The Public Trustee v Gerritsen

[2012] WASC 201

THE PUBLIC TRUSTEE -v- GERRITSEN [2012] WASC 201

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 201
Case No:	CIV:1614/2011	Heard:	14 JUNE 2012
Coram:	BEECH J	Delivered:	14/06/12
No of pages:	12	Judgment Part:	1 of 1
Result:	Probate granted of informal will
Category:	B
PDF Version

Parties:	THE PUBLIC TRUSTEE STELLA MAUREEN GERRITSEN RONALD JOHN ROBERTS as the personal representative of the Estate of KATHLEEN JOYCE ROBERTS RHONDA HENRY DENISE CINDY HUGHES ELEANOR JEAN ROSS PATRICIA DIANE WATSON HELEN JOYCE WESSELS DEBRA GAIL ROBERTS MARGARET ANNE PRICE WAYNE LESLIE ROBERTS CHERYL MAY BLAKE
Catchwords:	Wills Probate Informal wills Whether will signed by testator but not witnessed was intended to constitute the testator's will
Legislation:	Wills Act 1970 (WA), s 32
Case References:	Dalton v Dalton [2008] WASC 56 Deeks v Greenwood [2011] WASC 359 Hatsatouris v Hatsatouris [2001] NSWCA 408 Mitchell v Mitchell [2010] WASC 174 Oreski v Ikac [2008] WASCA 220 Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191 Spencer v Spencer [2009] WASC 198 The Estate of Kevin John Hines v Hines [1999] WASC 111 The Public Trustee in and for the State of Western Australia v Drennan [2004] WASC 101 Tolson v Hender [2009] WASC 319 Wheatley v Edgar [2003] WASC 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : THE PUBLIC TRUSTEE -v- GERRITSEN [2012] WASC 201 CORAM : BEECH J HEARD : 14 JUNE 2012 DELIVERED : 14 JUNE 2012 FILE NO/S : CIV 1614 of 2011 MATTER : The will of WILLIAM ROBERTS late of Unit 1/90-92 Forest Street, North Perth in the State of Western Australia (Dec) BETWEEN : THE PUBLIC TRUSTEE

Plaintiff

AND

STELLA MAUREEN GERRITSEN
First Defendant

RONALD JOHN ROBERTS as the personal representative of the Estate of KATHLEEN JOYCE ROBERTS
Second Defendant

RHONDA HENRY
DENISE CINDY HUGHES
Third Defendants

ELEANOR JEAN ROSS
PATRICIA DIANE WATSON
HELEN JOYCE WESSELS
DEBRA GAIL ROBERTS
MARGARET ANNE PRICE
WAYNE LESLIE ROBERTS

(Page 2)

CHERYL MAY BLAKE
Fourth Defendants

Catchwords:

Wills - Probate - Informal wills - Whether will signed by testator but not witnessed was intended to constitute the testator's will

Legislation:

Wills Act 1970 (WA), s 32

Result:

Probate granted of informal will

Category: B

Representation:

Counsel:

Plaintiff : Mr D L Jones
First Defendant : Mr P J Marsh
Second Defendant : No appearance
Third Defendants : No appearance
Fourth Defendants : No appearance

Solicitors:

Plaintiff : Public Trustee (WA)
First Defendant : Waterside Legal
Second Defendant : No appearance
Third Defendants : In person
Fourth Defendants : Nielsen & Co

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Case(s) referred to in judgment(s):

Dalton v Dalton [2008] WASC 56
Deeks v Greenwood [2011] WASC 359
Hatsatouris v Hatsatouris [2001] NSWCA 408
Mitchell v Mitchell [2010] WASC 174
Oreski v Ikac [2008] WASCA 220
Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191
Spencer v Spencer [2009] WASC 198
The Estate of Kevin John Hines v Hines [1999] WASC 111
The Public Trustee in and for the State of Western Australia v Drennan [2004] WASC 101
Tolson v Hender [2009] WASC 319
Wheatley v Edgar [2003] WASC 118


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BEECH J:

Introduction

1 Mr William Roberts died on 7 December 2009. Two months earlier, on 6 October 2009, Mr Roberts (the deceased) signed a document described as his will. That document (the October 2009 document) did not comply with the formal requirements for a will in that the persons present when the deceased signed the will did not sign the will.

2 The October 2009 document appointed the plaintiff, The Public Trustee, as executor of the deceased's estate. The plaintiff propounds the October 2009 document as an informal will under s 32 of the Wills Act 1970 (WA).

3 For the reasons that follow, I would grant probate of the October 2009 document.

4 I will begin by outlining the deceased's earlier testamentary documents, before turning to the October 2009 document.

Earlier testamentary documents

5 The deceased signed four wills, in May 1986, February 1991, April 1994 and September 1997. Each will was signed by the deceased and two witnesses, in accordance with s 8 of the Wills Act.

6 Each will left the whole of the deceased's estate to his wife. The wills made various provisions about the disposition of the estate in the event that she did not survive him. The 1997 will provided that in that event, the estate was to be shared equally between his stepchildren, and, if a stepchild did not survive him, that person's children would share their parent's share of the estate.

The October 2009 document

7 In September 2009, on instructions from the deceased, his son, Wayne (one of the fourth defendants in this action), prepared two forms of will, both of which the deceased signed on 6 October 2009. The two documents are identical, except that the October 2009 document has two sentences (in smaller font, as indicated below) inserted at the end of the document. I will say more about the circumstances of signing the document later in these reasons.

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8 The contents of the October 2009 document are as follows.

This is the last will and testament of me William Roberts of Unit 1,90-92 Forrest street North Perth in the State of Western Australia, Formerly of 15 Stoate Place Mirrabooka in the State of Western Australia

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 trustee UPON TRUST for division into SEVEN (7) equal parts for distribution as follows

(A) One of those parts to each of my daughters Eleanor J Ross, Helen J Wessels, Margaret A Price, Cheryl M Blake, Partricia D Watson, Debra G Roberts as shall survive me but if any said daughter shall predecease me leaving children who shall survive me then those children shall take equally the share which their parent would otherwise have taken.

(B) One of those parts to my son Wayne L Roberts as shall survive me but if said son shall predecease me leaving children who shall survive me then those children shall take equally the share which their parent would otherwise have taken.



I have 2 surviving stepchildren, Being Kathleen J Roberts and Stella M Gerritsen.

I do not wish to bequeath them anything and would like this done in a way so as to avoid them contesting the will, does it need to be mentioned in my will ??

(original emphasis and spelling)

9 The plaintiff seeks orders that the court pronounce the validity of the October 2009 document in solemn form.

The position of the parties in this action

10 The first defendant is one of the deceased's stepdaughters, Stella Gerritsen. The deceased's other stepdaughter, Kathleen Roberts, survived the deceased but died in April 2010. Her husband, Ronald Roberts, is named as the second defendant as the personal representative of her estate. The deceased's stepson died before the deceased did and was survived by his two daughters, who are joined as the third defendants. Thus the first to third defendants are the beneficiaries under the 1997 will which would, on the face of it, apply if the October 2009 document is not admitted to probate.

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11 The fourth defendants are the seven children of the deceased who are named as beneficiaries in the October 2009 document.

12 As a number of the defendants share the same surname, I propose to refer to parties by using their first names (without intending any disrespect).

13 The first, third and fourth defendants appeared in the action. The first defendant's defence opposed the orders sought by the plaintiff and denied that the October 2009 document embodied the testamentary intentions of the deceased. The fourth defendants joined with the plaintiff in seeking to have the court pronounce the validity of the October 2009 document. No defence was filed by the third defendants. A note attached to the memorandum of appearance of one of the third defendants, Denise, suggests that she wanted to have the deceased's estate distributed in half shares between the deceased's children and stepchildren.

14 A mediation conference for this action was held before trial and a confidential settlement between the parties was reached. Following from that, this action comes to trial on an undefended basis. I adopt what was said by Hall J in Tolson v Hender [2009] WASC 319 [4]:

A grant of probate in solemn form cannot be made simply by consent of the parties. The plaintiff is obliged to prove that the will is formally valid and made by a testator who had the capacity to do so. I accept however that the fact that the parties have agreed upon orders to resolve this matter is a relevant consideration: Phillpot v Olney [2004] NSWSC 592.

See also Wheatley v Edgar [2003] WASC 118 [22] - [26] (EM Heenan J).

15 It is common ground that the October 2009 document is not formally valid under Wills Act s 8. Although signed by the deceased in the presence of at least two witnesses, it was not then attested and signed by the witnesses: see s 8(d). I turn to consider whether the October 2009 document is nevertheless valid as an informal will under s 32 of the Wills Act. I begin by outlining the relevant principles.

Legal principles

16 As the deceased died after 9 February 2008, s 32 applies in this action: see s 33 Wills Act. Section 32(2) and s 32(3) provide:

(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 -

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(a) a will of the person;

(b) an alteration to a will of the person;

(c) the revocation of a will of the person; or

(d) the revival of a will or part of a will of the person,

if the Supreme Court is satisfied that the person intended the document to constitute the person’s will, an alteration to the person’s will, the revocation of the person’s will or the revival of a will or part of a will of the person, as the case may be.

(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.

17 In Spencer v Spencer [2009] WASC 198 [26], EM Heenan J stated the three requirements under s 32:

For any document to be admitted to proof as an informal will or testamentary instrument of a deceased pursuant to the provisions of s 32 of the Wills Act it must be demonstrated that:

(a) there is a document;

(b) that the document purports to embody the testamentary intentions of the relevant deceased; and

(c) there is evidence which satisfies the court that either at the time the document was brought into being or at some later time, the relevant deceased, by some act or words, demonstrated that it was his or her intention that the document should, without more on his or her part, operate as his or her will: Hatsatouris v Hatsatouris [2001] NSWCA 408 [56] and Oreski v Ikac [2007] WASC 195 at [105].

18 That test had been approved by the Court of Appeal in Oreski v Ikac [2008] WASCA 220 [53] (Newnes AJA; Martin CJ & McLure JA agreeing) in the context of the previous s 34 of the Wills Act (in force before the Wills Amendment Act2007).

19 In Oreski v Ikac [54] - [55], Newnes AJA discussed the third part of the test:

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

(Page 8)

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, 455; Equity Trustees Ltd v Levin [2004] VSC 203. As Young CJ in Eq pointed out in Macey v Finch [2002] NSWSC 933 [23], even where a draft will has been prepared in accordance with the deceased's instructions, it is quite common for testators to change their mind after giving instructions or on seeing the draft will.

It is therefore of fundamental importance that the person seeking to propound the document establish that the deceased, by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will.

20 The third requirement is stated in a way which is somewhat more specific than the language of the statute. The language of s 32 only requires the court to be satisfied that the person intended the document to constitute their will. I refer to what I said in Dalton v Dalton [2008] WASC 56 [47]:

There is reference in Hatsatouris to the need for 'some act or words' to demonstrate the intention. That is, I think, explicable by the nature of the issue in Hatsatouris, Perriman and Oreski. In all those cases the issue was whether an unsigned document, not written or at least not proved to have been written by the deceased, should be declared to be the deceased's will. In that context it is necessary that there be some 'act or words' of the deceased which demonstrated the intention that the document operate as his or her will. If a person wrote and signed a document, there is no necessary requirement in every case to identify separate acts or words of the person as manifesting an intention that the document constitutes the person's will. In some such cases, that conclusion may be able to be drawn from the terms of the document written and signed by the person.

21 In Deeks v Greenwood [2011] WASC 359, EM Heenan J stated at [71]:

The question of whether or not the document was intended to take effect as the testator's will without more plainly emphasises that it needs to be established that it embodies the final expression of testamentary intentions upon which the testator was at the time resolved, and that it should not be tentative, advisory or prepared in the anticipation that it may need revision, further thought or final confirmation. That is consistent with principle and with the statute but the phrase, not found in the legislation itself, is capable

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of suggesting that if anything more is required for the paper to take effect as a will it could not be valid even as an informal will. With respect, I am satisfied that this is not what was intended by his Honour's observations in Oreski v Ikac. (original emphasis)

See also Mitchell v Mitchell [2010] WASC 174 [42] - [43], cited in Deeks.

22 Consequently, I approach the present case by reference to the statutory language, rather than to the words used in the formulation of the questions in Hatsatouris v Hatsatouris [2001] NSWCA 408. The third element in the test of whether a document is a will under s 32 is whether the deceased intended the document to constitute his will.

23 In Hatsatouris [57] - [59] it was held that the question of intention was not to be determined at the time of death, but at the point in time when the deceased manifested (or not) the intention that the document operate as his or her will. Regard may be had to all the circumstances (whether before or after the time of the document in question) in determining whether at the time the document was brought into being, or signed or otherwise adopted, the deceased had the relevant intention. However, once it is concluded that the deceased had the relevant intention, subsequent acts or statements cannot, unless they satisfy the requirements for testamentary instruments, deprive the document of its status as a testamentary instrument.

24 The question to which s 32 directs attention is not the testamentary intention of the deceased generally, but rather whether it is established that the deceased intended the particular document to constitute his will: Re Estate of Frederick Raymond Reeve Perriman(dec) [2003] WASC 191 [31]; The Estate of Kevin John Hines v Hines [1999] WASC 111 [22].

25 It is not necessary that the deceased be familiar with the term 'will'. It is enough that he intended the document to express his intention, in a binding way, as to matters relating to his property which were to take effect upon his death: Hines [22].

26 The court must also be satisfied that the deceased had testamentary capacity. There is authority which suggests that the presumption of capacity arising from due execution of a will does not arise in respect of an informal will or codicil: The Public Trustee in and for the State of Western Australia v Drennan [2004] WASC 101. Subsequent cases have left open that question. It is not necessary to determine it here. I am

(Page 10)

satisfied on the affidavit evidence of the deceased's doctor and from the notes in the will instruction form completed by an officer of The Public Trustee in October 2009, that the deceased had testamentary capacity at the time of signing the October 2009 document.

27 I turn to the evidence relevant to whether the October 2009 document should be admitted to proof as an informal will.

The evidence

28 The deceased's wife died in May 2009.

29 In September 2009, the deceased told two of his children, Debra and Wayne, that he wished to make a new will. Wayne drafted a new will based on the instructions given by the deceased, using some of the wording of one of the deceased's previous wills. A few days later, it was suggested to Wayne by 'an acquaintance' that the new will should refer to the deceased's desire not to leave any of his estate to his stepchildren. Wayne then added the last two sentences to the October 2009 document.

30 On 6 October 2009, Wayne visited the deceased with another of his sisters, Cheryl, and her husband Kevin. Wayne read the October 2009 document to the deceased. Cheryl and Kevin cannot now remember whether or not Wayne read out the additional words in the October 2009 document. The deceased said words to the effect that he agreed with the contents of the October 2009 document and that he wanted to, or thought that he should, sign it. He signed and dated both the October 2009 document and the other document that did not include the last two sentences, and gave both documents back to Wayne. None of the other three people present signed the documents as witnesses.

31 Wayne's evidence is that he prepared the October 2009 document (which he refers to in his affidavit as 'the Draft Will') for the deceased to give to The Public Trustee 'where it could be checked and amended if necessary' [2]. On 6 October 2009, Wayne arranged an appointment for a wills officer from the Public trustee to visit the deceased on 15 October 2009.

32 On 15 October, Ms Natalie Timothy, medical records clerk at The Public Trustee, visited the deceased and took instructions to prepare a will. Those instructions, as recorded on the will instruction form signed by the deceased and Ms Timothy on 15 October, include the following:

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(a) The executor of the will is to be the deceased's son, Wayne, as he had the most contact with the deceased. The Public Trustee is named as a substitute executor.

(b) The deceased's seven children are listed as beneficiaries. Some of their surnames appear to be incorrect, though their first and middle names were correctly provided by the deceased.

(c) The deceased gave instructions to have his estate distributed equally between those of his seven children who survive him.

(d) There is a note that he does not want to make any provision for his stepchildren.

(e) There is no provision for his grandchildren, with a comment that the deceased 'has not much to do with grandchildren'.

33 At the interview, the deceased could not recall the addresses and dates of birth of his children, or the full details for the executor. Ms Timothy asked the deceased to mail her those details and left a prepaid envelope with him to use.

34 When Wayne and Debra visited the deceased on 26 November 2009 to take him to the bank, he advised that he had not yet received his will from The Public Trustee for execution.

35 On 27 November 2009, Ms Timothy was contacted by the deceased's daughter, Debra. I infer that this was the result of Debra's conversation with the deceased on 26 November. Debra told Ms Timothy that she would help the deceased get all the information about the beneficiaries that the Public Trustee needed to complete the will.

36 The deceased died unexpectedly on 7 December 2009.

Are the elements of s 32 satisfied?

37 The first two requirements under s 32 are not in question. The October 2009 document is a document which purports to embody the testamentary intentions of the deceased.

38 The question is whether I am satisfied that the deceased intended the October 2009 document to constitute his will. In that respect, it would not be sufficient if the deceased had intended the October 2009 document to record his instructions for a will, or to be a draft will to assist in the preparation of the will to be prepared by The Public Trustee.

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39 It is clear from the evidence that the deceased intended The Public Trustee to prepare a will for him. However, in the circumstances I have outlined in the preceding section of these reasons, I am satisfied that he also intended that the October 2009 document operate as his will in the meantime, pending the preparation and execution of the will to be prepared by The Public Trustee. In my view that is supported by the deceased's statement that he wanted to or should sign the will, and his conduct in doing so.

40 There is no evidence of any reason why the deceased might have thought his death to be imminent. To the contrary, his death in December 2009 was unexpected. Nevertheless, by October 2009 the deceased was almost 85. In these circumstances, I think the proper inference is that the deceased intended the October 2009 document to constitute his will until the document to be prepared by The Public Trustee was executed by him.

Conclusion

41 For these reasons I would make orders to the effect sought by the plaintiff.