The Public Trustee v Murphy
[2004] WASC 191
THE PUBLIC TRUSTEE -v- MURPHY & ORS [2004] WASC 191
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 191 | |
| Case No: | CIV:2000/2003 | 24 AUGUST 2004 | |
| Coram: | COMMISSIONER ZILKO SC | 3/09/04 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Informal will effective and valid Grant of letters of administration to the Public Trustee | ||
| B | |||
| PDF Version |
| Parties: | THE PUBLIC TRUSTEE JEAN MURPHY THE SALVATION ARMY (WESTERN AUSTRALIA) PROPERTY TRUST MARION FARMER |
Catchwords: | Wills Probate Requirements for proof of document purporting to embody testamentary intention of deceased |
Legislation: | Administration Act 1903 Wills Act 1970, Pt III and Pt X |
Case References: | In the Estate of Crossley; Crossley v Crossley [1989] WAR 227 In the matter of the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1 The Public Trustee v Head [2003] WASC 91 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
JEAN MURPHY
First Defendant
THE SALVATION ARMY (WESTERN AUSTRALIA) PROPERTY TRUST
Second Defendant
MARION FARMER
Third Defendant
Catchwords:
Wills - Probate - Requirements for proof of document purporting to embody testamentary intention of deceased
(Page 2)
Legislation:
Administration Act 1903
Wills Act 1970, Pt III and Pt X
Result:
Informal will effective and valid
Grant of letters of administration to the Public Trustee
Category: B
Representation:
Counsel:
Plaintiff : Ms L M Hudson
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff : Public Trustee
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Case(s) referred to in judgment(s):
In the Estate of Crossley; Crossley v Crossley [1989] WAR 227
In the matter of the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1
The Public Trustee v Head [2003] WASC 91
Case(s) also cited:
Nil
(Page 3)
1 COMMISSIONER ZILKO SC: This action was commenced by writ of summons on 14 August 2003. The action originally named the first defendant and the second defendant. On 9 March 2004 an amended writ of summons and statement of claim were filed whereby the third defendant was joined as a party to the action. The amended statement of claim pleads that Walter Farmer ("the deceased"), who died on or about 11 March 2002, left a document dated 12 May 1995 purporting to embody his testamentary intentions ("the 1995 Will"). However, it further pleads that the 1995 Will did not comply with the requirements of Pt III of the Wills Act 1970 ("the Act") in that although the deceased signed it, there were no witnesses to his signature who attested and subscribed the 1995 Will in the presence of the deceased. The first defendant is a sister of the deceased and was named as the executrix and a legatee in the 1995 Will. The second defendant is also a legatee named in the 1995 Will. The third defendant is a sister of the deceased but was not named in the 1995 Will. However, she would participate in the distribution of the deceased's estate under an intestacy.
2 It is also pleaded in the amended statement of claim that on 10 April 2001 the deceased signed a will in the presence of Derek Burton and Steven Peel ("the 2001 Will") but that it cannot be found nor can its contents or tenor be substantiated. In these circumstances the Court is asked to pronounce for the force and validity of the 1995 Will and grant to the plaintiff Letters of Administration with the 1995 Will annexed, limited until the 2001 Will or a copy thereof be brought into Court. Alternatively, the plaintiff seeks a finding that the deceased died intestate and an order that the plaintiff administer the deceased's estate.
3 On 23 September 2003 it was ordered that the plaintiff have leave to set down the action for trial without regard for the requirements of O 33 of the Supreme Court Rules. It was further ordered that at trial the evidence of witnesses be by affidavit. As a result of those orders there were before me two affidavits as follows:
1. The affidavit of Shaun William Conlon as to scripts sworn 13 October 2003;
2. The affidavit of Shaun William Conlon sworn 12 August 2004.
(Page 4)
4 In addition, I have before me a notice of intention to abide the decision of the Court executed by the third defendant on 8 May 2004 and a letter from the second defendant addressed to the plaintiff dated 14 April 2004 in which the second defendant also advised that it would abide the decision of the Court.
5 It is appropriate to deal with the 2001 Will first. Mr Conlon's above affidavits refer to the 2001 Will and annexed to the latter affidavit is a record of written and oral communications which have taken place between officers of the plaintiff and the alleged witnesses, Mr Burton and Mr Peel. Neither Mr Peel nor Mr Burton have deposed in their own right to the deceased's or their execution of the 2001 Will and I am left to rely on a telephone note made by one of the plaintiff's officers in respect of Mr Peel's recollection of events (Annex SWC1 to Mr Conlon's affidavit sworn 12 August 2004) and a letter written by Mr Burton to the plaintiff in respect of his recollection of events (Annex SWC4 to Mr Conlon's affidavit sworn 12 August 2004).
6 It seems that both men recall signing what they though was a will at a hotel in Northbridge. The deceased referred to the document they were all signing as his will. Mr Peel remembers seeing the name of the first defendant in the document. Mr Burton did not look at the contents of the document and so can say nothing about the provisions thereof. Mr Burton does remember the deceased saying that he intended to leave his property to him but Mr Peel does not recall that conversation or at least has not conveyed it to the plaintiff's officer with whom he has spoken about the matter.
7 It has been submitted to me by counsel for the plaintiff that if I am persuaded that the 2001 Will was a valid will pursuant to Pt III of the Act, it ought to be presumed that the deceased intended to revoke the 1995 Will and, as the 2001 Will can no longer be located, it would follow that the deceased died intestate. In that event, and pursuant to the formula set out in s 14 of the Administration Act 1903, the beneficiaries of the deceased's estate will be the first and third defendants.
8 What is clear is that no-one can say with any certainty what the 2001 Will contained, whether it complied in all respects with Pt III of the Act and, even if it did so comply, whether the deceased destroyed it at some later point in time. On the evidence presently before me I cannot be satisfied as to any of these matters.
(Page 5)
9 I turn to the 1995 Will a copy of which is annexed to these reasons. It can be seen that the 1995 Will is written on a standard form of the kind which can be purchased generally from newsagents and stationers. There is no name inserted at the commencement of the document in the space provided for the testator but the backing sheet refers to it as "the last Will and Testament of Mr Walter Farmer". Apart from the reference to the deceased by name, there are some indications that the document was written by the deceased. First, in the space provided for the appointment of the executor/executrix, there is reference to "Mrs J Murphy sister". As I have already noted, the first defendant is the deceased's sister. Alongside the first defendant's name, there is reference to her previous name, Ms Jean Farmer. Second, the author of the document refers, still in the provision for the naming of the executor/executrix, to "All Property Regarding No 11, Flat, 155, 9 Avenue Inglewood 6052 West Aust" and thereunder there is a signature which appears to be "W Farmer". This was where the deceased resided at the date of his death. Third, under the printed words "I Give Devise and Bequeath" the author of the 1995 Will has written:
"To Mrs J Murphy
14, Roeburn Way
Penkeath Cheshire UK
All Assets of Property's (sic)
owned By W Farmer West Australia
All monies in Bank Accounts.
All Shares Owned by
Me
In C. R. A. Melbourne
Australia"
10 Thereunder the author has again signed W Farmer. Below the second signature are these words:
"All Proceeds of 1 Ford VAN
To Be Sold
And Donated to
Salvation Army
(Morley) Western Australia"
11 On the second page of the document under the words "Particulars of the Testator's property" the author has written:
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- "One Flat owned By
Mr W Farmer Inglewood
9 Avenue,
West Australia
All Shares & Bank Accounts
Registered
CRA Shares
Melbourne
Victoria, Australia
Bank Accounts/Commonwealth Bank
West Australia"
- Alongside the above description is the date 12th May 1995 and the signature "W Farmer".
12 On the third page the document is again dated 12th May 1995 and in two places the signature "W Farmer" has been written. The various signatures on the document have not been witnessed.
13 During the trial I expressed some concern that although the above writing may have been that of the deceased, the plaintiff had not produced any other document written by the deceased in order to enable the Court to make at least a rudimentary comparison between the writing in the 1995 Will and such other document as could be obtained which bore the deceased's handwriting and, most importantly, his signature. As a result of those concerns, counsel for the plaintiff produced a copy of a dividend statement issued by CRA Ltd to the deceased and dated 13 April 1994 (Ex 1). The dividend statement has a number of handwritten notations thereon and the signature "W Farmer". The handwritten notations refer to Lyn and Jayne Murphy who are described as daughters of Mrs J Murphy and the same address as is contained in the 1995 Will is shown in the handwritten notations. To my untrained eye the handwriting, and particularly the signature, on Ex 1 appear to be the same as the handwriting and signature on the 1995 Will. My conclusions are reinforced by the fact that the handwriting on Ex 1 also refers to Mrs J Murphy.
14 There is no evidence of anyone witnessing the deceased's execution of the 1995 Will as was the case, for example, in In the Estate of Crossley; Crossley v Crossley [1989] WAR 227 and no evidence was put before me by a handwriting expert who had compared the two written documents referred to above and made conclusions thereon, as occurred in The Public Trustee v Head [2003] WASC 91. However, I do not consider that I require corroborative evidence of this kind if I am satisfied,
(Page 7)
- from my own perusal of Ex 1 and the 1995 Will, that the 1995 Will was written and signed by the deceased. I am so satisfied.
15 Having reached that conclusion the question then to be determined by me is whether the 1995 Will should be found to be a will which is valid and effective notwithstanding that it does not comply with s 8 of the Act. Section 8 is in the following terms:
"Subject to the provisions of Part VI and section 34, a will is not valid unless –
(a) it is in writing;
(b) it is signed by the testator or signed in his name by some other person in his presence and by his 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 his will;
(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."
16 Part VI which deals with privileged wills is not relevant for the purposes of this matter. That leaves s 34 which, as amended by Act No 47 in 1997, is in the following terms:
"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 section 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his will."
17 Prior to the amendment in 1997, s 34 required the court to be satisfied "that there can be no reasonable doubt" concerning the deceased's intentions but with the removal of that requirement, it is only necessary for me to be satisfied on the balance of probabilities that the deceased intended the 1995 Will to constitute his will.
(Page 8)
18 In In the matter of the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1, Nicholson J referred to the three requirements for s 34 to have effect as follows:
1. There must be a document purporting to embody the testamentary intentions of the deceased person;
2. that document must not have been executed in accordance with s 8 of the Act; and
3. the court must be satisfied that there can be no reasonable doubt that the deceased person intended the document to constitute his will.
19 Similar sentiments were expressed by Nicholson J in In the estate of Crossley; Crossley v Crossley (supra). In view of the 1997 amendments to the Act, Nicholson J's third requirement can be ignored. As already noted, I need only be satisfied on the balance of probabilities that the deceased intended the 1995 Will to constitute his will.
20 I have already found that the 1995 Will was written and signed by the deceased. I am also satisfied that the 1995 Will purports to embody the testamentary intentions of the deceased. It has been written on a standard form for the making of one's will and, as noted above, it is described on the backing sheet as "the last Will and Testament of Mr Walter Farmer". In these circumstances I conclude that the 1995 Will is a will, as that term is understood by the Act, notwithstanding that it has not been executed in accordance with s 8. I am therefore prepared to make the following orders:
1. the Court pronounces that the will of Walter Farmer, deceased, dated 12 May 1995, a copy of which is annexed hereto, is of full force and validity;
2. there be a grant of Letters of Administration with the above will annexed to the plaintiff.
- I will hear the plaintiff's counsel as to costs.
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