In the Estate of Aj Deceased [1996] ACTSC 38 (3 May 1996)

SUPREME COURT OF THE ACT

IN THE ESTATE of AJ deceased
No. P98 of 1996
Number of pages - 6
Wills

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Wills - document not executed with required formalities of Wills Act 1968 - notwithstanding such failure, whether document constitutes will under s.11A - insufficient to establish only that document embodies testamentary intentions of deceased - court to be satisfied that deceased intended the document to constitute will - no presumption that document not formally executed and attested is intended to be will - evidence of proper search for will, including advertisement required.

Wills Act 1968, s.11A

In the Estate of Joyce Rosalyn Letcher (unreported, 16 September 1993, Supreme Court of the ACT, Gallop J)
Application of Brown; Estate of Springfield (1991) 23 NSWLR 535

Estate of Masters (Deceased) (1994) 33 NSWLR 446
Will of Eagles (1990) 2 Qd.R 501
Powell J, Recent Developments in New South Wales in the Law Relating to

Wills (1993) 67 ALJ 25

HEARING

CANBERRA, 19 April 1996
3:5:1996

Counsel for the Applicant : Mr. C. Todd

Solicitors for the Applicant : Higgins Solictors

ORDER

THE COURT DECLARES THAT:
1. The letter Exhibit A constitutes the will of AJ deceased.

THE COURT ORDERS THAT:
1. The name of the deceased be removed from the title of the
proceedings.
2. The costs of the application come out of the estate.

DECISION

MILES CJ This is an application under s.11A of the Wills Act 1968, which provides as follows:

"Validity of will etc. not executed with required formalities

11A. (1) A document, or a part of a document, purporting to
embody testamentary intentions of a deceased person shall,
notwithstanding that it has not been executed in accordance with
the formal requirements of this Act, constitute a will of the
deceased person, an amendment of the will of the deceased person
or a revocation of the will of the deceased person if the
Supreme Court is satisfied that the deceased person intended the
document or part of the document to constitute his or her will,
an amendment of his or her will or the revocation of his or her
will respectively.

(2) In forming a view of whether a deceased person intended a
document or a part of a document to constitute his or her will,
an amendment of his or her will or a revocation of his or her
will, the Supreme Court may, in addition to having regard to the
document, have regard to -

(a) any evidence relating to the manner of execution of the
document; or

(b) any evidence of the testamentary intentions of the
deceased person, including evidence (whether admissible before
the commencement of this section or not) of statements made by
the deceased person."

2. As far as I can ascertain s.11A has been the subject of only one previous decision of the Court. In In the Estate of Joyce Rosalyn Letcher (unreported, 16 September 1993) Gallop J said that there were three fundamental questions of fact to be decided, namely:

"(1) Is there a document?

(2) Does the document purport to embody testamentary intentions
of a deceased person? and

(3) Is the evidence which has been tendered such as to satisfy
this Court that at the time of the document being brought into
existence the deceased person intended the document to constitute
his or her Will?"

3. Furthermore, as Powell J pointed out in Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, in relation to a similar provision in New South Wales, what the third question requires is not simply proof of a document purporting to embody the testamentary intention of the deceased person, but the satisfaction on the part of the Court that the deceased intended that document to constitute his or her will. A document which does no more than express the testamentary intention of the deceased, such as instructions for the drawing up of a will, do not suffice.

4. Where a document expressing testamentary intention has been formally executed by the testator and attested to by the witnesses as a will, all in the presence of each other, then there is a presumption that it is what was conventionally called the last will and testament of the testator. That presumption does not arise in the case of a document not formally executed and attested. On the contrary, such a document may of itself or in the circumstances suggest that the person's testamentary wishes as set out in the document represent what the testator wants to have incorporated into a will to be executed in the proper way once a will is drawn up in accordance with those wishes. Hence, there is a need in the case of an informal or unexecuted document sought to be propounded as a will under s.11A for evidence of search to ensure that there is not a will which embodies the testator's intentions as recorded in the informal or unexecuted document.

5. The present case is one of a female deceased who died on 24 August 1995. At the time of her death she was 54 years old. She had been married and was divorced on 4 January 1994. She owned a house in Canberra subject to a mortgage. She lived in that house with her two teenage daughters and a domestic partner. She had given birth to another daughter, now an adult. That daughter had been adopted by others many years before, but contact had been re-established between the deceased and that daughter. The deceased was or had been a Public Servant and had some undefined rights to superannuation.

6. The affidavit of the deceased's former husband states that about six weeks before her death the deceased discussed with him the need to make a will and the possible distribution of her estate. The affidavit states that "it was the deceased's intention to have a Will drawn up with the assistance of the Public Trustee and, with the Public Trustee being the executor", and that the deceased made it clear to him that the child who had been adopted would be provided for in her will. The former husband also identified an undated letter, apparently addressed to him, in the handwriting of the deceased.

7. I was told that the deceased died by taking her own life. In an effort to avoid distress to her children in particular in the case of general publication of these reasons or publicity surrounding the case, I order that the name of the deceased be removed from the title of the proceedings and I omit reference to the names of the persons concerned. Otherwise the letter to the former husband (Exhibit A) was in the following terms:

"Dear (former husband),
I have not managed to prepare a will. I hope this letter will
help in all the tricky negotiations.
My super should go to (teenage daughters) according to their
formular (sic.) (i.e. the super funds formula).
The mortgage on the house is with the Cw bank - (partner) needs
to live there till around December. (Partner) has some small
equity in the house - she knows how much about $5000. You can
talk with her about that. The girls should have 2/5 each i.e.
(Teenage daughters) of the balance of money and (older daughter)
is to have 1/5. (Older daughter) can have hers whenever it
becomes available and you should organize (teenage daughters') in
the most sensible way for them.
The legal action against X should procede (sic). Y is the person.
Perhaps Z could advise you.
The car is unencumbered of debt. I have insurance on my credit
union loan which should cover it and DJ's and Mastercard are
smallish amounts.
My tax is not done. All the papers are in a mess on my desk. It
will need to be lodged and please check thoroughly to get as much
back as you can.
I don't owe anyone any money. There are a couple of bills due in
Sept.
I don't know how to cover the cost of the funeral. D could/would
probably lend you the money and you could repay her when money is
freed up. I have left you in the envelope my Cw bank card. The
PIN is (number provided). You can get immediate money from there.
This will be all horribly messy for you. I am very sorry about
this. I hope it is OK.
The hard part is the girls.
Take very good care of them - this will be a totally traumatising
thing which will damage them. Make sure you take them to see A,
he will help. You must make sure the girls know that I have died
because I could no longer cope at any level. No one is to blame
for this except me. I have enclosed a letter for them. Please
help them with this. They will need enormous amounts of love and
understanding. B, C and (partner) will support you.
Take care of yourself and take care of the girls."

8. The letter seems to bear some of the indications that it was intended, like a will, to be a testamentary disposition of the whole of the deceased's property. But it is not necessarily inconsistent in its terms with an intention on the part of the deceased that before her death she would execute a will to be drawn up in accordance with the wishes expressed in the letter. If she had executed a will, it would of course have revoked either in part or in whole any former will or testamentary disposition on her part. That is why, in my opinion, it is important in cases of this nature that there be evidence of a proper search, including advertisement, for any will that the deceased might have executed. The evidence is that, despite such a search in the records of the Public Trustee's office, and an advertisement, no will has been located.

9. The reference in s.11A to evidence of the testamentary intention of the deceased, including evidence of statements of the deceased, does not mean that the usual rules of evidence relating to proof of intention on the part of the person are to be ignored. It is unhelpful to the Court to be told, as in the affidavit of the deceased's husband, about his understanding of the deceased's intention or his understanding of her awareness. Similarly, the affidavit of the deceased's domestic partner as to her understanding of the deceased's intention is of little assistance. That the proceedings are undefended, and indeed brought ex parte without notice to any person, avoids objection being taken to inadmissible evidence, but that does not improve the probative weight of evidence like that to which I have just referred.

10. There is no evidence in the case as to how the letter Exhibit A came to be found or came into the possession of any person. There is no evidence to support any conclusion that it was given by the deceased to her former husband or to anybody else to be entrusted with its safe-keeping or in order to seek to carry out its instructions.

11. The law reform background and legislative history in Australia of such provisions as s.11A was outlined and discussed by Kirby P. and the other members of the New South Wales Court of Appeal in Estate of Masters (Deceased) (1994) 33 NSWLR 446. It is unnecessary to repeat the discussion. It is sufficient to record that s.11A does not confer the status of a will upon any document which happens to express the testamentary capacity of the deceased person, whether or not there may be a competing document in existence.

12. It may also be observed that in Re Application of Brown; Estate of Springfield, Powell J rejected the view which appears originally to have commended itself to some of the Judges of the Supreme Court of South Australia that the provisions like those of s.11A are directed solely to wills which, although executed, are not fully executed in accordance with the formalities required otherwise. In Queensland where the statutory provisions again appear very similar to those in the ACT, the Supreme Court has held that there is a requirement of "substantial compliance" with the formalities of making a will: see for instance Will of Eagles (1990) 2 Qd.R 501.

13. In my view, it is appropriate to follow the approach of Gallop J in this Court and that followed in New South Wales. It may be of interest only to note that, according to an article written by Powell J in relation to these matters (Recent Developments in New South Wales in the Law Relating to Wills (1993) 67 ALJ 25), the overwhelming majority of applications in New South Wales relate to documents which do substantially comply with the formalities of a will. Of 98 applications in 1991, only seven were concerned, like the present case, with documents bearing the appearance of instructions for a will. The others were defective in relation to matters of attestation, signature and alterations.

14. Applying these principles to the present case I conclude that the contents of the letter Exhibit A and the limited probative evidence available justifies a conclusion that on the balance of probabilities the letter was intended to have the effect of a will. The author of the letter contemplated death within a relatively short time. The letter instructs the father of the children to take care of them generally and to make financial provisions for them in the terms of the letter. Although evidence as to the totality of the deceased's assets would have been of assistance in order to decide whether or not the author sought to dispose of the whole of her assets, the expression of the author's wish, if not instruction, as to the disposition of the property, was made as a matter of detail, both as to the items of property themselves and as to the proportions in which some of the property was to be distributed. The apology to the former husband about the messy state of affairs is some indication that the deceased was no longer able to organize her affairs and was leaving that to be done after her death and in accordance with her wishes by someone acting in the role of executor. The document has a finality about it which makes it more likely that it was intended to be a will to be given effect on the death of the author than that it was merely intended to express her wishes to be subsequently incorporated into a formal will.

15. In the circumstances a declaration should be made - not in the terms of the notice of motion which seek a declaration "whether the document .... constitutes the will" but whether in terms of s.11A that it in fact does so. I make a declaration that the letter Exhibit A constitutes the will of AJ deceased. Costs of the application to come out of the estate.