Original and Copied Pages of a Will admitted to Probate

Mary Elizabeth Patchett (the deceased) executed a Will (the Will) on 2 October 2014 in the presence of two witnesses, appointing her son Neil Patchett,(the applicant) as her executor and trustee. The applicant prepared the Will at the deceased’s home and left it for her to sign in front of her witnesses.

After the Will was signed and witnessed, the deceased bound it with a metal paperclip in the top right-hand corner and gave it to the applicant who placed it in a plastic sleeve and then filed it in his office. 

Application for a grant of probate

On 2 July 2021, the applicant advertised a notice of intention to apply for a grant of probate in the Queensland Law Reporter. A copy of that notice was served by email on the Public Trustee on 24 June 2021.

On 4 August 2021, an application for probate was filed on behalf of the applicant.  Following examination of the Will, the deputy registrar identified: 

a) impression and rust-coloured markings on the Will.

b) that pages 4 and 6 of the Will are copies and not original pages

The applicant had not removed the paperclip or made a copy of the document. The Will had remained filed in the plastic sleeve in the applicants office until he removed it in order to commence administration of the estate. 

Affidavit of Plight

On 25 August 2021, the applicant filed an Affidavit of Plight, Condition, and Finding submitting the rectangular impression with rounded edges is of the dimension of a paper clip and the rust-coloured marks on the first page of the Will align with that impression. Additionally, a search was made in all likely and unlikely places to locate the original pages 4 and 6 of the Will without success.

The applicant concluded, and the Court accepted it was likely the deceased had made a photocopy of the executed and witnessed Will and, mistakenly included the copies of pages 4 and 6 in the Will and the original of those pages with the photocopy.  

Originating Motion

On 13 October 2021, the applicant sought an order that the document comprising four original pages and two copied pages of the Will be admitted to probate. 

Five matters must be established to succeed in admitting a copy of a Will to probate:

(a)          that there was a Will.

(b)          that the Will revoked all previous Wills.

(c)          that the applicant overcomes the presumption that a Will,   which cannot be produced to the Court, was destroyed by the testator to revoke it;

   (d)          that there is evidence of the terms of the Will; and

   (e)          that the Will was duly executed.

The Decison

The Court accepted that the original pages 1,2,3, and 5 together with the copies of page 4 and 6 produced by the applicant is evidence that there was a duly executed Will with clearly expressed terms. Similarly the original pages are evidence that the deceased revoked all previous Wills. As four original pages of the Will were handed by the deceased to the applicant the Court believed that it is doubtful a presumption of destruction arises.

Additionally, the Court accepted the deceased provided the original and copied pages to the applicant and retention of them in the same form is sufficient to overcome any presumption that the deceased destroyed part of the Will to revoke it.

The Court ordered that a combination of the original pages 1, 2, 3, and 5 and the copies of pages 4 and 6 of the Will be admitted to probate until the original Will or more authenticated evidence be brought into and left in the Registry.

Unwitnessed Document Admitted to Probate

John Flanagan died on 18 February 2020. In a draw of John’s desk, a sealed envelope was found addressed in his handwriting with the word ‘WILL’ .  The envelope contained a signed handwritten document dated ’16 Feb 2019’ entitled ‘Last Will and Testament’ (‘the document’).

The document dated ‘16th Feburary [sic] 2020’ on the final page and was not witnessed. The document appointed Edwena Mitchell (the plaintiff) as sole executor of the deceased’s estate.   

Informal Will

Notwithstanding the form and title of the document, and that it was enclosed in a sealed addressed envelope, it does not comply with s 7(1) of the Wills Act 1997 (Vic) (‘the Act’). The plaintiff sought a grant of probate of the document under s 9 of the Act  

Admission to probate of an Informal Will

Section 9 of the Act provides that a Court may admit to probate a will that has not been executed in conformity with s 7 of the Act if:

(a)        there is a document; that

(b)       records the testamentary intentions of the deceased; and

(c)        the deceased must have intended the document to be his or her will. 

Additionally, the Court must be satisfied that the testator demonstrated an intention without reservation, by some word or act that, the document would be legally operative to dispose of their property upon their death.

However, if the deceased lacked testamentary capacity, did not know, and approve of the document, or was unduly influenced, such that his or her will was overborne, then the Court could not be satisfied that the deceased intended the document to be his or her will. 

The proceedings

The Court accepted that John is not known to have had a previous will. The document was in John’s handwriting, was not marked ‘draft’ and was sealed in an envelope addressed with the word ‘WILL’. No influence was exerted on the deceased in connection with the making of the document. 

Importantly the document is expressed in language intended to be testamentary and John did not suffer from any medical condition that affected his testamentary capacity.

John’s doctor submitted that at his last examination the deceased’s testamentary capacity was not affected and, would not have been impaired by – ischaemic heart disease- the medical condition which caused his death.

Additionally, following the plaintiff notification none of the beneficiaries who would take on an intestacy sought to be added as a defendant to the proceeding. Similarly, the beneficiaries if the document be effective provided their consent to the plaintiff’s application.

The Decision

The Court was satisfied that the deceased intended that the document be his will and ordered that it be admitted to probate. 

Intestacy – Western Australia to Increase Statutory Legacy

Intestacy occurs when the whole or part of a deceased’s estate is not disposed of by a will. Property in an intestate estate is usually distributed according to statute. Until recently ss 14,15 of the Administration Act 1903 (WA) provided that the deceased’s surviving spouse was entitled to a fixed net sum from the estate on intestacy.

In Western Australia, a spouse’s legacy could be as low as $50 000 when the intestate dies leaving issue (lineal descendants, including children, grandchildren, great-grandchildren and so on) and as high as $75 000 when the intestate dies leaving no issue. The Administration Amendment Bill 2021(WA) proposes to increase these amounts to $472 000 and $705 000.

The proposed increase aims to remove financial hardship for the surviving spouse and ensure that they can live in the manner to which they have become accustomed.

Parental Statutory Legacy

Additionally, the parental statutory legacy that applies where the deceased has living parents, siblings, or siblings’ issue but no surviving spouse increases from $6000 to $56 500. Last reviewed over forty years ago the Western Australian Parliament considered it appropriate that the deceased parents participate in the distribution of their child’s intestate estate.

The Attorney General believed that the bill was required to address the amounts of the statutory legacies payable on intestacy – last adjusted in 1982 and now grossly inadequate – and to provide a formula to calculate future increases when required.

Jack Kerouac

Jack Kerouac died in October 1969 with an estate valued at $91.00. At odds with his third wife, Stella Sampas, Jack’s will left everything to his mother, Gabrielle, leaving no mention of any of his three wives, or daughter Jan – who Jack had met twice before he died. Stella claimed a “widow’s share,” under Florida law granting her the right to one-third of Jack’s property.

The day before he died, in a letter Jack wrote to his nephew Paul Blake, Jr. stating:

“my entire estate, real, personal, and mixed all goes to you…You can do anything you want with my property if I kick the bucket because we’re of the same blood.”

Stella Sampas

Stella nursed Gabrielle until her death in October 1973. Gabrielle’s will left the entire estate to Stella who failed to notify Jan or Paul. When probating Gabrielle’s will, Stella stated that there were no other known heirs.

Stella died in 1990, leaving the Kerouac literary estate to her siblings; with her youngest brother John acting as executor.

Jan Kerouac

However in May 1994 Jan Kerouac filed a lawsuit submitting that Gabrielle was too unwell to sign her name as it appears on her will; submitting Gabrielles signature had been forged. Additionally, the witness to the signature claimed he had witnessed no such thing. Following Jan’s death from kidney disease in 1996 aged 44, Paul Blake Jr. continued the action.

The Sampas family

The Sampas family submission is that Stella became Gabrielle’s caretaker, and when Gabrielle died in 1973, a combination of her estate and Florida state law left Kerouac’s literary estate to Stella. When Stella in 1990, the Kerouac properties were left to her siblings who appointed John Sampas – who controlled Jack’s name, likeness and titles – as their trustee.

In 1992 the estate allowed City Lights to publish “Pomes All Sizes” the first release by Jack in 15 years. Multiple volumes of Kerouac poetry, prose, letters and journals, authorised for publication by the estate have followed.

Importantly the estate has sold both privately and to institutions. In 2001 the New York Public Library Berg Collection acquired Kerouac’s letters, journals and original manuscripts.

Stella left the original scroll of “On the Road” to her younger brother Tony Sampas. One of the most valuable manuscripts in American letters it is 120 feet long and was typed on a single sheet of teletype paper. The scroll was on deposit at the New York Public Library for 10 years until its sale for $2.4 million at Christie’s in 2001.

Forged Will

In 2009 following medical evidence and the testimony of a handwriting expert, Floridian courts declared Gabriel Kerouac’s will a forgery. However there is no evidence that any member of the Sampas family committed the act of fraud.

Additionally, it would be impossible to reclaim the sold items and return them to Paul– Kerouac’s only living relative. Similarly it has been reported that 98% of what survives of Jack’s writing are held and available for study in the Berg Collection – including copies of documents sold to generate operation capital for the estate.

The Sampas family affirmed a 2004 court order that they had inherited from Stella’s will, not Gabrielle’s will. On The Road alone sells upward of 100,000 copies a year with royalties from all of Jack’s books going to the Sampas family.

Following John Sampas’s death his nephew Jim Sampas, producer of the 2013 movie “Big Sur,” was named literary executor has helped administer the estate for about a decade.

“I had nothing to offer anybody except my own confusion”

Regardless of any rights and wrongs, John Sampas’ stewardship of the estate has firmly cemented Jack Kerouac as a literary icon, enabling his role in twentieth-century literature to be studied and given the respect it deserves as one of the founders of the beat generation of writers

 

 

Forfeiture, Intestacy, & Estate Gifts

Marcia Ann Dolan (the deceased) left a Will dated 26 June 1998. Clause 6 of the Will, dealt with the residue of Marcia’s estate and provided for it to be divided: as to 40% to Marcia’s biological son, Paul Stow; and 10% each to her six stepchildren.

Background

Marcia was murdered by one of her stepchildren therefore his bequest under her will was forfeited the consequence of which is that the 10% share of the residue passes to the person or persons who would be entitled to it if there had been a lapse of his interest under the Will (Helton v Allen [1940] HCA 20). Probate of the Will was granted on 18 February 2003 to the the executor Leonard Saville who subsequently paid funds into Court (a sum of around $20,000 plus interest).

The proceedings relate to an application filed for Maureen Winifred Carroll, by her tutor, Christopher William Carroll on 17 August 2021.

Gift of residue

The two alternatives are that the forfeited bequest would either pass as part of a general gift of residue that applied on the failure of one of the other gifts under cl 6 or it would pass on intestacy.

Importantly, the Succession Act 2006 (NSW) does not apply as Marcia’s last Will was made before 1 March 2008; s 61B(6) of the Wills, Probate and Administration Act 1898 applies under the transitional provisions of the Succession Act 2006

Submissions

The applicant submitted and the court accepted that provisions of cl 6 are structured as two separate gifts in respect of the rest and residue of the estate: the first, as to a 40% share; the second, as to a 10% share each for the six named stepchildren.

Examples of class gifts are ‘to my grandchildren’, ‘to my grandchildren A, B and C and such of my grandchildren hereafter born’, ‘to A, B, C and D if living’. Gifts to several persons by name, number or reference are not usually true class gifts.

The structure of cl 6 reveals that the share left to the stepchildren is not a “class gift” as such, but rather comprises separate independent gifts to the members of that group of beneficiaries.

Paul Stow was put up for adoption by Marcia (although the court accepted it was a forced adoption) in 1967. The legal consequence of adoption is that the child is of his adoptive parents, and not the child of the deceased, and therefore would not take on an intestacy.

The Decision

The Court held that as there is no general residuary clause, the 10% share in the residue of the estate is forfeited and that share is subject to a partial intestacy with the effect that the forfeited share passes on intestacy to Marcia’s only sibling, Barry Thomas Carroll. 

The Court directed that the funds paid into Court by the executor be paid out to Christopher William Carroll as tutor for Maureen Winifred Carroll the sole beneficiary of the Will of the late Barry Thomas Carroll, or in the alternative to Maureen Winifred Carroll’s financial manager.

Christian Porter’s Blind Trust

An individual who enters politics and wants to avoid any appearance of conflict between their role in government policy and their personal interests may place their assets into a “Blind Trust”. The trust operates according to a trust deed –which outlines the purposes of the trust, including how the assets shall be distributed when the blind trust expires.

Christian Porter

In March this year former Commonwealth Attorney-General Christian Porter commenced defamation proceedings against the ABC and reporter Louise Milligan. In May he decided to discontinue this action. Recently Mr Porter updated his register of members’ interests declaring that a “blind trust known as the Legal Services Trust” had made a “part contribution” to cover the costs of his lawyers and filing the lawsuit against the public broadcaster adding he had no access to information about its conduct or funding.

A Blind trust

The settlor and the beneficiary (who can be the same person) of the blind trust have no role in the day-to-day management of the trust. Once assets are transferred to a blind trust, the trustee can freely buy and sell assets as expressed in the trust deed. The beneficiaries are not informed of the assets held, bought or sold, or the performance of the trust.

Similarly, the trust deed limits the settlor or beneficiary from contacting the trustee regarding the holdings, principal, or returns, importantly they cannot direct the trustee about the management of the assets. The settlor and beneficiary are “Blind” to the day-to-day actions of the trustee.

Discretionary Trust

The “Legal Services Trust” resembles a discretionary trust whose beneficiaries do not have a fixed entitlement to the trust funds. It is usual for the trust deed of a discretionary trust to define potential beneficiaries very broadly, (this can include companies, trustees of other trusts, and children yet to be born) with the trustee having complete discretion to determine who receives a benefit from the trust and how much each of them can receive. Importantly, unless the objects of the trust are described with sufficient clarity the trust could be void for uncertainty.

Beneficiary or Object?

Until the trustee exercises their discretion in favour of a potential beneficiary, they are an “object” of the trust. Therefore, technically Mr. Porter is an object and not a beneficiary of the Legal Services Trust until the trustee has exercised its discretion to distribute the income of capital to him.

Additionally, an object of a discretionary trust does not have a proprietary interest in the property of the trust – they have a “mere expectancy” – being the right to compel the due administration of the trust estate and the right to be considered by the trustee.

Register of Members Interests

It has been reported that Mr. Porter was provided with an assurance from the trustees that the assets of the Legal Services Trust were not provided by lobbyists or prohibited foreign entities.

Assuming Mr. Porter knows the identity of the trustee who revealed this information it may assist in knowing who donated the money as the settlor and trustee maybe the same. However, the trust deed may have been drafted imposing a limitation on the trustee not to disclose the identity of the settlor to an object of the trust.

Prince Phillip’s Will to remain unpublished for at least 90 years

In the United Kingdom s124 of the Senior Courts Act 1981, (‘SCA 1981’) provides that when a grant of probate is made, any Will or other documents that are relevant to that grant must be open to inspection.

Rule 58 of the Non-Contentious Probate Rules 1987 (‘NCPR’) provides that:

“An original will, or document referred to in section 124 of the [Senior Courts] Act shall not be open to inspection if, in the opinion of a District Judge or Registrar, such inspection would be undesirable or inappropriate.”

While the Sovereign’s will does not need to be proved by a grant of probate, the estates of other members of the Royal Family shall be administered following the ordinary probate rules, this includes the power of a court to direct that the will or other document filed with the grant of probate not be open to inspection.

The Application

The executor of HRH Prince Philip, Duke of Edinburgh (“the Deceased”) applied for an order that the deceased’s will, executed on 5 June 2013, be sealed in an envelope and that no copy of the will should be made for the record or kept on the court file. The purpose of the application is to protect the dignity of the person of the Sovereign, by protecting the privacy of those family members closest to Her. Additionally, the application seeks to exclude the value of the estate from the grant of probate.

Recent case law concerning sealed Royal Wills

The first family member whose will was sealed up by the court was the younger brother of Queen Mary, Prince Francis of Teck, who died in 1910 leaving valuable emeralds prized by the Queen to his mistress.

In 2007, Robert Brown, claiming to be the illegitimate child of Princess Margaret, applied to unseal the wills of the Queen Mother and Princess Margaret however this claim was struck out as “vexatious and an abuse of process”.

On appeal, the Court of Appeal held that although Mr Brown was motivated by a “belief that is both irrational and scandalous” accepted that he should have been able to raise several general issues of public importance relating to the original process by which the Wills had been sealed.

Attorney Generals Practice note

Following the discontinuation of the appeal by Mr Brown, he made a request under the Freedom of Information Act 2000 for the document describing the practice of the sealing of Royal wills. Before the hearing, the Attorney General had decided to disclose the confidential note which provided that the Family Division applied to ‘senior members of the Royal Family’ including

• The Consort of a Sovereign or former Sovereign.

• The child of a Sovereign or former Sovereign; and

• A member of the Royal Family who, at the time of His/or Her death, is first or second in line of succession to the throne or the child of such a person.

The Decision

Once any potential appeal against his judgement has been able to run its course Sir Andrew as the President of the Family Division will publish a complete list of the names of the Royal Family members whose Wills are sealed in envelopes and contained in a safe to which he is the custodian. Additionally, the wills of other, less senior, members of the Royal Family may have been sealed for specific reasons, or due to a wider definition of “Royal Family” being applied in this context in earlier times.

The parties argued that the wills should be sealed for 125 years, but Sir Andrew believed that 90 years was “proportionate and sufficient” after which each royal Will would be opened by a professional archivist to ensure the documents and seals are properly preserved prior to examination by the Sovereign’s private solicitor, the keeper of the Royal Archives, the attorney general and any personal representative of the deceased who may still be available. A decision as to whether the Will is made public will be made at that stage, however, Sir Andrew believes that some royal wills may never be published, even in part.

Missing Presumed Dead

Following a person’s disappearance for at least seven years, that person may be presumed to be dead. However, whether the person has died is a question of fact therefore it is not always necessary to wait seven years – even where that person’s body has not been found.

Background

Wiehong Guo (“WG”) was a permanent resident of Australia. She had been born in China but moved to Australia in 2000 where she purchased a property in Carlingford (“the Carlingford Property”). WG continued to maintain relationships with people in Australia and her family in China.

WG had not been seen since April 2001. Despite inquiries police couldn’t locate her, nor did any bank or government agencies have any records or transactions after this date similarly immigration records indicated that WG had not left Australia.

The Proceedings

On 1 October 2019, WG’s daughter Sijia Guo, (“the Plaintiff”) sought various forms of relief, including a family provision order based upon the premise that WG was dead.

Yong Wei Gao, WG’s husband (but not the Plaintiff’s father) was named as a defendant. Yong Wei married WG in about March 2000 and they remained married at the date of her disappearance.

Sijia and Yong Wei agreed that WG should be considered dead but as there was no proof that they had died required the Court to decide that the missing person was dead. The onus of establishing the presumption the WG was dead rests on the party who seeks it, and it is found on the balance of probabilities.

The court found that there was no acceptable, affirmative, or direct evidence that WG is dead. Nor is there proof of death by inference therefore, the parties rely upon proof of death by presumption that the person has been absent, and not been heard of, or from, by those who might have been expected to hear of, or from, her, or him, for seven years.

The Court was satisfied, on the balance of probabilities, WG has been missing for more than 7 years; her disappearance was unexpected and unexplained and those most likely to have not heard from her. WG’s body has not been discovered or identified. Importantly, there is no evidence to raise an issue that WG is alive or any reason to believe that she was alive, which would rebut the presumption of death.

Section 40A of the Probate and Administration Act 1898 (NSW), relevantly, provides:

(1) Where the Court is satisfied, whether by direct evidence or on presumption of death, that any person is dead, the Court shall have jurisdiction to grant probate of the person’s will or administration of the person’s estate, notwithstanding that it may subsequently appear that the person was living at the date of the grant.

Section 40B(3) of the Probate and Administration Act, relevantly, provides:

The estate shall not be distributed without the leave of the Court.

The Decision

The Court was satisfied that WG, on presumption of death, is no longer alive and left no Will. Sijia and Yong Wei are entitled under the operation of the rules of intestacy, to share the estate of WG each consent to an independent administrator being appointed to administer the intestate estate of WG.

Additionally, Yong Wei will not sell, mortgage, charge, or in any way encumber, or deal with, the Carlingford property until further order of the Court.

Resealing Probate in the BVI

Where a person has died leaving assets in the British Virgin Islands (BVI), one of the following will be required in order to deal with those assets

(1) a grant of probate has been issued by the Registry; or

(2) a grant of letters of administration has been obtained from the Registry; or where a foreign grant is eligible for resealing

(3) the deceased shareholder’s foreign grant of probate or letters of administration has been re-sealed by the Registry.

Without a grant assets will cannot be transferred, and any powers derived from the asset cannot be exercised, and any benefit cannot be distributed.

Until recently foreign grants could only resealed in the BVI where the grant was issued by courts of probate in “Her Majesty’s dominions”which were limited to:

  • any British protectorate;
  • any [British] protected state; or
  • any territory in respect of which a mandate or trusteeship is being exercised by Her Majesty’s Government in the United Kingdom or the Government of any part of Her Majesty’s dominions.

The absence of a clear list of jurisdictions, often added to the cost, delay and complexity of the BVI probate process.

In July 2021, the Probates (Resealing) Act, 2021 (the Act) repealed The Probates (Resealing) Act (Cap. 60), 1937 (the 1937 Act) to modernize and provide greater flexibility to the trusts and probate laws in the BVI.

Importantly the Act expands the list of relevant jurisdictions to whose grants of representations may be resealed in the BVI. Including Hong Kong and the USA in addition to all Commonwealth countries.

Intestacy, Siblings & Statutory Interpretation

In Australia, on intestacy some jurisdictions do not distinguish between the entitlements of full siblings and half-siblings; s 101 of the Succession Act 2006(NSW) defines brother or sister, similarly,  s 12B of the Administration Act 1903 (WA) provides that relationships of the full blood and the half-blood are treated equally.

From 1 November 2017,  the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 (Vic) (‘the 2017 amendments’) applies to those who die leaving intestate estates in Victoria.

Before the 2017 amendments, s  52(f)(vii) of the Administration and Probate Act 1958 (Vic) (the “Act”) reflected the common law position that on the distribution of an intestate estate, there shall be no difference between full siblings and half siblings. However, the 2017 amendments repealed  s 52 of the Act , did not include a replacement for s 52(1)(f)(vii), nor did it define ‘sibling’.

Background

Lynndall McKinnon died intestate in December 2018 her husband, Kenneth, daughter, Kerrie, and her parents, Leroy Clarence  and Gladys  Shears, all predeceased her.  Kerrie did not have any children.   

Lynndall was survived by children of Leroy and Gladys Dorothy Shears; Carmen Giddens (‘the plaintiff’), Gregory  and Raymond Shears, her brother John  Shears, predeceased Lynndall leaving no children.

Lynndall is also survived by children of her mother Gladys and Robert Turner; Dianne Perkins, Wendy  Zanin, Robyn  Medew and Debbie Turner. Donna Lee Turner, predeceased Lynndall leaving no children.

At the date of her death, Lynndall did not have a domestic partner.

Carmen Giddens was granted letters of administration of Lynndall’s estate on  25 June 2019, seeking clarification from the Court how the estate is to be distributed under s 70ZI(1) of the Administration and Probate Act 1958.

The Decision

The Court expressed that the meaning of the Act is to be derived from its text, context and purpose. Additionally, s 35 of the Interpretation of Legislation Act 1984 (Vic) provides that, an interpretation of a provision of an Act, promoting the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object.  

In respect of the laws of intestacy, a review of Victorian succession laws by the Victorian Law Reform Commission was tasked by the Attorney-General  to review and report on whether the statutory scheme for distribution of property on intestacy was operating effectively to achieve just and equitable outcomes.

 Additionally the Court found no reference in the second reading speech and explanatory memorandum  or definition of the meaning of sibling, of an intention by Parliament to create a distinction  between siblings including narrowing the previous scheme to exclude half siblings from receiving any distribution. 

In Answering the questions raised by Carmen the Court ordered that the estate be distributed equally between surviving siblings and half siblings.