De Jonge v Soar

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
DE JONGE v SOAR & ORS
[2024] SASC 88
Decision of Judge Bochner a Master of the Supreme Court
SUCCESSION - FAMILY PROVISION - PROCEDURE - DISCOVERY AND INTERROGATORIES
Discovery of previous wills
Uniform Civil Rules 2020 (SA); Inheritance (Family Provision) Act 1972 (SA); Succession Act 2006 (NSW), referred to.
Brennan v Mansfield [2013] SASC 83; Butler v Tiburzi [2016] SASC 108; Tiburzi v Butler [2017] SASCFC 89; Jones v Alessi [2018] SASC 110 ; Armalis v Kasselouris [2006] SASC 198; Amos v Hogg [2018] NSWSC 1226, considered.

DE JONGE v SOAR & ORS
[2024] SASC 88
CIVIL

This is an action brought by the applicant for further provision from the estate of the deceased. The applicant and the deceased had been in a domestic partnership from about twenty years at the time of the deceased’s death. The applicant has lost capacity and this action is brought by her litigation guardian, Mr Ellis. Mr Ellis is the applicant’s son. All of the affidavit material setting out the applicant’s claim has been affirmed by Mr Ellis.
At the time of his death, the deceased and the applicant were living in a property owned by the deceased. I will refer to this property as the estate property. Under the deceased’s will, the house and its contents go to Bruce Soar, who is the deceased’s son and the second respondent. Mr Soar is also left one half of the residue of the estate. The applicant is left the net income of the other half of the residue on trust for her lifetime. The trustee of the trust is Mr Soar.
I note that the applicant owns a number of properties from which she earns rental income. She also owns shares and her combined income from rent and dividends is about $84,000 each year.
Mr Ellis says that the applicant has told him that the deceased prepared three wills during his lifetime. He does not know the contents of his first will. The applicant told him that the deceased’s second will was prepared in 2011 and that in this will he left her the estate property and its contents.
Mr Ellis says that he is aware that the deceased prepared his final will approximately six months before his death, while he was in hospital. He says that he contacted Mr Soar about this and was told by Mr Soar that the deceased wished to change his will so as to leave the estate property to Mr Soar.
Mr Soar says that his father wanted to leave the estate property to him because of the applicant’s dementia. He says that the deceased told him that he wanted the applicant to be cared for during her lifetime but wanted his wealth to go to his own family rather than to the applicant’s children. He says that his father was of the view that the applicant was no longer able to live on her own; this view informed the intention he formed as to the disposition of his estate.
The applicant remains living in the estate property and all of the costs associated with the property are paid from the estate. I understand that it is Mr Soar’s position that the applicant will be able to live in the estate property without requiring her to pay any rent as long as it is safe for her to do so. He has taken no steps to have her vacate the property, nor does he intend to do so, as long as her dementia allows her to remain living alone in the property. He says that he has advised Mr Ellis that, should the applicant need to move into residential care, the funds in the testamentary trust would be available to be used for the refundable accommodation bond.
The applicant seeks further provision in the form of an absolute gift of the estate property and its contents or in the alternative, a portable life interest in the estate property and its contents.
The applicant now seeks discovery of the deceased’s previous wills.
The applicant’s position
The applicant says that, by deposing to the reasons for the deceased’s wish to change his will, the respondent has put these in issue, without deposing directly to the contents of the penultimate will. It can be inferred that under the penultimate will, the deceased disposed of the estate property in a different way to the last will. The applicant says that her case is that the estate property was left to her in the penultimate will; as a result, the penultimate will is directly relevant to the issues in dispute in this action.
The applicant says that it is her case that the deceased had a moral duty to leave the estate property to her. She says that, in determining this question, the Court is entitled to take into account evidence of what the deceased considered his moral duty to be at the time that he made the penultimate will. She will submit to the Court that a comparison between the provision in the penultimate will and that in the final will, demonstrates that the deceased’s moral duty miscarried in his final will.
The applicant says that in examining the totality of the relationship between her and the deceased the Court will be assisted by an examination of what the deceased considered his moral duty to be. Evidence of what he considered that to be at an earlier time is evidence that is directly relevant to this question.
The applicant further submits that, in determining the deceased’s moral duty, a relevant consideration is her expectation created by the deceased. As a result, the deceased’s previous wills are relevant to this question. In making this submission, the applicant relies on the case of Brennan v Mansfield,[1] where Stanley J said:
Finally, the plaintiff had a reasonable expectation that he would be the principal, if not the sole, beneficiary of the deceased’s estate. I am satisfied that the plaintiff’s expectation was created, at least in part, by statements made to him over the years by the deceased. I admitted evidence of those statements not for the purposes of establishing their truth, but merely for the purposes of establishing the basis of the plaintiff’s expectation. I find the plaintiff’s expectation was reasonably held. I find that the plaintiff did not act on his expectation in the sense that he did anything or refrained from doing anything in expectation of a benefit from the deceased’s estate. On the contrary, I consider that his acts and omissions with respect to the deceased solely were the result of the affection and responsibility he felt for the deceased. Nonetheless, the authorities establish that the plaintiff’s expectations are a relevant consideration in the determination of whether adequate provision has been made for his proper maintenance and advancement in life.
(footnotes omitted)
[1] [2013] SASC 83 at [61].
The applicant relies on a number of other South Australian cases, where the terms of previous wills are discussed.[2] She also relies on cases from other jurisdictions. One of the cases on which she relies is that of Amos v Hogg,[3] where Hallen J says:
Whilst the last sentence quoted is, undoubtedly, correct so far as the determination of the principal questions for determination under the Act, the earlier testamentary intentions of the deceased, as disclosed in a prior Will, or Wills, are also relevant, particularly if there was a long standing testamentary intention revealed by the earlier Will or Wills, and where there has been an incident that has, or incidents that have, caused a change to those long held testamentary intentions.
It may also demonstrate the recognition, by the deceased, at the time, of a degree of testamentary duty owed by her towards the Plaintiff. Also, as will be read, one of the matters that to which the Court may have regard, is “any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person”: s 60(2)(j) of the Act.[4]
[2] Including Butler v Tiburzi [2016] SASC 108, Tiburzi v Butler [2017] SASCFC 89, Jones v Alessi [2018] SASC 110 and Armalis v Kasselouris [2006] SASC 198.
[3] [2018] NSWSC 1226.
[4] Ibid, [61] – [61].
The applicant says that the deceased’s penultimate will demonstrates what he believed his moral duty to her was at that time; this will assist the trial judge in determining whether the change made to his last will was in breach of the moral duty that he owed to her.
The applicant says that, in any event, the deceased’s previous wills are directly relevant to the trial judge’s consideration of whether the deceased fulfilled his moral duty to her. The previous wills will assist to prove or disprove the matter in dispute on the pleadings: that is, whether the deceased, by his last will, made adequate provision for her.
The respondent’s position
Mr Soar says that the deceased’s last will was made in the context of the significant assets held by the applicant, and of the fact that the applicant’s daughter had died since he made his penultimate will, as a result of which the applicant stood to inherit approximately $500,000. It was also made against the background of the applicant’s loss of capacity, which has led to the establishment of the testamentary trust for her.
Mr Soar says that if the applicant’s application for discovery of previous wills is allowed, this will lead to similar requests in all cases. He rejects the application of the authorities from other states, which rely on legislation in quite different terms to the Inheritance (Family Provision) Act 1972 (SA) (“the Act”). In particular, he says that the relevant legislation in New South Wales specifically states that the testamentary intentions of the deceased are matters that can be taken into consideration by the Court.[5] There is no equivalent section in its South Australian counterpart.
[5] Section 60(2)(j) Succession Act 2006 (NSW).
Mr Soar submits that, while the deceased’s final will and his reasons for the terms of his final will are directly relevant, his prior wills are not directly relevant and, therefore, are not subject to discovery. The reference by Mr Ellis to the terms of the deceased’s penultimate will, in the affidavit in support of the originating application is not sufficient to make it directly relevant to the issue in dispute between the parties.
Mr Soar, in fact, objects to the admission into evidence of Mr Ellis’ statements about the deceased’s penultimate and final wills, on the ground of hearsay and double hearsay. The evidence dealing with the contents of the deceased’s penultimate will is evidence of what the applicant told Mr Ellis about what the deceased had told her about the content of this will. The evidence about the final will is evidence of what Mr Soar told Mr Ellis about what the deceased had told Mr Soar. Mr Soar’s own evidence about this was given in response to Mr Ellis’ evidence and is also hearsay evidence. If none of the hearsay evidence is admitted, then there is no basis for the application.
The earlier wills of the deceased are not, on their own, relevant to the applicant’s application for further provision from the estate of the deceased. There is no general principle to this effect. The South Australian decisions relied on by the applicant no doubt discuss the terms of prior wills made by the deceased in those actions, but they do not amount to a point of principle that previous wills are directly relevant and must be disclosed. The content of the earlier wills is not directly in issue, nor do they prove or disprove (or tend to do so) a matter which is in dispute. The content of a prior will says nothing about the testator’s moral duty to the applicant.
Mr Soar says that the applicant has not deposed to the relevance of the penultimate will to the matters in dispute in this action. The applicant appears to be relying on no more than a general principle that earlier wills are discoverable. There is no such general principle in South Australia. The South Australian cases relied on by the applicant do not establish such a principle; they amount to no more than examples of cases where the terms of previous will have, in fact, been in evidence, without any discussion about the need for such evidence to be available to the Court. They establish no point of principle that the terms of previous wills are directly relevant (or indeed, indirectly relevant) and must be available to the Court.
Mr Soar says that while moral duty and obligations may be relevant depending on the circumstances of the case, they cannot become a substitution for the words of the Act, which require determination of the two stage test. The contents of previous wills does not inform the answer to either of the stages of the test.
Mr Soar submits that the applicant has conflated a prior testamentary disposition with a promise made by a testator. He says that these are different concepts that should not be confused. The fact that the deceased may have made a previous will in which he left the estate property to the applicant is not the same as the deceased having promised the estate property to the applicant.
Mr Soar says that, in all of the circumstances, the application for discovery of the deceased’s penultimate will should be dismissed.
Consideration
I consider that the hearsay affidavit material relied on by the applicant is admissible in this application. The Uniform Civil Rules 2020 (“the UCR”) allow the use of hearsay material in affidavits to be tendered at directions hearings.[6] The definition of “directions hearing” in the UCR is broad enough to encompass an argument on an interlocutory application.[7]
[6] UCR 101.4.
[7] UCR 2.1(1).
While I consider that the hearsay material is admissible, I do not consider that it is of sufficient weight, by itself, to make the penultimate will of the deceased (or, indeed, any will other than his last will) a discoverable document in this action. The fact that the deceased, a person of advanced years, had made previous wills is not in any way surprising. Nor is it surprising that, given that more than one will was made by the deceased, those wills are in different terms.
I do not consider that the South Australian cases relied on by the applicant provide support for the existence of a rule or principle that previous wills are discoverable or relevant in a claim brought pursuant to the Act. While the judges in those cases had before them previous wills of the deceased, to which they referred, there is no suggestion that the decision reached was in any way informed by the disposition of property in those earlier wills. Nor is there any suggestion that the discovery of those wills was ever in dispute between the parties. The fact that the wills were put into evidence by consent does not lead to a conclusion that they were in fact discoverable or in any way probative of the issues in dispute. The mere fact that, in cases deciding applications brought pursuant to the Act, one or other party has tendered previous wills of the deceased, does not lead to the conclusion that previous wills must always be discovered or brought before the Court in one way or another. Where the question is in dispute between the parties, the usual principles will apply.
I also do not consider that the authorities deriving from New South Wales are of any assistance to the applicant. Section 60 of the Succession Act 2006 (NSW) specifically provides:
(1)The Court may have regard to the matters set out in subsection (2) for the purpose of determining--
(a)     whether the person in whose favour the order is sought to be made (the

"applicant"
) is an eligible person, and
(b)     whether to make a family provision order and the nature of any such order.
(2)     The following matters may be considered by the Court--
…
(j)      any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
…
This provision is not replicated in the Act. In the circumstances, I do not consider that the New South Wales cases provide any assistance in deciding whether prior wills are discoverable in South Australia.
While I accept that the deceased’s moral duty to the applicant is a relevant factor to take into consideration in determining whether she is entitled to further provision from the deceased’s estate, I do not consider that the provision made by the deceased’s penultimate will will assist the Court in determining where that moral duty lay. The penultimate will was made ten years prior to the deceased’s death and nine years before he made his last will. It was made at a time before the applicant lost capacity and before she inherited a substantial sum of money from her daughter. There is no way of knowing if the deceased considered that he had a moral duty in 2011 to leave the estate property to the applicant or that he simply chose to do so despite that gift exceeding his moral duty (or, indeed, being less than his moral duty required).
The applicant has not relied on any authority or evidence which says that the deceased’s own idea of his moral duty can be ascertained by the dispositions in his penultimate (or indeed, last) will. The deceased may have determined to be more generous than his moral duty required, or less. In the absence of any evidence other than the penultimate will, it is hard to form any conclusion about what the deceased considered his moral duty to be in 2011.
I do not consider that the deceased’s penultimate will, or any will other than his last will, is a discoverable document in this action. It will not tend to prove or disprove any matter in issue between the parties. It will not determine whether the applicant has been left without adequate provision or, if she has been so left, what adequate provision would amount to. This is not to say that the previous will or wills of a testator will not be relevant in other cases. Whether previous wills are discoverable will depend on the circumstances of each case.
Nor do I consider that the deceased’s earlier will provides evidence of the applicant’s expectation. It provides evidence of no more than the deceased’s testamentary intention at the time that the will was executed.
FDN 23 is dismissed. I will hear the parties on the question of costs.

[2024] SASC 88

5 July 2024