Fox Tucker Lawyers v Panda - [2019] SASC 197

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of BOLLEN
[2019] SASC 197
Judgment of The Honourable Justice Bampton
19 November 2019
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - EXPRESSLY APPOINTED EXECUTORS - SUBSTITUTIONAL APPOINTMENTS
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL
Application pursuant to r 68 of the Probate Rules 2015 (SA) to swear the death of a missing person in respect of whose estate a grant is sought – where missing person disappeared on 26 December 2015 and has not been seen since nor his body located – application pursuant to s 12(2) of the Wills Act 1936 (SA) – where missing person provided will instructions and did not make a formal will.
1. Pursuant to r 68 of the Probate Rules 2015 (SA), the death of Glenn Travis Bollen may be sworn to have occurred on 26 December 2015.
2. Pursuant to s 35 of the Births, Deaths and Marriages Registration Act 1996 (SA), the Registrar of Births, Deaths and Marriages is directed to register the death of Glenn Travis Bollen as having occurred on 26 December 2015.
3. Upon lodgement of a death certificate of Glenn Travis Bollen, pursuant to s 12(2) of the Wills Act 1936 (SA), the informal document dated 22 April 2015 be admitted to proof as the last will and testament of Glenn Travis Bollen.
4. Probate is granted to the applicants as the substituted executors as described in the will dated 22 April 2015.
Probate Rules 2015 (SA) r 68; Wills Act 1936 (SA) s 12(2); Births, Deaths and Marriages Registration Act 1996 (SA) s 35, referred to.

In the Estate of BOLLEN
[2019] SASC 197
Testamentary Causes Jurisdiction

BAMPTON J: Glenn Travis Bollen (“Glenn”) was a keen and experienced boater and fisherman. On 21 December 2015, he and his partner, Sharlene Bevilacqua (“Sharlene”), took delivery of a new boat in Adelaide and drove it back to their home in Beachport.
On Boxing Day 2015, Glenn and a friend, Mark Popple (“Mark”), took the new boat out in unfavourable weather conditions to check on craypots Glenn and Sharlene had set a few days earlier. The boat capsized, throwing Glenn and Mark into the water. Mark reported that Glenn was washed under the boat and that he last saw Glenn floating with his arms outstretched and head facing down. There has been no reported sighting of Glenn since that time and his body has not been recovered.
Glenn’s parents, Sandra Elizabeth Bollen and Geoffrey Ernest Bollen (“Sandra and Geoffrey”), pursuant to r 68 of the Probate Rules 2015 (SA), seek the Court’s permission to swear the death of Glenn. They also seek an order pursuant to s 12(2) of the Wills Act 1936 (SA) that a document comprising will instructions dated 22 April 2015, a copy of which is exhibit A to their joint affidavit sworn on 10 September 2019, be admitted to proof as the last will of Glenn (“the will instructions”). Finally, Sandra and Geoffrey seek an order that probate of the will instructions be granted to them as substitute executors described in the will instructions.
Evidence that Glenn drowned at sea on 26 December 2015
Geoffrey and Sandra’s solicitor, Gary Inglis, exhibits to his affidavit, sworn on 8 October 2019, a letter from the manager of the Coroner’s Court dated 15 August 2017 confirming that Glenn’s disappearance was reported to the Deputy Coroner on 31 December 2015, pursuant to the Coroners Act 2003 (SA). The manager advised that Glenn’s body “has never been located therefore the State Coroner cannot determine a cause of death as required by the Coroners Act 2003”.
The following account of Glenn’s disappearance is taken from the statements obtained by the Coroner’s office and exhibited to Sandra and Geoffrey’s affidavit.
A month or so prior to buying the boat, Glenn had fallen from a horse. Sharlene reported that Glenn went to hospital a week later where he was diagnosed with a broken left collarbone and prescribed a sling.
On 23 December 2015, Glenn and Sharlene went out on the boat for the first time and set two craypots. Sharlene said Glenn was delighted with his new boat and could not wipe the smile off his face.
On 26 December 2015, Glenn and Mark went out on the boat. Mark drove to the Beachport boat ramp because Glenn’s left arm was still in a sling. They unloaded the boat and set off just after 6.00 am. Mark reported that there were life jackets on the boat, but he and Glenn did not put them on. They travelled in a south-westerly direction towards where Glenn and Sharlene had set the craypots near Penguin Island.[1] They checked the first pot and Glenn pulled it into the boat using the winch. They then moved to the second pot. Mark watched Glenn attempt to grab the second pot, however, the force of a wave caused the boat to swing around to face north-west. Glenn managed to get the floats of the craypot onto the boat and hook the pot onto the winch. As he was winching the pot, he suddenly said, “It’s broken my winch”. Mark reported that Glenn took the pot rope off the winch and tied it to the back of the boat.
[1] Penguin Island is approximately 1.5 km south of Beachport.
The back righthand side of the boat was then lifted by a wave. The boat capsized, causing Glenn and Mark both to fall into the water under the boat. Mark gathered his bearings, dived from under the boat and managed to reach the surface.
Mark grabbed a hold of the anchor on the bow, pulled himself up onto the hull of the boat and saw Glenn standing on the motor. Mark said that he and Glenn both started swearing and tried to figure out what to do. They attempted to correct the boat, but it had completely capsized. Mark could see the lighthouse on Glen Point over his left shoulder and he estimated that they were about 100 metres out from land. Glenn was washed towards Mark, so that they both held onto the bow. A few minutes later Glenn said that there was something attached to his feet. Mark could see that Glenn’s trousers were around his ankles. Mark told Glenn what it was whereupon Glenn ripped his trousers off his ankles and threw them onto the boat. Glenn, helped by Mark, also took his jacket off.
Mark said that he and Glenn decided the best thing to do was to wait for the boat to be washed to shore. The boat drifted sideways into the boating channel. Mark reported that a rogue wave came from behind them washing them off the boat. They both went under the water and surfaced together. Mark estimated that they were then about 10 metres away from the boat. Mark said he told Glenn that they had to swim back to the boat. They started swimming and Mark managed to get hold of the anchor but could not see Glenn. Once a wave passed he could see Glenn’s hands, and the next minute Glenn was swept under the boat. Mark, still hanging onto the anchor, tried to reach down into the water as he could see Glenn below him. Glenn had both of his arms stretched out towards Mark, but his head was facing down. This was the last time Mark saw Glenn. Mark looked for Glenn but to no avail.
Mark then got on top of the hull of the boat, held onto a rope and started whistling for help. The boat drifted towards the tip of the Beachport jetty. Mark saw a trawler boat coming towards him, he stood up and waved his arms to get attention. The trawler boat, the Aussie Gem, came to Mark’s rescue between 10 and 20 minutes after Mark last saw Glenn.
Robert Morgan, a commercial cray fisherman reported that he had decided not to go out to sea on 26 December 2015 due to weather, wind and sea predictions. However, whilst on a walk at 6.20 am, he noted the boat heading out in a southerly direction towards Penguin Island.
At 7.00 am, Robert Morgan looked out to sea again and saw what he thought was someone standing on a tinny. He looked through a telescope and saw a male on top of an upturned boat. He then rang his son, Luke Morgan, and they made their way to their trawler, the Aussie Gem. They took the Aussie Gem from its mooring towards Penguin Island and rescued Mark from the upturned boat in the Rivoli Bay area. Robert Morgan said that it took a few attempts to get to the boat due to the swell and the wind. The Aussie Gem crew then searched the immediate area where Glenn was last been seen until about midday on 26 December 2015, locating the pants that Glenn had removed, a cap, a sling, a berley bucket, and a red cup.
Luke Morgan, also reported searching for Glenn after rescuing Mark and picking up a pair of camouflage pants, a baseball cap, and a sling from the water in the vicinity of the capsized boat. While they were searching, Mark told Luke Morgan that he and Glenn had gone out in Glenn’s boat to pull craypots near Penguin Island. Whilst trying to retrieve a craypot a wave hit the side of the boat, capsizing it. They had managed to climb onto the hull and the boat was drifting when another wave struck, washing them off the hull. Mark told Luke Morgan that he watched Glenn as he sank below the surface. Luke Morgan described the weather conditions on the morning of 26 December 2015 as winds from south to southwest of about 20 knots, the waves were about 2.5 metres, conditions he considered to be unsafe.
Brevet Sergeant Peter Phillips stated that he arrived at the Beachport boat ramp at about 8.35 am on 26 December 2015. Facing directly out to sea from the boat ramp, that is facing due east, he could see an upturned boat approximately 400 metres to the southeast of his location. It was approximately halfway between the tip of Glen Point and the Beachport jetty.
Brevet Sergeant Phillips obtained information, from the cray fishermen who had rescued Mark, that Mark had reported to the fisherman that he and Glenn were on the western side of Penguin Island when their boat capsized. They then hung onto the boat as it naturally drifted to the eastern side of Penguin Island. At this point, another wave hit the boat and Glenn went missing in the water. Brevet Sergeant Phillips said that, having been told this, he suspected that Glenn was already deceased, because if he were alive the natural swell direction and wind would have pushed him toward the jetty and there had been no sightings since he had been missing.
SAPOL’s water operation members and vessels, SAPOL PolAir members and aircraft, State Emergency Service members, and local private fishing vessels were involved in the marine, air, and land search to find Glenn.
Brevet Sergeant Mark Jacobs reported that police aircrew onboard PolAir 51 conducted a search of the area where Glenn was last seen, together with Kingston SES boats. He described that thorough searches of Penguin Island and a small rocky island to the northwest were completed, including stationary hovers by PolAir 51 at low altitude. He said that visibility into water on the south, west, and northwest sides of Penguin Island was poor due to breaking water and water movement.
After conducting thorough searches without locating Glenn, and being informed by crew on the search boats and PolAir 51 that Glenn would have been seen if he were on the water’s surface, the search was called off. Arrangements were made for a first light search on 27 December 2015. A snorkel search found a fishing rod holder, a leadlight bar, a pack of flairs, a grey deck mat, and a marine radio aerial northeast of the location where Mark was rescued from the capsized boat. Brevet Sergeant Jacobs stated that this indicates a drift line of the capsized boat past Penguin Island. The search for Glenn continued until 3 January 2016, when it was called off.
Brevet Sergeant Jacobs surmised that Glenn would have found it difficult to hold onto the capsized boat with a broken collarbone. He stated that once Glenn was swept off the boat, it would have been difficult for him to swim in the prevailing weather conditions.
Detective Brevet Sergeant Michael Pearson stated that he, along with another crime scene investigator, conducted an examination of Glenn’s boat. They observed significant damage to the roof and windscreens, particularly on the starboard side. This indicated to Detective Brevet Sergeant Pearson that the boat had been upside down and had possibly collided with rocks or another object. There was a scuffmark and dent approximately 1.5 metres from the stern on the port side of the boat. He observed damage to the cowling of the outboard motor. He also noted that the boat still held personal floatation devices that were unopened in their original packaging.
Brevet Sergeant Robert Martin described that Glenn held two accounts with Westpac and an activity check on both accounts conducted in December 2016 showed no activity consistent with personal use of either account since the capsizing of the boat. Enquiries were made of the Department of Human Services, which revealed that there had been no Medicare claims on behalf of Glenn between 26 December 2015 and 1 December 2016 and no claims against the Pharmaceutical Benefits Scheme.
Brevet Sergeant Martin stated that Glenn was an experienced and licensed boat operator and the boat he took out on 26 December 2015 was new and free from any obvious or contributing defects.
Brevet Sergeant Martin concluded that he found no evidence nor received any information to indicate that Glenn did not die due to drowning at Beachport on 26 December 2015. There was also no evidence or information to suggest that his death was in any way suspicious and was not the result of marine accident.
The will instructions
Wendy Robin Botting, a solicitor, deposed in an affidavit sworn on 18 August 2019 that she prepared the will instructions, which comprise the document sought to be admitted to probate. Ms Botting explained that Glenn and Sharlene attended her office for the purpose of providing instructions for the preparation of their wills. She took instructions from Glenn and after handwriting those instructions Glenn read over the will instructions and indicated to her that he approved them. Ms Botting explained to Glenn that upon signing the will instructions it would be his last will until a more formal document was prepared. Glenn then signed the will instructions at the bottom of each page in Ms Botting’s presence and Ms Botting witnessed the will instructions on the bottom of each page in Glenn’s presence. Sharlene followed the same procedure in relation to her will instructions.
Ms Botting deposed that, on 16 June 2015, Glenn and Sharlene came into her office in relation to Sharlene’s father’s estate. Ms Botting had drafted Glenn and Sharlene’s wills by that time, but they indicated that they did not have time to attend to their wills and another appointment was made for 31 July 2015.
On 31 July 2015, Sharlene and Glenn again attended Ms Botting’s office. After dealing with matters in relation to Sharlene’s father’s estate, Glenn and Sharlene again indicated that they did not have time to attend to the execution of their wills. Ms Botting stated that Sharlene, who was very unwell with cancer, appeared to find it hard to meet with her for very long, and Glenn was very focussed on Sharlene’s health needs.
The will instructions appoint Sharlene executor of Glenn’s estate and in the event that Sharlene cannot act, Sandra and Geoffrey as substitute executors. The will instructions provide that Glenn’s residuary estate is left to “my partner Sharlene Yvonne Bevilacqua provided she does survive me by 30 days, if not then I give devise and bequeath my residuary estate to my parents Sandra Elizabeth Bollen and Geoffrey Ernest Bollen in equal shares absolutely”. The will instructions are signed on each page by Glenn and by Ms Botting and are dated 22 April 2015 on the last page.
Sharlene died on 9 November 2016. There is no dispute that Sharlene had been Glenn’s domestic partner for many years at the time of his disappearance and would have been entitled to a declaration pursuant to s 11B of the Family Relationships Act 1975 (SA) that she was Glenn’s domestic partner as at the date of his death.
As Sharlene survived Glenn by 30 days, her estate benefits under the will instructions. Sharlene’s estate would also benefit under an intestacy.
The only persons who are adversely affected by the admission of the will instructions to probate as the last will of Glenn are Sandra and Geoffrey. They both seek and have consented to the order that the will instructions be admitted to probate as the last will of Glenn.
Conclusion
Sandra and Geoffrey are Glenn’s surviving next of kin. They have not seen him since or heard of him since Christmas Day 2015. The evidence relied on in support of Sandra and Geoffrey’s application satisfies me that Glenn drowned at sea near Beachport on 26 December 2016.
I am satisfied, having regard to the evidence of Wendy Botting and the terms of the will instructions, that the will instructions express the testamentary intentions of Glenn and that Glenn intended the will instructions to be his will.
Accordingly, I make the following orders:
1.Pursuant to r 68 of the Probate Rules 2015 (SA), the death of Glenn Travis Bollen late of 50 Admella Drive, Beachport SA 5280 may be sworn to have occurred on 26 December 2015.
2.Pursuant to s 35 of the Births, Deaths and Marriages Registration Act 1996 (SA), the Registrar of Births, Deaths and Marriages is directed to register the death of Glenn Travis Bollen, born 25 May 1975, as having occurred on 26 December 2015.
3.Upon the lodgement of a death certificate of Glenn Travis Bollen, the will instructions dated 22 April 2015 (“the will”), a copy of which is exhibit A to the affidavit of Geoffrey Ernest Bollen and Sandra Elizabeth Bollen sworn on 10 September 2019 and the original of which is in the Probate Registry, be admitted to proof pursuant to s 12(2) of the Wills Act 1936 (SA) as the last will and testament of Glenn Travis Bollen.
4.Probate of the will be granted to Sandra Elizabeth Bollen and Geoffrey Ernest Bollen as the substitute executors as described in the will.
Sharlene Bevilacqua, the executor as described in the will, survived Glenn Travis Bollen but has since died without having proved the will.
5.The costs of the application be paid out of the estate on a solicitor client basis.