Re Phillipson
[2020] VSC 857
•16 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2019 15684
| LAUREN JANE PHILLIPSON | Plaintiff |
| v | |
| DARREN WAYNE PHILLIPSON | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 16 December 2020 |
CASE MAY BE CITED AS: | Re Phillipson |
MEDIUM NEUTRAL CITATION: | [2020] VSC 857 |
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WILLS AND ESTATES – Informal will – Where informal will was unsigned and undated – Whether deceased intended the informal will to be his will – Informal codicil – Whether deceased intended informal document to be a codicil to his will – Whether deceased had testamentary capacity– Application denied – Wills Act 1997 (Vic) s 9 – Banks v Goodfellow (1870) LR 5 QB 549; Veall v Veall (2015) 46 VR 123.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr SGR Wilmoth | Bruce Caldwell & Associates |
| For the Defendant | Ms K Halcomb | TBA Law |
HER HONOUR:
Introduction
Wayne Thomas Phillipson (‘the deceased’) died on 18 July 2019 survived by his five children, namely: Lauren Jane Phillipson (‘the plaintiff’), Darren Wayne Phillipson (‘the defendant’), Joanne Susan Pavich (‘Joanne’), Glenn Andrew Phillipson (‘Glenn’) and Leeanne Gaye Phillipson (‘Leeanne’).
The deceased left a will executed in compliance with s 7 of the Wills Act 1997 (‘the Act’) dated 11 January 2007 (‘the 2007 will’), an unsigned document purporting to be the last will of the deceased, headed on the last page by the year 2018 (‘the unsigned document’), and a handwritten note containing further testamentary dispositions dated 25 March 2018 (‘the handwritten note’).
The 2007 will appoints the defendant and Kenneth Smith (‘Mr Smith’), a solicitor, as the executors of the estate. As the deceased’s wife had predeceased him on 28 May 2017, according to the terms of the 2007 will, the residue of the deceased’s estate was to be divided equally between the plaintiff, the defendant, Joanne and Glenn, subject to a gift of $1,000 to Leeanne.
The unsigned document is typed, printed and unsigned. It is stapled to an invoice and covering letter dated 17 April 2018 from Ken Smith & Associates (‘the deceased’s solicitors’), which contains, among other things, a direction to ‘peruse the Will carefully and if same is in order, kindly contact this office to make an appointment to execute the original Will’. The unsigned document appoints the plaintiff as the executor of the estate and does not make any changes to the dispositions of the estate from the 2007 will.
According to the plaintiff, the handwritten note was written by the deceased at a family meeting on 25 March 2018. It expresses on its face the deceased’s purported intention to add to his will to make provision for the plaintiff to remain in his home until such time that she chooses to leave or purchases her own home, as well as to make her executor of his will.
The proceeding
The plaintiff advertised her intention to make an application for a grant of probate of the unsigned document on 11 September 2019. On 26 September 2019, the plaintiff made an application for a grant of probate of the unsigned document pursuant to s 9 of the Act. By her submissions filed 18 May 2020, the plaintiff informed the Court that probate of the handwritten note was also sought as an informal codicil to the unsigned document.[1]
[1]The plaintiff’s originating motion and advertisement refer to an application for probate of the unsigned document only. However, the plaintiff’s solicitor confirmed in email correspondence to the Court on 24 November 2020 that probate was in fact sought of both the unsigned document and handwritten note.
On 26 November 2019, the defendant advertised his intention to make an application for a grant of probate of the 2007 will, with leave reserved to Mr Smith to come in and prove the same.
The beneficiaries of the estate named in the 2007 will, with the exception of the defendant, provided their written consent for probate of the unsigned document to be granted to the plaintiff. Mr Smith, the co-executor of the 2007 will, also did not object to the plaintiff’s application.
The statements of written consent of Mr Smith and the beneficiaries did not include their position in relation to the handwritten note.
In the absence of written consent in relation to the handwritten note, under r 2.09 of the Supreme Court (Administration and Probate) Rules 2014, the Registrar of Probates was not empowered to determine the application. Consequently, on 4 December 2019, the plaintiff filed a notice to produce, bringing the application before the Court.
At the first return of the proceeding on 14 February 2020, the Court made orders that the plaintiff notify the various beneficiaries under the 2007 will, granting them leave to apply to be added to the proceeding. The defendant subsequently sought to be added to the proceeding.
On 23 March 2020, the Court made orders joining the defendant as a party to the proceeding. It also made directions for discovery and the filing of further affidavit material and submissions, as well as for the plaintiff’s application to be considered on the papers thereafter.
Circumstances of the unsigned document and handwritten note
In early 2018, the deceased was admitted to hospital for back pain, where he underwent a biopsy revealing a tumour located at his L5 vertebra. He went to intensive care immediately following the biopsy and subsequently underwent a period of rehabilitation.
On 9 March 2018, the deceased contacted his solicitors and provided instructions over the telephone to Lyn Burrows (‘Ms Burrows’), a probate clerk, to prepare documents appointing the plaintiff as his medical and financial attorney. On 13 March 2018, the plaintiff contacted Ms Burrows and provided her details in order for the powers of attorney to be prepared.
On 14 March 2018, Ms Burrows called the deceased to confirm his address and suggested he also review his will while the firm was completing legal work on his behalf. Ms Burrows deposed that the deceased was clear in his instructions and she had ‘no reason to have any concerns as to the testamentary capacity [of the deceased].’
On around 25 March 2018, the deceased attended hospital to prepare for surgery to remove the tumour in his L5 vertebra. The plaintiff deposed that, around this time, the deceased asked her to move into his home, as well as to be his permanent carer, his attorney pursuant to a power of attorney, and his executor.
The plaintiff deposed that on 25 March 2018, the deceased called a family meeting with the plaintiff, the defendant and Joanne. At the meeting, the plaintiff says the deceased:
(a) informed the plaintiff’s siblings that he wished for the plaintiff to move into his home, care for him, and be his executor and his attorney pursuant to an enduring power of attorney; and
(b) asked the defendant to ‘step aside from his position as executor under the 2007 will’, to which ‘[the defendant] acquiesced’.
According to the plaintiff, the deceased then expressed to them that if anything should happen to him, it was his wish that the plaintiff remain in his home for as long as it might take her to find a new place to live or buy a home of her own. On the plaintiff’s account, he then wrote this down on a piece of notepaper and signed it. A copy of the handwritten note was exhibited to the plaintiff’s affidavit dated 16 September 2019 and reads as follows:
I Wayne Phillipson of 6 Bravo Crt Lillydale
I wish to add this addition
to my Will.
I request that Lauren Jane
Phillipson is to remain in
the family home until such
time that she chooses to leave
or has saved enough money
to secure her own home
and then the home can be sold.
Wayne Phillipson
25.3.2018
Lauren to be executor of my will
The defendant denies that there was a family meeting arranged for 25 March 2018 or on any other date. He submits that he was never shown the handwritten note of 25 March 2018 and was not aware of its existence until after the deceased’s death.
The deceased’s surgery to remove the tumour was performed on 26 March 2018, which reportedly caused him to suffer from serious blood loss. Around this time, the plaintiff also learned from the deceased’s oncologist that the deceased had been diagnosed with stage four oesophageal cancer.
On 29 March 2018, the deceased executed an enduring power of attorney, prepared by his solicitors, authorising the plaintiff to act as his attorney and do anything on his behalf in respect of both his personal and financial matters that may lawfully be done by an attorney, exercisable from the point at which the deceased ceased to have decision making capacity for such matters.
The defendant deposed that, on 2 April 2018, he had a telephone conversation with the deceased in which the deceased asked him to ‘step aside’ as executor, which was the first time that the deceased had made that request to him. In response, the defendant said that he would ‘respect whatever decision [the deceased] decided to make’.
Later that day, the defendant sent a message, which has since been deleted, to Joanne and Glenn via Facebook Messenger containing the following:
Due to lengthy discussions with Lauren, dad has asked that I step aside as executor of his will. I will do this out of respect for dads [sic] wishes and well being, that is the only reason… The alterations to dads [sic] will was only make [sic] known to me (and no other siblings) because I happened to be in the room at the time of discussion, in the weeks before and following this Lauren has not spoken with me at all.
On 3 April 2018, the deceased gave instructions to his solicitors and discussed drawing up a will. The note of instruction taken by Ken Smith & Associates was exhibited to the affidavit of the plaintiff dated 16 September 2019. The note of instruction reads:
3/4/2018
Ken spoke with Wayne Phillipson + obtained instructions.
- change executor to Lauren Phillipson
- everything else remains the same.
- Wayne asked for draft to be forwarded to Lauren for changes of
addresses etc. to be made.
- Lauren will collect original will to be signed at hospital.
- 17/4/2018 Lauren advised her Dad will now come in to sign will as
he’ll be out of hospital soon.
The parties tendered by agreement an email of the same date sent by Leanne Maher of the deceased’s solicitor’s office, which provides the plaintiff with what is presumably a draft copy of the unsigned document by email.
On 17 April 2018, the plaintiff contacted the deceased’s solicitors and provided the details of changes of names and addresses for her and her siblings. With a covering letter dated the same day, the deceased’s solicitors posted a copy of a draft of the deceased’s will and a tax invoice to the deceased’s residential address at Bravo Court. The plaintiff deposed to receiving a copy of the unsigned document while the deceased was still in hospital, whereupon she paid the attached tax invoice, then hole-punched and placed the unsigned document with the deceased’s personal papers.
On or around 25 April 2018, the deceased returned home to Bravo Court.
The plaintiff deposed that she had intended to make an appointment for the deceased to attend at his solicitor’s office to sign a final version of the will, but did not do this subsequently. The deceased did not himself make an appointment to sign a final version of the will; hence no final version was ever signed.
The deceased lived at Bravo Court with the plaintiff up until 27 January 2019, when he was re-admitted to hospital via the emergency department. He remained hospitalised until his death on 18 July 2019.
Principles
Section 9 of the Act allows the Court to admit to probate a document that was not executed in accordance with the formal requirements in s 7 of that Act.
Section 9 is a remedial provision; the purpose of the provision is to allow the Court to give effect to a testator’s true intentions in situations where a will or codicil has not been validly executed. It should be construed to achieve the objects and purposes of the Act, although the importance of the formalities should not be unduly relegated.[2]
[2]Re Ray [2020] VSC 699, [102] (McMillan J), citing Re Estate of Brock [2007] VSC 415, [20] (Hollingworth J).
Three criteria must be satisfied before a document will be admitted into probate under s 9 of the Act:
(a) there must be a document;
(b) the document must record the testamentary intentions of the deceased; and
(c) the deceased must have intended the document to be his or her will or codicil.[3]
[3]Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Equity Trustees Ltd v Levin [2004] VSC 203, [14] (Whelan J); Fast v Rockman [2013] VSC 18, [46] (Habersberger J); Re Ray (n 2) [103] (McMillan J).
With respect to the third criterion, the Court must be satisfied that the testator, by some word or act, demonstrated an intention that the alleged informal will should have effect as his or her will, without any alteration or reservation.[4] The testator must have intended the alleged informal will to be a legally operative act that will dispose of his or her property upon his or her death rather than a provisional, preliminary or tentative proposal.[5]
[4]Ibid.
[5]Fast v Rockman (n 3) [59], [73], [75], [86], [92], [96], [105]–[110], [114] (Habersberger J), citing, inter alia, Mitchell v Mitchell [2010] WASC 174, [41]–[43] (EM Heenan J).
The usual presumptions as to testamentary capacity do not apply in the context of an informal will or codicil.[6] As such, the propounder of an informal will must satisfy the Court that the testator had the requisite testamentary capacity at the time of making the alleged informal will.[7] The propounder must establish the requisite elements on a balance of probabilities.[8]
[6]Ackerley v Felton [2012] NSWSC 1468, [30] (Young AJ); Fielder v Burgess [2014] SASC 98, [25] (Kourakis CJ); Jageurs v Downing [2015] VSC 432, [111] (McMillan J); Re Kelsall [2016] VSC 724, [22] (McMillan J). See Veall v Veall (2015) 46 VR 123, 174–5 [168]–[171] (Santamaria JA), regarding the usual presumptions.
[7]Ibid.
[8]Ibid.
The Court must be satisfied that the deceased:
(a) understood the nature and effect of making his will;
(b) was aware of the general nature and value of his estate;
(c) was aware of those who have a natural claim on his estate; and
(d) was able to evaluate and discriminate between such claims.[9]
[9]Banks v Goodfellow (1870) LR 5 QB 549, 567 (Cockburn CJ).
Further, due to the nature of probate, the consequences of any findings that may be made, and the inability to hear any evidence from the testator, the Court needs to evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw[10] principle.[11]
[10](1938) 60 CLR 336, 362–363 (Dixon J).
[11]Fast v Rockman (n 3) [48] (Habersberger J), citing Estate of Peter Brock (n 2) [45]–[47] (Hollingworth J); Prucha v Standing [2011] VSC 90, [8] (Beach J).
The plaintiff’s submissions
The plaintiff seeks that the unsigned document be admitted to probate, with the handwritten note as a codicil to the unsigned document.
The plaintiff submits that the unsigned document is an informal will. It was drawn by Ken Smith & Associates Solicitors, but the plaintiff submits it was not formally executed because she was busy moving herself and two of her children into the deceased’s home, cleaning the deceased’s home, visiting the deceased in hospital and taking instructions from medical professionals on the deceased’s behalf. She also claims to have been busy receiving and paying various letters on the deceased’s behalf. As such, she did not read the cover letter properly and overlooked the fact that the draft will was not signed and that she needed to make an appointment for the execution of the will.
The plaintiff submits that, as the unsigned document makes no substantive change to the dispositions contained in the 2007 will, there is no occasion to apply the test for testamentary capacity. She claims she is under no onus to establish that the deceased understood the extent of the property of which he intended to dispose, or that the deceased was able to appreciate the claims to which he ought to give effect.
The plaintiff submits that the handwritten note satisfies on its face the requirements of there being a document that expresses or records the testamentary intentions of the deceased. The plaintiff further submits that, as the handwritten note was rational on its face, legible, and consistent with the deceased’s wish that the plaintiff be the executor, as expressed to the plaintiff and conceded by the defendant, the Court should be satisfied that the deceased intended it to form a part of his will.
The plaintiff submits that the circumstances of the creation of the handwritten note, as deposed to by the plaintiff, are sufficient to establish that the deceased was of sound mind when he made it.
The defendant’s submissions
The defendant opposes the grant of probate of the unsigned document and handwritten note on the following bases:
(a) the Court cannot be satisfied that the deceased intended the unsigned document or handwritten note to be his last will, or an informal codicil to any will;
(b) the Court cannot be satisfied that the deceased had testamentary capacity to make a will at the time that instructions were given to draw the unsigned document and at the time the handwritten note was made;
(c) the handwritten note cannot be either the last will of the deceased or an informal codicil to the unsigned document as it pre-dates the unsigned document; and
(d) the plaintiff has not advertised her intention to apply for probate of the handwritten note as either the deceased’s last will or as a codicil to the unsigned document.
Submissions on costs
The plaintiff is content to bear her own costs without reimbursement from the estate, and submits that the defendant is entitled to be paid his costs out of the estate on a standard basis.
The defendant agrees with the plaintiff’s position regarding her own costs and, in the event he is unsuccessful, the proposal that the defendant’s costs be paid from the deceased’s estate on a standard basis. He submits he was the proper defendant to the proceeding as an executor of the 2007 will, his co-executor having declined to object to the unsigned document being admitted into probate.
However, in the event the defendant is successful and the Court declines to admit the unsigned document to probate, he submits his costs of and incidental to the proceeding should be paid by the plaintiff on a standard basis, following the usual principle that the plaintiff bear the cost burden of the other party where they are unsuccessful. Otherwise, as the named executor of the 2007 will, he submits he should be indemnified for the balance of his costs from the estate.
Consideration
The plaintiff must establish that the unsigned document and handwritten note are documents which record or express the testamentary intentions of the deceased and that the deceased intended each of them to be or comprise a part of his last will without any alteration or reservation.
It is uncontroversial that the unsigned document and the handwritten note are both documents, as each is a hard copy piece of paper on which there is writing.
The unsigned document also records and/or expresses the testamentary intentions of the deceased. The unsigned document was drafted by Ken Smith & Associates in line with instructions given by the deceased on 3 April 2018 as recorded in the note of instruction, which states ‘change executor to Lauren Phillipson’ and ‘everything else remains the same’.
While the note of instruction does not specifically reference the 2007 will as being the relevant document to which changes are to be made, the fact that Ken Smith & Associates also drafted and held the 2007 will and the similarity of the terms between the unsigned document and the 2007 will support an inference that the 2007 will was being referenced.
The unsigned document clearly disposes of the deceased’s estate on contemplation of death and deals with his entire estate.
The handwritten note likewise records and/or expresses the testamentary intentions of the deceased. The handwriting and signature on the handwritten note belong to the deceased and this is not disputed. The handwritten note also evinces the deceased’s intention to add to his existing will through the words ‘I wish to add this addition to my Will’.
The stated intention in the handwritten note for ‘[the plaintiff]… to remain in the family home until such time that she chooses to leave or has saved enough money to secure her own home and then the home can be sold’ can be read as a disposition of property in contemplation of death.[12]
[12]Cock v Cook (1866) LR 1 P & D 241, 243 (Sir JP Wilde); Romano v Romano [2004] NSWCA 37, [42] (Hodgson JA).
However, as the handwritten document is dated 25 March 2018, the will referred to can only be the 2007 will, as it was the only will in existence at the time the deceased drafted the handwritten note.
The handwritten document cannot be an informal codicil to the unsigned document as the handwritten document pre-dates the unsigned document. As, by definition, a codicil is a ‘supplement to a Will, containing an addition, explanation, modification etc., of something in the will’,[13] in order to be a codicil the handwritten note must post-date the will it is purporting to modify.
Whether the unsigned document was intended by the deceased to be his will
[13]Macquarie Concise Dictionary (4th ed, 2006) ‘codicil’.
As a testator’s signature is an important indicator of the authenticity and solemnity of a document[14] and the absence of a signature on the unsigned document makes it difficult to satisfy the Court of the deceased’s intention to make a will.
[14]G E Dal Pont, Laws of Succession (LexisNexis, 2nd ed, 2017).
The deceased’s departure from the formalities of will making with regards to the unsigned document, is incongruous with his previous careful approach to will-making and in the preparation and keeping of other important documents, such as the power of attorney documents.
The deceased had considerable opportunity to comply with the formalities, including signing, as his death occurred more than 15 months after giving instructions for the unsigned document and the plaintiff providing the updated names and addresses of his children to his solicitors.
The plaintiff deposed that, after she received the cover letter and unsigned document in the mail on 28 April 2018, she did not read the cover letter properly or notice that the will printed on plain paper was not signed. The inference of this statement is that at the time the plaintiff received the cover letter and the unsigned document, she believed the unsigned document had been signed.
Her evidence in this regard is contradictory, as the deceased was in hospital at this time and she deposed to her intention to make an appointment for the deceased to sign a new will at the deceased’s solicitor’s office on his returning home from hospital.
The plaintiff has not explained the facts and circumstances that founded her apparent belief, that the deceased had changed his mind, signed his will in the hospital, sent or gave it to his solicitors, who then sent it back to the deceased at his home address, or why the will would be printed on plain paper rather than parchment, or why she hole punched a document that she thought was the deceased’s new will.
The plaintiff has not shown that the deceased evinced the requisite intention to execute his last will,[15] as opposed to a provisional document which merely records testamentary intentions, at the time that he gave instructions for the unsigned document on 3 April 2018, and again on 17 April 2018, when his solicitors sent the draft will to him.
[15]In the Estate of Parkinson (deceased) (1988) 143 LSJS 336, 340 (White J); Lindsay v McGrath [2016] 2 Qd R 160.
After the deceased provided his instructions for a will to be drafted on 3 April 2018, his intention was to execute a formal will in the future, as according to the deceased’s solicitors note of instruction, the draft was to be forwarded to the plaintiff for ‘changes of addresses, etc.’ At the time the deceased’s solicitors sent him the draft will on 17 April 2018, the evidence shows that the common belief of the plaintiff and the deceased was that the deceased would attend the solicitor’s office to execute a new will.
The Court cannot be satisfied that the deceased adopted the unsigned document as his last will at a later date as there is no direct evidence that the deceased made statements to the plaintiff or any other person that he had signed a new will. There is also no direct evidence that the plaintiff spoke with the deceased about the cover letter, unsigned document or her payment of costs of drafting the unsigned document, or that the deceased spoke with her about it.
The plaintiff has not established that the deceased knew that the unsigned document was filed by the plaintiff in a folder of his personal papers, or that he read, or had read to him, the unsigned document. The plaintiff also has not deposed to any particular statements made by the deceased that support the view that he ‘came to mistakenly believe that he had executed the [unsigned document]’, or other behaviour that would support the conclusion that he had adopted the unsigned document.
There is no evidence that the deceased expressed any intention that the document would take effect as his will. The plaintiff has therefore failed to establish that the unsigned document was intended to by the deceased to be his will.
Testamentary capacity: unsigned document
The plaintiff bears the onus of establishing that the deceased intended the unsigned document to be his will. She makes no submissions directly on point, but rather makes a broader allegation, with no reference to any authority, that as the document makes no substantive change to the dispositions contained in the 2007 will, there is no onus upon her to establish that the deceased retained testamentary capacity.
As the propounder of the informal, the plaintiff must satisfy the Court that the testator had the requisite testamentary capacity at the time of making the alleged informal will.[16] The similarities between the 2007 will and unsigned document alone do not establish the deceased’s capacity, as he needed, among other things, to comprehend and appreciate anew the claims on his bounty, which may have changed in the eleven year period between the wills.[17]
[16]Ackerley v Felton (n 6); Fielder v Burgess (n 6); Jageurs v Downing (n 6); Re Kelsall (n 6).
[17]Banks v Goodfellow (n 9).
The plaintiff’s affidavit and her written submissions are unclear as to the date on which the plaintiff says the deceased signed or adopted the unsigned document. Based on the plaintiff’s evidence it appears the most likely relevant period is between 3 April 2018 when the deceased gave instructions and sometime before 28 April 2018 when the plaintiff filed the unsigned document in a folder of the deceased’s personal papers.
The deceased had, thirteen days prior to giving instructions, undergone surgery, and suffered blood loss while undergoing another surgery for a tumour in his spine a few days later. He was only well enough to leave the hospital on or around 25 April 2018. Even in the absence of direct medical evidence, it is likely that the deceased’s cognitive functioning and physical health were negatively impacted by such events and that he was likely taking medication to prevent pain and infection.
It is of concern that the will does not record whether the drafting solicitor was satisfied that the deceased had testamentary capacity, or turned his mind to the issue, despite knowing the deceased was in the hospital.
The plaintiff’s statement that ‘given the move back home, signing the Powers of Attorney, giving instructions for the 2018 Will to be drawn and the circumstances of his ill health, I can understand how [the deceased] came to mistakenly believe that he had executed the 2018 Will’ casts doubt on the deceased’s testamentary capacity and the certainty of his intentions.
This is due to the fact that a power of attorney document and a will address different subject matters – namely, a power of attorney document confers a power on a person to manage the deceased’s affairs during his lifetime, whereas a will governs the disposition and management of the deceased’s estate upon his death – and instructions for each were given separately.
Finally, there is no medical evidence which positively establishes the deceased’s testamentary capacity. The medical report of Dr Fiona Chow dated 2 April 2020 indicated that Dr Chow had ‘no concern… that [the deceased] was not competent to make decisions for himself with regard to consent for surgery [and]… there was no indication he was of unsound mind.’
Dr Chow’s opinion centred on the deceased’s capacity to make medical decisions, rather than form testamentary intentions, and she does not mention the relevant Banks v Goodfellow[18] test of testamentary capacity in her assessment or if she assessed the deceased’s capacity by applying that test.
[18]Ibid.
The question of the deceased’s testamentary capacity at the time of giving instructions for the unsigned document on 3 April 2018 or at any later date, casts doubt on whether the deceased could have intended the unsigned document to be his will.
Whether the handwritten note was intended by the deceased to be his codicil
The deceased’s lack of adherence to the usual formalities of the will making process is an indication that the deceased did not intend the handwritten note to be his codicil or will. In particular, while the deceased treated the handwritten note with some formality, he failed to have it witnessed by anyone, such as the plaintiff or hospital staff.
On the evidence, the deceased ordinarily engaged his solicitors, Ken Smith & Associates, to draft legal documents, such as the 2007 will, the unsigned document and the power of attorney made 29 March 2018. The deceased had an opportunity to formalise the handwritten note during the telephone conversation in which he provided his solicitors with instructions for a new will on 3 April 2018, and failed to do so. Similarly, he did not avail himself of the opportunity to formalise the handwritten note in the intervening sixteen months between the time it was written and the date of his death on 18 July 2019.
Despite the handwritten note having been created prior to the deceased’s instructions to his solicitor to draw the unsigned document, the note of instruction from the deceased’s solicitors does not include any mention of the deceased’s wish to amend his testamentary dispositions by creating a right to reside or life interest in the ‘family home’ for the plaintiff. The instructions the deceased gave to his solicitor for the unsigned document are therefore inconsistent with the contents of the handwritten note.
Further, a point of contention between the parties is whether the deceased made statements to his family about the disposition contained in the handwritten note. The plaintiff alleges that the deceased made statements to the effect of what was recorded in the handwritten note in the presence of the plaintiff, defendant and Joanne at the hospital on 25 March 2018. However, the defendant deposes that he did not attend such a meeting and was not aware of the existence of the handwritten note until after the deceased’s death. No affidavit from Joanne, or further evidence, has been filed corroborating the plaintiff’s version of events.
The plaintiff has also not led any evidence on whether the deceased treated the handwritten note as an important document, such as by storing it in safekeeping with his solicitor, or keeping it with his other important documents. The mere fact that the deceased kept the note is not of itself probative of an intention by the deceased to adopt the handwritten document,[19] particularly where he later gave contradictory instructions to his solicitors.
[19]Jabado v Da Prato [2016] WASC 98, [66] (Tottle J).
It is not clear that the deceased intended the handwritten note to take effect as his will or codicil. The plaintiff has therefore failed to establish that the handwritten note was intended to by the deceased to be his will or codicil.
Testamentary capacity: handwritten note
The plaintiff has not filed any medical evidence that supports a finding of testamentary capacity at the time the deceased wrote the handwritten document, as opposed to capacity to make medical decisions some days prior, or demonstrates that the deceased was assessed for testamentary capacity in accordance with the principles of Banks v Goodfellow.[20]
[20]Banks v Goodfellow (n 9).
The deceased wrote the handwritten note five days after his surgery on 20 March 2018, and a day before his surgery on 26 March 2018 for the removal of a tumour on his L5 vertebra. At the time of writing the note, the deceased would have either been in hospital, or in rehabilitation due to suffering from the tumour for the preceding month, as he was taken to the hospital on 26 February 2018.
The plaintiff’s evidence that the deceased came to mistakenly believe that he had executed the unsigned document, partly due to the circumstances of his ill health, as mentioned above, likely supports an inference that the deceased was confused during his period of hospitalisation.
The plaintiff has therefore not discharged the onus of proving that the deceased had the testamentary capacity to form the intention that the handwritten document was to be his will or codicil.
Informal application for probate
The plaintiff’s informal application for probate of the handwritten note (as a codicil) means it has not been the subject of the usual affidavit accompanying an application for a grant of probate or an advertisement. However, this is of little consequence, in light of the conclusions above, as the application suffers from more serious deficiencies.
The application for a grant of probate in respect of the handwritten note, if it can be said that such an application has indeed been made, is brought in the context of it being a codicil to the unsigned document. In circumstances where the Court is not prepared to grant probate of the unsigned document, the underlying factual precondition of probate being granted in respect of the handwritten note no longer exists. Further, in circumstances where a grant of probate will not be made in respect of the unsigned document, there cannot be application for the handwritten note to be admitted in its own right, as the handwritten note is clearly expressed as being an addition to a will, rather than a will in and of itself.
The Court is also not able to consider if the handwritten note may be a codicil to the 2007 will as no application for a grant of probate of the 2007 will has been advertised or filed. It is a matter for the parties in any future application for a grant of probate of the 2007 will as to whether the handwritten note may properly be considered a codicil to the 2007 will.
Orders
The Court orders that:
(a) The proceeding be dismissed.
(b) The plaintiff pay her own costs without recourse to the estate of the deceased.
(c) The defendant’s costs be retained and paid from the estate of the deceased on an indemnity basis.
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