The Public Trustee in and for the State of Western Australia v Watson
[2017] WASC 205
•26 JULY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA -v- WATSON [2017] WASC 205
CORAM: ALLANSON J
HEARD: 20 JULY 2017
DELIVERED : 26 JULY 2017
FILE NO/S: CIV 1904 of 2016
MATTER :Will and Estate of DOROTHY MARIAN WATSON (dec)
BETWEEN: THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA
Plaintiff
AND
ROGER LEONARD WATSON
First DefendantGEORGE ALEXANDER IRVING
Second DefendantAMNESTY INTERNATIONAL AUSTRALIA
Third DefendantMEDECINS SANS FRONTIERES AUSTRALIA
Fourth DefendantLEEUWIN OCEAN ADVENTURE FOUNDATION LIMITED
Fifth Defendant
Catchwords:
Probate - Application for grant of probate - Whether will duly attested - Informal will - Turns on own facts
Legislation:
Evidence Act 1906 (WA), s 73A
Rules of the Supreme Court 1971 (WA), O 73 r 11
Wills Act 1970 (WA), s 8, s 32, s 33, s 38
Result:
Declaration pursuant to s 32 Wills Act 1932 (WA)
Order to issue grant of probate
Category: B
Representation:
Counsel:
Plaintiff: Mr R J Nash
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Solicitors:
Plaintiff: Solicitor for Public Trustee
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Case(s) referred to in judgment(s):
Oreski v Ikac [2008] WASCA 220
The Public Trustee v Drennan [2004] WASC 101
The Public Trustee v Gerritsen [2012] WASC 201
ALLANSON J: Dorothy Marian Watson died on 3 July 2013, leaving personal property in the State. She left a document, dated 11 March 2013, purporting to distribute her estate. The document is in the form of a will. It was signed by Mrs Watson, but there is conflicting evidence about whether it was duly attested. There are two questions before the court: was the document properly executed as a will; if not, did she intend it to constitute her will.
The Public Trustee sought an order pronouncing that the document has force and effect in solemn form of law as the last will of Mrs Watson; alternatively, a declaration that it constitutes the last will of Mrs Watson and an order directing the probate registry to settle and issue a grant of probate to the Public Trustee as executor. Following a short hearing, I made the declaration sought and said I would publish my reasons. In these reasons I will refer to the document as the 2013 Will, because I am satisfied that it does constitute Mrs Watson's will.
Alternative relief relating to a will executed by Mrs Watson in 2012 fell away.
Relevant legislation
Under s 8 of the Wills Act 1970 (WA):
Subject to sections 17 and 20 and Parts XA, X and XI, a will is not valid unless ‑
(a)it is in writing; and
(b)it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's direction, in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator's will; and
(c)the testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and
(d)the witnesses attest and subscribe the will in the presence of the testator but no publication or form of attestation is necessary.
Section 8 is subject to s 32 in pt X, by which:
(2)A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes
(a)a will of the person;
…
if the Supreme Court is satisfied that the person intended the document to constitute the person's will, ...
(3)In forming its view, the Supreme Court may have regard (in addition to the document) to any evidence relating to the manner of execution or testamentary intentions of the person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the person.
The action
There are five defendants to the action. The first and second defendants are the sole beneficiaries under the 2013 Will. All five defendants were beneficiaries (and the only beneficiaries) under the earlier will executed on 20 March 2012.
The action was not defended. The parties have entered into a deed of settlement for the distribution of the estate should the Public Trustee obtain a grant of probate of either the 2012 or the 2013 Will.
Affidavits
Evidence was received by affidavit, and no witness was required for cross‑examination. The Public Trustee relied on the following affidavits:
(1)Shaun William Conlin, Director Trustee Services for the Public Trustee, sworn 7 June 2017. Mr Conlin attaches the 2012 Will and the 2013 Will, and the deed of settlement between the parties.
(2)Heather Jane Finch, solicitor in the employ of the Public Trustee, attaching the death certificate for Mrs Watson, and attaching copies of the following affidavits:
(a)Roger Leonard Watson, sworn 22 January 2014, the surviving spouse of Mrs Watson and first defendant to the action.
(b) George Alexander Irving, sworn 12 November 2015. Mr Irving was a friend of Mrs Watson, and his mother and Mrs Watson were close friends from childhood. Mr Irving is the second defendant to the action.
(c)Graham John Coker, sworn 20 December 2013. Mr Coker was one of the witnesses on the 2013 will.
(d)Roland James Norman, sworn 6 January 2014. Mr Norman was the other witness.
The Public Trustee also filed an affidavit of scripts, sworn by Mr Conlin on 20 March 2016, in compliance with O 73 r 11 of the Rules of the Supreme Court 1971 (WA).
No originals of the affidavits of Mr Watson, Mr Irving, Mr Coker and Mr Norman were available. Ms Finch deposes, on the basis of her inquiries, that the records of the Public Trustee show that the originals were filed at the Supreme Court on 8 June 2017. The court's file in these proceedings does not contain the originals and inquiries within the court have found no evidence that they were filed on that day. Ms Finch also deposes that the copies filed are photocopies and true copies of the originals.
Under s 73A of the Evidence Act 1906 (WA), a document that accurately reproduces the content of another document is admissible in evidence in the same circumstances and for the same purposes as that other document. I am satisfied that the copies accurately reproduce the original affidavits, now missing. Section 73A does not specifically address the use of a copy of an affidavit. But I see no reason to limit the wide terms of the section.
If s 73A does not apply, I believe it would be a denial of justice to not admit the copies in these circumstances. No party objects to admission or seeks to cross examine a deponent.
I will receive the copies and they will be read as evidence in the proceedings.
The 2013 Will
The 2013 Will is expressed to be a will, and follows the form of the will prepared in 2012. It revokes all prior wills and codicils, appoints an executor, and, after payment of debts, funeral and testamentary expenses, gives the whole of the testator's estate to two named beneficiaries.
Each page is signed by Mrs Watson as 'testator'.
The evidence of execution
The following matters were not disputed.
Mrs Watson was born on 16 November 1937, and was 75 years old in March 2013. She suffered from motor neurone disease, but it had not affected her mental capacity.
In 2012, Mrs Watson arranged for the preparation of a will through the Public Trustee.
In 2013, Mrs Watson told her husband that she wanted to redo her will in simpler terms. At her request, Mr Watson typed the 2013 Will on his computer, copying the wording from the 2012 will. He printed it, and Mrs Watson read it and agreed with it.
Mr and Mrs Watson went to the South Perth Library, where he knew a Justice of the Peace would be available. No second witness was available at the library, so they went to the South Perth Learning Centre, downstairs from the Library.
At the Learning Centre, Mr Coker and Mr Norman signed the document on each of the two pages. The second page has the attestation clause:
Signed by the Testator DOROTHY MARIAN WATSON in our presence and attested by us in the presence of the Testator and of each other.
The following day, Mr Watson typed a letter addressed to the Public Trustee in his wife's name. She signed the letter and either Mr Watson or Mrs Watson posted it. The letter contained the 2013 Will, and requested the Public Trustee to store it in the Will Bank. In the letter, Mrs Watson says:
It is almost impossible for me to travel into the city. I have drawn up, signed and had witnessed a new will - please see enclosed. Please let me know if the new will does not meet the normal format.
Mr Watson's evidence about the preparation and execution of the 2013 Will and the letter are admissible under s 32(3) of the Wills Act as evidence of Mrs Watson's testamentary intention.
Is the 2013 Will valid?
Despite the terms of the attestation clause, one of the attesting witnesses has deposed that the 2013 Will was not executed in accordance with s 8. That is the only area of disagreement in the evidence.
Because the 2013 Will appears to be regularly executed, there is a presumption that it was properly executed: see Williams on Wills, (9th ed, 2007) 13. There is also direct evidence in the affidavit of Mr Watson that his wife came into the room at the Learning Centre with him, he saw her sign the will, and the two witnesses then signed in her presence and in the presence of each other.
Mr Norman agrees that it is his signature on the document, but has no recollection of the events. He cannot recall who was present in the room.
Mr Coker deposes that Mr Watson approached him and Mr Norman and asked them to witness a document. He inferred it was a document that Mr Watson had signed, although not in his presence. Mr Norman signed first. Mr Coker then signed his name on each page, 'and without paying any attention to the nature of the document'. Mr Coker says that no woman accompanied Mr Watson into the room.
The plaintiff submits that the affidavit of Mr Coker is inconsistent with the attestation clause and I should be satisfied that the will was executed in accordance with s 8. But, having regard to what Mr Coker said in his affidavit about the circumstances of his signing, I am not persuaded that due execution of the will has been proved. Mr Coker professes an actual recollection of events. There is nothing to discredit his account. With the proceedings uncontested, and neither witness challenged on his evidence, the court cannot reconcile the inconsistency between Mr Watson and Mr Coker. The evidence of Mr Coker, as one of the attesting witnesses, is sufficient in my opinion to displace the presumption.
The plaintiff also submitted that the court might grant probate in solemn form on the basis of the compromise of all competing claims by the settlement between the parties. It is not, however, necessary for the due administration of justice for the court to follow such a selective approach to the evidence. Even if the plaintiff has not proved due execution of the 2013 Will, there is sufficient evidence to satisfy me that the 2013 Will embodies Mrs Watson's testamentary intention and she intended it to be her will.
In summary, I am not satisfied that the plaintiff has proved due execution of the 2013 Will, and must consider whether the will should be admitted to probate as an informal will.
Informal wills - Part X of the Wills Act
Part X - comprising s 32, s 33, and s 38 - was inserted in 2007. The operation of s 32 has been considered on several occasions in this court and is settled. In Oreski v Ikac [2008] WASCA 220, Newnes JA said of s 34 (which was in force before the 2007 amendments):
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 [54].
See also The Public Trustee v Gerritsen [2012] WASC 201 [16] ‑ [26].
I am satisfied that Mrs Watson signed the 2013 Will as her will. The form of the document is consistent only with that intention. The act of sending it to the Public Trustee to be lodged in the Will Bank, and the content of her letter to the Public Trustee, clearly demonstrate her intention that it was to have effect as her will.
Mrs Watson was 75 at the time of her death. Mr Irving said that she appeared to remain mentally capable until her death. The dispositions made by the will ‑ to her husband and to a close family friend ‑ are consistent with the exercise of unimpaired judgment. There is no evidence to suggest any loss of capacity. The presumption of testamentary capacity may not apply in the case of an informal will: see The Public Trustee v Drennan [2004] WASC 101; The Public Trustee v Gerritsen [26]. On the evidence before me, I am satisfied on the balance of probabilities that Mrs Watson was of sound mind, memory and understanding at the time she made the 2013 Will.
For these reasons I am not satisfied that the 2013 Will was duly executed in accordance with s 8 of the Wills Act. But I am satisfied that Mrs Watson intended the 2013 Will to constitute her last will and that it should be admitted to probate.
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