In the ACT, a valid Will must meet legal formalities to be valid, underscoring the crucial role of drafting a document appropriately. Section 9 provides that the Will must be handwritten or typed, and the testator must initial each page and sign the final page of the document. Two impartial individuals must witness the testator’s signature and then attach their signatures to the document. The testator’s spouse and beneficiaries cannot witness the testator’s signature because they are not considered impartial.
An “informal will” is a document that reflects the testamentary intentions of its maker but not the requirements of s9 of the Wills Act 1968. Section 11A allows the Supreme Court to order that the purported Will does constitute the Will of the deceased person if the court
“is satisfied that the deceased person intended the document … to constitute his or her will …”.
Re Letcher (deceased) (1993) 114 FLR 397 outlined the fundamental matters of fact that arise for determination in s 11A of the Act:
- Is there a document?
- Does the document purport to embody the testamentary intentions of a deceased person?
- Is the evidence that has been tendered such as to satisfy this Court that at the time of making the document, the deceased person intended the document to constitute his or her will?
In a significant ruling, the Court revoked the previous Will and held that the purported Will was the deceased person’s last Will.
Estate of Robbie, Re
In Estate of Robbie, Re [2024] ACTSC 208 Mrs Mary Ellen Robbie (the deceased) died on 2 December 2023. Her three daughters, Ms Nicole Horne, Ms Tracy Fear, and Ms Kiri Robbie, survive her. The document appears to be a standard form of “Last Will and Testament” of the type that a willmaker might purchase from a newsagent.
The document exhibits five distinct features not commonly found in typical wills, which may raise questions about its authenticity.
(1) The signatures of the witnesses are on a separate piece of paper attached to the document over the part of the form where the witnesses’ signatures would typically appear.
(2) Under the heading “Gifts,” it is written: “See attached list.” No list is attached.
(3) The deceased appears to have used different pens in completing the document.
(4) A different pen is used to add the name of a residual beneficiary.
(5) A witness signature has been crossed out, and the insertion of a different signature.
The primary bequest in the Will is to leave the residue of the estate “[t]o be divided equally between Tracy Fear, Nicole Horne & Kiri Robbie.” As the three beneficiaries are the only surviving children of the deceased, they would receive the estate in equal shares on intestacy.
In her affidavit, the applicant submitted that she does not know of any persons other than herself and her two sisters who might be interested in the estate. She confirms that she has not discovered another document purporting to be a will or stating the deceased’s testamentary intentions.
The applicant submitted that the signatures of the persons purported to witness the document are their signatures and provided this explanation for the added signatures:
(1) There are reasonable explanations for all of the anomalies.
(2) No other statements of testamentary intentions have been found.
(3) The terms of the ‘will’ are consistent with intestacy and the expectations of a deceased person leaving her estate to her children in equal shares.
(4) no other persons are identified as possible claimants of the deceased’s estate.
It is noteworthy that the terms of the document were not contested, further solidifying the lack of contention in this case.
The decision
Following this evidence, the Court firmly believes that the deceased intended the document to be her will, based on the evidence presented.
Additionally, the three questions posed in Re Letcher (1993) 114 FLR 397 constituting the test to be applied for s 11A purposes were all answered in the affirmative.
Under s 11A of the Wills Act 1968 (ACT), the document dated 16 November 2020, entitled ‘Last Will & Testament,’ annexed to the affidavit of Kirri Elizabeth Robbie affirmed 3 June 2024 and marked ‘B’, constitutes Mary Ellen Robbie’s last Will. The Court recognises this document as the deceased’s valid Will.
In conclusion, the Court finds that the document meets the legal requirements of a valid Will and represents the deceased’s true testamentary intentions.
In the estate of Dora Marleny Rodriguez Navarro [2024] ACTSC 211
In December 2023, Dora Marleny Rodriguez Navarro travelled to Lima, Peru, with her husband and two daughters for a holiday. After they arrived in Lima, the deceased told her husband that she had booked cosmetic and abdominal surgery with a doctor in Lima.
Regrettably, there were complications during the surgery. The deceased’s husband was called to the hospital at 3:20 am on 27 December 2023. When he arrived at the hospital, the deceased was in an induced coma in the Intensive Care Unit (ICU). The hospital told the deceased’s husband that the deceased had suffered brain damage as a result of suffering 20 minutes without oxygen. There was no change to her condition in the days that followed, and the deceased passed away on 30 December 2023. The cause of death was cerebral oedema and pulmonary oedema, leading to organ failure.
The deceased had not made a formal will before her death. However, after her death, the deceased’s husband found a video on the deceased’s phone, which she had made whilst she was in hospital awaiting surgery.
The following is a transcript of what the deceased states in the video:
“Hello. This is Dora Marleny Rodriguez Navarro. I am 31 years old. I’m about to have an operation in an hour; however, just so everything is clear – I’m alone here waiting for the doctor – I would like to give all my money to Chris so my daughters can have good – a good education. And Christopher will – I know he will manage my money and – and my properties. Yeah, so everything to Chris. And then – yeah, and a portion – little – and a small portion for my parents, as they helped me so much”.
Is there a document?
A video is a “document”, being a “record of information… from which images, sounds, messages or writings can be produced or reproduced, whether with or without the aid of anything else”: Legislation Act 2001 (ACT), s 144, Dictionary Pt 1, definition of “document”, para (c).
Does the document purport to embody the testamentary intentions of the deceased person?
The words spoken by the deceased in the video purport to embody the deceased’s testamentary intentions. In the video, the deceased records their intention to distribute the estate. As a ‘document’ under the Legislation Act 2001 (ACT), this video can be considered a valid expression of the deceased’s testamentary intentions.
Does the evidence submitted satisfy the Court that when the deceased created the document they intended, it should, without more on their part, operate as their Will?
“whether it was the intention of the deceased … that the document should, without more on the part of the testator, operate as her will”.
In the Estate of Gallagher [2022] ACTSC 324 at [16],
The decision
The Court was satisfied that this meets the requirement of s 11A of the Wills Act for the following two reasons:
(a) The circumstances in which the deceased recorded the video (that is, shortly before the deceased was to undergo surgery) indicate that the deceased intended to create the video to constitute her Will without any further action on her part. As the deceased confirmed her intent by the words used by the deceased in the video (for example, “just so everything is clear”) and
(b) There is no evidence of any other document that contradicts the deceased’s apparent testamentary intention, as expressed in the video, that the recording itself operates as her will.
Application for letters of administration
The applicant also sought an order under s 9 of the Administration and Probate Act, which provides as follows:
The Supreme Court of the Australian Capital Territory can grant probate of the Will or letters of administration of the deceased estate of any person leaving the property, whether real or personal, within the ACT.
Similarly, the Supreme Court can grant probate of the Will or letters of administration of the deceased estate of a person that did not leave property, whether real or personal, within the ACT if the Court is satisfied that the grant of probate or administration is necessary.
The orders of the Court are:
Under s 11A of the Wills Act 1968 (ACT), the video made by the deceased on 26 December 2023 constitutes a valid last will of the deceased.
The Court ordered under s 11A of the Wills Act 1968 (ACT) that the annexure of the transcript of the video made by the deceased on 26 December 2023 is a true copy of the deceased’s last Will.
Under s 9 of the Administration and Probate Act 1929 (ACT) and r 3015 of the Court Procedure Rules 2006 (ACT), a grant of letters of administration with Will annexed will be issued to the applicant as administrator.