Wood v Melvin
[2023] WASC 291
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WOOD -v- MELVIN [2023] WASC 291
CORAM: LEMONIS J
HEARD: 24 JULY 2023
DELIVERED : 8 AUGUST 2023
FILE NO/S: CIV 1369 of 2022
BETWEEN: RAELENE JANICE WOOD
Plaintiff
AND
ASHLEY GORDON MELVIN
First Defendant
LINLEY SUE HOOPER
Second Defendant
PATRICIA ERICA BELL
Third Defendant
JODIE MAREE MELVIN
Fourth Defendant
KEITH MELVIN
Fifth Defendant
JODIE MAREE MELVIN
First Plaintiff by Counterclaim
KEITH MELVIN
Second Plaintiff by Counterclaim
AND
ASHLEY GORDON MELVIN
First Defendant by Counterclaim
LINLEY SUE HOOPER
Second Defendant by Counterclaim
PATRICIA ERICA BELL
Third Defendant by Counterclaim
RAELENE JANICE WOOD
Fourth Defendant by Counterclaim
Catchwords:
Grant of probate in solemn form - All interested parties agree both as to the grant of probate in solemn form and as to who should be appointed administrator of the estate - As a consequence of such agreement, limited evidence was led at trial - Consideration of the applicable principles and whether probate should be granted in solemn or common form
Legislation:
Administration Act 1903 (WA)
Family Provision Act 1972 (WA)
Law Reform (Miscellaneous Provisions) Act 1941 (WA)
Rules of the Supreme Court 1971 (WA)
Wills Act 1970 (WA)
Result:
Grant of probate in solemn form; administrator of estate appointed
Representation:
Original Action
Counsel:
| Plaintiff | : | R J Nash |
| First Defendant | : | D Markovich |
| Second Defendant | : | T Lethbridge |
| Third Defendant | : | D Markovich |
| Fourth Defendant | : | M N Blandford |
| Fifth Defendant | : | M N Blandford |
Solicitors:
| Plaintiff | : | Hale Legal |
| First Defendant | : | Lane Buck & Higgins (Narrogin) |
| Second Defendant | : | Croftbridge |
| Third Defendant | : | Lane Buck & Higgins (Narrogin) |
| Fourth Defendant | : | Granich Partners |
| Fifth Defendant | : | Granich Partners |
Counterclaim
Counsel:
| First Plaintiff by Counterclaim | : | M N Blandford |
| Second Plaintiff by Counterclaim | : | M N Blandford |
| First Defendant by Counterclaim | : | D Markovich |
| Second Defendant by Counterclaim | : | T Lethbridge |
| Third Defendant by Counterclaim | : | D Markovich |
| Fourth Defendant by Counterclaim | : | R J Nash |
Solicitors:
| First Plaintiff by Counterclaim | : | Granich Partners |
| Second Plaintiff by Counterclaim | : | Granich Partners |
| First Defendant by Counterclaim | : | Lane Buck & Higgins (Narrogin) |
| Second Defendant by Counterclaim | : | Croftbridge |
| Third Defendant by Counterclaim | : | Lane Buck & Higgins (Narrogin) |
| Fourth Defendant by Counterclaim | : | Hale Legal |
Cases referred to in decision:
Barry v Butlin [1838] Eng R 1056
Cahill v Rhodes [2010] NSWSC 561
Devine v Richardson [2019] WASC 272
Gornall v Mason (1887) 12 PD 142
In the Will of Steward, deceased [1964] VR 179
Palin v Ponting [1930] P 185
The Public Trustee v Gerritsen [2012] WASC 201
Timbury v Coffee (1941) 66 CLR 277
Tolson v Hender [2009] WASC 319
Wheatley v Edgar [2003] WASC 118
LEMONIS J:
Mrs Marlene Janice Melvin passed away on 23 August 2021. Mrs Melvin was born on 26 November 1933 and was 87 years of age when she passed away. Mrs Melvin left property in Western Australia. These proceedings relate to Mrs Melvin's estate and came before me for trial.
Mrs Melvin was married to Mr Gordon Eric Melvin, who passed away on 18 September 1999. She did not remarry or re‑partner. Together they had five children being the plaintiff (Raelene), the first defendant (Ashley), the second defendant (Linley), the third defendant (Patricia) and Robin Noel Melvin (Robin). Robin passed away on 5 April 2020. Robin is survived by two children, the fourth defendant (Jodie) and the fifth defendant (Keith).
All parties to the proceedings were represented by counsel at the trial.
Raelene commenced the proceedings seeking an order that Mrs Melvin died intestate and for consequential orders. The alleged basis relied on for that claimed relief was as follows. Mrs Melvin executed a valid will on 24 September 1980 (the 1980 will). Sometime during 2000, Mrs Melvin made a new will revoking the 1980 will. The further will cannot be found. It is presumed to have been destroyed by Mrs Melvin with the intention of revoking it.
Ashley and Patricia filed a notice of intention to abide the decision of the court save as to costs.
Linley's position is to the effect that there was no will made in 2000.
Jodie and Keith deny that Mrs Melvin died intestate. They made a counterclaim in which they seek orders that the 1980 will is Mrs Melvin's last will and testament and that carriage of the probate of the 1980 will be given to Ashley if he is willing to act as executor and if not, that Raelene be granted letters of administration in respect of the 1980 will.
Raelene no longer presses her claim that Mrs Melvin died intestate and does not now assert that Mrs Melvin made a further will in 2000. Further, all parties now agree to the proceedings being resolved on the basis that there be a grant of probate in solemn form of the 1980 will with Raelene being appointed as administrator of Mrs Melvin's estate. The consent of the parties by itself is not sufficient to obtain a grant in solemn form, although it is still a relevant matter. In the alternative to a grant in solemn form, the parties seek an order that there be a grant of probate in common form, with Raelene being appointed the administrator.
Before turning to the evidence, I will first address the applicable principles in respect of the grant of probate in solemn form, that being the principal relief now sought.
Grant of probate in solemn form
The probate of a will may be granted in common form or in solemn form. There is a significant difference between the two. A grant of probate in common form is revocable. On the other hand, the circumstances in which a grant in solemn form may be revoked are limited. In Wheatley v Edgar,[1] E M Heenan J observed that such circumstances include where a later will is discovered, if the judgment has been obtained by fraud, where it is found that the testator is still alive and if a person opposing the grant was prevented, for reasons beyond his or her control, from taking part in the proceedings.
[1] Wheatley v Edgar [2003] WASC 118 [18].
This difference mandates that the proof required to obtain a grant in solemn form differs to that required for a grant in common form. In this respect, E M Heenan J stated in Wheatley:[2]
… 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, r18 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.
[2] Wheatley [26] ‑ [27].
Raelene's counsel in his helpful written submissions correctly articulated the following further principles in respect of there being a grant of probate in solemn form, which I adopt:[3]
[3] Plaintiff's written submissions dated 18 July 2023, pars 4, 5, 6 and 8.
In order for there to be a solemn form grant of probate, the court must be satisfied on the evidence adduced by the party propounding the will or any other party to the suit, of the formal validity of the will: Barry v Butlin [1838] Eng R 1056; Wheatley v Edgar, supra at [24].
The propounder of the will must establish, on such evidence as he or she decides to adduce, that the testator had capacity to make the will at the time and knew and approved of its contents: Barry v Butlin, supra.
If a rational will on its face is shown to have been duly executed and attested in the manner prescribed by law, in the absence of evidence to the contrary, the propounder of the will can take advantage of the following presumptions:
a.that the testator had capacity: Timbury v Coffee (1941) 66 CLR 277;
…
It is a relevant consideration that all the interested parties have agreed upon a resolution of how the estate will be administered: Tolson v Hender [2009] WASC 319, [4]; The Public Trustee v Gerritsen [2012] WASC 201, [14]; Devine v Richardson[4].
[4] Devine v Richardson [2019] WASC 272 [27] ‑ [29].
In addition to these matters, where a person of sound mind has duly executed a document declaring it to be their will, then in the absence of evidence to the contrary, an inference may be drawn that the person knew and approved of the contents of the document which they executed as a will.[5]
[5] In the Will of Steward, deceased [1964] VR 179, 184 - 185.
Further, Raelene's counsel pointed out that in Estate Kouvakis; Lucas v Konakas,[6] Lindsay J observed that:
… 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.
[6] Estate Kouvakis; Lucas v Konakas [251], [262] ‑ [263].
In relation to capacity, testamentary capacity requires that the testator have sound mind, memory and understanding.[7]
[7] Dal Pont G E, Law of Succession (3rd ed, 2020) [2.5].
A will itself is revocable. Relevantly to the issues before me, a will may be revoked by an express revocation clause in another document, being a later will or codicil, or a document executed in the manner in which a will is required or permitted to be executed.[8] It also may be revoked by implication where there are two inconsistent wills, the general rule being that the latter revokes the former to the extent of the inconsistency.[9] A will may also be revoked by the testator destroying it with the intention of revoking it.[10] Where a will is traced into the possession of a testator and cannot be found on their death, there is a presumption that they destroyed it with the intention of revoking it, however that presumption may be rebutted.[11]
[8] Wills Act 1970 (WA), s 15.
[9] See Law of Succession [5.6].
[10] Wills Act, s 15(c); see also Law of Succession [5.9].
[11] See Cahill v Rhodes [2002] NSWSC 561 [58].
In terms of the application of these principles to this case, particular matters of importance are the following. Whether the evidence is sufficient to prove due execution and testamentary capacity or at least gives rise to a presumption of capacity. Whether the evidence demonstrates that the 1980 will was revoked, or that Mrs Melvin made a subsequent will. That all relevant interests agree to the orders proposed by Raelene and were represented by counsel at the trial.
I turn now to the evidence adduced in support of there being a grant of probate in solemn form.
Evidence
The evidence at trial consisted of the following: Mrs Melvin's death certificate, Raelene's affidavit sworn 24 July 2023, Linley's affidavit filed 31 August 2023, Ms Madden's affidavit filed 21 July 2023[12] and the original of the 1980 will. There was no cross‑examination of any of the deponents of the affidavits.
[12] Ms Madden is Raelene's solicitor.
There was no evidence led at trial that Mrs Melvin in fact made a will in 2000, or otherwise at any time after the making of the 1980 will.
I take the following matters from the evidence, in addition to those matters that I have already set out at [1] and [2] above.
Until about 2014, Mrs Melvin was involved in a farming partnership with Ashley and Robin in Pingrup, Western Australia.
Shortly after Robin's death (5 April 2020), Linley spoke to Mrs Melvin and asked where her important documents were, including her will. At the time, Mrs Melvin was living in respite care. Mrs Melvin replied to the effect that 'it's in my papers in the box in my bedroom'. Linley understood this to refer to Mrs Melvin's wooden chest in her bedroom at a property in Jurien Bay, where Mrs Melvin had previously lived. Linley searched through the contents of that chest and found the original of the 1980 will. There was no other will there. Linley has never seen another will made by Mrs Melvin.
Raelene in her affidavit refers to Ashley claiming that Mrs Melvin made a further will in the year of 2000. Raelene says that no other will in addition to the 1980 will has been found and that despite intensive enquiries a copy of a will made in 2000 has not been found.
Ashley did not press at trial that Mrs Melvin made a will in 2000.
The 1980 will (being the will which Linley found) states it was made by Mrs Melvin on 24 September 1980.
The 1980 will appointed Mr Melvin as executor, and if he died before Mrs Melvin, appointed Robin and Ashley as executors. Mr Melvin, Robin and Ashley were the principal beneficiaries of the will. As I will come to explain, Jodie and Keith succeed to Robin's interests under the 1980 will as his children.
The attestation clause is in the following terms:
SIGNED AND ACKNOWLEDGED by the Testatrix as and for her last Will and Testament in the presence of us both being present at the same time who at her request in her presence and in the presence of each other have hereunto subscribed our names as witnesses:- (emphasis in original)
The signature of 'M J Melvin' appears immediately opposite the attestation clause. The named witnesses are Michael William Clarke and Barbara Jean Clarke. Their respective signatures are below the attestation clause and above their name, occupation and address. Ms Madden's affidavit demonstrates that she initiated contact with Mr Clarke regarding his signature on the will and that of Barbara Jean Clarke.
An affidavit of Mr Clarke was not available at the time of the trial, however has now been provided and with the consent of the parties, I receive it as further evidence. It will become Exhibit 6. Mr Clarke annexes to his affidavit a copy of the 1980 will. He says in his affidavit that he recognises the signatures on the will as being his signature and that of his late wife Barbara.
In terms of matters subsequent to the making of the will, on 23 July 2020, the Public Trustee was appointed as the plenary administrator for Mrs Melvin. The grounds for appointment included that Mrs Melvin was unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all of her estate.
Since their appointment, the Public Trustee as the next friend for Mrs Melvin commenced three proceedings in this court as follows. First, proceedings against Robin's estate and Ashley in respect of a farming partnership of which Mrs Melvin was a partner. Second, a claim under the Family Provision Act 1972 (WA) in respect of Robin's estate. Third, a claim against Robin's estate based on undue influence. Ashley has also brought proceedings for an account in respect of the farming partnership and an alleged sub‑partnership between him and Robin.
Raelene's counsel suggests that Mrs Melvin's causes of action in respect of the partnership and for undue influence survive and do not abate: s 4 of the Law Reform (Miscellaneous Provisions) Act 1941 (WA) and O 18 r 7(1) of the Rules of the Supreme Court 1971 (WA). That appears correct, however it is not necessary for me to resolve it. It also is not necessary that I resolve whether the Family Provision Act claim survives.
The relevance of the other proceedings to which I have just referred is they suggest a potential conflict of interest between the interests of Mrs Melvin's estate and Ashley, and also with Robin's children, Jodie and Keith. The other proceedings are therefore relevant in relation to whether Raelene should be appointed administrator of the 1980 will.
Raelene's affidavit also annexes email correspondence between solicitors acting for all of the parties to the proceedings setting out an agreed resolution of the matter. It is in these terms:
(1)Raelene be appointed as administrator with the 1980 will annexed; and
(2)the taxed costs of all parties be paid from the estate of Mrs Melvin.
That agreement was confirmed by counsel for the parties at trial.
Provisions made by the 1980 will
It is useful at this juncture to say a little more about the provisions made by the 1980 will.
Pursuant to cl 4(a) of the 1980 will, Mrs Melvin gave and devised all her estate and interest in farming lands to her trustees upon trust for her sons as tenants in common as to one undivided half share for Robin and the remaining one undivided half share for Ashley upon him attaining or having attained 21 years of age.
Further, pursuant to cl 5, Mrs Melvin gave, devised and bequeathed the remainder of her property in the following way:
1.if her husband survived her then upon trust for him absolutely;
2.if her husband died before her, then the sum of $2,000 per year on trust for the benefit of their daughter, Linley, until she reached the age of 18 years (Linley was over 18 years of age at the time of Mrs Melvin's death);
3.the remainder of her estate upon trust to Robin and Ashley as tenants in common as to a one undivided half share estate and interest to each of them, subject to the qualification of Ashley attaining or having attained the age of 21 years (Ashley was over 21 years of age at the time of Mrs Melvin's death).
Section 27(1) of the Wills Act 1970 (WA) provides as follows:
Unless the contrary intention appears by the will, where -
(a)there is a disposition in a will to a person who is a child or other issue of the testator, for an estate or interest not determinable at or before the death of that person; and
(b)that person dies in the lifetime of the testator leaving a child or children who survive the testator,
the disposition does not lapse but takes effect as a substitutional disposition to such of the children of that person as survive the testator and if more than one in equal shares.
There is no contrary intention in the 1980 will. That being so, the gifts to Robin under the 1980 will take effect as a substitutional disposition to each of Jodie and Keith in equal shares.
Further to these matters, the 1980 will provided at cl 3 that if Mr Melvin died first, then Mrs Melvin appointed Raelene as the guardian of Linley during the remainder of her childhood.
Proof of the will
I am satisfied on the evidence that the 1980 will was duly executed by Mrs Melvin. In that respect, there is the original will before me (Exhibit 5), which was found by Linley in a place where Mrs Melvin kept important documents. Furthermore, Mr Clarke's evidence satisfies me that Mrs Melvin executed the will and that she did so in the presence of Mr Clarke and of his late wife Barbara. Their signatures below the attestation clause satisfy me that Mrs Melvin signed in the presence of both of them and that they signed in the presence of each other. These matters satisfy the requirements as to execution set out in s 8 of the Wills Act.
As to Mrs Melvin's capacity to make the will, it was made when Mrs Melvin was 46 years of age and when Mr Melvin was still alive. Until about 2014, Mrs Melvin was involved in a farming partnership with Ashley and Robin. The Public Trustee was appointed as her plenary administrator in 2020. There is no suggestion that the matters that led to that appointment were in any way evident at the time that the 1980 will was made. The will itself is in considered terms and is a rational document. It carefully allocates her estate, taking account of the ages of her children and also providing for Linley's care if Mr Melvin died before Mrs Melvin. It was signed in accordance with the relevant requirements. Also, it was prepared by a firm of solicitors practising in Perth, as is demonstrated by the cover page to it. Having regard to the totality of these matters, I am satisfied that at the time the 1980 will was made, Mrs Melvin had capacity to make it and that she knew and approved of its contents and effect.
There is no evidence before me that Mrs Melvin revoked the 1980 will, or that she made a subsequent will. Ashley has agreed not to pursue his contention that Mrs Melvin made a further will in 2000 and there is no evidence before me that she did make such a will. Such a will has not been found. Furthermore, even if such a will had been made, it does not by itself effect a revocation of the 1980 will. The terms of any such later will would need to be considered to assess whether they effected an express or implied revocation.
I therefore am satisfied on the evidence that Mrs Melvin did not revoke the 1980 will.
For these reasons, I am satisfied that probate in solemn form of the 1980 will should be granted.
Proposed administrator
As is apparent from what I have set out above at pars [32] - [34], each of Ashley, Jodie and Keith will have at least a potential conflict between their own personal interests and the estate's interests if they receive a grant for representation in respect of Mrs Melvin's estate.
Section 36 of the Administration Act 1903 (WA) provides:
36. Administration with will annexed
Where a person dies leaving a will but without having appointed an executor, or leaving a will and having appointed an executor who is not willing and competent to take probate or is resident out of Western Australia, the Court may appoint an administrator of the estate of the deceased, or of any part thereof, and such administration may be limited as the Court thinks fit.
The critical phrase here is 'having appointed an executor who is not willing and competent'. The purpose of the provision is to facilitate the due administration of the relevant estate. That being so, the discretion arises where the named executor is unwilling, or is incompetent, or both. Mrs Melvin appointed three executors under the 1980 will. Firstly Mr Melvin, and then if he died before Mrs Melvin, Robin and Ashley. Mr Melvin and Robin have both passed away. Ashley does not seek the appointment himself and consents to Raelene being the administrator. In this respect, Ashley quite properly recognises the potential conflict of interest that might arise if he were appointed executor given the other proceedings that I have mentioned. That conflict of interest is not one that it could be said Mrs Melvin consented to when she made the 1980 will, because it arises out of proceedings commenced many decades after the 1980 will was made.
Given that Ashley is not willing to take probate of the 1980 will, the preconditions to the exercise of the discretion afforded by s 36 of the Administration Act are therefore met.
In relation to the exercise of the discretion itself, Raelene's counsel accepts that Jodie and Keith have the next highest interest and ordinarily the grant would be made to one or both of them. However Jodie and Keith do not seek the appointment themselves, also quite properly recognising the potential conflict of interest that might arise given the other proceedings.
All parties support Raelene's appointment as administrator and Raelene consents to that appointment. Further, on the material before me, Raelene is clearly an appropriate person to be appointed administrator.
In all of these circumstances, I am satisfied that Raelene should be appointed the administrator of Mrs Melvin's estate.
Conclusion
I am satisfied that the parties should be granted the relief that they seek. The parties all consent to orders in the following terms:
1.That the will of the late Marlene Janice Melvin (Deceased) made on 24 September 1980 (1980 Will) be pronounced as having force and effect in solemn form of law as the Deceased's last will and testament.
2.A Probate Registrar of this Court settle a grant in solemn form of letters of administration with the 1980 Will annexed in favour of the plaintiff.
3.The parties' costs of this Action, including the counterclaim, be paid out of the estate of the Deceased to be taxed if not agreed.
Those orders are appropriate in light of these reasons. I make orders in those terms.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CA
Associate
8 AUGUST 2023
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