Spencer v Spencer - [2009] WASC 198

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SPENCER -v- SPENCER [2009] WASC 198

CORAM: EM HEENAN J

HEARD: 25 JUNE 2009

DELIVERED : 25 JUNE 2009

PUBLISHED : 20 JULY 2009

FILE NO/S: CIV 1699 of 2009

MATTER :The estate of the late Maureen Spencer late of 8 Stewart Street, Broome, Western Australia (Dec)

BETWEEN: KELLY SPENCER
Plaintiff
AND
KELLY SPENCER
First Defendant
SCOTT WILLIAM SPENCER
Second Defendant
JEMMA LOUSE STANTON
TOBY SPENCER STANTON By their next friend KENNETH OSCAR THOMAS
Third Defendants
PHILLIP GREEN
Fourth Defendant

Catchwords:

Probate - Letters of administration - Informal wills - Informal alterations - Revocation of grant of letters of administration - Grant of letters of administration with informal will, as informally altered, annexed

Legislation:

Administration Act 1903 (WA)
Wills Act 1970 (WA)

Result:

Revocation of grant of letters of administration of 1 December 2008 and incidental orders
Order for grant of letters of administration with the informal will of the deceased on 29 March 2007 and informally altered by manuscript before late December 2008 to the plaintiff with declaration as to its proper construction
Other incidental orders

Category: B

Representation:

Counsel:

Plaintiff:     Dr P R MacMillan
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendants          :     No appearance
Fourth Defendant          :     No appearance

Solicitors:

Plaintiff:     Benjamin & De Lestang
First Defendant             :     Benjamin & De Lestang
Second Defendant         :     Benjamin & De Lestang
Third Defendants          :     Benjamin & De Lestang
Fourth Defendant          :     Benjamin & De Lestang

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

Barndon v Chelvanayagam [2006] WASC 118
Butler v Meriga [1904] QWN 71; [1904] St R Qd 248
Dalton v Dalton [2008] WASC 56
Dolan v Dolan[2007] WASC 249
Estate of Hines v Hines [1999] WASC 111
Hatsatouris v Hatsatouris [2001] NSWCA 408
In The Will Of Christian (1975) 25 FLR 89
Lewis v O'Loughlin [1971] 125 CLR 320
Oreski v Ikac [2007] WASC 195
Re Estate of Nicholls [2003] WASC 85
Re Harrison (1885) 30 Ch D 390
Re Proud (Dec) [1951] QWN 17
Re the Full Board of the Guardianship & Administration Board [2003] WASCA 268; (2003) 27 WAR 475
Re Ward (dec), Marsden v Ward (unreported, WASC, CIV 1860/97, Lib No 980180, 9 April 1998
Wheatley v Edgar [2003] WASC 118

EM HEENAN J: Maureen Spencer, late of 8 Stewart Street, Broome, in this State, died at St John of God Hospital, Murdoch on 29 September 2008. She was then aged 61 years, having been born on 20 May 1947. The cause of death as recorded in her death certificate was metastatic end stage breast cancer (nine months).
Mrs Spencer had been married on 19 June 1966 to Anthony Gerald Spencer, but that marriage was later dissolved. She was survived by her only two children, Kelly Spencer, born 29 April 1971 (the plaintiff and also the first defendant) and by Scott William Spencer, born on 16 October 1968 (the second defendant).
Mrs Spencer left an estate comprising assets in Western Australia to a gross value of $2,052,959.20 plus movable property located outside this State to the value of $2,686. Her estate has liabilities in the total amount of $1,143,207.77 consisting, to by far the greatest extent, of the liabilities under three separate mortgages on the three homes which she owned located, respectively, at 8 Stewart Street, Broome, 23 Orr Street, Broome and 18 Starling Street, Hamilton Hill. It follows that the estimated net value of the estate is $1,092,437.43.
Were she intestate to have died, the only persons entitled to apply for letters of administration of the estate of Mrs Spencer would have been her two children, Kelly Spencer and Scott William Spencer, and they would also have been the only persons entitled in distribution to the net proceeds of the estate ‑ sharing those equally between them: Administration Act 1903 (WA) s 14(1), 14(25), 25(1)(a).
Following her mother's death, Kelly Spencer made a thorough search of her late mother's papers and inquired from her advisors about the existence of any will or testamentary document. A paper writing by the deceased comprising a computer written document with some manuscript alterations and signed by the deceased dated 29 March 2007 was found. But this was not formally executed or witnessed and contained undated and unattested alterations. Plainly, it is not a will which satisfies the requirements of formal execution and attestation contained in question 8 of the Wills Act 1970 (WA). Kelly Spencer sought legal advice about the potential significance of this document and was advised by a solicitor, not one of the solicitors presently acting for her, that this was not a valid testament and could not be the subject of a grant of probate or letters of administration.
Consequently, Kelly Spencer and her brother, Scott William Spencer, decided that she alone should apply for letters of administration of their mother's estate and Scott William Spencer formally consented to his sister applying alone in that regard, although he was equally entitled to apply. That application was duly made and, consequently, a grant of letters of administration of the estate of Maureen Spencer in common form of law was granted to Kelly Spencer on the basis of this apparent intestacy. The grant is dated 1 December 2008 and upon that grant the legal estate in the property of the deceased vested in the administrator: Administration Act s 8 and Re the Full Board of the Guardianship & Administration Board [2003] WASCA 268; (2003) 27 WAR 475.
The deceased's children, Kelly and Scott, each have children of their own who are all under age. Kelly Spencer has five children. They are the third defendants, Jemma Louise Stanton and Toby Spencer Stanton, whose father, Christopher Stanton, was Kelly Spencer's former de facto partner. She also has three other children by her present de facto partner. The other three children of Kelly Spencer who are not parties to these proceedings are:
•Bailey James Dunstan born 7 July 2005;
•Griffin William Dunstan born 20 September 2006; and
•Kurtis Timothy Dunstan born 11 April 2008.
As is apparent, Bailey James Dunstan and Griffin William Dunstan were both born before 29 March 2007 but Kurtis Timothy Dunstan was born after that date but before the death of the deceased.
Of these five, only the third defendants are parties to these proceedings. They are represented by their next friend, Kenneth Oscar Thomas, the deceased's accountant, who was so appointed by order of the Master made 7 May 2009.
Scott William Spencer has three infant children but none of them is a party to these proceedings. The reasons for that will appear shortly. Accordingly, the deceased was also survived by her eight grandchildren but none of the grandchildren would be entitled to any share in the distribution of her estate if she had, indeed, died intestate.
Following the grant of the letters of administration of her mother's estate Kelly Spencer obtained further legal advice from other solicitors. As a result, she was advised that the informal paper of 29 March 2007, either as it originally stood or as it had apparently been altered, appeared to be an informal will of the deceased which could be made the subject of a grant of representation pursuant to Part 10 of the Wills Act s 32. Accordingly, as administrator of her mother's estate, Kelly Spencer commenced these proceedings by a writ of summons issued 15 April 2009 seeking an order for the revocation of the grant of letters of administration and, further, an order pronouncing that the apparent informal will of 29 March 2007 has full force and effect as the will of the deceased and, further, that the alterations made to that document have full force and effect. In addition, the plaintiff seeks an order for a grant of letters of administration with that informal will annexed to be made to her. There are variations in the claim to provide, in the alternative, for a grant of letters of administration of the paper writing of 29 March 2007, but without regard to its alterations, to be made to the plaintiff.
This matter came before the court upon a chamber summons dated 10 June 2009 together with a certificate of urgency seeking the orders as asked. Despite originating from such an interlocutory application and being heard in chambers, the application was, in every practical respect, for final and substantive disposition of the proceedings. Therefore, despite this somewhat informal procedure I have treated the proceedings as a final trial and counsel has accepted that this is the correct course. The parties, through their solicitors, have expressed agreement and satisfaction that the matter should be determined on the affidavit evidence without cross‑examination of any of the deponents and without the need for any oral or other evidence. This is entirely appropriate because I am satisfied that there are no contested issues of primary fact and that the determination of the proceedings depends upon the legal significance which the court should attach to the unchallenged evidence which has been presented.
There has been no separate appearance by counsel for the third defendants or the fourth defendant although all are represented by the same solicitors. I have been assured that all parties have agreed to abide by any order of the court and that each in fact supports the claim and the details of the relief being sought by the plaintiff. I am satisfied that there is no prejudice in this course and, having regard to my conclusion that the only real possible alternatives for the disposition of this litigation are declarations to the effect that the deceased had died intestate, or that the writing of 29 March 2007 as altered, constitutes an effective informal will of the deceased entitled to proof and a grant of representation, there is no possibility that the third defendants, or any of the other grandchildren of the deceased, had any entitlement to distribution of the estate.
That a grant of probate or letters of administration made in the common form of law may be revoked in the event of the discovery of a subsequent or valid testament of the deceased is well acknowledged. Some of the authorities to that effect have been set out by me in Wheatley v Edgar [2003] WASC 118 [18] and also in Barndon v Chelvanayagam [2006] WASC 118. The later finding of a will or testamentary document after letters of administration had already been granted is an accepted ground for the revocation of such a grant made in common form: In The Will Of Christian (1975) 25 FLR 89; Re Proud (Dec) [1951] QWN 17; and Butler v Meriga [1904] QWN 71; [1904] St R Qd 248, or even in the case of a grant of representation made in solemn form: Wheatley v Edgar. The power to revoke a grant of administration is expressly conferred upon the court by s 29(1) of the Administration Act. In this State, even a non‑contentious application for revocation must be heard and determined by a judge: Non‑Contentious Probate Rules 1967 r 4(1)(b). If an order is made revoking the grant a further order should be made requiring the grantee to bring the original grant into court and to deliver it up for cancellation so as to terminate any authority of the grantee to act under the revoked grant. As stated in Halsbury's Laws of Australia at [395‑3460]:
A replaced executor or administrator is protected by statute for all actions taken in good faith and according to law under the revoked grant (Administration Act s 46 and s 47), but must transfer all remaining property of the estate to the new grantee and account for all prior dealings with the assets of the estate. All other rights relating to commission, indemnity, reimbursement or otherwise, are not affected by revocation. A revocation only becomes effective from the date on which the order for that revocation is made and it does not render void ab initio the acts of the grantee under the revoked grant: Beeson v West Australian Trustee, Executor & Agency Co Ltd (1929) 31 WALR 108. In the absence of statutory protection a grant of representation is rendered a nullity by its revocation, exposing the grantee to personal liability under the general law in the tort of conversion: Ex parte Keegan (1907) 7 SR (NSW) 565.
In this case the informal paper writing of the deceased dated 29 March 2007 fails to make any provision for the appointment of an executor of the estate so, accordingly any grant of representation in respect of that document would need to be a grant of letters of administration with the document annexed meaning that the persons entitled to apply for such a grant would, in this particular instance, be the same, namely Kelly Spencer and Scott William Spencer. In these proceedings Scott William Spencer has again agreed that if letters of administration of the informal document of 29 March 2007 were to be granted they should be granted to his sister alone.
At the time of her death Maureen Spencer was said by Kelly Spencer, in the affidavit in support in the original grant of letters administration, not to be living in a de facto relationship. However, in the informal writing of the deceased on 29 March 2007 the deceased included the following bequest:
3.An amount of $50,000.00 is to be deposited into an account for my dear companion 95 legally known as Phillip Green, Aboriginal name of Lurgo to spend as he chooses. If 95 has passed away before me then this money can be used towards the education of his first 2 grandchildren.
Phillip Green, or '95', is the fourth defendant to these present proceedings. He has filed an affidavit sworn 14 April 2009 which refers to the paper writing of 29 March 2007 and which goes on to say that he had expressed an interest in obtaining the deceased's Toyota Rav 4 motor vehicle and has negotiated a purchase of the vehicle from Kelly Spencer for the sum of $8,000 being its specified value. He said that he has also agreed with Kelly Spencer and with Scott William Spencer that he should also be paid the sum of $42,000 from the estate of the deceased (making a total value of $50,000) in the distribution of the estate. On that basis he expressly consented to the continuing appointment of Kelly Spencer as administrator of the estate of the deceased and to such orders as this court might consider fit and to the court dispensing with the requirement for any guarantee by the plaintiff in support of her appointment as administrator. There has been no assertion by Mr Green that he was the de facto partner of the deceased and certainly not that he had been living with the deceased as de facto partner for a period of at least two years immediately prior to her death so as to be entitled, in accordance with s 14 and s 15 of the Act to any distribution of the estate in the event of an intestacy or to be entitled to apply as such for letters of administration or for letters of administration with the informal will annexed.
There is no suggestion that the deceased ever made an earlier will or testamentary document and, consequently, the distribution of her estate will therefore be determined either by the rules of intestate distribution (according to which her two children, the first and second defendants will be the sole and equal beneficiaries) or by the terms of the writing of 29 March 2007 either as that was originally drafted or in accordance with the alterations made to it by the deceased.
The writing of 29 March 2007 is an exhibit to the affidavit of Kelly Spencer sworn 18 June 2009 and copies of the same document are also exhibits to the other affidavit of Kelly Spencer of 28 May 2009 and to the affidavit of Scott William Spencer of 31 May 2009 and, as already mentioned, to the affidavit of Phillip Green of 14 April 2009.
The document appears to have been prepared on the deceased's computer or word processor and printed off. It contains a heading giving the name of the deceased, her ABN, her post office box number at Broome, her phone and fax number and her mobile telephone number in lines across the top of the document. Underneath that are the following words:
TO WHOM IT MAY CONCERN
In the event of my death I hereby will that my estate be sorted in the following manner.
1.All properties, personal goods and chattels are to be sold.
2.Any current and outstanding debts to be paid.
3.An amount of $50,000.00 is to be deposited into an account for my dear companion 95 legally known as Phillip Green, Aboriginal name of Lurgo to spend as he chooses. If 95 has passed away before me then this money can be used towards the education of his first 2 grandchildren.
4.The remainder of my wealth is to be divided into three ~~(3)~~ (2) equal parts:
A.The first 1/3 is willed to my eldest child Scott William Spencer, my dear wonderful beloved son.
B.The second 1/3 is willed to my 2^nd child Kelly Spencer my absolutely loved and respected and appreciated daughter.
~~C.The third share is willed to my wonderful grandchildren Gemma Louise Stanton and Toby Spencer Stanton. To be divided equally between them for the purpose of education~~
MS~~or to carry them through moments of abandonment and desperate need. They are such special people who will give much to humanity through their life experiences.~~
NB: If any of my goods and chattels are wanted by my Son or Daughter then this can be done by the one party taking something of equal value. ie: a property for a property and the one with the greater value pays to the other party.
(Signed) Maureen Spencer
Maureen Spencer 29 March, 2007
The alterations which appear in the above recitation of this document are meant to resemble the alterations made by manuscript to the original. However, those alterations cannot be reproduced entirely accurately by typescript and, accordingly, a photocopy of the writing showing the manuscript alterations appears as an annexure to these reasons. That is the document which this court must consider.
It is accepted that the signature of Maureen Spencer to this document is the authentic signature of the deceased and that the document was probably signed in its original form on the date it bears. However, there is nothing on the face of the document to indicate when the alterations were made but it is acknowledged that the initials 'MS' (on the left hand side of subparagraph 4C) are those of the deceased and that in all probability it was she who made all the alterations to the document.
At this point it is necessary to recognise that if, by the alterations, the deceased desired to express her intention that 'the remainder of her wealth' should be divided into two equal parts divided equally between her two children she failed to make corresponding alterations to alter the word 'three' in clause 4 to 'two', or to change the fraction of 1/3 appearing in clauses 4A and 4B to 1/2. Nevertheless, if the apparent deletion of clause 4C by the hand of the deceased is to have the effect of deleting dispositions to the grandchildren Jemma and Toby then it would seem to follow that the intention of the deceased must have been to leave the entirety of the residue equally to her two children rather than to leave one‑third of the residue undistributed and the subject of a partial intestacy. The law leans against an inference that there is a partial intestacy if, otherwise, the testamentary document as a whole can be given a logical and consistent construction capable of disposing of the whole estate: eg Lewis v O'Loughlin [1971] 125 CLR 320, 321; Re Harrison (1885) 30 Ch D 390, 393. In this case, if the alterations are to be regarded as effective, and if the document of 29 March 2007 is in fact an informal will, then I would be satisfied that the intention of the author was to provide, by the alterations, that the residue was to be divided into two equal shares to be shared as to one‑half each by the two children, Scott William Spencer and Kelly Spencer.

Found with the document dated 29 March 2007 as altered and stapled to it (again being part of exhibit KS2 to the affidavit of the plaintiff of 18 June 2009) is a smaller slip of scrap paper containing some manuscript notations which are acknowledged to be those of the deceased. A photocopy of this is also to be found as a schedule to these reasons.
In short, this smaller document appears to be a set of calculations made by the deceased in her own handwriting in which she totals the apparent values of her three properties at Orr Street, Stewart Street and Hamilton Hill to a figure of $2,100,000, deducts from this the balances due under two mortgages totalling $932,000 to produce a net balance (rounded) of $1,177,000. From this is deducted the sum of $50,000 (apparently for 95) leaving a residue for distribution of $1,127,000 which, divided by three produces one‑third shares of $392,333. A close examination of the original of the writing of the 29 March 2007 appears to reveal that there are some impressions or indentations in the surface of the paper apparently corresponding with some of the manuscript figures in the smaller note. This gives the impression that the smaller note, written as it was in biro, was written at a time when superimposed on the original of the document of 29 March 2007 leaving some indentations of the writing caused by pressure upon it. This suggests that the smaller sheet of manuscript calculations was written by the deceased at or about the same time as the original document of 29 March 2007 was prepared. That would seem to be a logical and reasonable inference having regard to the practical correspondence in effect between the mathematical calculations and the expressions of intention in the document of 29 March 2007 itself. However, none of that gives any indication of when or why the document of 29 March 2007 was subsequently altered.
For any document to be admitted to proof as an informal will or testamentary instrument of a deceased pursuant to the provisions of s 32 of the Wills Act it must be demonstrated that:
(a)there is a document;
(b)that the document purports to embody the testamentary intentions of the relevant deceased; and
(c)there is evidence which satisfies the court that either at the time the document was brought into being or at some later time, the relevant deceased, by some act or words, demonstrated that it was his or her intention that the document should, without more on his or her part, operate as his or her will: Hatsatouris v Hatsatouris [2001] NSWCA 408 [56] and Oreski v Ikac [2007] WASC 195 at [105].
It is necessary to determine whether the putative testament actually set out the final testamentary intentions of the deceased rather than being merely speculative or deliberative: Estate of Hines v Hines [1999] WASC 111.
In Dalton v Dalton [2008] WASC 56 at [47] it was decided that where the putative testamentary document is signed, it may not be necessary to identify separate acts or words of the author as manifesting an intention that the document should constitute the author's will. This is because the signature to the document constitutes a smaller departure from the requirements of due execution required by s 8 of the Act than if it had not been so subscribed. The onus of proof is upon the person seeking probate or other representation and is to the civil standard although a considerable degree of satisfaction by the court may be required: Dolan v Dolan [2007] WASC 249 at [16].
In determining the status of the putative testamentary document the court is enabled, by s 32(3) of the Wills Act to have regard to:
[A]ny evidence relating to the manner of execution or testamentary intentions of the person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the person.
This gives the court a wide discretion to admit extrinsic evidence bearing on the issue of whether or not the deceased regarded the putative testamentary instrument as being his or her final testamentary disposition or not. The power extends to include statements made by the deceased to others.
When it comes to alterations, whether informally made to an otherwise valid will or informally made to what would otherwise be an informal will, I accept that there is a rebuttable presumption that alterations so appearing were made after the execution or subscription of the original: Re Estate of Nicholls [2003] WASC 85 [24]. And when determining whether some informal alteration to any will may be admitted pursuant to s 32(2)(b), the court will have regard to substantially the same requirements as it will under s 32(2)(a). Accordingly, it is necessary to be satisfied that the original document is either a valid will or a valid informal will, that the written alterations to it purport to set out the testamentary intention of the deceased, and that the evidence as a whole discloses that the intention was, without more, to record the deceased's final testamentary intention: Re Ward (dec), Marsden v Ward (unreported, WASC, CIV 1860/97, Lib No 980180, 9 April 1998 (Owen J). Again the onus of proof lies upon the person asserting the efficacy of the alterations and is to the civil degree of proof. However, if the alterations are initialled by the author that may constitute persuasive evidence that he or she intended them to have effect and to modify the document so as to represent, in its altered state, the author's final testamentary intention. However, such a finding, and indeed all other findings relating to the significance of the document or documents or any alterations, must have regard to all the evidence taken as a whole.
In this case there is some extrinsic evidence bearing upon the status of the writing of 29 March 2007, the alterations and the deceased's intentions.
The deceased's son, Scott William Spencer, received an email transmission from his mother sent to his computer. An exact reproduction of this is exhibit KS3 to the affidavit of Mr S W Spencer sworn 31 March 2009. It bears no date but Scott Spencer has sworn that by examining the record of email receptions contained in his computer he has been able to verify that the date that the email was received was 19 June 2007. That is a little less than three months after the date of the putative will. This email reads:
Hi Scott,
Great to hear from you today, and a surprise I might add. Kiss Kiss
I've answered the questions and added some questions and ideas below amongst your email.
I've been bedridden since Friday with food poisoning I think or a very strong bug. In my delirious state was glad I wasn't on the Kakoda Trail in the 40's. Usually when I get that sick it's a Natzi concentration camp but this time the Kakoda. (as sick as the time you rescued me from Hamilton Hill).
Also during the worst of it worried that I haven't fully completed my will - I'm serious about the notion of all possibilities. Would you be agreeable to Stewart Street being sold, outstanding debts cleared and you and Kelly get a house each: money balanced on valuations. I want to do something for my grand kids education of course. Your children will equal Kelly's kids if I don't simply do a Scott and Kelly halves thing. I think I've got at least 12 years to go so this will be the first of a few wills. Lately I've been quite conscious of Granddad passing away at 72. Mum's Mum was 68 so……just being responsible, making life with one less thing to worry about.
We have to connect more, I don't want there to be just 12 more holidays. I want more of you and Snow in my life. Sincerely Please lets work on this.
And can you: FORWARD YOUR CURRENT MAILING ADDRESS or let me know that it is the same as last year. Snow's birthday must be soon. Have you brought the ring yet?
You forgot to indicate!
ARE YOU INTERESTED IN DOING A GIBB RIVER BIKE RIDE NEXT YEAR? MAY?
(Could be a reality check and research for your Horseman story). WILL TAKE A YEAR TO SORT OUT INSURANCES AND OTHER BLOODY PERMITS.
Love Mum xxx
Potentially significant in the content of this email are the words:
[W]orried that I haven't fully completed my will - I'm serious about the notion of all possibilities. Would you be agreeable to Stewart Street being sold, outstanding debts cleared and you and Kelly get a house each: money balanced on valuations. I want to do something for my grand kids education of course. Your children will equal Kelly's kids if I don't simply do a Scott and Kelly halves thing. I think I've got at least 12 years to go so this will be the first of a few wills. Lately I've been quite conscious of Granddad passing away at 72. Mum's Mum was 68 so……just being responsible, making life with one less thing to worry about.
Obviously enough, this suggests that the deceased was contemplating a distribution of her estate in which the Stewart Street property, being the most valuable, would be sold to discharge the mortgages and other debts and that the two other proprieties, the one at Orr Street, Broome and the one at Hamilton Hill would be divided between her two children with some form of equalising payment. It was her intention to make some provision for all her grandchildren (not merely to two of Kelly's children) and it is evident that the deceased believed that she had the space of about 12 years or so to consider her final testamentary dispositions and that it would probably be the first of several wills.
Having regard to what is known of the property owned by the deceased and her liabilities the disposition alluded to in this email corresponds more closely with the document of 29 March 2007 as it has been altered than it does with its provisions before alteration. This is because the circumstances were that equal one‑third divisions of the net estate of the deceased as first proposed could not be effected without selling two or more and probably all of the three houses. The proposal raised by the email envisaged that each of the children would actually receive a house unencumbered and that would probably only be possible by selling Stewart Street in Broome, most of the proceeds of which would be needed to pay out all the mortgages. That would leave little in the way of surplus cash to provide for any of the grandchildren.
It appears, therefore, that this was probably a realisation in the mind of Maureen Spencer at the time when she was communicating with her son. The fact that she altered the document of 29 March 2007 to delete the provision of the one‑third of the net estate for two of the grandchildren but provided that after a legacy of $50,000 to Mr Green the residue should be divided equally between her two adult children suggests strongly that she had in mind that each should receive a house unencumbered and at that point it was unrealistic to attempt to make any specific provision for any of the grandchildren. Dispositions to grandchildren were something which would have to wait upon future developments and for which she then thought she had ample time.
Accordingly, this email strongly suggests that Maureen Spencer had by then decided, or was contemplating deciding, to change what she regarded as a will to provide that the residue of her estate would be divided equally between her two children. The probabilities are, therefore, very high that the alterations to the document dated 29 March 2007 were made on or about, or shortly after 19 June 2007 being the date of the email.
There is also another factor which leads, generally, to this or a similar conclusion. The email suggests that Maureen Spencer thought that she had at least another 12 years to live and that she would have ample opportunity to make further 'wills'. It is, in my view, very significant that she uses the word 'will' or 'wills' in the document of 29 March 2007 and in the email. Despite the formal shortcomings this is, I am satisfied, strong evidence that she was treating that document, any changes to it or any new such documents, as having the requisite testamentary intent and effect. On this basis I am satisfied that, subject to the significance of the alterations, the document of 29 March 2007 should be regarded as being an informal will reflecting the deceased's then considered testamentary intentions.
The other factor is that the death certificate reveals that Maureen Spencer was diagnosed with metastatic end stage breast cancer some nine months before her death suggesting that the diagnosis was made in December 2007 or January 2008. It is most unlikely that Maureen Spencer would have spoken of having 12 more years to live and having more opportunities to make further wills once she had received her fatal diagnosis. That being so, it seems to me unlikely that the alterations spoken about by her to her son in the 19 June 2007 email would have been contemplated once that diagnosis had been received. While not being actually determinative of this point, this suggests that the alterations were made before that diagnosis was received so suggesting that it is unlikely that they were made later than December 2007 at the latest.
Nevertheless there are two discordant facts which are potentially capable of casting some doubt over whether or not Maureen Spencer regarded herself as having made any effective expression of testamentary intention. As described by Kelly Spencer in her affidavit of 21 November 2008 in support of the application for the grant of letters of administration, and as set out further in her affidavit of 28 May, the plaintiff asked her mother on 6 September 2008 whether or not her affairs were in order and in particular whether she had made a will. According to Kelly her mother answered that she had not made a will. Kelly visited her mother again, this time at Murdoch Hospital, on 23 December 2008 and took with her a will form which she had purchased at the Rockingham Post Office. She left the will form with her mother who told her at the time that she was pleased that Kelly had obtained the form and that she, the deceased, would complete it. After Maureen Spencer's death Kelly found the form but no use of it had been made by her mother.
This is certainly capable of conveying the idea, obviously accepted by Kelly Spencer and acted on when applying for the grant of letters of administration, that her mother had not actually made any will. In one sense that is undoubtedly true because the deceased never made a 'will' which satisfies the formal requirements of s 8 of the Wills Act. She would have known that she had not had a will made by any solicitor or other professional person, such as the Public Trustee, and what she had referred to as a will, was nothing more than a homemade expression of her intention without realising its potential to be legally effective. Nevertheless, the document of 29 March 2007 clearly purports to be a record of the author's intentions for the distribution of her property on death. It uses the word 'will' in its terms. It contains no provision or content which is inconsistent with the expression of a testamentary intent and it has been referred to, somewhat obliquely, as a will in the deceased's subsequent email to her son. I have concluded, therefore, that Maureen Spencer's denials to her daughter that she had made a will, and her readiness to accept the will form in hospital in September 2007, should be regarded as an acknowledgement by her that she had not made a formally valid will without detracting from whatever significance there might be in law for her writing of the 29 March 2007 as altered.
The fact that Kelly Spencer was discussing with her mother the need to get her affairs in order and to make a will during September 2008 also suggests that her mother had by then received ominous medical advice. It seems quite probable that from that time onwards the deceased was significantly pre‑occupied with medical treatment.
It becomes necessary to determine whether or not the writing of 29 March 2007 has effect as an informal will in circumstances where that constitutes the only indication in existence of the deceased's own intentions for the disposition of her property in the event of death. As already noted, I consider it very significant that the deceased, herself, used the term 'will' in the contents of that document and in her references to it. While it seems likely that Maureen Spencer realised and intended that she would have the capacity to make another will or wills in the future if she chose to do so, that alone does not detract from the significance which I consider should be attached to this writing which, as already remarked, is entirely consistent with and confined to the expression of an informal testamentary intention. That being the case, I am satisfied that the document, at least as it was originally drawn and in the absence of subsequent revocation or alteration, satisfies the requirements of an informal will.
That brings me to the alterations. These too are, in my view, consistent with the expression of a modified testamentary intention designed to take effect in place of what had previously been written. They are appropriate in nature and content to achieve that purpose and they make practical sense having regard to the known financial circumstances of the deceased. They have been initialled by the deceased and I consider the initialling is a clear indication of her approval and adoption of the altered text as representing her then testamentary intention. There is nothing to suggest that it has been later modified or revoked. Therefore, it is the writing of 29 March 2007, altered as I am satisfied it was by the deceased with testamentary intention at some unknown date some time from about 19 June 2007 to late December 2007 at the latest, which sets out her intentions for the disposition of her property.
It is perhaps not insignificant that the expressions of intention contained in this informal testamentary document, as modified, make provision for those persons to whom the deceased obviously considered she had some obligation and/or affection. The document is modified and makes provision for the fourth defendant, Mr Phillip Green, by a quite significant legacy. It then provides for the two adult children in a manner which can be expected to preserve two of the houses owned by the deceased, should that be their wishes, while allowing the most valuable property to be sold to satisfy her substantial borrowings. That document, as altered, does not make any provision for grandchildren, for whom it is obvious that the deceased had hoped she could provide, is not, in the known circumstances, at all incongruous. There were not large amounts of disposable surplus property available for distribution to the grandchildren and, in any event, because of their relatively young ages, the allocation of a third share of the residue to two of the grandchildren would be likely to give rise to some practical problems until they came of age. Such problems would not be insurmountable but any solution involving large bequests to the grandchildren could jeopardise the retention of the two houses which the deceased had apparently earmarked for her children. By providing a home for each of her children the deceased was significantly, if indirectly, benefiting her grandchildren.
The only difference between the distribution of the estate of the deceased, according to the informal will as altered, and distribution of her estate in the event of an intestacy, had it occurred, is that under the informal will Mr Phillip Green receives the legacy of $50,000 which he would not receive on an intestacy. Again, the desire to make this legacy is clear from the terms of the 29 March 2007 document and was obviously a deliberate intention of the deceased at that time.
In other words, the disposition made by the informal will as altered is coherent, consistent with the known circumstances of the family, with the financial resources of the deceased and clear from the language used once the efficacy of the alterations is accepted, as I am satisfied it should be. The result, therefore, is that there should be orders to the following effect:
1.That the grant of letters of administration made by the court to the plaintiff on 1 December 2008 be and are hereby revoked.
2.That the plaintiff do bring into the registry of the court and deliver up the original grant of letters of administration dated 1 December 2008 and that that grant be thereupon cancelled by the principal registrar.
3.That it be declared that the paper writing dated 29 March 2007 signed by the deceased, Maureen Spencer, and as altered by her at some unknown date which was probably between 19 June 2007 and late December 2007, is the informal will of the deceased which is valid and effective and which should be the subject of a grant of representation in favour of the plaintiff. It is further declared that the paper writing found with the document of 29 March 2007 containing manuscript calculations made by the deceased as to the probable effect of the dispositions originally contained in that document, and which was stapled to the writing of 29 March 2007 is not part of the informal will and should not be the subject of any grant of representation but, despite being stapled to the informal will, it does not modify or detract from or revoke the effect of that document in any way.
4.It further be declared that although the manuscript modifications made to the writing of 29 March 2007 failed to provide unequivocally that the residuary estate of the deceased should be divided into two equal shares and that Scott William Spencer and Kelly Spencer should each receive one such equal share of the residue, that is, by its proper construction, the effect of clause 4 of the instrument as altered.
5.There should be a grant of letters of administration with the informal will of 29 March 2007 as altered and bearing the construction declared made to the plaintiff Kelly Spencer as the sole administrator of the estate of the deceased.
6.That the need for any guarantee to be provided by the administrator be dispensed with.
7.Costs of all parties of these proceedings to be taxed, if not agreed, be paid out of the estate of the deceased.