Hamilton v Nelson - [2012] SASC 219

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of VALMAI JEWEL ROCHE (DECEASED)
HAMILTON & ANOR v NELSON & ORS
[2012] SASC 219
Judgment of The Honourable Justice Gray
7 December 2012
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - CHANGING, TRANSPOSING, OMITTING OR SUPPLYING WORDS - OMITTING WORDS
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF COURT - SOUTH AUSTRALIA
The deceased executed a last will and testament on 22 October 1981 - order sought by the plaintiffs propounding against the last will and testament - the plaintiffs alleged that at the time of the making of her last will, the deceased was delusional and sought an order that the will and codicil were invalid and that, as no other revoked or current will could be found, the estate of the deceased should be administered on the basis of an intestacy - prior to the proceedings coming on for trial, the parties entered into a deed of settlement and it was subsequently varied - the parties tendered to the Court minutes of order to give effect to the terms of the parties’ deed of settlement as varied - an order was sought by the plaintiffs to the effect that words be omitted from clause 3 of the will on the basis that they are offensive and libellous - whether the deceased had testamentary capacity - whether the words should be removed from clause 3 - whether to make the deed of settlement as varied a rule of court.
Held: Grant of administration with the will and codicil annexed made in favour of the plaintiffs and Shauna Roche - the deceased had testamentary capacity at the time of making her last will - the impugned words in clause 3 of the will were not excised from the will - the deed of settlement was not made a rule of court.
Administration and Probate Act 1919 (SA) s 5; Probate Rules 2004 (SA) r 31, r 32, r 66 and r 72.01, referred to.
Re Crooks (Estate); Akerman v Brown (Unreported, Supreme Court of New South Wales, Young J, 14 December 1994) 29; Public Trustee v Cawthorne & Ors (1993-1994) 175 LSJS 90; D’orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Rasheed v Rasheed (1999) 73 SASR 346; In the Estate of Enjakovic Deceased (2008) 100 SASR 486, 492; In the Estate of Hall (dec’d) [1943] 2 All ER 159; Re Maxwell (1929) 140 LT 471; In Estate of Ward (2006) 244 LSJS 326; In the Estate of Brummitt (Deceased) [2011] SASC 116; Re Estate of Adler (1999) 155 LSJS 53; Re N [1950] ALR 189; In the Estate of Hawke (1973) 6 SASR 278; Re Estate of L (deceased) (1996) 185 LSJS 406; In the Goods of Bowker [1932] P 93; In the Will of O'Reilly [1927] VLR 533; In the Estate of White [1914] P 153, considered.

In the Estate of VALMAI JEWEL ROCHE (DECEASED)
HAMILTON & ANOR v NELSON & ORS
[2012] SASC 219
Civil
GRAY J.

These proceedings arise from a dispute concerning the estate of Valmai Jewel Roche who died in Adelaide on 11 March 2009 aged 81 years.
Deborah Ann Hamilton and Fiona Roche, the plaintiffs, are two of the children of the deceased. Shauna Roche, their sister, is the only other child of the deceased. The deceased and John Justin Roche were married on 8 November 1952. Mr Roche was the father of the three children of the deceased. Mr Roche and the deceased divorced in about November 1983.
The deceased executed her last will and testament on 22 October 1981. The will is in the following terms:
THIS IS THE LAST WILL AND TESTAMENT of me VALMAI JEWEL ROCHE of 58 Palmer Place, North Adelaide in the State of South Australia, Married Woman.
1.I HEREBY REVOKE all former Wills and testamentary dispositions heretofore made by me and declare this to be my last Will and Testament.
2.I APPOINT ELEANOR FRANCES NELSON … Barrister to be the sole Executrix and Trustee of this my Will and Testament (hereinafter referred to as “my Trustee”).
3.I GIVE
(a) all my jewellery to my three daughters FIONA ROCHE, DEBORAH ANN ROCHE and SHAUNA ROCHE in equal shares between them upon the condition that they do first read all my personal diaries for the period commencing the 1st day of January 1974 to the date of this Will and can satisfy my Trustee herein named that they have read all the said diaries by answering correctly any questions concerning the said diaries asked by my Trustee as proof that they have read the same provided however that if any of my daughters shall not satisfy my Trustee that she has read the said diaries then that daughter’s share of the said jewellery shall pass to the Knights of the Southern Cross Pty. Limited for their sole use and benefit absolutely.
(b) 30 pieces of silver of the lowest denomination of currency being the blood money due to Judas to each of my husband JOHN JUSTIN ROCHE for my mother’s life and to each of my aforesaid daughters for my life.
4.I GIVE, DEVISE AND BEQUEATH the whole of the residue of my estate both real and personal of whatsoever nature and kind and wheresoever situated UPON TRUST to my Trustee to sell call in and convert such part or parts of my estate as shall consist of money to pay with and thereout my just debts and funeral and testamentary expenses and to stand possessed of the residuary trust monies UPON TRUST for the Knights of the Southern Cross Pty. Limited and to invest the same and use the income derived therefrom for the purpose of providing emergency services for those persons who cannot afford the same.
5.I EMPOWER my Trustee to invest and change investments freely in any investments approved by the Trustees Act.
6.I DIRECT that my Trustee do publish in The Australian Newspaper and one other daily newspaper in the State of South Australia on one occasion the Art Work and Article which I have directed to be prepared and which is kept in the same envelope as my Will.
I DIRECT that such Article shall be published within three (3) months of the date of my death.
I DIRECT that the cost of same be paid as a debt of my estate.
7.I DIRECT that my body be cremated and then my ashes be placed in my mother’s burial plot at Centennial Park in the State of South Australia.
8.I SPECIFICALLY EXCLUDE my husband JOHN JUSTIN ROCHE from any further benefits under this my Will because:-
(a)of the irretrievable breakdown of our marriage;
(b)I have assisted him during my lifetime to accumulate assets;
(c)He is well provided for at the date hereof.
9.I FURTHER SPECIFICALLY EXCLUDE my children abovenamed from any further benefits under this my Will because they have been adequately provided for during my lifetime and because of their estrangement during the last few years prior to the date of execution of this my Will.
On 23 October 1987, the deceased executed a codicil in the following terms:
THIS A FIRST CODICIL TO THE LAST WILL AND TESTAMENT of me VALMAI JEWELL ROCHE formerly of … in the State of South Australia Married Woman but now of … aforesaid Company Director which Will bears date the 22nd day of October One Thousand Nine Hundred and Eighty One.
1.I GIVE AND BEQUEATH and do hereby entail to my daughter the said FIONA ROCHE all my estate and interest in the French Empire desk measuring 29½” by 55” by 29” high in accordance with the Order of the Honourable Mr. Justice Gun in the Family Court of Australia at Adelaide No. A298 of 1980.
2.IN all other respects I confirm my said Will.
The codicil was executed following the deceased’s divorce from Mr Roche and, in particular, following orders of the Family Court in respect of the division of their property.
By their second statement of claim, the plaintiffs sought an order propounding against the last will and testament of the deceased of 22 October 1981. The plaintiffs alleged that at the time of the making of her last will, the deceased was delusional. It was said that this delusional state led the deceased to fundamentally misapprehend the claim which her children had upon her estate such that she was not capable of making a reasonable and proper disposition of her property at the time she gave instructions for or executed her will and codicil. The plaintiffs sought an order that the will and codicil were invalid and that, as no other revoked or current will could be found, the estate of the deceased should be administered on the basis of an intestacy.
The defendants in the proceedings are Eleanor Frances Nelson QC, Shauna Roche, Mr Roche[1] by his litigation guardian and Knights of the Southern Cross (SA) Incorporated. An affidavit sworn by the solicitor for the plaintiffs on 4 June 2012 deposed that the Knights of the Southern Cross (SA) Incorporated, so described, no longer exists. It was submitted that the correct description of the intended entity was Knights of the Southern Cross (SA) Incorporated (A518) and Southern Cross Care (SA and NT) Incorporated, both of which are parties to the deed of settlement discussed below.
[1] Mr Roche passed away on 24 April 2010.
Prior to the proceedings coming on for trial, the parties commenced negotiations with a view to resolving all issues. The negotiations were successful and a deed of settlement was entered into on 30 November 2011. The parties agreed as to the manner of distribution of the assets of the deceased. The deed of settlement underwent several variations, ultimately leading to the parties tendering to the Court minutes of order. The minutes give effect to the terms of the parties’ final deed of settlement and an order has been sought making the minutes a rule of court.
Testamentary Capacity
Following my review of the evidence on file, I directed that the solicitor who took instructions and drew the will and codicil should provide an affidavit addressing the issue of testamentary capacity. I also directed that the deceased’s executor and trustee, Ms Nelson QC, provide an affidavit as to testamentary capacity. Ms Nelson QC acted as counsel for the deceased in relation to the divorce proceedings.
Both the solicitor, Jacqueline Woodhead, and Ms Nelson QC deposed that the deceased was, in their view, mentally competent at the time of making the will and codicil. In particular, Ms Woodhead deposed:
Prior to the execution of the document by the deceased the document was read over by her and the deceased at such time appeared thoroughly to understand the same and to have full knowledge of its contents. …
I had prepared the document upon instructions received by me from the deceased and who at the time appeared to me to be capable of giving instructions and making a Will. …
I found the deceased to be “as sharp as a tack”, including at the time of the making of the Will.
…
At the time the deceased instructed me in relation to preparation of the Will, she gave me clear and precise instructions in writing regarding the contents of the Will. This involved the exclusion of her daughters. During the course of the family law proceedings the deceased made her feelings towards her daughters known to me. I gave the deceased strong advice that exclusion of her daughters would leave the Will open to challenge. I had in mind inheritance proceedings. The deceased said that, notwithstanding my advice, she wanted the Will precisely as instructed.
Ms Nelson QC deposed:
At no time during which I acted for the deceased in relation to the Family Court proceedings did I have reason to doubt the capacity of the deceased to give instructions in relation the Family Court proceedings, to make a codicil to her Will in order to give effect to the Family Court Order or generally.
The plaintiffs determined that they did not wish to proceed with their contention that the deceased lacked testamentary capacity. However, as the issue of lack of capacity had been raised and supported by evidence, it was necessary for the Court to address and resolve the issue concerning testamentary capacity.
Other evidence on the file by way of affidavit suggested a lack of capacity. That evidence came in part from the plaintiffs. Their evidence was given against the background of a level of ill feeling and animosity that existed between the plaintiffs and the deceased. The evidence essentially involved the recounting of incidents from which it was suggested inferences could be drawn that the deceased was, at material times, in a delusional mental state.
The plaintiffs’ evidence was supported by a psychiatric opinion. That opinion was, however, provided by a psychiatrist who had had no contact with the deceased. It was an opinion based on anecdotal accounts of behaviour and what were said to be relevant writings of the deceased. Importantly, the evidence of Ms Woodhead and Ms Nelson QC was not made available to the psychiatrist, either at the time he formed his opinion or, it would appear, later when their affidavits were filed following my direction.
In Re Crooks Estate, Young J observed that solicitors who are experienced in interviewing clients in relation to the preparation of wills may provide valuable evidence in respect of competency.[2] I consider that the affidavits of Ms Woodhead and Ms Nelson QC provide a sound basis for concluding that the deceased had testamentary capacity. The unusual aspects of the will may be explained by the deceased’s idiosyncratic nature.
[2] Re Crooks (Estate); Akerman v Brown (Unreported, Supreme Court of New South Wales, Young J, 14 December 1994) 29.
As contemplated by the deed of settlement as varied, the executor under the will has expressly renounced the office of executor and trustee under the will.
A grant of administration with a will annexed, also known as a grant of administration cum testamento annexo, may be made where the person or representative refuses to take probate. In this case, the procedure is available because the executor under the will has renounced the office. A grant is sought by the plaintiffs and Shauna Roche.
Rules 31 and 32 of the Probate Rules 2004 (SA) specify the order of priority for grants of representation in respect of administration cum testamento annexo. If, however, all persons with a prior right consent to another obtaining a grant, that person will take the grant. That is the position in the present case.
Parties to a probate action may settle the dispute. In Public Trustee v Cawthorne & Ors, Legoe J referred to Mortimer on Probate Law and Practice to the following effect: all interested parties must be adults and parties to the compromise; and there is practically no limit on the terms which the parties may agree upon – they may, in effect, make a new will.[3]
[3] Public Trustee v Cawthorne & Ors (1993-1994) 175 LSJS 90, 90-91.
Notwithstanding that it is part of the terms of compromise that a will shall be pronounced for or against, the Court must still be satisfied by evidence that the will is valid or invalid, as the case may be, before the Court will pronounce its decree.
As earlier mentioned, the parties by deed of settlement have resolved on the distribution of the estate of the deceased. The deed of settlement was entered into on 30 November 2011 and has been the subject of a deed of variation entered into on or about 5 May 2012. The parties had sought an order that the deed as varied be made a rule of court. The purpose of such an order is to enable a party to the deed, in the event of there being a breach, to seek to enforce the order of the court rather than taking inter partes proceedings to enforce the deed.
I have reached the conclusion that it is inappropriate to make the deed as varied a rule of court. There are many aspects of the terms of the parties’ agreement that make such an order inappropriate.
The deed as varied attaches minutes of order. The deed provides, “this deed shall terminate in the event that the Court declines to make the findings and orders in terms of the Minutes of Order annexed hereto and marked ‘D’ or in terms similar to the Minutes of Order as annexed hereto and marked ‘D’”. As is evident from these reasons, there are several of the proposed orders that I am not prepared to make. It may be an open question as to whether the order that I propose to make is in similar terms to the minutes of order. I do not consider it appropriate to make the deed as varied a rule of court given this uncertainty.
The deed as varied provides a restriction on the parties disclosing or divulging the existence of the court order, the deed of settlement, or any other information relating to the contents of the court order or the deed of settlement. It would be inappropriate for the deed as varied to be made a rule of court and thereby obtain, in effect, an order of confidentiality.
The deed contains a provision addressing indemnities of the administrators and the executor. Again, this is a matter that is best left to be enforced as a matter of contractual obligation. This is a further reason, in my view, for rejecting the application that the deed as varied be made a rule of court.
The deed contains clauses addressing matters of representation or reliance, assignment, assurances and acknowledgments. Again, these are all matters that are best left to be addressed and, if necessary, enforced as a matter of contractual obligation. They are not matters where it would be appropriate for these terms to be enforced as though they were an order of the Court.
For the reasons detailed above it is not suitable for the deed as varied to be made a rule of court. I decline to do so.
Scandalous and Offensive Words
An order was sought by the plaintiffs to the effect that the following words be omitted from clause 3 of the will:
…upon the condition that they do first read all my personal diaries for the period commencing the 1st day of January 1974 to the date of this Will and can satisfy my Trustee herein named that they have read all the said diaries by answering correctly any questions concerning the said diaries asked by my Trustee as proof that they have read the same provided however that if any of my daughters shall not satisfy my Trustee that she has read the said diaries then that daughter’s share of the said jewellery shall pass to the Knights of the Southern Cross Pty. Limited for their sole use and benefit absolutely.
…30 pieces of silver of the lowest denomination of currency being the blood money due to Judas to each of my husband JOHN JUSTIN ROCHE for my mother’s life and to each of my aforesaid daughters for my life.
Counsel submitted that any person may make an application for the omission of offensive or libellous words from a grant of probate.[4] It was accepted that there is no statutory provision granting power to excise or exclude scandalous material from a will, but the Court has an inherent jurisdiction to do so.[5]
[4] Probate Rules 2004 (SA) rule 66.
[5] See Re Estate of Adler (1999) 155 LSJS 53.
In Re Estate of Adler, Legoe J summarised the authorities concerning the striking out of scandalous matter in a will. Legoe J cited with approval the principles applied by Scholl J in Re N[6] to the following effect:[7]
-words will not be struck out of the will itself but out of the copy of the will annexed to the grant of probate;
-scandalous and offensive words which do not dispose of property and are not inserted for that purpose may be excluded from probate;
-if the words are included as a reason for making or not making certain dispositions, the Court may omit those words if it is satisfied of their untruth, or perhaps even without that evidence, if the words are libellous;
-if the words are merely offensive to members of the family in respect of the disposal of the testator’s body and non-dispositive, the Court may omit them;
-if the words are blasphemous and non-dispositive, they may be omitted;
-if they are non-dispositive, they may be omitted for security reasons;
-if the words have some dispositive effect or may assist in the interpretation of the will, the Court may decline to omit them.
[6] Re N [1950] ALR 189.
[7] Re Estate of Adler (1999) 155 LSJS 53, 61-62.

If the Court finds reasons to excise words from a will for the purposes of probate, it omits the words from the grant. Rule 72.01 of the Probate Rules may prohibit the inspection of the original will without permission of the Registrar and that provision may be used to secure non-publication of scandalous words.[8]
[8] Rule 72.01 of the Probate Rules 2004 (SA) provides:
No person shall, without the permission of the Registrar or of the Court be allowed to inspect, or to order a copy, or any extract of, any will or document deposited under section 29 of the Act, or filed in the Registry other than the registered copy of the will of a deceased person or the administration act, or order.
The plaintiffs submitted that the words sought to be omitted from clause 3 of the copy of the will annexed to the grant conform with the principles described in Re Estate of Adler. [9] The plaintiffs contended that in the case of the reference to “30 pieces of silver of the lowest denomination of currency being the blood money due to Judas”, the words are scandalous, offensive, and blasphemous. It was submitted that the words are, for material purposes, non-dispositive. It was further submitted that when viewed in conjunction with the requirement for the deceased’s daughters to read the deceased’s diaries, which are said to be themselves full of scandalous and offensive words, the test for the omission of the words from the copy of the will annexed to the grant was satisfied.
[9] Re Estate of Adler (1999) 155 LSJS 53.
I have previously considered the Court’s power to remove scandalous or offensive words from a will in In the Estate of Brummitt (Deceased).[10]In that decision I discussed the relevant principles in relation to the Court’s removal of scandalous or offensive words. I incorporate in these reasons that discussion by way of reference.[11] A summary of the main principles follows.
[10] In the Estate of Brummitt (Deceased) [2011] SASC 116.
[11] In the Estate of Brummitt (Deceased) [2011] SASC 116, [14]-[32].
The inherent power of this Court, expressly provided for in section 5 of the Administration and Probate Act 1919 (SA), together with previous decisions of this Court,[12] provide authority in support of a power in the Court to exclude words from documents being admitted to probate.[13] The jurisdiction to omit words is part of the Court’s inherent jurisdiction to protect its processes from abuse.[14] This inherent jurisdiction extends to probate.[15] The relevant process needing protection from abuse in the probate context is the process for the proving of wills.[16]
[12] See for example In the Estate of Hawke (1973) 6 SASR 278; In the Estate of Adler (1989) 155 LSJS 53; Re Estate of L (deceased) (1996) 185 LSJS 406; In the Estate of Enjakovic Deceased (2008) 100 SASR 486.
[13] See discussion on these principles in In the Estate of Enjakovic Deceased (2008) 100 SASR 486, drawing on the observations in In Estate of Ward (2006) 244 LSJS 326, [12].
[14] In the Estate of Enjakovic Deceased (2008) 100 SASR 486 citing D’orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, [201] (McHugh J).
[15] See for example Rasheed v Rasheed (1999) 73 SASR 346.
[16] In the Estate of Enjakovic Deceased (2008) 100 SASR 486, 492.
A will ought to be admitted to probate in the words of the will itself.[17] The Court has a power, however, to omit words from the probate copy and subsequent copies of the will ordered[18] that are scandalous, offensive, blasphemous or defamatory in character.[19] It is to be borne in mind that the power to omit words is to be exercised with great care.[20]
[17] In the Estate of Hall (dec’d) [1943] 2 All ER 159, 160.
[18] That is, the words cannot be expunged from the will itself: Re Maxwell (1929) 140 LT 471.
[19] See further In Estate of Ward (2006) 244 LSJS 326.
[20] In the Estate of Hall (dec’d) [1943] 2 All ER 159; In the Will of JP, deceased (1922) 39 WN (NSW) 228, 229; In the Will of O’Reilly [1927] VLR 533, 535.
Two criteria, at least conventionally,[21] must be met in order to enliven the jurisdiction to omit a word or words from a will. First, the word or words must not have any dispositive effect or any other testamentary purpose. Second, the word or words must be capable of being characterised as scandalous, offensive, defamatory or blasphemous. I emphasise that if the two criteria are met it does not follow that the word or words will be omitted – the jurisdiction is merely enlivened[22] and is to be exercised on a case-by-case basis.[23]
[21] See Re Estate of L (deceased) (1996) 185 LSJS 406, 408; In the Estate of Hawke (1973) 6 SASR 278, 279; Re N [1950] VLR 139, 145-146; In the Goods of Bowker [1932] P 93; In the Will of O'Reilly [1927] VLR 533, 535; In the Estate of White [1914] P 153, 154.
[22] See In the Estate of Enjakovic Deceased (2008) 100 SASR 486, 493.
[23] See In the Estate of Enjakovic Deceased (2008) 100 SASR 486.
In In the Estate of Ward,[24] the applicant sought an order that the words “He has refused to accept the gifts of a house and $50,000 from his brother Rick” be omitted from his late father’s will on the basis that he did not wish to be blamed for something he allegedly did not do. In that case I found that a reasonable person would not be offended, nor would a reasonable person find scandalous, the words sought to be omitted. The words were an explanation for the deceased’s decision not to make any further dispositions to the applicant. There was no evidence before the Court to suggest an untruth.
[24] In Estate of Ward (2006) 244 LSJS 326.
In In the Estate of Enjakovic Deceased,[25] an application was made for certain words to be omitted from the copy of a will sought to be admitted to probate. In that decision a clause in the deceased’s will directed that her son was not to benefit from her will and, in providing a reason for that direction, implied inappropriate and possibly dishonest conduct on the part of the son. The relevant clause provided:
I DIRECT that my son MILAN ENJAKOVIC is not to benefit from this my Will. For many years he has borrowed money from me and from my late husband MILOS ENJAKOVIC which he has never repaid. My said son owes me over FIVE THOUSAND DOLLARS ($5,000.00). In December, 1993, I was in hospital. While I was in hospital he used my personal identification number to withdraw money from the National Bank at Enfield. I have photocopies of these transactions. I telephoned him and he did not deny that he had taken the money. When I asked: “Why did you take it”? he said he would ring me back but he has not done so.
[Emphasis added. The emboldened words were the subject of the application.]
[25] In the Estate of Enjakovic Deceased (2008) 100 SASR 486.
In the event, having accepted that the words had no dispositive effect, I concluded that they provided an explanation for the deceased’s dispositions. I considered that the impugned words did infer inappropriate and possibly dishonest behaviour and were, prima facie, defamatory – the allegation of theft in fact importing a notion of criminality. However, I further considered that the impugned words stopped short of directly asserting that the son had engaged in dishonesty. Finally, I concluded that although the words could be viewed as being “hurtful”, “painful” or “unkind”, a reasonable person would not be so offended by the words as to require their omission.[26]
[26] In the Estate of Enjakovic Deceased (2008) 100 SASR 486, 495.
In In the Estate of Brummitt (Deceased),[27] the deceased’s will excluded his former wife from taking any benefit from his estate on the basis that his former wife “had extra marital affairs that the child [D] is not my child. Both the child [D] and my former wife [DB] refused to co-operate with a DNA test in respect of paternity of [D].” In this case, no application was made under rule 66.01 of the Probate Rules. Upon receiving an application by the executor of the estate for a grant of probate, the Registrar of Probates instead referred the matter to a judge of the Court to determine whether the above words should be struck out as scandalous and offensive.
[27] In the Estate of Brummitt (Deceased) [2011] SASC 116.
In that case I concluded that the impugned words did not have dispositive effect and that the words provided an explanation for why the deceased did not provide for the child. I decided that it was not appropriate to omit the words from the will on the basis that the words were not used gratuitously, they did not appear to have been put in the will for the purposes of injuring the reputation of the deceased’s former wife or child, they explained why the deceased failed to provide for the child in his will and they did not amount to an abuse of process as they were primarily directed at providing reason for the dispositions contained in the will and did not go outside that purpose. I found that while the words may have been of an offensive character, it was not an appropriate case in which to exercise the jurisdiction of the Court to strike those words out of the will.
The requirement that the plaintiffs read the diaries of the deceased before they are eligible to receive their share of the jewellery of the estate is dispositive in nature. It is a condition precedent on the receipt of the jewellery. While the diaries themselves may contain material that is offensive or scandalous, this is not a matter apparent from the terms of the will. I do not consider that a reasonable person would find the words to be scandalous, offensive, defamatory or blasphemous.
In the case of the words “30 pieces of silver of the lowest denomination of currency being the blood money due to Judas”, they are technically dispositive in nature – albeit of an insignificant amount. These words are different in effect to those in the decisions discussed above as the words by inference provide an explanation of the deceased’s bequests to the plaintiffs.
It is to be recalled that in In the Estate of Enjakovic Deceased,[28] I refused the application because, inter alia, the impugned words stopped short of directly asserting that the son had engaged in dishonesty. The same applies here. While there is an implication that the daughters of the deceased had acted in a reprehensible manner, the words stop short of any specific allegation. However, I accept that the words may be described as gratuitous and insulting.
[28] In the Estate of Enjakovic Deceased (2008) 100 SASR 486.
These proceedings have already received public attention. The removal of the words will have no relevant impact to the agreed division of the estate. In all the circumstances, I do not consider it appropriate to exercise my discretion to exclude the impugned words from the deceased’s will.
Conclusion
Having regard to the foregoing, I am prepared to make a grant of administration with the will and codicil annexed in favour of the plaintiffs and Shauna Roche. I direct that the plaintiffs prepare and submit minutes of order in accordance with these reasons.