Wenn-Payne v Wenn
[2023] WASC 459
•30 NOVEMBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WENN-PAYNE -v- WENN [2023] WASC 459
CORAM: FORRESTER J
HEARD: ON THE PAPERS
DELIVERED : 30 NOVEMBER 2023
FILE NO/S: CIV 1496 of 2023
BETWEEN: TANIA DANIELLE WENN-PAYNE
Plaintiff
AND
JODI NATASHA WENN
First Defendant
CRISTA MARTINEZ PRIEST
Second Defendant
Catchwords:
Wills - Grant of probate in solemn or common form - Seeking order pronouncing of force and validity of will - Removal of caveats - O 73 r 19 Rules of the Supreme Court 1971 (WA)
Legislation:
Non-Contentious Probate Rules 1967
Rules of the Supreme Court 1971 (WA)
Wills Act 1970 (WA)
Result:
Will pronounced in common form
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Birman & Ride |
| First Defendant | : | Furstenberg Solicitors & Notaries |
| Second Defendant | : | G G Legal |
Cases referred to in decision:
Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786
Oreski v Ikac [2008] WASCA 220
Vandeleur v Franich [1991] 1 Qd R 481
Wheatley v Edgar [2003] WASC 118
Wood v Melvin [2023] WASC 291
FORRESTER J:
Introduction
Ross Maxwell Gregg Wenn died on 1 December 2021 at the age of 72 years, having been born on 2 August 1949. Mr Wenn left property in Western Australia.
The plaintiff, Tanya Wenn-Payne, and the first defendant, Jodi Natasha Wenn, are the daughters of Mr Wenn and his only surviving children.
Mr Wenn last married in January 1999, and his wife died in about August 2016.
Ms Wenn-Payne commenced this action on 16 May 2023 seeking an order pronouncing the force and validity of the will of Ross Maxwell Gregg Wenn executed on 20 November 2012. Alternatively, she seeks an order pronouncing the force and validity of a document purportedly signed by Mr Wenn in 2014. In either event, Ms Wenn seeks a grant of probate and the removal of any remaining caveats in relation to this matter.
Two such caveats, CAV 123 of 2021 and CAV 154 of 2022, lodged on behalf of the second defendant, were removed by consent and the second defendant was excused from further participation in the action.[1]
[1] As recorded in the memorandum of consent filed 7 June 2023 and orders of Acting Master McDonald made 7 June 2023.
On 13 June 2023, the parties consented to the making of the orders sought. Notwithstanding their consent, O 73 r 19 of the Rules of the Supreme Court 1971 (WA) required that the matter be set down for trial. Orders were made on 20 July 2023 that the matter proceed on the papers.
For the following reasons, I am satisfied that there ought to be a grant of probate in common form.
Evidence adduced at the uncontested trial
The following evidence was adduced:
(1)affidavit of scripts of Tania Danielle Wenn-Payne sworn 12 July 2023, annexing:
(a)last will and testament of Ross Maxwell Gregg Wenn dated 4 August 2007 (2007 Will);
(b)last will and testament of Ross Maxwell Gregg Wenn dated 20 November 2012 (2012 Will);
(c)draft will (with markings) dated 2013 (2013 Document); and
(d)draft will dated 2014 (2014 Document);
(2)affidavit of scripts of Jodi Natasha Wenn sworn 13 July 2023, annexing:
(a)affidavit of Tania Danielle Wenn-Payne sworn on 18 November 2022;
(b)the 2012 Will; and
(c)the 2007 Will;
(3)affidavit of Tania Danielle Wenn-Payne sworn 1 August 2023, annexing:
(a)death certificate of Mr Wenn;
(b) statement pursuant to r 9B(1) of the Non-Contentious Probate Rules 1967;
(4)affidavit of Jodi Natasha Wenn sworn 5 August 2023;
(5)affidavit of Steven John Walker sworn 22 August 2023;
(6)further affidavit of Steven John Walker sworn 22 August 2023; and
(7) affidavit of Nigel Jerome Siegwart sworn 28 August 2023, annexing documents relating to the service of CIT 23/2023.
Summary of the evidence
Ms Wenn-Payne and Ms Wenn deposed that they were aware of four documents which contained or potentially contained testamentary dispositions or instructions of the deceased, each of which were annexed to Ms Wenn-Payne's affidavit, namely:
(1) the 2007 Will;
(2)the 2012 Will;
(3)the 2013 Document; and
(4) the 2014 Document.
The 2013 Document and 2014 Document each had the appearance of a will and each was signed, purportedly by Mr Wenn. Neither document was witnessed. The 2013 Document also had a number of handwritten amendments.
Ms Wenn-Payne deposed that Mr Wenn gave her the 2013 Document in or about 2013, and Ms Wenn-Payne told Mr Wenn about the formal witnessing requirements for a will. Mr Wenn said he would get a will properly prepared.
Ms Wenn-Payne further deposed that Mr Wenn's friend showed her the location of the 2014 Document stored in a pipe in the laundry of Mr Wenn's home after Mr Wenn's death.
Both Ms Wenn-Payne and Ms Wenn deposed that they cannot produce sufficient evidence that either the 2013 Document or the 2014 Document was signed by Mr Wenn, or that the handwritten alterations were made in Mr Wenn's hand. They further deposed that they could not produce evidence which demonstrated that Mr Wenn intended either the 2013 Document or the 2014 Document to constitute his last will and testament, or to alter or revoke his will, or to revive all or part of a will.
Despite extensive enquiries, neither Ms Wenn-Payne nor Ms Wenn have been able to locate the drafter of either the 2013 Document or the 2014 Document or to produce evidence sufficient to demonstrate that either document was made by Mr Wenn or embodied his testamentary intentions. Finally, they deposed that, while a suggestion had been made that Mr Wenn made a will in 2021, no such document had been located.
There is no evidence to the effect that Mr Wenn lacked testamentary capacity at any time.
2007 Will
Under the 2007 Will, Ms Wenn-Payne and Ms Wenn were appointed as the executors of Mr Wenn's estate and were the sole named beneficiaries, subject to certain bequests made in the event Mr Wenn's wife survived him (which she did not).
2012 Will
Under the 2012 Will, Ms Wenn-Payne and Ms Wenn were the sole named beneficiaries, again subject to the bequests made in the event Mr Wenn's wife survived him.
Ms Wenn-Payne and Ms Wenn were again named executors of the 2012 Will. However, on the back of the 2012 Will is an undated handwritten note (handwritten note) which states:
P.S. Adam Eric Wenn to be an executor with Jodi and Tania of this my Will.
The handwritten note purports to be signed by Mr Wenn and P. P McDonald. There is no evidence who the latter might be (they are not a witness to the 2007 Will or the 2012 Will).
2013 Document and 2014 Document
The 2013 Document and the 2014 Document name Ms Wenn‑Payne and Ms Wenn as beneficiaries, but also name the children of Ms Wenn as beneficiaries. Citations were served on each of those children. One has signed a notice of intention to abide. None have sought to be heard in the proceedings.
Status of the 2012 Will, the 2007 Will, the 2013 Document and the 2014 Document
2012 Will
The 2012 Will was purportedly executed in accordance with s 8 of the Wills Act 1970 (WA) (Wills Act). However, there is no evidence from either of the two people who are said to have witnessed Mr Wenn's execution of the 2012 Will, or the circumstances in which it was made.
The 2012 Will revokes all former wills. It has not been revoked by any subsequent marriage, or termination of marriage, and it has not been destroyed.
The handwritten note does not comply with the formal requirements of the Wills Act. Potentially, pursuant to s 32(2) of the Wills Act, the handwritten note could constitute a codicil to the 2012 Will. However, there is no evidence whatsoever as to who wrote the handwritten note, when it was written, or who P.P. McDonald is. The parties do not seek to propound the handwritten note as an informal codicil and, in the circumstances, I am satisfied there is no basis to find that it is an informal codicil.
2007 Will
I am satisfied that the 2007 Will was revoked by the 2012 Will. There is no evidence it has been revived.
2013 Document
While Mr Wenn handed the 2013 Document to Ms Wenn-Payne, there is no evidence as to who drafted it. It is unclear as to when the amendments were made to it, and by whom. Even if it might be inferred that Mr Wenn signed it, it was not witnessed in accordance with the Wills Act. On the evidence, Mr Wenn was made aware the document needed to be witnessed, after which he said he would have a document properly prepared.
Having regard to all of the evidence, I am not satisfied that Mr Wenn intended the 2013 Document to constitute his will,[2] such as to render s 32(2) of the Wills Act applicable.
2014 Document
[2] As that concept was explained in Oreski v Ikac [2008] WASCA 220 at [54] - [55].
There is no evidence as to who drafted the 2014 Document, or when. There is no evidence that Mr Wenn himself signed it (although the signature purports to be his). It was not witnessed in accordance with the Wills Act. It was located in a pipe in the laundry of Mr Wenn's home after his death. Having regard to all of the evidence, I am not satisfied that Mr Wenn intended the 2014 Document to constitute his will,[3] such as to render s 32(2) of the Wills Act applicable.
[3] Oreski [54] - [55].
Grant of probate - applicable legal principles
The difference in effect between a grant of probate in common form and a grant of probate in solemn form is that the former is revocable and the latter, with some limited exceptions, is irrevocable.[4]
[4] Wheatley v Edgar [2003] WASC 118 [18].
The relevant legal principles as to a grant of probate in solemn form were summarised by EM Heenan J in Wheatley v Edgar:[5]
… for there to be a grant [of probate] in solemn form the court must be satisfied on evidence adduced by the party propounding the will, or by any other party to that suit, whether joined or cited, of the formal validity of the will, on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time. In this regard the propounder may take advantage of the rule that a will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding. If there is evidence to the contrary it is for the propounder to establish affirmatively that the testator was of sound mind. Nevertheless, there must be proof at least to this extent on the civil standard to justify a grant in solemn form.
[5] Wheatley [24] (citations omitted).
EM Heenan J referred with approval to the observations of Macrossan CJ in Vandeleur v Franich[6] and said:[7]
… when a compromise is reached between the parties to a contested action for proof in solemn form, it is open to the court to decree in favour of the will either in common form or in solemn form but, for solemn form to be decreed sufficient evidence to satisfy the minimum requirements for validity must be adduced and that this will require, at least, proof of due execution. This is entirely consistent with the other cases so far examined. There is also the significant observation that, whether or not there should be a decree in solemn form by the court in the event of a compromise will also depend on the circumstances of the particular case.
It is in this context that the provisions of RSC O 73, r 18 and the acknowledged power for a court to grant probate in the event of a discontinuance, come to be examined. Clearly enough the rule recognises the power of the court to make a grant in the event of the discontinuance of part or all of an action for proof in solemn form, whether of the will propounded by the plaintiff or of some other will propounded on a counterclaim. However, whether the grant which might then be made should be a grant in solemn form or in common form would seem to depend on the circumstances of the individual case and, in particular, whom the grounds alleged for challenging the validity of the will propounded, the availability of evidence sufficient to prove due execution and at least raise a presumption of testamentary capacity in the absence of evidence to the contrary.
[6] Vandeleur v Franich [1991] 1 Qd R 481, 484 - 485.
[7] Wheatley [26] - [27].
Disposition
The absence of any evidence from the two people who are said to have witnessed the execution by Mr Wenn of the 2012 Will means that there is no evidence of its execution other than on the face of the 2012 Will.
Unlike the presumption as to testamentary capacity, there is no presumption as to the execution of a will which operates in the absence of evidence of that execution.
No reason has been given as to why no evidence has been adduced from either of the people who are purported to have witnessed the execution of the 2012 Will by Mr Wenn. In the case of each of those people, Ms Wenn-Payne deposes that she knows them to live at addresses in Western Australia.[8]
[8] Affidavit of Tania Danielle Wenn-Payne sworn 1 August 2023 [11] - [13].
There is no information in any of the affidavits as to where the 2007 Will or the 2012 Will were located after Mr Wenn's death. As with the 2013 Document and the 2014 Document, there is no evidence that it was Mr Wenn who signed the 2007 Will or the 2012 Will, or the circumstances in which either was signed.
In those circumstances, and applying Wheatley, in the absence of proof of execution, insufficient evidence has been adduced to satisfy the minimum requirements for validity such that solemn form should be decreed.
In a passage recently cited with approval by Lemonis J in Wood v Melvin,[9] Lindsay J said, in Estate Kouvakis; Lucas v Konakas:[10]
… if all interested parties appear before the Court or are demonstrated to have been given sufficient notice of the proceedings to be bound by any determination of the Court, the Court may have greater latitude than otherwise would be the case on an assessment of the evidence upon which a determination about a testator's testamentary intentions, if any, is to be made.
…
In the interests of the due administration of justice the Court may acquiesce in a procedural process in which selective notice is taken of some, and not other, evidence in order to accommodate an application for a solemn form grant in which all adversarial interests acquiesce. It is because of this possibility that the essential character of a solemn form grant cannot, for all purposes, be defined by reference to an evidentiary standard alone.
The Court reserves a right to act expediently in the interests of the administration of justice: eg, Palin v Ponting [1930] P 185 at 188, applying Gornall v Mason (1887) 12 PD 142. It does not, and it is not required to, apply in every case a rigorous requirement, for a grant in solemn form, that it have no notice, in fact, of evidence casting doubt on the validity of an instrument propounded as the deceased's last will. Where it is proper and reasonable to do so, it can, in the interests of justice and the due administration of an estate, proceed on the basis of a formal notation of evidence tending to prove the validity of an instrument, allowing parties to discount other lines of inquiry.
[9] Wood v Melvin [2023] WASC 291 [14].
[10] Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786 [251], [262] - [265].
The interests of the three children of Ms Wenn are potentially significantly affected by the determination of this matter, in the sense that their rights are very different under the 2012 Will and the 2013 Document and 2014 Document.
Each of the three children have been cited. The citations attach the 2014 Document, but there is no reference to the 2013 Document. Only one of the three children has signed a Notice of Intention to Abide, which was sent by email to the plaintiff's solicitors and filed by them. Neither of the remaining two children has sought to be heard in these proceedings.
In those circumstances, it might be argued that the potentially interested parties have been given sufficient notice to be bound by the determination of the court, such that the court might take greater latitude in assessing the evidence so as to justify the grant of a decree in solemn form.
However, there is no evidence before the court as to the nature of the relationship between Ms Wenn and her children. There is no evidence as to the extent of the knowledge Ms Wenn's children have as to the circumstances of this matter, outside the citation served upon each of them. There is no evidence that any of them are aware of the 2013 Document.
There is also no evidence as to whether Adam Eric Wenn has been informed of the existence of the handwritten note. As he is not named as a beneficiary in any document before me, it is not necessary to put him on notice, but, as the plaintiff contemplates, Adam Eric Wenn could, if he chose, seek to agitate the issue.
In those circumstances, I do not consider that the conditions exist in which I could properly exercise the right to acquiesce in a procedural process which does not strictly prove the execution of the 2012 Will in order to grant probate in solemn form.
However, in the absence of any evidence which calls into question the validity of the 2012 Will, and in light of the consent of the parties, I consider it appropriate to make a grant of probate in common form.
Caveats
Only one caveat in this matter remains in force: CAV 66/2023. Ms Wenn has, by a memorandum filed on 14 June 2023, consented to the removal of that caveat, and an order will be made to that effect.
Orders
There be a pronouncement of the force and validity of the last will and testament of the late Ross Maxwell Gregg Wenn dated 20 November 2012 (the Will), a copy of such will being marked as Attachment 'TWP2' to the Affidavit of Scripts sworn by Affidavit of Tania Danielle Wenn-Payne on 12 July 2023.
A probate registrar of this Court settle a grant of probate in common form of law of the Will to the plaintiff and first defendant as executors.
Probate caveat CAV 66 of 2023 be removed.
I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
30 NOVEMBER 2023
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