SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY Case Title: In the Estate of Gallagher Citation:
[2022] ACTSC 324
•11 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of Gallagher |
Citation: | [2022] ACTSC 324 |
Hearing Date: | 11 November 2022 |
DecisionDate: | 11 November 2022 |
Reasons Date: | 25 November 2022 |
Before: | McWilliam AsJ |
Decision: | (1) The Court declares that pursuant to s 11A of the Wills Act 1968 (ACT): (a) the will signed by Dorothy Mary Gallagher on 30 July 2020 (Deceased); and (b) the letter in the hand of the Deceased dated 25 August 2021; together constitute the last will of the Deceased (in the form of a will and codicil respectively). (2) The Registrar is directed to do all things and take all steps necessary to grant probate of the documents constituting the last will of the Deceased identified in order 1 to Ms Rosemary June Judd. (3) The costs of the application are to be borne by the residuary estate of the Deceased. |
Catchwords: | WILLS, PROBATE & ADMINISTRATION – Informality – Wills Act 1968 (ACT) – where amendment was not witnessed – whether deceased intended the document to constitute an amendment to her will |
Legislation Cited: | Succession Act 2006 (NSW) s 8 Wills Act 1968 (ACT) ss 9, 11A, 12A Wills, Probate and Administration Act 1898 (NSW) s 18A |
Cases Cited: | Estate of Angius;Angius v Angius [2013] NSWSC 1895 Estate of Moran; Teasel v Hooke [2014] NSWSC 1839 Re Letcher (deceased) (1993) 114 FLR 397 |
Parties: | Rosemary June Judd (Applicant) |
Representation: | Counsel D Jessep (Applicant) |
| Solicitors Chamberlains Law Firm (Applicant) | |
File Number: | PRO 989 of 2022 |
McWilliam AsJ:
On 11 November 2022, I made orders granting relief in respect of an application made pursuant to section s 11A of the Wills Act 1968 (ACT) (Wills Act). These are the reasons for the orders made. The applicant in the proceedings is Ms Rosemary June Judd, the executor named in the will of the late Dorothy Mary Gallagher (the deceased), dated 30 July 2020 (the Will). The deceased died on 22 December 2021.
The Will has been prepared by solicitors, duly executed by the deceased and there are two independent witnesses who have signed or witnessed the deceased’s signature. The terms of the Will include:
(a)That Ms Judd was to be the deceased’s executor and to receive a bequest of $3,000 for her time and trouble;
(b)That a bequest of $130,000 be made to Marie Brien, the deceased’s sister; and
(c)That the rest and residue of the estate be given to the New South Wales branch of the St Vincent de Paul Society, for their use and benefit in their Nowra office.
There is no issue that it constitutes a valid will under the Wills Act. The reason the present application is necessary is because there is a subsequent document in the form of a letter that was dated 25 August 2021 (the Letter). It was apparently written over a number of days (including 2 September 2021), and was ultimately sent to her solicitors, Chamberlains Law Firm.
The terms of the letter are as follows:
Dear Anna
I have reconsidered some items in my will. Firstly, Rosemary Judd, the executor, is not a relative and not even a really close friend and she will have no help from family as I don’t have any. The $3,000 is too mean. I think $10,000 would be more appropriate.
Also, I have a cat and have arranged RSPCA to rehouse her on my death, or inability to no longer care for her. It is a free service but they suggest a donation in the will. I would like to donate $5,000 to the RSPCA.
2/9/21 now: I’ve been waiting for some documents which is to be with my will, but I haven’t yet received it from RSPCA. Re the will, they suggest the wording attached.
I’ve also thought of another possibility with COVID - what if Rosemary is unable for some reason to act as my executor when the time comes? Should the wording in my will infer that the payment to Rosemary depends on her being available at that time?
I’ll be 93 in a few weeks and it’s so hard to tie up all the loose ends.
After you get this letter I’d like to visit you and get it sorted. I guess access is easier where you are now!
Best wishes, Dorothy Gallagher.
P.S. The RSPCA slip enclosed also gives directions on the will’s wording in relation to my cat “Amber”’s future. D.G.
Under the Dictionary to the Wills Act, a ‘will’ includes a codicil. Section 9 of the Wills Act then requires a will (or codicil) to be, in substance:
(a)in writing;
(b)signed at the end by the testator, or by another person in the presence of and by the direction of the testator;
(c)in the presence of two or more witnesses; and
(d)with each of the 2 or more witnesses attesting that signing or acknowledgement of the will by subscribing the will in the presence of the testator and other witness or witnesses.
The Letter lacks the requisite formality, in that while it is signed by the deceased, no-one else has signed the document, attesting to her signature. The relief the executor seeks, in essence, is a declaration that this later Letter constitutes an amendment or codicil to the earlier valid Will.
The Court’s power to grant relief (by making a declaration)
The Court has the power to declare that the document constitutes an amendment to the Will pursuant to s 11A of the Wills Act, the relevant parts of which are in the following terms.
Validity of will etc not executed with required formalities
(1) A document, … purporting to embody testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the formal requirements of this Act, constitute …an amendment of the will of the deceased person …if the Supreme Court is satisfied that the deceased person intended the document …to constitute … amendment of …her will … .
(2) In forming a view of whether a deceased person intended a document … to constitute … an amendment of … her will …, the Supreme Court may, in addition to having regard to the document, have regard to—
(a) any evidence relating to the manner of execution of the document; or
(b) any evidence of the testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or not) of statements made by the deceased person.
The overarching issue is thus whether the Court should declare the Letter to be a valid amendment to the deceased’s Will. That requires the Court to reach a state of satisfaction about the matters referred to in s 11A(1) of the Act, and to decide whether the deceased intended the Letter to amend her Will.
In this case, the matter proceeded with the notice and consent of any interested beneficiary. In particular, the affidavit of the solicitor on the record, sworn on 11 November 2022, disclosed that St Vincent De Paul Society NSW, the only beneficiary who would be adversely affected by the relief being granted, actively consented to the relief sought by the application in proceedings. For completeness, the other beneficiary, the RSPCA, has also actively consented to the relief sought.
The consent of the only proper contradictor has influenced how the matter proceeded. While ultimately, the question is one for the Court’s satisfaction, the controversy in this case is one arising upon the statute and not between those involved in distributing and receiving the deceased’s Estate.
Did the deceased intend the Letter to amend her Will?
Applicable principles
In the Estate of Jeeves [2022] ACTSC 61 (Jeeves) contains a recent discussion of the applicable principles in relation to s 11A. At [7]-[13], I referred to the frequently applied criteria in Re Letcher (deceased) (1993) 114 FLR 397 (Re Letcher) where Gallop J stated the issues at 401 as follows:
(1)Is there a document?
(2)Does the document purport to embody testamentary intentions of a deceased person? and
(3)Is the evidence which has been tendered such as to satisfy this Court that at the time of the document being brought into existence the deceased person intended the document to constitute his or her will?
In relation to the last question, Gallop J went on to state at 401 that the Court may have regard to (relevant to this case) “any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person”, which captures the substance of s 11A(2), set out above.
Re Letcher was applied in Re Estate of J (Deceased) (1996) 131 FLR 413 (Estate of J) at 414-5, where Miles CJ stated at 414 (emphasis added):
... what the third question requires is not simply proof of a document purporting to embody the testamentary intention of the deceased person, but the satisfaction on the part of the Court that the deceased intended that document to constitute his or her will. A document which does no more than express the testamentary intention of the deceased, such as instructions for the drawing up of a will, do not suffice.
His Honour made the above statement drawing upon similar reasoning in Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 (Estate of Springfield), which was a decision of Powell J, concerning a relevantly similar provision in New South Wales, being the now repealed s 18A of the Wills, Probate and Administration Act 1898 (NSW) (as it was then titled). The equivalent section is now s 8 of the Succession Act 2006 (NSW). Powell J (at 540) had made the point that the third question requires evidence of something more than a document purporting to express testamentary intentions of the deceased such as instructions for the drawing up of a will.
In Jeeves at [12], I pointed out that in NSW, the third question has been framed as being whether, at the time the disputed document was brought into being or at some later time, the deceased, by some act or words, demonstrated that it was his or her thenintention that the document should, without more on his or her part, operate as his or her will: see Hatsatouris v Hatsatouris [2001] NSWCA 408 (Hatsatouris) at [56].
The words of s 11A of the Wills Act do not expressly require that the deceased person had the requisite intention “at the time of the document being brought into existence”, being the language used by Gallop J in Re Letcher and cited frequently since. The requisite satisfaction is simply that the deceased intended the document to constitute his or her will, in the sense of a legal document intended to govern the disposition of his or her property after death. I therefore respectfully agree with the framing of the third question as it has been expressed in NSW, noting that Hatsatouris is a decision of an intermediate appellate court. The third question should be directed to considering whether it was the intention of the deceased, either when the document was brought into existence or at some later time, that the document should, without more on the part of the testator, operate as her will.
In Estate of Moran; Teasel v Hooke [2014] NSWSC 1839, Lindsay J (agreeing with an observation made by Hallen J in Estate of Angius;Angius v Angius [2013] NSWSC 1895 at [260]) stated at [28]:
...use of the words "without more on her part", in deference to a formulation of the critical question attributed to Powell J, can add nothing material to the language of s 8(2)(a). What those words do is direct attention to a consideration of whether the particular document was intended to operate as a will: to have present operation as such, not to serve merely as a draft, a diary note or the like.
Applying those principles, questions one and two may be disposed of briefly. There is clearly a document and I am satisfied that it is one that purports to embody the amending testamentary intentions of the deceased.
The focus is plainly on the third question and the solicitors for the executor fairly acknowledge that this is a case “towards the outer limit” of what may be admitted to probate under section 11A. Without more, the letter falls into the category of an instruction to a solicitor to amend a will, rather than the amendment itself.
However, the application before the Court was supported by the affidavit of Christopher D’Arcy Bucknell, affirmed 13 October 2022 and by the affidavit of Rosemary Judd, affirmed 27 September 2022.
Mr Bucknell deposes to receiving the letter on 7 September 2021 and to telephoning the deceased. He stated that the deceased confirmed the contents of the letter were her testamentary intentions and they agreed that in the event Ms Judd was unable to act as executor, Chamberlains was to be the backup executor.
The deceased expressly confirmed the amendments contained in the Letter reflected her testamentary intentions, namely that she wished to make a gift of $10,000 to the executor, a gift of $130,000 to her sister and a gift of $5,000 to the RSPCA, with the residue to be gifted to “Vinnies”. There is a contemporaneous file note corroborating the solicitor’s evidence.
On 11 September 2021, the deceased telephoned the executor and told her, among other things, that she had made two changes to her will, increasing the amount she was giving Ms Judd from $3,000 to $10,000 and including the RSPCA to make provision for her cat, Amber.
The solicitor attended upon the nursing home where the deceased resided on 12 September 2021, with the retainer agreement for the deceased to sign. However, on 15 September 2021, the deceased had a stroke, from which she never recovered, and which deprived her of all testamentary capacity. As has been stated, she ultimately died on 22 December 2021.
From the words of the Letter and the intention to visit the solicitor to “get it sorted,” I have drawn the inference that Ms Gallagher did expect to sign something subsequently to the Letter. However, I have also had regard to the contents of the letter which include items such as, “I’ll be 93 in a few weeks,” and that she wanted to tie up all the loose ends. Having sent the Letter, the deceased then spoke to the solicitor and after she had confirmed the contents of the Letter with him, she then contacted her intended executor to communicate what had occurred.
It is significant that the application is made in circumstances where the beneficiary who will be principally affected by the reduction in a gift to them, namely St Vincent de Paul, has expressly consented to the relief sought in the application. Although borderline, on the balance of probabilities, I consider it open to draw the inference that because the deceased clearly knew that her advanced age meant that her life was nearing the end of its usual course, while she did not intend the Letter to constitute the amendment to the Will at the time she wrote it, having subsequently confirmed its contents with her solicitor, she then treated the Letter as having made the amendment to her Will.
Had this matter been contested, the preferable course would have been to proceed under s 12A, and in particular, s 12A(2) of the Wills Act, the relevant parts of which are in the following terms:
Rectification
(1)If the Supreme Court is satisfied that the probate copy of the will of a testator is so expressed that it fails to carry out his or her intentions, it may order that the will be rectified so as to carry out the testator's intentions.
(2)The Supreme Court may order that the probate copy of the last will of a testator be rectified to give effect to the testator's probable intention if satisfied that—
(a) any of the following apply in relation to circumstances or events (whether they existed or happened before, at or after the execution of the will):
(i)the circumstances or events were not known to, or anticipated by, the testator;
(ii)the effects of the circumstances or events were not fully appreciated by the testator;
(iii)the circumstances or events arose or happened at or after the death of the testator; and
(b) because of the circumstances or events, the application of the provisions of the will according to their tenor would fail to give effect to the probable intention of the testator if the testator had known of, anticipated or fully appreciated their effects.
(3)…
(4)…
(5)…
(6)…
(7) In this section: …
“order for rectification” means an order inserting material in, or omitting material from, the probate copy of a will.
…
The section’s radical expansion in the power it gives to the Court has been discussed in In the Estate of Rummer [2017] ACTSC 277; 12 ACTLR 258 at [101]-[112]. The Court has the power to expressly fill a gap in the common law in circumstances such as the present. In this case, I would have found that s 12A(2)(b) applied, as I would have been satisfied that because of the circumstances, and in particular the deceased not anticipating that she would have a stroke less than two weeks after sending the Letter, the application of the provisions of the Will would have failed to give effect to the testator’s probable, indeed her expressed, intention.
However, for practical reasons, having found that it was open on the uncontested evidence (albeit marginally) for the Court to be satisfied the requirements of the third question were met, I am prepared to accede to the application in its present form. Requiring the applicant to incur the expense and delay of admitting the Will to probate and then making a further application for rectification, only to achieve the same practical result in terms of distribution to beneficiaries that the applicant seeks to achieve by the present application, would have meant that there would be less residue paid to the St Vincent de Paul Society. When the Society has admirably sought to avoid any legal expense and delay by expressly agreeing to an application that was adverse to its interest, this did not appear to me to be in the interests of justice.
Finally, I cannot leave the matter without observing that the application would have been unnecessary if the solicitors who received the Letter, written as it was by a 93-year-old in a nursing home, had not just telephoned the deceased to confirm her testamentary intentions, but had acted immediately to have the amendment formalised. They no doubt considered they were proceeding in a timely fashion, but with the benefit of hindsight it should be well appreciated that each day counts, and even a week’s delay can have a legal consequence. In that sense, this case might be added to the list of cautionary tales for those who practise in succession law.
The orders of the Court are as follows:
(1) The Court declares that, pursuant to s 11A of the Wills Act 1968 (ACT):
(a) the will signed by Dorothy Mary Gallagher on 30 July 2020 (Deceased); and
(b) the letter in the hand of the Deceased dated 25 August 2021;
together constitute the last will of the Deceased (in the form of a will and codicil respectively).
(2) The Registrar is directed to do all things and take all steps necessary to grant probate of the documents constituting the last will of the Deceased identified in order 1 to Ms Rosemary June Judd.
(3) The costs of the application are to be borne by the residuary estate of the Deceased.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 25 November 2022 |
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