Re Martin
[2019] VSC 424
•25 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2017 05001
IN THE MATTER of the estate of VALERIE PATRICIA MARTIN, deceased
APPLICATION BY:
| JOHN PETER MOLLICA | Plaintiff |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 December 2018 |
DATE OF JUDGMENT: | 25 June 2019 |
CASE MAY BE CITED AS: | Re Martin |
MEDIUM NEUTRAL CITATION: | [2019] VSC 424 |
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WILLS AND ESTATES — Informal will — Whether deceased intended informal document to be her will — Where informal document is undated, unsigned and unwitnessed — Where deceased later referred to informal document as her will — Where deceased spoke of changing some of her testamentary intentions but did not revoke the informal document — Wills Act 1997 (Vic) ss 9, 12–15.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W F Gillies | Hill Legal |
| For the Contradictor | Ms A S Bartfeld | Suzanne Lyttleton Lawyers |
HER HONOUR:
Introduction
Valerie Patricia Martin died on 25 January 2017 aged 78 years. She was survived by two of her three children.
The plaintiff claims to be the long-term domestic partner of the deceased.
By originating motion filed 31 March 2017, the plaintiff sought a grant of letters of administration of the deceased’s intestate estate.
The inventory of assets and liabilities filed with the plaintiff’s application listed the deceased’s net estate as $249,807.19, comprising assets of $310,036.17 and a reverse mortgage liability of $60,228.98. On 16 August 2018, the deceased’s home was sold pursuant to a grant of letters of administration pendente lite to enable the reverse mortgage to be discharged.
Following the deceased’s death but before the plaintiff’s application for a grant on intestacy, the plaintiff and the deceased’s neighbour and friend, Louise Gourley, attended at the deceased’s home where Ms Gourley located an informal document in a black concertina folder in a spare room of the deceased’s home.
The deceased also executed a will dated 4 October 2007 (‘the 2007 will’). The deceased’s friend at the time, Ann Theresa McGrath, was named as executor. Subject to the prior satisfaction of certain expenses, the 2007 will provided that the whole of the deceased’s estate was to be paid to Ms McGrath and also directed that the deceased’s dogs would go to Ms McGrath.
Following requisitions from the Registrar of Probates in 2017, it became clear that letters of administration on intestacy could not be granted as the validity of the 2007 will and the status of the informal document needed to be determined.
On 22 March 2018, the Court recorded that counsel for Ms McGrath informed the Court that no application would be made to prove the 2007 will, as Ms McGrath believed the will to be revoked.
This meant the first issue to be determined was the validity of the informal document and whether it should be admitted to probate as an informal will pursuant to s 9 of the Wills Act 1997 (Vic). The informal document did not name an executor so the Court appointed contradictors to represent the interests of the beneficiaries under the informal document. As a matter of expedience and discretion, the application was to be determined in this proceeding.
The informal document
The informal document, as written, provides as follows:
I, Valerie Patricia Martin of [SPECIFIED ADDRESS],
Home duties Hereby Revoke all former Wills and testamentary disposition heretofore made by me and declare this to be my last Will
① I appoint my Solicitor
In the said State to be the Executrix and Trustee of my estate
②I give Devise & Bequeath the whole of my estate both real and personal and wheresoever situate unto my trustee Upon Trust so sell and call in and convert into money such part or parts thereof a shall not consist of money and To Stand Possessed of the proceeds of such sale calling in and conversion and my ready money on my unconverted estate if any
Upon the following trustsi to pay out the Karingal Commonwealth Bank any monies owning from my Mortgage on the House They have the Title of the house in their keeping
(ii) I have payed my funeral expenses up front completely & enclose receipts for such Tobin Bros. Funeral Director Receipt enclosed
I also enclose papers concerning the inscription to be placed on the headstone of my daughter grave Leanne Drew & after my funeral. This has been lodged with Stonemasons LODGE BROS. The grave being situated at Frankston Cemetery, [SPECIFIC DETAILS OF GRAVE LOCATION]
I have accepted their quote, knowing upon my death it could cost more with time Having enclosed the papers of my agreement
I further declare that I have made no provision out of my estate for Wayne Jeffrey Male
nor my youngest Geordie James Male.
I have had very little contact from them in years, even though they both know of my Cancer Journey the last 9 years Bowel Cancer 9 years ago. Breast Cancer March 2015, again 6 months later of radiation treatment recently just to get told of it spreading to both my lungs. I don’t see the grand children – Its been a complete shut down & I completely blame my daughter in laws Any sons that can treat their mother in such a way doesn’t deserve any consideration
Dogs to be cremated and the ashes to be put in my coffin
No money is to be distributed to any beneficiaries till the grave has been completely back as normal
Any monies left after all is finalised is to be split 3 ways to the following
Lucille Joy Carpenter
[of specific address]
Louise Gourley
[of specific address]
Debbie
The informal document is written on lined notepaper which has the word ‘Memo’ in the top right-hand corner. It comprises three one-sided pages and is in the deceased’s handwriting, as confirmed by the plaintiff and Ms Gourley. The handwriting in the informal document also aligns with that contained in a letter written by the deceased in 2007 regarding the disinheritance of her sons.
The informal document is undated, unsigned and not witnessed by any person. The operative provisions commence on the first page and continue on the second and third pages. The informal document uses formal legal language that is usual in a testamentary document and appears to adopt some of the formal language used in the deceased’s cancelled 2007 will.
Although the informal document is undated, aspects of its contents indicate it was written in mid-2016, namely, a reference at the end of the document to Lucille Carpenter, who the deceased first met in early 2016, and a reference to an agreement between the deceased and Lodge Bros. Stonemasons, which searches revealed was dated 26 April 2016.
The evidence
The plaintiff alleges he was in a close personal relationship with the deceased for 17 years prior to her death. He stated that the deceased and he became engaged and exchanged rings in 2006, although a wedding did not take place. The deceased and he maintained separate expenses but he claims that he expended significant amounts of money paying the deceased’s bills, on trips they took together and on gifts for the deceased. Despite it not being central to the application, the evidence from Ms Gourley, Ms Carpenter and the deceased’s former general practitioner, Dr Collette Reeves, suggests the relationship between the plaintiff and the deceased was not as close as the plaintiff now alleges.
In or around 2007 the deceased was diagnosed with bowel cancer. As stated, the 2007 will was dated 4 October 2007. It was prepared by the deceased’s then solicitors, Waters Timms, and left her estate to Ms McGrath. The 2007 will expressly stated that no provision was made for her sons. A separate handwritten letter by the deceased, headed 1 October 2007 but signed on 4 October 2007, recited the strained history between the deceased and her sons to explain her decision.
In 2002, Ms Gourley and her husband, Robert Gourley, moved into a house neighbouring the deceased. The deceased and Ms Gourley became good friends and either saw or spoke to each other daily. Ms Gourley recalls that, between 2007 and 2009, the deceased mentioned that she had made a will. From the way the deceased talked about the will, Ms Gourley assumed that Ms McGrath was to benefit under that will.
In or around 2010 or 2011, the deceased expressed to Ms Gourley that she wished to make a new will because she did not want Ms McGrath or the deceased’s sons to receive anything from her estate. The deceased asked whether Ms Gourley would be the executor of her new will. Ms Gourley declined as she thought it would be a difficult role and she was concerned how the deceased’s sons would react to being left out of the will. Ms Gourley encouraged the deceased to instead contact a solicitor.
Mr Gourley also recalls that around the same time, the deceased asked him to be the executor of her will, but he was likewise reluctant to take on the role. Mr Gourley suggested that the deceased get two people to act jointly or engage a solicitor to act as her executor. Mr Gourley also recalls that, over the few years leading up to the deceased’s death in early 2017, the deceased often made comments to him that she wished to leave something to Ms Gourley.
The records of the solicitors, Waters Timms, establish that the deceased collected the 2007 will, along with various other legal documents, from the firm on 25 May 2011. The other documents included the separate letter handwritten by the deceased in October 2007, a letter from the deceased’s general practitioner, a power of attorney, the title to the deceased’s home and the title to a grave plot.
In early 2015 the deceased was diagnosed with breast cancer. She had a lumpectomy but declined radiotherapy after surgery. After the lumpectomy there was a local recurrence of cancer.
Around this time, Ms Gourley recalls asking the deceased whether she had completed her will. The deceased told her that she had not, but needed to do so. She repeated to Ms Gourley that she did not want Ms McGrath to be involved or to receive any benefit from her will. Ms Gourley’s evidence was that the deceased had a falling out with Ms McGrath during a period of hospitalisation in early 2015. According to Ms Gourley, the deceased told her that Ms McGrath had failed to feed the deceased's dogs as requested and that Ms McGrath had stolen from the deceased. Ms Gourley also recalled an isolated discussion, the date of which is uncertain, in which the deceased told her she did not intend to leave the plaintiff anything as he had enough.
In February 2016, the deceased was diagnosed with lung cancer. It is apparent that in 2016 the deceased took a range of steps to organise her affairs, starting with meeting the funeral company, Tobin Brothers, on 11 January 2016 and 2 February 2016, to pre-arrange her funeral.
On 23 February 2016, the deceased, accompanied by the plaintiff, visited Hill Legal to discuss paperwork from the Commonwealth Bank in relation to a reverse mortgage over her property. According to the plaintiff, there was no discussion around her will during this meeting.
On 3 March 2016, the deceased sent letters of instruction to Frankston City Council, stating that she was to be buried with her deceased daughter and that no further remains were to be interred in the same plot. On the same day, the deceased entered into a funeral plan with Tobin Brothers and she named Mr Christopher Hill, solicitor of Hill Legal, as the person to be contacted and described her relationship to him as executor. The deceased had not made any will with that firm, nor discussed using the firm as her executors. Mr Hill said he was not aware that the deceased had named Hill Legal as her executor until after her death.
On 26 April 2016, Lodge Bros. Stonemasons confirmed that the deceased had accepted their quote for works to be completed on her memorial at the Frankston Cemetery. Around this time, the deceased provided originals of her funeral documents with Tobin Brothers and the letter from the stonemasons to Ms Gourley. Ms Gourley says she was not surprised that the funeral plan referred to Mr Hill as her executor as the deceased had previously referred to Hill Legal as her lawyers in conversation with Ms Gourley.
In or around February 2016, Ms Carpenter, also named as a beneficiary in the informal document, moved next door to the deceased. For most of 2016, Ms Carpenter spoke with the deceased a few times a week, and they become close friends. The deceased and Ms Carpenter talked about their families and the deceased’s health.
In or around May or June 2016, the deceased mentioned to Ms Carpenter that she wished to leave something to both Ms Carpenter and Ms Gourley. The deceased asked how Ms Carpenter spelled her first name and mentioned to Ms Carpenter that she had a will and was changing it. Although Ms Carpenter cannot recall any precise details of the conversation, her perception after the discussion was that, consistent with the contents of the informal document, the deceased intended to make a will leaving her estate to three people, being Ms Carpenter, Ms Gourley and another friend of the deceased. Ms Carpenter cannot recall whether the deceased named anyone else. After these conversations, the deceased indicated to Ms Carpenter that she had made her will and other arrangements and that the deceased appeared comfortable with this. Ms Carpenter could not recall the deceased mentioning that she had finalised her will.
Dr Reeves was the deceased’s treating doctor from the mid-1990s until June 2016. The deceased confided in Dr Reeves beyond medical matters. According to Dr Reeves, the deceased attended her medical clinic regularly, particularly over the final ten years of her life, and would discuss family matters with her. Dr Reeves recalls that she provided the deceased with a letter in relation to the making of a will. This is ostensibly the letter dated 4 April 2007, which the deceased picked up from Waters Timms in 2011. A number of years prior to leaving practice, Dr Reeves also recalls the deceased mentioning to her that she intended to change her will because ‘she had become disenchanted with a friend’. Other than these discussions, Dr Reeves has no direct knowledge of the deceased making a will.
Dr Reeves does not recall conducting any assessment of the deceased’s testamentary capacity in the months leading up to Dr Reeves’ departure from the clinic in June 2016, however, Dr Reeves expresses that she had no reason to doubt the deceased’s testamentary capacity at any time during her care of the deceased.
After Dr Reeves’ departure from the clinic, the deceased was treated by Dr Bindu Padmadevi for routine matters over the next five months. Dr Padmadevi told Ms Talia, solicitor for the contradictor, that she did not conduct any cognitive assessment of the deceased or discuss with the deceased any matters relating to her estate. The doctor explained that during that period the deceased was predominantly in the care of oncologists at Frankston Hospital.
The evidence establishes that in 2016 the deceased frequently talked to a number of people close to her about what she wanted to occur after her death. According to the plaintiff, the deceased talked with him on a number of occasions about what she was going to do with her money after her death, although they did not talk in depth about her will, and the deceased would often change her mind about her intentions. The plaintiff specifically recalls that the deceased told him that she had organised in her will for her dogs to be euthanized and the plaintiff questioned whether the dogs could instead be re-housed. The deceased told the plaintiff that she might change that when her will was updated.
The plaintiff also recalls that the deceased told him in or around September 2016 that her estate was going to be managed by Hill Legal as her executors because they were her solicitors. The deceased also expressed to the plaintiff that she wanted to make a new will because she wanted to leave out ‘Debbie’. The identity of Debbie is unknown. The plaintiff thought that Debbie had been a council worker who assisted with the cleaning of the deceased’s house and, according to the plaintiff, had been discovered stealing from the deceased. It was on this basis that the deceased was adamant that she needed to remove Debbie from her will.
To the best of Ms Gourley’s recollection, Debbie may have been an acquaintance from the church that the deceased attended for a short time. Ms Gourley was not aware that the deceased had a cleaner. Ms Gourley’s evidence is consistent with the information obtained by Ms Talia from the relevant council that the council had never provided cleaning services, on account of the deceased declining such services.
The deceased also discussed her will with the owner of a pet store near the deceased’s home, Jennifer Williams, and an employee at that store, Anne Hocking. Both Ms Williams and Ms Hocking recall that the deceased, often accompanied by the plaintiff, first visited the store in early 2016 and thereafter visited multiple times each week. The deceased would regularly call up the store to chat with the employees. Ms Williams also called the deceased after work most days, primarily to talk about animals but also the deceased’s health.
According to Ms Williams, the deceased said that she had a will, but had cancelled it because she had a falling out with ‘the person in it’ and did not want her to get anything. The deceased had a similar conversation with Ms Hocking. Triggered by knowledge of Ms Hocking’s first name of Anne, the deceased said she had a falling out with another Anne but that she was ‘out of it now’, although Ms Hocking did not recall the deceased specifically referring to a will in this conversation.
Shortly before Christmas in 2016, the deceased called the pet store and spoke with Ms Hocking. The deceased said she needed a lift to her lawyer’s office because she wanted to make some changes to her will. The deceased mentioned that she wanted to make sure that someone who had been stealing from her did not get anything. The plaintiff likewise recalls that sometime in late 2016, the deceased asked the plaintiff to take her to a solicitor because she wished to change her will. The plaintiff said he would take her once she had prepared notes for the meeting.
The deceased attended Ms Williams’ house on Christmas Day in 2016. According to Ms Williams, the deceased said that she had written a will, but wanted someone to take her to a lawyer’s office because she had some changes to make. Those changes included that the deceased mentioned to Ms Williams that there was someone who had stolen from her and she wished to take her out of the will. The deceased also mentioned that she wished to provide amounts to Ms Williams and other employees at the pet store, including Ms Hocking. Finally, the deceased mentioned to Ms Williams that Ms Gourley was in the will already and that she would continue to be a beneficiary in the new will.
Ms Williams’ evidence about the deceased wishing to provide amounts to her and other members of the pet store is consistent with other evidence. The plaintiff recalled that the deceased, after saying that he no longer wanted to leave money to Debbie, expressed that she wished to leave money to ‘some of the people who ran the Pet Shop’. Ms Gourley also said that the deceased ‘said in passing a few times that she thought she might leave a little something to the “pet shop girls”’.
On the next day, Boxing Day in 2016, the deceased visited Ms Gourley’s house. Ms Gourley had been seeing the deceased regularly around this time, including attending an appointment in December at which the deceased was informed she had advanced brain cancer and only had months to live. Ms Gourley says that the deceased did not mention any will to her during this time. Ms Carpenter recalls that, around the same time, in the aftermath of the diagnosis of brain cancer, the deceased had mentioned to her that ‘when she goes everything will be settled’.
In early January 2017, the deceased was admitted to Frankston Hospital. Later, she was admitted to nearby palliative care, where she resided until her death.
While she was in hospital, the deceased continued to hold conversations with a number of people about the need to make a will. After the deceased was transferred into palliative care, Ms Williams recalls suggesting to the deceased that a solicitor attend the hospital. Ms Gourley also made enquiries about whether the deceased should arrange for a lawyer to attend in hospital so she could make a will. The deceased asked Ms Gourley to contact Hill Legal to make a will but did not say what she wanted in the will. The deceased also mentioned to Ms Gourley at this time that she had cancelled the will that had appointed Ms McGrath. When Ms Gourley asked the deceased whether the will had actually been revoked, the deceased responded that she had picked it up from her solicitor and cancelled it. The deceased also requested that Ms Gourley bring some documents to the hospital for her, specifically some bank statements and a letter regarding her sons. By inference, this is the handwritten statement written in October 2007 explaining the disinheritance of her sons. The deceased required Ms Gourley to read out loud the letter expressing why the deceased did not want them involved in her estate. However, the deceased made no mention of the informal document to Ms Gourley.
During the final days prior to the deceased’s death on 25 January 2017, both the plaintiff and Ms Gourley contacted Hill Legal to organise for a solicitor to attend the hospital and prepare a will. However, the deceased’s health deteriorated and she went into a coma before the appointment could take place.
Following the deceased’s death, both the plaintiff and Ms Gourley contacted Hill Legal, as they believed them to be the deceased’s solicitors. Hill Legal informed them that the firm had never prepared any will for the deceased, but had only acted for her in a conveyancing matter. The plaintiff and Ms Gourley were advised to attend the deceased’s property and look for any relevant documentation.
The plaintiff and Ms Gourley attended the deceased’s home late in January 2017. As a result of their searches, Ms Gourley located the black concertina folder in one of the spare rooms of the house. She went through the folder in the plaintiff’s presence and found the informal document and copies of it. Ms Gourley did not recall that it was attached to any documents. She also said that, to the best of her recollection, she also found the 2007 will with the word ‘cancelled’ written on the front cover on the same visit to the deceased’s home, although she cannot recall specifically where she found it.
The plaintiff, Ms Gourley and Ms McGrath subsequently attended a meeting at Hill Legal, where the 2007 will and the informal document were discussed. Hill Legal subsequently interviewed a number of other witnesses in the course of preparing an application for probate of the informal document. After considering the evidence, Mr Hill determined that the informal document should not be submitted to probate as an informal will.
In addition to Mr Hill’s assessment, the affidavits reveal varying perspectives on the significance of the informal document. The plaintiff expressed in an early affidavit that he believed that the deceased thought that the informal document was valid as a will because the deceased told him on many occasions that her solicitor was the executor of the will. However, upon further reflection, the plaintiff says that he is convinced that the deceased did not intend for the informal document to be a will, but rather that she had started taking notes about the intended contents for her new will, as the plaintiff had suggested to her. As further support for this conclusion, the plaintiff cites that the deceased regularly changed her mind about her intentions in a manner inconsistent with the contents of the informal document.
In contrast, Ms and Mr Gourley and Ms Carpenter each say the informal document is consistent with what the deceased had told them about her intentions for what should occur after she died, including who was to receive the benefit of the deceased’s estate and what was to happen with the deceased’s pets. Dr Reeves likewise had no direct knowledge of the informal document but says it is consistent with her recollections of the deceased’s close friendships, in particular, with Ms Gourley.
Applicable principles
As the informal document is not signed and witnessed, it does not comply with the formal requirements for the execution of a will set out in s 7 of the Act. Section 9 of the Act allows the Court to dispense with the formal requirements for execution of a will or codicil.[1] Although s 9 is a remedial provision, care must be taken to ensure that the statutory formalities for execution are not unduly relegated in importance.[2] As stated by Powell J in Re Application of Brown; Estate of Springfield:
the greater the departure from compliance with the requirements of s 7 of the [Wills 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.[3]
[1]Wills Act1997 (Vic) s 3(2).
[2]Estate of Peter Brock [2007] 1 Australian Succession and Trusts Law Reports 127, [19]–[20] (Hollingworth J).
[3]Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, 539–40 (‘Re Springfield’).
In accordance with s 9, three criteria must be established for the Court to admit a document to probate:
(a) there must be a document;
(b) the document must express the testamentary intentions of the deceased; and
(c) the document must have been intended by the deceased to be a codicil to his or her last will.[4]
[4]Fast v Rockman [2013] VSC 18, [46] (Habersberger J); Wills Act 1997 (Vic) s 3(2); Boettcher v Driscoll (2014) 119 SASR 523.
These elements must be satisfied by the person seeking to propound an informal will on the balance of probabilities,[5] assessing the evidence in accordance with Briginshaw v Briginshaw[6] and its statutory successor, s 140(2) of the Evidence Act 2008 (Vic). The Court must evaluate the evidence with great care 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 or her actual intentions.[7]
[5]Estate of Peter Brock (n 2) [45] (Hollingworth J); Fast v Rockman (n 4) [48] (Habersberger J).
[6](1938) 60 CLR 336, 362–3 (Dixon J). See also Fast v Rockman (n 4) [48] (Habersberger J); Re Estate of Robertson [2018] VSC 373, [26]–[29] (Zammit J).
[7]Evidence Act 2008 (Vic) s 140(2); Briginshaw v Briginshaw (n 6) 362–3 (Dixon J). See Estate of Peter Brock (n 2) 134–135 [45]–[47] (Hollingworth J); Re Estate of Robertson (n 6).
It is not disputed that the informal document comprises a document.[8] The plaintiff and contradictors dispute whether the second and third elements are established.
[8]A ‘document’ is broadly defined for the purposes of the Wills Act (Vic) s 9(6); Interpretation of Legislation Act 1984 (Vic) s 38. See also Re Torr (2005) 91 SASR 17, 24 [30]–[32] (Besanko J).
The second element requires the Court to consider whether the document expresses the deceased’s wishes or intentions for how the deceased’s property is to be disposed of upon his or her death.[9] The third element requires that the deceased must have intended for that document to operate as his or her final will.[10]
[9]Re Torr (n 8) 25 [34] (Besanko J); Re Estate of Robertson (n 6) [17] (Zammit J).
[10]Re Estate of Masters (1994) 33 NSWLR 446, 452 (Kirby P) and 455 (Mahoney JA).
The document cannot be intended as a personal memorandum or a note of intended instructions, a draft or a ‘trial run’.[11] The document cannot be a document recording gifts or intended gifts during the deceased’s lifetime.[12] The intentions expressed in the document must also be legally dispositive and not the deceased’s mere wishes or merely a personal memorandum.[13] Fragmentary content in a document would suggest that the document did not embody the deceased’s full testamentary intentions.[14] It is not enough to show that the document sets out the deceased’s testamentary intentions or that it is consistent with other statements the deceased made about what he or she wanted to happen to his or her property after death. Rather, an applicant must prove on the balance of probabilities that the deceased wanted that particular document to be his or her final will and did not want any changes to it.[15] Evidence of the circumstances surrounding the creation of the document is admissible, as is direct evidence of testamentary intent,[16] including evidence of subsequent statements made by the deceased.[17]
[11]Equity Trustees Ltd v Levin [2004] VSC 203, [15] (Whelan J).
[12]Re Estate of Masters (n 10) 455 (Mahoney JA); Estate of Peter Brock (n 2) 132 [28] (Hollingworth J).
[13]Re Estate of Masters (n 10) 455 (Mahoney JA); Equity Trustees Ltd v Levin (n 11).
[14]Re Estate of Masters (n 10) 455 and 460 (Mahoney JA); Deeks v Greenwood [2011] WASC 359, [69] (EM Heenan J), quoted in Fast v Rockman (n 4) [109] (Habersberger J); Re Hancock; Rennie v The Whippet Association of Victoria Inc [2016] VSC 496, [57] (McMillan J); Re Langley [2018] VSC 623, [57]–[58] (Moore J).
[15]Re Rosaro (2013) 11 Australian Succession and Trusts Law Reports 6, 13 [36] (McMillan J).
[16]Wills Act 1997 (Vic) s 9(3); Jageurs v Downing [2015] VSC 432, [17]–[18] (McMillan J) citing Re Springfield (n 3) 539 (Powell J), Application by Becroft [2009] VSC 481, [10] (Harper J).
[17]Application by Becroft (n 16).
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’.[18] As stated 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 …[19]
[18]Re Hancock; Rennie v The Whippet Association of Victoria Inc (n 14) [14] (McMillan J).
[19]Re Springfield (n 3) 539.
For an informal document to be admitted to probate, the deceased must have wanted that particular document to be his or her final will either at the time the document was brought into being or at any subsequent point in time.[20]
[20]Hatsatouris v Hatsatouris [2001] NSWCA 408, [59] (Powell JA, Priestly JA agreeing at [1], Stein JA agreeing at [66]); National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees, Late of Strathfield [2011] NSWSC 559, [17] (Windeyer AJ); Re Rosaro [2013] VSC 531, [40] (McMillan J).
Accordingly, if the deceased did not intend the document to be his or her will at the time of the document’s creation, but subsequently changed his or her intention, it is the latter intention which is relevant.[21] However, if the deceased initially intended the document to be his or her will at the time of the document’s creation, but subsequently changed his or her intention, the former intention remains relevant.[22] As stated by Powell JA in Hatsatouris v Hatsatouris:
[O]nce it be held that the relevant Deceased had the relevant intention recourse cannot be had to subsequent statements or events … to deprive the relevant document of its status as a testamentary instrument.[23]
[21]Re Estate of Masters (n 10) 469 (Priestley JA).
[22]Hatsatouris v Hatsatouris (n 20) [59]; cf Dolan v Dolan [2007] WASC 249, [24]–[26] (Murray J).
[23] Hatsatouris v Hatsatouris (n 20) [59].
If a testator intends for an informal document to be his or her will at the time of its creation, but later wishes to revoke or amend that document, he or she must do so in accordance with the statutory tests for revocation or alteration of wills.[24]
[24]Wills Act 1997 (Vic) ss 12–15; Hatsatouris v Hatsatouris (n 20) [59].
In addition to the requirements of s 9, common law principles, including those surrounding testamentary capacity and knowledge and approval, apply to informal wills.[25] In the context of a document that has not been duly executed, the usual presumptions as to testamentary capacity and knowledge and approval do not apply. If the deceased lacked testamentary capacity or did not know and approve of the contents of the document, then the Court could not be satisfied that the deceased intended the document to be his or her codicil.[26]
[25]Re Hancock; Rennie v The Whippet Association of Victoria Inc (n 14) [19] (McMillan J).
[26]Jageurs v Downing (n 16) [19]–[20].
Testamentary capacity and knowledge and approval are distinct concepts.[27] In respect of testamentary capacity, the Court must be satisfied that the deceased understood the nature and effect of making a will, was aware of the general nature and value of her estate, was aware of those who would have a natural claim on her estate, and was able to evaluate and discriminate between such claims.[28]
[27]Re Munro [2018] VSC 747, [54] (Derham AsJ); Veall v Veall (2015) 46 VR 123, 175–176 [173] (Santamaria JA) citing Hoff v Atherton [2004] EWCA Civ 1554, [62] (Chadwick LJ).
[28]Banks v Goodfellow (1870) LR 5 QB 549, 565 (Cockburn CJ); Bailey v Bailey (1924) 34 CLR 558, 566–7 (Knox CJ and Starke J).
The inquiry is directed toward the deceased’s capacity to understand rather than actual understanding.[29] While an ability to understand that a testamentary act is being engaged in and the effect of that act is required, capacity to understand each and every clause with the ‘eye of a lawyer’ is not necessary.[30]
The deceased is only required to have a general knowledge of the state of his or her property and of what it consists.[31] Making a will is an exercise in disposition rather than memorisation, with the concern of the Court being the soundness of the testator’s ability to dispose of his or her assets.[32] A finding of lack of capacity may result, however, if the deceased was mistaken as to the extent of the property to a real and substantial extent.[33]
[29]Hoff v Atherton [2004] EWCA Civ 1554, [34] (Peter Gibson LJ); John G Ross Martyn et al, Theobald on Wills (London Sweet & Maxwell, 18th ed, 2016) 3-002.
[30]Banks v Goodfellow (n 28) 567.
[31]Frizzo v Frizzo [2011] QCA 308, [66]–[68] (Muir JA).
[32]Brown v Guss [2014] VSC 251, [345] (McMillan J).
[33]GE Dal Pont and KF Mackie, Law of Succession (LexisNexis, 2nd ed, 2017) 46 [2.7] citing Wood v Smith [1993] Ch 90.
Determining whether a deceased person knew and approved of the relevant document involves consideration of whether the deceased actually understood the document and its effect, such that it can be said that the document represents the deceased’s testamentary intentions.[34] The sufficiency of evidence will depend upon the circumstances of each case.[35] While evidence that the document was read by the deceased is relevant, and should be given due weight, it will not be conclusive.[36] Other considerations include the mental acuity and sophistication of the testator, the complexity of the contents of the document and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon an estate, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice.[37]
[34]Veall v Veall (n 27) 175 [173], 178 [179] (Santamaria JA); Hoff v Atherton (n 29) [64] (Chadwick LJ).
[35]Veall v Veall (n 27) 178 [179].
[36]Ibid 177–8 [176]–[179].
[37]See Tobin v Ezekiel (2012) 83 NSWLR 757, 771–2 (Meagher JA), quoted in Veall v Veall (n 27) 178 [179].
Did the informal document express the deceased’s testamentary intentions?
The evidence establishes that the deceased expressed shifting testamentary intentions from the creation of the informal document in mid-2016 to her death in January 2017.
As at the creation of the informal document
The structure and language of the informal document evinces an intention to dispose of the deceased’s property after her death. It displays an awareness of the deceased’s property through specific reference to the mortgage over the deceased’s house. Its formal language is properly construed as intending to describe a legal disposition upon the deceased’s death. The informal document also expresses discernment in identifying the beneficiaries who are to benefit pursuant to the document, as well as those who were not.
The identity of the three beneficiaries under the informal document is consistent with certain evidence of the deceased’s testamentary intentions around the time of the creation of the document. According to Ms Carpenter, in or around May or June 2016 the deceased said that she wished to leave something to both Ms Carpenter and Ms Gourley. Ms Carpenter was also left with the impression that one further friend of the deceased was to benefit. The evidence of Mr Gourley and Dr Reeves supports the conclusion that the deceased held an ongoing desire to benefit Ms Gourley.
However, in addition to the informal document being undated, unsigned and unwitnessed, there are other features of it that are incomplete. First, an empty line exists under the line stating ‘I APPOINT my Solicitor’. There are only a few empty lines in the informal document. They generally appear to be used to signal a change of topic. As such, it appears that the deceased may have left a line free to insert the details of a solicitor at a later time. The second apparent gap is the absence of any address for ‘Debbie’ at the end of the informal document, a gap that is at odds with there being addresses for Ms Carpenter and Ms Gourley. This may indicate that the deceased intended to insert further details of Debbie’s address later.
For the purposes of satisfying the second element, it is not necessary for the informal document to be complete in every respect. It is not essential for the document to be dated, signed or witnessed, although that would strengthen the case, particularly where there is an absence of surrounding evidence. What is critical is that the content of the document, albeit incomplete in ancillary aspects, can be said to reflect the deceased’s testamentary intentions. Despite these absences, the contents of the informal document together with the surrounding evidence established that the informal document expresses the testamentary intentions of the deceased at the time that she created the document and that she intended to distribute her estate to Ms Carpenter, Ms Gourley and ‘Debbie’ on her death.
As at the death of the deceased
The deceased subsequently expressed intentions that were inconsistent with the dispositions recorded in the informal document. For instance, the plaintiff recalls that in September 2016, the deceased said that she wanted to leave ‘Debbie’ out of her will. In addition, on Christmas Day in 2016, the deceased told Ms Williams that she wished to provide amounts to Ms Williams and other employees at the pet store, who are not named in the informal document.
Further, during late 2016 and early 2017, the deceased repeatedly expressed the need to visit a lawyer to make a new will, even if this was sometimes initiated by others. She expressed this desire separately to the plaintiff, Ms Gourley, Ms Hocking and Ms Williams.
Where the deceased held the relevant testamentary intention at the creation of the informal document but later expressed wishes to revoke or amend the document, in order to do so validly, she must do so in accordance with the statutory tests for revocation or alteration of wills.[38] In this instance, the deceased did not validly revoke or amend the informal document.
[38]Wills Act 1997 (Vic) s 12.
Did the deceased intend the informal document to be her will?
The deceased’s intentions as at the creation of the informal document
The informal document was created by the deceased after her diagnosis of lung cancer. At that time, she diligently set about organising her affairs for after her death, with the strongest indications of how she conceptualised the informal document by her subsequent comments. According to various witnesses, on a number of occasions in the final months of her life, the deceased referred to ‘her will’, particularly in the context of needing to make a new will or make changes to that will. In this context, the deceased was referring to the informal document and, in doing so, was revealing that she conceived of the informal document as operating as her final will. This conclusion can be seen by the evidence of the witnesses now set out below.
Ms Carpenter recalled that the deceased discussed changes to her will in May or June 2016. This conversation led Ms Carpenter to perceive that the deceased intended to make a will leaving her estate for three people, being Ms Carpenter, Ms Gourley and another friend of the deceased. Ms Carpenter gave the following evidence about what occurred afterwards:
I cannot remember Valerie’s exact words but after my conversations of around May or June with her, she intimated to me that she had made her will and other arrangements, that she had worked it out and appeared comfortable with it.
Ms Williams recalled that at various points in 2016 she would talk with the deceased about the deceased’s will:
When we talked about her Will, and her history, Val often told me that she had had a Will, but had “cancelled” it because she had had a falling out with the person in it, and didn’t want her to get anything.
The combination of the 2007 will having the word ‘cancelled’ written on it and the surrounding evidence of a falling out between the deceased and Ms McGrath supports that the will referred to by the deceased was the 2007 will.
According to the plaintiff, the deceased frequently discussed her will with him prior to her death. His evidence of one such conversation was as follows:
[The deceased] told me on many occasions that her solicitor (Hill Legal) was the Executor of her Will, that her Will directed for her dogs to be euthanised, and that she was leaving money to Louise and Debbie (she didn’t specifically mentioned Lucille, but this gift did not surprise me, as Lucy was a close friend and neighbour).
The ‘will’ referred to clearly aligns with the informal document, in which the deceased directs for the cremation of her dogs and for dispositions to Ms Gourley and Debbie. None of these matters are contained in the 2007 will.
Although the plaintiff did not provide a date for that discussion, it seemingly occurred prior to a separate conversation between the deceased and the plaintiff in September 2016, in which the deceased expressed that she wished to remove Debbie from her will. The plaintiff recalled that discussion as follows:
In around September 2016, Val told me that her Estate was going to be managed by Hill Legal, her solicitors, saying “they are my Executors”. Val also told me at this time that she wanted to make a new will, because she wanted to “leave out Debbie” … Val was adamant that she needed to update her Will to “take Debbie out”.
‘Debbie’ was not mentioned in the 2007 will. Apart from the informal document, no other testamentary document mentioning Debbie was produced.
The plaintiff later recalled that in late 2016:
Val asked me again to take her to the solicitor, because she wanted to change her Will. I asked her if she had her notes ready, and she said no. I said I was happy to take her when she had the notes completed.
Ms Hocking gave evidence of a conversation with the deceased shortly before Christmas 2016:
Val said that she needed a lift to her lawyer’s office, because she wanted to make some changes to her Will. She mentioned that she wanted to make sure that someone who had been stealing from her didn’t get anything.
The identity of the person stealing from the deceased is uncertain. One possibility is that it is Debbie. This would be consistent with the plaintiff’s evidence that the deceased wished to remove Debbie from her will. Another possibility is that the deceased was continuing at this stage to refer to Ms McGrath, who, according to Ms Gourley’s evidence of what the deceased had said, had stolen from the deceased. On this basis, an interpretation of this passage is that the deceased may have simply sought to confirm that the 2007 will had been cancelled and that Ms McGrath would not receive anything.
On balance, it is unlikely that the deceased was referring to Ms McGrath in her conversation with Ms Hocking. As recounted, the deceased had on a number of occasions, including prior to this conversation, referred to her cancellation of the 2007 will. That being the situation, there would be no utility in making ‘some changes’ to it.
Ms Williams recalled the following conversation with the deceased on Christmas Day 2016:
Val told me that she had written a Will, but she wanted someone to take her to her lawyer’s office to make another one because she had some changes to make. …
When she talked about the changes she wanted to make to her Will, Val mentioned that she wanted to give Sheree, who works at the pet shop, a small amount of money because she had just gotten engaged, and it would be a nice start for the couple. She also mentioned that there was someone she wanted to take out, who had stolen from her, and that she also wanted to include Anne (another employee at the pet shop), and I. She did say that Louise was in the Will already, and that she was going to keep her in the new one.
For the same reasons, it was unlikely that the deceased was referring here to Ms McGrath as the person who had stolen from the deceased. Further, in relation to the final sentence, it should again be emphasised that ‘Louise’, i.e. Ms Gourley, was not mentioned in the 2007 will. No testamentary document mentioning Ms Gourley’s name was produced other than the informal document.
According to Ms Gourley, the deceased confirmed in hospital that she had cancelled the 2007 will:
Val did not specifically tell me that she had written out her Will, but in the hospital shortly before she passed away, she told me that she had “cancelled” the previous Will that had appointed Anne.
In circumstances where the deceased acknowledged she had cancelled the 2007 will, her repeated expressions to the need to change ‘her will’ can only be linked to a desire to change the informal document. This is confirmed by the specific references to her desire to remove Debbie, but retain Ms Gourley in her will, and the fact that her dogs were to be euthanised. These are all features of the informal document, not the 2007 will. Accordingly, the evidence establishes that, at least from September 2016, the deceased viewed the informal document as her will and through these various expressions the deceased ‘authenticated or adopted’[39] the informal document such as to show that she intended it to take effect as a testamentary instrument.
[39]Re Estate of Hines; Oswald v Hines [1999] WASC 111, [26] (Owen J), citing Re Springfield (n 3).
The fact that the deceased directly and clearly communicated to the plaintiff the need to remove Debbie from ‘her will’ in September 2016 suggested she had previously viewed the informal document as her will. Accordingly, the evidence supports the conclusion that at the creation of the informal document or soon thereafter, the deceased intended for the informal document to operate as her final will. Although the deceased expressed some changes to some of the dispositions in the document later, she did not validly revoke or amend the informal document in accordance with the requirements of the Wills Act 1997 (Vic).
It is accepted that significant evidence independent from the informal document was required on the facts for it to be admitted to probate. The informal document was undated, unsigned and unwitnessed and potentially incomplete in some other respects. It was open to draw inferences about the deceased’s knowledge of will-making from the deceased having previously executed a formal will and adapted some of the provisions from the formal will into the informal document. The totality of the evidence is sufficiently strong to draw the conclusion that, despite the legal deficiencies with the informal document, the deceased intended it to operate as her will. Having determined to organise her affairs in the first half of 2016, the deceased, after organising her funeral and gravestone, set about to cancel her 2007 will and create a new one. Given key aspects of the informal document adopt language similar to that contained in the 2007 will, the deceased likely used the 2007 will as a template to create the informal document. Although the deceased may have become aware at this time of the dating and signatures on the 2007 will, it was still nearly ten years since the 2007 will was executed and it cannot be said that the deceased was experienced in the making of wills.[40] Regardless, the deceased’s familiarity with the formalities for execution of a will ‘is only one of the factual circumstances which a court will take into account’.[41]
[40]Cf, eg, Kedzier v Postle [2002] NSWSC 875, [37] (Macready AsJ).
[41]Fast v Rockman (n 4) [113] (Habersberger J).
The absence of details for her solicitor and an address for Debbie are not fatal to the informal document being admitted to probate. Although they may support an inference of documentary incompleteness, the deceased’s expressed intentions are important. The failure to specify her solicitor in the informal document may potentially be put down to a mistaken belief on the part of the deceased that she had engaged Mr Hill as her executor. Having visited Hill Legal in February 2016 in relation to a property matter, she proceeded to list Mr Hill, unbeknownst to him, as her executor in her paperwork with Tobin Brothers in March 2016. She continued to refer to Hill Legal either as her executors or solicitors on subsequent occasions. It appears that the deceased believed there were no further steps for her to take for Hill Legal to act as her executors.
There is also no material support for the plaintiff’s case in the fact that the informal document was located in the concertina folder rather than in the kitchen of the deceased’s home, which is where the deceased had told Ms Gourley that she would find the documents the deceased requested shortly prior to passing away. Although the location in which a deceased stores an informal will may be relevant to inferring their intentions for the document, this consideration will ordinarily hold the most weight where the deceased made the document obvious to others after his or her death,[42] or where there is otherwise some established practice of the deceased for dealing with formal documents.[43] In this case, the fact that the deceased kept bills and the requested documents in a kitchen drawer does support the inference that the deceased would store financial or personal documents in that location, but it does not strongly refute the possibility that she would also store important documents elsewhere. Although the deceased would often provide documents to Ms Gourley to hold, this did not amount to the deceased retaining her key legal documents with a third party for safe keeping.[44] For example, the deceased had collected her 2007 will and various other key legal documents from her then solicitors, Waters Timms, in 2011.
[42]See, eg, Re Quartermain Estate; Steggall v Quartermain (2009) 2 Australian Succession and Trusts Law Reports 283, 286 [25] (Sackville AJA); Ackerley v Felton [2012] NSWSC 1468, [34]–[35] (Young AJ).
[43]See, eg, Williams v Public Trustee of New South Wales (No 2) [2007] NSWSC 974, [84] (Palmer J).
[44]Cf ibid.
There are also possible explanations for the deceased keeping the informal document to herself. As submitted by the contradictor, the silence may be explained in the context of the two of the people closest of her – the plaintiff and Ms Gourley. In respect of the plaintiff, the deceased may have been concerned that his absence as a beneficiary under the informal document may have caused distress. In addition, in respect of both the plaintiff and Ms Gourley, the deceased may have been concerned about their reaction to the deceased’s wishes for her dogs to be cremated and buried with her, this being a point of previous disagreement with them. A willingness not to openly discuss her final testamentary intentions with the plaintiff and Ms Gourley may also be consistent with the comment by the deceased to Ms Carpenter in December 2016 that ‘when she goes everything will be settled’.
Testamentary capacity and knowledge and approval
The Court is required to assesses testamentary capacity and knowledge and approval to admit the informal document to probate, although the plaintiff did not challenge these matters. The relevant time to assess these matters will depend on the circumstances of the case. On these facts, it is relevant to ask whether the deceased’s possessed such a capacity, and knew and approved the contents of the informal document, at or around the time of creating the informal document.
For the similar reasons set out, the informal document is rational on its face, and is consistent with other expressions of the deceased’s intentions around the time of the document’s creation. The language and specificity of the informal document, and the series of discussions she held with others in late-2016, indicate that the deceased was attuned to the property that would comprise her estate and the importance of designating those who would have claim to it.
Although Dr Reeves does not recall conducting any assessment of the deceased’s testamentary capacity leading up to her departure from the clinic in June 2016, she expressed that she had no reason to doubt such a capacity. Despite the evidence establishing that the deceased was prone to change her testamentary intentions, there is no suggestion of any mental deterioration of the deceased prior to the sharp decline in her health in early-2017.
The evidence establishes that the deceased possessed testamentary capacity and knew and approved of the contents of the informal document at the time of its creation, which probably occurred at some point in mid-2016. The deceased was at and around this time able to ‘comprehend the extent of [her] estate, the nature of the assets that comprise it and the various claims others may have to it’.[45]
[45]Re Kelsall [2016] VSC 724, [34] (McMillan J), citing Simon v Byford [2014] EWCA Civ 280 [40]–[41] (Lewison LJ); Brown v Guss (n 32) [344]–[345] (McMillan J).
Conclusions
The Court is satisfied on the balance of probabilities that the deceased intended the informal document to be her will. Although the deceased did not show the informal document to any person, on balance, she intended that the informal document operate as her final will. This is clear from the sequence of statements made by the deceased to others during the final months of her life, in which the deceased referred to herself as having a will bearing characteristics consistent with the informal document. Despite the deceased changing her mind later about who she wanted to receive the benefit of her estate, she did not execute a new will or revoke the informal document.
Further Matters
The informal document divides the residue of the estate into three parts between Ms Carpenter, Ms Gourley and Debbie. The identity of Debbie is unknown and will never been known and, accordingly, the gift to Debbie fails. In those circumstances, by application of ss 46(3)–(4) of the Wills Act 1997 (Vic), Ms Carpenter and Ms Gourlay would take the residuary estate in equal shares. These provisions provide that where a residuary disposition is in fractional parts and any part fails, then subject to there being a contrary intention, the disposition of the part that fails passes proportionately to the parts which do not fail.[46]
[46]Re Melbourne; Wall v Wathen [2016] VSC 514, [27]–[35] (McMillan J).
The informal document does not name an executor, but simply states ‘my Solicitor’. While the deceased named Mr Christopher Hill, solicitor, of Hill Legal, as the person to be contacted in the funeral plan with Tobin Brothers and described her relationship to him as executor in that document, the deceased had not made any will with that firm, nor discussed using the firm as her executors. Mr Hill now acts on behalf of the plaintiff. It is, therefore, appropriate for an administrator to be appointed to finalise the administration of the estate. The estate now comprises money held by the limited administrator. Subject to her agreement, Ms Talia would seem to be an appropriate person to act as administrator with the informal will annexed of the estate of the deceased.
If any party wishes to make submissions on the further matters, they should inform the Court. In addition, the Court requires short written submissions as to the costs of the plaintiff.
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