Ghan v Ghan - [2014] SASC 176

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
GHAN v GHAN
[2014] SASC 176
Reasons for Decision of The Honourable Justice Gray
18 November 2014
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - GENERALLY
Application to admit a will in solemn form. The deceased made a will in 1985, the validity of which was never in dispute. The deceased also authored a number of letters in 2004 and 2005 which could be considered testamentary in nature. The parties reached a compromise and agreed that the 1985 will should be admitted in solemn form. The parties further sought an order pronouncing against the validity of the most recent of the letters, a letter dated 14 October 2005. A determination of the status of the earlier letters was not pursued.
Whether to admit the 1985 will in solemn form. Whether the letter dated 14 October 2005 satisfies the requirements of section 8 of the Wills Act 1936. Whether, if the letter dated 14 October 2005 does not satisfy the requirements of the Wills Act 1936, it satisfies the requirements of section 12(2) of the Wills Act 1936.
Held (allowing the application):
1. The will duly executed on 11 November 1985 is a valid will and should be admitted in solemn form.
2. The letter dated 14 October 2005 does not satisfy the requirements of section 8 of the Wills Act 1936 as it was only witnessed by one person.
3. The letter dated 14 October 2005 expresses testamentary intentions as it addresses the distribution of the deceased’s estate in the context of him farewelling his children.
4. The letter dated 14 October 2005 does not satisfy the requirements of section 12(2) of the Wills Act 1936 as the evidence does not establish that it was intended to be a testamentary document. Rather, it was part of an ongoing dialogue concerning the distribution of the deceased’s estate.
Wills Act 1936 (SA) s 8 and s 12, referred to.
In the Estate of Nora Anella Leber (deceased) [2014] SASC 47; Boettcher v Driscoll and Anor (2014) 119 SASR 523; Fielder v Burgess [2014] SASC 98; In the Estate of William Edward Dodds (deceased) [2013] SASC 56; In the Estate of TLB (2005) 94 SASR 450; In the Estate of Ashley David Schwartzkopff (2006) 94 SASR 465; In the Estate of Graham (Deceased) (1978) 20 SASR 198, considered.

GHAN v GHAN
[2014] SASC 176
Testamentary Causes Jurisdiction
GRAY J.

This is an application for a grant of probate in solemn form.
Background
Tjoe Tjoan Ghan, known as Peter Ghan, the deceased, died on 18 July 2008 at his home in St George’s, South Australia. His wife, Gek Hoen Ghan, predeceased him. The deceased is survived by his three sons, who are all specialist medical practitioners resident in South Australia: the plaintiff, Francis Djin An Ghan; the first defendant, Stephen Djin Kiat Ghan; and the second defendant, Michael Djin Kiong Ghan.
The deceased made a will dated 11 November 1985. Gek is named executor in the will and Francis is named substitute executor. The will provided that the entirety of the deceased’s estate would pass to his wife. If she predeceased, the estate would pass in equal shares to his sons.
On 9 May 2013, Francis filed a summons and statement of claim seeking, inter alia, an order pronouncing the validity of the 1985 will in solemn form. The statement of claim did not refer to any other documents of a testamentary nature.
Stephen, by his defence, pleaded that documents dated 14 September 2005 and 14 October 2005 “may” be codicils to the 1985 will. Michael, by his defence, adopted the same position as Francis.
In his affidavit sworn on 26 February 2014, Stephen states that the deceased wrote a number of letters to his sons in the years before his death which addressed the distribution of the deceased’s assets. It is unclear whether all of these letters were put before the Court. Stephen further states that the deceased made a number of attempts to discuss the distribution of his assets with his sons. No evidence was led of the contents of these discussions.
In his affidavit sworn on 8 May 2014, Francis states that he made enquiries with Playfords Solicitors, who drafted the 1985 will on instructions from the deceased, but they have no records of any further wills executed by the deceased.
In his affidavit sworn on 14 April 2014, Francis exhibits copies of four documents that may be considered testamentary in nature. These documents, dated 20 February 2004, 30 March 2005, 14 September 2005 and 14 October 2005, are all letters handwritten by the deceased. The first three letters are written in Indonesian. The most recent letter is written in English. Francis also provided a typed copy of each letter and an English translation of the letters which were written in Indonesian. It is to be understood that I have relied upon the English translations of the letters written in Indonesian. The deceased’s handwriting, as it appears in the copies of the letters provided to the Court, is extremely difficult to comprehend and I have not had the benefit of inspecting the original letters. As far as I can tell, the typed version of the English letter is an accurate reproduction of the copy of the handwritten letter exhibited to Francis’ affidavit.
The letter dated 20 February 2004 is addressed to “An, Kiat, Kiong” and sets out the following division of the St George’s property: one sixth share to An, one half share to Kiat and one third share to Kiong. The letter further states that “Mama / Papa do not owe any monies to anyone” and that all bills have been paid as at the date of the letter. The letter does not appear to be signed or witnessed.
The letter dated 30 March 2005 is addressed to “An, Kiat, Kiong” and is signed by the deceased but does not appear to have been witnessed. The letter states that “Papa last few days not feeling well” and that:
Papa is writing this so that An, Kiat, Kiong know remember all our lives that remainder divide by three An, Kiat, those shares in KINOL, MUJARAB, IDO, gold 3 kg; shares in Phapros, car kidjang and money with Dian ±4,000 and there is jewellery whatever have not yet mentioned before what is for who An, Kiat, Kiong divide
The letter concludes with “Farewell from Papa”.
The letter dated 14 September 2005 is titled “Ghan Tjoe Tjoan” and is signed by the deceased but does not appear to have been witnessed. The letter has the following header: “Copy 14/9/05 Original ĉ An”. The letter lists the deceased’s three sons and the addresses of the St George’s property and a property in Indonesia. The letter further states:
To Djin Kiat adding on to whatever I’ve given in the past similarly to what I’ve given to Djin Kiong adding on to whatever I’ve given in the past
1/6 to Djin An adding on to whatever I have given in the past
The letter dated 14 October 2005 is signed by the deceased and witnessed by A Patching, the deceased’s carer. It is convenient to set out the text of this letter, as set out in the typed version provided by Francis, in full:
Copy
Adelaide Friday
14^th October 2005
My wife and me give the house on Portrush Road St Georges to my son Ghan Djin Kiat and the remainder belong to An, Kiat Kiong and the remainder belong to An, Kiat, Kiong
- One thing I want. Rem... Remember stay together and help each other in time of need
We say good bye to all of you
Daddy & Mum
The text “Witness [signature A Patching] 14^th October, 2005 A Patching” appears in the far left margin of the page. The text “Daddy [the deceased’s signature]” and a date written in shorthand appears in the far right margin of the page. It is unclear whether the date under the deceased’s signature is “13/10/15” or “14/10/15”.
In his affidavit sworn on 11 February 2014, Francis lists the assets which he believes exist and vest in the estate as follows.
-A residential property in St George’s, South Australia, valued at approximately $450,000.00.
-Approximately $62,400.00 cash, being rental income from the St George’s property, which is held by Stephen, who has rented out the property for about three years.
-Two residential properties at Palembang, Indonesia, with a combined value of approximately $250,000.00, registered in the name of Michael’s wife and held on trust for the estate.
-Approximately three kilograms of gold bullion valued at approximately $145,000.00, which cannot be found.
-Approximately $20,000.00 cash in bank accounts.
-84,000 fully paid ordinary shares with a value of approximately $30,000.00 in P.T. Phapros Tbk, a company registered in Indonesia. These shares are registered in the name of Michael’s wife and held on trust for the estate.
-$35,500.00 cash, being rental income from the properties in Indonesia and dividend payments from the shares in P.T. Phapros, held by Francis.
After accounting for liabilities, including expenses incurred by Stephen renovating the St George’s property, Francis estimates that the net value of the estate is just under $900,000.00.
The Application
The parties reached a compromise in this proceeding. The parties agreed that the 1985 will is a valid will and the last will and testament of the deceased and sought an order pronouncing the force and validity of the 1985 will in solemn form. The parties sought a further order pronouncing against the validity of the letter dated 14 October 2005. Further to this agreement, Stephen did not pursue a determination on the status of the deceased’s letters discussed earlier in these reasons. The parties’ agreement notwithstanding, I must still be satisfied that the 1985 will should be admitted in solemn form and that I should pronounce against the validity of the letter dated 14 October 2005.
Before turning to consider the issues on the application it is convenient to set out the relevant provisions of the Wills Act 1936 (SA). The requirements for the valid execution of a will are set out in section 8 as follows:
Requirements as to writing and execution of will
Subject to this Act, no will is valid unless it is in writing and executed in the following manner:
(a)     it must be signed by the testator or by some other person in the testator's presence and by the testator's direction; and
(b)     it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
(c)     the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)     the witnesses must attest and sign the will (but no form of attestation is necessary); and
(e)     the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).
Section 12 addresses the validity of wills in certain circumstances and relevantly provides:
Validity of will
...
(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.
...
I am satisfied that the 1985 is a valid will. It is to be noted that the validity of the 1985 will itself was never in issue and no evidence before the Court cast any doubt over the validity of that will.
The deceased’s letter dated 14 October 2005 does not satisfy the requirements of section 8 of the Wills Act as it has only been witnessed by one person.
The application of section 12(2) of the Wills Act has been considered on a number of occasions.[1] Section 12(2) of the Wills Act is a remedial provision intended to avoid the injustice which may be occasioned by a strict application of the formal requirements for a valid will set out in section 8.[2] Before making an order under section 12(2), the court must be satisfied on the balance of probabilities that the document expresses testamentary intentions of the deceased and that the deceased intended the document to constitute his will.[3]
[1] See In the Estate of Nora Anella Leber (deceased) [2014] SASC 47; Boettcher v Driscoll and Anor (2014) 119 SASR 523; Fielder v Burgess [2014] SASC 98; In the Estate of William Edward Dodds (deceased) [2013] SASC 56. See also In the Estate of TLB (2005) 94 SASR 450 for a summary of the legislative history of section 12(2) of the Wills Act 1936 (SA) and In the Estate of Ashley David Schwartzkopff (2006) 94 SASR 465 for a survey of the authorities.
[2] In The Estate of Graham (deceased) (1978) 20 SASR 198, 202.
[3] Note that the definition of “will” in section 3(1) of the Wills Act 1936 (SA) includes a codicil.
The letter dated 14 October 2005 addresses the division of assets and is written in the context of the deceased farewelling his children. I am satisfied that the letter expresses testamentary wishes of the deceased.
I am not satisfied that the deceased intended his letter dated 14 October 2005 to constitute a codicil or otherwise modify his 1985 will. It is apparent that the deceased was aware of the procedure for preparing a formal will as he had made one in 1985. However, despite his considerable assets, he does not appear to have instructed solicitors to draft a new will or codicil around the time of writing the October 2005 letter, or any of his other letters. There was no evidence that he had taken, or intended to take, any steps to instruct a solicitor concerning the preparation of a new will or codicil.
It is to be recalled that this letter was apparently written as part of a series of letters and discussions about the deceased’s testamentary wishes. The defendant may be taken to be aware of his 1985 will, and his other letters and conversations with the parties. However, he makes no reference to them in his October 2005 letter. No evidence was led from Ms Patching as to the circumstances surrounding her witnessing the letter. No evidence was led of any other discussions or correspondence between the parties and the deceased around the time of the writing of the letter, except the letters referred to earlier in these reasons. Although there is an air of finality in the tone of the letter, similar sentiments were expressed in the letter dated 30 March 2005. The available evidence does not satisfy me that the deceased intended that this particular letter should be his will or codicil as opposed to part of ongoing dialogue concerning his estate.
As noted above, the deceased’s handwriting as it appears in the copy of the letter put before the Court is extremely difficult to read. I am unwilling to pronounce in favour of the document without at least having had the opportunity to carefully scrutinise the original so as to satisfy myself, for example, whether the deceased signed it on 14 October or 13 October – the day before Ms Patching witnessed the letter.
In circumstances where the parties have agreed on a compromise in these proceedings, and the 1985 will provides for what is, prima facie, a reasonable distribution of the estate between the parties, pronouncing against the October 2005 letter would not lead to a harsh or unjust outcome. I am also satisfied that all persons with an interest in the estate have been represented.
Conclusion
I pronounce the force and validity of the last will and testament of Tjoe Tjoan Ghan, known as Peter Ghan, being the will duly executed on 11 November 1985. I pronounce against the force and validity of the letter dated 14 October 2005.