In the Australian Capital Territory, s11A of the Wills Act 1968 allows a document that reflects the deceased’s testamentary intentions to be recognised as a Will, even if it wdoesn’t meet formal execution requirements if the Supreme Court finds intent. The Court assesses intent by examining the document and additional evidence, including prior statements from the deceased. The key questions the Court must consider are:
- 1. Is there a document?
- 2. Does the document reflect the deceased’s testamentary intentions?
- 3. Is there sufficient evidence that the deceased intended for the document to operate as their will?
The deceased passed away on 17 April 2024, owning various assets in the Australian Capital Territory. She left a valid will dated 25 May 2020 (the 2020 Will), dividing the residue of her estate equally among 11 beneficiaries, including the deceased’s cousin, Ms Daphne Kaye Pritchard.
On 7 February 2024, while hospitalised, the deceased prepared and signed a document (February 2024 Document) requesting a codicil to her will to allocate an additional share of her estate to Ms Pritchard, citing her kindness during the deceased’s illness. Ms. Catherine Williams witnessed the document. Another named beneficiary, Mr. Chester, predeceased the deceased, leaving the redistribution of his share to the estate executors.
In the Estate of Robin Isobel Rawson [2024] ACTSC 365, the executors filed an application on 4 September 2024 seeking an order to recognise the Will dated 25 March 2020 and a handwritten document dated 7 February 2024 as the testamentary intentions of the deceased, despite the handwritten document not meeting formal execution requirements.
Additionally, they seek judicial advice on constructing both documents under the o. The formal Will divides the estate equally among eleven beneficiaries, including Daphne Kaye Pritchard, a cousin of the deceased. The handwritten document states that Ms Pritchard should receive a “full share” of the estate, leading to ambiguity about its interpretation, which the applicants argue should mean an “additional share” for her.
That the Will dated 25 May 2020, which was validly executed, together with the handwritten document dated 7 February 2024 (the February 2024 Document), be recognised as embodying the testamentary intentions of the deceased and together constitute the deceased’s Will, even though the deceased did not execute the February 2024 Document in compliance with the formal requirements of the Wills Act 1968.
If the Court grants this order, the applicants seek judicial advice under s63 of the Trustee Act 1925 (ACT) on interpreting the Will and the February 2024 Document. The formal Will stipulates that the estate residue be divided equally among 11 beneficiaries, including Daphne Kaye Pritchard (Ms Pritchard). The February 2024 Document provides that Ms Pritchard is to receive a “full share” of the estate. The applicants argue the term is ambiguous: “full share,” suggesting the Court should interpret the Will as granting Ms. Pritchard an additional share.
At a hearing on 18 October 2024, the applicants agreed that if the Court grants the requested orders for recognition and judicial advice, the matter may be referred to the Registrar for probate consideration. All beneficiaries of the estate have consented to the orders sought.
Background
The deceased passed away on 17 April 2024, leaving assets in the Australian Capital Territory. The deceased had executed a valid Will dated 25 May 2020, which directed the estate residue to be divided equally among 11 beneficiaries, including Ms Pritchard.
On 7 February 2024, while hospitalised, the deceased wrote and signed the February 2024 Document, witnessed by Catherine Williams, expressing her intent to provide Ms Pritchard with a “full share” of the estate due to her kindness during the deceased’s illness.
Another named beneficiary, Mr. Chester, predeceased the deceased, leaving the executors to redistribute his share during probate administration.
Affidavit Evidence
Ms Catherine Williams: In her affidavit, Ms Williams, a friend of the deceased, stated that the deceased was distressed on 7 February 2024, fearing death during a procedure and feeling guilt over not providing adequately for Ms Pritchard. At Ms. Williams’s suggestion, the deceased wrote the February 2024 Document, which Ms. Williams witnessed and stored. The document was later found and passed to Ms Pritchard for the estate executors.
Ms Folger: In her affidavit, Ms Folger, another friend of the deceased, recounted that the deceased expressed a desire in late February 2024 to provide more for Ms Pritchard, acknowledging her kindness and support during hospital stays.
Mr Chatfield: The deceased’s solicitor detailed in his affidavit that she met with him on 5 March 2024 to update her will, including increasing Ms Pritchard’s share to two portions. The Solicitor sent a Draft document reflecting these changes, but she passed away before signing them.
Despite the deceased’s intention to amend her Will, her death on 17 April 2024 occurred before finalising the updates.
Is there a document?
The term “document” is not defined in the Wills Act 1968. However, the Dictionary of the Legislation Act 2001 (ACT) defines “document” as “any record of information,” including “anything on which there is writing.” The February 2024 Document qualifies as such a record, as it contains written information: see also In the Estate of Noel Joseph Edmund Thompson [2024] ACTSC 110 at [17].
“As submitted by the legal representative for the applicants, ‘Document’ is not defined in the Act; however, the typed document squarely falls within the definition set out in the Dictionary of the Legislation Act 2001 (ACT), a record of information on which there is writing. On the facts of this case, it is unnecessary to consider whether the scope of the word ‘document’ in the Act extends further than that definition.”
Does the document reflect the testamentary intentions of the deceased?
A document expressing a person’s wishes regarding the distribution of their property upon death constitutes one embodying testamentary intentions (Smith v O’Neill [2014] NSWSC 1119 at [152], citing Re the Estate of Masters (1994) 33 NSWLR 446 at 469).
The February 2024 Document outlines the deceased’s intentions to distribute their property after death, specifying that Kaye is entitled to “a full share in [her] estate.” Addressed to the deceased’s solicitors, it instructs, “Please add the following codicil to my will (deposited with you).” This confirms that the February 2024 Document embodies the deceased’s testamentary intentions.
Does the evidence demonstrate that the deceased intended the document to operate as her will or an amendment to it?
As stated in Ms Williams’ affidavit, the deceased signed the February 2024 Document and had it witnessed. The witnessing firmly indicates the deceased’s intent for the document to take immediate effect.
Additional evidence supporting the deceased’s intention includes:
- (i) The deceased was scheduled for major surgery the following day.
- (ii) She expressed feeling “much better” after having the document witnessed.
- (iii) She placed the document in the side pocket of her suitcase, suggesting her intention to safeguard it.
- (iv) She told Ms Folger and Ms Williams that Ms Pritchard had been particularly supportive during her illness, and she wished to reflect her gratitude by increasing Ms Pritchard’s benefit in her Will. This intention is evident in the February 2024 Document.
- (v) At the time of her death, the deceased was formalising changes to her will. One intended change was to increase Kaye’s estate share, consistent with the February 2024 Document.
The evidence in (iii) and (iv) is admissible under s 11A(2)(b) of the Wills Act
“any evidence of the testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or not) of statements made by the deceased person.”
Counsel for the applicants acknowledged that the deceased’s instructions to Mr Chatfield to amend her Will (above at (v)) could imply she did not view the codicil as immediately effective. However, the Court accepts the more plausible interpretation that the deceased intended the February 2024 Document to take effect immediately, with formal amendments to follow for added security.
The combined evidence demonstrates that when the February 2024 Document was signed on 7 February 2024 and after that, the deceased intended it to serve as an amendment to her will without requiring further action.
Conclusion
Based on the above, the Court held that the February 2024 Document embodies the deceased’s testamentary intentions. At its creation, the deceased intended for the document to operate as her Will without further action. The requirements of s 11A of the Wills Act are satisfied. Therefore, it is appropriate to grant the order under s 11A, and the February 2024 Document will hereafter be referred to as “the Codicil.”
The Will and Codicil must be read together to resolve ambiguity surrounding the phrase “full share” that Ms. Pritchard is to receive. While the Codicil alone could imply she is entitled to the entire estate, when considered with the Will, three interpretations arise:
- 1. Ms Pritchard receives the entire residue of the estate.
- 2.Ms Pritchard receives the same share as other beneficiaries (one-eleventh of the estate).
- 3. Ms Pritchard receives an additional share (two-twelfths), with the remaining beneficiaries receiving one-twelfth each.
Judicial advice was sought under section 63(1) of the Trustee Act 1925 to determine the correct interpretation supported by counsel’s confidential opinion. The Court determined that granting advice serves the estate’s best interests, providing certainty to the trustee.
Interpreting the Codicil and the Will
The Court prioritised the deceased’s expressed intentions as conveyed in the Will’s will’s language. Extrinsic evidence is admissible under section 12B of the Wills Act 1968 if ambiguity arises.
The first interpretation is inconsistent with Will’s wording and context, as the deceased did not revoke prior provisions or explicitly grant the entire residue to Ms Pritchard. The second interpretation renders the Codicil meaningless, as it does not alter the Will’s terms. The third interpretation, supported by extrinsic evidence, aligns with the deceased’s intention to grant Ms Pritchard an additional share without excluding other beneficiaries.
Extrinsic Evidence
Evidence from Ms Folger, Ms Williams, and Mr Chatfield confirms that the deceased wished to reward Ms Pritchard for her support during her illness while ensuring other beneficiaries retained their shares.
Conclusion
As expressed in the Codicil and Will, the deceased’s testamentary intentions indicate that Ms Pritchard will receive an additional share in the residue (two-twelfths), with the remaining beneficiaries receiving one share each (one-twelfth). This interpretation aligns with the evidence and was unanimously agreed upon by all beneficiaries before the hearing.
Costs
The applicants did not request a costs order, noting that under section 59(4) of the Trustee Act 1925, trustees may reimburse themselves for expenses incurred in exercising their powers.
Subject to any express terms of a trust, a trustee is entitled to be indemnified against debts and liabilities incurred in the proper execution of its duties and powers under the trust out of the assets of the trust.
In the Estate of Margaret Anne Cervo (administrator pendente lite appointed) [2024] ACTSC 253
Consequently, the Court will make no costs order.
Orders
For the reasons outlined, the following orders are made:
- 1. The Will dated 25 March 2020, properly executed, and the deceased’s handwritten document dated 7 February 2024 constitute the Will of the deceased, despite the handwritten document not meeting the formal execution requirements of the Wills Act 1968 (ACT).
- 2. The proper interpretation of “full share” in the Codicil and Will is “additional share” in favour of Daphne Kaye Pritchard, granting her two-twelfths of the residue. At the same time, the remaining beneficiaries receive one-twelfth each.
- 3. The Registrar is directed to take all necessary steps to grant probate of the documents identified in order 1 to the executors of the Will.