SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION
The plaintiff is the sister of the first defendant. They are the two surviving children of their mother who died on 8 July 2007. Probate of the deceased’s will dated 21 January 1993 was granted on 10 December 2007. The first defendant now seeks to have an additional unsigned document dated 12 May 1994 admitted to probate, which he contends operates as a codicil to the deceased’s earlier will.
The principal asset of the deceased’s estate is a property situated at 12 Forrest Avenue, Marino. The dispute in this matter arises out of the first defendant’s continued occupation of the Marino property without recompense to the deceased’s estate.
The issues to be determined were confined, by order of a Master made on 5 December 2013, to the legal status of the May 1994 document and the proper construction of the will.
In regards to the May 1994 document, the parties are in dispute as to whether it should be admitted to probate pursuant to s 12(2) of the Wills Act and, if that question is answered in the affirmative, what effect, if any, the document has on the terms of the will.
As to the will, the parties are in dispute over the proper construction and application of clause 3[a] of the deceased’s will purporting to give to the first defendant the Marino residence ‘until [the first defendant] has been working and/or employed on a full time basis for a continual period of three [3] years’. More specifically, the dispute relates to whether the employment period set out in the will is to commence from the date of the will or from the date of the death of the deceased and, having regard to the determination of that issue, whether the period has elapsed.
Held:
Admission of the May 1994 document to probate:
(1) The May 1994 document exhibits sufficient testamentary intention to be admitted to probate pursuant to s 12(2) of the Wills Act.
Effect of the May 1994 document upon the terms of the will:
(2) The measure of the gift contained in the May 1994 document is uncertain. As a result, the entire gift fails and the will stands unaltered.
Proper construction of clause 3[a] of the will:
(3) The period referred to in clause 3[a] of the will commences to run from the date of the death of the deceased. Accordingly, the period referred to has not elapsed.
Costs:
(4) Further consideration stood over until parties have had time to consider these reasons.
Wills Act 1936 (SA) 3(1), 8, 12(2), 27; D M Haines QC, Construction of Wills in Australia (Lexis Nexis Butterworths, 2007); Williams on Wills (Butterworths, 9th ed, 2008),…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Boettcher v Driscoll [2014] SASC 86
Case
[2014] SASC 86
Decision Date
CaseChat Overview and Summary
In the matter of Boettcher v Driscoll, the court was tasked with interpreting the will of a deceased individual and determining the legal status of a May 1994 document. The dispute primarily revolved around whether the May 1994 document should be admitted to probate and its proper construction, as well as the interpretation of certain clauses within the will. The court was also required to decide on the revocation of parts of the will based on the construction of the May 1994 document.
The key legal issues the court had to address included the admissibility of the May 1994 document to probate, its proper construction, and the impact of this construction on the will's clauses. The court had to determine whether extrinsic evidence could be used to interpret the May 1994 document and the will, and if so, to what extent. Additionally, the court needed to ascertain whether the May 1994 document revoked any parts of the will and whether certain clauses of the will should be interpreted in light of the May 1994 document.
The court found that the May 1994 document should be admitted to probate as it was intended to have testamentary force. However, the gift contained in the May 1994 document was deemed uncertain and therefore failed. The court concluded that the will remained unaltered by the May 1994 document. Regarding the interpretation of clause 3(a) of the will, the court ruled that the period of employment referred to in the clause commenced from the date of the deceased's death, not the date of the will. The court also found that the period had not elapsed, meaning that the employment condition in the will was still in effect.
The court's final orders confirmed that the May 1994 document was admissible to probate, the gift within it was uncertain and therefore failed, the will remained unaltered, and the period referred to in clause 3(a) of the will commenced from the date of the deceased's death. The court further ruled that the period had not elapsed.
Orders
Orders of the court
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Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Additional causes of action were raised by cross-action filed by the first defendant; however, by order of a Master made on 5 December 2013 the trial before me was limited to the interpretation of the will and the determination of the legal status of the May 1994 document. The Evidence Both the plaintiff and first defendant gave evidence. A number of affidavits and other documents, including the file in which the will and May 1994 document were located, were also tendered. It is important to clarify at the outset the use that can be made of the evidence presented by the parties. On the issue of whether the May 1994 document ought to be admitted to probate, evidence extrinsic to the document itself of the circumstances in which it was created and the subjective intentions of the deceased is relevant and admissible[1]. That is, evidence can be adduced to prove that the deceased intended the May 1994 document to have testamentary force. [1] See In the Estate of Roberts (1985) 38 SASR 324 at 326. However, when determining the proper construction of the May 1994 document and the will, the court is to consider issues of construction from the position of the testator at the time of the making of each of those documents. Evidence may be called to remove ambiguity and provide context, that is, to explain what the deceased has written[2]. However, extrinsic evidence is not admissible for the purpose of showing merely what the deceased intended to write[3]. [2] Re the estate of Tkaczuk (deceased); Dobryden v Wagner [2004] SASC 413; King v Perpetual Trustee Co Ltd (1955) 94 CLR 70; Allgood v Blake (1873) LR Ex 160.[3] Lutheran Church of Australia v Farmers’ Co-operative Executors and Trustees Ltd (1970) 121 CLR 628 per Windeyer J at 648. The evidence of the plaintiff and first defendant focussed predominantly on each of their relationships with their mother, the deceased, and on their limited knowledge as to the circumstances surrounding the creation of both the will and the May 1994 document. The evidence of the plaintiff and first defendant was not contradictory. Both spoke of having good relationships with the deceased. That said, and this is in no way a criticism, it is apparent that the first defendant spent more time with the deceased as, unlike the plaintiff, he has remained in South Australia for the majority of his life. Indeed, he gave evidence that for most of the time between 1990 and 1993, from 1997 until 2002 and from 2004 until the death of the deceased, he resided with her in the residence at Marino. Although she lived interstate, the plaintiff kept in regular contact with the deceased, who would travel to stay with her for up to four months at a time. Neither the plaintiff nor the first defendant were contemporaneously aware that the deceased had instructed solicitors to prepare her will. Similarly, neither were contemporaneously aware that the deceased had prepared the May 1994 document. The plaintiff first became aware of the will and the May 1994 document when she was assisting the deceased to prepare a tax return in 2003. Both the will and May 1994 document were located together in a concertina file and were filed in the section marked ‘W’. However, the plaintiff stated that after first sighting them in 2003, she never discussed the will or the May 1994 document with the deceased.
Decision
Reasons for decision
For these reasons, I am of the opinion that, as a matter of construction, clause 3[a] of the will must be read such that the period of employment referred therein commences from the date of the death of the deceased. Conclusion The issues raised in this matter, and my conclusions in respect of each of them, are therefore as follows:1. Should the May 1994 document be admitted to probate under section 12(2) of the Act?Yes.2. What, on its proper construction, is the gift contained in the May 1994 document?It is gift of a life interest by way of limitation, the measure of which is uncertain. The entire gift fails as a result of the uncertainty.3. Having regard to the proper construction of the gift contained in the May 1994 document, what parts of the will are revoked?The will stands unaltered.4. On the proper construction of the will, does the period referred to in clause 3(a) commence from the date of the will or the date of the death of the deceased?The period referred to in clause 3(a) of the will commences to run from the date of the death of the deceased.5. Has the period referred to in clause 3(a) of the will elapsed?No.