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 (Dec)

[2012] WASC 429

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   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 (Dec) [2012] WASC 429

CORAM:   McKECHNIE J

HEARD:   24 OCTOBER 2012

DELIVERED          :   24 OCTOBER 2012

FILE NO/S:   CIV 3267 of 2011

MATTER                :The Will of AARON JAMES HARDING THOMSON late of 9 Tanzanite Road, Australind, in the State of Western Australia, Maintenance Fitter (Dec)

BETWEEN:   RHIANNON MAE THOMSON as Executrix of the Estate of AARON JAMES HARDING THOMSON

Plaintiff

AND

RHIANNON MAE THOMSON as sole beneficiary of the Will of AARON JAMES HARDING THOMSON (Dec)
First Defendant

PATRICK HARDING THOMSON an infant by his guardian ad litem RHIANNON MAE THOMSON
Second Defendant

Catchwords:

Wills - Draft Will not executed - Whether reflects testator's intentions - No new principles - Turns on own facts

Legislation:

Wills Act 1970 (WA), s 32

Result:

Declarations made

Category:    B

Representation:

Counsel:

Plaintiff:     Dr J J Hockley

First Defendant             :     Mr A J Prentice

Second Defendant         :     Mr H Y Chew

Solicitors:

Plaintiff:     Corser & Corser

First Defendant             :     Mossensons

Second Defendant         :     Success Legal

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

Mitchell v Mitchell [2010] WASC 174

Williams v Williams (1882) 20 ChD 659

McKECHNIE J: 

How the matter comes to court

1. Before he was married, Mr Aaron Thomson, then a marine technician in the Australian Navy, made a Will. 

2. That Will was revoked when he married Rhiannon on 6 November 2010. 

3. By late 2009 he was employed with Westrac as a service technician in the northern goldfields area of the State.  His soon to be wife, Rhiannon, obtained employment as a physiotherapist in Eaton and so the couple moved to Australind.

4. It was in about April 2010 that Aaron went to the doctor for a couple of minor complaints - a lump behind his right knee and he also had a crack in his right heel which was prone to intermittent bleeding.  Sadly, further investigation showed that the lump, which was removed in December 2010, was malignant, and the crack in his heel was the primary source of the cancer which took his life at the age of only 27, on 4 September 2011, only two days after his son Patrick was born.

5. Aaron and Rhiannon had given a solicitor instructions for Wills but Aaron died before he was able to complete the formalities.  So it is that Rhiannon comes to court for an order declaring that the draft Will be admitted to probate.  If she fails there will be an intestacy and the infant, Patrick, may stand to gain a different, perhaps larger, share of Aaron's estate. 

Preparations for a Will

1. Mr and Mrs Thomson discussed the need for a Will because of Aaron's serious medical issues and because Rhiannon was pregnant with Patrick.  They went to the office of Mr Ian Watson, the local solicitor, with whom they had made contact through the RSL Bunbury Branch.  Mr Watson subsequently sent an email asking certain questions which were discussed by the couple and a response given on 19 June 2011.  Mr Watson prepared Wills in accordance with their instructions.

2. Eventually, on 28 July 2011, Mr and Mrs Thomson received a copy of the letter to their parents written by Mr Watson, and a draft copy of a Will for each of them.  In the late afternoon of 30 July, the two of them sat in the lounge room of their home and read the Wills, their own and the other's.  They agreed with the contents, except that Aaron said he now wanted to be buried in a cemetery in Lameroo in South Australia rather than have his body cremated.  This was the only change.

3. There was a delay in executing the Wills and other documents because parental consent was needed for acceptance of an Enduring Power of Attorney and Enduring Power of Guardianship and Rhiannon's parents were then out of the country. 

4. On 29 August 2011, Mr Watson's secretary emailed the Thomsons, notifying them that they could now make an appointment to sign all the documents.  Rhiannon replied the following day:

   At the moment we are waiting the birth of our first baby so once this has all happened and we are back at home we will contact you to make an appointment.

5. For the reasons I have explained, this was never to be. 

Resolution of the issue

1. 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 under the Wills Act 1970 (WA) s 32(2). E M Heenan J has recently restated the principles in Mitchell v Mitchell [2010] WASC 174 [37].

2. Having regard to Rhiannon's evidence, confirmed today by her evidence in this court, detailing the circumstances of their life together, the conversations the couple had and the steps taken to complete a Will for Aaron, I am entirely satisfied that Aaron intended the draft to constitute the terms of his Will.  He had given instructions to his solicitor and after reading through the draft wished to make but one alteration.  The declaration of the disposal of the body does not materially affect the substance of the Will.  The direction is advisory only:  Williams v Williams (1882) 20 ChD 659. Had he lived, I am satisfied that Aaron would have executed a Will in all its material aspects identical to the informal Will submitted here for probate and marked Exhibit A. The draft Will is not executed in accordance with the Wills Act.  It is in fact not executed at all, but it is a document that I am satisfied embodies Aaron Thomson's testamentary intentions. 

3. Rhiannon has filed an affidavit of scripts.  I make the orders in accordance with the minute of proposed orders, changing the words 'pleaded at paragraph 2 of the Statement of Claim' to the words 'being exhibit A in the trial'.  Otherwise I make the orders as sought.