Elton v Public Trustee

Case [2014] SASC 149

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

ELTON v PUBLIC TRUSTEE

[2014] SASC 149

Judgment of The Honourable Justice Stanley

14 October 2014

SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS  - WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - ALTERATION AND REVOCATION OF GRANTS - GENERALLY

SUCCESSION - MAKING OF A WILL - REVOCATION  - METHODS OF REVOCATION

SUCCESSION - MAKING OF A WILL - EXECUTION

On 22 February 1991 Donald Kerry Walker (the deceased), made a will.  The will appointed the Public Trustee as the executor of the deceased’s estate.  Under the will the sole beneficiary of the deceased’s estate was his nephew.  The deceased died on 16 December 2010.  His nephew had predeceased him.  On 19 July 2011 the Public Trustee obtained a grant of probate of the deceased’s will. 

The plaintiff seeks orders revoking that grant of probate and the admission to probate of a document entitled “Irrevocable Order” as the last will and testament of the deceased.  The application seeks ancillary orders that the plaintiff be appointed the sole executor of the estate, or in the alternative, that he be granted letters of administration. 

The plaintiff’s case is based on an allegation that in or about 1996 the deceased created the irrevocable order. The plaintiff alleges this document should be admitted to probate as a lost and informal “will” pursuant to s 12 of the Wills Act 1936 (SA) as the last expression of the deceased’s testamentary intentions. Neither the original nor a copy of the document has been located.

Whether the Irrevocable Order existed.  Whether the Irrevocable Order revoked all previous wills. Consideration of the principles relating to lost wills.

Held (dismissing the plaintiff’s claim):

1.  Sometime in 1996 the deceased prepared a document (at [47]).

2.  The evidence relating to the terms of the document is inconsistent and ultimately unreliable (at [50] - [60]).

3.  The document did not revoke or extinuish the 1991 will (at [58] - [61]).

Wills Act 1936 (SA) s 12; Family Relationships Act 1975 (SA), referred to.
Re Estate of Hall (Deceased) [2011] SASC 117; Cahill v Rhodes [2002] NSWSC 561; In the Estate of Ralston (Unreported, Supreme Court of New South Wales, 12 September 1996); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; Briginshaw v Briginshaw (1938) 60 CLR 336; Orifici v Orifici [2007] WASC 74; Dalton v Dalton (Unreported, Supreme Court of Western Australia, 24 September 1997); Dolan v Dolan [2007] WASC 249; Gruzdeff v Lough (Unreported, Supreme Court of New South Wales, Hodgson J, 22 August 1997); Whiteley v Clune (No 2) (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); Payten v Perpetual Trustee Company [2005] NSWSC 345; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535; Welch v Phillips [1836] 12 ER 828; McCauley v McCauley (1910) 10 CLR 434; In the Estate of Gibbs [2012]…

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Elton v Public Trustee [2014] SASC 149
Case
[2014] SASC 149
Decision Date

CaseChat Overview and Summary

In the matter of Elton v Public Trustee, the plaintiff sought to establish that a document created by the deceased in 1996 was intended to revoke or alter his 1991 will, thereby providing the plaintiff with a share in the estate. The case was heard in the Supreme Court of South Australia. The primary issue before the court was whether the document prepared by the deceased in 1996 had testamentary effect, effectively revoking or modifying the 1991 will. Additionally, the court needed to determine if the plaintiff had successfully rebutted the presumption of revocation of the 1991 will.

The court analysed the evidence presented and concluded that while the deceased had indeed prepared a document in 1996 expressing a wish for the plaintiff to benefit from his estate, there was no clear evidence that this document was intended to have legal effect or to revoke the 1991 will. The court found that the plaintiff had not discharged the onus of proving that the 1996 document had testamentary intent. Furthermore, the court was not persuaded by the plaintiff's argument that the presumption of revocation should be reconsidered, stating that any such change in the law should be done by a higher court or through legislative action.

The court dismissed the plaintiff's claim, finding that the 1996 document did not revoke or alter the 1991 will. The court further indicated that it would hear arguments from both parties regarding the costs of the proceedings. This decision underscores the importance of clear testamentary intent and the rigorous standards required to successfully challenge the presumption of revocation in will disputes.

Orders

Orders of the court

Held (dismissing the plaintiff’s claim):1. Sometime in 1996 the deceased prepared a document (at [47]).2. The evidence relating to the terms of the document is inconsistent and ultimately unreliable (at [50] - [60]).3. The document did not revoke or extinuish the 1991 will (at [58] - [61]).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For these reasons I am further relieved from the necessity to consider the plaintiff’s submission that the existence of the presumption of revocation should be reconsidered. In case this matter goes further I would indicate that this is a submission I would not have accepted. If the presumption is to be discarded as no longer relevant or appropriate, that is a development in the law which should not be undertaken by the decision of a single judge. Conclusion For these reasons I dismiss the plaintiff’s claim. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

In The Estate of Gibbs Gray J made the following observations regarding the rebuttal of the presumption.[35]The presumption of revocation is a presumption of fact which may be rebutted by appropriate evidence.[36] It is the applicant who carries the onus of rebutting the presumption.[37] Further, when determining if the presumption has been rebutted, the court is “to consider the whole of the facts together, and draw what inference should be drawn from the totality of the evidence”.[38][35] In the Estate of Gibbs [2012] SASC 230 at [31], (2012) 115 SASR 182 at 190.[36] Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); see also, Colvin v Fraser (1829) 2 Hag Ecc 266; Welch v Phillips (1836) 1 Moo PC 299; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [32].[37] Welch v Phillips (1836) 1 Moo PC 299, 302; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [34]; see eg, Allan v Morrison [1900] AC 604.[38] Gordon v Beere [1962] NZLR 257, 266.Consideration In my view, the plaintiff has not discharged the onus he bears. On the evidence I am satisfied that sometime in 1996 the deceased prepared a document which described in some way his wish that the plaintiff should enjoy some benefit from the disposition of his estate. The existence of the document is established by the evidence of Mr Bacic, Ms Dabrowski and the plaintiff. I am satisfied that there was a conversation between Mr Bacic and the deceased in mid-1996 when the deceased was recuperating at the Mr Bacic’s home following a heart attack. I am not satisfied as to what the deceased said to Mr Bacic other than that he wished that the plaintiff would benefit from his estate. I am satisfied that Mr Bacic advised the deceased that in order to fulfil his wish some formal document was required which had to be witnessed. I am satisfied that the deceased prepared a document or documents which evidenced a wish that the plaintiff should benefit in some way from his estate. I am not satisfied however that he ever prepared a document which was intended by him to have testamentary effect. There is no evidence he ever acted on the advice of Mr Bacic that the document should be witnessed if it was to have legal effect. I am satisfied there was a discussion in late 1996 between the deceased, the plaintiff and Mostyn in which the deceased produced a documents or documents which he showed the plaintiff and Mostyn. I am not satisfied that whatever document or documents were produced by the deceased to the plaintiff and Mostyn in late 1996 were intended to effect the testamentary disposition of the deceased’s estate. I am satisfied that some years later the deceased had a conversation with Ms Dabrowski in which he referred to his wish that the plaintiff should benefit from his estate. I am further satisfied that in this conversation the deceased made some reference to the property at Victoria Street being shared in some way between the plaintiff and Mostyn. I am further satisfied that the deceased referred to a document embodying this wish during the course of the conversation.