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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] SASC 197
Decision Date: 19 November 2019

CaseChat Overview and Summary

In the matter of Fox Tucker Lawyers v Panda, Sandra Elizabeth Bollen and Geoffrey Ernest Bollen, as the parents of Glenn Travis Bollen, applied to the court to swear the death of their son who disappeared at sea on 26 December 2015. They sought an order under the Wills Act 1936 (SA) that a document comprising will instructions dated 22 April 2015 be admitted to proof as Glenn's last will and that probate of the will instructions be granted to them as substitute executors. The court was required to determine whether the will instructions expressed Glenn's testamentary intentions and whether they intended the will instructions to be his will.

The court found that the evidence satisfied it that Glenn drowned at sea near Beachport on 26 December 2016. It was also satisfied, having regard to the evidence of Wendy Botting and the terms of the will instructions, that the will instructions expressed the testamentary intentions of Glenn and that Glenn intended the will instructions to be his will. The court noted that the only persons adversely affected by the admission of the will instructions to probate as the last will of Glenn were Sandra and Geoffrey, who both sought and had consented to the order that the will instructions be admitted to probate as the last will of Glenn.

Accordingly, the court made orders that the death of Glenn Travis Bollen late of 50 Admella Drive, Beachport SA 5280 may be sworn to have occurred on 26 December 2015. It directed the Registrar of Births, Deaths and Marriages to register the death of Glenn Travis Bollen, born 25 May 1975, as having occurred on 26 December 2015. The will instructions dated 22 April 2015 were admitted to proof as the last will and testament of Glenn Travis Bollen, and probate of the will was granted to Sandra Elizabeth Bollen and Geoffrey Ernest Bollen as the substitute executors as described in the will. The costs of the application were to be paid out of the estate on a solicitor client basis.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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