The Estate of Bradley Scott Lyons

HIS HONOUR: On 24 February 2021, I heard, by way of live hearing, an uncontested Probate proceeding in which the Plaintiff, Debbie Sharon Pack, seeks Probate of an unsigned, and unwitnessed, draft Will (Ex A) of Bradley Scott Lyons (the deceased), who was her husband. I shall refer to this document as “the draft Will” without any prejudgment and for convenience only.

As is usual practice in current conditions, this judgment of the Court will be delivered to the legal representatives of the Plaintiff electronically and will then be published on the Court’s Caselaw website.

In summary, and so far as is relevant, the draft Will, which had emblazoned, on every page, the word “Draft”, contained a Clause revoking all previous Wills and other testamentary acts that the deceased had made; a Clause appointing the Plaintiff as executor and trustee of the estate; a Clause giving to her all of the deceased’s personal effects and household effects; a Clause requiring the executor to pay all of the debts (other than those which were secured by an asset of his estate); and then a Clause requiring her to “distribute the residue of my estate to The Bradley Scott Lyons Family Testamentary Trust” (the Trust).

The draft Will went on to provide that the Trustee of the Trust was to be the Plaintiff, or a company nominated by her; that the purpose of establishing the Trust was to provide an effective investment vehicle for the Plaintiff and the three children, Lily, Samantha and Zoe, and any future issue; that subject to any specific terms of the Trust, the Trustee “must administer the Trust for the benefit of the Beneficiaries in such manner as the Trustee in their absolute discretion sees fit”; and that the Trust Fund and the income derived by the Trust “should, in the manner and to the extent that the Trustee in their absolute discretion determines, be applied and used by the Trustee to assist the Beneficiaries in meeting their reasonable living, maintenance and education needs”.

The deceased also left a duly executed Will dated 27 May 2016 (Ex B) (the 2016 Will), in which he appointed the Plaintiff as executor and trustee of his estate, if she survived him by more than 30 days; gave all of his personal effects and household effects to her; and after the payment of debts, funeral and testamentary expenses, left the whole of the residue of his estate to her absolutely.

There is no dispute that if the principal relief sought by the Plaintiff is not granted, the 2016 Will is the last valid Will of the deceased. In those circumstances, it will be the subject of a grant of Probate if the Court is not satisfied of the Plaintiff’s principal claim for relief.

The Summons for Probate, which was filed on 13 November 2020, sought the following relief:

In relation to the principal claim for relief, the Plaintiff relied upon s 8 of the Succession Act 2006 (NSW) (the Act) which provides:

The section applies to wills, whenever made, if the testator dies on, or after, the commencement of the Act (1 March 2008): see Cl 3(3) of Sch 1 of the Act.

The proceedings were referred to the Court by the Senior Deputy Registrar in Probate following a number of requisitions issued by the Court.

No other party was required to be joined as the Plaintiff is the only person who could be adversely affected by the principal claim for relief sought by her. It is clear that whilst under the 2016 Will, the Plaintiff was the sole beneficiary of the whole of the deceased’s estate, under the draft Will, she is one of a number of discretionary objects entitled to be considered as a recipient of capital, and income, of the Trust. The other named principal discretionary objects are the three minor children of the deceased and the Plaintiff.

Bearing in mind her claim for relief in the Summons for Probate, the Plaintiff is prepared, willingly, to give up her absolute interest to the deceased’s estate and submit herself to the onerous, legal, and fiduciary duties of a trustee, notwithstanding the discretionary nature of the trust. She has also incurred legal costs making this application.

Without going into detail, the value of the deceased’s estate is reasonably substantial. The net value of the estate is estimated to be about $3,350,000. It follows that, whilst there are tax minimisation advantages of a testamentary trust, the only adversely affected person if the orders sought were made is the Plaintiff, who would lose her absolute entitlement to the whole of the deceased’s estate under the 2016 Will.

The proceedings were listed for a short live hearing rather than being determined on the papers at the request of the legal representative of the Plaintiff.

The deceased died on 22 March 2020. He had been diagnosed with metastatic hepatocellular cancer (liver cancer) about 3 years prior to his death.

Mr Paul Brady, a financial planner from whom the deceased and the Plaintiff received advice, had discussions with the deceased in 2018. However, his last conversation with the deceased appears to have been on 2 October 2019, being several months before any draft Will was prepared, and sent to the deceased or the Plaintiff.

On 17 December 2018, Mr Gerard Basha, an extremely experienced Australian legal practitioner, particularly in wills and estate matters, received an email from Mr Brady, indicating that the deceased and the Plaintiff wished to update his, and her, Will, respectively, to incorporate a testamentary trust.

Mr Basha made an appointment to confer with the deceased and the Plaintiff on 4 January 2019, but they failed to attend the appointment. Upon contacting the deceased, subsequently, Mr Basha was told that the deceased had received “not good medical news” about his health and had been too upset to attend the meeting.

Mr Basha made subsequent appointments to meet the deceased and the Plaintiff on 28 March 2019, and on 27 May 2019, but they did not attend either of these appointments. He finally met with the deceased and the Plaintiff on 4 February 2020, over 12 months after the initial appointment was made.

At the meeting on 4 February 2020, Mr Basha discussed the advantages of testamentary trusts. The deceased and the Plaintiff confirmed that he, and she, respectively, wanted a Will prepared that incorporated a testamentary trust. The Plaintiff gave evidence that a meeting occurred on 20 February 2020, but Mr Basha did not refer to any meeting on that date in his affidavit. At the hearing, he acknowledged that he had conferred with the deceased and Plaintiff on 4 February 2020: Tcpt, 24 February 2021, p 12(15-21).

Sometime after 4 February 2020, in a telephone discussion with the deceased about his firm’s Service Agreement, Mr Basha agreed to the deceased’s request to cap the costs for the legal work that was to be done. In the same telephone discussion with Mr Basha, the deceased confirmed his instructions for the Will to be drafted to include a testamentary trust.

A copy of only one page of the firm’s Service Engagement with the deceased and the Plaintiff is an annexure to Mr Basha’s affidavit, which showed that it had been amended as to the amount of the legal costs for professional work. The amendments bear the initials of each of the deceased and the Plaintiff.

Presumably, the whole document was then returned to Mr Basha. (No explanation for not providing a complete copy of the Service Agreement was given.) Whilst the date of the amended Service Engagement document, and the date of its return, are not the subject of evidence, it must have been returned after 4 February 2020, and before 24 February 2020, because on the later date, Mr Basha sent an email and a number of other documents to the deceased. A copy of that email (Ex A1) was in the following terms:

Mr Basha gave evidence that the intention was to meet, later in the week, “to have the documents signed”. He also wrote that the deceased “was too sick to attend our office to sign the Will which he had approved” but how he knew this was not disclosed in the evidence.

I have taken what follows from the Plaintiff’s affidavit:

The Plaintiff’s affidavit makes clear that additional steps would need to be taken, including, at least, giving instructions to Mr Basha to draft a Will in the terms of the draft Will, and then having the deceased sign that Will. There is no evidence of any such instructions having been given to Mr Basha at any time after 24 February 2020.

The Plaintiff gave oral evidence at the hearing. In light of her evidence, I asked whether the deceased had known of the significance of signing the draft Will. She responded that he knew that he had to get the Will signed, so she said, “it would be a legal document”. This suggests that the deceased had a familiarity with the formal requirements for execution of a will.

No evidence going to the deceased’s medical condition, after 24 February 2020, was relied upon. It is more probable than not that he was extremely unwell and in extreme pain. However, there was no evidence that he was physically unable to sign a document, such as one in the form of the draft Will or the draft Will itself.

I accept that the Plaintiff was faced with extremely difficult circumstances, including the fact that she was caring for her sick husband; that she was caring for their three young children, aged 13, 9 and 8, respectively; and that she also had the deceased’s elderly parents from Perth, staying with her and the family.

It also cannot be forgotten that in about February 2020, Australia was facing the start of the COVID-19 pandemic, it being on 18 February 2020 that the Prime Minister published the Australian Health Sector Emergency Response Plan for COVID-19.

The principal submission made by Mr Basha was that “as soon as the plaintiff approved the February 2020 Will, the draft imprint on the Will became irrelevant and [the deceased] had the required testamentary intention that the February 2020 Will form his Will”. He also submitted, as acknowledged by the Plaintiff, that “it was [the Plaintiff’s] mistaken belief, notwithstanding [the deceased’s] state of health, that she had time to arrange for [him] to sign his Will”.

He stated that the unique facts and circumstances of this matter included that the deceased was suffering from a terminal illness; that he had consulted a financial planner and a lawyer to get his affairs in order; that he had confirmed to Mr Brady, to Mr Basha and to the Plaintiff that he wanted his Will to include a testamentary trust, because of the advantages it gave his family; and that he was not going to change his mind. (Bearing in mind the length of time that passed between the deceased and the Plaintiff seeing Mr Brady and the time he saw Mr Basha, I have some difficulty accepting this submission in its entirety.)

Mr Basha added:

Finally, he submitted that this combination of facts would permit the Court to distinguish this case from others and that “the Court should, consistent with the legislative policy and in the unique circumstances of this matter, be satisfied that [the deceased] intended the February 2020 Will to form his Will”.

I have read the affidavit evidence, the transcript of oral evidence, and Mr Basha’s submissions, very carefully.

One specific additional matter to which I should refer, is the submission made by Mr Basha that I was mistaking the principles of law by raising with him, when the matter was first before me, that there was a need to satisfy what he described as the “without more” test.

Respectfully, he seems to have misunderstood to what his attention was directed. I dealt with this issue in Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371, at [94] – [98]:

I repeated my views in The Estate of Laura Angius [2013] NSWSC 1895, at [259] - [264]. Lindsay J referred to what I had written, with approval, in Re Estate Miruzzi, deceased [2018] NSWSC 1899 at [24].

I am extremely sympathetic to the position of the Plaintiff. It would be extremely easy to be tempted to apply the section, with improper liberality, bearing in mind that s 8 is a general dispensing power which allows the Court to admit a document to probate notwithstanding that it has not been executed in accordance with the requirements of the Act. The section of the Act is also remedial in nature, meaning that it provides a means by which the Court can give effect to the will-maker’s true testamentary intentions, even though the will has not been executed in accordance with the Act.

In dealing with the Probate and Administration Act 1898 (NSW), s18A, the predecessor of s 8 of the Act, in In the Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446, Mahoney JA, at 462, wrote:

Even earlier, in dealing with similar legislation in Western Australia, Nicholson J, in In the Will of Lobarto Shields v Caratozzolo (1991) 6 WAR 1, at 8, observed:

Slattery J, in Re Estate of O’Dell [2010] NSWSC 678 at [33], wrote that the “Succession Act s 8 should not be applied with too stringent a requirement of proof that a propounded document otherwise clearly embodying the testamentary intentions of the deceased does constitute his will”, citing Kirby P, in In the Estate of Masters (Deceased); Hill v Plummer at 452. The section is curative of any technical non-compliance with the part of the Act dealing with execution.

However, these general statements should not be taken to mean that the statutory formalities, enshrined in the Act, are to be unduly relegated in importance: Belcastro v Belcastro [2004] WASC 111 at [6]; Re Estate of Brock (2007) 1 ASTLR 127; [2007] VSC 415 at [20]; Re Sanders [2016] VSC 694 at [14].

Whilst the Plaintiff takes full responsibility for the draft Will not having been signed by the deceased, it is necessary for the Court to determine the application in accordance with s 8 of the Act. The sympathy that I have for the Plaintiff cannot justify the court attempting to fit the existing facts into strict legal requirements if objectively those requirements are not made out.

As was recently written in Re Estate of Sophia Alexandra Hicks (Dec); ex parte Hicks [2020] WASC 170, at [17]:

In In the Estate of Masters (Deceased); Hill v Plummer, Priestley JA, at 466, wrote that the particular questions for determination in a case such as this, are “essentially questions of fact”.

The burden of proof of all issues relating to s 8 is on the Plaintiff and is to be satisfied on the balance of probabilities. In deciding whether it is so satisfied, without limiting the matters that may be taken into account, the Court is required to take into account that these are Probate proceedings (the nature of the action); that the size of the estate is substantial (the nature of the subject matter of the proceeding); and the terms of the document sought to be propounded (the gravity of the matters alleged): s 140 Evidence Act 1995 (NSW).

The gateway into s 8 is by means of “a document”. Section 3 of the Act provides that the definition of “document” for the purposes of s 8 is the meaning given to the term by the Interpretation Act 1987 (NSW), s 21, which relevantly provides:

There can be no dispute, in this case, that there is a document (the draft Will prepared by Mr Basha and sent to the deceased) and that it was not executed, or witnessed, in conformity with the formal requirements of s 6(1) of the Act. Execution "is the validation of a document by going through the formalities required by law for that purpose": In the Estate of Williams, deceased (1984) 36 SASR 423, at 425. The draft Will was not signed by the deceased.

It also cannot be in dispute that the document purports to state the testamentary intentions of the deceased. The weight of the evidence makes clear that, by 4 February 2020, the deceased had given instructions for a will to be drafted that contained a testamentary trust and that the contents of the draft Will, at least to the extent that it did so, expressed what were his then testamentary intentions.

In regard to this aspect, reference should be made to Re Broad, Smith v Draeger [1901] 2 Ch 86, in which Kekewich J, in dealing with a marriage settlement which provided that property should be disposed of as the wife should direct, or appoint, by deed, will or codicil, or any writing in the nature of or "purporting to be a will" or codicil, wrote, at 91-92:

In Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446, at 452; [1994] FCA 1059, Hill J in dealing with the Corporations Law, wrote:

In In the Estate of Masters (deceased); Hill v Plummer, Priestley JA pointed out, at 469, that:

It is not necessary that the document said to be a will should assume any particular form, or that it be couched in language technically appropriate to its testamentary character. It is sufficient if it is intended to dispose of property, or of rights of the deceased, in a disposition that is to take effect upon death, but until then is not to take effect but is to be revocable. Although usual, it is not legally essential to find a clear statement identifying the document as a will: Romano v Romano [2003] NSWSC 436 at [6] ‑ [8] (Bryson J); Newman v Brinkgreve; Estate of Verzijden at [81].

However, s 8 is in two parts, one characterising the document and the other, the intentions of the deceased. It is necessary to establish each in order to cause the section itself to produce the result, relevantly, that the document forms the deceased person’s will.

In this case, it is for the Plaintiff to establish that the deceased intended the document to form his Will. In other words, for the draft Will to be admitted to probate, the Plaintiff must establish, on the balance of probabilities, that the deceased intended the draft Will to govern the disposition of his property after his death and to form his Will. Experience dictates that this is usually the most difficult question - and one to be determined with great care: Borthwick v Mitchell [2017] NSWSC 1145 at [77] (Ward CJ in Eq).

Mahoney JA, in In the Estate of Masters (deceased); Hill v Plummer at 455, put the matter this way:

In Oreski v Ikac [2008] WASCA 220, Newnes AJA, with whom Martin CJ and McLure JA agreed, wrote at [54]:

In Newman v Brinkgreve at [95], I wrote that the focus of s 8(2)(a) is on “the actual testamentary intention of the deceased so far as it relates to the particular document in question”.

It is sometimes difficult to assess the intentions of a person who has left no specific directions, or indications, relating to the informal Will. All that the Court can do, in those circumstances, is to look at such facts as are available, in order to determine what was more likely to have been intended by the deceased in respect of the document concerned: In the Estate of Stewart (Supreme Court (NSW), Cohen J, 12 April 1996, unrep).

In determining whether the Court is satisfied that the deceased person intended the document to form his Will, the Court may, in addition to considering the form and content of the document or part of it, have regard to, amongst any other matter, (a) any evidence relating to the manner in which the document, or part of the document, was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

A signature on the testamentary document would, in most cases, carry the implication that the person intended the signature to give testamentary effect to the document: Wood v Smith [1993] Ch. 90 (C.A.) at [111]. The object of a signature on a testamentary document was considered in Marley v Rawlings [2013] 2 WLR 205; [2012] EWCA Civ 61. After referring to Wood v Smith, Black LJ, at [51], wrote:

The document, itself, should also be considered in context: Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (Supreme Court (NSW), Powell J, 19 June 1992, unrep). The relevant intention may be inferred from the physical form of the document itself: The Estate of Kevin John Hines v Hines [1999] WASC 111; In the Estate of Margaret, Deceased [2012] NSWSC 1490 at [31]. The document must be read as a whole.

Other relevant facts may be the degree of closeness in time of death to the preparation of the document; evidence of the deceased’s state of mind leading up to the preparation of the document; the availability of persons to act as attesting witnesses (Re Nicholls [1996] 1 Qd R 179 at 181-182); and the relative publicity given to the document (Snape v Gibson; Re Estate of Paul Francis Snape [2006] NSWSC 829) should also be considered.

The Court may also take into account the existence of prior solicitor-drawn wills when examining the extent of the failure to comply with formalities. In appropriate circumstances, an inference may be drawn that the deceased was aware of the formalities required for a will. This may affect the question whether the Court should be satisfied that the deceased intended the informal document to be an amendment to his or her Will or an alteration to his or her Will: Re Estate of Brock at [34] (Hollingworth J).

In this case, as the Plaintiff said in her oral evidence, the deceased understood the significance of signing the Will, but as a result of her entreaties, did not do so. Thus, the real issue turns on whether the deceased intended the draft Will to form his Will notwithstanding his awareness of the need to execute it, having an opportunity to execute it but not doing so.

Because of the circumstances of this case, I have considered whether this is a case of the deceased having been prevented from signing the draft Will, or a document when prepared in the form of the draft Will, by something in the nature of an “act of God” (as the Court is in the habit of construing that phrase).

So far as the expression "act of God" is concerned, it was referred to by Latham CJ in Commissioner of Railways (WA) v Stewart (1936) 56 CLR 520 at 528-529, and by Dixon J at 536-537 (who quoted Atkin J in Baldwin's Limited v Halifax Corp (1916) 85 LJKB 1769).

Latham CJ wrote:

My consideration of this concept was ignited by what Powell J wrote in The Estate of Michael Francis McNamara (Supreme Court (NSW), Powell J, 10 April 1992, unrep at 4):

More recently, Hollingworth J wrote in Re Estate of Brock, a case that dealt with s 9 of the Wills Act 1997 (Vic), which section is in materially the same terms as s 8 of the Act, at [39] - [40]:

In Fast v Rockman [2013] VSC 18 at [112]-[113], Habersberger J, discussed a deceased’s awareness of the formalities required for a will and wrote:

White J in Bell v Crewes (2011) 5 ASTLR 298; [2011] NSWSC 1159 referred to the principle, and after referring to the passage in the case quoted above, continued, at [36] – [47]:

I respectfully agree with what White J has written.

As I have written, the sole question for determination is whether the Court is satisfied that the deceased intended the draft Will to form his Will. The part of the section, being “the document, or part of the document, forms the deceased person's will - if the Court is satisfied that the person intended it to form his or her will”, must be carefully read and applied with the rigour the words demand.

This raises a question of fact to be decided on the facts that are found and in its own context.

Having considered the facts very carefully, I am not satisfied that the deceased intended the draft Will to form his Will. There is simply insufficient evidence to satisfy me that he intended the draft Will, before it was signed, to operate, with immediate effect, and notwithstanding that it had not been signed, to form his Will.

Importantly:

Because I have concluded that I am unable to be satisfied that the deceased intended the draft Will to have a present operation, I refuse the application for probate of the draft Will pursuant to s 8 of the Act. With some regret, the Court cannot grant the relief that is sought by the Plaintiff in Paragraph 1 of the Summons for Probate. For this reason, I dismiss the relief sought by the Plaintiff in Paragraph 1 of the Summons.

It would be mere speculation to consider whether the deceased believed that he had no Will, or whether he believed that the 2016 Will remained operative. However, in view of my conclusion, the revocation Clause in the draft Will is of no effect.

The Plaintiff's Summons includes an alternative claim for Probate of the 2016 Will. The question then is whether the 2016 Will should be admitted to probate. In circumstances, where there does not appear to be any dispute that the 2016 Will is the last Will of the deceased, I think it is appropriate to order that subject to compliance with the Probate rules of Court, probate in solemn form of the Will dated 27 May 2016 of the deceased be granted to the Plaintiff and to remit the matter to the Senior Deputy Registrar in Probate to deal with the matter as an application for an uncontested grant of Probate of the 2016 Will.

In all the circumstances, the Plaintiff’s costs, calculated on the indemnity basis, should be paid, or retained, as the case may be, out of the estate of the deceased.

The Court: