Re Wallace
[2024] VSC 22
•9 February 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2022 12987
IN THE MATTER of the Will and Estate of MICHELLE ANN WALLACE, deceased
APPLICATION BY:
| ROBERT FRANCIS CLEMENTS and SCOTT CAMERON WILKINSON and CHRISTOPHER MARK JOHNSON | Plaintiffs |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 9 February 2024 |
CASE MAY BE CITED AS: | Re Wallace |
MEDIUM NEUTRAL CITATION: | [2024] VSC 22 |
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WILLS AND ESTATES – Application to admit informal will to probate – Whether deceased had testamentary capacity – Whether deceased intended informal will to be her will – Application granted – Wills Act 1997, ss 7 and 9 – Banks v Goodfellow (1870) LR 5 QB 549; Re Kairouz [2023] VSC 168.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ursula Stanisich | Gigliotti Lawyers |
HIS HONOUR:
Michelle Wallace died on 18 January 2022 at the age of 50 following a sudden stroke.[1] She left a document dated 22 March 2019 which she had signed and which was described as ‘Joint Wills for Michelle Ann Wallace and David Raymond Wallace’ (the 2019 document). David Wallace is the deceased’s husband.
[1]The cause of death recorded on the deceased’s death certificate was an ‘intracranial haemorrhagic transformation of left middle cerebral artery stroke 2 Days’.
The 2019 document purports to appoint Scott Wilkinson (the deceased’s brother), Christopher Johnson[2] and Robert Clements[3] as executors. They are the plaintiffs in this proceeding.
[2]Referred to as ‘Chris Johnson’ in the 2019 document.
[3]Referred to as ‘Rob Clements’ in the 2019 document.
On 4 July 2022, the plaintiffs filed an originating motion for a grant of probate of the 2019 document.[4] However, because the 2019 document does not comply with the formal requirements for the execution of a will as it was not made or acknowledged by the deceased in the presence of two or more witnesses as required by s 7(1)(c) of the Wills Act 1997 (the Act), they seek an order pursuant to s 9 of the Act dispensing with the formal requirements for the execution of a will to admit the 2019 document to probate.
[4]The inventory of assets and liabilities filed with the application records the gross value of the estate to be $3,609,462.31.
In support of the application, the plaintiffs relied upon affidavits of David Wallace filed 4 July 2022 and 15 November 2023, an affidavit of Dr Kachig Malyan filed 5 August 2022, and an affidavit executed by each of the plaintiffs filed 4 July 2022.
In early December 2022, after this proceeding was commenced, Mr Wallace located a document on the deceased’s computer entitled ‘Last Will and Testament of Michelle Ann Wallace’. The document was comprised of seven pages containing testamentary provisions, followed by one page of ‘instructions for executing your last will and testament’. Mr Wallace has deposed as to the circumstances in which he discovered the document. The plaintiffs do not seek to have this document admitted to probate.
As the plaintiffs submitted, there is no evidence that the deceased intended the document located by Mr Wallace in early December 2022 to have effect as a will. It is undated, was not signed by the deceased, was not witnessed, and contains incomplete testamentary dispositions. It appears to be in template or draft form. The discovery of the document therefore does not bear upon my task in considering the plaintiffs’ application for a grant of probate in respect of the 2019 document.
Factual background
The deceased was married twice, first in 1996, before marrying Mr Wallace in 2011.
At the time of her death, the deceased worked as an office manager in an electrical business which she operated jointly with Mr Wallace.
In addition to Mr Wallace, the deceased was survived by her two adult children from her first marriage, Shaylynn Farrall and Tynan Farrall (the children), and her two minor stepchildren (being Mr Wallace’s children), Hayden Wallace and Luke Wallace (the stepchildren).
The 2019 document
The 2019 document was not made with the assistance of a legal practitioner. It is drawn as a joint will between the deceased and Mr Wallace, therefore including assets which do not form part of the deceased’s estate.
The 2019 document includes a purported appointment of the plaintiffs as executors by reference to their names in a column to the right of the word ‘EXEX’. The document uses initials and abbreviations throughout and purports to include various gifts, distributions from the estate and the establishment of testamentary trusts. The plaintiffs have provided a detailed summary of the 2019 document with commentary as to the meaning of the initials and abbreviations used therein.
In addition, the first page of the 2019 document has been altered by way of a single line drawn across half of the page, with the words ‘superseded 24/1/2022’ written underneath the line. Mr Wallace deposed that, six days after the deceased’s death, on 24 January 2022, he made this alteration and wrote out a further document which he intended to be his own will. Mr Wallace did not realise that he should not have written on the 2019 document, but did so after the deceased’s funeral when he was ‘not in a good headspace or thinking clearly’.
I accept Mr Wallace’s evidence regarding this post-death amendment he made to the 2019 document and will disregard same for the purpose of considering the plaintiffs’ application.
In general terms, it appears that the 2019 document, when confined to the assets of the deceased, gives the whole of the net estate to Mr Wallace, subject to the payment of school and medical expenses of the stepchildren until they attain the age of 18 and jewellery to Shaylynn Farrall. It is not, however, necessary at this juncture for me to reach a conclusion about these matters, and the Court will not make any determination as to the construction of the will in this proceeding. By way of proposed orders dated 30 November 2023 provided to the Court by the plaintiffs, the plaintiffs have undertaken to apply for orders as to the construction and/or rectification of the 2019 document within 60 days of the making of a grant of probate of the 2019 document as an informal will. Any potential questions of construction in relation to the 2019 document that may arise at a later date do not bear upon the Court’s present task, acting in its probate jurisdiction, to determine the validity of the 2019 document as an informal will.
Mr Wallace and the children have each provided their consent to the plaintiffs’ application for a grant of probate of the 2019 document. The only persons affected by the plaintiffs’ application who are unable to consent are the stepchildren, as they are minors. The only provision to the stepchildren (subject to any potential construction application) appears to be the payment of school and medical expenses until they attain the age of 18.
The beneficiaries under an intestacy are Mr Wallace and the children.
Legal principles
It is uncontroversial that the 2019 document does not comply with the requirements of s 7(1)(c) of the Act. The matter for determination is whether the 2019 document should be admitted to probate as a will of the deceased pursuant to s 9 of the Act.
I recently summarised the legal principles relevant to admitting an informal will to probate in Re Kairouz which, for convenience, I restate below:[5]
[5][2023] VSC 168, [10]–[12] (citations omitted) (‘Re Kairouz’).
Section 9 is a remedial provision which enables the Court to dispense with the formal requirements for the execution of a will when admitting a will to probate. It relevantly provides as follows:
9 When may the Court dispense with requirements for execution or revocation?
(1) The Supreme Court may admit to probate as the will of a deceased person—
(a)a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b)a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act—
if the Court is satisfied that that person intended the document to be his or her will.
(2) The Supreme Court may refuse to admit a will to probate which the testator has purported to revoke by some writing, where the writing has not been executed in the manner in which a will is required to be executed by this Act, if the Court is satisfied that the testator intended to revoke the will by that writing.
(3) In making a decision under subsection (1) or (2) the Court may have regard to—
(a) any evidence relating to the manner in which the document was executed; and
(b) any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
(4) This section applies to a document whether it came into existence within or outside the State.
…
(6)In this section document has the same meaning as in the Interpretation of Legislation Act 1984.
In Estate of Brock, Hollingworth J described the remedial nature of s 9 as follows:
Section 9 is remedial in nature, meaning that it provides a means by which the court can give effect to the testator's true testamentary intentions, despite the fact that a will has not been validly executed. Where legislation is remedial, it should be given a broad as opposed to a narrow construction, one which will serve to achieve the broad objects and purposes which parliament had in mind. Here, parliament's clear intention was to avoid failure of the testamentary purpose caused by non-compliance with the formalities due to ignorance or inadvertence.
Notwithstanding the remedial nature of the section, care must nevertheless be taken to ensure that the statutory formalities enshrined in the Act are not unduly relegated in importance.
It is well established that there are three requirements for an informal will to be admitted to probate under s 9 of the Wills Act 1997:
(a) there must be a ‘document’;
(b)the document must express or record the testamentary intentions of the deceased; and
(c)the document must have been intended by the deceased to be their will.
The propounder of an informal will must establish these elements on the balance of probabilities, with the evidence to be evaluated in accordance with the Briginshaw principles reflected in s 140 of the Evidence Act 2008.
The 2019 document satisfies the first two of the above requirements in s 9 of the Act: it is a document (being comprised of three pages of handwritten information signed at the bottom of each page by the deceased and Mr Wallace), and it records the deceased’s testamentary intentions, as is evident from its description as a ‘will’, its identification of executors, and the inclusion of dispositive clauses.
The remaining issue is therefore whether the deceased intended the 2019 document to be her will. In Re Kairouz, I summarised the principles relevant to establishing the intention of the deceased, and the related issue of testamentary capacity, as follows:[6]
[6]Ibid [14]–[17] (citations omitted).
… The principles relevant to this issue were summarised by McMillan J in Re White; Montgomery & Anor v Taylor as follows:
The third requirement is that the deceased intended “that particular document to be his or her final will and did not want to make changes to it”. As stated by Whelan J (as his Honour then was) in Equity Trustees Ltd v Levin, “it cannot be a document intended as a personal memorandum or a note of intended instructions, it cannot be a draft or a ‘trial run’”. The relevant intention must be possessed “either, at the time of the subject document being brought into being, or, at some later time”.
Satisfying the third requirement depends upon the facts and circumstances of each case. The Court may consider evidence regarding the making of the will, as well as direct evidence of testamentary intent. Ultimately, the 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;
that, while each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the 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.
A relevant consideration under the third requirement is the deceased’s testamentary capacity. Where a deceased lacked the capacity to make a will, then the Court cannot be satisfied that he or she intended the document to be his or her will. In the context of an informal will, the usual presumptions as to testamentary capacity do not apply. While the Court considers the evidence as a whole, the onus of proving testamentary capacity rests upon the party seeking to propound the informal will.
As McMillan J noted, an informal will does not benefit from the same rebuttable presumptions which apply to duly executed wills. Accordingly, the plaintiff, as the propounder of the informal will, also bears the onus of satisfying the Court on the balance of probabilities that the deceased had testamentary capacity and knew and approved of the contents of the informal will.
In order to establish a testator’s testamentary capacity, the principles in Banks v Goodfellow require the propounder of a will to show that the testator:
(a) understood the nature and effect of making their will;
(b) was aware of the general nature and value of their estate;
(c) was aware of those with a natural claim on their estate; and
(d) was able to evaluate and discriminate between such claims.
As explained by McMillan J in Re Martin, determining whether a deceased person knew and approved of the contents of an informal will:
… 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. The sufficiency of evidence will depend upon the circumstances of each case. While evidence that the document was read by the deceased is relevant, and should be given due weight, it will not be conclusive. 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.
The deceased’s testamentary capacity
In support of their submission that the deceased had testamentary capacity when she signed the 2019 document, the plaintiffs relied on an affidavit by the deceased’s medical practitioner, Dr Malyan, who treated the deceased between 2016–2020 (including the period when the deceased executed the 2019 document).
Dr Malyan deposed to her opinion that the deceased had testamentary capacity at the time of executing the 2019 document. There is no evidence that the deceased’s testamentary capacity was impaired or affected by the cause of her death, which was a sudden stroke. Dr Malyan referred to the deceased’s condition as ‘purely a physical one which would have had no bearing on her capacity to execute a will’.
Mr Wallace also deposed to his understanding that, prior to her death, the deceased had no known health issues, including any cognitive impairment.
The 2019 document appears rational on its face and also appears intended to benefit those with whom the deceased was close. There is no evidence which suggests the deceased lacked testamentary capacity at the time she signed the 2019 document.
I am satisfied that the deceased had testamentary capacity when she executed the 2019 document.
Whether the deceased intended that the 2019 document be her will
For the reasons that follow, I am satisfied that the deceased intended the 2019 document to be her final will.
The document is described as being ‘Joint Wills for Michelle Ann Wallace & David Raymond Wallace’ and is complete in its terms, notwithstanding the use of abbreviations and initials. The deceased’s signature, which appears on the three pages of the 2019 document which each contain dispositive terms, demonstrates an intention that the document be binding and have testamentary effect.
My conclusion is further supported by a consideration of the circumstances surrounding the making of the 2019 document established on the evidence of Mr Wallace and the plaintiffs:
(a) On the day that the deceased and Mr Wallace prepared the 2019 document they were travelling to Fiji for a wedding. The couple realised that there was some ‘immediate risk in travel’ and, as they did not have time to see a solicitor before travelling, decided it was best to ‘make a homemade will’.
(b) The 2019 document was prepared at the deceased and Mr Wallace’s office before they left for the airport. The deceased commenced writing the 2019 document by completing the heading and including the years that the children and stepchildren would attain the age of 25. Mr Wallace then took over writing by transcribing what the deceased was saying, but after collaboration between the both of them.
(c) Both the deceased and Mr Wallace were present the whole time while the 2019 document was being written.
(d) Once the 2019 document had been prepared, the deceased read it, signed it and stamped it with one of her office stamps in the presence of Mr Wallace. Mr Wallace then signed the 2019 document in the deceased’s presence.
(e) Neither Mr Wallace nor the deceased turned their mind to obtaining any witnesses.
(f) After the 2019 document was prepared, it was stored in the ‘personal documents’ tray at Mr Wallace and the deceased’s office, where they ‘kept all [their] important documents’. It remained there until the deceased’s death.
(g) On route to the airport, the deceased called her brother, Mr Wilkinson, in Mr Wallace’s presence to inform him that they had ‘prepared a will’, that he was an executor and where the ‘will’ was stored. Mr Wallace then called Mr Clements and had a similar discussion with him.
(h) Approximately two months after the deceased and Mr Wallace returned from Fiji, they advised Mr Johnson that he was appointed as an executor and told him where the 2019 document was stored.
(i) Sometime after executing the 2019 document, the deceased and Mr Wallace discussed having wills prepared by a solicitor but never ‘got around’ to doing so. When discussing this, they referred to the 2019 document as their ‘will’.
The failure of the deceased to obtain the signatures of two attesting witnesses is what necessitated this application. I accept Mr Wallace’s evidence that neither he nor the deceased turned their mind to obtaining witnesses and that the failure to do so was inadvertent or accidental.
In these circumstances – where the 2019 document was created shortly before the deceased was to depart on an overseas trip and without consulting with a solicitor, where each of the executors were informed of their appointment at the time the document was executed or shortly thereafter, and where the document was kept in a secure location until the deceased’s death – I accept that the deceased intended the 2019 document to take effect as a will, notwithstanding its lack of compliance with the formal requirements of s 7(1)(c) of the Act.
I am therefore satisfied that the deceased knew and approved of the contents of the 2019 document and that she intended it to be her will.
Disposition
It follows that the 2019 document is to be regarded as an informal will, and a grant of probate should be made to the plaintiffs. The Court will so order.
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