SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY Case Title: In the estate of Yit Oi Hoi Citation:

[2022] ACTSC 340

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the estate of Yit Oi Hoi

Citation:

[2022] ACTSC 340

Hearing Date:

28 October 2022, 2 December 2022

DecisionDate:

7 December 2022

Before:

McWilliam AsJ

Decision:

(1) Pursuant to s 11A of the Wills Act 1968 (ACT) (the Act), the Court declares that the holograph will dated 11 December 2021, the original of which has been sighted by the Court with a true copy of the document held with the court file, constitutes the last will of the late Yit Oi Hoi (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 letters of administration, with the will dated 11 December 2021 attached, to the applicant.

(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 will was not witnessed – whether deceased intended the document to constitute her will

Legislation Cited:

Wills Act 1968 (ACT) ss 9, 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:

Peter Teo (Applicant)

Representation:

Counsel

J Win (Applicant)

Solicitors

Farrar Gesini Dunn (Applicant)

File Number:

PRO 274 of 2022

McWilliam AsJ

1. Before the Court is an application brought pursuant to s 11A of the Wills Act 1968 (ACT) (Wills Act), in relation to the informal will of the late Yit Oi Hoi (the Deceased), who died on 13 December 2021.  The applicant is Mr Peter Teo, the nephew of the Deceased.  He is also the applicant in the substantive proceeding in which this application is brought, seeking a grant of letters of administration with will attached.

1. The application is necessary because the document in question is informal, in that although it is signed by the Deceased, it was not witnessed. Section 9 of the Wills Act requires a will 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 two or more witnesses attesting that signing or acknowledgement of the signing of the will by subscribing the will in the presence of the testator and other witness or witnesses.

1. There was a procedural complexity in that the original of the document is currently held by the Coroner’s Court as part of an investigation into the death of the Deceased which is not yet complete.  However, through the arrangements between the two courts, the original was able to be viewed in chambers and then returned to the Coroner.

The Court’s power to grant relief (by making a declaration)

1. 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.

1. The task before the Court is thus whether it is satisfied that the Deceased intended the document to constitute her will. 

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 (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?

1. Here there is a handwritten document comprised of a single sheet of lined paper of A4 size.  By having access to the original, the Court has been able to confirm that the document is only one page and there is nothing written on the back of the piece of paper.  That evidence readily satisfies the first question. 

Issue 2: Does the document purport to embody the testamentary intentions of the Deceased?

1. The contents of the document include the following:

I am giving 30% of my Rest Superannuation to my [niece], Mary Teo, Hwee Khim…

30% of my Rest Superannuation to my sister, Yuit Lin Hui,

40% of my Rest Superannuation to my nephew, Peter Teo, Lit Keat

I am giving 100% of my house at …Isabella Plains…to my nephew, Peter Teo, Lit Keat…

I am giving 100% of my Bank Account Balance to my nephew, Peter Teo, Lit Keat…

…

1. It is unnecessary to set out the remainder of the document, which contains addresses and bank account numbers and some statements by the Deceased.  The applicant deposes to recognising the handwriting and signature as being that of the Deceased.  The above is sufficient to demonstrate to the Court’s satisfaction that the document purports to embody the testamentary intentions of the Deceased.

Issue 3: Did the Deceased intend that the document should operate as her will?

1. I have considered it appropriate to exercise a degree of restraint in these reasons, as a precautionary measure to avoid trespassing on any investigation currently being undertaken by the Coroner’s Court.  The words of the document expressly indicate that the document was written in contemplation of death.  There is no indication that the document was a draft or in any way incomplete.  The document was kept together with the Deceased’s important papers relating to assets such as her home, bank accounts and superannuation.  Combined with the date of the document being 11 December 2021 (two days before the death of the Deceased), the evidence was sufficient to satisfy the Court that the document was intended by the Deceased to operate as her will at the time she wrote it. 

Conclusion

1. As the Court is satisfied that the Deceased intended the document to constitute her will, it is appropriate to grant the relief sought.  Accordingly, the following orders are made:

1. Pursuant to s 11A of the Wills Act 1968 (ACT) (the Act), the Court declares that the holograph will dated 11 December 2021, the original of which has been sighted by the Court with a true copy of the document held with the court file, constitutes the last will of the late Yit Oi Hoi (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 letters of administration, with the will dated 11 December 2021 attached, to the applicant.

3. The costs of the application are to be borne by the residuary estate of the Deceased.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour, Associate Justice McWilliam

Associate:

Date: 7 December 2022