deBondt v Marshall - [2012] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
DEBONDT v MARSHALL & ANOR
[2012] SASC 40
Judgment of The Honourable Justice Gray
15 March 2012
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - OTHER WILLS, CODICILS OR WRITINGS
Application pursuant to section 12(3) of the Wills Act 1936 (SA) for an order that an informal document revokes the 2005 will of the deceased - whether the requirements of section 12(3) are met.
Held: 2005 will of the deceased revoked and is not to be admitted to probate - deceased died intestate.
Wills Act 1936 (SA) s 8, s 12(3) and s 22; Supreme Court Civil Rules 2006 (SA) r 205; Probate Rules 2003 (SA) r 64A, referred to.
Re Frame [2007] SASC 164; In the Goods of Hubbard (1865) 1 P & D 53; In the Goods of Fraser (1869) 2 P & D 40; In the Goods of Durance [1872] LR 2 P & D 406; In the Goods of Toomer v Sobinska [1907] P 10; Re Spacklan’s Estate [1938] 2 All E R 345; In re Bradley (deceased) [1956] NZLR 614; In the Estate of Mary Carmel Deslandes, Public Trustee v Catherine Margaret Gibbons (Unreported, SCGRG 453 of 1992, S3849); Timbury v Coffee (1941) 66 CLR 277, considered.

DEBONDT v MARSHALL & ANOR
[2012] SASC 40
Testamentary Causes Jurisdiction
GRAY J:

This is an application made pursuant to section 12(3) of the Wills Act 1936 (SA) seeking an order that a document, notwithstanding that it has not been executed with the formalities required by the Wills Act,[1] expresses an intention to revoke a will that might otherwise have been admitted to probate as a will of the deceased.[2]
[1] Specifically, those contained in section 8 of the Wills Act 1936 (SA).
[2] This matter was initiated by summons pursuant to Rule 205 of the Supreme Court Civil Rules 2006 (SA). Although this option is available, a less expensive and perhaps preferable procedure would be undertaken pursuant to Rule 64A of the Probate Rules 2003 (SA). When the Probate Rules were amended on 1 March 2005, rules were incorporated to provide a procedure for the revocation of a document under section 12(3). These are embodied in Rule 64A. The practice of reciting the document of revocation in the grant is also now enshrined in Rule 64A(b): see Re Frame [2007] SASC 164.
The deceased, Patricia Louisse deBondt, died in late February 2007, her body being discovered on 28 February 2007. The deceased left a formal will dated 8 February 2005, where she appointed Loren Maree Marshall and Leonie Jaycinth Van de Gumster, the defendants, as her executors. The will contained a revocation clause revoking all previous wills. The will devised real estate as to one half to Ms Marshall, one quarter to the deceased’s daughter Dianne Louisse deBondt and one quarter to the deceased’s son Shane Robert deBondt. By the will, certain items were given to Ms Marshall and the residue distributed equally between Ms Marshall, and the deceased’s two children, Ms deBondt and Mr deBondt. Ms Marshall, Ms deBondt and Mr deBondt all survived the deceased.
I note that the 2005 will wrongly identifies Ms Marshall as the deceased’s daughter. Ms Marshall was the biological child of the deceased, but was later adopted by another person, and accordingly is by virtue of the adoption not the lawful daughter of the deceased.
The 2005 will was prepared by Ryans Lawyers in Mount Gambier. In about the week commencing 12 February 2007, the deceased telephoned the offices of Ryans Lawyers indicating that she had made a new will and enquired what ought to be done in respect of the 8 February 2005 will, which she had left in the safekeeping of Ryans Lawyers. In response, the deceased was told that Ryans Lawyers would need an authority from her so that they could destroy the will they held.
About a week later, a document was delivered to Ryans Lawyers. This document, which I shall refer to as the 2007 document, is a plain, unlined piece of white paper of approximately A5 size. It has at one time clearly been folded in four, with the following words, handwritten in blue pen, appearing on one of the quarter panels:
Mr Ryan
at P.O. Box 1375
Mt Gambier
On the other side of the paper, written across two panels appears the following words, handwritten in blue pen:
Pat de Bondt, P.O Box 662
I have made a new will
thank you for your services
I here by cancell [sic] My Old Will
Pat deBondt[3]
[3] This appears as a signature.
Section 22 of the Wills Act provides that a will or codicil will not be revoked otherwise than by the following:
(a) by marriage or termination of marriage as provided by this Act; or
(b) by another will or codicil executed in the manner required by this Act; or
(c)by some writing declaring an intention to revoke the will or codicil or the part of the will or codicil and executed in the manner in which a will is required by this Act to be executed; or
(d)by the burning, tearing or otherwise destroying the will or codicil or the part of the will or codicil by the testator or by some person in the testator's presence and by the testator's direction with the intention of revoking it.
The 2007 document does not comply with the formalities provided by section 22 of the Wills Act for revocation of a will, in that it has not been signed by the deceased in the presence of two witnesses.[4] Section 22 expresses itself to be subject to section 12(3) of the Act, which provides:
(3)If the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses an intention by a deceased person to revoke a document that might otherwise have been admitted to probate as a will of the deceased person, that document is not to be admitted to probate as a will of the deceased person.
[4] The relevant formal requirements are to be found in section 8 of the Wills Act 1936 (SA), which provides:
8—Requirements as to writing and execution of will
Subject to this Act, no will is valid unless it is in writing and executed in the following manner:
(a)      it must be signed by the testator or by some other person in the testator's presence and by     the testator's direction; and
(b)      it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
(c)      the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)      the witnesses must attest and sign the will (but no form of attestation is necessary); and
(e)      the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).
The requirements of section 12(3) are clear. If a document does not comply with formalities required the Act, and it expresses an intention by a deceased person to revoke a testamentary document that might otherwise have been admitted to probate as a will of the deceased, that testamentary document is not to be admitted to probate as a will of the deceased. That is, section 12(3) provides that a document expressing sufficient relevant intention to revoke an otherwise valid testamentary document, acts as a bar to the admission to proof of the other testamentary document, despite the revoking document being an informal document.
In the present proceeding, if the 2007 document is held to revoke the 8 February 2005 will, and there is no later will, then the deceased died intestate. The only person who would be adversely affected by the estate being administered in intestacy rather than the provisions of the 2005 will, is the first defendant, Ms Marshall. She has consented to the within application. Consent, however, is not sufficient. I must be satisfied that the requirements of section 12(3) have been met.
By affidavit dated 23 February 2012, Denise Anne Tobin, a law clerk at Ryans Lawyers, deposed to receiving in the week of 12 February 2007 the earlier referred to telephone call from the deceased advising that she had made a new will and that Ryans Lawyers were holding her old will. The deceased asked what she was meant to do about the old will. Ms Tobin deposes to having advised the deceased that the firm needed an authority signed by her authorising the firm to destroy the will that was held in the deed safe and that she could post such an authorisation to the office. Ms Tobin deposes that within a week or so, she received the 2007 document. This document was placed on Ms Tobin’s desk by another employee of the firm, Lesley Clarke, who said that “a lady had dropped [the 2007 document] in at the front counter.”
Thorough and proper searches have been undertaken for further testamentary documents of the deceased. Following the discovery of the death of the deceased, South Australia Police and the deceased’s family conducted searches of the deceased’s papers and records. Advertisements were placed in the local newspaper. The solicitor for the plaintiff made written enquiry of every law firm and every sole practitioner practising in the South East region of South Australia, in addition to enquiry of the Public Trustee’s Office and of Australian Executor Trustees. Finally, the solicitor for the plaintiff made enquiry of the Savings and Loans Credit Union, being the financial institution where the deceased held her accounts. Two wills prior to the 2005 will were located, but no testamentary documents later than the 2005 will have been found. In particular the “new will” referred to by the deceased has not been found.
In Re Frame,[5] I had occasion to consider the background to the enactment of section 12(3) of the Wills Act. In that decision, I observed:[6]
It was at one time held that a writing expressing an intention to revoke former wills, and duly executed, was entitled to probate, although it contained no disposition of the testator’s property and appointed no executor.[7] But it has since been decided that a writing declaring an intention to revoke, by which the deceased in no way disposes of any property, is neither will nor codicil and cannot be admitted to probate.[8]
[5]    Re Frame [2007] SASC 164.
[6]    Re Frame [2007] SASC 164, [25].
[7]    In the Goods of Hubbard (1865) 1 P & D 53.
[8]    In the Goods of Fraser (1869) 2 P & D 40.
I reviewed a number of the decisions which provided the background to enactment of section 12(3),[9] before turning to the decision of Prior J in In the Estate of Mary Carmel Deslandes, Public Trustee v Catherine Margaret Gibbons.[10] It is worth repeating the summary of that decision. There, Prior J addressed the question of whether section 12(2) could be invoked in combination with section 22(c) where the revocation had not been executed in the manner in which a will is required to be executed. The deceased made a will in 1956 appointing her husband and a solicitor to be her executors and left her entire property to her husband but in the event of him predeceasing, her mother, sisters and brothers were to receive sums of money, with the residue going to various named charities. Her husband predeceased her. In 1981, after his death, the deceased in the presence of her sisters wrote “cancelled” on the first page of the will followed by the date and her signature. She also drew various lines through the will and wrote the words “The Public Trustee” above her husband’s name in the appointment clause and at the top of the first page she wrote, “New will to be made by Public Trustee” (“the 1981 writings”). It was argued that by reading section 22(c) and (d) read in conjunction with section 12(2) the will was revoked.
[9] For example, see In the Goods of Durance [1872] LR 2 P & D 406; In the Goods of Toomer v Sobinska [1907] P 10; Re Spacklan’s Estate [1938] 2 All E R 345; In re Bradley (deceased) [1956] NZLR 614.
[10] In the Estate of Mary Carmel Deslandes, Public Trustee v Catherine Margaret Gibbons (Unreported, SCGRG 453 of 1992, S3849).
Prior J held that the 1981 writings could not be admitted to probate as they were not intended to constitute her will. Her testamentary intentions were not embodied in the 1981 writings alone or in conjunction with the 1956 will. In the Judge’s opinion section 22, by invoking the language of section 8 – by speaking of execution in the manner required by the Wills Act – denied alternatives by denying revocation “otherwise than” by the means identified in paragraphs (a), (b), (c) and (d). Prior J pointed out that New South Wales “had made the law there plain” and that “Perhaps our Parliament should do the same”. Prior J pronounced for the 1956 will in solemn form.
As a consequence of the observations of Prior J, Parliament enacted section 12(3). The subsection was introduced by the Wills Act Amendment 1994 (SA), which came into operation on 2 June 1994.
The Court is required to consider whether the 2007 document expressed an intention by the deceased to revoke, in this case, the deceased’s 2005 will, notwithstanding that the 2007 document had not been executed in accordance with the formalities as required by section 22(c) of the Wills Act. As earlier recorded section 22 is expressed to be subject to section 12(3).
In my view, the intention expressed on the face of the 2007 document is clear. The evidence provided by Ms Tobin supports this intention. Following the telephone enquiry as to what should be done with the old will, the 2007 document was delivered to the firm of solicitors who prepared the will and were storing that will. The 2007 document states that a new will has been made and that the old will be “cancelled”. The 2007 document is signed, but not dated or witnessed. There is a strong inference that it was the deceased who made the telephone call and who delivered the 2007 document to Ryans Solicitors. As set out above, extensive searches have been conducted to find a later will, but without success.
A person must have testamentary capacity to make or revoke a will.[11] There is no suggestion that the deceased lacked capacity at the time the 2007 document was prepared.
[11] Testamentary capacity exists where a person fulfils the requirements identified by Rich ACJ in Timbury v Coffee (1941) 66 CLR 277 at 280:
The factors of competency are that the party must know what he is about, have sense and knowledge of what he is doing and the effect his dispositions will have, knowledge of what his property was, and who those persons were that then were the objects of his bounty.
I am satisfied that the 2007 document has not been executed with the formalities required by the Wills Act. In the above circumstances, I have little hesitation in concluding that the 2007 document expresses an intention to revoke the 2005 will that might otherwise have been admitted to probate as a will of the deceased. In these circumstances, as the 2005 will has been revoked, it is not to be admitted to probate. Accordingly, the deceased died intestate.