Re Maria Elizabeth Rudd - [2015] WASC 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE MARIA ELIZABETH RUDD; EX PARTE PRINCE [2015] WASC 107

CORAM: REGISTRAR C BOYLE

HEARD: ON THE PAPERS

DELIVERED : 26 MARCH 2015

FILE NO/S: PRO 1644 of 2014

MATTER :The Will and Estate of MARIA ELIZABETH RUDD late of Swan Cottages, 12 Adie Court, Bentley in the State of Western Australia, Home Duties, deceased
EX PARTE
ANNE PRINCE
Applicant

Catchwords:

Will - Informal claimed codicil - Observations on evidence required to support applications - Necessity for evidence of capacity on any application to prove an informal document - Turns on own facts

Legislation:

Non-contentious Probate Rules 1967 (WA), r 10
Wills Act 1970 (WA), s 8, s 10, s 26(f), s 32

Result:

Application allowed in part

Category: C

Representation:

Counsel:

Applicant: No appearance

Solicitors:

Applicant: Robertson Hayles Lawyers Pty Ltd

Case(s) referred to in judgment(s):

Banks v Goodfellow (1870) LR 5 QB 549
Briginshaw v Briginshaw (1938) 60 CLR 336
Bull v Fulton (1942) 66 CLR 295
Henwood v Public Trustee (1993) 9 WAR 22
In the Estate of Graham, deceased [1978] 20 SASR 198
Matthews v Warner (1798) 4 Ves 186; 31 ER 96
Oreski v Ikac [2008] WASCA 220
Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191
Scarpuzza v Scarpuzza [2011] WASC 65
West Australian Trustee Executor and Agency Co v Holmes (1961) WAR 144

REGISTRAR C BOYLE: Maria Elizabeth Rudd died on 7 February 2014 at the age of 95. She left three testamentary writings that her executor seeks to prove.
They are:
a)a typed will dated 21 April 2003;
b)a document dated 2 September 2003 and headed 'Adendum (sic) to last will and testament for Maria Elizabeth Rudd'; and
c)a document headed 'Myra's bequests as at 24 December 2011'.
The first two documents have been prepared using a word processor and appear to have been prepared by someone with sufficient skills to import decorative clip art to the documents but alas, much less understanding of what constitutes a good will or codicil.
The first two of these documents have been altered since execution, either by crossing out figures or adding in words. The third, as explained below, was produced by altering in ballpoint pen a printed document.
The applicant seeks that each of the three documents be admitted to probate in its altered form. None of the alterations to the first two has been made in compliance with s 10 of the Wills Act 1970 (WA). Neither document is therefore able to be admitted in its final altered form except by the exercise of the jurisdiction conferred by s 32 of the Wills Act.
For the reasons that follow, I find that each of the will of 20 April 2003 and the codicil of 2 September 2003 is entitled to be admitted to probate as executed. The informal alterations to each are not capable of being admitted. The document of 24 December 2011 is not capable of being admitted at all.

What documents may be admitted to probate under pt X

Reasons of this kind are not the place for a discursive exegesis of the law of informal wills. It is however necessary to demonstrate advertence to the requirements of the statute and applicable authority. In my respectful view, those requirements are conveniently summarised in the reasons of Newnes AJA (Martin CJ and McClure JA agreeing) in Oreski v Ikac [2008] WASCA 220, [50] ‑ [55]. In the following analysis of the facts, I apply those principles.
As is so often the case in these applications, there is little difficulty with the first two questions identified in Oreski at [52]. What gives rise to difficulties is the third question that requires the critical evidence satisfying the court that the deceased by some words or act demonstrated her intention that the document should, without more on her part, operate as her will.

The documents as executed

The will as executed on 20 April 2003 lacks an attestation clause. It has been shown, with the aid of affidavits of due execution, to have been executed in compliance with s 8 of the Wills Act.
The next document is that of 2 September 2003, which its drafter described as 'Adendum'. In language it fits the description of a codicil. It commences with the words:
I wish to amend my will dated 21 May 2003 to contain the following changes.
In fact the will is dated 21 April rather than 21 May. There is no suggestion that there is a document dated 21 May, and I treat the May date as simple inadvertence. There then appear the words:
I now bequeath the following.
which is followed in table form by the names and addresses of five individuals or couples in the left hand column and dollar amounts in the right hand column. They are followed in turn by another name, Brian Cyril Rudd, and the words 'Brian must get my car'.
At the foot of the document are provisions for a date and for signatures by each of the deceased and two witnesses, with provision for addresses of the witnesses. The document is dated 2 September 2003 and signed by the deceased and two witnesses. One is now deceased. The other, June Moore, has provided an affidavit that satisfies me that the document was executed in compliance with s 8 of the Wills Act.
Given evidence of due execution to overcome the absence of a proper attestation clause, it is in my view clear that this document was intended to operate as a codicil.
The third document is that headed 'Myra's bequests as at 24 December 2011'. Following that heading there is a list of thirteen names of individuals or institutions. Opposite each name is a number, such as 10,000 or 2,000. At the bottom of the column of numbers is a total of 43,000, which is arithmetically correct.
The cases are replete with warnings of the danger of admitting to probate writings that may be merely drafts, or are conditional or contemplative. In Oreski at [54], Newnes AJA referred to some of these: there are more that could be added.
This document is merely a list. It does not have the character of a testamentary disposition.

The documents as executed: which is to be admitted?

The will of 21 April 2003 is explicitly testamentary in character. It appoints an executor, contains a number of incontrovertibly clear specific gifts and (at least with the assistance provided by s 26 (f) of the Wills Act) probably disposes of the entirety of the estate of the deceased. Although there is no attestation clause (as to the effect of which see Scarpuzza v Scarpuzza [2011] WASC 65 [32] ‑ [37]), the affidavits of due execution satisfy me that the deceased executed the will in conformity with s 8 of the Wills Act.
The will, at least as originally executed, is therefore properly to be admitted to probate.
The 'adendum' document, which without conclusion I will refer to as the September 2003 codicil, is not so straightforward but I have indicated my conclusions as to its testamentary intent as a matter of textual construction alone.
The document is not without difficulties. The first question is whether it is an exhaustive list of legacies, or is merely altering the amount of the money gifts to those identified (and in addition giving the car to Brian Rudd). If it is the former, then by implication the gifts to other specific legatees provided by the will are revoked. That is a question of construction that does not require further attention from a court of probate. It is a problem for the executor.
The codicil as executed on 2 September 2003 is entitled to be admitted as a codicil to the will dated 21 April 2003.
The document of 24 December 2011 is different. It contains no words of disposition. It does not refer to either the will or the earlier codicil.
I have already referred to judicial warnings against admitting documents that on their face may be merely drafts or conditional or contemplative or speculative. In the Estate of Graham, deceased [1978] 20 SASR 198 Jacobs J drew attention to the very difficulty that provisions such as pt X of the Wills Act may cause if applied too liberally. That is that by the late eighteenth century (that is, before the Wills Act (Imp) 1836) the probate courts had gone so far as to admit the written instructions of a deceased, taken by his attorney, to probate as a will. Such cases led Loughborough LC to say, in Matthews v Warner (1798) 4 Ves 186; 31 ER 96, 210, 106:
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 of his property during his life.
That was the problem that led to the Wills Act of 1836, from which the current Western Australian legislation derives.
In a nutshell, laxity in the application of what has been called the dispensing power tends to lead back towards the confusion and uncertainty that required the legislative intervention of the Wills Act in the first place. There are numerous decisions referring to this risk. In this jurisdiction, they include Henwood v Public Trustee (1993) 9 WAR 22 and Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191.
Section 32 requires the court to be satisfied of the necessary matters. While the standard of proof is the civil standard, the gravity of the fact to be found affects the nature of the evidence required to satisfy the court of that fact: Briginshaw v Briginshaw (1938) 60 CLR 336 362 ‑ 363 (Dixon J). The law has always regarded the proof of testamentary intention as a matter of gravity. Although s 32 is a remedial provision and is to be applied accordingly, it remains the case that in order for a trier of fact to be reasonably satisfied that a document was intended by a deceased person to constitute his will cogent proof is needed.
Bearing those factors in mind, it is appropriate to consider the evidence concerning the production of the document dated 24 December 2011. That comes almost entirely in [6] of the supplementary affidavit of the applicant sworn 3 November 2004. The substance of that evidence is this. Prior to 24 December 2011, the deceased had told the applicant that the deceased 'wanted to review the various cash gifts she had made'. The applicant typed out a list of those gifts. That is the genesis of the document in question. In a conversation on 24 December, the deceased expressed a desire to reduce the totality of the cash gifts. Where the deceased decided to 'cancel' (in the word used by the applicant) gifts, the applicant drew a line across those gifts.
The applicant then deposes:
While the document may have started off as a working note, I say that in the context of the conversation the deceased had with me that day which resulted in me drawing lines across the gifts that the deceased wanted to cancel, and the placing of the deceased's initials next to those lines to indicate her intention that those gifts be cancelled, meant that the document became an informal codicil that reflected the deceased's intention to vary the gifts made in her will and in the 'Adendum'.
That is both argumentative and conclusionary. Put at its highest, it might be evidence of what the testamentary intentions of the deceased were. What is critically missing is any evidence that the deceased intended the document in question to constitute a codicil to her will. That is, evidence is completely absent as to the critical third factor identified in the cases, namely that the deceased by some words or action must have evidenced an intention that the document, without more, should constitute a codicil to her will. That the deceased and Ms Prince initialled the handwritten alterations to the document is not sufficient. It is ambiguous.
Taking into account all the available evidence, while I conclude that the will of 21 April 2003 and the codicil of 2 September 2003, in each case as initially executed, is properly capable of being admitted to probate, the document of 24 December 2011 is not. That is because in my view it lacks the explicitly or necessarily dispositive character required to be effective as a testamentary instrument. To treat it as a document the deceased intended to have testamentary effect as a codicil to her will would be speculative.

Informal amendments to the three documents

The evidence of the circumstances of the amendments to the will and 2003 codicil is contained in the affidavit of Marguerita Tatzianna Larkworthy sworn 13 October 2014. This deposes that it was Ms Larkworthy who made the amendments to both documents on 10 December 2011 in the presence of both the deceased and Ms Prince.
The affidavit merely describes the amendments that the deponent made. It asserts in relation to some (but not all) of the amendments that they were made 'at the deceased's direction'. The deceased and Ms Larkworthy initialled the alterations.
Again, as with the evidence about the December 2011 document, what is conspicuously missing is anything that is identified as evidence from which the court could be satisfied that, by some words or action the deceased demonstrated her intention that the documents as altered constitute her will and codicil respectively.
Accordingly, I am not satisfied that the amendments to the will or codicil should be admitted.
In fact, the application to admit to probate both the amendments to the will and codicil, and the December 2011 document in its entirety, could be disposed of on a different and summary basis.
That is that no document may be admitted to probate unless the court is satisfied that at the date of its making the deceased had testamentary capacity: Bull v Fulton (1942) 66 CLR 295; West Australian Trustee Executor and Agency Co v Holmes (1961) WAR 144.
Where a will is rational on its face and appears to have been duly executed, testamentary capacity may be presumed. But that presumption does not apply in the case of a testamentary writing that has not been executed in compliance with the Wills Act. On any application to prove such a document, evidence must be provided that enables the court to be satisfied that the will maker had the relevant capacity, as described in a long line of cases beginning with Banks v Goodfellow (1870) LR 5 QB 549. The extent of the evidence necessary to satisfy that requirement will of course depend upon the circumstances. But in this case none has been offered. It is conspicuous that the affidavits produced in answer to the requisitions are completely devoid of any evidence as to the condition of the deceased at December 2011, or anything she said on those occasions.
That point alone would justify dismissal of the application insofar as it relates to the amendments made to each of the will and the 2003 codicil, and the claimed 2011 document in its entirety. I have however, addressed the evidence otherwise adduced in support of this aspect of the applications out of deference to what has been produced.

Testamentary informality and the conduct of applications

This case cries out for two sets of final observations.
The first concerns how the documents in question came to be prepared. The deceased either was offered, or sought, the assistance of an entirely unqualified person to prepare these three documents. That person would no doubt protest that she was just trying to help a friend. She was no help at all. A claim of good intentions is no defence. The fact is that unqualified people who intermeddle in the preparation of documents that have legal operation cause great harm. The defence for such officiousness is often one of trying to save the will maker money. That is sterile. This deceased could have had several wills professionally prepared for a fraction of the cost that has been imposed on her estate by this application. The legal system should not be blamed for that expense.
The second is that the way in which this application was presented by the solicitors involved follows an increasingly common pattern. That is that solicitors faced with a series of informal and highly dubious documents simply present them to the court supported by manifestly inadequate evidence, and wait for requisitions to show them what they should have done in the first place. It is not the function of the probate registrars to provide advice on evidence. For example, as already noted, neither the will nor the first codicil had an attestation clause. That is a perfectly obvious defect the implications of which are clear as a matter of law. Affidavits of due execution should have been provided as part of the material supporting the application as lodged. And that is the tip of the iceberg; everything requisitioned on this application should have been considered already by a competent practitioner in preparing the application.
There also seems to be a view afoot that it is appropriate to take any remotely testamentary document, no matter how informal, found after the death of a deceased and toss it into the lap of the court. That is not a proper approach. An application for a grant of probate or administration is a motion before the court. Practitioners should not put up motions that are so unsupported by evidence as to have no reasonable prospect of success. It is the obligation of practitioners to advise their clients in relation to whether testamentary writings are properly capable of proof and the evidence that is necessary to support such an application, and to give robust advice against pursuing hopeless applications.
Practitioners should not expect the court to massage applications into a fit shape for a grant. That is not the purpose of the requisition process provided under r 10 of the Non-contentious Probate Rules 1967 (WA). Practitioners who present the court with inadequately supported applications cannot complain if those applications are simply dismissed without requisition.

What follows

The will of 21 April 2003 and the codicil dated 2 September 2003 are to be admitted to probate as executed. This means that engrossments of the documents as executed, ignoring the subsequent amendments, must be produced for incorporation in the grant. The application is otherwise dismissed.