Re Webster[2021] QSC 62

SUPREME COURT OF QUEENSLAND

Background

1. [1]
   John Dyson Webster was born on 11 July 1939. Mr Webster died at Barcaldine aged 73 years on 13 May 2013. 
2. [2]
   On 1 March 1996, Mr Webster executed a document, “Annexure A” to this judgment entitled “Instructions for Will Appointing Lionel John Walsh sole executor and trustee.”^[1] Mr Webster had no children and his parents had passed away. By clause 13 of the document, Mr Webster directed that his entire estate be divided equally among his then, three siblings: Margaret Dawn Walsh, Robert James Webster, and Ronald Edward Webster.
3. [3]
   The applicant, Lionel John Walsh is the principal of Walsh Accounting in Barcaldine and is the husband of Margaret Dawn Walsh. Of the two attesting witnesses to the document, Ms Merchant (now Mrs Jedras) cannot recall the circumstances of the execution of the document.^[2] The other attesting witness, Ms Lawrence, knew the deceased and can recall witnessing the document. Ms Lawrence was an employee of Walsh Accounting in Barcaldine and can recall Mr Webster asking her to witness his Will. Ms Lawrence can recall reading the front of the document and Mr Webster describing it as “his Will”.^[3]
4. [4]
   Ms Lawrence, who regularly spoke to Mr Webster, swears that Mr Webster was “capable of making decisions” and that he “knew what he was doing”.^[4] The document was prepared by the Clerk of the Court in Barcaldine acting as agent for the Public Trustee. After the document was executed at Walsh Accounting, Mr Webster give the document to the applicant, Mr Walsh, who placed the document in an envelope and into his office safe. 
5. [5]
   Catherine Mary Arnold was the administrative officer for Walsh Accounting for a period of approximately 4 years around the year 2000. Ms Arnold swears that she can recall arriving at work on the morning of 6 June 2000 to find that the Walsh Accounting office had been broken into overnight. Ms Arnold deposes that various files and documents had been torn and scattered all over the office. As Ms Arnold was the first person to arrive at the office, she immediately rang Mr Walsh to advise him of the break in. Ms Arnold deposes that the office safe had been opened and documents from the safe had been scattered all over the floor. Ms Arnold deposes that one of the documents from the safe, being the document in Annexure A understood by Ms Arnold “to be a Will of the late John Dyson Webster”, was found in the office torn. The break and enter was reported to police and investigated.^[5]
6. [6]
   Mr Walsh deposes that Mr Webster’s “will” and one other “will” were torn during the break in. Mr Walsh deposes that after he had located Mr Webster’s torn “will” on the office floor, he placed a new staple in the “will”, placed sticky tape on the tears, and then posted the document to the Public Trustee in Rockhampton for safe keeping.^[6]

7. [7]
   On 24 May 2013, following the death of Mr Webster, Margaret Walsh attended upon the Clerk of the Court in Barcaldine and requested the clerk to instruct the Public Trustee to administer the deceased estate. Mrs Walsh was subsequently advised by the Public Trustee that due to the fact the document had been torn it was necessary to apply for letters of administration on intestacy.^[7]
8. [8]
   Mr Webster was predeceased by his brother, Robert James Webster. Robert James Webster had four children, two of which have renounced any interest in the Will, and the remaining two, Kim Webster-Coombes and Kerry Delahunty, are the remaining interested parties as beneficiaries under intestacy as advised by the Public Trustee.
9. [9]
   On 30 July 2013, Mr Walsh sent an email to Mr Peter Skewes, solicitor at Blackall, which provided:^[8]

“…Marg’s brother John Webster died 13 May this year. One of his assets is a property called Grant or Brigalow. It is heartbreak country and has never returned a profit. There are cattle on there and we will have to sell some of them because there is little feed and the waters are inadequate. John is deemed to have died intestate. He left signed instructions for a will with the Public Trustee but the Public Trustee has now advised us that these instructions were torn in half and sticky taped together and the will is therefore invalid. We need to get cattle off the property as soon as possible and the Public Trustee advises us that we must apply for Letters of Administration. We would prefer that you do this rather than the Public Trustee if you are willing to do so. This is the urgent part because some of the cattle must be mustered off the property quickly or they will die. We cannot shift them because they have John’s brand…”

10. [10]
    Mr Skewes, acting with appropriate urgency and on instructions, filed an application for letters of administration of Mr Webster’s estate on the basis he had died intestate on 29 August 2013. The letters of administration in intestacy were granted on 3 September 2013.^[9]
11. [11]
    To date the estate of Mr Webster has not been fully administered. The major asset of the estate is a small grazing property at the edge of Barcaldine.
12. [12]
    Sometime after letters of administration had been granted, Mr Walsh provided the solicitor, Mr Skewes, with a copy of the document, Appendix A. Mr Skewes was able to observe that it had been torn in two. Whilst undertaking continuing professional development in 2016, the topic of “torn wills” arose and Mr Skewes was “informed as to how the Will had been torn and that it could be the subject of an application for Probate as the deceased’s Last Will.”^[10]
13. [13]
    Sometime after that continuing legal development seminar, Mr Skewes advised Mr Walsh of the ability to bring an application for probate, however, Mr Walsh was concerned about the costs of going to court with such a small estate. Mr Skewes deposes the discussion went on “for several years” and in late 2017, Mr Walsh sought further advice as to what courses were open.^[11]
14. [14]
    There is then correspondence from late 2017 forward involving a number of matters and complications with respect to other family estates, including the estate of Mrs Mary Webster, the grandmother of the respondents, and Mr Robert James Webster, the father of the respondents. It would appear all matters have now been attended to, other than the issue of the validity of the document as truly representing the last Will and Testament of Mr Webster.^[12]

The Application

15. [15]
    On 10 August 2020 Mr Walsh filed an application seeking orders that:

    1. (a)
       The grant of letters of administration (intestacy) issued by this honourable Court S0439/2013 issued on 3 September 2013 be revoked;
    2. (b)
       Probate of the Will of the above deceased dated 1 March 1996 be granted to me as executor.
16. [16]
    The written submissions filed for the applicant and respondent raise several issues to be determined in the application. The first issue is whether the document^[13] is in fact the Last Will and Testament of John Dyson Webster. Plainly, if it is not, the grant of letters of administration would not be revoked. The second issue is if the document is a Will, was it revoked.
17. [17]
    The third issue is if the document is the Last Will and Testament of John Dyson Webster, whether it is appropriate under r 642 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) to exercise the discretion in favour of revoking the grant of letters of administration. In this respect, the respondent argues that the discretion ought not to be exercised as the applicant elected to pursue the grant of letters of administration and there has been a significant delay of over seven years between the death of  Mr Webster on 13 May 2013 and the brining of the application on 10 August 2020.

Is it a Will? 

18. [18]
    A Will is ordinarily understood to be a declaration of which the person making it, the testator, provides for the distribution of property after their death. Section 5 of the Succession Act 1981 (Qld) (“Succession Act”) defines Will as: “will includes a codicil and any other testamentary disposition”. 
19. [19]
    Section 10 of the Succession Act provides:

 “10  How a will must be executed 

1. (1)
   This section sets out the way a will must be executed. 
2. (2)
   A will must be— 

   1. (a)
      in writing; and

   1. (b)
      signed by— 

   1. (i)
      the testator; or 

   1. (ii)
      someone else, in the presence of and at the direction of the testator. 
3. (3)
   The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time. 
4. (4)
   At least 2 of the witnesses must attest and sign the will in the presence of the testator, but not necessarily in the presence of each other. 
5. (5)
   However, none of the witnesses need to know that the document attested and signed is a will. 
6. (6)
   The signatures need not be at the foot of the will. 
7. (7)
   The signature of the testator must be made with the intention of executing the will. 
8. (8)
   The signature of a person, other than the testator, made in the presence of and at the direction of the testator must be made with the intention of executing the will. 
9. (9)
   A will need not have an attestation clause. 
10. (10)
    A person who can not see and attest that a testator has signed a document may not act as a witness to a will. 
11. (11)
    If a testator purports to make an appointment by will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed under this section. 
12. (12)
    If a power is conferred on a person to make an appointment by will and the appointment must be executed in a particular way or with a particular solemnity, the person may make the appointment by a will that is executed under this section but is not executed in the particular way or with the particular solemnity. 
13. (13)
    This section does not apply to a will made under an order under section 21.” [20] The respondents argue that the heading of the document “Instructions for Will” appointing John Lionel Walsh sole executor and trustee indicates that Mr Webster did not intend the document to be his Will, but rather a document recording instructions for a Will, and so it does not have sufficient finality to constitute the clearly expressed intentions of Mr Webster. 

21. [21]
    Against this, the applicant points to the words immediately below the heading “To take effect as a last Will in the event of death before a further testamentary document is executed” and the attestation clause being in the standard form of attestation clause.^[14]
22. [22]
    The attestation clause provides, where relevant:^[15]

“Signed by the testator to be his/her last will and testament (in the event of his/her death occurring before a further testamentary instrument is executed) in the presence of both us present together who in his/her presence and in the presence of each other have hereunto subscribed our names as witnesses.”

23. [23]
    The document complies in all respects with s 10 of the Succession Act and on its face appears to be a Will that is a document expressing the wishes of Mr Webster in respect to the disposition of his estate when he was to pass away. The evidence of Ms Lawrence in this regard is also of some assistance as it is direct evidence of Mr Webster describing the document as “his Will”.
24. [24]
    In Re Gloria May Limpus Deceased [2013] QSC 66, Philippides J set out the relevant extracts from the leading textbooks upon Wills, reviewed cases, and said:^[16]

“[13]In determining the matter, Sanderson M referred to the South Australian decision of Estate of Treloar (1984) 36 SASR 41, to Re Barnes, and to some of the early English authorities, and said:

[13]The circumstances in which a Will can be contained in instructions were discussed by Legoe J in the Estate of Treloar (1984) 36 SASR 41. His Honour refers to Tristam & Coote, Theobald and Halsbury’s Laws of England, in setting out the circumstances when instructions for a Will may have effect as a Will: see pp 43–44. These include:

1. (a)
   if it can be shown that the instructions represented how the testator intended to dispose of the estate;
2. (b)
   if the instrument was intended to take effect in the absence of a more formal document;
3. (c)
   if the document should be depository and operate provisionally until a more formal will was prepared.

[14]In the Goods of Fisher (1869) 20 LTR 684, Lord Penzance directs that a presumption arises when instructions are executed that it is intended will take effect as a Will, even where in future a more regular form is intended. In Re Meynill; Meynill v Meynill (1940) WN 273, Barnard J accepts that the presumption arises where formalities have not been complied with. In In re Barnes (Dec) [1954] NZLR 714 Turner J expressed the view that if the document has been executed animo testandi and the formalities observed, it becomes the last Will and testament of the deceased and was not revoked by any “mere change of intention”. It is to be noted that the authorities suggest that a Will is not to be regarded as contained in instructions in the absence of evidence of animus testandi: see Lister v Smith (1863) 3 Sw & Tr 282; Torre v Castle (1836) 1 Curt 303; Whyte v Pollok (1882) 7 App Cas 400.

[14] Nevertheless, Sanderson M cautioned:

‘Having said all of that, it is clear that each case must be decided on its merit “because so much depends on the particular circumstances”: see Hines v Hines [1999] WASC 111 per Owen J at 25. In that same case his Honour pointed out (at 26) that determining whether the document is a testamentary instrument is a less difficult task when independent evidence is available.’”

25. [25]
    As the cases and the texts make plain, the animus testandi is the crucial determinant. In the present case, given the text of the Will and the evidence of Ms Lawrence, I accept that the document was intended by Mr Webster to constitute his Will.

Revocation of Will

25. [26]
    Section 13(e)(i) of the Succession Act provides that a Will may be revoked by the testator or someone in the testator’s presence or at the testator’s direction, burning, tearing or otherwise destroying the Will, with the intention of the testator to revoke it. Here, it is clear that the Will has been torn. However, it is equally plain that it has not been torn by the testator, Mr Webster, or someone in his presence or at his direction with the intention of revoking the Will.  The evidence shows that the office of the accountancy practice was broken into between 5 June and 6 June 2000. The police report notes that the break in was reported at 8:15am on 6 June 2000 and records:^[17]

“Unknown person/s have gained entry to the offices by breaking two windows on the west side of the building using a broom handle and then climbed a ladder through the window. Offender/s have then ransacked the offices and gained access to the company safe using a key. Offender/s of [sic] then removed a quantity of money part of which belongs to the Barcaldine Catholic church. During the search, the offenders have damaged a vast quantity of documents. Point of exit is unknown atthis [sic] time.”

27. [27]
    In the present case, the will was not torn by the testator, Mr Webster, or someone in Mr Webster’s presence, or at his direction, but rather was torn by a thief. Furthermore, the act of tearing must be accompanied an intention to revoke or animus revocandi. In Will of Purviss [1918] QWN 18, a will held in a solicitor’s officer was accidentally destroyed by fire was held not to have been revoked. In Re Webb (1964) 2 All ER 91, a Will held in a solicitor’s office that was destroyed by enemy bombing was held not to have been revoked. Plainly in the present case, the will has not been revoked.
28. [28]
    Therefore, I conclude that the document was intended to be the Last Will of Mr John Webster and it was not revoked. 

Revocation of the Grant of intestacy 

29. [29]
    Rule 642 of the UCPR provides:

“642Revocation of grants and limited grants

1. (1)
   The court may, on application, revoke a grant or make a limited grant if—

   1. (a)
      it appears to the court that—

   1. (i)
      the personal representative is no longer capable of acting in the administration; or

   1. (ii)
      the personal representative can not be found; or

   1. (iii)
      the grant was made because of a mistake of fact or law; or

   1. (b)
      the personal representative wants to retire from the administration.
2. (2)
   With the consent of the parties, the registrar may exercise the jurisdiction of the court under this rule.
3. (3)
   If the court revokes a grant or replaces it with a limited grant, the personal representative must bring the original grant into the registry as soon as practicable after the order is made.
4. (4)
   On the hearing of an application under this rule, the court may direct that the proceeding continue as if started by claim and give any directions it considers appropriate.”

30. [30]
    I find that the grant was made because of a mistake of fact or law, being the mistaken advice that the Will could not be admitted to probate because it had been torn. 
31. [31]
    The issue is whether the discretion under r 642 of the UCPR ought to be exercised in favour of the application to revoke the grant, or as the respondent submits, against the application. 
32. [32]
    Section 6(1) of the Succession Act provides:

“6  Jurisdiction 

1. (1)
   Subject to this Act, the court has jurisdiction in every respect as may be convenient to grant and revoke probate of the will or letters of administration of the estate of any deceased person, to hear and determine all testamentary matters and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person; and has jurisdiction to make all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect.”

33. [33]
    In Conroy v Smith & Anor [2007] QSC 182, Moynihan SJA reviewed the inherent power of the court to remove an executor for just cause by revocation of a grant and the broader powers under s 6(1) of the Act. In Conroy, the applicant had proved the Will of which he was an executor in solemn form in a fully contested probate application. In respect of this, Moynihan SJA said:^[18]

“[16] In those circumstances the court will not lightly intervene to revoke the appointment and substitute an administrator. An added consideration in this case is the size of the estate and the diminishing if not disappearing surplus of assets over liabilities.”

34. [34]
    In Conroy, Moynihan SJA exercised the discretion in favour of revoking the grant of probate in circumstances where there had been shown to be a serious conflict of interest and a breakdown in relations between the applicant and the second respondent. 
35. [35]
    With regard to the principles applicable to the removal of an executor, Jerrard JA (with whom McMurdo P and Helman J agreed) said in Baldwin v Greenland:^[19]

“[44]  The jurisdiction, both statutory and inherent, is a supervisory and a protective one. It is always appropriate and necessary for a court asked to exercise it to have regard to the testator's wishes as to the identity of an executor or trustee. The testator's choice may be based on loyalty, or on respect, or on necessity, or on the profession of the chosen person, or on other matters the testator knew about the chosen person; the reason for the choice might never be clear to a court. The overriding assumption must be that the testator thought the person chosen was worthy of trust, even when well aware when making a choice of existing hostility (from family members) toward the chosen executor or trustee, or of other grounds for doubt about the wisdom of the choice. The decision in Gowans v. Watkins, to which Mr Stephens referred, is an example of a court respecting a testator's wishes, where no great mischief in administering the estate had been done by the person chosen by the testator, and where there were serious family hostilities. But the overriding object of the power remains the due and proper administration of estates.” 

(Footnotes omitted; Emphasis added.) 

36. [36]
    The discretion reposed in the court pursuant to s 6(1) of the Succession Act and r 642 of the UCPR is broad and untrammelled. As Jerrard JA said in a different context, it is always necessary for a court to respect a testator’s wishes as the court assumes that the testator “thought that the person chosen was worthy of trust…” 

37. [37]
    In exercising discretion under s 6 and r 642, the court places significant weight upon the testator’s wishes, not only as to the identity of the executor or trustee, but the testator’s true intentions with respect of the disposition of his estate as set out in his Will. 
38. [38]
    The court may also have regard to the interests of the potential beneficiaries under the Will and under the alternate intestacy, in particular, whether any beneficiaries or potential beneficiaries or third parties may be prejudiced by the revoke of a grant of letters of administration on intestacy. 
39. [39]
    In assessing the potential prejudice, the affidavits of Ronald Edward Webster and Margaret Dawn Walsh are helpful as they detail the steps that have been taken in administration of the estate of the deceased, which are extremely limited. Mrs Walsh deposes that “very little was done to administer the estate” because she was advised by the Public Trustee that “I should not finalise the administration of the estate of my brother until after my Mother’s estate was finalised…”^[20]
40. [40]
    The limited steps which have been taken include the sale of a piggery lease on the outskirts of Barcaldine with the money being deposited into the estate bank account, transfer of the property to the administrators and the conduct of a “small grazing” operation outside of Barcaldine for which there is a complete set of accounts.
41. [41]
    In the present case, it is an important feature that no prejudice has been demonstrated on behalf of any beneficiary or potential beneficiary or creditor of the estate. The grantees of the letters of administration consent to support the application for revocation of the grant of letters of administration. Whilst the respondents as potential beneficiaries under an intestacy will be disadvantaged by their loss of interest in the estate, the disadvantage arises only because of the earlier mistake in accepting the advice that, as the document had been torn it could not admitted to probate as a Will. 
42. [42]
    In advancing its argument on election, the respondents refer to M P Management (Aust) P/L v Churven & Anor [2002] QSC 320 (“M P Management”) where Muir J said:^[21]

“[40]Mr Campbell's written submissions, under the heading ‘Estoppel’ asserted that the facts identified ‘amount to a waiver of section 366’. In oral submissions he identified the facts to which I referred above and submitted that they constituted a waiver of the applicant's statutory rights. In that regard he referred to the following passage from the judgment of Mason CJ in The Commonwealth v Verwayen –

‘The broad principles of election are not in doubt. They were formulated by this Court, under the title of waiver, in Craine v Colonial Mutual (1920) 28 CLR, at p 326; see also O'Connor v S P Bray Ltd (1936) 36 SR (NSW) 248, at pp 257-264. In Sargent v ASL Developments Ltd (1974) 131 CLR 634, at 641 Stephen J explained:

 “The doctrine only applies if the rights are inconsistent the one with the other and it is this concurrent existence of inconsistent sets of rights which explains the doctrine; because they are inconsistent neither one may be enjoyed without the extinction of the other and that extinction confers upon the elector the benefit of enjoying the other, a benefit denied to him so long as both remained in existence.”’” 

(Footnotes omitted.)

43. [43]
    M P Management concerned the termination of a contract for the sale of land in which Muir J determined that there was no election.^[22] In discussing the concept of election and waiver, Muir J said:^[23]

“[41] In Verwayen Mason CJ had said earlier -

‘According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right by acting in a manner inconsistent with that right: Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 at p 326; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at p 658. However, the better view is that, apart from estoppel and new agreement, abandonment of a right occurs only where the person waiving the right is entitled to alternative rights inconsistent with one another, such as the right to insist on performance of a contract and the right to rescind for essential breach: see Kammins [1971] AC at p 883. This category of waiver is an example of the doctrine of election.’

42. [42]
    The concept of waiver was discussed also by Toohey and Brennan JJ. Toohey J said -

‘Nevertheless, usage has sanctioned waiver as apt to signify “the legal grounds on which a person is precluded from asserting one legal right when he is entitled to alternative rights inconsistent with each other” and “the legal grounds on which a person is precluded from raising a particular defence to a claim against him”: Mason J in Sargent v ASL Developments Ltd (1974) 131 CLR 634, at p 655. While it has been said that the loss of a right in the circumstances postulated is “better categorised as ‘election’ rather than as ‘waiver’” (Lord Diplock in Kammins Co v Zenith Investments (1971) AC 850, at p 883), waiver is an appropriate term to describe the loss of a defence otherwise available to a defendant.’

43. [43]
    Brennan J, also after quoting from the reasons of Stephen J in Sargent v ASL Developments Ltd said -

‘Election consists in a choice between rights which the person making the election knows he possesses and which are alternative and inconsistent rights.’” (Footnotes omitted.)

44. [44]
    The applicant argues that the doctrine of election ought not apply to the law of probate and submits “the Respondents points to no authority applying the doctrine  of election to the law of probate”.^[24] As Mason J (as he then was) explained in Sargent v ASL Developments in respect of election:^[25]

“Essential to the making of an election is communication to the party affected by words or conduct of the choice thereby made and it is accepted that once an election is made, it cannot be retracted…No doubt this rule has been adopted in the interests of certainty and because it has been thought to be fair as between the parties that the person affected is entitled to know where he stands and that the person electing should not have the opportunity of changing his election and subjecting his adversary to different obligations.

A person confronted with a choice between the exercise of alternative and inconsistent rights is not bound to elect at once. He may keep the question open, so long as he does not affirm the contract or continuance of the estate and so long as the delay does not cause prejudice to the other side. An election takes place when the conduct of the party is such that it would be justifiable only if an election had been made one way or the other…”

45. [45]
    As may be observed from this extract, the concept of election has, at its heart, certainty and fairness between parties who are adversaries. In probate law, although the beneficiaries or potential beneficiaries may be adversaries and may be parties, the law is not primarily concerned with fairness as between beneficiaries but rather subject to the provisions of s 41 of the Succession Act, carrying out the intentions of the testator. 
46. [46]
    It is difficult therefore, in principle, to apply the doctrine of election to the law of probate.  The facts and circumstances constituting an election cannot bind a court’s broad discretion under s 6(1) of the Succession Act, however the same facts and circumstances may be relevant or highly relevant to the exercise of that discretion. Accepting, however, that the law of election does apply to the law of probate, then it is plain upon the facts that the applicant did not have knowledge of his ability to apply for probate of the torn document in 2013. That is, he did not have the knowledge of the alternative right,^[26] as he had been disabused of the same by the Public Trustee. It is my view therefore on the facts, election does not arise. 
47. [47]
    As I consider that the document is the Will of Mr Webster, and does express his true testamentary intention, I consider it is appropriate to exercise the jurisdiction under s 6(1) of the Succession Act and r 642 of the UCPR to revoke the grant of letters of administration made on 3 September 2013 and admit the document (Annexure A) to probate as the last Will and Testament of the deceased. 
48. [48]
    On the premise of the above, I order that: 

    1. The grant of letters of administration on intestacy to Margaret Dawn Walsh and Ronald Edward Webster on 3 September 2013 (SC No 439 of 2013) by the Supreme Court at Rockhampton be revoked pursuant to s 6 of the Succession Act 1981 (Qld) and r 642(1)(a)(iii) of the Uniform Civil Procedure Rules 1999 (Qld). 
    2. Subject to the formal requirements of the registry, Margaret Dawn Walsh and Ronald Edward Webster bring into the registry of this Honourable Court at Rockhampton the original grant of letters of administration (SC No 439 of 2013).
    3. That a copy of these reasons be placed on SC No 439 of 2013. 
    4. Subject to the formal requirements of the registrar, probate in common form be granted to Lionel John Walsh of the document dated 1 March 1996 being Exhibit A to the affidavit of Lionel John Walsh filed 10 August 2020 as the true and original last Will of the deceased.