Re Williams
[2018] VSC 543
•21 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2017 21314
IN THE MATTER of the Will and Estate of LLOYD GEORGE WILLIAMS, deceased
| LLOYD GEORGE WILLIAMS | Plaintiff |
---
JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 March 2018, 25 May 2018, written submissions dated 26 March 2018 and 21 June 2018 |
DATE OF JUDGMENT: | 21 September 2018 |
CASE MAY BE CITED AS: | Re Williams |
MEDIUM NEUTRAL CITATION: | [2018] VSC 543 |
---
WILLS — Application for grant of administration on intestacy — Whether testator’s will as altered by handwritten alterations revokes will — Whether testator intended handwritten alterations to revoke his will — Where handwritten alterations to deceased’s will clear in meaning and form contain no language of revocation — Wills Act 1997, s 12
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A P Dickenson | Nevett Wilkinson Frawley |
HER HONOUR:
Introduction
Lloyd George Williams (‘the deceased’) died on 20 May 2016, aged 62 years. The deceased left a formal will dated 17 May 1990 that was subsequently altered by handwritten alterations made by him.
The deceased was survived by three of his four children, namely, Joanna Williams, Liana Williams and the plaintiff. His fourth child predeceased him, having died on 23 November 2013. She was survived by her child, Shania Robson, born on 29 April 2008. The child lives with the deceased’s former wife, Elizabeth Charleson, who is her legal guardian.
The deceased and Ms Charleson divorced in July 1999, the decree nisi being made absolute on 8 July 1999.
Ms Kaye Moore claims to have been in a domestic relationship with the deceased prior to his death. On 4 August 2016, she foreshadowed an application for family provision from the estate of the deceased, pursuant to Part IV of the Administration and Probate Act 1958.
The deceased’s estate is valued at $824,706.77 with assets of $1,598,290.35 and liabilities of $773,583.58.
The deceased’s will
Clause 2 of the deceased’s formal will appoints his then wife, Ms Charleson, as the executor and trustee of his estate and leaves his estate to her. Clause 3 of the will provides that in the event that Ms Charleson does not survive the deceased by 30 days, the deceased’s cousin, William Dunn, is appointed as the executor of the estate and the residue of the estate is to be divided between his surviving children, the plaintiff, Joanna Williams and Liana Williams, in equal shares.
After his divorce, the deceased made a number of handwritten alterations to his will on an unknown date as follows:
(a) in clause 2:
(i) the words ‘SHOULD my Wife ELIZABETH LOUISE WILLIAMS survive me by thirty clear’ were crossed out and next to those words was written ‘“Divorced” Remove her’ and the signature of the deceased;
(ii) the words ‘her Executrix’ were crossed out and above these words was written ‘my son Lloyd George Williams III as Executrix’;
(iii) the words ‘said Wife for her personal use and benefit’ were crossed out and next to these words was written ‘No more My now ex wife E L Williams is to Get Nothing!’ and the signature of the deceased;
(iv)following the words ‘AND I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal to my’ was written the words ‘Son III Lloyd George Williams’ and the signature of the deceased; and
(b) in clause 6 the word ‘Wife’ was crossed out and the words ‘Son III’ written above thereby substituting the plaintiff in place of Ms Charleson as the guardian of any of his infant children at the time of his death.
The handwritten alterations are in a lighter ink compared with the signatures on formal will executed by the deceased and the two witnesses. There is no dispute that the handwritten alterations to the will were made by the deceased and were made after his divorce from Ms Charleson. There is also no dispute that the handwritten alterations do not comply with the requirements of s 7 of the Wills Act 1997 (‘the Act’) as they were not made in the presence of two witnesses.
The first probate proceeding
On 29 July 2016, in proceeding S PRB 2016 12370 (‘the first probate proceeding’),
the plaintiff, as the executor appointed by the deceased’s will as altered by the handwritten alterations, filed an originating motion seeking a grant of probate of the will dated 17 May 1990, without any reference to the handwritten alterations.
By letter dated 1 August 2016 to the plaintiff’s solicitors, the Deputy Registrar of Probates raised the following requisitions:
It is apparent that the Will has been altered since it was originally executed on 17 May 1990 and that these alterations have not been executed in conformity with section 7 of the Wills Act 1997.
The Court however, is empowered pursuant to section 9 of the Wills Act 1997 to admit such alterations to Probate if it is satisfied that the deceased intended those alterations to be testamentary.
Rule 2.09 of the Supreme Court (Administration and Probate) Rules 2014 enables the Registrar to exercise the powers of the Court under section 9 if satisfied by affidavit that – all persons who would be affected by a decision under section 9 consent to those powers being exercised by the Registrar. File the appropriate consent of the plaintiff, the other surviving children of the deceased, the children of Jasmine Williams if any, and William Dunn.
The applicant should file affidavits in support stating the acts, facts, matters and circumstances as relied upon to establish that the deceased intended the document so altered, to be his Will. See Rule 2.08 of the Supreme Court (Administration and Probate) Rules 2014.
By letter dated 18 August 2016 to the Deputy Registrar, the plaintiff’s solicitors acknowledged that the formal will had been altered since it was originally executed and that the alterations seemed to indicate that the plaintiff be appointed executor of the estate and receive the whole of the estate. The solicitors informed the Deputy Registrar that the executor instructed that the estate is to be divided into four portions for the three surviving children of the deceased and the daughter of the deceased’s child who predeceased him, as the executor believed this was what the testator intended given that clause 3 of the will had not been altered in any way. They also advised that William Dunn resided in aged care, suffering from Parkinson’s disease and sought direction as the Court’s requirements for Mr Dunn’s consent.
By letter dated 22 August 2016, the Registrar of Probates referred to the letter dated 18 August 2016 and raised the following requisition:
In the absence of all relevant consents this matter can only be dealt with by a Judge of the Court. Either arrange the consents as requested by requisitions of 1 August or file a “Notice to Produce” to enable the proceeding to be referred to the Probate List.
The plaintiff filed a notice to produce the file to the Judge in charge of the Trusts, Equity and Probate List on 9 December 2016. The day before the hearing, the plaintiff filed a summons seeking to prove the will, as altered, in solemn form, notwithstanding that no advertisement had been made for such a grant. In addition, the plaintiff added three defendants to these filed documents, Joanna Williams, Liana Williams and Ms Moore without explanation or leave being granted to do so.
By affidavit filed 8 December 2016, the plaintiff deposed as follows:
(a) he sought leave to prove the informal will in solemn form and for an order pursuant to s 9 of the Wills Act 1997 for probate of that will;
(b) the instituted executor, William Dunn, suffered from advanced Parkinson’s disease and resided in an aged care facility;
(c) notwithstanding the will as altered by the handwritten alterations left the whole estate to him, subject to the foreshadowed claim for provision by Ms Moore, he intended to administer the estate equally between the deceased’s three children and the deceased’s grandchild, subject to the approval of the Court.
In addition to the plaintiff’s affidavit, his solicitor also filed an affidavit on 8 December 2016 deposing that the plaintiff had entered into a contract dated 21 October 2016 for the sale of the deceased’s property in Roxburgh Park, subject to the plaintiff obtaining a grant of probate within six months of the sale. Notwithstanding that the plaintiff’s affidavit set out the assets and liabilities of the estate, the plaintiff failed to mention the sale of this property.
On 9 December 2016, counsel for the plaintiff made an oral application for a limited grant ad colligendum bona with substantially unlimited powers to enable the whole of the estate to be administered, save for final distribution of the estate.
No explanation was given for the application being made orally or in the probate proceeding, rather than by application in a separate proceeding. With the substantive and procedural irregularities in the applications and the requisitions from the Registrar, the proceeding was adjourned for the plaintiff to consider what he was seeking in the proceeding. Subsequently, in April 2017 the plaintiff filed a notice of discontinuance stating that he ‘abandoned’ the first probate proceeding.
Deed of agreement
Almost a year after the first proceeding was adjourned, a deed of agreement dated 7 November 2017 was executed by the plaintiff, Joanna Williams, Liana Williams, Ms Charleson (expressed in the heading of the deed to be in her capacity as guardian and litigation guardian of Shania Robson) and Ms Moore.
The deed was subject to the approval of the Court and provided that:
(a) the plaintiff would make an application for letters of administration on intestacy;
(b) Ms Charleson would arrange for the transfer of various properties to the estate, as was required by a Family Court order in the deceased’s favour of 7 March 2000;
(c) Ms Moore would assume payment of a debt to the ANZ bank that had previously been held jointly by her and the deceased;
(d) the plaintiff would sell all of the assets of the estate and pay all remaining liabilities; and
(e) the residue of the estate would be distributed equally between the plaintiff, Joanna Williams, Liana Williams, Ms Charleson (for and on behalf of Shania Robson) and Ms Moore.
Ms Charleson signed the deed of agreement without any reference to the capacity in which she signed, save for the reference in the heading to the deed. Shania Robson is not a party to any proceeding and it is incorrect to refer to Ms Charleson as her litigation guardian.
The second probate application
After the execution of the deed of agreement, on 18 December 2017 the plaintiff filed an originating motion seeking a grant of letters of administration upon intestacy and for an order that the application be referred to the Registrar of Probates and for the Registrar to make the grant (‘the second probate application’).
By letter dated 23 January 2018, the Registrar of Probates raised the following requisition:
If the alterations to the will cannot be proved pursuant to s 9 of the Wills Act 1997, the will remains valid as it was originally executed. The appointment of [Ms Charleson] as the instituted executor is revoked pursuant to s 14(1) of the Wills Act 1997. Upon medical evidence on oath being produced as to the incapacity of William Dunn to act as substituted executor, an application for letters of administration with the will annexed should be made by one or more of the residuary beneficiaries.
This application [for letters of administration on intestacy] is refused.
The plaintiff filed a notice to produce the file to the Judge in charge of the Trusts, Probate and Equity List returnable on 23 March 2018 for the purpose of seeking the grant of letters of administration upon intestacy. On the basis of the affidavit in support of the application and the first probate proceeding, the Court required the plaintiff to file written submissions, which were forwarded to the Court on 26 March 2018, for the purpose of determining the proceeding on the papers.
On 25 May 2018, the proceeding was re-listed. The plaintiff was informed there was no basis for a grant of letters of administration on intestacy as the handwritten alterations did not revoke the deceased’s will and the application should be dismissed. However, if the plaintiff wished to proceed with the application, it would be listed for trial. The plaintiff informed the Court he would consider his position. Subsequently, the plaintiff sought a determination of his application for letters of administration on intestacy on the papers and filed further short submissions on 21 June 2018.
Orders sought by the plaintiff
In his written submissions, the plaintiff considered that the following orders were the appropriate orders to be made:
(a) a direction to the Registrar of Probates to make a grant of letters of administration on intestacy to the plaintiff; and
(b) subject to a grant of letters of administration on intestacy, approval of the deed of agreement as it represents a just outcome ‘for the parties’, alternatively, directions as to ‘what further steps and material the Court requires and, from what parties, regarding the application for approval’.
In respect of the first order, as the Registrar has refused the application for letters of administration on intestacy, the issue of the grant falls to be determined by the Court.
In respect of the second order, the plaintiff correctly states that approval is subject to a grant of representation, which in this proceeding is for grant of letters of administration on intestacy. However, there is an issue as to whether the deceased died intestate, or whether there is a valid formal will or valid informal will. Under the deceased’s will without the handwritten alterations, the estate is left to the deceased’s surviving children; under the informal will, the estate is left to the plaintiff; and on an intestacy, the residue passes to the three surviving children and the deceased’s grandchild. These scenarios are also subject to the foreshadowed proceeding by Ms Moore for provision from the estate.
The plaintiff submits that approval of the deed of agreement would remove the need for Ms Moore to make an application for family provision. This is not correct. Ms Moore’s foreshadowed claim for provision from the estate can only be made after a grant of representation has been made. Any compromise of that claim is made in the family provision proceeding and requires Court approval to be legally effective.
The plaintiff also submits that the approval of the deed provides an opportunity to give effect to what the plaintiff deposes as being the deceased’s stated wishes, namely that his estate be distributed fairly amongst his surviving children. In contrast to the plaintiff’s now stated position, he also deposes that the deceased told him on many occasions after his divorce that he changed his will and would leave everything to the plaintiff. Where the question of the validity of the will remains outstanding, the identity of the beneficiaries of the estate remains to be established.
Applications for approval are made after a grant of representation has been made by the Court and are supported by evidence, including a confidential advice.
An application for approval of a compromise for a minor is made in a separate proceeding, with the minor represented by a litigation guardian, pursuant to O 15 of the Supreme Court (General Civil Procedure) Rules 2015.
In respect of the alternative order sought in relation to the approval of the deed of agreement, there is no basis for the Court to give directions as to ‘what further steps and material the Court requires and, from what parties, regarding the application for approval’.
Issue to be determined
The only issue to be determined is whether a grant of letters of administration on intestacy should be made by the Court. This issue depends on whether the will is revoked by the handwritten alterations made by the deceased.
The plaintiff submitted that by making the handwritten alterations to the will, the deceased intended to and in fact revoked his will with the effect that the deceased died intestate. He submits that the handwritten alterations fall within the scope of s 12(2)(g) of the Act in that the handwritten alterations show the deceased felt that his formal will no longer recorded his testamentary wishes.
Effect of the deceased’s divorce on the will with the handwritten alterations
Before considering whether the handwritten alterations fall within the scope of s 12(2)(g) of the Act, it is necessary to consider the effect of the divorce in July 1999 of the deceased and Ms Charleson.
Pursuant to s 14(1) of the Act, a will or certain provisions in the will, are revoked with the divorce of a testator. Pursuant to ss 14(1)(a) and (c) of the Act, the divorce of the testator revokes the disposition of the estate to Ms Charleson and her appointment as the executor of the estate.
If the remaining handwritten alterations appointing the plaintiff as executor of the estate and leaving the whole of the estate to him had not been made, (‘the remaining handwritten alterations’) Ms Charleson would have been taken to have predeceased the deceased with the result that clause 3 of the will becomes operative, pursuant to s 14(2) of the Act. Clause 3 leaves the residue of the estate to the deceased’s surviving children, the plaintiff, Joanna Williams and Liana Williams.
Do the remaining handwritten alterations fall within s 12(2)(g) of the Act?
Pursuant to s 12 of the Act, which is subject to effect of marriage and divorce as set out in ss 13 and 14 of the Act and any order by the Court authorising the revocation of a will and any order by the Court dispensing with the formal requirements for revoking a will, the will in whole or part may not be revoked except:
(da) by a later will; or
(e)by some writing declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act; or
(f)by the testator, or some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it; or
(g)by the testator, or by some person in his or her presence and at his or her direction, writing on the will or dealing with the will in such a manner that the Court is satisfied, from the state of the will, that the testator intended to revoke it.
There is no later will under s 12(2)(da), nor has there been a formal act of revocation under s 12(2)(e) or destruction under s 12(2)(f) of the Act. The only relevant exception is that contained in s 12(2)(g) of the Act. Pursuant to this exception, the Court must be satisfied from the state of the will that there has been a revocation. The phrase ‘from the state of the will’ requires that the intention to revoke the will must be evident from the face of the document. It is not open to the Court to consider extrinsic evidence as to the testator’s intention.[1]
[1]Aoun v Clark [2000] NSWSC 274 (27 March 2000) [17].
The plaintiff’s submission that the deceased felt that his ‘formal’ will no longer recorded his testamentary wishes has substance in that the formal will was signed by the deceased on 17 May 1990 and has been altered by the handwritten alterations.
The handwritten alterations establish that the deceased made a conscious and definitive decision to alter the substantive terms of his will after his divorce by the appointment of the plaintiff as the executor and beneficiary of his estate. The handwritten alteration to clause 6 of the will substituting the plaintiff in place of Ms Charleson as the guardian of any of his infant children at the time of his death adds weight to the deceased’s intentions to alter his formal will.
The handwritten alterations made by the deceased to the formal will establish that he intended to revoke the appointment of Ms Charleson as the executor and remove her as the beneficiary of his estate and, that in her place of her, he intended that the plaintiff be his executor and the beneficiary of his estate. Although the revocation of the appointment of Ms Charleson as executor and beneficiary in writing was unnecessary due to s 14 of the Act, the handwritten alterations on the face of the will establish that the deceased was unaware of the effect of divorce on his testamentary document.
The deceased’s testamentary wishes after his divorce are also clear from the state of the will. The handwritten alterations establish that he intended the plaintiff to be his executor and the beneficiary of the estate. These handwritten alterations contain no language of revocation on the face of the document and the meaning of the handwritten alterations is clear and not obscured by their form. The fact that the deceased subsequently told the plaintiff that he would leave everything to the plaintiff is not relevant for the test of revocation under s 12(2)(g) of the Act but is confirmatory of the deceased’s intentions he did not intend to revoke his will by making the handwritten alterations.
Plaintiff’s alternative submission
The plaintiff submitted, in the alternative, that if the formal will was not revoked by the handwritten alterations, it is open to the Court to admit the will with the handwritten alterations to probate, pursuant to s 9(1)(b) of the Act. The plaintiff does not press his alternative submission strongly on the basis that the handwritten alterations could be in the nature of instructions that the deceased intended to give to his solicitors for a new will. He submitted that the fact the deceased had previously made a will that complied with the statutory formalities, but made the handwritten alterations that did not comply with those formalities, supports this proposition, citing the case of Fast v Rockman.[2]
[2][2013] VSC 18 (7 February 2013).
It is unnecessary to consider the plaintiff’s alternative submission as the application before the Court does not seek a grant of probate of the informal will.
Orders
The Court orders that the plaintiff’s application for a grant of letters of administration on intestacy be dismissed.