Fielder v Burgess - [2014] SASC 98

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
FIELDER v BURGESS
[2014] SASC 98
Judgment of The Honourable Chief Justice Kourakis
7 August 2014
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR'S INTENTION - HOME MADE WILL
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - COSTS
The plaintiff made an application under s 12(2) of the Wills Act 1936 (SA) that an informal will, the handwritten document of the deceased, be admitted to probate and for the proper construction of the will should it be admitted. The plaintiff contends that the deceased did not die intestate, in whole or in part, and therefore the purported will should be admitted as valid under s 12 of the Wills Act 1936 (SA). The plaintiff further contends that on the true construction of the document it operated in such a manner as to dispose of the whole of the deceased estate in favour of the plaintiff. The defendant denies that the purported will should be admitted to probate and asserts that the deceased died intestate.
Held (admitting the will to probate) - the appellant had testamentary capacity when he made the purported will and the evidence strongly supports a finding that the deceased intended the purported will to be his will. The purported inter-vivos gift and the purported will, when read together, are consistent with an intention on the part of the deceased to dispose of the entirety of his property whether by way of inter-vivos gift or by his will (at [35]). On a proper construction of the will it bequeaths the entirety of the deceased’s estate, including the proceeds of the insurance policies, to the plaintiff (at [54]).
Wills Act 1936 (SA) s 12; Family Relationships Act 1975 (SA) s 11A, referred to.
Thomas v Nash (2010) 107 SASR 309; Perrin v Morgan [1943] AC 399; Re Allsop deceased [1968] 1 Ch 39; Marley v Rawlings [2014] 2 WLR 213; Re East Deceased [1964] QWN 16; In re Brigden; Chaytor v Edwin [1938] 1 Ch 205; In Public Trustee v Alexander; Estate of Alexander [2008] NSWSC 1272, discussed.
Gellatly v Curtin [2006] WASC 88; Hearn v La Housse [2007] WASC 99; Banks v Goodfellow (1870) LR 5 QB 549; Stuart v Kirkland-Veenstra (2009) 237 CLR 215; Re the Estate of Hodges (1988) 14 NSWLR 698; In the Estate of TLB (2005) 94 SASR 450; Baumanis v Praulin (1980) 25 SASR 423; In the Estate of Gall [2008] SASC 349; In the Estate of Angius [2013] NSWSC 1895; Wood v Smith [1993] Ch 90; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535; Riches v McInnes [2010] WASC 298; In the Estate of Richardson deceased (1986) 40 SASR 594; Hatsatouris v Hatsatouris [2001] NSWSC 408; Bells v Crewes [2011] NSWSC 1159; Re Brace deceased [1954] 2 All ER 354; In the Estate of Giles Deceased; ANZ Executors and Trustee Co v Gotzhiem and Gunning (1993) 171 LSJS 13; In the matter of Hallam deceased (1991) 162 LSJS 429; Lewis v O'Loughlin (1971) 125 CLR 320; In the estate of Michael Anthony Whelan [2013] SASC 18; Butterworth v Woods [2010] WASC 176; Dalton v Dalton [2008] WASC 56; In the Estate of Tkaczuk deceased; Dobryden v Wagner (2004) 90 SASR 515; Lewis v O'Loughlin (1971) 125 CLR 320; In the Estate of Rigg [1960] SASR 197; Hall v Carney (No 2) [2012] SASCFC 105, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"intestate", "testamentary capacity", "inter-vivos gift"

FIELDER v BURGESS
[2014] SASC 98
Civil

KOURAKIS CJ. This is an application under s 12(2) of the Wills Act 1936 (SA) (the Wills Act) that an informal will be admitted to probate, and for the proper construction of the will, should it be admitted.
Background
Aaron David Burgess (the deceased) committed suicide on 28 November 2011. The deceased, born 20 May 1989, was 22 years of age at the time of his death. The deceased never married, did not have a domestic partner[1] and was not survived by any children. At the time of his death the deceased was residing with his mother, his sister Kate, and foster brother Jacob.
[1] Family Relationships Act 1975 (SA), s 11A.
The deceased completed a law degree, graduating with honours in 2010, at the University of South Australia. Following his graduation ceremony in March 2011, the deceased was engaged by BAE Systems Australia Ltd as a commercial officer in the procurement and subcontract department of that company.
The probable motive for the deceased’s suicide was his distress over the perceived infidelity of a young woman with whom he was enamoured. I will refer to her as G. It is not an issue in this case whether the infidelity was real or imagined and any reference I make to the deceased’s motive should not be read as a finding one way or another on the issue. Tragically the deceased first shot G before turning a shotgun on himself.
The estate of the deceased consisted of only personal property in South Australia. The primary assets of the estate are life insurance policies. One policy taken out with Statewide Superannuation Pty Ltd (Statewide) has a value of $244,590. Statewide has determined to pay the insured sum into the estate. Another life insurance policy was taken out with Mercer Super Trust (Mercer) and has a value of $306,769.03. Mercer has not yet determined to whom to disburse that sum.
The deceased was the lawful son of the plaintiff, Karen Metcalf (nee Fielder), and her former husband the defendant, Steven Burgess. The plaintiff and defendant were married on 23 September 1978 and divorced by order for dissolution of marriage which took effect on 27 June 2009. Upon separation, and then divorce, the plaintiff reverted to using her maiden name but has recently married and taken her husband’s name.
On or about 15 November 2011, the deceased made and signed a document in his handwriting (the purported will) on a page of an exercise book. The book was found by police in the deceased’s bedroom soon after his death. The exercise book was received by consent as P3. I will refer to it as the exercise book. A typed transcript of the contents of the book was received by consent as P4. I will refer to it as the transcript. Page 3 of the exercise book contained the following words in the deceased’s handwriting:
I wish for this to be considered my will.
I wish to give any and all possessions that I have left to my mother Karen Burgess.
I wish for my mother and my brother Daniel Burgess to be my executor of this will and to take care of all my affairs.
Aaron David Burgess
15-11-11
Even though the deceased subscribed to the purported will, it was not executed by him in the manner and with the formalities required for the making of a will by s 8 of the Wills Act. However, the plaintiff submits that the handwritten document expresses the testamentary intentions of the deceased, such that he intended the handwritten document to constitute his will and that, therefore, the requirements of s 12(2) of the Wills Act are satisfied. If the will is not admitted to probate, or if the phrase “all possessions that I have left” does not include the proceeds of the insurance policies which have been, or may yet, be paid into the estate, those proceeds will be divided between the plaintiff and defendant in accordance with the rules of intestacy and will not be paid to the plaintiff alone.
Issues for determination
There are two primary issues which fall for sequential determination:
1Whether the handwritten document on page 3 of the exercise book is to be admitted as the deceased’s will under s 12(2) of the Wills Act.
2If the handwritten document is admitted as the deceased’s will whether on a proper construction of that document:
(a) the words “I wish to give any and all possessions that I have left to my mother Karen Burgess” is a gift by the deceased to the plaintiff of the whole of his estate; and
(b) those words in the handwritten document have some other meaning, and, if so, what other meaning.
The plaintiff contends that the deceased did not die intestate, in whole or in part, and that the purported will should be admitted as a valid will under s 12(2) of the Wills Act. The plaintiff also contends that upon the true construction of that document it operated to dispose of the whole of the deceased estate in favour of the plaintiff.
The defendant denies that the purported will should be admitted to probate and asserts that the deceased therefore died intestate on the grounds that:
(a)the deceased lacked testamentary capacity in that the deceased was “incapable of intending to make a valid Will” and was “incapable of expressing testamentary intentions at the time”,[2] and
(b)this Court could not be satisfied that the purported will expressed the deceased’s testamentary intentions and that he intended it to constitute his will.
[2] SCCIV-13-680, FDN 10.
The two material facts pleaded by the defendant in support of those contentions are that at the time the deceased made the handwritten document “he had decided to commit suicide and had decided to kill another person”, and that the deceased “was suffering depression and mental distress and believed that he was not worth worrying about”.[3]
[3] SCCIV-13-680, FDN 10.
The exercise book
It is necessary to set out in some detail the contents of the exercise book. The exercise book was originally a book of 48 A4 pages but many of the pages have been torn out. It now contains just 13 sheets, five of which remain blank. Of the eight sheets on which there is some writing, three have writing on both sides of the sheet and the remaining five have writing on the face which opens to the right hand side of the book. All of the writing is in either blue or black ink. Both parties submit that the order of the pages in the transcript is the order in which the exercise book was left by the deceased. I so find both because of the common submission of the parties and because I draw an inference to that effect from the changes in pen colour, the contents of the writing on each page and the dates recorded on some of the pages.
Pages 1 and 2 of the exercise book take the form of a letter to the deceased’s mother and sister Kate. The letter anticipates the deceased’s suicide and is apologetic in tone. On page 2 the deceased purports to make an inter-vivos gift to his mother in these terms:
Mum, I give all of my possessions to you now, in return for looking after me ... I give this to you while I am living and not as part of a bequest.
At the foot of page 2 is a note in black ink which reads “Please give Kate whatever of mine that she wants”.
Page 3 of the exercise book contains the purported will. Page 5 is a letter to his sister Kate reassuring her that she is not responsible for his suicide. Page 6 takes the form of an affectionate letter to the deceased’s dog.
I am satisfied that the pages of the exercise book which have been numbered 1, 2, 3, 5 and 6 of the exercise book were written on or about 15 November 2011, which date appears on the foot of page 2 of the exercise book, and on the purported will, and before any of the other writing in the exercise book. I make that finding because:
·the writing on those pages, other than a note at the foot of page 2 to which I will shortly return, is in blue pen;
·of the date recorded on pages 2 and 3;
·of the consistency in attitude expressed in those pages to the deceased’s sister Kate and the connection between the subject matter of the writing on each of those pages.
I find that page 4 was written after the pages to which I have just referred even though it is also written in blue ink. I take that view because page 4 is written on the reverse side to page 3 in contrast to the practice of writing only on the facing side of pages 1, 2, 5 and 6. Moreover, the writing on page 4 of the exercise book commences with the words “I take a lot of this back” from which an arrow is drawn towards the adjacent page 5 on the right hand side of the exercise book. Page 5 contains the reassuring letter addressed to the deceased’s sister Kate. The content of page 4, in its terms, is a retraction of the reassurance given to Kate in the letter appearing on page 5 of the exercise book. It expresses anger at Kate for being complicit in what the deceased saw as G’s deceit and accuses Kate of encouraging G to leave the deceased.
I find that pages 7 and 8 of the exercise book were written on about the 19 November 2011 because of the date which appears at the top of page 7. The notes on pages 7 and 8 of the transcript express anger at G in what the deceased saw as G’s infidelity. They also express anger at Kate.
I find that the writing in black pen on page 9 was written at the same time as the writing on pages 7 and 8. I so find because it commences with the words “the related FB conversations”. I take that to be a reference to the Facebook conversations referred to by the deceased on page 8 of the transcript.
I tend to the view that the note at the foot of page 2 of the exercise book might have been written on 19 November 2011 because it is also written in black ink. However, I hesitate to so find because the sentiment of that note is inconsistent with the anger expressed towards Kate on pages 7 and 8. Ultimately it is not necessary to come to a final view on that question.
I find that the blue writing on page 9 of the exercise book and the crossing out in blue pen on that page were made on some day after the 19 November 2011. The blue writing manifests an escalation of the deceased’s anger towards G. It also appears to more strongly contemplate the deceased’s imminent suicide. I refer in particular to the change in the password to his computer to the word “gone” and the reference to his dog.
I also find that pages 10 and 11 were written after the 19 November 2011 because:
·they are written in blue ink;
·they express a greater level of distress;
·the handwriting has deteriorated.
It may well be that the writing on page 4 of the exercise book was written at the same time as pages 10 and 11 because a blue pen is used on all three pages. However, the writing style on page 4 is neater. It suffices to find that the deceased wrote page 4 somewhere between the time of the writing of pages 7 and 8 and pages 9 and 10.
Testamentary capacity
The plaintiff accepts that she has the onus of establishing testamentary capacity. In my view, there is good reason not to extend the presumption of testamentary capacity arising from the due execution of a formal will to an informal will. The due execution of a formal will before witnesses is, as a practical matter, a strong check against the making of a will by a person who lacks testamentary capacity.[4] It therefore provides a sound basis for the presumption which is lacking in the case of informal wills.
[4] Gellatly v Curtin [2006] WASC 88 at [11]; Hearn v La Housse [2007] WASC 99 at [49].
However, it is not necessary for me to finally decide the issue because I am satisfied on the evidence of this case that the deceased had the necessary capacity to make this will.
In Thomas v Nash[5] Doyle CJ referred to the judgment of the court in Banks v Goodfellow[6] as follows:
[5] (2010) 107 SASR 309 at [71].
[6] (1870) LR 5 QB 549.
In Banks v Goodfellow (1870) LR 5 QB 549 Cockburn CJ, delivering the judgment of the court, said (at 565):
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
This statement has often been cited with approval, although the point has been made that the effect of the concluding part is not altogether clear. The case before the court was one in which the testator had suffered mental illness. As to that, Cockburn CJ said (at 565-566):
If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right? It cannot be the object of the legislator to aggravate an affliction in itself so great by the deprivation of a right the value of which is universally felt and acknowledged. If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right.
He spoke to the same effect at 569-570.
Doyle CJ summarised the matters relevant to the assessment of testamentary capacity in the case before him as follows:[7]
In relation to the question of testamentary capacity, issues for me are whether Mrs Nash knew the effect of the will, whether she knew the nature and extent of her estate, whether she was aware of those who might be thought to have a claim upon her bounty, and the basis for such a claim, and whether she was in a position to evaluate those claims and make a decision. Her memory is relevant because she had to have the ability to remember these matters. Her state of health is relevant because her physical and mental health might affect her testamentary capacity.
I understand Doyle CJ’s reference to the testator’s capacity to “evaluate” the competing claims on his or her estate to be another way of stating the requirement, articulated by Cockburn CJ, that the testator comprehend and appreciate those claims.
[7] Thomas v Nash (2010) 107 SASR 309 at [76].
The contemplation of suicide does not, in law, support a presumption of mental incapacity.[8] There is no reason arising from the Court’s knowledge of human affairs to infer, in the absence of other evidence on the issue, that the psychological distress which leads to suicide necessarily so compromises a person’s reasoning capacity as to deny him or her the capacity to understand the nature and effect of his or her purported disposition of property and the way in which it resolves the competing moral and quasi-legal claims to that property.
[8] Stuart v Kirkland-Veenstra (2009) 237 CLR 215 at [44].
I turn to the other evidence which supports my finding that the deceased had testamentary capacity. The deceased obtained a credit in succession law in 2010. Mrs Metcalf testified of a conversation with the deceased, not long before his suicide, in which he displayed an appreciation of the competing claims she would have to consider on the making of her will. Mrs Metcalf’s uncontradicted evidence was that the deceased was able to engage in rational and coherent conversations with her in the weeks before his death. He continued to attend to his work which involved a high level of intellectual functioning at the time he wrote the purported will. On the night before his death he was able to engage in conversations about world economic conditions with his mother. Finally, the disposition made by the deceased was rational, having regard to his knowledge of his mother’s financial position.

The circumstance that the deceased was contemplating suicide is a factor to be taken into account.[9] However, in this case I am satisfied that the deceased’s contemplation of suicide was fuelled by his emotional distress over, and obsession with, the circumstances of his relationship with G, and did not arise from, or cause, any significant impairment of his capacity to rationally consider the provisions he wished to make for the disposition of his property.
[9] Re the Estate of Hodges (1988) 14 NSWLR 698 at 707. See also In the Estate of TLB (2005) 94 SASR 450.
I find that the appellant had testamentary capacity when he made the purported will.
Admitting the will to probate
Section 12 of the Wills Act provides:
12—Validity of will
(1)A will is valid if executed in accordance with this Act, notwithstanding that the will is not otherwise published.
(2)     Subject to this Act, if the Court is satisfied that—
(a)     a document expresses testamentary intentions of a deceased person; and
(b)     the deceased person intended the document to constitute his or her will,
the document will be admitted to probate as a will of the deceased person even though it has not been executed with the formalities required by this Act.
(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)This section applies to a document whether it came into existence within or outside the State.
(5)Rules of Court may authorise the Registrar to exercise the powers of the Court under this section.
The following evidence strongly supports a finding that the deceased intended the purported will to be his will. First the deceased expressly declared that he wished the writing on page 3 of the exercise book “to be considered [his] will”. It is more than a mere note or reminder to himself to make arrangements to make a formal will. Secondly, the purported will is in the deceased’s handwriting[10] and is subscribed to by him.[11] Thirdly, the deceased wrote the purported will when he was contemplating suicide giving him a compelling reason to make a will in order to dispose of his property as he wished.[12]
[10] Tsagouris v Bellairs [2010] SASC 147 at [23].
[11] Baumanis v Praulin (1980) 25 SASR 423 at 426 per Mitchell J; In the Estate of Gall [2008] SASC 349 at [20] per Gray J; In the Estate of Angius [2013] NSWSC 1895 at [271]; Wood v Smith [1993] Ch 90 at 111 per Scott LJ; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 540; Riches v McInnes [2010] WASC 298 at [29] per EM Heenan J.
[12] In the Estate of Richardson deceased (1986) 40 SASR 594 at 596.
The purported inter-vivos gift made on page 2 of the exercise book is not inconsistent with such a finding. The purported inter-vivos gift and the purported will, when read together, are consistent with an intention on the part of the deceased to dispose of the entirety of his property whether by way of inter-vivos gift or by his will. I cannot know why the deceased thought there might be some benefit in making an inter-vivos gift of his property and a will at the same time. There may have been some real or imagined difficulty which he was attempting to overcome. A challenge to his informal will or to its provisions may have been one such difficulty. However, I am satisfied that both the attempt at an inter-vivos gift and the purported will proceeded from an intention to ensure that the entirety of his property was disposed of and passed to his mother. The words “that I have left” in the purported will suggest that the deceased was aware of the inter-vivos gift recorded on page 2 when he made the purported will. Together the inter-vivos gift and the purported will strongly support a finding that the deceased intended that the purported will on page 3 have legal effect on such property as remained in his estate after making the inter-vivos gift on page 2.
The writing in black ink at the foot of page 2 does not support a contrary finding. I read those words as a reference to items of personal memorabilia which the deceased’s sister Kate may have wanted. The note is expressed in terms of a non-binding plea (see the use of the word “please”) that his mother consider favourably any request by Kate for such memorabilia, in exercising the dominion over his property which she would have as a result of his gift, and bequest, to her. That construction of the note leaves it unnecessary to finally determine when it was written.
Nor does the writing on page 4 detract from the evidence supporting a finding of the necessary intention. I have found that the words “I take a lot of this back” were written after the making of the purported will and refer to the letter to the deceased’s sister Kate. The latter finding denies the words any significance because it is not a reference to the bequest to his mother made by the purported will. The former finding would deny the note any significance even if it were a reference to the purported will because the note was written after the purported will was made. The relevant time for the existence of the intention prescribed by s 12 of the Wills Act is when the informal will is made, and once it is made a mere change of mind does not vitiate it.[13] The defendant eschewed any reliance on s 12(3) of the Wills Act.
[13]
Finally, I attach little weight to the circumstance that the deceased who, I infer was familiar with the requirements for the execution of a will, did not take those steps because the deceased was probably reluctant to reveal his contemplation of suicide to others.
I am firmly persuaded by the evidence that the deceased intended the purported will to be his will.
Construction of the Will
In Perrin v Morgan[14] Lord Simon explained that the task of a court of construction is to discover the expressed intentions of the testator:
The fundamental rule in constructing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case – what are the ‘expressed’ intentions’ of the testator.
[14] [1943] AC 399 at 406.
In Re Allsop deceased[15] Lord Denning MR counselled against the court giving words a literal interpretation that would lead to a capricious result which could not have been the intention of the testator. Lord Denning said:[16]
The object of the court in construing a will is to discover the intention of the testator. I do not think his intention is to be discovered by looking at the literal meaning of the words alone. That has led, time out of number, to the frustration of his intentions. You must look at the will in the light of the surrounding circumstances. Eschewing technical rules and literal interpretation, you must look to see simply what the testator intended. If you find that a literal interpretation gives rise to a capricious result which you are satisfied can never have intended, then you should reject that interpretation and seek for a sensible interpretation which does accord with his intention. It is sometimes said that a testator can be as capricious if he likes. Yes if you are sure he intended to be. But you should not impute capriciousness to him merely to justify yourself in giving the words a literal interpretation.
[15] [1968] 1 Ch 39.
[16] [1968] 1 Ch 39 at 47.
In Marley v Rawlings[17] the Supreme Court of the United Kingdom has recently outlined the approach which should be taken to the interpretation of wills as follows:
…
When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. As Lord Hoffmann said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, para 64, “no one has ever made an acontextual statement. There is always some context to any utterance, however meagre.” To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396, that “[c]ourts will never construe words in a vacuum”.
Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned. Thus, the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts – see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, per Lord Steyn at 770C-771D, and Lord Hoffmann at 779H-780F.
[17] [2014] 2 WLR 213 at [20]-[21] per Lord Neuberger (with whom Lord Clarke, Lord Sumption and Lord Carnwath agreed).
The assimilation of the rules of construction for multi-party and unilateral documents is not as surprising as it may first appear because in both cases it is necessary to give the writing a relatively certain operation which avoids an inquiry into the actual subjective state of mind of the testator. In the case of unilateral dispositions the intention of the actor must be discovered in the words of the testamentary disposition in the context of his or her circumstances and knowledge.
In Re East Deceased,[18] Gibbs J considered the words:
I Give devise and bequeath unto my aunt … all my monetary and personal possessions …
[18] [1964] QWN 16.
Gibbs J held that:[19]
The words “all my possessions” in their ordinary and natural meaning are wide enough to refer to the entire estate, real and personal, of a testator.
[19] Re East Deceased [1964] QWN 16 at 42-43.
Gibbs J followed the earlier authority of In re Brigden; Chaytor v Edwin.[20]In that case Clauson J, construing a will giving a gift “of all my possessions” said: [21]
I am asked to decide what is the effect of this clause, the first point being whether it is a general universal gift of all that the testatrix could bequeath or devise by will. In my view it is. By this clause the whole of the testatrix’s property was disposed of: and there is no intestacy.
[20] [1938] 1 Ch 205.
[21] Similar approaches have been taken with respect to the word “possessions” in Re Brace deceased [1954] 2 All ER 354; In the Estate of Giles Deceased; ANZ Executors and Trustee Co v Gotzhiem and Gunning (1993) 171 LSJS 13; In the matter of Hallam deceased (1991) 162 LSJS 429 and In Public Trustee v Alexander; Estate of Alexander [2008] NSWSC 1272.
In Public Trustee v Alexander; Estate of Alexander[22] White J said:
It was submitted for the defendant that the superannuation benefits paid by the AMP, Nationwide Superannuation Fund and the United Group Staff Superannuation Plan, only came into existence after the deceased's death and could not be described as his "belongings". With respect, I think that misses the point. If, as I consider to be the case, the deceased's mother is entitled to all of the estate because all of the estate is encompassed in the word "belongings", then she would be entitled to the benefit of moneys paid by the trustees if they are paid for the benefit of the residuary beneficiaries or otherwise paid to the estate. That is so whether or not it could be said that there was something which "belonged” to the deceased prior to his death to which those moneys were referable.
[22] [2008] NSWSC 1272 at [40].
The defendant accepts that it is permissible to have regard to the purported inter-vivos gift to construe the terms of the disposition made by the purported will. Whether the words “any and all possessions that I have left” are construed in isolation, or together with the inter-vivos gift, I have no doubt that the deceased intended to dispose of the entirety of such of his real and personal property as remained at the time of his death, that is his entire estate. Moreover, viewing the matter from the perspective of the deceased, there is no sensible reason why he would have wished to only partially dispose of his estate leaving it to the rules of intestacy to govern the balance.
The presumption against partial intestacy supports that conclusion which I would, in any event, draw from the evidence in this case.
The presumption against intestacy may more readily be relied upon in the case of a “home-made” will.[23] The presumption against partial intestacy has often been applied to informal wills.[24]
[23] Lewis v O’Loughlin (1971) 125 CLR 320 at 330 per Menzies J (Gibbs J agreeing).
[24] In the estate of Michael Anthony Whelan [2013] SASC 18 at [24]; Butterworth v Woods [2010] WASC 176 at [47]; Dalton v Dalton [2008] WASC 56 at [74]-[77].
The presumption that a testator does not wish to die intestate or that a partial intestacy would not have been intended can be used as an aid to construction in the event of ambiguity in the will.[25] In construing the testator’s words in such a situation, one should apply the presumption against intestacy.[26]
[25] In the Estate of Tkaczuk deceased; Dobryden v Wagner (2004) 90 SASR 515 per Duggan J at [19] citing Lewis v O’Loughlin (1971) 125 CLR 320 at 331 and In the Estate of Rigg [1960] SASR 197 at 198 per Napier CJ.
[26] Public Trustee v Alexander; Estate of Alexander [2008] NSWSC 1272 at [35] per White J.
As Gibbs J observed in Re East deceased:[27]
In construing an ambiguous will, the courts act on the presumption that the testator intended to dispose of all his property: “In ascertaining the intention, I ought to a certain extent – we all know what the expression means – to lean against an intestacy, and not to presume that the testator meant to die intestate if, on a fair construction, there is reason for saying the contrary.” (Cited by Isaacs J in Fell v Fell ([1922] 31 CLR 268 at p. 276), and see per Higgins J at pp. 281-2, 284. In the present case, also, the testator made one gift, and he must either have intended that its words would describe all the property that he might own at the date of his death, or that he would die intestate as to part of that property. In these circumstances, it seems to me that I should presume that the words of the will were used in the widest sense of which they are capable, so as to dispose of the whole of the property owned by the testator at his death and avoid a partial intestacy.
[27] [1964] QWN 16 at 43.
The following observation made by Napier CJ in In the Estate of Rigg deceased[28] is apposite in the circumstances of this matter:
They are appropriate to a disposition of the whole estate, and that is what is prima facie intended when a man is making his will, namely that he intends to dispose of that of which he can dispose.
[28] [1960] SASR 197 at 198.
For the above reasons I find that on a proper construction of the will, which I would admit to probate, bequeaths the entirety of the deceased’s estate, including the proceeds of the insurance policies, to his mother.
Conclusion
After delivering the above reasons and hearing from the parties I made the following orders:
1.Pursuant to s 12(2) of the Wills Act 1936 (SA) pronounces for the force and validity of the last will and testament of Aaron David Burgess late of 60 The Grove Way, Salisbury Heights in South Australia, Commercial Officer deceased being the script bearing date the 15^th day of November 2011 and being the script marked “A” by the Court in these proceedings (“the will”) and propounded on behalf of the plaintiff.
2.Orders that probate of the will of the deceased be granted to Karen Ann Metcalf (formerly named Karen Ann Fielder and called Karen Burgess in the will) one of the executors named in the will.
3.Declares that upon the true construction of the will of the deceased, by the words “I wish to give any and all possessions that I have left to my mother Karen Burgess” contained therein, the deceased made a gift of the whole of the estate of the deceased to the plaintiff.
4.Orders the costs of and incidental to these proceedings of the plaintiff and defendant on a party-party basis be paid out of the estate of the deceased.
The costs order was made by consent but there are several observations I wish to make.
There is a long line of authority to the effect that where probate litigation has been caused, or contributed to, by the way in which the testator made his testamentary intentions known it is appropriate that costs be ordered to be paid out of the estate (the probate costs rule). The authorities are conveniently collected in the judgment of Gray J in Hall v Carney (No 2).[29]
[29] [2012] SASCFC 105 at [8]-[12].
The principle has a long lineage, but it is perhaps so long that it has become something of an anachronism. For centuries before the judicature reforms of the 19^th century, grants of probate were the concern of the Ecclesiastical Court. Ecclesiastical courts operated according to forms of Roman law with an inquisitorial judge rather than common law style juries. These courts claimed jurisdiction over substantive matters that concerned salvation and church order including sexual misconduct, determinations and annulment of marriage, defamation and the personal estates of deceased persons. It is perhaps not surprising that an inquisitorial jurisdiction which was concerned with public rectitude adopted such a costs principle.
The application of the costs rule in probate cases was recently considered in the English case of Shovelar v Lane.[30] In that case a husband and wife, who each had children from previous marriages, made mutual wills leaving their residuary estate to the other if he or she survived 30 days, failing which it fell to their children, grandchildren and other relatives. The husband survived the wife and later made a new will that made no provision for his wife's descendants. Following the husband’s death, the wife’s descendants brought a claim against both the executors of the husband’s estate and descendants. The claimants successfully relied on the doctrine of mutual wills, claiming that the executors held the husband’s estate on constructive trust for those entitled under his earlier will. On the question of costs, the defendants submitted that the Judge should apply the rule in probate actions being that if a testator were the cause of litigation then the costs ought to come out of the estate. The Judge rejected this submission and held that the claimants were entitled to have their costs paid by the defendants. The claimants appealed against certain terms of the costs order and the defendants cross-appealed against the Judge’s conclusion that the costs should not be paid out of the estate.
[30] [2012] 1 WLR 637.
The Court of Appeal, dismissing the cross-appeal, held:[31]
The probate rule is rooted in the inquisitorial exercise that was conducted by the ecclesiastical courts and the Probate Division where the court had to be satisfied of the validity of the will before it could pronounce for the will and admit it to probate. The effect of mutual wills upon the distribution of the estate under a later will which is admitted to probate is a matter for the Chancery Division applying the law of trusts; it is not a matter of probate law and practice. The nature of that litigation is not inquisitorial: it is adversarial and, not infrequently, very adversarial as the two families disunited by death battle for their perceived true inheritance...
The judge was entitled to find, indeed right to find, that “the contention between the parties was not unlike any other hostile litigation and not such that would enable the court to move away from the general rule”... The reasons she gave in para 39 of her judgment which I have also cited at para 28 above is beyond challenge: there would be a plain injustice if the claimants were deprived of any benefit of their success (compare In re Evans, decd [1986] 1 WLR 101). The challenge by the defendants as to what had been said and done and the legal consequences of that behaviour do not provide a reason for departing from the general rule that costs follow the event.
It follows that in my judgment [the judge] was fully entitled to order the defendants to pay the claimants’ costs.
[31] [2012] 1 WLR 637 at [44] – [45] per Ward LJ.

In my view, the legal policy underlying the decision of the Court of Appeal is applicable to probate cases beyond mutual wills claims of the kind considered in Shovelar v Lane.[32]It is not obvious to me why a testator’s fault in the making of a will should result in a loss to the successful beneficiary in litigation over the estate. True it is there is a public element to the resolution of disputes over estates. It is for that reason that the probate costs rule is generally framed in terms of applying when there are reasonable grounds to require the person propounding a doubtful will or contending for a particular construction of an ambiguous provision to make out their case before a judge in a contested hearing.
[32] [2012] 1 WLR 637.
However, the bottom line is that the disputes are between private parties advancing competing claims to the testator’s bounty for their private financial benefit. Of even greater contemporary significance is the effect of the old probate costs rule on parties to litigation of this kind. The probability of the payment of the costs of all parties out of the estate irrespective of the result gives the parties little incentive to make appropriate decisions as reasonable self-funded litigants about their prospects of success, and the proportionality of the expense incurred in bringing or defending proceedings.
I cannot see any utility in putting the beneficiaries to the expense of a contested hearing and depleting the estate in cases in which the ultimate result of litigation is clear notwithstanding the suspicion or ambiguity clouding the will.
In support of the probate costs rule, it is also sometimes contended that s 12 of the Wills Act requires a contested hearing before the Court can be satisfied of the circumstances prescribed by that section. It is not obvious to me why the Court might not be so satisfied by reason of the consent of all interested parties supported, if necessary, by jointly submitted documentary evidence.
The probate costs rule is arguably anachronistic in modern times in which there is a greater concern with the need for proportionality in litigation.[33] It may soon be necessary to reconsider it.
[33] Cf Hall v Carney (No 2) [2012] SASCFC 105 at [38]-[39] per Stanley J.

Hatsatouris v Hatsatouris [2001] NSWSC 408 at [57]-[59]; see also Dalton v Dalton [2008]

WASC 56 at [50] and Bells v Crewes [2011] NSWSC 1159 at [28].