Proctor v Klauke[2011] QSC 425

SUPREME COURT OF QUEENSLAND

This application

[1] This is an application by the executor for;

(a) a  determination whether, pursuant to section 18 of the Succession Act 1981, an informal document dated 10 October 2009 is a valid codicil to the deceased's undated will which was executed on 21 November 2000;

(b) a grant of probate of that will, and if appropriate, that codicil dated 10 October 2009.

Background

[2] Ms Betty Allom, who is the deceased, was born on 1 December 1931.  She had impaired vision but was not totally blind. 

[3] The affidavit material indicates that she had been long term friends with the applicant, Janice Proctor.  In about 1983 she also became friends with Valerie and Robert Klauke.  Mr Klauke is blind.  It is clear from the affidavit material that Ms Proctor and Mr and Mrs Klauke, over the many years, assisted the deceased with personal matters including transport, household tasks, reading letters, writing documents and other matters. Ms Allom also celebrated Christmas and Easter with Mr and Mrs Klauke and Mrs Klauke visited Ms Allom when she was hospitalised. 

[4] The affidavit material also sets out that Barbara Castiglione was Ms Allom's hairdresser for about 20 years and that she formed a close friendship with her. She visited Ms Allom at her home two or three times a week and did her hair once a week.  She assisted with transport, cooking and buying items that she needed.  That assistance by Ms Castiglione and by Mr and Mrs Klauke existed for a long period of time. 

The November 2000 Will

[5] On 27 March 2000, Ms Allom gave instructions for a will to a solicitor, Mr Mark Game.  His office was in the Brisbane CBD but he went to Ms Allom's home to take the instructions.  Whilst the instructions were taken in March 2000 the will was not executed until 21 November 2000 and that was done at Mr Game's office.

[6] The affidavit material indicates that the will is not dated but that the two persons who witnessed the execution of the will were present for that purpose on 21 November 2000.  That will appoints Mrs Proctor as executor.

[7] Pursuant to that will, which is a complicated will, the following gifts were made.  Pursuant to clauses 5 and 21, she gifted her house at Ryans Road, Northgate, as well as the residue of the estate to a number of beneficiaries, including Queensland Braille Writing Association, Queensland Blind Association, Royal Brisbane Hospital Foundation, Red Cross Society (Queensland Division), University of Queensland Development Fund, St Mark's Anglican Church Clayfield, The Blue Nurses, Somerville House Development Fund and the Royal Blind Foundation.  All of those parties are the third respondents in this application.

[8] She also gifted, pursuant to clause 15, to Sheena Lyn Ferguson, her goddaughter, her shares in the ANZ Bank, BHP and CSR.  Pursuant to clause 16, she gifted her shares in the Commonwealth Bank, Telstra and National Australia Bank to Janice Proctor.

[9] Pursuant to clause 17, she gifted her shares in the General Property Trust, Spicer Paper Limited and James Hardy Industries to Robert Klauke and Valerie Klauke.  Pursuant to clause 18, she gifted her shares in Westpac Bank and Pacific Dunlop Limited to Gwenda Spencer and Diane Spencer who were her friends.

[10] Pursuant to clause 19, she also gifted shares in Boral Limited and Origin Limited to her friend Laurel Hutchinson.  Pursuant to clause 20, she gifted her shares in Fletcher Challenge Limited to Tony Randall and Gayle Randall who were also friends.

Ms Allom’s last years

[11] The affidavit of Mrs Klauke indicates that Ms Allom's vision, mobility and arthritis worsened and that in the last eight years of her life she became increasingly difficult to get along with.  Many of her friends and acquaintances distanced themselves from her as a result.

[12] The affidavit of Mrs Proctor also indicates that Ms Allom fell out with her because there was an occasion where she was late in picking Ms Allom up for a party.  Mrs Proctor did not see the deceased after 2001. 

[13] Mrs Klauke however continued to visit and assist Ms Allom, although her affidavit indicates that she had to be very tactful. Mr Klauke also telephoned and spoke about matters of common interest with Ms Allom.

[14] Ms Castiglione continued to visit Ms Allom regularly.

[15] The affidavit of Mrs Klauke indicates that on many occasions after 2001, Ms Allom told her that she was going to change her will and that she said this more frequently in the last 12 months of her life. Apart from saying she was going to remove Mrs Proctor, she did not say what other changes she was going to make.  Mrs Klauke offered to take the deceased to see a solicitor but she did not accept this offer.

[16] In early 2009, Ms Castiglione states that Ms Allom asked her if she was interested in being her executor.  Ms Castiglione replied that that was a matter for her to decide.  It would seem that some six or seven months before the deceased died, Ms Allom told Ms Castiglione that she wanted to change her will and she asked Ms Castiglione if she was interested in taking “the deeds to her house”.

[17] Ms Castiglione states that she advised Ms Allom to think the matter through, but she was happy with that intimation and she offered to drive Ms Allom to see a solicitor but Ms Allom put her off. She said she had to find and read through her papers.

[18] Ms Allom was admitted to hospital for the last time in early December 2009.  Mrs Klauke visited her in hospital.  Her evidence was that she was not disoriented or confused. 

[19] I also accept the medical evidence that the deceased retained capacity until the end of her life.  Indeed, the affidavit material of Ms Proctor exhibits a letter from Dr Chris Davidson which is dated 11 May 2011. In that letter, Dr Davidson indicates that he knew Ms Allom very well, having been her local doctor for several years.  He states, "I last saw her on 11.11.2009 and note that she was admitted to hospital with her final illness on 06.12.2009 and died on 12.12.2009. Mrs Allom's health was stable in the period of September and October 2009 and she was well when I last saw her on 11.11.2009.  I believe she had full capacity to make decisions at that point in time, including such important decisions as those related to her estate. She was not aware in October 2009 that she was going to die in December 2009, because the illness that precipitated her death was sudden.”

[20] Ms Allom died on 12 December 2009. Her estate consists of her house at Ryans Road, Northgate, which is estimated to be worth $600,000 and a share portfolio which is worth about $320,000.

[21] The evidence indicates that after Ms Allom Ms Proctor and Ms Klauke worked through the deceased's house cleaning it up.  Ms Proctor indicates that the house was dirty, cluttered and there were untidy piles of papers, magazines and newspapers throughout.  That clean up took many months to work through.  It would seem that Mrs Proctor and Mrs Klauke would work from room to room cleaning and sorting through papers and located anything they considered to be important.

[22] There was a pile of papers on a small table in the dining room and in that pile, a few papers from the top of the pile, Ms Klauke found a document in the deceased's handwriting.  That document is dated 10 October 2009, which I note is some two months before her death. That document states, "BECAUSE I CANT (sic) GET TO MY SOLICITOR I WANT TO CHANGE MY WILL TO LEAVE MY HOUSE TO BARBARA CASTIGLIONE AND MY SHARES TO ROBERT AND VAL KLAUKE."  It is then signed B V Allom. 

[23] Mrs Klauke gave this document to Mrs Proctor when she found it.  No other document has been found in that material found in the house.  Ms Castiglione had not seen the document prior to these proceedings. 

[24] Section 18 of the Succession Act provides as follows in relation to informal wills:

18 Court may dispense with execution requirements for will, alteration or revocation

(1) This section applies to a document, or a part of a document, that—

(a) purports to state the testamentary intentions of a deceased person; and

(b) has not been executed under this part.

(2) The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s will.

(3) In making a decision under subsection (2), the court may, in addition to the document or part, have regard to—

(a) any evidence relating to the way in which the document or part was executed; and

(b) any evidence of the person’s testamentary intentions, including evidence of statements made by the person.

(4) Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).

(5) This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.

[25] Accordingly the Court may dispense with execution requirements for a will, alteration or revocation.  The section applies to a document or a part of a document that purports to state the testamentary intentions of a deceased person and has not been executed under this part.

[26] Subsection 2 provides that the document or the part forms a will, an alteration of a will, or a full or partial revocation of the will, of the deceased person if the Court is satisfied that the person intended the document or part to form the person's will, an alteration to the person's will or a full or partial revocation of the person's will.

[27] Subsection 3 provides that in making a decision, the Court may, in addition to the actual document, have regard to any evidence relating to the way in which the document or part was executed and any evidence of the person's testamentary intentions, including evidence of statements made by the person.

[28] It is because of those provisions that I have related the evidence of the statements Ms Allom made to Mrs Klauke and Ms Castiglione in relation to her intentions.

[29] Subsection 4 provides that subsection 3, does not limit the matters a Court may have regard to in making a decision under subsection 2.

[30] In turning to a consideration of the substantive issues, all of the persons who benefited under the 2000 will have been advised of these proceedings and have been given the opportunity to indicate whether they intend to appear and oppose the application.

[31] The third respondent, the Queensland Blind Association, and the fourth respondent, Ms Sheena Ferguson, have filed Notices of Address for Service.  They are represented here today by a solicitor from Quinlan Millar & Treston.  The fifth respondent, Ms Gwenda Spencer, has also had the opportunity to have her views put before the Court.

[32] All of those respondents argue for the original 2000 will on the basis that there is insufficient evidence with respect to the circumstances in which the 2009 document was made.  Essentially, it is argued that this 2009 document is very simple but that the will of 2000 was complex.

[33] It is also argued that the 2000 will exhibited a social conscience but this will does not do so.  There are also concerns raised that it was not witnessed when it should have been and that Ms Allom would have been aware that the will and any alterations thereto should have been witnessed.  This is on the basis that Ms Allom had executed a will previously and was well aware of the requirements. 

[34] It is also argued that she may have written this document in anger and may have regretted it later.  I note, however, that there was no other document which has been found which evidences any other intention.  It is also argued that the 2000 will was well written and considered but that this will is not.

Have the requirements for an informal will been satisfied?

[35] In relation to the matters that I am required to be satisfied about, Young CJ in Equity in Macey v Finch[1], considered the equivalent provision in the New South Wales legislation and stated that the provision required proof of three matters.  Firstly, that there must be a document.  Secondly, that the document must purport to state the deceased's testamentary intentions and, thirdly, the document must constitute the will of the deceased.  That is, it is not to operate during his or her life time.  It must be intended to constitute the deceased's will.

[36] In relation to the first element, there is a handwritten document.  Accordingly, the first element is satisfied. 

[37] The second element requires that the document must purport to state the deceased's intention. In the decision of the Estate of Masters, Hills v Plummer[2] Priestly JA held that a document in which a person says what he intends should be done with his or her property upon death is a document which embodies the testamentary intentions of that person.

[38] I am satisfied that the informal document does set out the changes that Ms Allom wanted to make to her will.  It is clear she wanted to leave her property to certain persons.  There is a very clear statement about what she wanted done with her property after she died.

[39] In the last eight years of life, Ms Allom's life had reduced considerably and the only people who were mentioned in the document were those people who had continued contact with her and who had assisted her during that difficult time since 2001. There was a reason why there was increased provision made for Ms Castiglione and Mr and Mrs Klauke. 

[40] The informal document is consistent with what might be anticipated to be her testamentary intentions.  I am satisfied that the second element is satisfied.

[41] As to the third element, that is, the document must constitute the will of the deceased, it is not to operate during his or her life, and it must be intended to constitute her will.  In this regard, the decision of Oreski v Ikac[3] provides that the equivalent section in the West Australian Act does not enable any document which expresses the deceased's testamentary wishes to be admitted to probate.  Rather the document must be intended to be the legally operative act which disposes of the deceased's property upon their death.  That is, it must have been intended by the deceased to have present operation as his or her will. A person may have set down in writing their testamentary intentions but not had intended the document be operative as will.  Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased's lifetime or to be a note of instructions or a draft will or a trial run.

[42] In Oreski v Ikac Newnes AJA held:

“[55] It is therefore of fundamental importance that the person seeking to propound the will established that the deceased, by some words or act, demonstrated an intention that, without more the document should have effect as his or her will.”

[43] In this case Ms Allom did not record her intentions in a formal fashion.  She did not have it witnessed.  I note however, the persons who most frequently attended at her house who were possible witnesses were in fact the intended beneficiaries. The failure to obtain either Ms Castiglione's assistance or the assistance of Mrs Klauke may well be that she intended to keep the gift as a secret, either due to a desire for privacy or as a surprise. 

[44] I do not consider that the informal document was intended as a draft.  It would seem to me that the language of the informal document does not have any of the elements of a draft to it.  If one considers the very short document, there is no question in relation to what Ms Allom wanted to do.  Rather, it is a very short and concise statement of how she actually wanted to leave part of her estate. In particular, she dated the document and she signed the document.  Because it is a very short document, her intentions are very clear. 

[45] In relation to the gift to Ms Castiglione, that is consistent with the intentions she had expressed to Ms Castiglione earlier when she indicated she wanted to give her the deeds to her house.

[46] In relation to her words that she could not get to a solicitor, I consider that this meant that she herself could not get to a solicitor but was heavily dependent on others to get her there.  It would seem that getting to solicitors would have required the assistance of a number of people. Given her failing eyesight and her arthritis, I accept that it was difficult for her to travel and I consider that it would have been very difficult for Ms Allom to get to a solicitor in the circumstances, given the last years of her life and the attendant difficulties she experienced during that time.

[47] It is unexplained as to why she did not get Mr Game to come to her house.  It may well have been that at some future time she would have done so.  However, that does not detract from the fact that she left a very clear document indicating what her wishes were.

[48] Given that the only persons who were visitors to the house were beneficiaries under the informal document, apart from Laurel Hutchinson, and the evidence is not clear as to how often she visited.

[49] I accept that it would not have been easy for the deceased to find a person who could witness the document who are not beneficiaries.

[50] It would also seem clear to me that Ms Allom put the document on a pile of papers and that she intended to keep them and that it was intended that that document be found. 

[51] In coming to his conclusion, it is clear that section 18 of the Succession Act is remedial in nature.  The elements that are required to be satisfied are clearly set out in the section.

[52] As Kirby P stated in the Estate of Masters,

"A too stringent requirement of proof that a propounded document, otherwise clearly embodying the testamentary intentions of a deceased person, constituted his or her will would undo the reform proposed by the Law Reform Commission and accepted by Parliament. Courts would continue to squirm at the results where the testamentary wishes of the deceased are sufficiently disclosed but cannot be given effect to because they fall short, in the court's conception, of constituting the deceased's ‘will’. To adopt such a stringent approach is, in my respectful view, to permit the conceptions about the formalities required for a ‘will’, which proceeded and explained the enactment of s 18A of the Act, to rule us from the statutory grave."

[53] I concur with the views expressed by Kirby P in that decision.

[54] In all of the circumstances, given the requirements of section 18 and a clear view that a too stringent requirement is contrary to the clear intention of the legislature, I am satisfied that there should be orders in the terms sought.

[55] Accordingly, there will be an order in the terms of the draft which as been initialled by me and placed with the file. 

[56] That is an order that, pursuant to section 18, the handwritten document dated 10 October 2009 and filed on 25 November 2011 is an alteration to the undated will of Betty Vivian Allom which was executed on 21 November 2000 and that subject to the formal requirements of the Registrar, a grant of probate of the undated will executed on 21 November 2000 and the handwritten document dated 10 October 2009 as a codicil to the will that the grant of probate be made to the applicant and that the costs of all parties be paid out of the estate on an indemnity basis.