Re the Estate Of Allan John Young - [2015] WASC 409

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE THE ESTATE OF ALLAN JOHN YOUNG ; EX PARTE YOUNG [2015] WASC 409

CORAM: TOTTLE J

HEARD: 29 SEPTEMBER 2015

DELIVERED : 3 NOVEMBER 2015

FILE NO/S: PRO 595 of 2015

MATTER :IN THE MATTER of the Estate of Allan John Young late of Kitore Stud, 230 River Road, Hopeland, Western Australia, deceased

EX PARTE
ROBERT GEORGE YOUNG
KEITH EDWARD YOUNG
Appellants

Catchwords:

Wills - Probate - Application for grant of probate of informal will - Appeal against requisition to provide further evidence and submissions in support of application - Non-contentious Probate Rules 1967 (WA), r 5 - Appeal to be heard de novo - Informal will embodied deceased's testamentary intentions

Legislation:

Non-contentious Probate Rules 1967 (WA), r 5
Wills Act 1970 9WA), s 32(2)

Result:

Extension of time within which to bring appeal granted
Appeal allowed
Probate to be granted in respect of informal will

Category: B

Representation:

Counsel:

Appellants: Mr A P Hershowitz

Solicitors:

Appellants: Norton & Smailes

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

Davis v Davis [2014] WASC 395
Deeks, Mitchell v Mitchell [2010] WASC 174
Hatsatouris v Hatsatouris [2001] NSWCA 408
James David Deeks as Executor appointed in the Will v Alexander Howard Greenwood by his guardian ad litem Andrew Greenwood [2011] WASC 359
Re Estate of John William Henry Nicholls (dec) [2003] WASC 85
Rhiannon Mae Thomson as Executrix of the Estate of Aaron James Harding Thomson v Rhiannon Mae Thomson as sole beneficiary of the Will of Aaron James Harding Thomson (deceased) [2012] WASC 429

TOTTLE J: By notice of appeal filed on 30 June 2015 the appellants appeal against 'the decision/requirement of Registrar S Boyle dated 5 May 2015 read together with the decision/requirement of Registrar Dixon dated 12 February 2015' to the effect that the appellants provide further evidence and submissions in support of their application for a grant of probate of the informal will of Allan John Young (the deceased). The appellants are the brothers of the deceased.
The appeal is brought pursuant to rule 5 of the Non-contentious Probate Rules 1967 (WA).
In support of the appeal the appellants read and relied upon an affidavit sworn by Tanya Ann Lynch on 30 June 2015. Ms Lynch's affidavit attached all the materials, including affidavits, which had been before the learned Registrars, so that (helpfully) it was, in substance, an appeal book. The affidavits included an affidavit of scripts sworn by the appellants on 4 February 2015 which produced the informal will sought to be propounded.
The appellants also read and relied upon an affidavit sworn by Jacqueline Ann Hagan on 27 June 2015, which provided evidence about the deceased's intentions, additional to that placed before the learned Registrars. The appellants filed written submissions.
In short, the appellants provided me with the materials which Registrar S Boyle had sought by way of the requisition of 5 May 2015.

Factual findings

I make the following factual findings. In the course of doing so, and without intending any disrespect, I shall refer to the appellants and each of their family members by his or her given name.
The deceased was born on 25 October 1944 and died on 22 May 2014.
By occupation the deceased was a thoroughbred stud master. He lived in Hopeland, Western Australia. The deceased was not married and had no children. The deceased's father, John, predeceased him but his mother, Marianne, is alive and aged 92 years. The deceased had three siblings: Robert George Walter Young, Keith Edward Young and Meryl Joy Gould. Robert and Keith are the appellants.
On 26 March 1970 the deceased made a will. Under that will Perpetual Executors Trustees and Agency Company (WA) Ltd was appointed as executor and trustee. The deceased bequeathed all of his estate to his parents or the survivor of them. In the event that his parents predeceased him, he bequeathed his estate to such of Robert, Keith or Meryl who survived him and attained the age of 21 years.
For many years Mr Rodney David Ginbey was the deceased's accountant. Mr Ginbey provided accounting services to the deceased on a regular basis, he met the deceased on an average five times a year and prepared the BAS statements and tax returns for the deceased's business and assisted with the accounting requirements of the deceased's family trust and self‑managed superannuation fund.
In May 2011 the deceased spoke to Mr Ginbey about the preparation of a new will. The deceased told Mr Ginbey that his mother, Marianne, did not need nor want the deceased to pass his assets to her through his will. The deceased told Mr Ginbey that he wanted to pass his assets to his siblings and their children.
The deceased saw a solicitor in Hopeland with a view to arranging for a new will to be drafted. The deceased prepared a schedule setting out how he wished to dispose of his assets under his proposed new will. The deceased faxed a copy of the schedule to Mr Ginbey. The schedule recorded that the deceased wished to give a pecuniary legacy to Ms Karin Want, a work colleague, and that the balance of his estate should be divided into equal one-third shares. A one‑third share was to be divided between Meryl and her two daughters, Vanessa and Renee, with Meryl to receive 16.67% and each of Vanessa and Rene 8.33%. A one‑third share was to be given to Robert and his children, Jodi and Owen; 16.67% was to go to Robert and 8.33% to each of Jodi and Owen. The final one third share was to go to Keith.
The deceased discussed the advice that he had received from the local solicitor with Mr Ginbey. Mr Ginbey told him that, in his opinion, the advice that he had received was not adequate.
The deceased sought advice from another local solicitor and discussed that advice with Mr Ginbey. Once again Mr Ginbey suggested that the advice was inadequate and that the deceased needed to go to a firm that understood complex estate planning, including discretionary family trusts, testamentary trusts and superannuation funds.
The deceased took no further steps to prepare a new will until June 2013, when he discussed the question of preparing the new will again with Mr Ginbey. The deceased obtained a copy of the 1970 will from Perpetual Trustees.
On 4 July 2013 the deceased faxed to Mr Ginbey an updated schedule setting out how he wished his estate to be distributed. The dispositions were identical to those set out in the May 2011 schedule, save that the amount of the pecuniary legacy to be given to Ms Want was varied.
In November 2013 the deceased contacted Mr Ginbey and asked him to recommend a solicitor to prepare a will for him. Mr Ginbey recommended the firm of Norton & Smailes, a firm with which Mr Ginbey had dealt in the past.
On 19 December 2013 Mr Ginbey sent a letter to Mr Christopher Smailes of Norton & Smailes on the deceased's behalf. The letter enclosed a pro forma Norton & Smailes questionnaire or information sheet, which had been completed by a member of Mr Ginbey's staff with information relevant to the deceased's assets and his testamentary instructions, and a document entitled 'Details for Will' in which the information which was contained in the deceased's fax to Mr Ginbey of 4 July 2013 was set out.
Between late December 2013 and mid‑February 2014 there were some communications between Mr Ginbey and the deceased and Mr Ginbey and Norton & Smailes concerning the scope of estate planning work that was to be undertaken by Norton & Smailes and that firm's fees. It is not necessary to refer to that correspondence in any detail. It is sufficient to say that the deceased wished to reduce the legal costs by reducing the scope of work to be undertaken by Norton & Smailes.
When the cost issues were resolved, Mr Smailes delegated the task of preparing a will for the deceased to Mr Timothy Poli, a solicitor employed by the firm Norton & Smailes.
Before drafting the deceased's will, Mr Poli discussed a tax issue with Mr Ginbey. He then drafted a number of documents including a will.
On 12 May 2014 Mr Poli spoke to the deceased over the telephone and discussed with him the draft documents that he had prepared and the tax issue that he had previously discussed with Mr Ginbey.
During the course of this telephone conversation the deceased told Mr Poli that:
(a)he wanted his brothers Robert and Keith to be his executors, acting jointly;
(b)he wanted Meryl to be the substitute executor if either or both Robert and Keith could not act;
(c)he wanted gifts to each beneficiary as set out in the instruction sheet and Details for Will;
(d)he wanted the gifts to be in a separate testamentary trust for each beneficiary except for the gift to Ms Want; and
(e)he wanted a letter of wishes for the Allan Young Family Trust directing the trustees to wind up the trust and to distribute the surplus assets to his estate for distribution to the testamentary trusts established in his will to his beneficiaries.
Mr Poli and the deceased also discussed the possibility that the deceased's mother might challenge his will if none of his estate was left to her. The deceased said to Mr Poli words to the effect that he had discussed this with his mother and that she wanted nothing from his estate and that she did not need anything. Mr Poli said that he would send the deceased a letter of advice, the draft will and the other documents to him by post and that he would send a copy to Mr Ginbey by email. The deceased said that is what he wanted.
On 13 May 2014 Mr Poli sent a letter of advice to the deceased which attached the draft will. A copy was emailed to Mr Ginbey at his email address.
Shortly after 13 May 2014 the deceased telephoned Mr Ginbey to discuss the letter that he had received from Mr Poli and the draft will. At the time of that telephone call Mr Ginbey had not seen or read the documents that he had received by email from Norton & Smailes.
Subsequently, between 13 and 19 May 2014, the deceased called Mr Ginbey again to discuss the Norton & Smailes' documents. By the time this conversation took place, Mr Ginbey had read through the documents. The deceased said to Mr Ginbey words to the effect of, 'I have read the documents and I am happy with it as long as you are'. Mr Ginbey does not recall exactly what he said in response, but he said something to the effect that he had read the will and that there were no problems with it. He also said that he and the deceased could meet soon to go through it. Mr Ginbey deposed, however, that he was happy with the documents. Mr Ginbey arranged to meet the deceased on 20 May 2014.
Unfortunately, the deceased was taken ill on 20 May 2014. He called Mr Ginbey and told him that he had a terrible pain which was causing him to feel nauseous and that he was afraid that he might pass out if he attempted to drive to Mr Ginbey's office in Subiaco and back to his home. The meeting was postponed. Mr Ginbey deposed that the purpose of the meeting was to see whether there were any queries worth raising with Norton & Smailes relating to the documents or the procedures which would need to be followed when the documents were in force. Mr Ginbey deposed, however, that he was satisfied that the documents met the deceased's requirements.
Ms Jacqueline Hagan and her husband Greg were the deceased's neighbours.
Ms Hagan generally spoke to the deceased on a daily basis as she purchased a newspaper for him each day which he collected from the Hagans' home. Ms Hagan was aware that the deceased had a new will prepared on his behalf because she had heard the deceased discussing it with her husband Greg. She said that she had heard the deceased tell her husband that he had been 'haggling about the cost' of the will. Ms Hagan deposed that:
I can say with absolute certainty that Allan would have signed the new Will but for his unexpected death. I know that because he told me so in a conversation on Wednesday 21 May 2014, being the day before he died.
Ms Hagan explained that on that day the deceased had come to the Hagans' house about mid‑morning to collect his paper. Ms Hagan asked the deceased how he was because she knew that he had been ill. The deceased told Ms Hagan that he had an appointment with his doctor the next day to undergo some tests and that, whilst he was in Perth, he would go and sign his will. The deceased said that he had decided to sign his will even though he was not happy about the price. Ms Hagan recalls that the deceased said something like, 'I suppose I'm going to sign this will. I'm not happy about the price, but I will get it finished'. Ms Hagan, who had known the deceased for many years, interpreted the deceased's reference to the price as a grumble, but she was convinced that the deceased intended to go and sign the will.

Procedural history

By motion issued on 5 February 2015 Mr Smailes moved the court that probate of the informal will of the deceased be granted to Robert and Keith. The motion was supported by a number of affidavits, including the affidavit of scripts which produced the informal will and the 1970 will, and also a statement of assets and liabilities. The gross value of the deceased's estate was $1,761,662.
On 12 February 2015, Registrar Dixon sent a number of requisitions to the applicants' solicitors including a requisition in the following terms:
Aside altogether from the matters in requisitions 1 ‑ 3, there is a more fundamental issue as to whether 'the deceased, by some words or act, demonstrated an intention that, without more, the documents should have effect as his or her will' ‑ Oreski v Ikac [2008] WASCA 220 at [55] per Newnes JA. On one view the evidence in this matter at best shows that the deceased was happy with the will as drafted and that the next step would have been to have it engrossed for signing by him. What evidence is there that the deceased intended the draft to have effect as his will? You may like to consider this aspect of the matter before dealing with requisitions 1 - 3 (unless the response to requisition 3 assists with this requisition).
In response to Registrar Dixon's requisition, the appellants provided further affidavit evidence and a consent from their mother, Marianne, to the grant of probate to the informal will. Marianne is the person who would receive the deceased's estate if probate was granted in respect of the 1970 will.
On 5 May 2015, Registrar Boyle issued the following requisition:
You are required to provide evidence or make submissions on the law which support the contention that this document was intended to be the deceased's will as required by the Registrar in item 4.
There was no response to this requisition.
The notice of appeal was filed on 30 June 2015.
Rule 5 of the Non‑contentious Probate Rules is in the following terms:
5.Appeal from the Registrar
(1)A person aggrieved by an order, decision or requirement of the Registrar may appeal therefrom to a Judge in Chambers.
(2)An appeal shall be by notice in writing to attend before the Judge and shall be filed in the Registry within 5 days after the order, decision or requirement complained of, or within such further time as may be allowed by a Judge or the Registrar.
(3)A notice of appeal shall be served on every person, other than the appellant, who appeared or was represented before the Registrar.
(4)Where a notice of appeal is required to be served, there shall be at least 2 clear days between service of the notice and the day of the hearing.
In Re Estate of John William Henry Nicholls (dec) [2003] WASC 85 Barker J held that an appeal to a judge under r 5 of the Non‑contentious Probate Rules should be treated as an appeal de novo so that it is open to a judge on the hearing of such an appeal to hear the matter afresh. In Davis v Davis [2014] WASC 395 Jenkins J followed the approach adopted by Barker J in Re Estate of John William Henry Nicholls (dec).
Accordingly, I will treat this appeal as a hearing de novo and will consider afresh all of the matters relevant to the decision that has to be made.
Rule 5(2) of the Non‑Contentious Probate Rules provides that an appeal must be brought within five days. Thus an extension of time within which to bring the appeal is required. In Ms Lynch's affidavit she explains that the delay in commencing the appeal was due to the need to obtain instructions, obtain counsel's advice and obtain further evidence. Having regard to that explanation, I am satisfied that there should be an extension of time within which to bring the appeal.

Relevant legal principles

A document purporting to embody the testamentary intentions of a deceased person can constitute a will even though it has not been executed in the manner required, if the court is satisfied that the deceased intended the document to constitute his or her last will: s 32(2) Wills Act 1970 (WA) (the Act).
When it is sought to propound a document that has not been executed in accordance with the terms of the Act, three factual questions arise:
(a)Was there a document?
(b)Did the document purport to embody the testamentary wishes of the deceased?
(c)Did the evidence satisfy the court that, either at the time the document was brought into being or at some later time, the deceased by some words or act, demonstrated without more on his or her part, operate as his or her will?
See Hatsatouris v Hatsatouris [2001] NSWCA 408 [56] (Powell JA, Priestley & Stein JJA agreeing); Oreski v Ikac [2008] WASCA 220.
It is not sufficient that the document embodies the deceased's testamentary intentions. The document must be intended to be the legally operative act which disposes of the deceased's property upon his or her death; that is, it must have been intended by the deceased to have present operation as his or her will: see the observations of Newnes AJA, as his Honour then was, in Oreski at [54].
Courts will not grant probate in respect of documents which contain only preliminary, tentative or incomplete expressions of the author's testamentary intentions or where the document or other evidence demonstrates that it has been prepared for consideration, further thought or deliberation and possible revision: see EM Heenan J's observations in James DavidDeeks as Executor appointed in the Will v Alexander Howard Greenwood by his guardian ad litem Andrew Greenwood [2011] WASC 359 [69].
In this respect, particular consideration needs to be given to cases in which a will is prepared by solicitors and sent to the testator as a draft for consideration in circumstances that imply that the document may be for consideration, further thought or revision and falls short of expressing the final settled intention of the deceased: see Deeks [73].
The fact that a will has been prepared by a solicitor in terms that clearly contemplate execution in accordance with the requirements of s 8 of the Act does not necessarily mean that the document is incapable of being accepted as an informal will if it otherwise embodies the settled testamentary intentions of the deceased: see Deeks, Mitchell v Mitchell [2010] WASC 174 and Rhiannon Mae Thomson as Executrix of the Estate of Aaron James Harding Thomson v Rhiannon Mae Thomson as sole beneficiary of the Will of Aaron James Harding Thomson (deceased) [2012] WASC 429.

Disposition

I am satisfied that, although it was not executed, the will prepared by Norton & Smailes and sent to the deceased under cover of Norton & Smailes' letter of 13 May 2014 embodied the deceased's testamentary intentions. This is the informal will attached to the affidavit of scripts to which I have referred earlier. I am also satisfied that the deceased intended to execute the will prepared by Norton & Smailes and would have done so but for his supervening ill health and untimely death. I am satisfied that by the morning of 21 May 2014 at the latest the deceased intended that the document operate as his will.

My reasons are as follows:
1.The deceased had settled upon his testamentary intentions in 2011. These were expressed in the schedule faxed by the deceased to Mr Ginbey in May 2011. The only change between the May 2011 schedule and the schedule faxed by the deceased to Mr Ginbey on 4 July 2013 was to the pecuniary legacy to Ms Want. There was no change in the deceased's intentions after July 2013. The July 2013 schedule formed the basis of the instructions given by Mr Ginbey on the deceased's behalf to Norton & Smailes. Those instructions were reflected in the will prepared by Norton & Smailes.
2.Mr Poli confirmed the deceased's instructions with him in the course of the telephone conversation on 12 May 2014. The draft will prepared by Mr Poli conformed with those instructions.
3.In the course of his conversation with Mr Ginbey in the days between 13 and 19 May 2014, the deceased declared himself happy with the draft will so long as Mr Ginbey was. Mr Ginbey was happy with the will.
4.Mr Ginbey's evidence to the effect that he had arranged a meeting with the deceased to review the documents prepared by Mr Poli might suggest that the terms of the will were still subject to review and consideration. Norton & Smailes' letter of 13 May 2014, however, provided advice in relation to the will and in relation to the deceased's discretionary family trust, his superannuation fund and an enduring power of attorney. In short, there were matters other than the will to be discussed and thus the fact that a meeting was arranged does not imply that the deceased's testamentary intentions were not embodied in the draft will prepared by Norton & Smailes or that the deceased harboured any reservations about executing the will.
5.Moreover, and importantly, in his conversation with Ms Hagan on 21 May 2014 the deceased was unequivocal about his intentions to sign the will. The deceased did not refer to having a meeting with Mr Ginbey before signing the will. His remarks to Ms Hagan and, in particular, his words, '…I will get it finished' reflect a settled intention to sign the document.
6.I am confident that the contents of the informal will reflected the deceased's settled testamentary intentions and that he intended the document to operate as his will. But for the sudden worsening of his health that led to his demise, I am satisfied that the deceased would have executed the document prepared by Norton & Smailes.
I allow the appeal. The appellants are entitled to a grant of probate of the informal will of the deceased and I will hear counsel in relation to the terms of the orders.