SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY Case Title: In the estate of Öpik Citation:
[2022] ACTSC 338
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the estate of Öpik |
Citation: | [2022] ACTSC 338 |
Hearing Date: | 2 December 2022 |
DecisionDate: | 2 December 2022 |
Reasons Date: | 6 December 2022 |
Before: | McWilliam AsJ |
Decision: | (1) The Court declares that, pursuant to s 11A of the Wills Act 1968 (ACT) (the Act), the holograph will prepared in or around 2013, the original of which accompanies the application for probate and a true copy of which is annexed to the affidavit of Mai Juta Romot dated 31 October 2022 and marked MJR-02, constitutes the last will of the late Paul Öpik (Deceased), notwithstanding that it has not been executed in accordance with the formal requirements of the Act. (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 Kai Linda Romot and Sigrid Lia Barbara Darby as substitute executors. (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 document containing testamentary wishes handwritten but not signed or witnessed – where surrounding circumstances made it clear that at the time the document was prepared, the deceased intended the document to constitute his will – application granted |
Legislation Cited: | Wills Act 1968 (ACT) s 11A |
Cases Cited: | Hatsatouris v Hatsatouris [2001] NSWCA 408 In the Estate of Gallagher [2022] ACTSC 324 Re Letcher (deceased) (1993) 114 FLR 397 |
Parties: | Kai Linda Romot (Applicant) Sigrid Lia Barbara Darby (Applicant) |
Representation: | Counsel Timothy Morton (Applicant) |
| Solicitors Farrar Gesini Dunn (Applicant) | |
File Number: | PRO 1063 of 2022 |
McWilliam AsJ:
These reasons concern an informal will made in 2013 by the late Paul Öpik (the Deceased), who died earlier this year, on 29 May 2022. The applicants, Ms Kai Linda Romot and Ms Sigrid Lia Barbara Darby, are his two nieces and the persons named as executors in the informal will. They sought a declaration that the handwritten and unsigned document that was propounded as the informal will was the last will of the Deceased, and for probate to be granted in respect of that document, rather than the formal valid will executed by the Deceased on 8 September 1981.
In the 1981 will, the Deceased names his wife, Hilja as the sole executor and beneficiary, but in the event that she predeceased him (she passed away in 2019), the Deceased named his three nieces as joint executors and beneficiaries in equal shares. As will be seen, the key difference between the formal will and the informal will the subject of the present application is that the third niece, Ms Mai Juta Romot, is no longer named a joint executor and receives less of the residuary estate (for reasons which were in evidence but are not important for this application). Ms Mai Romot has sworn an affidavit in this proceeding, confirming her consent to the relief sought in the application.
Following the hearing of the application on 2 December 2022, I made orders granting relief, pursuant to s 11A of the Wills Act 1968 (ACT) (Wills Act), indicating at the time that brief reasons would follow. These are the reasons. To avoid confusion and without any lack of respect, the family members are referred to below by their first names.
The Court’s power to grant relief (by making a declaration)
The power of the Court to declare that a document constitutes the will of the Deceased is found in 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 … the will of the deceased person …if the Supreme Court is satisfied that the deceased person intended the document …to constitute … his… 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 question then, is whether the Court is satisfied that the Deceased intended the document to constitute his Will. I have recently set out the authorities relevant to the issue in the reasons for judgment given 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 (a decision frequently referred to in this jurisdiction), reformulated to follow the more recent decision of Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]. The task for the Court may be broken down into satisfaction of three separate components:
(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?
Issue 1: Is there a document?
The first question is easily satisfied. The evidence before the Court established that there was a document in the handwriting of the deceased, headed “Executors of our Wills”; that is, a holograph will.
Issue 2: Does the document purport to embody the testamentary intentions of the Deceased?
The contents of the document, written entirely in capitals, are as follows:
Executors of Our Wills
Kai-Linda Romot-Smith of … [address in NSW]
Sigrid Darby of [address in NSW]
All to my wife – appoint her as executrix.
All to my husband – Appoint him as – " –
1) $10,000 to only Hilja’s surviving female relation Ōnne Oja of [address in Estonia]
2) Hugo Vilumets of [address in ACT]
The rest of estate to our nieces
40% to Kai Linda Romot
40% to Sigrid Lia Darby
20% to Mai Juta Romot of “Mondrian” [address in NSW]
3) Certain Items of Hilja’s jewellery to Ōnne Oja as listed and set aside by her.
I am satisfied that the substance of the document embodies the testamentary intentions of the Deceased. As is plain from the document, it also embodies the testamentary intentions of the Deceased’s wife, Hilja. However, she died before the Deceased and the Court was informed that as all the assets were held in a joint tenancy interest, this document was not the subject of any earlier consideration in relation to the estate of the Deceased’s wife.
Issue 3: Did the Deceased intend that the document should operate as his will?
The document is not signed by either the Deceased or his wife. Without more, it might be taken to be a diary note or a draft of instructions the Deceased intended to give to a solicitor. However, the affidavit evidence establishes otherwise.
Kai saw the document while the Deceased was alive. She deposes to the Deceased keeping the document in a cream manila folder. Before he died and while he was well, the Deceased spoke with Kai in his living room, with the folder in front of him on the coffee table. The Deceased told her that the folder contained his final wishes and all the information the nieces would need in the event of his or his wife’s death. He took out the document from the folder and said to Kai words to the effect of, “These are my wishes. This is my will”.
The Deceased also spoke to Sigrid about the document. In 2018, the Deceased put into place an enduring power of attorney. The catalyst was a period of hospitalisation, when the Deceased caught severe pneumonia and almost died. At the time, Hilja was still alive, but had dementia. While he was in hospital and at the time the power of attorney was being put into place, the Deceased told Sigrid words to the following effect:
“My will [has] been lodged with [my] lawyer but my wishes have changed and it does not apply any more. I want you to be one of the executors of my Will with the assistance of Kai.”
“I have also changed my mind from having three executors to two because Mai cannot travel any more. Hilja’s Estonian relative, Onne [Oja], receives $10,000 from the estate and 40% will go to you, 40% will go to Kai and 20% will go to Mai.”
The affidavit affirmed by Sigrid also deposes to finding a manila folder labelled “Testamendid” (meaning “wills” in Estonian), when she was clearing the Deceased’s house in 2022. The document which is the subject of this application was found in that folder.
Drawing that evidence together, the Deceased expressly stated that the document constituted his will, while holding the document, to one of the executors. He also communicated that he had changed his will and that the formal will (which was also in evidence) no longer represented his wishes. He also described the contents of the document to the other executor while in hospital in 2018. Finally, the Deceased kept the document in a folder personal to him, marked “Wills”, which confirms that the Deceased treated that particular document as his will. I am satisfied that the Deceased intended the handwritten document to operate as his final will and testament.
Conclusion
As the Court was satisfied that the Deceased intended the document to constitute his will, it was appropriate to grant the relief sought. Accordingly, the following orders were made:
The Court declares that, pursuant to s 11A of the Wills Act 1968 (ACT) (the Act), the holograph will prepared in or around 2013, the original of which accompanies the application for probate and a true copy of which is annexed to the affidavit of Mai Juta Romot dated 31 October 2022 and marked MJR-02, constitutes the last will of the late Paul Öpik (Deceased), notwithstanding that it has not been executed in accordance with the formal requirements of the Act.
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 Kai Linda Romot and Sigrid Lia Barbara Darby as substitute executors.
The costs of the application are to be borne by the residuary estate of the Deceased.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour, Associate Justice McWilliam Associate: Date: 6 December 2022 |
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