SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY Case Title: In the estate of Niko Ojvan Citation:

[2023] ACTSC 42

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the estate of Niko Ojvan

Citation:

[2023] ACTSC 42

Hearing Date:

3 March 2023

DecisionDate:

10 March 2023

Before:

McWilliam AsJ

Decision:

1. Pursuant to s 11A of the Wills Act 1968 (ACT), the Court declares that the holograph document dated 30 March 2013 and bearing the signature of the late Niko Ojvan, which has been produced to the Court, constitutes the Will of the late Niko Ojvan.

2.    The Registrar is directed to do all things and take all steps necessary to grant probate of the document constituting the last will of the deceased identified in order 1 to Iva Ojvan.

3.    The costs of the application are to be paid out of the estate on a solicitor-client basis.

Catchwords:

WILLS, PROBATE & ADMINISTRATION – Informality – Wills Act 1968 (ACT)– where will was signed by the deceased person but not witnessed – whether deceased person intended the document to constitute his will

Legislation Cited:

Wills Act1968 (ACT) ss 9, 11A

Succession Act 2006 (NSW) s 8

Cases Cited:

Estate of the late James Sundell [2019] NSWSC 1108

Hatsatouris v Hatsatouris [2001] NSWCA 408
In the Estate of Gallagher [2022] ACTSC 324
Re Letcher (deceased) (1993) 114 FLR 397

Rodny v Weisbord [2020] NSWCA 22; 102 NSWLR 403

Parties:

Iva Ojvan as executor to the estate of the late Niko Ojvan (Applicant)

Representation:

Counsel

S Kargar (Applicant)

Solicitors

Artisan Legal (Applicant)

File Number:

PRO 1180 of 2022

McWilliam AsJ

1. The application before the Court for determination, filed 7 February 2023, seeks declaratory relief pursuant to s 11A of the Wills Act1968 (ACT) (Wills Act), that a will informally made on 30 March 2013 validly constitutes the last will and testament of the late Niko Ojvan (the deceased), who died on 26 September 2022.

1. The applicant is Ms Iva Ojvan, the daughter of the deceased.  She is the executor named in the document that is the subject of the present application. 

1. The reason the application is necessary is because the deceased signed the document that is the subject of the present application but there were no witnesses to his signature. Section 9(1) of the Wills Act requires (relevantly) that for a will to be valid:

(a)  It must be in writing;

(b)  It must be signed by the testator (or by another person in the presence of and by the direction of the testator);

(c)   Such signature must be in the presence of 2 or more witnesses present at the same time; and

(d)  Those witnesses must each attest that signing of the will and subscribe the will in the presence of the testator and of the other witness or witnesses.

The power of the Court to declare an informal will valid

1. The Court has the power to order that a document constitutes the will of a deceased person, notwithstanding that it has not been executed in accordance with the required formalities under s 11A of the Wills Act. 

1. The relevant parts of s 11A of the Wills Act are as follows:

11A 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 a will of the deceased person, … if the Supreme Court is satisfied that the deceased person intended the document … to constitute his or her will, … .

(2) In forming a view of whether a deceased person intended a document … to constitute his … 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 Issues for determination

1. The overarching issue is whether the Court should declare the document dated 30 March 2013 to be the valid will of the deceased. That requires the Court to reach the state of satisfaction about the matters referred to in s 11A(1) of the Wills Act.

Applicable principles

1. The authorities relevant to the issue have recently been discussed in In the Estate of Gallagher [2022] ACTSC 324 at [11]-[17]. They include the test as phrased by Gallop J in Re Letcher (deceased) (1993) 114 FLR 397 at 401, reformulated to follow the more recent decisions of Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56] and Rodny v Weisbord [2020] NSWCA 22; 102 NSWLR 403 at [17]-[18].

1. The task for the Court may be broken down into satisfaction of three separate components.  The first component deals with establishing there is a physical thing that falls within the definition of ‘document’.  The second deals with the contents of the subject document.  The third deals with the person’s intention about the subject document.  Thus, the following questions are asked:

(a) Is there a document?

(b) Does the document purport to embody testamentary intentions of a deceased person? and

(c) Is the evidence which has been tendered such as to satisfy this Court that at the time of the document being brought into existence or at some later time, the deceased person, 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?

1. In Hatsatouris, s 18A (now repealed) of the Wills Probate and Administration Act 1898 (NSW) was under consideration.  In Rodny, s 8 of the Succession Act 2006 (NSW). Both legislative provisions are the statutory equivalent of s 11A of the Wills Act. It suffices for the discussion that follows to refer to the relevant words of s 8 of the Succession Act (emphasis added).

8   When may the Court dispense with the requirements for execution, alteration or revocation of wills? (cf WPA 18A)

(1)  This section applies to a document, or part of a document, that—

(a)  purports to state the testamentary intentions of a deceased person, and

(b)  has not been executed in accordance with this Part.

(2)  The document, or part of the document, forms—

(a)  the deceased person’s will—if the Court is satisfied that the person intended it to form his or her will, or

(b)  …

(c)  …

(3)  In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to—

(a)  any evidence relating to the manner in which the document or part was executed, and

(b)  any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

(4)  Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).

(5)  ...

1. The emphasised words above are to draw attention to the distinction in the words used in NSW, being an intention to “form” the will, whereas in the ACT the words used are an intention that the document “constitute” the will. 

1. In Estate of the late James Sundell [2019] NSWSC 1108, Sackar J stated at [108]-[109] (emphasis added):

[108] Recently, the principles on the application of s 8 were succinctly set out by Lindsay J in Estate of Moran; Teasel v Hooke[2014] NSWSC 1839 (at [26]-[28]):

There is no dispute between the parties about the applicable law. The critical question is said to be 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 her then intention that the Document should, without more on her part, operate as her will: Hatsatouris v Hatsatouris[2001] NSWCA 408 at [56] (c); In the Estate of Masters (Deceased); Hill v Plummer(1994) 33 NSWLR 446 at 451G-452B, 454G-455G and 462B-C.

Although each of these Court of Appeal judgments addressed the legislative predecessor of s 8 (namely, the Wills, Probate and Administration Act 1898 NSW, s 18A) they, generally, have been accepted as an authoritative exposition of the requirements of s 8: eg, Yazbek v Yazbek [2012] NSWSC 594 at [243]- [78]; Estate of Laura Angius; Angius v Angius[2013] NSWSC 1895 at [243] et seq; Burge v Burge[2014] NSWSC 1772 at [6]- [11].

That said, I agree with the observation of Hallen J in Estate Angius [2013] NSWSC 1895 at [260] that 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.

[109] In this case, it is clear: “The relevant enquiry is whether the deceased intended that the document in question itself, and not some later iteration of it then within the contemplation of the deceased, would “form” (that is to say “be”) the deceased’s will.” (per Stevenson J in Estate of Irvine; Evans v Gibbs [2015] NSWSC 432 (at [29]).

1. It can be seen from the above extract and in particular, the words I have emphasised above, that there is no difference between the ordinary meaning of the words “form” and “constitute”, and that otherwise, the section is substantively equivalent.

1. As White JA further explained in Rodny at [106], it is not sufficient to establish that the document expresses the person’s testamentary intentions. What is necessary is that the person intended that specific document to operate as his or her testamentary act.

1. Similarly in Rodny, Meagher JA (with whom White and McCallum JJA agreed in separate judgments) set out a detailed consideration of the third component of the test as articulated above, which includes the following (emphasis added):

[17] The requirement that the court be satisfied that the testator intended a document “form” his or her will goes to the testator’s actual intention regarding the operative effect of the document in question. The court must be satisfied that the testator actually intended that the document “operate” and “without more”, thereby constituting his or her will: see In the application of Kencalo (In the Estate of Ruth Buharoff) (Supreme Court (NSW), Powell J, 18 October 1991, unrep) pp 10-12. That formulation of the relevant test was repeated by Powell JA in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]- [57] (Priestley and Stein JJA agreeing); applied by the Western Australian Court of Appeal (Newnes AJA, Martin CJ and McLure JA agreeing) in Oreski v Ikac [2008] WASCA 220 at [51]- [58]; and agreed with by Mahoney JA, although expressed in slightly different terms, in The Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 at 454-55. When doing so Mahoney JA emphasised the significance of the different requirements in ss 8(1)(a) and (2)(a), the latter being the requirement that the deceased intend the relevant document to constitute his will, noting: “there is... a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will”. The same distinction is discussed and emphasised in Bell v Crewes [2011] NSWSC 1159 at [28]- [45] where White J, as his Honour then was, stated that he did not consider that the observations of Basten JA in Costa v The Public Trustee of NSW [2008] NSWCA 223 at [110] are intended to cast doubt on the accuracy of Mahoney JA’s reasons in The Estate of Masters, a view with which I respectfully agree.

[18] Thus, the words of the document and evidence relevant to the deceased’s intention (The Estate of Williams (1984) 36 SASR 423 at 433 (Legoe J): Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 at[284] (Hallen J)), must establish on the balance of probabilities (Polyak Estate; Amy v Permanent Trustee [1999] NSWSC 862at [16], [51] (Austin J)), that the deceased intended that the document should have a present operation as his or her will: In the application of Kencalo pp 10-12: Bell v Crewes at [44]; The Estate of Masters (decd) at 455 (Mahoney JA).

1. These same principles apply equally to s 11A of the Wills Act. It follows from what has been said in those authorities that the scope of the evidence relevant to the Court’s satisfaction about the deceased’s intention may be broader than simply looking at what the deceased did and said at the time the document in question was brought into existence or signed. Section 11A does not in terms require that the deceased person had the requisite intention “at the time of the document being brought into existence”, merely that the deceased intended that such document constitute his or her will, in the sense of a legal document intended to govern the disposition of his or her property after death.

The Evidence

1. In support of the application, the applicant relied upon her affidavit affirmed on 7 February 2023, and tendered a series of correspondence concerning the son of the deceased (the applicant’s brother) who is the other affected beneficiary, both under the informal will in question and under the statutory distribution provisions if the deceased had died intestate. 

1. The correspondence indicated that Mr Stipe Ojvan was aware both of the fact of the informal will and its contents. He was also notified (by letter dated 27 February 2023 which was sent by email) of the details hearing of the application pursuant to s 11A of the Wills Act to take place on 3 March 2023.  While he responded to the email from the solicitors for the applicant on 28 February 2023 and raised concerns about delay in selling the principal asset in the deceased’s estate, he did not indicate any intention to oppose the application for the relief presently sought.

1. The affidavit of Ms Ojvan set out the evidence relating to the manner of execution of the document and what occurred afterwards.  She deposed to having a conversation in early 2013 with her father.  She told him it was a good idea to at least write down his wishes for his will, have two witnesses sign it and get something on paper.  She told her father that she would look on the internet and send some examples of wording to use.

1. Ms Ojvan did what she said she would do.  She typed out the words in English and then handwrote the words in Croatian for her father.  Then she sent the document to her father by post.

1. She did not have any further conversation with the deceased regarding the making of his will.

1. She saw the document that is the subject of these proceedings on 8 September 2022, three weeks prior to the death of her father.  Ms Ojvan deposed to her brother Stipe (Stephen) coming to Canberra shortly after learning that their father was in the final stages of a terminal illness. He looked through the deceased home and personal papers while the deceased was in hospital.  He sent, by text message, a photo of the handwritten will which was found together with the draft that had been prepared by Ms Ojvan and sent to her father back in 2013. 

Issue 1: Is there a document

1. Accompanying the affidavit of the applicant in respect of an application for a grant of probate is a piece of note paper, almost A5 in size, containing handwriting in blue ink and bearing the date 30 March 2013. 

1. I am satisfied that there is a document.

Issue 2: Does the document purport to embody testamentary intentions of a deceased person?

1. The contents of the document includes the following:

I, Niko Ojvan, being of sound mind, declare this to be my Last Will and Testament.

I appoint my daughter, Iva Ojvan Executrix of my Will, and Trustee of my Estate.

I give my entire Estate to my two children, Iva Ojvan, and Stipe Ojvan, to be divided equally.

30 March 2013

1. A signature appears next to the handwritten date in what is clearly the same handwriting and pen as the contents of the document set out above.  Underneath the signature are the words “Signature of Testator”.  The applicant recognises all of the handwriting on the document, including the signature, to be that of her father.

1. At the bottom of the document is the heading “Witnesses” followed by the names of two people, Marko Nazor and Matilda Nazor, and their address in Palmerston ACT.  Next to those details, the Deceased has written “(signature)” with blank spaces above, where the two signatures of the specified witnesses would have been, had they signed the document.

1. The express words of the document as set out above make it plain that the document purports to embody the testamentary intentions of the deceased.  The document identifies the testator and then expressly declares that handwritten document to be his “Last Will and Testament”.  The contents of the document then deal with the intended distribution for the entirety of the deceased’s estate.  I am satisfied that the document purports to embody the deceased’s testamentary intentions.

Issue 3: Is the evidence which has been tendered such as to satisfy this Court that the deceased person intended the document to constitute his or her will? 

1. I am also satisfied that the deceased intended the document to constitute his will and not a draft. 

1. First, the document declares that it is to be the deceased’s Last Will and Testament.  That is evidence of an express intention that that particular document constitute the deceased’s “Last Will and Testament”. 

1. Second, the deceased signed the document, which is consistent with the deceased’s intention that the document have immediate legal effect, rather than being a draft, with something more required to give it legal effect. 

1. Third, the affidavit of Ms Ojvan provides evidence from which inferences may be drawn about how the document was treated by the deceased.  The document was kept by the deceased, together with the letter of assistance containing draft wording for the will sent by the applicant, and what appears to have been a blank legal will kit.  The words of the 30 March 2013 document reflect the draft words provided by the applicant to the deceased at a time relatively contemporaneous to that date.  The inference that I consider to be open is that the deceased took his daughter’s advice, and upon receiving the draft wording for his will, he created the document on 30 March 2013 with the intention of that document being his testamentary act. Although the circumstances in which the document was kept admittedly carry far less weight than the other two matters to which I have referred, I consider that to be further evidence of the Deceased treating the document, after he had written it, as his legal will and as something important to be kept. 

1. Thus, I am satisfied that, when the deceased created the document on 30 March 2013, by signing it and commencing the document as expressly stating that it was his last will and testament, he intended that particular document to constitute his will, without more on his part.  He may have known that the document required two signatures of other people as witnesses to his signature, but on the balance of probabilities, I find that he intended the document to have present operation. 

Conclusion

1. For the above reasons, the orders sought in the application will be made.  The Court orders as follows:

1.Pursuant to s 11A of the Wills Act 1968 (ACT), the Court declares that the holograph document dated 30 March 2013 and bearing the signature of the late Niko Ojvan, which has been produced to the Court, constitutes the Will of the late Niko Ojvan.

2.The Registrar is directed to do all things and take all steps necessary to grant probate of the document constituting the last will of the deceased identified in order 1 to Iva Ojvan.

3.The costs of the application are to be paid out of the estate on a solicitor-client basis.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.

Associate:

Date: