BECHER v ROGERS

[2020] SASC 24

Supreme Court of South Australia

(Testamentary Causes Jurisdiction)

BECHER v ROGERS

[2020] SASC 24

Judgment of The Honourable Justice Stanley (ex tempore)

14 February 2020

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - PROCEDURE - SOUTH AUSTRALIA - PROOF IN SOLEMN FORM

The plaintiff sought admission to probate of a will in solemn form, notwithstanding that the execution of the will did not satisfy the requirements of s 8(c) of the Wills Act 1936 (SA).

Held:

1.  The will should be admitted to probate notwithstanding the defective execution.

Wills Act 1936 (SA) s 8(c), s 12(2), referred to.

BECHER v ROGERS
[2020] SASC 24

Testamentary Causes Jurisdiction

1. STANLEY J: The Court has before it an application for admission to probate of a will in solemn form. The will does not satisfy the requirements of s 8(c) of the Wills Act 1936 (SA) (the Act). The plaintiff seeks the admission to probate of the will pursuant to s 12(2) of the Act. The application is not opposed.

2. The Court has heard evidence from the defendant and received affidavits of the defendant and his wife.  The plaintiff, who is the named substituted executor under the terms of the will that is sought to be propounded, also gave evidence before me. 

3. The evidence satisfies me that the will was not executed in accordance with the requirements of s 8(c) of the Act. It was not witnessed by two witnesses present at the same time.

4. The defendant, who was an acquaintance of the deceased and who prepared the draft will and attended upon the deceased on 25 April 2011 for the purposes of the deceased executing his will, has given evidence that he drafted the will in accordance with instructions that had previously been given to him by the deceased, that he prepared a draft in accordance with those instructions, and that on 25 April 2011 he attended on the deceased with his wife and in the presence of the deceased's then partner Nancy Joy Becher.   He gave evidence that the deceased appeared to read through the draft on that occasion and to indicate his approval of the draft.

5. Before the deceased executed the will, the defendant left the room.  When he returned to the room, the deceased was no longer in the room.  The defendant gave evidence that he was told that the deceased had gone into his bedroom.

6. The defendant observed that the deceased had signed the will.  On the basis of the evidence of the defendant I am satisfied that the will is signed in the testator's clause and on each page with the signature of the deceased.  On each page of the will there appears the signature of the defendant and his wife purportedly as witnesses.

7. I am satisfied that in fact the defendant did not witness the signing of the will by the deceased and accordingly the will does not satisfy the formal requirements of s 8(c) of the Act.

8. Nonetheless, on the basis of the evidence I have heard I am satisfied that the will does express the testamentary intentions of the deceased and he intended that document to constitute his will.

9. The only issue that is extant in relation to the application for the admission of the will to probate in solemn form is the question of proper execution.  For the reasons I have explained, I am satisfied that it is appropriate that the will should be admitted notwithstanding the defective execution of the will.

10. For those reasons I am prepared to make an order in terms of the minutes handed up by Mr Magarey and initialled and dated by me.  I should make clear that those minutes are as amended by me to change the word “cost” to “costs”.