Smith v Pitcher - [2010] WASC 352

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: SMITH -v- PITCHER [2010] WASC 352

CORAM: MURRAY J

HEARD: 24 NOVEMBER 2010

DELIVERED : 24 NOVEMBER 2010

PUBLISHED : 29 NOVEMBER 2010

FILE NO/S: CIV 1304 of 2010

BETWEEN: EDWARD PATRICK SMITH
Plaintiff
AND
DARRYL GEORGE PITCHER
First Defendant
NICOLLE LOUISE KIRKWOOD
Second Defendant
THE STATE OF WESTERN AUSTRALIA
Third Defendant

Catchwords:

Wills - Lost will - Proof of unexecuted copy as will of deceased - Legal principles reviewed - Turns on own facts

Legislation:

Nil

Result:

Declaration made for validity of will executed on 23 July 1997
Grant of probate of will in solemn form

Category: B

Representation:

Counsel:

Plaintiff:     Mr D L Jones
First Defendant            :     No appearance
Second Defendant        :     In person
Third Defendant           :     Ms L A Eddy

Solicitors:

Plaintiff:     Alison & Associates
First Defendant            :     No appearance
Second Defendant        :     In person
Third Defendant           :     State Solicitor for Western Australia

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

Curley v Duff (1985) 2 NSWLR 716
In the Will of Patrick Murphy (1919) 19 SR (NSW) 357
McLaren v Norton [2006] WASC 305
Sugden v Lord St Lenards (1876) LR 1 PD 154
Whiteley v Clune (No 2); The Estate of Brett Whitely (1993) (Unreported, SCt of NSW, Library No 102594)
Worth v Clasohm (1952) 86 CLR 439

MURRAY J:

The proceedings

The action is by writ, claiming a declaration that a lost will, said to have been executed on 23 July 1997, is the last valid unrevoked will of the deceased, a Ms Estelle Verbeke, formerly of 15 Hassett Street, Cloverdale. The statement of claim would have the court pronounce for the force and validity of the will in solemn form, and a grant of probate to the plaintiff is sought, with the plaintiff's costs to be paid from the estate.
The second defendant, Ms Kirkwood, did not substantively defend the claim, but sought also to be granted probate of the will, together with the plaintiff, as a co‑executor of the estate of the deceased. Two other executors were named in the will: Mr Pitcher, the first defendant, and a Ms Crossley. Both have renounced a grant of probate of the will and neither took any part in the proceedings before me.
The third defendant did not deny the matters relied upon by the plaintiff in his statement of claim, but did not admit them. Its interest is that in the event that the deceased, Ms Verbeke, died without there being any person who might take under the Administration Act 1903 (WA) in the event of intestacy, the intestate property would pass to the State by way of escheat.
It is no part of these proceedings, but under the Escheat (Procedure) Act 1940 (WA), s 4, the State Solicitor may apply to this court for an order declaring that property has become the property of the Crown by way of escheat. If the court makes such a declaration under s 7 of that Act, the property may be dealt with by way of sale, the net proceeds being credited to the Consolidated Account: s 8.
The action was tried principally on affidavit evidence. No party sought to have any deponent produced to be cross‑examined upon their affidavit. In addition to affidavit evidence, I heard viva voce evidence from Mr Smith, the plaintiff, and a Ms Aldrich, the principal of Alison & Associates, the solicitors for the plaintiff.

The facts

I was able to make the following findings of fact. Ms Verbeke never married. She had worked as a social worker for much of her life. Mr Smith described her as an intelligent woman, very interested in all sorts of diverse matters and something of a philosopher. She lived alone at the Cloverdale address. She was born on 19 February 1926. She died on 29 September 2009. She was then aged 83 years.
Of course, her parents had long since passed away. She had no siblings and no children of her own. If her property did not pass by will, it is abundantly clear that there is no person who might take on intestacy, pursuant to the provisions of the Administration Act 1903 (WA), s 14.
Although Ms Verbeke was a solitary person, it should not be assumed that she was lonely or in any way lived a life of sad isolation. Mr Smith's evidence establishes that she had many friends, including people who were her neighbours, and people like Mr Smith and Ms Kirkwood, a veterinarian. She knew Ms Verbeke by reason of the fact that Ms Verbeke was a cat lover who owned cats, which Ms Kirkwood said she loved dearly, and who brought them to the veterinary hospital where Ms Kirkwood worked, for their care. The deceased asked Ms Kirkwood to be a co‑executor of her estate and Ms Kirkwood had agreed.
Ms Verbeke had been a social worker, but by the time of her death she had, I gather, been retired for many years. She had been a great reader who had accumulated a considerable library at her home. She was also a hoarder, particularly of documents. Of course, her home had been searched to some degree, for testamentary instruments, after Ms Verbeke's death.
A number of people interested in the outcome of the proceedings before me conducted such a search on the day before the matter was heard. Seven photographs of the interior of the house were tendered in evidence. They reveal an incredible collection of documents of all kinds piled haphazardly wherever there was a space throughout the house. A room at the rear of the house appears to have been used solely for storage of documents. Mr Smith said that it was impossible to get into the room. One would have to work one's way in, removing bundles of documents to do so.
The photographs support the view that the house must contain tens of thousands of documents, mostly collected in files, but also documents which simply appear to be discarded rubbish. I accept that it would take a considerable period, perhaps months, to complete a thorough search of the house.
Other inquiries for testamentary instruments did, however, bear fruit. A number were found.
The first such document, in chronological order, is an executed will dated 31 January 1979. It appoints a trust company as executor and trustee of the will. A tenth of her estate is left to the Cloverdale branch of a religious denomination with a gift over to an individual.
The second such testamentary instrument is an unexecuted copy of the will which is propounded by the plaintiff in this case. The evidence about the manner of its creation is given in an affidavit sworn by a Mr Cooper, who was formerly in practice as a solicitor. He says that he was consulted by the deceased who, in about June 1997, gave him instructions regarding the preparation of a will. He says that three drafts were prepared.
The penultimate draft, I am satisfied, was sent to Ms Verbeke. Mr Cooper produces a letter dated 20 June 1997 which, it is accepted, was written by Ms Verbeke to Mr Cooper, thanking him for sending her a draft of the will. She compliments him on his draftsmanship and refers to an appointment that she had to meet again with Mr Cooper on 24 June 1997.
Enclosed with the letter is a document which is in form a letter written and signed by Ms Verbeke, but dated 21 June 1997. It is a lengthy document and contains a detailed discussion of concerns about the principal clause expressing the way in which her estate was to be left; to find a suitable home or homes for her cats, and to apply income from the estate to their support for up to 20 years from the date of her death. Thereafter a residuary gift was made to her executors and trustees, of whom there were then four: Ms Crossley, Mr Pitcher, Ms Kirkwood and Mr Smith.
The letter gives detailed instructions as to how her estate was to be administered.
Not only did the letter attach the further document which Ms Verbeke described as 'notes', although it was itself in the form of a letter, but she also attached the substantive page of the draft will. Against cl 1 for the appointment of the executors, she has filled in the middle name of Ms Crossley which, it appears, Mr Cooper did not know and left blank. The name is 'Marianne'. Further, she has identified an error in the spelling of Ms Kirkwood's first name. In the draft the name is spelled 'Nicole'. The correct spelling noted in the margin, I am sure by Ms Verbeke, is, 'Nicolle'.
Mr Cooper does not provide evidence that the appointment for 24 June 1997 was kept. But he attaches the document which was the final draft of the will, which he says was prepared at Ms Verbeke's instructions. The will commences with the standard form of revocation of previous testamentary dispositions. Clause 1 appoints the four executors, correctly records Ms Crossley's name and corrects the spelling of Ms Kirkwood's name. Clause 4 became the substantive testamentary gift, commencing with detailed provision for such of Ms Verbeke's cats as might be living at the time of her death.
Paragraph 4(d) provides a residuary gift in the following terms:
After the death of all my said cats or after the expiration of the said period of twenty years whichever shall first happen to pay my residuary estate or such part thereof (if any) then remaining to a charity to be known as the ESTELLE VERBEKE FOUNDATION which I intend to establish in my lifetime for the purposes of preservation and protection of animals generally and in particular for the care and attention of animals whose owners have died provided if the said intended Foundation shall not be established in my lifetime then I direct my trustees to apply my residuary estate in such manner as they may think best for the welfare of animals generally and I declare that my trustees may if they think fit divide my residuary estate among any one or more societies established for animal welfare and that after such payment my trustees shall not be bound to see or enquire as to the application thereof and that the receipt of the Treasurer of any such society shall be a good discharge to my trustees.
The evidence is that the foundation of which the clause speaks was not established, and so the executors would have a discretionary power to apply the net estate for the welfare of animals generally.
Mr Cooper appears to have been in the process of changing the location of his office at the time. However, from the file records that he has available, he is able to say that he sent this final draft to Ms Verbeke on 14 July 1997for her approval. He produces a copy of a file note. It is dated 21 July 1997. It is headed, 'VERBEKE RE WILL', and it bears the initials 'MJ', no doubt an employee in Mr Cooper's office. The note reads:
Telephoned client and made an appointment for Wednesday at 1.00 pm for signing of Will.
Mr Cooper said that reference to contemporaneous notes he wrote shows that he spent between 1 pm and 2 pm in conference with the deceased. He believes this was on 23 July 1997. I have looked back at calendars to establish that 21 July 1997 was indeed a Monday, and 23 July 1997 was a Wednesday.
It is clear that Mr Cooper has no independent recollection of what occurred on 23 July 1997, beyond such contemporaneous documents as he has been able to discover, but he deposes that he is confident that he would have had Ms Verbeke go through the will in his presence (bearing in mind that it appears to reflect concerns raised by Ms Verbeke in her correspondence, which were no doubt discussed on 24 July) and he would have had Ms Verbeke execute the will, the witnesses being Mr Cooper and his secretary. He does recall that there could be no doubt that at that time Ms Verbeke possessed full testamentary capacity and that is not in issue. However, the original will, which I accept would have been validly executed, cannot now be found.
Two later testamentary instruments have been discovered by the plaintiff's solicitors. The first is a draft will which is unexecuted and bears the date '2008'. It is said to have been drawn by lawyers practising in Morley. The firm name is given as Lynn & Brown. A reference code refers to 'HB', no doubt Mr or Ms Brown, a lawyer of that firm. No evidence was given by any such person, nor by any other person from that firm. But the plaintiff's solicitors were provided with notes of instructions to prepare a will for Ms Verbeke, said to be under the hand of a solicitor, Mr Darryl Stewart, and dated 28 March 2008. The file note details the instructions Mr Stewart was apparently given. The draft does not appoint an executor and trustee. The relevant paragraph of the will simply provides:
I appoint [to be advised] as my executor and trustee.
The document is in substantially different terms from the 1997 will. It makes some specific gifts and then gives the residue of the estate to the Church of Jesus Christ of Latter‑day Saints, for which an address in New South Wales is given. The document is unexecuted, and indeed it is not in a form in which it was capable of execution.
Mr Smith said in evidence that Ms Verbeke at one time was keen to be a member of the Mormon religious order, but later, when he asked her about that, she said she had given up the idea because 'they were merely after my property'.
That that was her view, ultimately, is rather borne out by the content of the last testamentary instrument, a copy of which was produced in evidence. The document was drawn by the solicitors Alison & Associates, who are the solicitors for the plaintiff. Ms Aldrich, the principal of that firm, gave evidence. I accept the accuracy of her recollection. She said that she took instructions for a will from Ms Verbeke in June 2009. She proposed to leave her estate to a man she had met at church, but very soon she fell out with the proposed beneficiary. She told Ms Aldrich why that happened, and to hold her instructions in abeyance.
Ms Aldrich then discovered that Ms Verbeke was seriously ill in hospital. She gave instructions for a new will. A draft was prepared and it was taken to her. She instructed that changes should be made, and that was done, but when Ms Aldrich took the altered draft to Ms Verbeke in hospital, she did not want to execute it because she was not sure that she was happy that the document recorded her final wishes as to the disposition of her estate after her death. She wanted a week to think it over, but for one reason or another, as it turned out Ms Aldrich did not see Ms Verbeke again, and she heard that she had died. It will be recalled that the date of death was 29 September 2009.
The draft document (unexecuted) which was produced in evidence is dated 28 July 2009. I am satisfied that this is the document that embodies Ms Aldrich's last attempt to record in the form of a will, Ms Verbeke's testamentary intentions. I accept that the document was never executed. Ms Verbeke was not certain she wanted to proceed and she was gravely ill before her death. She suffered from ischaemic colitis.

Matters of law

This matter is not and could not be brought to the court by way of an application under s 32(2) of the Wills Act 1970 (WA), which provides:
A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes -
(a)a will of the person;
(b)an alteration to a will of the person;
(c)the revocation of a will of the person; or
(d)the revival of a will or part of a will of the person,
if the Supreme Court is satisfied that the person intended the document to constitute the person's will, an alteration to the person's will, the revocation of the person's will or the revival of a will or part of a will of the person, as the case may be.
By s 4 of the Wills Act, the word 'will':
includes a codicil or any testamentary instrument or disposition.
It is not that the document in the form of the unexecuted copy of the 1997 will may not itself constitute a will of the deceased, but the section does not apply because this court could not be and is not asked to be, satisfied that Ms Verbeke intended the available document to constitute her will. It has always been just a copy of the will, the original of which I have found was executed on 23 July 1997.
In my opinion, the court's jurisdiction to grant the relief sought by writ in this case arises at common law and under the provisions of the Administration Act. Section 6 of that Act provides that this court has jurisdiction to grant probate of the will of a deceased person leaving real or personal property in WA. The word 'will' is defined in s 3 of the Act, so far as material, as follows:
will extends to a testament, and to a codicil, … and also to a disposition by will and testament, … and to any other testamentary disposition.
The term therefore extends not only to the testamentary instrument itself, but to the disposition it makes which is of a testamentary character, ie, it is intended to take effect upon the death of the testator: In the Will of Patrick Murphy (1919) 19 SR (NSW) 357, and my judgment in McLaren v Norton [2006] WASC 305 [10] ‑ [13]. I may grant probate of the unexecuted copy of the will, the original of which was executed on 23 July 1997, because it is a testamentary disposition.
I am satisfied that the original cannot be found, and I am satisfied that the original was not revoked by the deceased. The 1997 will may be taken to be the last will of the deceased because neither of the two later documents were executed and I am satisfied that neither expressed Ms Verbeke's settled testamentary intention. Further, the 1997 will in terms revokes any previous will and therefore disposes of the 1979 will.
The plaintiff bears a legal onus to establish the validity of the document propounded as a will: Worth v Clasohm (1952) 86 CLR 439. I am satisfied that Ms Verbeke was of full testamentary capacity when she made the 1997 will - when she executed the original.
In Curley v Duff (1985) 2 NSWLR 716, 718 ‑ 719, Young J said:
As I understand it, five matters must be established when it is sought to have probate of a lost will. First, it must be established that there actually was a will. Secondly, it must be shown that that will revoked all previous wills. Thirdly, the presumption that when a will is not produced it has been destroyed must be overcome, fourthly, there must be evidence of its terms, and fifthly, evidence of due execution.
It will already be evident that in my view the evidence satisfies four of the five requirements. I have yet to deal with overcoming the presumption, which is a presumption of fact, that when a will is not produced it has been destroyed.
The evidentiary rules in relation to proving the terms and due execution of a lost will were laid down as long ago as the decision in Sugden v Lord St Lenards (1876) LR 1 PD 154. It was there made clear that the terms of a lost will may be proved by secondary evidence, including evidence of contemporaneous written and oral statements of a testator made at times relevant to the establishment of that person's testamentary intentions. Much of the evidence led in this case was of that character, and I have reviewed that evidence and made my findings of fact about it.
I have said that the starting point is the presumption of fact that when a will is not produced it is because it has been destroyed, because it no longer represented the testator's testamentary intentions. The existence of the presumption is reflected in s 51 of the Wills Act, which provides that the whole or any part of a will may be revoked only by a later will, by a form of writing declaring an intention to revoke the will, executed itself as a will, or:
by the testator, or some person in the testator's presence and by the testator's direction, burning, tearing or otherwise destroying it to give effect to the intention of the testator of revoking it.
The strength of the presumption that a lost will which was in the possession of a testator has been destroyed by that person with the intention of revoking it naturally depends on all the surrounding circumstances. Relevant matters are exemplified in a number of the decided cases. They were discussed by Powell J at [27] of his Honour's judgment in Whiteley v Clune (No 2); The Estate of Brett Whitely (1993) (Unreported, SCt of NSW, Library No 102594).

There, after discussing the cases, his Honour observed that where the will makes a careful and complete disposition of the testator's property and there is no other circumstance which points to the probability of its destruction by or at the direction of the testator with the intention of its revocation, the presumption is so slight that it may be said not to exist.
I am satisfied that the presumption of revocation has been rebutted by the evidence in this case. There is good evidence of the careful attention given by Ms Verbeke to the terms of the 1997 will. It was settled with her solicitor. She was satisfied with the manner of its expression, and she executed the document. I am certain that she would have understood that by that act, given the express revocation of former testamentary dispositions, the 1979 will would cease to have effect.
Ms Verbeke's activity in relation to the making of a fresh will in 2008, and in 2009 shortly before her death, would tend to militate against the discharge of the onus to rebut the presumption that the 1997 will was destroyed with the intention of its revocation. But Ms Verbeke was not a person who destroyed anything, and the evidence in respect of her consideration of matters of testamentary disposition, in 2008 and 2009, clearly establishes that she did not get to the point, in either case, of actually arriving at a settled intention and putting that intention into effect.
The evidence about 2008, including that given by Mr Smith, tends to suggest that while she had, at one time, an intention to dispose of her property for the benefit of a church, she soon abandoned that notion. Ms Aldrich's evidence makes it abundantly clear that she never arrived at a settled intention to change her will before her death in 2009.
For those reasons, at the conclusion of the hearing of this case I made the declarations for the validity of the 1997 will and ordered the grant of probate of the will to the plaintiff and the second defendant, the other two executors having renounced their entitlement in that regard.
As to costs, Ms Kirkwood, of course, has none which may be awarded and she made no application in respect of any disbursements. As to the third defendant, counsel informed me that it was most unlikely that the State would press for costs. In my opinion, that was a responsible concession which will assist to maximise the net value of the estate and its availability to provide for the charitable purpose intended by the deceased. I therefore ordered merely that the plaintiff should have his costs to be taxed and paid out of the estate.