Signed Solicitors Notes a Codicil Does Not Make

Suzanne Prien died in February 2016 aged 64; her daughter, Sasha Prien, son Simon Prien, and her former spouse, Percival Kirk Prien (‘Kirk’) survive her.

Suzanne’s estate primarily consisting of a house in Marysville (‘the Marysville property’), compensation from the Murrindindi–Marysville Black Saturday Bushfire Class Action (‘the Class Action’), investment funds and chattels is valued at $927,285.

The Class Action against electricity company SP AusNet was settled in February 2014 for A$300 million.

In 1996, Suzanne was diagnosed with breast cancer; following treatment and remission, metastatic bone cancer was diagnosed in 2008. In late 2008, while in remission, the deceased instructed her solicitor, Mr David Davis, to draft her will, which was executed on 17 December 2008 (‘the 2008 Will’).

Around this time Suzanne and Kirk divorced, however they remained on good terms.

In February 2009, Suzanne lost all of her belongings, including the 2008 Will, when her home in Marysville was destroyed in the Black Saturday bushfires; the Marysville property was subsequently rebuilt. Following the fire, Suzanne instructed David in relation to ‘reinstating’ the 2008 Will; on 29 July 2009, Suzanne executed the Will appointing the Sasha executor.

In 2009, Suzanne and her son Simon became estranged; they have had no contact in the intervening years.

In February 2016, David, Suzanne’s solicitor attended her home to take instructions for a new Will; Suzanne was sitting in the living room and fully dressed, recognised and greeted David who spent one and a half hours obtaining instructions for the will. According to David, Suzanne stated that following careful consideration she had decided the distribution of her estate, in equal proportions between Sasha and Simon was no longer fair. Instead, she wanted to distribute her estate in three ways, leaving Sasha a greater share that included the Marysville property.

David took two pages of notes during the appointment and showed Suzanne the relevant clauses of the will as they were discussed. Both signed at the end of the notes beside a statement that

‘[t]hese notes form confirmation of my testamentary intentions Suzanne Rosalyn Prien 15/02/2016’. 

Mindful of Banks v Goodfellow, Mr Davis was of the opinion that Suzanne had testamentary capacity, and although she seemed tired, maintained her focus and clarity throughout.

Suzanne was admitted to hospital on the afternoon of 23 February 2016, following a stroke. Later that day At 4.52 pm the same day, David Davis & Associates emailed a draft will to Suzanne; however, she lapsed into unconsciousness and died the following day without seeing or being told about the draft Will.

Sasha sought a grant of probate of the Suzanne’s will dated 29 July 2009 including an informal codicil consisting of two pages of notes (‘the notes’) dated 15 February 2016 written by the David in the days before Suzanne’s death. The will was executed in accordance with s 7 of the Wills Act 1997 (‘the Act’). However, the Court had to decide whether the notes should be admitted to probate as an informal codicil to the will, pursuant to s 9 of the Act.

The Court ordered that probate of the Will dated 29 July 2009 be granted to Sasha, subject to any further requirements of the Registrar of Probates.

Sasha did not establish that upon signing, Suzanne intended the notes to have an immediate effect, without further explanation, as a document altering the Will. This conclusion is supported by the fact that the deceased signed the statement providing that the notes formed ‘confirmation’ of her ‘testamentary intentions’ only.

Section 9 of the Act is a remedial provision allowing the Court to dispense with the requirements for execution that are set out in s 7 and applies to both informal wills and informal codicils; however, care must be taken to ensure that the statutory formalities for execution of Wills set out in s 7 are not unduly relegated in importance.

Three criteria must be established for the Court to admit a document to probate in accordance with s 9:

(a) there must be a document;

(b) the document must express the testamentary intentions of the deceased; and

(c) the document must have been intended by the deceased to be a codicil to her or his last will.

The Court held that the notes comprise a document; expressed Suzanne’s testamentary intentions, however, the intention that the document is to be a final codicil and not intended to be changed is a matter of fact and each case depends on its own facts and circumstances

The Court was satisfied that Suzanne had testamentary capacity when she signed the notes on 15 February 2016; however, the Court was concerned that allowing probate of a document consisting of shorthand notes forming instructions, not signed by two witnesses and containing only the statement ‘these notes form confirmation of my testamentary intentions’, in circumstances where there was no pressing urgency, would unduly relegate the requirements for execution as set out in s 7 of the Act.




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