GALL (DECEASED)

[2008] SASC 349

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

In the Estate of GALL (DECEASED)

[2008] SASC 349

Judgment of The Honourable Justice Gray

12 December 2008

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA - OTHER CASES

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - REVIVAL AND REPUBLICATION - BY CODICIL

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - OTHER WILLS, CODICILS OR WRITINGS

Ex parte application for admission of codicil to proof, for probate of last known will of deceased together with codicil, and for order that earlier codicil be taken to have been impliedly revoked by codicil sought to be proved – application brought with consent from all persons who may be prejudiced – deceased executed codicil in 2006 which complied with formalities of Wills Act 1936 (SA) (“2006 codicil”) – deceased executed further codicil in 2007 which was informal, being undated and attested to by only one witness(“2007 codicil”) – whether 2007 codicil entitled to be admitted to proof, pursuant to section 12(2) Wills Act – whether 2007 codicil impliedly revoked 2006 codicil, pursuant to section 12(3) Wills Act – whether 2006 codicil entitled to be admitted to proof.

Held, allowing the application:  The 2007 codicil expresses testamentary intentions of the deceased and was intended to constitute a codicil to deceased’s last known will – 2007 codicil entitled to be admitted to proof – evidence supports inference that 2007 codicil impliedly revoked 2006 codicil – it is not necessary to admit 2006 codicil to proof.

Wills Act 1936 (SA) s 3(1); s 12(2); s 12(3); s 22(b); Wills, Probate and Administration Act 1898 (NSW) s 18A; Succession Act 2006 (NSW) s 8, referred to.
Baumanis v Praulin (1980) 25 SASR 423; Cropley v Cropley [2002] NSWSC 349; In the Estate of EC Zimmerman (Unreported, Supreme Court of South Australia, Legoe J, 23 December 1992); In the Estate of Gerard deceased (2007) 251 LSJS 176; [2007] SASC 362; In the Estate of Graham deceased (1978) 20 SASR 198; In the Estate of Iris Marjory Frame deceased (2007) 248 LSJS 341; [2007] SASC 164; In the Estate of Kroemer (1988) 143 LSJS 160; In the Estate of Masters (Deceased) (1994) 33 NSWLR 446; In the Estate of Ryan, deceased (1986) 40 SASR 305; In the Estate of Schwarzkopff (2006) 94 SASR 465; In the Estate of Smith, deceased (1985) 38 SASR 30; In the Estate of Taylor deceased (1994) 175 LSJS 430; In the Estate of TLB (2005) 94 SASR 450; In the Estate of Torr (2005) 91 SASR 17; In the Estate of Williams, deceased (1984) 36 SASR 423; In the Estate or Armour, deceased (Unreported, Supreme Court of South Australia, Legoe J, 29 June 1995); IW v City of Perth (1996) 191 CLR 1; Payten v Perpetual Trustee Co Ltd [2005] NSWSC 345; Public Trustee v O’Donnell (2008) 101 SASR 228; Qantas Airways Ltd v Christie (1998) 193 CLR 280; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535; Re Buckley, deceased [1952] VLR 107; State of New South Wales v Amery (2006) 230 CLR 174, considered.

In the Estate of GALL (DECEASED)
[2008] SASC 349

Testamentary Causes Jurisdiction

GRAY J.

(In Chambers)

1. This is an application for the admission of a codicil to proof and for probate of the last known will of the deceased, Kathleen Price Gall, together with the codicil.  A further order is sought that an earlier codicil be taken to have been impliedly revoked by the codicil which is sought to be proved. 

2. The application is supported by affidavits from a number of deponents.  In setting out the material facts of this matter, and in making the findings recorded in these reasons, I have acted on this evidence.

   Material Facts

3. Kathleen Price Gall, died on 26 December 2007, aged 92 years.  She is survived by a son, David Marshall Gall, and a daughter, Karen Jane Hand.  The value of the  estate is of the order of $500,000.

4. The last known will of the deceased was prepared by Wilkinsons Solicitors, and was executed on 11 August 2004.  The execution was attested by two witnesses.  The will appoints Mr Gall as sole executor.  The will bequeaths items of the deceased’s property each to David Gall and Karen Hand, and the residue of the estate to each of them in equal shares.

5. On 21 August 2006, the deceased executed a codicil to her will (“the 2006 codicil”).  The execution was attested by two witnesses.  The codicil was prepared by solicitors, Scales & Partners.  The codicil provided for legacies of $20,000 each to the deceased’s grandchildren, Thomas John Gall and Lucille Jean Gall.

6. In October 2007, the deceased instructed solicitors Scales & Partners to prepare a further codicil.  In addition to the gifts of $20,000 to her two grandchildren, the deceased wished to leave the balance of funds in an ANZ bank account, an amount of approximately $50,000, to Mr Gall.  In a telephone discussion with a solicitor of the firm, the deceased could not decide whether to leave the balance of the account to Mr Gall or alternatively to provide for a legacy of $50,000.  The deceased and the solicitor agreed that two versions of the codicil would be prepared, one providing for a legacy of the balance of funds in the ANZ account, and the other providing for a legacy of $50,000.  The deceased would then decide which version she preferred.  On 25 October 2007, the solicitor drew the two versions of the codicil and posted them to the deceased.

7. Following the death of the deceased, Mr Gall located the will and a codicil in the top drawer of a chest of drawers at the deceased’s home.  The codicil was one of the two prepared by Scales and Partners, and by clause 4C provided for a legacy of $50,000 to Mr Gall (“the 2007 codicil”).  The 2007 codicil has been signed by the deceased and by one witness, Maria Rosa Vornam.  Ms Vornam has deposed to being present when the deceased signed the 2007 codicil and to having witnesses the deceased’s signing of the codicil.  She is able to date the occasion as 29 October 2007.  Mr Gall also located, torn up in a waste paper basket, the other codicil prepared by Scales & Partners which provided, by clause 4C, for a legacy of the balance of funds in the ANZ bank account to Mr Gall.  This codicil was unexecuted and undated.

   The Application

8. On 14 April 2008, Mr Gall, by ex parte summons, applied for admission of the 2007 codicil to proof, pursuant to section 12(2) of the Wills Act 1936 (SA), and for probate of the will and 2007 codicil. He also applied for an order that the 2006 codicil be taken to have been revoked by the 2007 codicil, pursuant to section 12(3) of the Wills Act.

9. The only persons who may be affected by the application are Mr Gall and Karen Hand.  Both consent to the application.  In these circumstances, I considered it appropriate proceed ex parte and to act on the affidavit evidence filed in support of the application.

10. The following three issues arise for consideration – whether the 2007 codicil is entitled to be admitted to proof; whether the 2007 codicil impliedly revoked the 2006 codicil; and whether the 2006 codicil is to be admitted to proof?

11. Before coming to address these issues, it is appropriate first to discuss the relevant provisions of the Wills Act.

    Legislative Scheme

12. As earlier observed, the application invokes the jurisdiction of this Court pursuant to subsections 12(2) and (3) of the Wills Act, which provide as follows:

    (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.

13. I refer to and adopt in these reasons the summary of the legislative history of subsection 12(2) and 12(3) as set out in my judgments in In the Estate of TLB[1] and In the Estate of Frame deceased.[2]

    [1]    In the Estate of TLB (2005) 94 SASR 450 at [20]-[28] (footnotes omitted).

    [2]    In the Estate of Iris Marjory Frame deceased (2007) 248 LSJS 341; [2007] SASC 164 at [32]-[35].

14. Section 12 is remedial in nature.  As Jacobs J observed In In the Estate of Graham deceased,[3]

    But if there is one proposition that may be stated with reasonable confidence, it is that s 12(2) is remedial in intent, that is to say, that its purpose is to avoid the hardship and injustice which has so often arisen from a strict application of the formal requirements of a valid will, as dictated by s 8 of the Act. This conclusion is, I think, clearly justified upon a review of the legislative history of the relevant sections of the Act, and the cases.

    [3]    In the Estate of Graham deceased (1978) 20 SASR 198 at 202. See also In the Estate of EC Zimmerman deceased (Unreported, Supreme Court of South Australia, Legoe J, 23 December 1992); Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 540 (Powell J).

15. The liberal construction to remedial or beneficial provisions was endorsed by the High Court in IW v City of Perth,[4] where Brennan CJ and McHugh J observed:[5]

    [It is a] rule of construction that beneficial and remedial legislation … is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.

    The “ample and beneficial operation”[6] of section 12 has been confirmed in subsequent cases.[7]

    [4]    IW v City of Perth (1996) 191 CLR 1 at 12 (footnotes omitted). See also State of New South Wales v Amery (2006) 230 CLR 174 at [138] (Kirby J) and Qantas Airways Ltd v Christie (1998) 193 CLR 280 at [152] (Kirby J).

    [5]    See also Public Trustee v O’Donnell (2008) 101 SASR 228 at [64] citing State of New South Wales v Amery (2006) 230 CLR 174 at [138] (Kirby J).

    [6]    In the Estate of Masters (Deceased) (1994) 33 NSWLR 446 at 452 (Kirby P).

    [7]    See eg. In the Estate of Williams, deceased (1984) 36 SASR 423 at 425 (King CJ), 433 (Legoe J); In the Estate of Torr (2005) 91 SASR 17 at [32] (Besanko J); In the Estate of Schwarzkopff (2006) 94 SASR 465 at [30]-[31] (Gray J);

16. Section 22 of the Wills Act, concerns the revocation of wills and codicils.  Of relevance to the present case, section 22(b) provides that a will or codicil may be revoked “by another will or codicil executed in the manner required by this Act.”

    Is the 2007 Codicil Entitled to Proof Pursuant to Section 12(2)?

17. It is clear, from the definition of “will” in section 3(1),[8] that a codicil is capable of being admitted to proof as a will under section 12(2) of the Wills Act. This proposition has been confirmed by decisions of this Court.[9]

    [8]    Sect 3(1) of the Wills Act, defines the word "will" as follows:

    "will" includes testament, codicil, appointment by will or by writing in the nature of a will in exercise of a power and a disposition by will and testament or devise of the custody of and tuitition of any child by virtue of the Imperial Act passed in the twelfth year of the reign of King Charles the Second, Chapter 24, and any other testamentary disposition.

    [9]    In the Estate of Kroemer (1988) 143 LSJS 160; In the Estate of EC Zimmerman (Unreported, Supreme Court of South Australia, Legoe J, 23 December 1992); In the Estate of Taylor deceased (1994) 175 LSJS 430; In the Estate of Gerard deceased (2007) 251 LSJS 176, [2007] SASC 362.

18. The 2007 codicil is undoubtedly informal, as in the absence of two attesting witnesses it does not strictly comply with the provisions of section 8 of the Wills Act. Section 12(2) may be called in aid to admit the 2007 to proof, given the defect of the absence of a second witness.

19. In In the Estate of Williams, deceased,[10] Legoe J observed that the criteria for applying section 12(2) were threefold. Namely, that the document for proof must be one that embodies testamentary intentions; has not been executed with the formalities required by the Wills Act; and the court is satisfied that it is a document in respect of which there can be no reasonable doubt that the deceased intended the same to constitute a codicil to the deceased’s last known will.  Notwithstanding these general criteria, each application must be considered on its own facts.[11]

    [10]   In the Estate of Williams, deceased (1984) 36 SASR 423 at 433, subsequently confirmed in In the Estate of Ryan, deceased (1986) 40 SASR 305 at 309 (O’Loughlin J),

    [11]   In the Estate of Smith, deceased (1985) 38 SASR 30 at 33 (Bollen J); Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 539 (Powell J).

20. In the present case, the 2007 codicil speaks for itself.  It is described as a “codicil” and instructs the deceased’s executor to give money to certain beneficiaries.  The circumstances of this case bear similarity to Cropley v Cropley.[12]  In this decision, Barrett J considered, inter alia, an application by the deceased’s son and executor for probate of the last known will of the deceased, together with a document that was headed “Codicil to Will of David Oswald Cropley”.  The document described as a codicil was signed by the deceased[13] in the presence of two persons, but it was signed by only one of those persons.  As the document described as a codicil was not executed in accordance with the formal requirements of the Wills, Probate and Administration Act 1898 (NSW), the application for its admission to proof was made pursuant to section 18A of the Act, which then provided:[14]

    (1)  A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute the person’s will, an amendment of the person’s will or the revocation of the person’s will.

    (2)  In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person.

    [12]   Cropley v Cropley [2002] NSWSC 349. The factual circumstances of the present case are also similar to those in In the Estate or Armour, deceased (Unreported, Supreme Court of South Australia, Legoe J, 29 June 1995).

    [13]   As to the significance of signature as evidence of testamentary intention see also Baumanis v Praulin (1980) 25 SASR 423 at 426 (Mitchell J).

    [14] Section 18A of the Wills, Probate and Administration Act 1898 (NSW) was repealed and replaced by section 8 of the Succession Act 2006 (NSW), with effect from 1 March 2008.

21. Barrett J considered that significant to the determination of the application were the following: that the document was entitled a “codicil”; described dispositions which were to occur on and in consequence of death; was signed by the deceased; and was attested by a witness.  His Honour relevantly observed:[15]

    The question concerning the purport of the January document - that is, whether it purports to embody testamentary intentions of Dr Cropley - must be answered principally by reference to the terms of the document itself. The answer is, to my mind, clear. The document is headed “Codicil to Will of David Oswald Cropley”. Any document describing itself as a “codicil” and which goes on to “revoke the capital payment upon my death” and to say that “upon my death the capital is to be divided ...” describes dispositions which are to occur on and in consequence of the author's death. It is therefore a document which purports to embody testamentary intentions.

    The second question is whether, on the evidence, the court should be satisfied that Dr Cropley intended the January document to constitute an amendment of his will. It is significant that Dr Cropley wrote the document himself and, in so doing, described it as “Codicil to Will of David Oswald Cropley”. As an educated professional man, Dr Cropley may be taken to have known the dictionary definition of “codicil” as “A supplement to a will, added by the testator for the purpose of explanation, alteration, etc, of the original contents”: The New Shorter Oxford English Dictionary, 1993 edition. Dr Cropley's choice of heading should for that reason alone be taken to reflect a subjective intention to modify his will. Such an intention is in any event borne out by the parts of the document dealing with revocation and substituted provision as to division of capital “upon my death”. The revocation reference can only be consistent with an intention to change what was already in his will; and the equal division reference can only be consistent with an intention to make alternative provision taking effect upon death.

    …

    The fact that Dr Cropley signed the January document shows that he intended to authenticate it in such a way to give it operative force. A finding of that intention is reinforced by Dr Cropley's having had Rex Boulton sign as witness. He may be presumed to have intended to give his signature some added significance by obtaining, in case it should ever be needed, a means of third party confirmation of his having signed. All formalities necessary to give the January document the status and effect of a codicil were observed, with one exception: whereas it was signed by Dr Cropley in the presence of two other persons (Rex Boulton and Glenn Boulton), it was signed by only one of those two persons.

    Barrett J concluded that the document described as a codicil was intended to constitute an amendment of the deceased’s last known will, and purported to embody the testamentary intentions of the deceased, such that it constituted an amendment of the will by operation of section 18A of the Wills, Probate and Administration Act.

    [15]   Cropley v Cropley [2002] NSWSC 349 at [22]-[23], [25].

22. The analysis and reasoning in Cropley can be directly applied in the present case, to support the admission of the 2007 codicil to proof, pursuant to section 12(2) of the Wills Act.  As earlier observed, the 2007 codicil is described as a “codicil” and describes dispositions which are to occur on and in consequence of the deceased’s death.  The 2007 codicil is signed by the deceased and attested by one witness.  I do not consider that having regard to the evidence of Ms Vornam, it is material that the 2007 codicil is undated.  I find further support for the inferences that the 2007 codicil embodies testamentary intentions and was intended to constitute a will, by the fact that the 2007 codicil was found in the same physical location and together with the last known will of the deceased.

23. I am satisfied that the 2007 codicil expresses testamentary intentions of the deceased and that the deceased intended the 2007 codicil to constitute a codicil to her will. I find that the 2007 codicil is capable of being admitted to proof as a will of the deceased pursuant to section 12(2) of the Wills Act.

    Does the 2007 Codicil Impliedly Revoke the 2006 Codicil?

1. Implied revocation may arise where the testator has executed two testamentary documents and the later one does not contain an express revocation clause.  It then becomes a question of construction to determine whether the later document has impliedly revoked the earlier will.

2. As earlier observed, the application for the revocation of the 2006 codicil is made pursuant to subsection 12(3) of the Wills Act. Pursuant to that provision, the Court is required to consider whether the 2007 codicil revokes the 2006 codicil notwithstanding that the 2007 codicil has not been executed in accordance with the formalities as required by section 22(b) of the Wills Act.

3. Save for the insertion of clause 4C, the wording of the 2006 codicil and the 2007 codicil is identical.  Both are described as a “first” codicil.  Both confirm the will dated 11 August 2004.  The same firm of solicitors drew both codicils.  More specifically, a solicitor in the employ of Scales & Partners, attested the 2006 codicil and drew the 2007 codicil.

4. The decision in Re Buckley, deceased,[16] is factually similar to the present case.  That authority[17] concerned a dispute between the admission to proof of two codicils to the last known will of the deceased.  The will, executed on 14 February 1936, bequeathed the deceased’s real and personal property to his sister, should she survive the deceased.  The first codicil was executed by the deceased on 5 July 1939 and provided for legacies to two religious institutions.  The second codicil was executed by the deceased on 11 July 1939 and was identical to the first codicil in all respects save for the insertion of a condition that the two legacies would only be distributed in the event that the deceased’s sister predeceased the deceased, or the death of both the deceased and his sister, in circumstances rendering it uncertain which survived the other.  Both codicils were drawn up by the same firm of solicitors and attested by the same solicitor.  The question before the Court was whether the second codicil impliedly revoked the first codicil.  Sholl J considered that the following facts were salient in reaching his conclusion that the second codicil did in fact impliedly revoke the first codicil:[18]

   [T]he identity of the beneficiaries and the amounts in the codicils, the proximity of the dates, the identity of the text, save for the insertion of the condition, the fact that both codicils refers to the “will” as the “last will dated the 14^th day of February 1936” …, the fact that the same solicitor witnessed both codicils, and the prima facie unlikelihood that, especially within so short a period, any testator or his draftsman would make such a codicil as the second codicil is, if he intended the first codicil still to operate and the benefits of both to be cumulative …

   [16]   Re Buckley, deceased [1952] VLR 107

   [17]   Re Buckley, deceased [1952] VLR 107

   [18]   Re Buckley, deceased [1952] VLR 107 at 116.

5. In my view, the reasoning in Re Buckley is apposite to the present case.  In particular, the fact that, save for clause 4C, the wording of the 2006 and 2007 codicils is identical, both confirm the will dated 11 August 2004 and both were drawn by the same firm of solicitors supports a conclusion that the 2007 codicil impliedly revoked the 2006 codicil.

6. Since Re Buckley, cases have suggested that in circumstances where the question of implied revocation may arise, the central issue is one of construing the testator’s intention, and that oral and extrinsic evidence is admissible for this purpose.[19]

   [19]   Payten v Perpetual Trustee Co Ltd [2005] NSWSC 345 at 100 (Austin J) citing In the Estate of Brian [1974] 2 NSWLR 231 and Re Fairhurst [1976] 1 NZLR 51.

7. In the present case, the Court has the advantage of extrinsic affidavit evidence from the solicitor who witnessed the 2006 codicil and drew up the 2007 codicil.  In her affidavit of 28 May 2008, the solicitor refers to taking instructions for a “new codicil”.  Annexed as an exhibit to the solicitor’s further affidavit of 3 April 2008 is a letter from the solicitor to the deceased which refers to a telephone attendance “in regards to changes to your Codicil” and which encloses two versions of the codicil (one of which was the 2007 codicil) for the deceased’s perusal.  Although the solicitor does not directly depose to taking instructions to draw up a codicil which would revoke or supersede the 2006 codicil, the above facts strongly support this inference.

8. In conclusion, for the above reasons, I am satisfied that 2007 codicil impliedly revokes the 2006 codicil in accordance with subsections 22(b) and 12(3) of the Wills Act. In reaching this conclusion I do not consider that it is material that both codicils are referred to as a “first” codicil.

   Is the 2006 Codicil to be Admitted to Proof?

9. In some circumstances, an intermediate codicil should be admitted to probate notwithstanding that it has been revoked by a later codicil, where it alters the terms of the will.[20]  Where, however, an intermediate codicil that does not revoke or vary the terms of the will is revoked by a later codicil, the practice has been that the intermediate codicil is not admitted to probate.  The 2006 codicil is such a codicil – it provides for new legacies that were not contemplated by the will, but does not actually alter the terms of the will at all – the specific gifts and the residuary gifts contained in the will continue to operate without any change.

   [20]   JI Winegarten, R D’Costa and T Synak, Tristram & Coote’s Probate Practice (29^th ed, 2002) at 3.163; John Ross Martyn and Nicholas Caddick, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (19^th ed, 2008) at 23-18.

10. It is a nice question as to whether the 2006 codicil should be admitted to proof.  If admitted it allows a full and transparent understanding of the evolving testamentary wishes of the deceased.  On the other hand it is not necessary to admit the 2006 codicil to proof to allow for the proper administration of the estate of the deceased.  In the circumstances of this matter, as these reasons fully set out the events that occurred, I do not consider that the 2006 codicil should be admitted to proof.

    Conclusion

11. For the above reasons, I allow the application and order as follows:

    -That the 2007 codicil be admitted to proof as a codicil to the last known will of the deceased dated 11 August 2004.

    -That probate of the last known will of the deceased dated 11 August 2004 and the 2007 codicil be granted to David Marshall Gall, son of the deceased and the sole executor therein named.

    -That the costs of an incidental to this application and order be paid out of the estate of the deceased.