In the Estate of ALBERT FIRMIN JULIEN BAES (DECEASED) - [2012] SASC 217

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of ALBERT FIRMIN JULIEN BAES (DECEASED)
[2012] SASC 217
Judgment of The Honourable Justice Gray
5 December 2012
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - ALTERATION AFTER PROPER EXECUTION
A will dated 7 October 2004 was prepared using a will kit and appeared to have been duly executed - at the end of the will, there were 10 lines which had been written by the deceased using a different pen - an application was made for a grant of probate with the last 10 lines of the will deleted - whether the last 10 lines had been placed on the will after it was executed - whether the applicant is required to apply to prove the last 10 lines under section 12(2) of the Wills Act 1936 (SA) or whether the will can be admitted to proof without those lines.
Held: The last 10 lines were written on the will after its execution - the applicant is required to apply to prove the last 10 lines of the will under section 12(2) of the Wills Act - this will result in the estate being distributed in accordance with the rules of intestacy.
Wills Act 1936 (SA) s 8, s 12(2) and s 24; Probate Rules 2004 (SA) r 20; Administration and Probate Act 1919 (SA) s 72G(1)(c) and s 72I(b), referred to.
In the Estate of Standley Deceased (1982) 29 SASR 490; Cinnamon v Public Trustee (Tas) (1934) 51 CLR 403; In the Estate of Greenslade, deceased (1988) 48 SASR 414; Commonwealth v Baume (1905) 2 CLR 405; Beckwith v The Queen (1976) 135 CLR 569; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672, considered.

In the Estate of ALBERT FIRMIN JULIEN BAES (DECEASED)
[2012] SASC 217
Testamentary Causes Jurisdiction
GRAY J.

This is an application for a grant of probate.
The deceased, Albert Firmin Julien Baes, died on 27 March 2012. He left a will dated 7 October 2004. The will had been prepared by hand using a will kit and appears to have been duly executed in accordance with section 8 of the Wills Act 1936 (SA).
In his will of 7 October 2004, the deceased appointed his wife, Andrea Baes, as the executor and trustee and left the whole of his estate to her. If Andrea were to predecease the deceased, then the estate was to be divided equally between his four children, and his son Eric Eddy Baes was to act as his executor and trustee. The deceased also made the following “specific gifts”:
I leave my collection of Machbox [sic] models of yesteryear & Motorbikes models & Silver Trophy to my son ERIC BAES … I leave my Sanyo Television set & Vedeo [sic] VHS to my grand-son [RB] …
Further, the deceased made the following “general gifts”:
I leave all my books & Video’s [sic] to my son GILBERT BAES
I leave all my work tools & Photos Pictures Frames to my son ERIC BAES
I leave all my Cassettes & glass ware [sic] to my son CHRISTOPHER BAES
I leave all my Furniture to my son ALFRED BAES. I leave my crucifix to my Daughter-in-Law DIANE BAES.
The will provided that if any of the deceased’s married sons predeceased the deceased, the gifts and his share of the estate are to be given to the wife of the deceased’s son.
The end of the will contained the following 10 lines:
I empower my Trustee to manage my estate, real and personal, as he sees
fit, for the advancement, maintenance, education or benefit of a beneficiary
who is a minor.
Disposal of body directions
My body is not available for any anatomical, therapeutic, medical or
scientific purpose.
Everyting [sic] that is done and prescript in the will, only be
effective when I’m the first to die, and somebody look after Mum
Do not put our Mother in a home It will haunt you for the rest of
our live [sic].
Those words appear to have been written using a different pen to the rest of the will. The words appear to be in the handwriting of the deceased. The deceased was in the habit of referring to Andrea as “Mum”.
On 14 October 2004, Andrea apparently suffered a serious stroke. On 15 October 2004, the will was placed in a deed packet in the Commonwealth Bank. The deceased gave a copy of the will to the applicant. He also authorised the applicant to extract documents from the deed packet at the Commonwealth Bank. The Court was informed that the deed packet was not accessed until after the deceased’s death. On 28 October 2004, Andrea died.
The applicant in the within proceeding is the substituted executor named in the will of 7 October 2004. The applicant has sought a grant of probate with the last 10 lines of the will deleted on the basis that they are unauthenticated alterations of no practical importance.[1] The Deputy Registrar of Probates took the view that the last 10 lines of the will were probably testamentary in character, that they should be the subject of an application under section 12(2) of the Wills Act and that their effect was that the will was only operative in the event that the deceased died before Andrea. As the deceased died after Andrea, the Deputy Registrar was of the opinion that the will of 7 October 2004 does not operate. In those circumstances, the deceased’s estate would be distributed in accordance with the intestacy provisions.[2] The Registrar of Probates agreed with the Deputy Registrar. The applicant requested that the matter be referred to a Judge. The following question was referred to me by the Registrar:
Should the applicant be required to apply to prove the last ten lines under section 12(2) of the Wills Act, or can the will be admitted to proof without those lines?
[1] See rule 20 of the Probate Rules 2004 (SA) which provides:
Where there appears in a will any obliteration, interlineation or other alteration which is not authenticated in the manner prescribed in section 24 of the Wills Act, 1936, or by the re-execution of the will, or by the execution of a codicil, the Registrar shall require evidence to show whether the alteration was present at the time the will was executed, and shall give directions as to the form in which the will is to be proved:
Provided that this Rule shall not apply to any alteration which appears to the Registrar to be of no practical importance.
[2] As the will of 7 October 2004 appears to have been duly executed and as it contains a revocation clause, all earlier wills and testamentary instruments have been revoked.
The Legal Principles
Section 24 of the Wills Act is headed “[n]o alteration in a will has any effect unless executed as a will” and provides:
No obliteration interlineation or other alteration made in any will after its execution is valid or has any effect except so far as the words or effect of the will before such alteration are not apparent unless the alteration is executed in the manner in which a will is required by this Act to be executed; but the will with the alteration as part of the will is to be taken to be duly executed if the signature of the testator and the subscription of the witnesses are made in the margin or on some other part of the will opposite or near to the alteration or at the foot or end of or opposite to a memorandum referring to the alteration and written at the end or some other part of the will.
Rule 20 of the Probate Rules 2004 (SA) refers to section 24 of the Wills Act and is in the following terms:
Where there appears in a will any obliteration, interlineation or other alteration which is not authenticated in the manner prescribed in section 24 of the Wills Act, 1936, or by the re-execution of the will, or by the execution of a codicil, the Registrar shall require evidence to show whether the alteration was present at the time the will was executed, and shall give directions as to the form in which the will is to be proved:
Provided that this Rule shall not apply to any alteration which appears to the Registrar to be of no practical importance.
If the final 10 lines were placed on the will after its execution, pursuant to section 24 of the Wills Act, those words would not be admitted to probate unless the requirements of section 12(2) of the Wills Act were satisfied.[3] Section 12(2) is in the following terms:
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.
It is necessary, therefore, to first consider whether the final 10 lines were written on the will prior to its execution.
[3]    See, In the Estate of Greenslade, deceased (1988) 48 SASR 414, 416 where White J relevantly observed:
Timing of the Writing of the Final 10 Lines of the Will
There is no direct evidence as to when the final 10 lines of the will were written. Andrew John Benson was one of the attesting witnesses. He has no recollection of whether the words in question appeared in the will when he witnessed it. Dr Benson doubted whether the other attesting witness, Dawn Kahn, would have any recollection as neither of them had read over or looked at the will in any detail when they witnessed it.
The words “somebody look after Mum” and “Do not put our Mother in a home It will haunt you for the rest of our live [sic]” suggest that Andrea required nursing care at the time the words were written. There is conflicting evidence as to whether Andrea was suffering from an illness which would require nursing care prior to her stroke. In an affidavit sworn on 5 June 2012, the applicant deposed that the deceased knew that Andrea was seriously ill at the time that he signed the will. However, a letter dated 16 August 2012 from counsel for the applicant to the Deputy Registrar of Probates contained the following statement:
The writer understands that prior to suffering her stroke, Andrea lived with the deceased at their home, and had not needed nursing care at that time. There was nothing to suggest that she would need nursing care before the stroke.
It is to be recalled that the 10 lines at the end of the will were written using a different pen to the remainder of the will. Counsel for the applicant accepted the possible inference that the different colour pen meant that the final 10 lines of the will were placed there following the execution of the remainder of the will. However, counsel for the applicant contended that this was not necessarily after Andrea’s stroke.
I find that Andrea’s need for nursing care arose following her stroke and that, therefore, this would not have been a concern of the deceased at the time of executing the will. I find that this fact, in combination with the use of a different pen, is sufficient to satisfy me that the last 10 lines of the deceased’s will of 7 October 2004 were written by the deceased after Andrea suffered a stroke on 14 October 2004 and before the will was deposited at the Commonwealth Bank on 15 October 2004. Accordingly, I am of the view that the last 10 lines of the deceased’s will were not present in the will when it was executed on 7 October 2004. This conclusion is supported by the common law presumption that unattested alterations to a will have been made after the will was executed.[4]
Section 12(2) of the Wills Act
[4] See, Cinnamon v Public Trustee (Tas) (1934) 51 CLR 403, 410, 416; David Haines QC, Leonie Engelfield and Madeleine Harland, Australian Succession Law (Lawbook Co, 2009) [150.670].
It is clear that the final 10 lines of the will do not comply with section 24 of the Wills Act. In those circumstances, it is necessary to turn to consider section 12(2) of the Wills Act.[5]
[5] See, In the Estate of Greenslade, deceased (1988) 48 SASR 414, 416.
In In the Estate of Standley Deceased,[6] Legoe J considered whether section 12(2) can apply to only part of a will. In this regard, his Honour relevantly observed:[7]
In my judgment the provisions of s 12(2) can apply to a "part" only of a document, such as an alteration, provided that part in the form of an alteration otherwise complies or comes within the general ambit of s 12(2) as formulated in In the Estate of Graham, deceased, per Jacobs J. at pp. 205-206. …
…
I can see no reason in principle, nor in the cases referred to, why s 12(2) should not apply to an alteration to part of a document which alteration has been executed in circumstances that might at least amount to publication of the provision in the document in its altered form. In such circumstances the document and the altered part … may be admitted to probate pursuant to s 12(2) subject to the necessary satisfaction as required by the sub-section. In my opinion, such a conclusion is consistent with the reasons I discussed In the Estate of Kolodnicky, deceased. By parity of reasoning I am of the opinion that s 24 does not require the altered part (appointment clause) to be ignored or left out for the purpose of applying s 12(2). The document, if it is to be admitted pursuant to s 12(2), should "speak and take effect as if it had been executed immediately before death of the testator, unless a contrary intention should appear" (s 27); ibid., p. 382.
[Footnotes omitted.]
[6] In the Estate of Standley Deceased (1982) 29 SASR 490.
[7] In the Estate of Standley Deceased (1982) 29 SASR 490, 494-495.
As all but the final 10 lines of the will of 7 October 2004 were executed in accordance with the requirements in section 8 of the Wills Act, I am only concerned with the application of section 12(2) to part of the will; namely, the final 10 lines.
In the circumstances, several possibilities arise as to the resolution of the within proceeding. One could take the view that the final 10 lines of the will do not have a bearing on the division of the assets of the estate and the will can be admitted to probate with the final 10 lines excluded pursuant to rule 20 of the Probate Rules. The estate would then be distributed in accordance with the other clauses in the will. This was the approach which was advocated by the applicant.
Alternatively, one could take the view that the final 10 lines satisfy the requirements of section 12(2) of the Wills Act and form part of the will, but that the words “Everyting [sic] that is done and prescript in the will, only be effective when I’m the first to die, …” in those 10 lines have the effect of making the will inoperative as they impose a condition that the will is only to operate if the deceased predeceased Andrea. As Andrea died before the deceased, this would result in an intestacy.
Before addressing these possibilities, it is worth noting the practical implications of the decision that I am to make. The deceased’s estate comprises a licence to property in Rosetta Village, Victor Harbor with an estimated value of $180,000.00 and money in bank totalling $4,276.93. The estate also comprises $7,152.51 of liabilities. Accordingly, the net value of the deceased’s estate is $177,124.42. Apart from the specific and general gifts set out in the deceased’s will of 7 October 2004, the distribution of the deceased’s estate under that will is the same as that which would occur in the event of an intestacy; namely, it would be divided equally between the deceased’s four children.[8] One of the specific gifts in the will is to a grandson of the deceased who is about 12 years old.
[8] See sections 72G(1)(c) and 72I(b) of the Administration of Probate Act 1919 (SA).
Following the hearing, counsel for the applicant informed the Court that all of the specific gifts of chattels detailed in the will of the deceased will be honoured by the family whether the estate is administered under the rules of intestacy or whether the will stands. This includes the gift to the deceased’s 12 year old grandson.
The Applicant’s Submissions
The applicant contended that although the words “Everyting [sic] that is done and prescript in the will, only be effective when I’m the first to die, …” suggest that the will was intended only to be effective if the deceased died before Andrea, the deceased’s behaviour in copying the will and giving the copy to the applicant, putting the original will in the deed packet and authorising the applicant as executor to be able to extract documents from the deed packet when Andrea was paralysed and seriously ill are all consistent with the deceased’s intention that the will be effective upon him surviving Andrea. Further, the applicant argued that the gifts in the substitution clause clearly demonstrate an intention for the will to be effective notwithstanding the deceased surviving Andrea. The applicant also submitted that English was the second language of the deceased and that although he wrote and spoke it at a very high level, it was imperfect and that imperfect understanding is reflected in the final words of his will.
The applicant submitted that the will of 7 October 2004 was drawn very carefully by the deceased. It was said that he had turned his mind to the possibility of him dying before Andrea as well as to him dying after her. He carefully considered the distribution of his estate by providing general and specific gifts. It was said that the last few lines of the will are concerned with not only his body, but also the care of his wife – none of which are essential to the disposition of his assets.
The applicant drew the Court’s attention to the presumption against intestacy. It was said that as the deceased survived Andrea by a number of years, if he had intended his will to lapse upon him surviving her, then it would be expected that he would have made a new will. He did not do so.
The applicant further submitted that the headings used in the will have relevance and bearing to what is written underneath. For example, under the heading “specific gifts” the deceased gave, inter alia, his matchbox model collection and a television and under the heading “general gifts” the deceased gave, inter alia, books, tools and cassettes. In light of this, the applicant contended that the words “Everyting [sic] that is done and prescript in the will …” should be taken in the context of the heading of “Disposal of body directions”.
Consideration
The words “Everyting [sic] that is done and prescript in the will, only be effective when I’m the first to die, …” express the testator’s intention at the time of writing. However, I have concluded above that I am not satisfied that those words were in the will at the time of execution. Accordingly, the will containing the final 10 lines will only be admitted to probate if the requirements of section 12(2) of the Wills Act are satisfied.
As mentioned earlier, the will of 7 October 2004 including the final 10 lines was written by hand using a will kit and was stored by the deceased in a deed packet at a bank. A copy of the will including the final 10 lines was provided by the deceased to the applicant. These facts satisfy me that the deceased intended that the document, including the final 10 lines, constitute his will.
Although it is unknown exactly when the final 10 lines of the will were written, they were added prior to 15 October 2004 when the deceased deposited the will at the bank. The fact that the final 10 lines were present when the will was deposited at the bank by the deceased and the fact that the deceased did not seek to access the will again, provides an indication that the final 10 lines were added by the deceased with the intention that they should form part of his will.

It is evident that the deceased gave careful consideration to the matters referred to in the final 10 lines. The first sentence is directed to the powers of his trustee when dealing with a beneficiary who is a minor. This would appear to have been intended as testamentary. The same may be said about the disposal of his body. This is a clear direction to his executor and trustee. The final sentence clearly addresses “the will” and its operation.
In my view, the deceased’s testamentary intentions in respect of the disposition of his assets in his will changed before and after Andrea’s stroke. When the will was executed, the deceased intended for the will to operate whether he died before or after Andrea. This is particularly evident from the clause appointing a substitute executor and the clause which provides for a different distribution of the estate in the event that Andrea predeceased the deceased. However, the words “Everyting [sic] that is done and prescript in the will, only be effective when I’m the first to die, …” must be given some work to do and cannot simply be ignored.[9]
[9] See, Commonwealth v Baume (1905) 2 CLR 405, 414; Beckwith v The Queen (1976) 135 CLR 569, 574; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672, 679 as cited in D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7^th ed, 2011) [2.26].
Although it is not possible to make a finding, it may be the case that having learnt of Andrea’s stroke and its implications, the deceased’s primary concern was, in the event that he was the first to die, that Andrea be properly cared for. As a consequence, the deceased had in mind that the earlier provisions of his will disposing of his estate would not take effect and that his estate would be available to be applied to the care of Andrea. If this was his intention, it would confirm that the final 10 lines were intended to be testamentary. However, the added words would have failed to achieve his purpose.
I find that after Andrea suffered her stroke, the deceased decided that the will was only to operate if he predeceased Andrea. To give effect to this change of his testamentary intentions, he added the final 10 lines to the will. I am therefore of the view that the requirements of section 12(2) of the Wills Act have been satisfied as the will containing the final 10 lines expresses the deceased’s testamentary intentions and as the deceased intended that the document constitute his will. As Andrea died before the deceased, the condition imposed in the final 10 lines of the will prevents the earlier provisions in the will from operating. Therefore, I conclude that the deceased died intestate.
Despite this conclusion, it is pertinent to recall that the family members of the deceased have informed the Court through counsel for the applicant that they will honour all specific gifts of chattels detailed in the will, regardless of whether the estate is to be administered under the rules of intestacy or whether the will stands. Accordingly, the distribution of the estate would be identical if I had reached the contrary conclusion and admitted the will to probate with the exclusion of the final 10 lines.
Conclusion
The question which was referred to me was: “Should the applicant be required to apply to prove the last 10 lines under section 12(2) of the Wills Act, or can the will be admitted to proof without those lines?”. My answer to this question is that the applicant is required to apply to prove the last 10 lines under section 12(2) of the Wills Act. The estate will be administered in accordance with the rules of intestacy.

There is ample authority in many of the cases that s 12(2) applies to alterations under s 24. That must necessarily be so. Parliament must have intended that s 12 should apply to the lesser subject-matter of alterations as well as to the main document, the will.
…

In all of the above cases the deceased either signed or initialled the alteration. This is the first case in which application has been made for the application of s 12(2) to an alteration which is not signed and and [sic] not initialled. I have held that s 12 applies.