Re Webster
[2019] VSC 28
•4 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2017 21165
IN THE MATTER of the will and estate of VICKI EVELYN WEBSTER (in the Will called VICKY EVELYN WEBSTER), deceased
| JODI CARROLYN AYRES and RHIANNON TENEAL LAMBDEN | Plaintiffs |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 4 February 2019 |
CASE MAY BE CITED AS: | Re Webster |
MEDIUM NEUTRAL CITATION: | [2019] VSC 28 |
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WILLS − Informal wills − Whether deceased intended informal document to be her will − Where all sui juris beneficiaries consent to application − Where original of informal will unable to be located − Wills Act 1997, s 7, s 9.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Binnie & Associates Lawyers |
HER HONOUR:
Introduction
Vicki Evelyn Webster died on 22 February 2017. The deceased left a copy of an informal document dated 30 January 2017. The informal document is a handwritten document, on an A4 sheet of lined paper. It is described as the deceased’s last will and testament and expresses the deceased’s testamentary intentions. It appoints the plaintiffs as executors, lists the deceased’s family members and under each name sets out either monetary amounts, real property or specific personal items.
The informal document was signed by the deceased and witnessed by her friend, Jane Drimal-Hales. Section 7(1)(c) of the Wills Act 1997 (‘the Act’) requires that a valid will must be signed by the testator in the presence of two or more witnesses. Pursuant to s 9 of the Act, the Court may admit a will to probate that has not been executed in conformity with s 7 of the Act if the Court is satisfied that the person intended the document to be his or her will.
The deceased’s estate comprises two real properties and some personal estate. Liabilities consist of a mortgage loan to the Bendigo Bank. The net value of the estate is $331,628.51.
Plaintiff’s application
By originating motion filed 14 December 2017, the plaintiffs seeks a grant of probate of the will dated 30 January 2017.
On 15 December 2017, the Registrar of Probates raised, inter alia, certain requisitions in respect of the application as follows:
It is apparent that the will propounded for Probate has not been executed in conformity with Section 7 of the Wills Act1997 and is accordingly invalid. The Court, however, is empowered pursuant to section 9 of the Act to admit such a document to Probate if it is satisfied that the deceased intended the document to be their [sic] last will.
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The residuary clause in the informal will is likely, although not certain, to be constructed as a delegation of testamentary power and therefore invalid. If this is the case, any residuary estate would be distributed according to Part 1, Division 6 of the Administration and Probate Act 1958. Accordingly, please file affidavits indicating the persons so entitled to share.
Pursuant to s 9(5) of the Act, and r 2.09 of the Supreme Court (Administration and Probate) Rules 2014, the Registrar of Probates may exercise the powers of the Court under s 9 if all persons who would be affected consent, or, if consent is not given, the value of the estate is less than $150,000.
On 18 May 2018, as the consent of all those affected was not forthcoming, the plaintiffs filed a notice to produce to bring the proceeding before a Judge of the Court.
On 27 July 2018, the Court was informed by the plaintiff that all sui juris persons affected by a grant of probate of the informal document now consented to the Registrar of Probates considering the application. Written consents signed by those persons were provided to the Court.
The informal document provides, inter alia, a gift of $5,000 to each of the deceased’s grandchildren. Subsequently, the Court was informed that the grandchildren are minors. As such, they are not capable of providing their consent. As the value of the estate is over $150,000, the Registrar of Probates does not have power pursuant to r 2.09 of the Supreme Court (Administration and Probate) Rules 2014 to determine the application.
The plaintiffs, and the sui juris persons affected by the decision of whether the informal document should be admitted to probate, have no objections to the application being determined on the papers.
Applicable principles
In order to admit an informal will to probate under s 9 of the Act, the Court must be satisfied that the following criteria have been established, on the balance of probabilities:
(a) there must be a ‘document’;
(b) the document must express or record the testamentary intentions of the deceased; and
(c) that document must have been intended by the deceased to be his or her will.[1]
[1]Fast v Rockman [2013] VSC 18 (7 February 2013) [46]; Rowe v Storer [2013] VSC 385 (2 August 2013) [32]. See also, Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [56] (Powell JA, Priestley and Stein JJA agreeing); Oreski v Ikac [2008] WASCA 220 (31 October 2008) [52]–[53] (Newnes AJA, Martin CJ and McLure JA agreeing); Re Trethewey (2002) 4 VR 406, 408 (Beach J); Equity Trustees v Levin [2004] VSC 203 (26 May 2004) [15]; Prucha v Standing [2011] VSC 90 (22 March 2011) [6]; In the Will and Estate of Bateman [2011] VSC 277 (24 June 2011) [42].
The informal document meets the first two requirements under s 9 of the Act. In respect of the third requirement, the intention of the deceased is a matter of fact and each case depends on its own facts and circumstances.[2] The fact that a deceased has read and signed a document is not determinative of the issue.[3] An application under s 9 of the Act is assessed by reference to the requisite document, with the inquiry directed towards whether the deceased intended the document to have effect as a testamentary document. The Court may receive direct evidence of statements made by a testator and what the testator said and did and may also receive evidence surrounding the making of the will.[4] To determine, on the balance of probabilities, if the deceased intended the document to be her will it is necessary to examine the facts and circumstances leading up to and surrounding the creation and execution of the document. Ordinarily the time for assessing a testator’s intention is the time of making the will, although statements and acts made after the date of the document may be taken into account to show the necessary intention.[5]
[2]Estate of Brock [2007] VSC 415 (24 October 2007) [23].
[3]Fast v Rockman [2013] VSC 18 (7 February 2013) [66].
[4]See, eg, Fast v Rockman [2013] VSC 18 (7 February 2013), Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001).
[5]See generally In the Estate of Kelly, deceased (1983) 32 SASR 413, 417–18; Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449, 451 (Kirby P), 454–5 (Mahoney JA), 466–8 (Priestley JA); McCann v McCann [2013] NSWSC 78 (30 January 2013).
A will that has not been validly executed but satisfies the requirements of s 9 of the Act could still in theory be refused probate where the testator lacked testamentary capacity or did not know and approve of the will. If the deceased lacked the capacity to make a will, or did not know and approve of the document, then the Court could not be satisfied that the deceased intended the document to be his or her will.[6]
[6]Re Stuckey [2014] VSC 221 (23 May 2014) [40]–[41].
To establish testamentary capacity, the Court must be satisfied that the testator understood the effect of making a will; was aware of the general nature and value of their estate; was aware of those who would have a natural claim to their estate; and was able to evaluate and discriminate between such claims[7]. A person who has capacity to make a will must also know and approve the contents of the will. In the ordinary case, proof of due execution and capacity is prima facie evidence of knowledge and approval. 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. The presumption also does not arise where there are suspicious circumstances surrounding the making or execution of the will.[8]
[7]Banks v Goodfellow (1870) LR 5 QB 549; Bailey v Bailey (1924) 34 CLR 558, 566–7.
[8]Barry v Butlin (1938) 2 Moo 480; 12 ER 1089; Nock v Austin (1918) 25 CLR 519, 528; Fulton v Andrew [1874] All ER 1240.
For these reasons, issues related to the capacity of the deceased and knowledge and approval of the deceased are relevant factors in considering whether the informal will satisfies s 9 of the Act.
The evidence
The deceased was survived by her husband and four adult children from two previous relationships. In December 2016, the deceased separated from her husband. The separation was acrimonious and resulted in the deceased taking out an intervention order against him. The plaintiffs depose that after the intervention order was made, the deceased changed her bank account pin numbers and informed Centrelink of the separation. At the date of her death, the deceased was in the process of seeking legal advice to commence divorce proceedings against her husband.
The deceased’s friend, Ms Drimal-Hales deposes that she visited the deceased in January 2017, which was a few weeks after the deceased’s separation from her husband. During this visit, Ms Drimal-Hales and the deceased decided they should make new wills. Ms Drimal-Hales deposes that the deceased told her she wanted to make a will so that her husband ‘did not get any of her property or the farm’. The deceased discussed with Ms Drimal-Hales how she wanted to distribute her estate. Ms Drimal-Hales wrote the deceased’s distributions of her estate on a piece of paper and the deceased then signed the document and Ms Drimal-Hales witnessed her signature. After witnessing the document, Ms Drimal-Hales made a photocopy of the document and the deceased retained the original. Ms Drimal-Hales deposes that:
I had no doubt that [the deceased] was serious about wanting to do a will as she was so upset with how things had turned out between [her husband] and her. [The deceased] seemed to me to be sober, was most definite about needing a fresh will drawn up and I have no doubt that she was thinking clearly when she signed the will as to what she wanted in her will.
The first plaintiff deposes that on 14 February 2018 she had a conversation with the deceased in which the deceased told her she had completed an up-to-date will. The second plaintiff, Rhiannon Teneal Lambden, deposes that on 20 February 2017 she had a conversation with the deceased concerning Ms Lambden’s real property. The deceased and her husband had loaned money to Ms Lambden to assist with the purchase of the real property. At the time of this conversation, the deceased advised Ms Lambden that she had ‘rehashed’ her will to deal with the loan. Given the dates of these conversations with the plaintiffs and the fact that the informal document specifically refers to the loan, on balance, the Court is satisfied that in these conversations the deceased was referring to the informal document signed 30 January 2017.
Subsequently the deceased told both plaintiffs in separate conversations that if anything should happen to her, they were to ‘get the filing cabinet and the camphor wood chest as, in her own words, ‘“everything you would need would be in there”’.
On 22 February 2017, the deceased died as a result of a car accident at 4.05 in the afternoon. By 10 pm that day, the first plaintiff, together with her husband and the second plaintiff’s husband, went to the deceased’s home where they discovered the house had been broken into and, amongst other matters, her filing cabinet had been forced open and ransacked. Despite thorough searches of the deceased’s home, the original informal document has never been located. It was only some weeks after the deceased’s death that Ms Drimal-Hayes called the first plaintiff as she had heard the original informal document had not been located. Ms Drimal-Hayes told the first plaintiff that she had kept a copy of the informal will.
The evidence of Ms Drimal-Hayes makes it clear that the deceased had testamentary capacity and knew and approved of the disposition of her estate. The structure of the will, as well as her discussions with Ms Drimal-Hayes, establishes that the deceased understood the effect of making a will, was aware of her assets and liabilities and who had a natural claim on her estate and she evaluated such claims. The first plaintiff deposes that she has no doubt that the signature on the document is the signature of the deceased and after her last conversation on 14 February 2017 about her will, the deceased did not say anything about destroying or changing her will.
Despite searches being made by the plaintiffs, the original informal document has not been located. Where a will or codicil is last traced into a testator’s possession and the original document cannot be found at the time of death after all reasonable searches and inquiries, the presumption arises that the testator has destroyed the document with the intention of revoking it, animo revocandi, unless there is sufficient evidence to rebut any presumption.[9] Before the presumption arises, the Court must be satisfied that the will was in the testator’s repositories or elsewhere. According to Ms Drimal-Hales, the deceased retained the original informal document. According to the plaintiffs, such a document would ordinarily be stored in the deceased’s filing cabinet where she kept most, if not all, her personal papers. The plaintiffs have not located the original document and it is probable that it was taken during the break-in of the deceased’s home on the day of her death. Given the plaintiffs’ explanation as to why the original of the document has not been found, the Court is satisfied that the presumption of revocation is rebutted and the deceased did not intend to revoke her will.
[9]Cahill v Rhodes [2002] NSWSC 561 (10 July 2002) [58], citing Whiteley v Clune (No 2) (Supreme Court of NSW, Powell J, 13 May 1993), 26–7 referring to, inter alia, Colvin v Fraser (1829) 2 Hagg 325 and Welsh v Phillips (1836) 1 Moo 299; ER 1157. See also Re Moschoudis [2016]VSC 139 (8 April 2016).
Conclusions
In considering the facts and circumstances leading up to the creation of the informal document, the circumstances surrounding its creation and execution, its contents and the conversations that the deceased subsequently had with the plaintiffs concerning making an up-to-date will and the deceased’s subsequent storage of the original document in a secure place, the Court is satisfied, on the balance of probabilities, that the deceased intended the informal document to be her will.
Other Matters
There are two further issues with the informal document to be mentioned for finality of all issues concerning the informal document.
The first is that the informal document does not contain a revocation clause. Where a will does not revoke previous testamentary documents, it may be necessary to read the will together with a testator’s previous will. The deceased’s penultimate will was executed on 24 November 2011. On 18 October 2013, the deceased married William Evans. Pursuant to s 13 of the Act, the marriage of the deceased revoked the penultimate will. Thus, had the informal document not been admitted to probate, the estate would fall to be distributed in accordance with the intestacy provisions in Part IA of the Administration and Probate Act 1958.
The second issue is that in the informal document, the deceased directs that the ‘remainder of my belongings is to be distributed at the discretion of my executors’. As highlighted by the requisitions from the Registrar of Probates, such a clause may be a delegation of testamentary power and is invalid for the purposes of distributing any residue of the deceased’s estate. The deceased’s estate comprised the two real properties and other minor assets. The informal will specifically devises the real properties and specifically bequeaths the other minor assets. Therefore, it is unlikely that there will be any residuary estate to be distributed, however, in the event that there is any residuary estate, it falls to be distributed in accordance with the intestacy provisions in Part IA of the Administration and Probate Act 1958.
Orders
The Court orders as follows:
(a) Pursuant to s 9(1)(a) of the Wills Act 1997, probate of the informal document dated 30 January 2017 (as contained in a copy) of Vicki Evelyn Webster (in the will called Vicky Evelyn Webster), which is exhibit ‘B’ to the affidavit of Jodi Carrolyn Ayres and Rhiannon Teneal Lambden sworn 29 November 2017, be granted to the plaintiffs Jodi Carrolyn Ayres (in the will called Jodi Carroln Ayres) of 1337 Benalla-Whitfield Road, Myrrhee, in the State of Victoria, Strapper and Rhiannon Teneal Lambden of 42 Holmes Road, Lake Rowan, in the State of Victoria, Home Duties, the executors named therein BUT LIMITED until the original will or a more authentic copy is filed in the proper office of the Court.
(b) The costs of the plaintiffs of and incidental to the proceeding be paid on the trustee basis, to be paid or retained out of the estate of the deceased.
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