapses into the agentless passive, so that 'the Will was prepared in accordance with those instructions and then sent to Michael (sic) for review and signing'. Who prepared it? Mr Michael further deposes:
7. Attached to this Affidavit in Annexure 'A' is a copy of the draft Will and the file copies of the correspondence from Michael, Whyte & Co to Michial in relation to his draft Will.
14 The practice of attaching to an affidavit a bundle of documents under one identifier such as 'A' is deplorable. It does not comply with O 37 r 2 of the Rules of the Supreme Court 1971 (WA). To compound the error, in this case the bundle attached includes one document not mentioned in the affidavit and another document that, while perhaps comprehended within the term 'correspondence', cries out for further explanation.
15 Following a copy of the draft will, the next document in the bundle appears to be a single page of handwritten instructions for a will. Mr Michael does not swear that these are his notes: he should have made clear the authorship, if they were to be attached to his affidavit. What, in any case, do the notes prove?
16 The next two items of correspondence are a letter dated 6 December 1995 to the deceased that enclosed a draft will, and a letter dated 19 September 1996 to the deceased seeking comments on the draft. Both letters also ask for a copy of a relevant trust deed. There is no evidence that the deceased sent the trust deed to Mr Michael. Mr Michael deposes positively that the deceased did not contact him to discuss the draft or suggest changes.
17 The other unexplained document is an account reminder sent to the deceased concerning an account for his will. The date of the reminder is unfortunately illegible, save that it ends in '98'. However, the material printed at the bottom of the reminder refers to an account sent 3 February 1998. There is a handwritten notation:
PETER
THIS MUST BE THAT OLD I CAN NOT REMEMBER GETTING THE ADVICE
REGARDS
MICK
18 There are two further handwritten notations in different handwriting from that note. The first indicates that the document was received on 16 February 1998, and there is a further notation 'copy of account posted 16/2/98'.
19 The next affidavit is sworn by one Lee-Anne Mackin on 30 May 2013. Ms Mackin deposes that she had a relationship with the deceased between 1991 and 2000, although they were not living together.
20 Ms Mackin deposes to encouraging the deceased in 1994 to have a will prepared, and she further deposes as her recollection of his testamentary intentions. Those were that
… the farming properties were to be left to his son Todd and that the industrial land and the house in Esperance were to be left to his daughter Shelley.
21 Richard Alexander Dickson was the deceased's accountant. His affidavit sworn 21 May 2013 refers to discussions with the deceased concerning his testamentary intentions in general. There is no evidence that Mr Dickson saw the draft will, or discussed its content with the deceased.
22 Robert John Reed is a farm consultant and valuer who worked with the deceased. They often travelled together in the course of work and, in his affidavit sworn 2 May 2013, Mr Reed deposes to discussions in the late 1990s with the deceased as to the latter's testamentary intentions. Broadly speaking, the deceased intended to acquire off-farm assets and build up those with a view that his daughter Shelley should receive them on his death, while his son Todd (the applicant) would receive the farming assets.
What evidence is needed to prove an informal will?
23 The law is uncontroversial. In Oreski v Ikac [2008] WASCA 220, Newnes AJA (with whom Martin CJ & McLure JA agreed) summarised it in this way:
[50] Section 34 of the Wills Act 1970 (WA) (the Act) provides:
A document purporting to embody the testamentary intentions of a deceased person is a will of that person, notwithstanding that it has not been executed in accordance with section 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his will.
[51] It is clear that the will document has not been executed in accordance with s 8 of the Act. Indeed, it has not been executed at all. But the fact that a document has not been signed by the testator or testatrix does not mean that it falls outside s 34 of the Act and cannot be admitted to probate. A document which is unsigned is, within the meaning of s 34, a document which has not been executed in accordance with s 8 of the Act: see, for example, In the Estate of Williams (Dec) (1984) 36 SASR 423 at 425; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 539; Re Estate of Perriman (Dec) [2003] WASC 191 [18].
[52] In 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?
[53] That 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.
[54] It 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 at 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.
24 As well as the cases cited by his Honour, I bear in mind decisions such as The Estate of Kevin John Hines v Hines [1999] WASC 111 (Owen J) particularly at [12] and [20] - [36]; Baumanis v Praulin [1980] 25 SASR 423 (Mitchell J) at 425 - 426; and The Application of Kencalo (in the Estate of Ruth Buharoff) (Unreported, NSWSC, 23 October 1991) 10 - 12, (Powell J).
Does the evidence satisfy the requirements?
25 There is no doubt that there was a document. The first requirement has been made out.
26 The second requirement, namely that there be evidence that the document was not executed in accordance with s 8 of the Wills Act, is not quite so straightforward. What complicates it is that the draft forwarded to the deceased in 1995 cannot be produced. There are faint suggestions in one of the applicant's affidavits that perhaps his father did execute the document. Mr Michael speculates that the will was executed. There is no positive evidence of that. I proceed on the basis that the document was not executed. That requirement is made out.
27 I am also satisfied, by the evidence of Mr Michael, the applicant (although that is self-serving), Mr Dickson and Mr Reed that the draft reflected the testamentary intentions of the deceased, so far as they can be known.
28 That leaves the final and critical element as identified by Newnes AJA in Oreski and Owen J in Hines: did the deceased by some words or act demonstrate that he intended the document to constitute his last will?
29 There is not a shred of evidence that he did so. There is no evidence that the deceased ever said anything to anyone that showed that he regarded the document as being his will. There is no evidence that by any act he treated the document as if it were his will.
30 There is in fact no evidence that the deceased ever saw the draft will. If it was the deceased who wrote the comment on the February 1998 account reminder, it rather suggests that either he had never received the draft will in 1995, or he had forgotten about it.
31 There being no such evidence, the application must be refused.
Is there an obligation to try to prove an informal will?
32 I add these observations only because this application is of a kind that Probate Registrars see commonly. That is, while there is an unexecuted document that can be shown to represent the testamentary intentions of the deceased, there is no evidence that the deceased intended it to constitute his will. One wonders why such applications are made.
33 There can be little doubt that a person named as an executor in an apparently regular will has an obligation either to renounce or to prove the will, provided of course that there is an estate that requires administration and there are no other vitiating factors. That there is such an obligation can be demonstrated simply by observing that such an institute executor is compellable by citation.
34 It does not seem to me that there any corresponding obligation on a person named as executor in a document that has not been executed in compliance with s 8 of the Wills Act. It is not presumed to be valid: in fact, quite the opposite: Hines at [33]. In my view, an application to prove an informal will should only be made where there is a solid case for its success.
35 In this case, there is a very substantial estate, the interval between the date of death and this application is lengthy, and the affidavits filed have been prepared by two different firms of solicitors. The deceased's daughter, who receives much less under the will than she would on intestacy, consents to the application. Experience suggests that parties who have negotiated the ultimate division of an estate are tempted to think that they can then apply for proof of whatever instrument suits their purposes. Any idea that that is appropriate should be quashed. Consent does not make a valid will.
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