The Estate of Bradley Scott Lyons

[2021] NSWSC 197

Supreme Court

New South Wales

Medium Neutral Citation:

The Estate of Bradley Scott Lyons [2021] NSWSC 197

Hearing dates:

24 February 2021

Date of orders:

11 March 2021

Decision date:

11 March 2021

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court:

1.   Orders that the relief sought by the Plaintiff in Paragraph 1 of the Summons for Probate be dismissed.

2.   Declares that the Will dated 27 May 2016 of Bradley Scott Lyons is the last Will of the deceased.

3.   Orders subject to compliance with the Probate rules of Court, that probate in solemn form of the Will dated 27 May 2016 of Bradley Scott Lyons be granted to the Plaintiff.

4.   Remits the matter to the Senior Deputy Registrar in Probate to deal with the grant of Probate as an application for an uncontested grant of the 2016 Will.

5.   Orders that the Plaintiff’s costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased.

Catchwords:

SUCCESSION – Probate and administration – Informal document being a draft Will – Dispensing with requirements for execution of the draft Will pursuant to Succession Act 2006 (NSW) s 8 – No dispute that the draft Will is a document, that it purported to state the testamentary intentions of the deceased, and that it had not been executed in accordance with Part 2 of the Succession Act – Sole question whether the Court is satisfied that the deceased intended the draft Will to form his will – The deceased aware of need to sign draft Will – Evidence does not permit a finding that the deceased intended that the draft Will would form his Will

Legislation Cited:

Evidence Act 1995 (NSW), s 140

Interpretation Act 1987 (NSW), s 21

Succession Act 2006 (NSW), s 8

Cases Cited:

Baldwin's Limited v Halifax Corp (1916) 85 LJKB 1769

Belcastro v Belcastro [2004] WASC 111

Bell v Crewes (2011) 5 ASTLR 298; [2011] NSWSC 1159

Commissioner of Railways (WA) v Stewart (1936) 56 CLR 520; [1936] HCA 51

Estate of Williams deceased (1984) 36 SASR 423

Fast v Rockman [2013] VSC 18

in Re Estate of Sophia Alexandra Hicks (Dec); ex parte Hicks [2020] WASC 170

In the Estate of Margaret, Deceased [2012] NSWSC 1490

In the Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446

In the Estate of Stewart (Supreme Court (NSW), Cohen J, 12 April 1996, unrep)

In the Will of Lobarto Shields v Caratozzolo (1991) 6 WAR 1

Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446, at 452; [1994] FCA 1059

Marley v Rawlings [2013] 2 WLR 205; [2012] EWCA Civ 61

Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371

Oreski v Ikac [2008] WASCA 220

Pahlow-Silady v Silady [1999] NSWSC 890

Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (Supreme Court (NSW), Powell J, 19 June 1992, unrep)

Re Broad, Smith v Draeger [1901] 2 Ch 86

Re Estate Miruzzi, deceased [2018] NSWSC 1899

Re Estate of O’Dell [2010] NSWSC 678

Re Estate of Peter Brock (2007) 1 ASTLR 127; [2007] VSC 415

Re Nicholls [1996] 1 Qd R 179

Re Sanders [2016] VSC 694

Snape v Gibson; Re Estate of Paul Francis Snape [2006] NSWSC 829

The Estate Laura Angius [2013] NSWSC 1895

The Estate of Kevin John Hines v Hines [1999] WASC 111

The Estate of Michael Francis McNamara (Supreme Court (NSW), Powell J, 10 April 1992, unrep)

Wood v Smith [1993] Ch. 90 (C.A.)

Category:

Principal judgment

Parties:

Debbie Sharon Pack (Plaintiff)

Representation:

Solicitors: Bartier Perry Lawyers (Plaintiff)

File Number(s):

2020/282027

Judgment

Introduction

1. HIS HONOUR: On 24 February 2021, I heard, by way of live hearing, an uncontested Probate proceeding in which the Plaintiff, Debbie Sharon Pack, seeks Probate of an unsigned, and unwitnessed, draft Will (Ex A) of Bradley Scott Lyons (the deceased), who was her husband. I shall refer to this document as “the draft Will” without any prejudgment and for convenience only.

2. As is usual practice in current conditions, this judgment of the Court will be delivered to the legal representatives of the Plaintiff electronically and will then be published on the Court’s Caselaw website.

3. In summary, and so far as is relevant, the draft Will, which had emblazoned, on every page, the word “Draft”, contained a Clause revoking all previous Wills and other testamentary acts that the deceased had made; a Clause appointing the Plaintiff as executor and trustee of the estate; a Clause giving to her all of the deceased’s personal effects and household effects; a Clause requiring the executor to pay all of the debts (other than those which were secured by an asset of his estate); and then a Clause requiring her to “distribute the residue of my estate to The Bradley Scott Lyons Family Testamentary Trust” (the Trust).

4. The draft Will went on to provide that the Trustee of the Trust was to be the Plaintiff, or a company nominated by her; that the purpose of establishing the Trust was to provide an effective investment vehicle for the Plaintiff and the three children, Lily, Samantha and Zoe, and any future issue; that subject to any specific terms of the Trust, the Trustee “must administer the Trust for the benefit of the Beneficiaries in such manner as the Trustee in their absolute discretion sees fit”; and that the Trust Fund and the income derived by the Trust “should, in the manner and to the extent that the Trustee in their absolute discretion determines, be applied and used by the Trustee to assist the Beneficiaries in meeting their reasonable living, maintenance and education needs”.

5. The deceased also left a duly executed Will dated 27 May 2016 (Ex B) (the 2016 Will), in which he appointed the Plaintiff as executor and trustee of his estate, if she survived him by more than 30 days; gave all of his personal effects and household effects to her; and after the payment of debts, funeral and testamentary expenses, left the whole of the residue of his estate to her absolutely.

6. There is no dispute that if the principal relief sought by the Plaintiff is not granted, the 2016 Will is the last valid Will of the deceased. In those circumstances, it will be the subject of a grant of Probate if the Court is not satisfied of the Plaintiff’s principal claim for relief.

The Proceedings

7. The Summons for Probate, which was filed on 13 November 2020, sought the following relief:

“1. …a declaration under section 8 of the Succession Act 2006 that the deceased intended the unsigned and unwitnessed Will dated February 2020 (February 2020 Will) to form his will; or

2. in the alternative, and only if the February 2020 Will is not admitted to probate, … that Probate of the Will dated 27 May 2016 be granted to the plaintiff, Debbie Sharon Pack;

3. …an order that the plaintiff’s costs of this application be paid out of the estate on an indemnity basis; and

4. …such further or other orders as this court deems appropriate.”

8. In relation to the principal claim for relief, the Plaintiff relied upon s 8 of the Succession Act 2006 (NSW) (the Act) which provides:

8   When may the Court dispense with the requirements for execution, alteration or revocation of wills?

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

(c)  a full or partial revocation of the deceased person’s will — if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.

(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)  This section applies to a document whether it came into existence within or outside the State.

9. The section applies to wills, whenever made, if the testator dies on, or after, the commencement of the Act (1 March 2008): see Cl 3(3) of Sch 1 of the Act.

10. The proceedings were referred to the Court by the Senior Deputy Registrar in Probate following a number of requisitions issued by the Court.

11. No other party was required to be joined as the Plaintiff is the only person who could be adversely affected by the principal claim for relief sought by her. It is clear that whilst under the 2016 Will, the Plaintiff was the sole beneficiary of the whole of the deceased’s estate, under the draft Will, she is one of a number of discretionary objects entitled to be considered as a recipient of capital, and income, of the Trust. The other named principal discretionary objects are the three minor children of the deceased and the Plaintiff.

12. Bearing in mind her claim for relief in the Summons for Probate, the Plaintiff is prepared, willingly, to give up her absolute interest to the deceased’s estate and submit herself to the onerous, legal, and fiduciary duties of a trustee, notwithstanding the discretionary nature of the trust. She has also incurred legal costs making this application.

13. Without going into detail, the value of the deceased’s estate is reasonably substantial. The net value of the estate is estimated to be about $3,350,000. It follows that, whilst there are tax minimisation advantages of a testamentary trust, the only adversely affected person if the orders sought were made is the Plaintiff, who would lose her absolute entitlement to the whole of the deceased’s estate under the 2016 Will.

14. The proceedings were listed for a short live hearing rather than being determined on the papers at the request of the legal representative of the Plaintiff.

Background Facts

15. The deceased died on 22 March 2020. He had been diagnosed with metastatic hepatocellular cancer (liver cancer) about 3 years prior to his death.

16. Mr Paul Brady, a financial planner from whom the deceased and the Plaintiff received advice, had discussions with the deceased in 2018. However, his last conversation with the deceased appears to have been on 2 October 2019, being several months before any draft Will was prepared, and sent to the deceased or the Plaintiff.

17. On 17 December 2018, Mr Gerard Basha, an extremely experienced Australian legal practitioner, particularly in wills and estate matters, received an email from Mr Brady, indicating that the deceased and the Plaintiff wished to update his, and her, Will, respectively, to incorporate a testamentary trust.

18. Mr Basha made an appointment to confer with the deceased and the Plaintiff on 4 January 2019, but they failed to attend the appointment. Upon contacting the deceased, subsequently, Mr Basha was told that the deceased had received “not good medical news” about his health and had been too upset to attend the meeting.

19. Mr Basha made subsequent appointments to meet the deceased and the Plaintiff on 28 March 2019, and on 27 May 2019, but they did not attend either of these appointments. He finally met with the deceased and the Plaintiff on 4 February 2020, over 12 months after the initial appointment was made.

20. At the meeting on 4 February 2020, Mr Basha discussed the advantages of testamentary trusts. The deceased and the Plaintiff confirmed that he, and she, respectively, wanted a Will prepared that incorporated a testamentary trust. The Plaintiff gave evidence that a meeting occurred on 20 February 2020, but Mr Basha did not refer to any meeting on that date in his affidavit. At the hearing, he acknowledged that he had conferred with the deceased and Plaintiff on 4 February 2020: Tcpt, 24 February 2021, p 12(15-21).

21. Sometime after 4 February 2020, in a telephone discussion with the deceased about his firm’s Service Agreement, Mr Basha agreed to the deceased’s request to cap the costs for the legal work that was to be done. In the same telephone discussion with Mr Basha, the deceased confirmed his instructions for the Will to be drafted to include a testamentary trust.

22. A copy of only one page of the firm’s Service Engagement with the deceased and the Plaintiff is an annexure to Mr Basha’s affidavit, which showed that it had been amended as to the amount of the legal costs for professional work. The amendments bear the initials of each of the deceased and the Plaintiff.

23. Presumably, the whole document was then returned to Mr Basha. (No explanation for not providing a complete copy of the Service Agreement was given.) Whilst the date of the amended Service Engagement document, and the date of its return, are not the subject of evidence, it must have been returned after 4 February 2020, and before 24 February 2020, because on the later date, Mr Basha sent an email and a number of other documents to the deceased. A copy of that email (Ex A1) was in the following terms:

“…

The purpose of this email is to send you the draft documents for you to review, to obtain your final instructions on your enduring power of attorney and to arrange a convenient time towards the end of this week for you to sign your estate plan documents.

Please find attached the following draft documents, for your review and approval:

1.   Your enduring power of attorney. We note you will provide us with the full name and address of your substitute attorney if either of you are unable to act as attorney for the other.

2.   Your appointment of enduring guardian.

3.   Your Will.

We will go through the documents with you in more detail at our meeting.

We look forward to hearing from you in relation to your substitute attorney and a convenient time to meet with you towards the end of this week.”

24. Mr Basha gave evidence that the intention was to meet, later in the week, “to have the documents signed”. He also wrote that the deceased “was too sick to attend our office to sign the Will which he had approved” but how he knew this was not disclosed in the evidence.

25. I have taken what follows from the Plaintiff’s affidavit:

“…

(d) Brad’s sickness meant we were unable to discuss our intention to include testamentary trusts in our Wills with our lawyer, Gerard Basha of Bartier Perry (Gerard), until 20 February 2020. After discussing the issue with Gerard, we instructed him that we wanted to include testamentary trusts in our Wills.

(e) After meeting with Gerard the day before, Brad and I again discussed our Wills. Brad said to me:

‘Once we get the Wills from Gerard, make an appointment with him so we can sign them straight away.’

(f) Brad was taken to St Vincent’s Hospital, Darlinghurst by ambulance on 22 February 2020 for pain management and continuation of his radiotherapy. Treatment for his stage 4 liver cancer was stopped to deal with his excruciating pain. Brad was heavily medicated and was sleeping a lot.

(g) We received our Wills from Gerard on 24 February 2020.

(h) After Brad was taken to Hospital, I took the Wills and other estate planning documents to him in the Hospital. Brad looked through the documents in my presence towards the end of February 2020, but I cannot recall the exact day.

Brad said to me again:

‘We need to get the Wills signed.’

I said to Brad:

‘We need to get your pain under control and you really can’t leave the Hospital.’

(i) At this time, Brad was heavily medicated. I was of the view it wasn’t necessary to call Gerard to the Hospital and I would arrange for us to see Gerard to have the Wills signed when Brad left the Hospital.

(j) Unfortunately, my view of Brad’s condition was completely incorrect. On 4 March 2020, Brad was transferred from St Vincent’s Hospital to Sacred Heart for palliative care.

(k) Brad came home from Sacred Heart on 13 March 2020. At home, I was responsible for all medications including injecting the morphine and steroids and intravenous feeding. He was in a lot of pain and rested a lot of the time.

(l) Brad was just too sick at this time to do anything, let alone sign legal documents. Also, Brad and I wanted Brad to spend his very limited waking hours with our young children who were aged 13, 9 and 8 at that time.

(m) On 21 March 2020, I called an ambulance as it was becoming medically impossible for me to manage Brad’s situation at home. Brad was admitted to Hospital.

(n) Brad passed away in Hospital on 22 March 2020.

(o) I accept complete responsibility for Brad not signing the February 2020 Will because he wanted me to make it happen and I put it off in the mistaken belief that we had time.

(p) I have no doubt that the February 2020 Will was what Brad intended for his family.”

26. The Plaintiff’s affidavit makes clear that additional steps would need to be taken, including, at least, giving instructions to Mr Basha to draft a Will in the terms of the draft Will, and then having the deceased sign that Will. There is no evidence of any such instructions having been given to Mr Basha at any time after 24 February 2020.

27. The Plaintiff gave oral evidence at the hearing. In light of her evidence, I asked whether the deceased had known of the significance of signing the draft Will. She responded that he knew that he had to get the Will signed, so she said, “it would be a legal document”. This suggests that the deceased had a familiarity with the formal requirements for execution of a will.

28. No evidence going to the deceased’s medical condition, after 24 February 2020, was relied upon. It is more probable than not that he was extremely unwell and in extreme pain. However, there was no evidence that he was physically unable to sign a document, such as one in the form of the draft Will or the draft Will itself.

29. I accept that the Plaintiff was faced with extremely difficult circumstances, including the fact that she was caring for her sick husband; that she was caring for their three young children, aged 13, 9 and 8, respectively; and that she also had the deceased’s elderly parents from Perth, staying with her and the family.

30. It also cannot be forgotten that in about February 2020, Australia was facing the start of the COVID-19 pandemic, it being on 18 February 2020 that the Prime Minister published the Australian Health Sector Emergency Response Plan for COVID-19.

The Submissions

31. The principal submission made by Mr Basha was that “as soon as the plaintiff approved the February 2020 Will, the draft imprint on the Will became irrelevant and [the deceased] had the required testamentary intention that the February 2020 Will form his Will”. He also submitted, as acknowledged by the Plaintiff, that “it was [the Plaintiff’s] mistaken belief, notwithstanding [the deceased’s] state of health, that she had time to arrange for [him] to sign his Will”.

32. He stated that the unique facts and circumstances of this matter included that the deceased was suffering from a terminal illness; that he had consulted a financial planner and a lawyer to get his affairs in order; that he had confirmed to Mr Brady, to Mr Basha and to the Plaintiff that he wanted his Will to include a testamentary trust, because of the advantages it gave his family; and that he was not going to change his mind. (Bearing in mind the length of time that passed between the deceased and the Plaintiff seeing Mr Brady and the time he saw Mr Basha, I have some difficulty accepting this submission in its entirety.)

33. Mr Basha added:

“The evidence shows that because of the state of his health, [the deceased] could do ‘no more’ himself to give effect to his testamentary intentions. It was the plaintiff in her difficult circumstances … that prevented [the deceased] signing the February 2020 Will.”

34. Finally, he submitted that this combination of facts would permit the Court to distinguish this case from others and that “the Court should, consistent with the legislative policy and in the unique circumstances of this matter, be satisfied that [the deceased] intended the February 2020 Will to form his Will”.

34. I have read the affidavit evidence, the transcript of oral evidence, and Mr Basha’s submissions, very carefully.

35. One specific additional matter to which I should refer, is the submission made by Mr Basha that I was mistaking the principles of law by raising with him, when the matter was first before me, that there was a need to satisfy what he described as the “without more” test.

36. Respectfully, he seems to have misunderstood to what his attention was directed. I dealt with this issue in Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371, at [94] – [98]:

“As was recently pointed out by White J in Re Estate of Puruto [2012] NSWSC 827, at [28], ‘... it is sometimes put the deceased must have intended that, without more, the document should have effect as her Will’ (my emphasis). (The genesis of the highlighted phrase is taken from a number of judgments of Powell J including The Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (NSWSC, 19 June 1992, unreported). However, in Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56], Powell JA, as a member of the Court of Appeal, with whom Priestley and Stein JJA agreed, noted that the words used in other cases were ‘without more on her, or his, part’.)

In my view, the use of the words “without more on her, or his, part", where used in other cases, does not really add anything. What the words do is direct attention to a consideration of the particular document itself, which must purport to "state the testamentary intentions of the deceased person", and then determine whether the Court is satisfied that the deceased person intended that particular document to form his, or her, will, or to form an alteration to his, or her, will. Thus, the focus of the section is on the actual testamentary intention of the deceased so far as it relates to the particular document in question.

I respectfully agree with what White J said in NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872, at [15]:

"To restate the last requirement, the question is whether the deceased intended the document to be his or her testamentary act, that is, to have present operation as a will (Re Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 at 455; Oreski v Ikac [2008] WASCA 220 at [52]-[55])."

Also, I accept, as Windeyer AJ pointed out in National Australia Trustees Ltd v Fazey [2011] NSWSC 559, at [18], that:

"Great care must be taken in determining this question. Many people write out proposals for their wills on pieces of paper headed 'will' but often these are no more than present thoughts not testamentary intentions and certainly not intended to be wills."

In Dolan v Dolan [2007] WASC 249, at [22], I note that Murray J put the matter this way:

"... the document will be held to constitute the will of the deceased if the court is satisfied that the deceased intended its terms without more - without any alteration or reservation - to be the manner in which the property of the deceased dealt with in the document was to be disposed of upon his or her death."”

38. I repeated my views in The Estate of Laura Angius [2013] NSWSC 1895, at [259] - [264]. Lindsay J referred to what I had written, with approval, in Re Estate Miruzzi, deceased [2018] NSWSC 1899 at [24].

The Law

39. I am extremely sympathetic to the position of the Plaintiff. It would be extremely easy to be tempted to apply the section, with improper liberality, bearing in mind that s 8 is a general dispensing power which allows the Court to admit a document to probate notwithstanding that it has not been executed in accordance with the requirements of the Act. The section of the Act is also remedial in nature, meaning that it provides a means by which the Court can give effect to the will-maker’s true testamentary intentions, even though the will has not been executed in accordance with the Act.

40. In dealing with the Probate and Administration Act 1898 (NSW), s18A, the predecessor of s 8 of the Act, in In the Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446, Mahoney JA, at 462, wrote:

"Secondly, s18A should, as I have indicated, be given a beneficial application. There are, in the history of this branch of the law, many cases in which the intention of the deceased has not been able to be given effect. That is an evil which should be remedied as far as may be. It may be understood why the legislature decided not to give testamentary effect merely to any statement of testamentary wishes, however casually stated and even if it was not contemplated that legal results would follow. The consequences of that as far as concerns proof and otherwise, can well be imagined. But the benefits of the change should not be withheld by requiring too rigid a manner of proof that what was put in a document should have legal effect. If a document is on its face such as contemplates legal effect, ordinarily it should be given effect unless - as in this case - there are contexts or circumstances that lead to the contrary conclusion."

41. Even earlier, in dealing with similar legislation in Western Australia, Nicholson J, in In the Will of Lobarto Shields v Caratozzolo (1991) 6 WAR 1, at 8, observed:

"The plain and natural meaning of s 32 read in conjunction with s 8 permits it to be applied (where the evidence permits it) to validate a document unsigned by the testator."

42. Slattery J, in ReEstate of O’Dell [2010] NSWSC 678 at [33], wrote that the “Succession Act s 8 should not be applied with too stringent a requirement of proof that a propounded document otherwise clearly embodying the testamentary intentions of the deceased does constitute his will”, citing Kirby P, in In theEstate of Masters (Deceased); Hill v Plummer at 452. The section is curative of any technical non-compliance with the part of the Act dealing with execution.

43. However, these general statements should not be taken to mean that the statutory formalities, enshrined in the Act, are to be unduly relegated in importance: Belcastro v Belcastro [2004] WASC 111 at [6]; ReEstate of Brock (2007) 1 ASTLR 127; [2007] VSC 415 at [20]; Re Sanders [2016] VSC 694 at [14].

44. Whilst the Plaintiff takes full responsibility for the draft Will not having been signed by the deceased, it is necessary for the Court to determine the application in accordance with s 8 of the Act. The sympathy that I have for the Plaintiff cannot justify the court attempting to fit the existing facts into strict legal requirements if objectively those requirements are not made out.

45. As was recently written in Re Estate of Sophia Alexandra Hicks (Dec); ex parte Hicks [2020] WASC 170, at [17]:

“The desires of the living are not the intentions of the deceased, and cannot be allowed to substitute for them.”

46. In In the Estate of Masters (Deceased); Hill v Plummer, Priestley JA, at 466, wrote that the particular questions for determination in a case such as this, are “essentially questions of fact”.

47. The burden of proof of all issues relating to s 8 is on the Plaintiff and is to be satisfied on the balance of probabilities. In deciding whether it is so satisfied, without limiting the matters that may be taken into account, the Court is required to take into account that these are Probate proceedings (the nature of the action); that the size of the estate is substantial (the nature of the subject matter of the proceeding); and the terms of the document sought to be propounded (the gravity of the matters alleged): s 140 Evidence Act 1995 (NSW).

48. The gateway into s 8 is by means of “a document”. Section 3 of the Act provides that the definition of “document” for the purposes of s 8 is the meaning given to the term by the Interpretation Act 1987 (NSW), s 21, which relevantly provides:

21 Meanings of commonly used words and expressions

"document" means any record of information, and includes:

(a) anything on which there is writing, or

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them…

49. There can be no dispute, in this case, that there is a document (the draft Will prepared by Mr Basha and sent to the deceased) and that it was not executed, or witnessed, in conformity with the formal requirements of s 6(1) of the Act. Execution "is the validation of a document by going through the formalities required by law for that purpose": In the Estate of Williams, deceased (1984) 36 SASR 423, at 425. The draft Will was not signed by the deceased.

50. It also cannot be in dispute that the document purports to state the testamentary intentions of the deceased. The weight of the evidence makes clear that, by 4 February 2020, the deceased had given instructions for a will to be drafted that contained a testamentary trust and that the contents of the draft Will, at least to the extent that it did so, expressed what were his then testamentary intentions.

51. In regard to this aspect, reference should be made to Re Broad, Smith v Draeger [1901] 2 Ch 86, in which Kekewich J, in dealing with a marriage settlement which provided that property should be disposed of as the wife should direct, or appoint, by deed, will or codicil, or any writing in the nature of or "purporting to be a will" or codicil, wrote, at 91-92:

"What is the meaning of the expression ‘purporting to be’ a will or codicil? ... [T]he question here is whether a document which is in form and substance a will, but which, because it was not duly executed as such, fails to be a will, in the legal sense, is or is not a document which ‘purports’, to be a will... This document is on the face of it a disposition of property made in contemplation of death, and it only fails to be a will because the maker of it did not comply with the requirement of the Wills Act that the witnesses should be present when she signed it. I think, therefore, that I must hold that this document... is one which ‘purports’ to be a will."

52. In Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446, at 452; [1994] FCA 1059, Hill J in dealing with the Corporations Law, wrote:

"The word 'purport' is defined relevantly in the Macquarie Dictionary (2nd Rev Ed) as - '1. To profess or claim: 'a document purporting to be official'. 2. To convey to the mind as the meaning or thing intended; express; imply.'"

53. In In the Estate of Masters (deceased); Hill v Plummer, Priestley JA pointed out, at 469, that:

"A document in which a person says what that person intends shall be done with [his/her] property upon death seems to me to be a document which embodies the testamentary intentions of that person."

54. It is not necessary that the document said to be a will should assume any particular form, or that it be couched in language technically appropriate to its testamentary character. It is sufficient if it is intended to dispose of property, or of rights of the deceased, in a disposition that is to take effect upon death, but until then is not to take effect but is to be revocable. Although usual, it is not legally essential to find a clear statement identifying the document as a will: Romano v Romano [2003] NSWSC 436 at [6] ‑ [8] (Bryson J); Newman v Brinkgreve; Estate of Verzijden at [81].

55. However, s 8 is in two parts, one characterising the document and the other, the intentions of the deceased. It is necessary to establish each in order to cause the section itself to produce the result, relevantly, that the document forms the deceased person’s will.

56. In this case, it is for the Plaintiff to establish that the deceased intended the document to form his Will. In other words, for the draft Will to be admitted to probate, the Plaintiff must establish, on the balance of probabilities, that the deceased intended the draft Will to govern the disposition of his property after his death and to form his Will. Experience dictates that this is usually the most difficult question - and one to be determined with great care: Borthwick v Mitchell [2017] NSWSC 1145 at [77] (Ward CJ in Eq).

57. Mahoney JA, in In the Estate of Masters (deceased); Hill v Plummer at 455, put the matter this way:

"Section 18A(1) requires not merely that the document propounded "embody the testamentary intentions of" the deceased but also that the deceased "intended the document to constitute his ... will". For the section to operate, the Court must be satisfied that the intention was that the document operate, in the sense to which I shall refer, as an actual act in the law.

There is, in principle, 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. A will, like, for example, a contract, a deed, and a sale, is, as it has been said, "an act in the law". It is something to which the law attaches the legal consequences of that kind of transaction: ... Ordinarily, a transaction will or will not be an act in the law of the particular kind according to whether it was of the relevant form or nature and was intended to operate as such. Thus, a document which is in form a will will not operate as such if it is, for example, a draft or "a trial run", not intended to have a present operation. A person may set down in writing what are his testamentary intentions but not intend that the document be operative as a will. This may occur, for example, in informal circumstances, in a letter or a diary or the like. What is to be determined in respect of a document propounded under s 18A is whether, assuming it to embody the testamentary intentions of the deceased, it was intended by the deceased as his testamentary act in the law, that is, to have present operation as a will."

58. In Oreski v Ikac [2008] WASCA 220, Newnes AJA, with whom Martin CJ and McLure JA agreed, wrote at [54]:

“It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased's testamentary intentions, that is not of itself sufficient. Section 34 does not enable any document which expresses the deceased's testamentary wishes to be admitted to probate. The document must be intended to be the legally operative act which disposes of the deceased's property upon their death; that is, it must have been intended by the deceased to have present operation as his or her will. A person may have set down in writing their testamentary intentions but not intend that the document be operative as a will. Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased's lifetime, or to be a note of instructions, or a draft will or a ‘trial run': In the Estate of Masters (Dec), Hill v Plummer (1994) 33 NSWLR 446 at 455; Equity Trustees Ltd v Levin [2004] VSC 203.”

59. In Newman v Brinkgreve at [95], I wrote that the focus of s 8(2)(a) is on “the actual testamentary intention of the deceased so far as it relates to the particular document in question”.

60. It is sometimes difficult to assess the intentions of a person who has left no specific directions, or indications, relating to the informal Will. All that the Court can do, in those circumstances, is to look at such facts as are available, in order to determine what was more likely to have been intended by the deceased in respect of the document concerned: In the Estate of Stewart (Supreme Court (NSW), Cohen J, 12 April 1996, unrep).

61. In determining whether the Court is satisfied that the deceased person intended the document to form his Will, the Court may, in addition to considering the form and content of the document or part of it, have regard to, amongst any other matter, (a) any evidence relating to the manner in which the document, or part of the document, was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

62. A signature on the testamentary document would, in most cases, carry the implication that the person intended the signature to give testamentary effect to the document: Wood v Smith [1993] Ch. 90 (C.A.) at [111]. The object of a signature on a testamentary document was considered in Marley v Rawlings [2013] 2 WLR 205; [2012] EWCA Civ 61. After referring to Wood v Smith, Black LJ, at [51], wrote:

"Scott LJ's observation that the object of a signature by a testator is "to authenticate the written document in question as the will of the testator" is interesting. There seem to me to be two elements in that. By his signature, the testator is not only executing the document as a will with immediate effect but also (at least in a broad sense, subject to adjustment arising from issues of want of knowledge and approval and matters within the scope of section 20) confirming that the document represents his testamentary intentions. This dual function is consistent with the historical roots of the present provision. Part of the motivation for the original requirements as to the position of the signature on a will was, it seems to me, the desire to provide a simple and reliable way of establishing, without oral evidence, that the will contained the provision that the testator wished to make. So initially the signature executing the document had to be at the foot or end of it and therefore almost inevitably had to be applied after the substance of the will had been set out, and even when that was relaxed in the 1852 amendment, it was still provided that no signature would be operative to give effect to any disposition or direction underneath or following it or which was inserted after the signature was made.”

63. The document, itself, should also be considered in context: Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (Supreme Court (NSW), Powell J, 19 June 1992, unrep). The relevant intention may be inferred from the physical form of the document itself: The Estate of Kevin John Hines v Hines [1999] WASC 111; In the Estate of Margaret, Deceased [2012] NSWSC 1490 at [31]. The document must be read as a whole.

64. Other relevant facts may be the degree of closeness in time of death to the preparation of the document; evidence of the deceased’s state of mind leading up to the preparation of the document; the availability of persons to act as attesting witnesses (Re Nicholls [1996] 1 Qd R 179 at 181-182); and the relative publicity given to the document (Snape v Gibson; Re Estate of Paul Francis Snape [2006] NSWSC 829) should also be considered.

65. The Court may also take into account the existence of prior solicitor-drawn wills when examining the extent of the failure to comply with formalities. In appropriate circumstances, an inference may be drawn that the deceased was aware of the formalities required for a will. This may affect the question whether the Court should be satisfied that the deceased intended the informal document to be an amendment to his or her Will or an alteration to his or her Will: Re Estate of Brock at [34] (Hollingworth J).

66. In this case, as the Plaintiff said in her oral evidence, the deceased understood the significance of signing the Will, but as a result of her entreaties, did not do so. Thus, the real issue turns on whether the deceased intended the draft Will to form his Will notwithstanding his awareness of the need to execute it, having an opportunity to execute it but not doing so.

67. Because of the circumstances of this case, I have considered whether this is a case of the deceased having been prevented from signing the draft Will, or a document when prepared in the form of the draft Will, by something in the nature of an “act of God” (as the Court is in the habit of construing that phrase).

68. So far as the expression "act of God" is concerned, it was referred to by Latham CJ in Commissioner of Railways (WA) v Stewart (1936) 56 CLR 520 at 528-529, and by Dixon J at 536-537 (who quoted Atkin J in Baldwin's Limited v Halifax Corp (1916) 85 LJKB 1769).

63. Latham CJ wrote:

"An 'act of God' has been defined in various ways. In some definitions the idea appears that in order to be an 'act of God' an event must be irresistible, for example, per Mellish L.J. in Nugent v Smith (1876) 1 CPD 423 at 441, but the more generally received definition is stated by James L.J in the same case at 444, where it is said that an event is an 'act of God' where it is shown that 'it is due to natural causes directly and exclusively, without human intervention, and that it could not have been prevented by any amount of foresight and pains and care reasonably to be expected'."

70. My consideration of this concept was ignited by what Powell J wrote in The Estate of Michael Francis McNamara (Supreme Court (NSW), Powell J, 10 April 1992, unrep at 4):

“…despite the exception to the rule of the Ecclesiastical Courts referred to by Sir John Nicoll, which exception extended permitting ‘instructions’ for a Will being admitted to Probate in cases in which an ‘act of god’ intervened to prevent the intending testator executing the engrossed Will (Huntington v Huntington (1814) 2 Phill. Ecc. 213; 161 E.R. 1123; Allen v Manning (1825) 2 Add. 490; 162 E.R. 374; see also Whyte v Pollok (1882) 7 App. Cas. 400; Godman v Godman (1919) p. 229 (Horridge J.); (1920) P. 261 (C.A.) and cases there cited) the present is not one in which it was an ‘act of god’ which prevented the Deceased from executing ‘the Will’ but, rather, is one which the Deceased’s failure to execute ‘the Will’ seems to have been due to some continuing reluctance on his part to bring himself to do so.”

71. More recently, Hollingworth J wrote in Re Estate of Brock, a case that dealt with s 9 of the Wills Act 1997 (Vic), which section is in materially the same terms as s 8 of the Act, at [39] - [40]:

"Section 9 was clearly intended to apply where the necessary formalities were not complied with merely as a result of inadvertence.

On the other hand, if the deceased failed to sign the will or comply with formalities not by virtue of inadvertence or an 'act of God' beyond his or her control (usually, dying before execution), but rather as a result of a 'conscious decision' not to do so, including a reluctance to do so, the court is likely to decline to admit it to probate."

72. In Fast v Rockman [2013] VSC 18 at [112]-[113], Habersberger J, discussed a deceased’s awareness of the formalities required for a will and wrote:

“I accept that a deceased’s awareness of the formalities required for a will may bear on a court’s assessment as to whether he or she intended an informal document to [be] his or her will. Where a deceased is aware of those formalities and had an opportunity for the will to be executed in conformity with those requirements but failed to do so, that failure tends to point against the conclusion that the deceased intended the document to be his or her will. Conversely, a lack of full familiarity or awareness with those formalities may allow a court more readily to infer that the deceased intended the informal document to have legal effect according to its terms after his or her death. Further, if a deceased had failed to sign a will or comply with the formalities not by virtue of inadvertence or ‘act of God’ beyond his or her control, but as a result of a conscious decision not to do so, including a reluctance to do so, the court is likely to decline to admit the document to probate.

In many cases where wills that do not comply with statutory formalities are sought to be admitted to probate, the would be testator, especially where a solicitor had been engaged to prepare one, is likely to have been aware that the document in question had to be executed in accordance with those formalities to have legal effect. But this, in my opinion, is only one of the factual circumstances which a court will take into account in assessing what ultimately is a question of fact as to whether the requisite intention existed.”

73. White J in Bell v Crewes (2011) 5 ASTLR 298; [2011] NSWSC 1159 referred to the principle, and after referring to the passage in the case quoted above, continued, at [36] – [47]:

“Mr Knowles submitted that the necessary inference of the passage quoted is that if a deceased fails to sign the will, or comply with formalities, by virtue of an act of God beyond his or her control, such as by dying before execution, then the document is to be admitted to probate.

That does appear to be the inference to be drawn. But with respect, her Honour did not develop the proposition or explain why in those circumstances it would be inferred that the deceased intended the document to be his or her will before execution.

The point was taken further in Mitchell v Mitchell [2010] WASC 174. That was a stronger case than the present. But on the facts, there was no relevant difference of principle.

In Mitchell v Mitchell, the deceased had been admitted to hospital. He gave instructions to solicitors to prepare a will. A will was prepared in accordance with those instructions. On the morning of his death, the deceased, having apparently expressed his approval of the contents of the draft will, stated that he would execute the document later that morning. He died shortly thereafter without executing the document.

After setting out the relevant passage from Oreski v Ikac quoted at [33] above, E M Heenan J said (at [42]):

‘Some difficulty may be experienced with the phrase, utilised in Oreski v Ikac ‘that the document [in question] should, without more on his or her part, operate as his or her will’, because in a case such as the present the inference must surely be that, had he not collapsed in the bathroom and died soon after, Mr Mitchell would have executed the will so that his intention at the time may be regarded as including an intention to have the document formally executed as a valid will as required by s 8 of the Wills Act so that, upon such execution, it would take effect at law. It is, therefore, possible to say in a strict sense that the deceased's intention was that the draft will would operate as his will once it was executed. However, I do not consider that this detracts from the effectiveness of the document as an informal will because s 32 itself does not use that phrase. Clearly, Newnes JA in that case was using that language to emphasise the need for the document being propounded for proof as an informal will to express the concluded testamentary intentions and decision of the deceased rather than being some provisional, preliminary or tentative proposal which had not by then received the deceased's full assent. One must be careful to avoid placing any gloss upon the statutory language which, by s 32(2), focuses attention only on whether or not the document purports to embody the testamentary intentions of the deceased, even though it has not been executed in the manner required by the Act.’

In Prucha v Standing [2011] VSC 90 (at [7]), Beach J expressed his agreement with at least the last sentence of this paragraph. It goes without saying that one must be careful to avoid placing a gloss on statutory language. Section 32 of the Wills Act 1970 (WA) was in all material respects in the same terms as s 18A of the Probate and Administration Act (NSW). With respect, it is clear that s 32(2) does not focus attention only on whether or not the document purports to embody the testamentary intentions of the deceased. It also focuses attention on whether or not the deceased intended the document to constitute his or her will.

EM Heenan J went on to say (at [43]):

‘Where s 32 goes on to provide for this court to be satisfied that the person intended the document to constitute the deceased's will, it cannot be taken as intending that it be a will complying with the requirements of s 8 because, otherwise, there would be no need for Pt X of the Act. This case highlights the position that the breadth of the section and the Parliamentary intention are that a document which embodies the testator's settled testamentary intention is entitled to be admitted to proof notwithstanding that it has not been executed.’

There can be no quarrel with the proposition that these sections allow a document to be admitted to probate, notwithstanding that they do not comply with the formal requirements for the execution of wills. But with respect, the provisions do not state a parliamentary intention that a document is to be admitted to probate merely because it embodies the deceased's testamentary intention. The legislation expressly requires that the deceased intend that the document form or constitute the person's will.

A requirement that the deceased intend without more that the document constitute his or her will, or, that is to say, that the deceased intend the document have a present operation as his or her will, is not to put a gloss on the statute. Rather, it gives effect to the requirement that the deceased intend that the document form or constitute his or her will.

If the deceased's intention is that the document will form his will only on the occurrence of a future event, and that event does not occur, then it cannot be said that he or she has the requisite intention. That may lead to apparently harsh results in cases where it can be concluded confidently that the deceased wished his or her property to be left in the way provided for in the document. That was the case in Mitchell v Mitchell and is the case here. But while a beneficial interpretation must be given to the legislation, it is not possible to apply the section unless it can be found that the deceased intended the document to form his or her will.

I was referred to the discussion that appears in Macey v Finch ([2002] NSWSC 933 of the position in relation to the admission of wills to probate before the Wills Act 1837 (UK). Young J (at [17]) extracted a passage from the judgment of Sir John Nicoll in Theakston v Marson [1832] Eng R 267; (1832) 4 Hagg Ecc 290; (1832) 162 ER 1452, from which it appears that an instrument could at that time be admitted to probate if it embodied the fixed and final testamentary intentions of the deceased, and the deceased did not have the opportunity of proceeding to give effect to that intention because of some act of God, such as death or supervening inability.

However, Young J did not suggest that the practice of the prerogative court before 1837 was reflected in s 18A of what was then the Wills, Probate and Administration Act 1898. In The Application of Kencalo, Powell J said that it was not the intention of the commissioners that the law should revert to the state in which it was prior to the passing of the Wills Act 1837.”

74. I respectfully agree with what White J has written.

Determination

75. As I have written, the sole question for determination is whether the Court is satisfied that the deceased intended the draft Will to form his Will. The part of the section, being “the document, or part of the document, forms the deceased person's will - if the Court is satisfied that the person intended it to form his or her will”, must be carefully read and applied with the rigour the words demand.

76. This raises a question of fact to be decided on the facts that are found and in its own context.

77. Having considered the facts very carefully, I am not satisfied that the deceased intended the draft Will to form his Will. There is simply insufficient evidence to satisfy me that he intended the draft Will, before it was signed, to operate, with immediate effect, and notwithstanding that it had not been signed, to form his Will.

78. Importantly:

1. The draft Will was prepared by a solicitor, Mr Basha, in anticipation of execution of another document, in the same, or similar, form, once approved, in accordance with the formal requirements of s 6 of the Act. The email sent to the deceased and the Plaintiff made this clear. It also made clear that Mr Basha wished to “go through the documents with you in more detail at our meeting”.

2. The draft Will had the word “Draft” imprinted on every single page. The deceased, if he had read it, must have observed this.

3. Following the 4 February 2020 meeting with Mr Basha, the deceased and the Plaintiff had discussed, making “an appointment with him so we can sign them straight away”. At the hospital, following him looking through the draft Wills, the deceased said to the Plaintiff “We need to get the Wills signed”.

4. The Plaintiff said that “we needed to get the will signed … before he passed away so it would be a legal document.” and that the deceased “definitely” knew that: Tcpt, 24 February 2021, p 5(27-31).

5. There is no evidence of Mr Basha being contacted, at any time, after 24 February 2020, and being told that the deceased had approved the draft Will. Nor was there evidence of the deceased, or anyone on his behalf, having contacted Mr Basha, to instruct him to prepare a Will, in the same terms as the draft Will, without the word “Draft” imprinted on every page.

6. The 2016 Will had been a formal Will and one that had been duly executed by him.

7. This is not a case where a lack of familiarity by the deceased with the formal requirements of a will could allow the Court to more readily infer that the deceased intended the draft Will to form his Will.

8. There is no direct evidence that the deceased intended the draft Will, in its then form, and notwithstanding that it had not been signed, to operate, with immediate effect. To the contrary, the deceased realised that it needed to be signed.

9. There is nothing on the draft Will that suggests that the deceased adopted, or authenticated, it as his Will. To the contrary, it seems that a Will, in the form of the draft Will, or with appropriate amendments, would be signed later after further discussion with Mr Basha as evidenced by Ex A1.

10. Nor is there evidence of inadvertence or mistake by the deceased.

11. There is no evidence to lead to the conclusion that the deceased came to believe that he had implemented his intention to make a will, even though it was not signed and for this reason did not proceed further.

12. The Plaintiff did not give any evidence that an appointment had not been organised, with Mr Basha, for the deceased to sign a will in the form of the draft Will, or otherwise sign the draft Will, because the deceased believed that there was an operative Will in the form of the draft Will that he had orally “approved”, and, therefore, believed he did not have to sign it.

13. There was no evidence that the deceased described the draft Will as his Will to the Plaintiff or to any third party. Nor did he say anything to anybody, including the Plaintiff, about having made a will.

79. Because I have concluded that I am unable to be satisfied that the deceased intended the draft Will to have a present operation, I refuse the application for probate of the draft Will pursuant to s 8 of the Act. With some regret, the Court cannot grant the relief that is sought by the Plaintiff in Paragraph 1 of the Summons for Probate. For this reason, I dismiss the relief sought by the Plaintiff in Paragraph 1 of the Summons.

80. It would be mere speculation to consider whether the deceased believed that he had no Will, or whether he believed that the 2016 Will remained operative. However, in view of my conclusion, the revocation Clause in the draft Will is of no effect.

81. The Plaintiff's Summons includes an alternative claim for Probate of the 2016 Will. The question then is whether the 2016 Will should be admitted to probate. In circumstances, where there does not appear to be any dispute that the 2016 Will is the last Will of the deceased, I think it is appropriate to order that subject to compliance with the Probate rules of Court, probate in solemn form of the Will dated 27 May 2016 of the deceased be granted to the Plaintiff and to remit the matter to the Senior Deputy Registrar in Probate to deal with the matter as an application for an uncontested grant of Probate of the 2016 Will.

82. In all the circumstances, the Plaintiff’s costs, calculated on the indemnity basis, should be paid, or retained, as the case may be, out of the estate of the deceased.

83. The Court:

1. Orders that the relief sought by the Plaintiff in Paragraph 1 of the Summons for Probate be dismissed.

2. Declares that the Will dated 27 May 2016 of Bradley Scott Lyons is the last Will of the deceased.

3. Orders subject to compliance with the Probate rules of Court, that probate in solemn form of the Will dated 27 May 2016 of Bradley Scott Lyons be granted to the Plaintiff.

4. Remits the matter to the Senior Deputy Registrar in Probate to deal with the grant of Probate as an application for an uncontested grant of the 2016 Will.

5. Orders that the Plaintiff’s costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased.

*************

Decision last updated: 12 March 2021