Crisp v. Australian Rotary Health Research Fund - (23 Jan 2020)

For a document to constitute a Will, it is necessary that there be cogent evidence that the document embodied the deceased's testamentary intentions

Property

The plaintiff, Daniel John Crisp, asks the Court to declare that, the document dated 21 May 2009 signed by the deceased constitutes the last will of the late William Ward Hill (Will). The document was signed by the deceased but was witnessed by only one witness. As such, while the document complied with the formal requirements of Section 8(a) and Section 8(b) of the Wills Act 1970, it did not comply with the formal requirements of Section 8(c) and Section 8(d) of the Wills Act. The effect of Section 8 of the Act is to render the Will invalid.

The Plaintiff relies on the Section 32 of Wills Act. This Section provides that, a document may constitute a Will, even though it was not executed as required by the Act, if the Court is satisfied that it purports to embody a deceased person's testamentary intentions and that the person intended the document to constitute his or her Will. Question raised in present case is whether informal will embodied deceased’s testamentary intentions.

For a document to constitute a Will, it is necessary that there be cogent evidence that the document embodied the deceased's testamentary intentions and that the draft was adopted and authenticated by the deceased. This is true for documents invalid by reason of there being only one attesting witness to the document. In forming its view, in addition to the document said to constitute the Will, the court may have regard to any evidence relating to the manner of execution or testamentary intentions of the deceased, including evidence of statements made by the person.

It is not, of itself, sufficient that the document represents the deceased's testamentary intentions. It is necessary that the document be intended to be the legally operative act which disposes of the deceased's property on his or her death.

Probate will not be granted in respect of a document which contains only a preliminary, tentative or incomplete expression of the deceased's testamentary intention or where there is evidence that the document was prepared for further consideration and possible revision. The plaintiff bears the onus of establishing that the document embodies the deceased's testamentary intentions. The court must be satisfied on the balance of probabilities that the deceased intended the document to constitute the deceased's Will.

It is not in dispute in present matter that, there is a document, being the document dated 21 May 2009. The disposition that was made by the Will, namely that the entirety of his estate (after payment of expenses) be paid to the Australian Rotary Health Fund, is consistent with oral statements made by the deceased prior to his death to both the plaintiff and the solicitor who prepared the Will. At the time the Will was made, the deceased had never married, was estranged from his family, and had not visited or spoken to his family for many years. On the balance of probabilities, the disposition embodied the deceased's testamentary intentions.

The form of the document is headed 'Last Will and Testament of William Ward Hill' and was prepared by a solicitor following a meeting between the deceased and Mr Park. Following this meeting, the deceased attended the offices of his accountants to sign the Will in the presence of Mr Lake. The intention of the deceased was that the Will have effect as his will.

Pursuant to the Section 32 of Wills Act, the document dated 21 May 2009 signed by William Ward Hill and described as the last Will and testament of William Ward Hill should be declared to constitute the last Will of the late William Ward Hill.

Tags : INTENTION LAST WILL VALIDITY