The Public Trustee of Western Australia v Scheller
[2012] WASC 137
•26 APRIL 2012
THE PUBLIC TRUSTEE OF WESTERN AUSTRALIA -v- SCHELLER [2012] WASC 137
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 137 | |
| Case No: | CIV:1215/2010 | 6 FEBRUARY 2012 | |
| Coram: | EM HEENAN J | 26/04/12 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Action dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE PUBLIC TRUSTEE OF WESTERN AUSTRALIA SUSANNE SCHELLER LORRAINE GAIL DOROTHY HUNTER |
Catchwords: | Probate Proof in solemn form of informal will Informal alterations to prior valid will Application for probate or grant of letters of administration of the former will as altered by the informal alterations annexed |
Legislation: | Non-Contentious Probate Rules 1967 (WA) Wills Act 1970 (WA) |
Case References: | Deeks v Greenwood [2011] WASC 359 Hatsatouris v Hatsatouris [2001] NSWCA 408 Henwood v Public Trustee (1993) 9 WAR 22 Mitchell v Mitchell [2010] WASC 174 Oreski v Ikac [2008] WASCA 220 Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191 Re Estate of John William Henry Nicholls (dec) [2003] WASC 85 The Estate of Kevin John Hines v Hines [1999] WASC 111 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SUSANNE SCHELLER
First Defendant
LORRAINE GAIL DOROTHY HUNTER
Second Defendant
Catchwords:
Probate - Proof in solemn form of informal will - Informal alterations to prior valid will - Application for probate or grant of letters of administration of the former will as altered by the informal alterations annexed
Legislation:
Non-Contentious Probate Rules 1967 (WA)
Wills Act 1970 (WA)
(Page 2)
Result:
Action dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr D L Jones
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiff : Public Trustee (WA)
First Defendant : No appearance
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Deeks v Greenwood [2011] WASC 359
Hatsatouris v Hatsatouris [2001] NSWCA 408
Henwood v Public Trustee (1993) 9 WAR 22
Mitchell v Mitchell [2010] WASC 174
Oreski v Ikac [2008] WASCA 220
Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191
Re Estate of John William Henry Nicholls (dec) [2003] WASC 85
The Estate of Kevin John Hines v Hines [1999] WASC 111
(Page 3)
1 EM HEENAN J: John Wolfram Scheller, late of 1 Church Street, Derby, in the State of Tasmania, died at that address on 27 January 2002. He had been born on 15 July 1942 in Hamburg in Germany and was, therefore, 59 years of age at the date of death. He had been living in Australia for the previous 35 years. At the date of his death he was divorced, having previously been married to one Susanne Molnar - the first defendant (sometimes referred to as Susanna). According to the certified copy of the record of his death provided by the Registrar of Births, Deaths and Marriages in Tasmania, he left one child, a daughter, whose name and age is not stated in the certificate.
2 The late Mr Scheller made a will dated 13 July 1993 which it is acknowledged was properly executed and witnessed. By that will he left the whole of his estate to the first defendant, Susanne Scheller, who, at that time, was his wife. By that will he appointed the Public Trustee of Western Australia his executor. At the time of making this will Mr Scheller was living in Western Australia near the southern town of Walpole, where he was engaged at the local glassblowers' gallery. The will was executed on 13 July 1993 and was witnessed by two persons who appear to have been officers or employees of the Public Trust Office in Perth. The testament is only very short and provides as follows:
THIS IS THE LAST WILL AND TESTAMENT of me JOHN WOLFRAM SCHELLER of 25 Nockolds Street, Walpole in the State of Western Australia company director.
I REVOKE all previous wills and Testamentary Writings.
I APPOINT the PUBLIC TRUSTEE in and for the State of Western Australia to be the Executor and Trustee of this my Will.
SUBJECT TO the payment of my just debts, funeral and testamentary expenses I DEVISE AND BEQUEATH the whole of my real and personal estate to my wife SUSANNA SCHELLER absolutely.
- In witness whereof I have set my hand this 13 July 1993.
J W Scheller
Signed by the testator in our presence and witnessed by us in the presence of him and of each other.
Margaret Amanda Zuvela
Public Trust Office Perth
(Page 4)
- Darlene Patricia Valentine
Public Trust Office Perth
3 A statement of assets and liabilities of the deceased shows debts totalling $42,471.29 consisting of debts of $17,452.13 in Western Australia and $25,019.16 outside Western Australia. It also shows total assets of $57,710.34 of which $35,410.34 in value are located in Western Australia (two bank or deposit accounts) and a house valued at $28,000 located in the town of Derby in Tasmania, together with some furniture, motor vehicles and accessories also located in Tasmania worth $22,300. The net value of the estate, therefore, is about $15,239 revealing this to be a very small estate indeed.
4 An affidavit of scripts sworn by the Acting Director of Trustee Services of the Public Trustee of Western Australia on 3 November 2010 shows a number of testamentary scripts. In summary, these are:
(a) notes on a printed Public Trustee form apparently in the handwriting of the deceased dated 27 March 1986 with instructions to the Public Trustee for the preparation of a will with personal details, details of assets and of the persons intended to benefit under the proposed will;
(b) notes of a trust officer at the Public Trustee in Perth made on 27 March 1986 recording instructions to proceed with the preparation of the will in accordance with the testator's instructions;
(c) a duly executed will of the deceased made on 27 March 1986 in accordance with those instructions but stamped 'Revoked by will dated 13 July 1993';
(d) an unexecuted copy of the will known to be executed on 13 July 1993;
(e) an unexecuted copy of the will known to be executed on 27 March 1986 with manuscript alterations deleting the residuary request and substituting a proposed residuary request to the deceased's wife, Susanna Scheller;
(f) an unexecuted copy of the will known to have been executed on 13 July 1993 with manuscript alterations evidently in the hand of the testator deleting the residuary request to Susanna Scheller and substituting the deceased's daughter, Lorraine Hunter, as the sole
- residuary beneficiary, which alteration was apparently made on 8 April 2001 but which has not been executed, initialled or witnessed.
5 The instructions for the will of 27 March 1986 and the will of that date show that the deceased was then living at Marine Parade, Newell Beach, Queensland but that he had property in Nornalup in Western Australia and an interest in a partnership in the glassblowers' gallery at Walpole. By that will he appointed the Public Trustee for the State of Western Australia to be executor and trustee and devised the whole of his real and personal estate to his mother, Adelheid Scheller. In the instructions for that will he recorded that he was married and was in partnership with his wife in the glassblowers' gallery.
6 The testamentary scrip set out in (e) above comprises an unexecuted copy of the 27 March 1986 will with some obliterations and additions made by the deceased by hand. These show a deletion of the address at Marine Parade, Newell Beach, Queensland and a deletion of the sole residuary bequest to his mother, Adelheid Scheller. In its place, in manuscript by the deceased, is an addition, evidently in substitution for that residuary bequest, to his wife, Susanna Scheller, absolutely with some additional manuscript words which have later been struck out reading 'for her to distribute according to her complete discretion as she feels fit'. These changes find their way into the will of 13 July 1993 which has already been set out.
7 The final testamentary script is the alleged informal will which the plaintiff is seeking to prove. It is written on an unexecuted copy of the will of 13 July 1993 and reads as follows:
This is the last will and testament of me John Wolfram Scheller of 25 Nockolds Street Walpole in the State of Western Australia company director.
I revoke all previous wills and testamentary writings.
I appoint the public trustee in and for the State of Western Australia to be the executor and trustee of this my will.
Subject to the payment of my just debts, funeral and testamentary expenses, I devise and bequeath the whole of my real and personal estate to my wife Susanna Scheller absolutely
(manuscript) daughter Lorraine Hunter
8.4.2001
(Page 6)
8 There then appears written vertically in a space below these words the following in manuscript:
Cancelled 8.4.2001
the whole of my real and personal estate to my daughter Lorraine Hunter of Broome WA
J W Scheller
8.4.2001
9 This document is not otherwise signed or executed by Mr Scheller and there is no signature of any witness either on the original document or in relation to any of the alterations or additions.
10 The Public Trustee is seeking a grant in solemn form of law of probate, or alternatively letters of administration with the informal will annexed, of the deceased's 1993 will as altered by the unexecuted informal alterations evidently dated 8 April 2001.
11 Since the trial and at my direction the plaintiff has filed a further affidavit and produced to the court the original duly executed copy of the will of Mr Scheller made 13 July 1993. This was not mentioned in the earlier affidavit of scripts nor lodged in the court - as should have been done under the Non-Contentious Probate Rules 1967 rule 13 as the issue over whether it was revoked or amended was central to the application made. The affidavit shows that the original will of 13 July 1993 has been in the safekeeping of the Public Trustee since the day it was executed.
History of proceedings
12 The first record of any application for a grant of representation of the estate of the deceased is a motion filed on behalf of the Public Trustee in the non-contentious probate jurisdiction of this court and dated 21 February 2003 seeking a grant of probate to the Public Trustee of an unexecuted copy of the 1993 will as apparently altered by the manuscript alterations of the deceased dated 8 April 2001.
13 That was followed by requisitions issued by a Probate Registrar on 11 March seeking evidence as to who posted the alleged will to the Public Trustee; an affidavit of plight to set out an explanation of whether revocation of the original will revoked the appointment of the Public Trustee as executor; and, evidence as to whose signature appears on the purported informal will. Those requisitions were never answered.
(Page 7)
14 On 21 December 2006 the Public Trustee filed a further motion in the non-contentious jurisdiction seeking an order refusing any grant of probate as sought by the first application and leave to uplift the death certificate and the alleged will of 8 April 2001 in order that it may be filed with any future application. That motion was acceded to and the original of the alleged informal will and the death certificate were delivered to an officer of the Public Trustee on 2 January 2007.
15 The writ in these contentious proceedings was issued by the Public Trustee on 15 February 2010 naming the deceased's former wife as first defendant and Lorraine Gail Dorothy Hunter as second defendant. The statement of claim does not contain any allegation that the second defendant is the daughter of the deceased, although no such allegation would be necessary if the informal will takes effect because the second defendant is named specifically by that instrument. An appearance was entered by the first defendant but not by the second defendant. Service of the writ on the second defendant was proved by an affidavit of Robert Neesham sworn 1 July 2010, which deposed that Mr Neesham had served Lorraine Gail Dorothy Hunter personally with a copy of the writ of summons in this action regularly issued out of this court at 7 Hamersley Street, Broome, in State of Western Australia on 15 June 2010 and that on that day he endorsed the writ with the particulars of service. The affidavit states that the person served admitted that she was Lorraine Gail Dorothy Hunter.
16 At the time of the original non-contentious application for probate of the alleged informal will an officer of the Public Trust Office, Mr John Wilmont, made and filed an affidavit of 25 February 2003 in support of the application which identified the deceased's former wife, Susanne Scheller, as a person who may be prejudiced by the application of pt X of the Wills Act to this alleged informal will because she is named as the sole beneficiary in the earlier will executed by the deceased on 13 July 1993. Annexed to that affidavit is a consent from Susanne Scheller to the alleged informal will being proved pursuant to the provisions of pt X signed by her and dated 24 September 2002. That affidavit and annexure were read relied upon by the plaintiff in the present action. The consent form is made pursuant to r 20A(2) of the Non-Contentious Probate Rules and, therefore, is applicable only to the non-contentious proceedings. It does, however, call attention to the position of Mrs Susanne Scheller, the first defendant in the present action.
17 Although entering an appearance and attending case management conferences on this contentious action, Mrs Susanne Scheller has not filed
(Page 8)
- any defence. On 27 October 2010 the Probate Registrar made a series of case management directions in the action which included the following:
1. The first defendant, Susanne Scheller, having attended before the Registrar this morning and expressed her intention to abide by the decision of the court, shall take no further part in these proceedings.
…
4. Thereafter the [that is, on completion of a set timetable for filing affidavits] the plaintiff is at liberty to enter this matter for hearing before a judge, on an undefended basis, and any certificate of readiness required is dispensed with.
5. All evidence of the hearing of this matter will be by affidavit unless the trial judge otherwise directs.
Plaintiff's submissions
19 Because Mr Scheller died on 27 January 2002 the statutory provision governing an application for proof of an alleged informal will remains s 34 of the Wills Act 1970. That section was replaced by s 23 of the Wills Amendment Act 2007 (WA) but that provision as amended applies only to
(Page 9)
- persons dying on or after 9 February 2008. Section 34 of the Wills Act 1970 as it applies to this case provides:
s 34 Informal Wills (since repealed and re-enacted)
A document purporting to embody the testamentary intentions of a deceased person is a will of that person, notwithstanding that it has not been executed in accordance with s 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his will.
Accordingly, when considering whether or not a particular document being propounded should be admitted to proof as an informal will of a deceased, it is necessary for the court to bear in mind the purposes which the formal requirements were designed to achieve, that is, to guard against fraud, preliminary but not concluded expressions of opinion, lack of full deliberation, possible adverse influence upon the deceased, and lack of appreciation of the seriousness and effect of the intentions expressed. These are factors which need to be considered in determining whether or not a particular writing or documented expression of intention does, in fact embody the final settled testamentary intentions of the deceased at the time it was made or approved.
21 Counsel for the plaintiff then referred to Oreski v Ikac [2008] WASCA 220 where Newnes J, with whom Martin CJ and McLure JA agreed, stated [55]:
It is of fundamental importance that the person seeking to propound the document established that the deceased, by some word or act, demonstrated an intention that, without more, the document should have effect as his or her will.
Evidence in support of application for grant of representation
22 The alleged informal will which the plaintiff seeks to propound would, if valid, be the third and latest of the testaments disclosed by the affidavit of scripts. The first, and second, both previously mentioned, are the wills of 27 March 1986 and 13 July 1993, each made for the deceased by the Public Trustee. The first of these evidently follows a visit by the late Mr Scheller to the offices of the Public Trustee in Perth on 27 March 1986 when his instructions were taken by an officer of the Public Trustee
(Page 10)
- and the will, leaving the whole of his estate to his mother, was prepared and executed the same day. The original of the will was kept by the Public Trustee with a copy or copies being provided to Mr Scheller. There is no record of the precise mechanisms by which the second will came to be prepared, that is, there is no evidence of any corresponding communication to, nor any note of instructions by, an officer of the Public Trustee. Nevertheless, an unexecuted copy of the will appointing Mrs Adelheid Scheller the sole residuary beneficiary has been provided, overwritten in manuscript by the deceased, with a substitutional residuary gift to Mr Scheller's then wife, the first defendant, Mrs Susanne Scheller. That evidently formed the basis of the initiative for the preparation of the second will of 13 July 1993 which, as already indicated, also appears to have been executed at the office of the Public Trustee in Perth and the original of which was kept by the Public Trustee. Again, unexecuted copies of that second will were provided to Mr Scheller.
23 This history is significant for several reasons. First, it shows that Mr Scheller was familiar with the procedure of communicating with the Public Trustee and requesting the preparation of a will or a new will. Second, it shows that he must have been familiar with the requirements for formal execution including the necessity to have his signature as testator witnessed by two other witnesses present at the same time as his execution of the testament. Third, I consider that he must be taken to have been aware that the original, duly executed and effective copy of each will remained in the safe keeping of the Public Trustee and, while capable of being changed or revoked by a later codicil or will, would continue to have effect unless so changed or revoked. The history also shows that, at least on one occasion, the procedure followed by Mr Scheller to effectuate the making of a new will was by manuscript, to write over the contents of an unexecuted copy of an earlier will and to send or deliver that to the Public Trustee with a request for the preparation of a new will. That is the process which led to the making of the second will dated 13 July 1993. It is against that background or pattern of behaviour that the significance of events after the second will dated 13 July 1993 must be evaluated.
24 Once such event of significance is the breakdown and eventual termination of the marriage between Mr Scheller and the first defendant. There is no direct evidence of when that occurred nor is there evidence of any formal decree of termination of the marriage. Nevertheless, the circumstances suggest that at least the final separation occurred before Mr Scheller left for Tasmania in mid-2001. Because the deceased died on 27 January 2002, his marriage to the first defendant, if indeed terminated
(Page 11)
- by a decree of divorce, must have ended before then so there can be no possibility of any will or codicil made by Mr Scheller being revoked by the termination of that marriage. Section 14A of the Wills Act did not come into operation until 9 February 2008 (see s 2 and Gazette 8 February 2008, page 313). Regardless of how the marriage failed or was terminated, there is hearsay evidence from acquaintances of the deceased that, as a result of the marriage breakdown, he was no longer disposed to leave any of his property to the first defendant and intended, instead, to leave what property he had to the second defendant. Such evidence, which would not previously have been admissible in relation to the deceased's testamentary intentions may now be considered by the court as evidence relating to the manner of execution or testamentary intentions of the deceased - Wills Act s 32(3) - when there is an application made under pt X.
25 The Director of Trustee Services for the Public Trustee, Mr S W Conlin, has deposed in his affidavit of 7 April 2011 that on or about 8 April 2001 Mr Scheller provided written instructions endorsed on a copy of his will of 13 July 1993 to the Public Trustee for the preparation of a will intended to provide that the whole of Mr Scheller's estate should be left to his daughter, Lorraine Hunter, the second defendant. Attached to Mr Conlin's affidavit is an unexecuted copy of the deceased's will of 13 July 1993 overwritten by the deceased's manuscript changes of 8 April 2001. However, there is no explanation of when or how those 'written instructions' were received, whether by post or as a result of a visit by Mr Scheller or whether there was any telephone or other communication accompanying them. There is nothing to suggest that the instructions were acted upon because no draft or copy of a proposed new will giving effect to those instructions was evidently prepared. None was disclosed in the affidavit of scripts. Nor is there any evidence of any communications with Mr Scheller following the receipt of those 'written instructions' nor any explanation for the absence of such communications or attempts at communications. There is simply no evidence of any activity by the Public Trustee or any attempts to communicate with the deceased or any other person about Mr Scheller's will or affairs until well after the deceased's death. In fact, more than a year passed from 8 April 2001 until 18 July 2002, nearly six months after Mr Scheller's death, until the Public Trustee received a letter written by Mrs Nathalie Haymann, a friend of the deceased, containing observations about his alleged testamentary intentions.
26 Mrs Haymann's letter of 15 July 2002 addressed 'To Whom It May Concern' is annexed to Mr Conlin's affidavit. This asserts that
(Page 12)
- Mrs Haymann was a close companion of the deceased from mid-1996 until his death in January 2002, having last seen him during her visit to Tasmania in December 2001. According to this letter, Mrs Haymann says that it was always his clear intention to leave his estate to his daughter, Lorraine Hunter, and that Mr Scheller first mentioned this when he was living in Scottsdale Road, Denmark, by expressing his intention to see a lawyer about ensuring that Lorraine was made his sole beneficiary. According to this letter, he mentioned that again to Mrs Haymann in Tasmania in December 2001. The letter concludes by Mrs Haymann stating that there is absolutely no doubt in her mind that this was Mr Scheller's wish.
27 Subsequently, by letter of 2 May 2004, Ms Nathalie Haymann wrote to the Public Trustee referring to a copy of 'John's will', which must be taken to be a reference to the copy will with the manuscript alterations or 'written instructions' of 8 April 2001. In that letter Ms Haymann categorically identifies the manuscript writing as John Scheller's handwriting, confirming that she is familiar with it and providing photocopies of other samples of his writing for comparison.
28 The Public Trustee next wrote to Mr Campbell in Derby, Tasmania, on 8 November 2002 enquiring whether he had any information which may assist in determining whether or not the 'written instructions' of 8 April 2001 should be regarded as constituting Mr Scheller's will. Again there is no direct evidence by affidavit or otherwise adduced in these proceedings from Mr Campbell. However, a copy of undated letter from him to the Public Trustee received 18 November 2002 is annexed to Mr Conlin's affidavit. In this letter, Mr Campbell asserts that John Scheller told him on many occasions that his daughter was to inherit his estate. He was unable to state precise details of these conversations but gives two examples, the first in December 2001 and the second in early January 2002. The first was a discussion between Mr Campbell and Mr Scheller in December 2001 about 'ex-wives', during which Mr Campbell says that Mr Scheller said words to the effect that the first defendant 'had got all she was going to get when we were divorced' and that 'she still owes me money'. The reference to the January 2002 conversation is to the effect that Lorraine, as his daughter, should get all his estate. In the letter Mr Campbell stresses that these were only two such occasions out of many and that the overriding impression he received from the deceased was that Lorraine Hunter was to inherit his estate.
29 The only further communication received by the Public Trustee from Mr Campbell is an undated letter received on 23 May 2003 written from
(Page 13)
- his address at 5 Cascade Road, Derby, Tasmania. Although it does not say so expressly, the inferences make it very probable that this letter from Mr Campbell was written in response to a letter addressed to him by the Public Trustee dated 14 April 2003 and signed by a legal officer of the Public Officer, Ms Robyn Minyette. That letter from the Public Trustee included the following passages:
It would be appreciated if you would provide the following information to enable the required affidavit to be prepared [this refers to an affidavit intended for use in the Supreme Court in support of an application for administration of John Scheller's estate].
1. What were the circumstances leading up to you taking possession of the will?
2. How did you find the will?
3. When did you find the will?
4. Where did you find the will?
5. In what condition was the will when you came into its possession?
6. Was there anything attached to the will?
7. What did you do with the will after you took possession of it?
8. Did you recognise the handwriting on the will as being John's? If yes, please explain why.
Q1: I took possession of John's will to send it to the Public Trustee as requested.
Q2: I originally found his will while searching for addresses for John's family and friends.
Q3: I found the will on or about 29 January approximately 2 days after John died.
Q4: I found John's will in a small filing cabinet in the lounge room of his house.
Q5: The will was in the same condition as when I sent it to the Public Trustee.
Q6: No.
(Page 14)
- Q7: I sent it to the Public Trustee/
Q8: I recognised John's handwriting as I had read some of the book John was writing and from the many notes and memos I received while working for him.
I hope this helps John's last wishes become fulfilled.
31 This was followed by a further letter from Ms Minyette at the Public Trust Office to Mr Campbell dated 16 June 2003 in which the trust officer wrote as follows:
I refer to previous correspondence and telephone attendances in the above matter.
It would be appreciated if you would advise of the following:
1. Did John ever discuss who the appointed executor was under the will?
2. If yes, where did his conversation take place and on what date?
3. Who was present?
4. If yes, please explain exactly what was said.
5. You have said that you were under the impression that the Public Trustee was handling John's estate. What did John say or do that gave you this impression? Please describe all of the circumstances for your belief.
32 At some later unspecified date the Public Trustee received a further letter in reply from Mr Campbell in which the author wrote as follows:
Dear Ms Minyette,
This is what I can remember of the conversation I had with John concerning his will.
I had become extremely worried about John as he had deteriorated quite alarmingly.
So about two weeks before John's death I decided to ask him if he had his will organised. I felt quite uncomfortable bringing up this topic but John had gone downhill so fast I felt it needed to be done, so here is what happened as I can remember. I cannot say these are the exact words we used but as near as I can recall.
We were sitting in John's lounge room talking:
Me: Mate I don't like asking this but have you organised your will?
- John: Yes Gus I changed it back in April last year, it's in my files somewhere.
Me: I sent away for one of those will kits you see advertised on TV
John: I went to the Public Trustee you need someone reputable
- I know this is not much but I hope it will help.
33 All subsequent attempts to contact Mr Campbell at the address from which the above correspondence came and at other possible addresses in Tasmania have been unsuccessful.
34 Later in a typewritten letter dated 25 November 2002 Ms Nathalie Haymann wrote to the trust officer, Ms Robyn Minyette, of the Public Trustee's office, in response to earlier correspondence. There is no copy of the letter written by the Public Trustee to Ms Haymann which was the subject of this reply but I infer that it was similar in terms and in questions posed to the letter of 8 November 2002 also written by the Public Trust Office to Mr Campbell, the questions in which are set out in [..] above. Ms Haymann's answers to four questions are as follows:
1. John Scheller mentioned his testamentary intentions to me on two occasions:
On the first occasion, in June 1997, at his home at Scottsdale Road in Denmark, John said to me, 'my solicitor has told me I have to attend to My Will because if anything happens to me, everything will automatically Go to Suzanna. I want to make sure it goes to Lorraine' (John's daughter).
The second occasion, which was more an allusion to John's intention, was in July 2001. he was upset with me for phoning Broome and leaving a message for Lorraine to ring her father because he was sick. John had been waiting for Lorraine's response to previous phone calls he had made to her and he said to me (over the phone), 'You shouldn't have interfered Nathalie. I wanted to know if Lorraine would get around to phoning me herself, without knowing that she might stand to benefit'. (Or something similar).
2. As above.
3. I believe John discussed his intention to complete a Will with his friend Steve Leggett of Dingo Flat Road, Walpole, W.A. 6398 (Ph: 98408214) after his diagnosis in 2001.
(Page 16)
- It is possible he may also have discussed his intentions with his friends from Young's Siding - Tracey and Gary (surname?) of P.O. Box 5300, Albany, W.A. 6330; Hanni Cott of 20 Cunningham St., Albnay, W.A. 6330 (Ph: 9844461) and Lannie Bleakley, formerly a Conservation & Land Management ranger at Bremmer Bay, W.A., now living in Tasmania.
4. John was writing a detailed journal/autobiography which he began in 1997 in Scottsdale Road, Denmark, in both German and English. This was to eventually be compiled into a book which he intended to have published in Germany, in German. It is possible that this rough manuscript may contain information pertaining to your enquiry.
During the time that John was in Tasmania, he often referred to 'Gus' (Campbell) with affection and respect. When I visited John in Tasmania in December 2001, he pointed out Gus's ancient vehicle to me and said he wondered how it kept on going. Although he didn't say anything specific, I believe that John would have liked Gus to have his 4WD and probably his tools, because Gus did a lot of work for him from the time John first arrived in Tasmania. John had a certain attachment to his 4WD because he bought it with an inheritance from his mother, and I don't think he would have wanted it to be sold off to a stranger. Gus cared for John in a practical way on a daily basis up until his death and John wouldn't allow anyone else to help him, including the bush nurse.
35 An affidavit of Nathalie Haymann, now of Jurien Bay, in this State, sworn 14 April 2011 has been adduced by the Public Trustee. To this affidavit Ms Haymann annexes copies of her letters to the Public Trustee of 15 July 2002 and 25 November 2002 and her letter of 2 May 2004 verifying the handwriting of the deceased on the 'instructions for the will' of 8 April 2001 and verifying the contents of her letters.
36 This evidence adduced by the plaintiff raises and leaves unresolved the controversy over whether or not the written instructions comprising the deceased's manuscript alterations of 8 April 2001 on an unexecuted copy of the will of 13 July 1993 were, in fact, sent to the Public Trustee for the preparation of a new will by the deceased before his death. As already stated, the affidavit of Mr Conlin suggests or implies that the copy of that document, that is the unexecuted copy of the will of 13 July 1993 overwritten with some manuscript alterations by the deceased evidently on 8 April 2001, was sent to the Public Trustee's Office and constituted 'written instructions' … 'to the Public Trustee for the preparation of a will in which he left the whole of his estate to his daughter Lorraine Hunter'. This is not consistent with the content of the unsworn letters from Mr Campbell which suggest that this particular document was found by
(Page 17)
- Mr Campbell among Mr Scheller's belongings a few days after his death and sent by Mr Campbell to the Public Trustee Office in Western Australia as set out in those letters. There is, of course, something of a problem with this evidence because there is no affidavit from Mr Campbell, he cannot be found, and such matters are not admissible according to ordinary principles. However, again in reliance on s 32(3) of the Wills Act and because the Public Trustee as plaintiff puts forward Mr Campbell's letters as evidence in support of its case I consider that I should have cautious regard to them. Having done so, the conclusions that I draw are that the explanations contained or implicit in Mr Campbell's letters are a more satisfactory explanation of what probably occurred than the implication in the Public Trustee's affidavit that instructions were sent to alter a will and never acted upon, particularly where there is nothing in the affidavit of scripts to suggest any correspondence or communication with Mr Scheller about, or in reference to, a proposed new will in or around April 2001. It seems far more probable, and I conclude, that Mr Scheller made these notations himself on a draft copy of the will kept in his possession and retained it at his home in Tasmania without sending it on to the Public Trustee in Perth and that it was found there by Mr Campbell after Mr Scheller's death. This means that no steps were taken by Mr Scheller to direct the Public Trustee to change his will and it also seems that no steps were taken by him in Denmark/Walpole or later in Tasmania to engage a solicitor or other suitably qualified person to make a new will for him. Clearly, Mr Scheller must have known at these times that the original will was in the possession of the Public Trustee in Perth and, unless revoked, would take effect.
37 Returning to the form and content of the document being propounded as an informal will, namely the unexecuted copy of Mr Scheller's will of 13 July 1999 with handwritten changes in the writing of Mr Scheller and dated 8 April 2001, several further points must be noted. First, there is no attempt to include or substitute any attestation clause applicable to the alterations. Secondly, although the alterations are dated and signed by Mr Scheller, they are not witnessed by any person. Third, the procedure employed and followed by Mr Scheller in noting these alterations in this fashion is very similar to the procedure followed earlier by him when noting the changes to his first will of 27 March 1986, substituting the first defendant as the sole beneficiary for his mother, who had been the sole beneficiary under the first will. It was those alterations which, as already described, led to the preparation by the Public Trustee, at Mr Scheller's
(Page 18)
- request, of the second will of 13 July 1993 which was duly executed and retained by the Public Trustee.
38 A fourth point of potential significance is that Mr Scheller does not appear to have notified or to have attempted to notify the Public Trustee after 8 April 2001 that he had changed or desired to change his will of 13 July 1993 then held by the Public Trustee for safe keeping.
Non-appearance by second defendant
39 The non-appearance by the second defendant, the sole beneficiary of the alleged informal will being propounded by the plaintiff, has already been noted. A question arises whether or not that absence of appearance and participation in these proceedings is of any significance. The answer to that question in law must be that it has no legal bearing on whether or not the alleged informal will should be admitted to probate under pt X of the Wills Act because the nature and efficacy of the deceased's testamentary intentions cannot in any way depend upon, or by influenced by, conduct or omission by the second defendant long after his death. I must, therefore, determine this action without regard to her absence being a factor. What her absence does mean, however, is that conclusions or inferences which might be drawn from the evidence are not contested and that there is no contrary evidence or inference being propounded which may be more favourable to her interests.
Factors relevant to the validity of an informal will
40 The factors relevant to the consideration of the validity of an alleged informal will and the significance and effect of pt X of the Wills Act 1970 were extensively set out and examined in my earlier decision Deeks v Greenwood at [54] and following. As observed in that case at [68] even with an informal will under pt X of the Act it is necessary for the plaintiff to establish that at the time that the document was created a testator must, in fact, have intended that the document should operate with unconditional effect as his or her will and, at [69], I observed:
This requirement that, for validity, a testament must contain the expression of the complete testamentary intentions of its author intended to operate on death is also essential for the proof of a document as an informal will under s 32 of the Wills Act. This is because, as s 32(2) provides, a document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by that Act, constitutes a will of the person if the Supreme Court is satisfied that the person intended the document to constitute that person's will. That is why courts dealing with comparable legislation providing for the proof
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- of informal wills have refused to make grants in respect of documents which contain only preliminary, tentative or incomplete expressions of the author's testamentary intentions or where the document or other evidence demonstrates that it had been prepared for consideration, further thought, deliberation and possible revision. In such cases attempts to prove an informal will have failed because the propounder has been unable to prove that the document embodied the settled testamentary intentions of the deceased.
41 There has been a series of cases in which attempts to prove alleged informal wills have failed because of that requirement. They include Hatsatouris v Hatsatouris [2001] NSWCA 408; Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191; Henwood v Public Trustee (1993) 9 WAR 22; The Estate of Kevin John Hines v Hines [1999] WASC 111; Re Estate of John William Henry Nicholls (dec) [2003] WASC 85; and Oreski v Ikac. I have elaborated on what is or may not be required by that requirement both in Mitchell v Mitchell [2010] WASC 174 and in Deeks v Greenwood and, in the latter case, I examined a series of cases in which mixed results had occurred in which attempts had been made to prove, as an informal will, an unexecuted will or instructions given to a solicitor by a testator but not ever executed because of an early unexpected death.
42 In this case, unlike the last two mentioned, Mitchell v Mitchell and Deeks v Greenwood, the failure to have the will properly executed or the instructions completed by solicitors or by the Public Trustee was not due to some sudden fortuitous episode in which death interrupted arrangements which were already in train to have the will executed. These alleged alterations to the will were made on 8 April 2001, some 10 months before the death of the deceased. It seems clear that no attempts were made by him or others to have the document properly executed or to request the Public Trustee or anyone else to make a new will. The alterations were made to an unexecuted copy of the will dated 13 July 1993 and, on the basis of the evidence adduced at this trial, the document was just put aside and nothing else done with it. Yet Mr Scheller must have been aware from previous experience that formal execution was necessary, or at least desirable, and that a means was at hand for this to be done by communicating with the Public Trustee and giving instructions accordingly. No reason has been suggested as to why he could not have pursued such a course of conduct. No change in his personal circumstances has been suggested which would be sufficient to differentiate the procedure which he followed on this occasion from the procedure which he followed prior to 1993 when he wrote on a copy of his then preceding will the changes which he desired to have effected and
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- forwarded those to the Public Trustee for the preparation of a new will, which was duly done.
43 The events revealed by the evidence are just as consistent, if not more consistent, with a determination made by Mr Scheller that he desired to change his will, an annotation on a convenient copy of an earlier will of the manner in which he desired to have those changes made as preliminary steps to giving instructions to the Public Trustee or to a solicitor to formalise and give effect to that decision. Unless and until some steps were taken to formalise that intended change, there is nothing to suggest that it was anything more than a tentative or preliminary change which may have required more reflection and which, if it were to be implemented, could be implemented readily enough by giving formal instructions at a later time. No later instructions were ever given and, consequently, I am not satisfied that it has been proved that the document being propounded for proof represented Mr Scheller's final or settled testamentary intentions.
44 In these circumstances, therefore, I consider that the application for proof of the alleged informal will has failed and that this action should be dismissed. The plaintiff has made no alternative claim for a grant of probate of the will apparently duly made and executed on 13 July 1993, nor has there been any formal proof attempted of that document. Equally, neither the first defendant nor any other person has counterclaimed or sought to propound for proof the 1993 will. The first defendant was not obliged to do so in these proceedings and, in any event, is not the named executor. This means that it is still possible for the Public Trustee, or some other interested person should the Public Trustee renounce or fail to propound the 1993 will, to apply for a grant of that testament. Whether or not that occurs will remain to be seen.
45 For the moment, the order on this action should be that the plaintiff's claim is dismissed.
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