In the Estate of ASHLEY DAVID SCHWARTZKOPFF - [2006] SASC 131

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of ASHLEY DAVID SCHWARTZKOPFF
[2006] SASC 131
Judgment of The Honourable Justice Gray
12 May 2006
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL
Application for an order that a document purporting to express testamentary intentions be admitted to probate - document was a draft will that had been prepared but not executed - draft will did not provide for the deceased's son - deceased died before viewing or executing the draft will - evidence that deceased intended for the estate to be divided differently than stated in the draft will - consideration of amendments to the Wills Act 1936 (SA) - consideration of testamentary capacity - consideration of line between draft wills and a final will - draft will not admitted to probate as last will of the deceased.
Wills Act 1936 (SA) s 8, s 12(2), referred to.
In The Estate of Graham deceased (1978) 20 SASR 198; In the Estate Williams deceased (1984) 36 SASR 423; Briginshaw v Briginshaw (1938) 60 CLR 336; Bater v Bater [1951] P. 35; Lemmer v Bertram (1972) 2 SASR 397; Baumanis v Praulin (1980) 25 SASR 423; Estate of Vauk (1986) 41 SASR 242 ; In the Estate of Parkinson (1988) 143 LSJS 336; In the Estate of Krawczuk deceased; Brandt and Pelvay v Hopko and Bojan (1992) 168 LSJS 231; In the Estate of Templer Warner; IOOF Australia Trustees Limited v Jamestown Hospital Incorporated (1993) 174 LSJS 268, considered.

In the Estate of ASHLEY DAVID SCHWARTZKOPFF
[2006] SASC 131
Testamentary Causes Jurisdiction
GRAY J:
Introduction

This is an application for an order that a document purporting to express the testamentary intentions of the late Ashley David Schwartzkopff be admitted to probate, pursuant to section 12(2) of the Wills Act 1936 (SA). The application is made by Patricia Evelyn Schwartzkopff, the lawful widow of the deceased and the sole executor named in the document sought to be admitted to probate (the draft will).
The draft will is in the following terms:
THIS IS THE LAST WILL AND TESTAMENT of me ASHLEY DAVID SCHWARTZKOPFF of [address] Australia Laboratory Technician.
1.0     I REVOKE all wills and testamentary dispositions heretofore made by me.
2.0IF my wife PATRICIA EVELYN SCHWARTZKOPFF shall survive me then I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever kind and wheresoever situate to my said wife AND I APPOINT her the sole Executor and Trustee of this my Will.
3.0IF my said wife PATRICIA EVELYN SCHWARTZKOPFF shall predecease me THEN and in that case I APPOINT my brothers GRANT THEODORE SCHWARTZKOPFF and JOHN ANTHONY SCHWARTZKOPFF (hereinafter referred to as “my Trustees”) to be the Executors and Trustees of this my Will AND I DIRECT that the subsequent clauses of this my Will shall take effect but that otherwise such clauses shall be absolutely null and void.
4.0I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever kind and wheresoever situate to my Trustee UPON TRUST to sell call in and convert the same or such part thereof as shall not consist of money and is required for the payment of my just debts and funeral and testamentary expenses and to hold the balance of my estate for my son MATTHEW JOHN SCHWARTZKOPFF if he shall survive me and attain or shall have attained the age of twenty one (21) years absolutely.
5.0I DIRECT that if any beneficiary of this my Will shall predecease me leaving a child or children surviving him or her who shall attain or shall have attained the age of twenty one (21) years then such child or children shall take and if more than one equally between them the share to which his her or their parent would have been entitled had such parent survived me and lived to obtain a vested interest in my estate.
6.0I EMPOWER my Trustees:-
6.1     To postpone the sale calling in and conversion of the whole or any part of my estate for such period as they shall in their discretion think fit without being answerable for any loss occasioned thereby.
6.2     To distribute any part of my estate in specie provided that no beneficiary shall object to such distribution.
7.0I EMPOWER my Trustees during the minority of any beneficiary under this my Will to pay or apply the whole or such part of parts of my estate as my Trustees shall in their discretion think fit of the capital or income of the vested contingent expectant or presumptive share of such beneficiary for or towards his her or their maintenance education or benefit with power to pay the same to the guardian for the time being of such beneficiary without being answerable to see to the application thereof.
The deceased died at the Royal Adelaide Hospital on 14 January 2005, aged 43 years. He married the applicant on 25 September 2004. This was his second marriage. His first marriage had been dissolved. The decree nisi became absolute on 22 May 2002. The deceased had one child being a child of his first marriage, a son, Matthew John Schwartzkopff, born on 31 August 1988. Matthew remains a minor at the present time.
At the time of death, the deceased possessed personal estate to a value of approximately $195,000.00. His assets comprised primarily a life insurance policy and superannuation funds. The deceased’s liabilities were said to be limited to funeral expenses and a modest Visa Card debt.
The deceased first had contact with the applicant on the internet in May 2000. As this contact developed between them, the two parties decided to marry. The applicant, a Canadian, resided in British Columbia at the time. The applicant moved to Australia on 31 July 2004 and, as earlier observed, married the deceased on 25 September 2004.
The applicant and Matthew are the only persons entitled to the deceased’s estate in the event of an intestacy. Matthew has appeared in these proceedings by his guardian ad liten.
The Evidence
The Registrar of Probates has referred the application into court for hearing. Counsel for the applicant led evidence from the applicant and the deceased’s solicitor, Heidi Ann Elliott, a solicitor in the employ of O’Briens Solicitors. Having heard and considered their testimony, I found both to be credible and generally reliable witnesses.
Counsel tendered affidavits from both witnesses as part of their evidence in chief. Counsel further tendered an earlier will of the deceased, as well as the instructions and documents pertaining to the draft will. In the earlier will, made prior to the deceased having contact with the applicant, his son was the sole beneficiary of his entire estate.
The affidavit of Mrs Elliott attached a number of documents including:
-the draft will prepared for the deceased;
-a copy of the handwritten notes taken by Mrs Elliott during the initial interview with the deceased;
-handwritten notes taken by Mrs Elliott during telephone attendances with the applicant on 25 October 2004 and 27 October 2004 and with the deceased on 27 October 2004 and 2 December 2004.
The affidavit of the applicant annexed a statement of the deceased’s assets and liabilities, the decree nisi in the marriage of the deceased and the deceased’s first wife and the certificate of marriage of the deceased and the applicant. On the day of the hearing, counsel tendered an updated statement of the deceased’s assets and liabilities.
The applicant testified that on their honeymoon she discussed with the deceased the need for new wills to be drafted. At or around this time, the deceased discussed with the applicant how he wished his estate to be divided. The applicant, in evidence, recounted how the deceased told her that he wanted to provide for both the applicant and his son, Matthew. Her evidence was as follows:
Q. You mention that he said if it came to a 50/50 situation.
A.Well, he felt that because I was the new wife and Matthew was his legal son that he was aware that there was a stipulation that intestate wills are usually, it’s usually provided a 50/50 thing between the wife and the surviving son.
Q.And when was this discussion.
A.That would have been probably several months before we went to O’Briens to draft the will. We always, he was always concerned that I was going to be all right and Matthew was going to be all right. That was his only concern.
Q.I may have misunderstood you but was the effect of his discussion of the 50/50 situation that that’s how he thought it would work out.
A.I believe that is probably how he thought it would work out.
Q.And what he wanted you to do was to do what you could to pay Matthew’s half, pay it to Matthew in a way that was used to Matthew’s benefit and not frittered away on unnecessaries.
A.That would be correct.
On 18 October 2004, the deceased attended O’Briens Solicitors and gave instructions for the preparation of a new will to Mrs Elliott. The applicant attended with the deceased.
The deceased instructed Mrs Elliott to prepare a new will appointing the applicant as sole executor, trustee and beneficiary. The deceased also instructed Mrs Elliott that if the applicant predeceased him, his brothers, Grant, and John Schwartzkopff, were to be the trustees and executors and his whole estate was to pass to his son when he turned 21 years of age. Mrs Elliott informed the deceased that the will would be ready for execution in a week.
Mrs Elliott testified that the deceased did not see, read over or initial her written instructions. It was the applicant’s recollection that Mrs Elliott summarised her notes to the deceased. However, Mrs Elliott did not recall that she summarised to the deceased the instructions she had been given or the important issues arising from the instructions. In this respect, I accept the evidence of Mrs Elliott. She presented as a careful practitioner who recorded a note of all important matters relating to her instructions.
On 25 October 2004, Mrs Elliott telephoned the Schwartzkopff residence and spoke to the applicant. Mrs Elliott informed the applicant that the will had been prepared and was ready for execution.
At or about this time, Mrs Elliott spoke to the senior partner at O’Briens, who discussed with her the need to raise with the deceased the question of the adequacy of the provision for his son and the risk of a challenge to the terms of the will as drafted.
On 27 October 2004, Mrs Elliott again spoke to the applicant, requesting that the deceased return her call to discuss some further issues with respect to his draft will.
On 27 October 2004, the deceased telephoned Mrs Elliott. She explained to the deceased that, as the draft will did not provide for his son, it might be challenged. She asked him to consider leaving something to his son. The deceased instructed Mrs Elliott to leave the draft will unchanged, and said he would discuss the issue with his wife. The deceased stated that he did not have a large estate and did not own property.
In paragraph 12 to 14 of the applicant’s affidavit, she stated that the deceased spoke to her about provision for Matthew:
The deceased said that “God-forbid” anything should happen to him, his main concerns were for the provision of Matthew and myself. The deceased stated that he was concerned that if Matthew were to receive a large endowment at too young an age, that the money would be squandered. He stated that for this reason he had made me the executor and beneficiary of his Will, so that I could advance reasonable amounts to Matthew at intervals when he was of an older age.
During this conversation I said to the deceased that should the issue arise, I would discuss the matter with his mother and would act on her advice.
The deceased then stated that he was satisfied with the instructions he had given for the Will and in any event it could be amended at a later date if needed.
At the hearing, the applicant testified that this conversation took place at or about the time of the telephone call between Mrs Elliott and the deceased on 27 October 2004.
The applicant was aware that she had been named as the sole executor and beneficiary in the draft will. She gave evidence:
There was the, maybe unsaid agreement that I’m not going to run off with his entire estate. Matthew will definitely get a portion of the estate and this is how he would have liked it to be handled. He didn’t specify it on paper or in his will and he chose not to go back and change the draft will but he was going to continue to think about it and we know at 43 you don’t think you’re going to die in a months time.
Her evidence continued:
Q.Sure. But when you refer in that para.12 to advancing reasonable amounts to Matthew was it your understanding that [the deceased] was talking about 50% of the estate. Is that what you’re telling His Honour.
A.I think he always thought of it in those terms although he didn’t come right out and say it, but he knew that should I be in control of the funds if something happened to him, that [Matthew] would get a fair share because he knew me that well.
On 2 December 2004, Mrs Elliott telephoned the deceased and reminded him that the draft will remained unsigned. During this telephone conversation the deceased informed Mrs Elliott that he did not require any changes to the draft and would attend the solicitor’s office to execute the draft as soon as possible. The applicant stated the deceased did not do so at this time due to financial difficulties.
Mrs Elliott testified that she did not at any time read the draft will to the deceased. Subject to the telephone discussions on 27 October 2004 and 2 December 2004, Mrs Elliott did not further discuss the terms of the draft will with the deceased. Mrs Elliott told the court that the deceased never discussed with her his intention for the applicant to look after his son’s share, nor did he say that he intended an equal division of the estate.
On 4 January 2005, the applicant and the deceased’s mother attended the office of O’Briens Solicitors. The applicant informed Mrs Elliott that the deceased was in a coma in intensive care at the Royal Adelaide Hospital. On 14 January 2005, the deceased died without having regained consciousness. The draft will was never executed. The applicant stated that to the best of her knowledge the deceased never saw the draft will.
Findings
As earlier observed, I accept both witnesses as to credit. I find both to be generally reliable. I was impressed by Mrs Elliott. Insofar as her evidence differs from that of the applicant, I accept the evidence of Mrs Elliott.
I make the following specific findings:
-At all relevant times, the deceased wished his assets in the event of his death to be shared between the applicant and his son. He wished the applicant to be the trustee and executor of his estate and to provide his son with his share over time until he attained 21 years. It was his intention that his son not receive a large endowment without the maturity to use it wisely.
-The applicant was keen for the deceased to make a new will and was instrumental in encouraging the deceased to do so.
-On 18 October 2004, the deceased gave instructions to Mrs Elliott with regard to a will. In accordance with those instructions, Mrs Elliott prepared the draft in the terms set out earlier in these reasons.
-Mrs Elliott did not read over to the deceased the instructions or send him a copy of the draft will.
-Mrs Elliott advised the applicant on 20 October 2004 that the draft will had been prepared and was ready for execution.
-Mrs Elliott, having spoken to a senior partner who raised concerns about the making of provision for the son, telephoned and spoke to the applicant and explained that there could be a challenge to the will if he did not make provision for his son. The deceased instructed Mrs Elliott to leave the draft unchanged and said that he would discuss the issue with his wife.
-At or about this time, the deceased informed the applicant that his concerns were to make provision for his son and the applicant. He repeated his concern that his son not receive a large endowment at too young an age.
-On 2 December 2004, Mrs Elliott telephoned the deceased and reminded him that the draft remained to be signed. During this conversation, the deceased informed Mrs Elliott that he did not require any changes to the draft, and that he would attend to execute the draft as soon as possible.
-At no time did Mrs Elliott read over the draft will to the deceased.
-On 14 January 2005, the deceased died. The draft was not executed. The deceased had not seen or read over the terms of the draft.
The Wills Act
The document sought to be admitted to probate fails to comply with the statutory formalities. The document is unexecuted. None of the requirements of section 8 have been complied with. Section 8 of the Wills Act provides:
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).
Subsection 12(2) of the Wills Act sets out the requirements that need to be satisfied for a will to be admitted to probate notwithstanding that it has not been executed with the statutory formalities of the Act. Subsection 12(2) has been amended on a number of occasions.
I adopt the summary of the legislative history of subsection 12(2) as I set out in In the Estate of TLB:[1]
[1] In the Estate of TLB (2005) SASC 459 at [20]-[28] (footnotes omitted).
Section 12(2) of the Wills Act sets out the requirements that need to be met for a will to be admitted to probate notwithstanding that it has not been executed with the formalities of the Wills Act. This subsection was first introduced in 1975 and has been subsequently amended on four occasions.
Subsection (2) was first introduced into the Act by the Wills Act Amendment Act (No 2) 1975 (SA), and came into operation on 29 January 1976. The subsection then provided:
A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed with the formalities required by this Act, be deemed to be a will of the deceased person if the Supreme Court, upon application for admission of the document to probate as the last will of the deceased, is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will.
The enactment of this subsection was a result of the South Australian Law Reform Committee’s concern regarding the plight of would-be testators who attempted to execute a will but failed for want of satisfying the formal requirements.[2]
[2] 28^th Report of South Australian Law Reform Committee to Attorney-General Reform of the Law of Intestacy and Wills (1974).
The subsection was amended by the Statute Law Revision Act (No 2) 1990 (SA), which replaced the word “shall” with the word “will”, “deemed” was replaced by “taken” and “or her” was added after the word “his”. The subsection provided:
A document purporting to embody the testamentary intentions of a deceased person will, notwithstanding that it has not been executed with the formalities required by this Act, be taken to be a will of the deceased person if the Supreme Court, upon application for admission of the document to probate as the last will of the deceased, is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his or her will.
The onus of proof demanded by the amended subsection was the subject of criticism. In May 1992, the judiciary recommended that the subsection ought to be amended by striking out the words “that there can be no reasonable doubt” and replacing them with “the Court is satisfied that the deceased intended the document to constitute his or her will”.
The subsection was amended by the Wills (Miscellaneous)Amendment Act 1994 (SA) to provide:
Subject to this Act, if the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses testamentary intentions of a deceased person, the document will be admitted to probate as a will of the deceased person.
The amended subsection omitted the express requirement of the progenitor provision, namely that the Court had to be satisfied that the document being propounded was intended by the deceased, as his or her will.
This omission was noted in the observations of Mullighan J in In the Estate of McCartney deceased. In that case, the document in question comprised jottings on two pages of green notepaper attached to a notepad. On another page of the notepad, the deceased had written her name. The notes were consistent with instructions for a will. Counsel for the applicant submitted that as a consequence of the 1994 amendment to section 12(2), the animus testandi was no longer required, provided the document contained the intentions of the deceased. Mullighan J found that, on the balance of probabilities, the deceased intended the document to be her will. As a result, His Honour found it unnecessary to consider counsel’s submission.
Section 12(2) was further amended and came into force on 3 December 1998 by the Statutes Amendment (Attorney-General’s Portfolio) Act 1998 as follows:
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 to make a will or a codicil to give effect to the testamentary intentions expressed in the document,
the document will be admitted to probate as a will (or a codicil to the will) of the deceased person even though it has not been executed with the formalities required by this Act.
There appears to be little parliamentary or judicial comment on this amendment.
The subsection was further amended in 2000 by the Statutes Amendment and Repeal (Attorney-General’s Portfolio) Act 2000 (SA):
…
This amendment came into force on 20 July 2000 and constitutes the provision presently in force.
Subsection 12(2), in its present form and as relevant to these proceedings, provides:
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.

Subsection 12(2) of the Wills Act removes the harsh consequence that testators will die intestate if their will has not met the formalities required in section 8 of the Act. The subsection allows a document to be admitted to probate notwithstanding non-compliance with the statutory formalities, providing the court is “satisfied” of the matters specified in the subsection. As Jacobs J observed in the Estate of Graham:[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.
The observations of King CJ in The Estate of Williams are also relevant:[4]
Section 12(2) is a remedial provision designed to avoid failure of the testamentary purpose caused by non-compliance with the formalities required by s. 8 arising out of ignorance or inadvertence. There is no reason to suppose that Parliament intended to limit the circumstances in which the remedial provision would operate and no reason for the Court to construe the sub-section other than in accordance with the natural meaning of the words used.
[4] In the Estate Williams deceased (1984) 36 SASR 423 at 425.
The court must be satisfied that the document, sought to be admitted to probate, expresses the testamentary intentions of the deceased, and that the deceased intended the document to constitute his or her will.
Burden of Proof
The burden specified in section 12(2) has been the subject of amendment. The words “beyond reasonable doubt” have been removed from an earlier version of section 12(2). Counsel for the applicant submitted that the removal of those words lowered the burden of proof to the civil standard of “on the balance of probabilities”.
The burden of proof required for civil proceedings was discussed in Briginshaw v Briginshaw,[5] where Dixon J observed:[6]
At common law two different standards of persuasion developed. It became gradually settled that in criminal cases an accused person should be acquitted unless the tribunal of fact is satisfied beyond reasonable doubt of the issues the burden of proving which lie upon the prosecution. In civil cases such a degree of certainty is not demanded.
…
[W]hen the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately … at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal…This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.
It is clear from Briginshaw that the burden of proof required in civil proceedings may vary according to the nature of the issue and the gravity of the consequences flowing from a finding.
[5] Briginshaw v Briginshaw (1938) 60 CLR 336.
[6] Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-363.
A similar view was taken by Denning LJ in Bater v Bater:[7]
In civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature; but still it does require a degree of probability which is commensurate with the occasion.
[7] Bater v Bater [1951] P. 35 at 37 cited in Lemmer v Bertram 2 SASR 397 at 399 (Walters J)
A finding that a court is satisfied will result in a final distribution of the estate in accordance with the document sought to be propounded. This may have significant consequences for named beneficiaries. It is because of the nature of probate, and the consequences of any findings that may be made, that the court should apply what has been described as “the Briginshaw onus” – the greater the seriousness, gravity or magnitude of the issue to be proved, the stricter the proof required.
This standard of proof is higher than the mere preponderance standard. The American cases speak of a clear and convincing standard.[8] This is another way of expressing the Briginshaw onus. As will be observed later, I have approached these proceedings with the view that a Briginshaw onus is to be satisfied. However, I have also considered the case on the alternative basis of the ordinary civil onus – the mere preponderance standard.
[8] Professor Langbein, “Excusing harmless errors in the execution of wills: a report on Australia’s tranquil revolution in probate law”(1987) 87 Columbia Law Review 1 at 14-15.
Guiding Authorities
In Baumanis v Praulin,[9] a patient in hospital gave instructions for a will to be drafted. After viewing the draft, he made some small alterations. The draft was taken away to be re-typed and was going to be brought back later in the day for execution. However, the patient died before he was able to execute the will. Mitchell J refused to admit the document to probate despite being satisfied that the document expressed his testamentary intentions. The then sub-section 12(2) provided for satisfaction beyond reasonable doubt. Her Honour concluded:[10]
There is no evidence here that the deceased intended the document which is before me to constitute his will. The evidence is quite to the contrary. He intended to execute another document in the like terms to the document which he had read but with the variations which he required … In order to admit the document to probate the court must be satisfied therefore that the deceased intended that document, not a document in similar form, to be his will.
[9] Baumanis v Praulin (1980) 25 SASR 423.
[10] Baumanis v Praulin (1980) 25 SASR 423 at 426.
In the Estate of Vauk,[11] the testator gave instructions to an officer of the Public Trustee to prepare a new will replacing his previous will. The testator did not sign the instructions taken by the officer. A draft will was prepared and ready for execution a few days later. However, the testator committed suicide before executing the will. By the testator’s body was a piece of paper with the following badly smudged words: “There … will … the … Pu … Trustee … unsigned … – changed: to be valid!” Legoe J concluded that, although the testator had not seen the draft will, there was no doubt that the testator intended the document prepared by the Public Trustee to constitute his will.
[11] Estate of Vauk (1986) 41 SASR 242
Legoe J had regard to the consistency of the terms of the altered copy of the 1983 will with the terms of the new will drawn up at the Public Trustee’s office upon his rather urgent instructions. Legoe J also had regard to the suicide note in his handwriting to the effect that the changed will at the Public Trustee was “to be valid”. Thus Legoe J had no reasonable doubt that the unsigned document constituted his last will. His Honour dispensed with all of the formalities, including the signature and witnesses. The unsigned will prepared by the Public Trustee’s officer was admitted to probate.
In the Estate of Parkinson deceased,[12] White J refused to propound a draft will, as the deceased had never seen or approved the draft. The deceased gave instructions for a new will to be drafted after she and her husband were divorced. After perusing the draft, the deceased had an appointment with her solicitor to make some amendments. The deceased stated that she was happy to sign the draft will incorporating the amendments, but she requested that the new draft be sent to her residence along with a letter explaining the amended draft in simple terms. The draft with the explanatory letter was sent to the deceased a couple of weeks later. However, in the meantime, the deceased had died.
[12] In the Estate of Parkinson (1988) 143 LSJS 336.
White J drew a distinction between a draft will and a document that was intended to constitute the will of the deceased. His Honour discussed the difficulties with propounding a document that, whilst containing the testamentary intentions of the deceased, had never been seen or approved. White J observed:[13]
[T]he law books are full of cases where intending testators have shown irresolution and changed their minds at the last minute or altered their wills by interlineation in the course of execution. It does not require much professional or bench experience to realise that intending testators do change their minds between the time of “finally” giving instructions and the time of ultimate execution of their wills.
White J had earlier concluded:[14]
Mr Lawson frankly admitted the difficulties in the way of the application: first, that the deceased had not signed the document, although that difficulty was not insurmountable (See In the Estate of Blakely…; In the Estate of Williams…); second that she had not seen the original, let alone the draft, document – but this also might not have been insurmountable if the deceased had otherwise acknowledged its contents, eg in another document (See In the Estate of Vauk…); third, the deceased was showing some signs of irresolution or vacillation in that she asked for a further draft to be sent to her together with a letter of explanation of its terms in simple language; and fourth, the letter accompanying the draft was couched in terms consistent only with it being a draft, susceptible of change.
In my opinion, the difficulties arising from the third and fourth factors are insurmountable.
[13] In the Estate of Parkinson (1988) 143 LSJS 336 at 340.
[14] In the Estate of Parkinson (1988) 143 LSJS 336 at 338-339.
Nonetheless, In Estate of Krawczuk deceased; Brandt and Pelvay v Hopko and Bojan,[15] White J did propound a will that had never been signed nor seen by the deceased. However, the will had previously been approved by the deceased, but contained a spelling error in the name of one of the beneficiaries. In White J’s opinion: [16]
[T]here can be no reasonable doubt…that the document already approved by him – and very slightly amended – was his last will and testament and contained his testamentary intentions.
[15] In the Estate of Krawczuk deceased; Brandt and Pelvay v Hopko and Bojan (1992) 168 LSJS 231.
[16] In the Estate of Krawczuk deceased; Brandt and Pelvay v Hopko and Bojan (1992) 168 LSJS 231 at 237.
In the Estate of Templer Warner,[17] a patient at the Jamestown Hospital gave instructions for a codicil to be prepared to her will leaving $20,000 to the hospital. The codicil was prepared; however, the deceased died before it could be executed. After considering the evidence, a Master of the court held that there was no doubt that the deceased intended to give the money to the hospital and accordingly propounded the will and the codicil. The Master, however, did not disclose the process of reasoning for his decision. As a result, the decision is of limited assistance.
[17] In the Estate of Templer Warner; IOOF Australia Trustees Limited v Jamestown Hospital Incorporated (1993) 174 LSJS 268.
In the Estate of Iasiello,[18] the deceased executed a draft will that had been prepared for her, but the document as executed did not satisfy the formalities in section 8 of the Wills Act. In discussing the approach that should be taken to draft wills, Legoe J observed:[19]
Undoubtedly the document is informal and can only be admitted to probate pursuant to the dispensing power to his court given by s.12(2) of the Act. That power is only available to the court if the court “is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his or her will.”.
The limitations imposed by these words in the sub-section clearly mark the line which is preserved in the remedial legislation between a document which can “be taken to be a will of a deceased person” and a document in draft in form or in terms giving the appearance of a will. The line between a will and a draft must never be crossed.
…
Judge Bowen Pain admitted to probate the codicil which had not been seen signed or otherwise approved by the deceased. I can only conclude on the facts of that decision that the principles of law laid down in the cases relating to draft wills must have been misconstrued or misapplied. In my opinion the case of Templar-Warner (deceased) stopped short of any statement or writing by the deceased that the draft was to be the actual codicil of the deceased.
[18] In the Estate of Iasiello deceased, (unreported, 28 March 1994, SC (Testamentary Causes Jurisdiction) Judgment No. S4459).
[19] In the Estate of Iasiello deceased, (unreported, 28 March 1994, SC (Testamentary Causes Jurisdiction) Judgment No. S4459) at p.4-5, 10.
Finally, under the second amended version of subsection 12(2), Williams J In the Estate of Mead deceased,[20] was not satisfied that a draft will in the possession of the deceased was intended by the deceased to operate as his testamentary instrument. The draft will had been prepared in accordance with the deceased’s instructions and was sent to him for execution. The deceased told his neighbour that he intended to take the document to Flinders Medical Centre where he hoped it could be witnessed. The deceased forgot to take the will and subsequently died a month later without the will ever being executed. Williams J concluded:[21]
The evidence does not show that the deceased ever finally adopted the unsigned document as expressing his testamentary intentions. The evidence shows that the deceased had in contemplation the making of a will in terms of the unsigned document. The fact of the matter is that the deceased either overlooked finishing the task or else he changed his mind.
Williams J went on to refer to Professor Langbein’s article, “Excusing harmless errors in the execution of wills: a report on Australia’s tranquil revolution in probate law”:[22]
Many a testator decides not to execute a will that has been prepared to his instructions. One of the things you can do with a draft will is decide you do not want to use it. Signature is the formality that permits us to distinguish between drafts and wills. Decide such a case the other way and the risk arises that any unsigned draft, any scrap of paper, can be argued to be an intended but unexecuted will.
[20] In the Estate of Mead deceased (unreported, 13 February 1998, SC (Testamentary Causes Jurisdiction), Judgment No. S6547).
[21] In the Estate of Mead deceased (unreported, 13 February 1998, SC (Testamentary Causes Jurisdiction), Judgment No. S6547).
[22] Professor Langbein, “Excusing harmless errors in the execution of wills: a report on Australia’s tranquil revolution in probate law”(1987) 87 Columbia Law Review 1 at 23.
These authorities show the approach by the court to particular factual circumstances. They demonstrate the care taken to ascertain whether in those circumstances it is inappropriate to invoke the provisions of section 12(2) in the form that the section existed at the relevant time. The cases are of limited value as precedents. They do however provide a degree of general guidance.
Does the Draft Will Express the Testamentary Intentions of the Deceased?
As previously discussed, sub-section 12(2) requires the court to be satisfied that the document sought to be admitted to probate embodied the testamentary intentions of the deceased.
The deceased’s intention was that his estate be shared equally between his son and the applicant. It was the deceased’s further intention that the applicant act as trustee over the son’s share. The deceased made his intentions known to the applicant through a number of discussions both before and after he gave instructions to Mrs Elliott.
The draft does not provide for the division of the deceased’s estate in the intended manner. The draft provides that the applicant is to be the sole beneficiary of the estate. Matthew would only benefit from the estate in the event that the applicant predeceased the testator.
As earlier observed, Mrs Elliott spoke to the deceased regarding the making of provision for his son in his will. The deceased said he did not wish to alter the draft. It is possible that the deceased believed he had sufficiently conveyed to Mrs Elliott his true intentions regarding the distribution of the estate; or, alternatively, it is possible that upon viewing the draft he would have wished to make amendments. Having regard to the testimony of the applicant, I am not satisfied that the draft will expresses the deceased’s testamentary intentions. The evidence of the applicant leaves the testamentary intentions of the deceased open to doubt.
Did the Deceased Intend the Draft to Constitute his Will?
It is clear from a number of the authorities discussed above that a line should be drawn between a draft will that has never been seen or approved by the testator and a final will. Counsel for the applicant submitted that the present case could be distinguished from those authorities where a line had to be drawn. It was pointed out that Mrs Elliott had discussed with the deceased the possibility of making his son a beneficiary of his will, but was instructed by the deceased that he wished her to leave the draft will unchanged and that he would be in as soon as possible to execute the draft.
Nevertheless, by the time of death the deceased had not seen or approved the draft. He had not attended to execute the draft. More than two months had passed between the draft first being ready for execution and death. The instructions given to Mrs Elliott were not read over to the deceased. He did not initial the instructions. Once the document had been drafted, the terms were not read over to the deceased. The only discussion regarding the terms of the draft related to the question of providing for his son. The draft at all times remained unseen by the deceased.
It is possible that the deceased had not executed the draft due to financial constraints. However, significant delay occurred between the time the draft was ready for execution and death. As White J pointed out in Estate of Parkinson, it is not uncommon for testators to change their mind between the time of drafting and the time for execution. I am not satisfied that the delay in the present case was solely attributable to financial constraints. The delay may well have occurred for a number of reasons, including a wish by the deceased to consider further the terms of the draft.

The delay between the date of instruction and death raises doubt over whether the draft accurately reflects the testamentary intentions of the deceased. The fact is that the deceased never viewed or approved the document in any form.
Conclusion
Having regard to all of the above considerations, I am not satisfied that the draft will expresses the testamentary intentions of the deceased. Nor am I satisfied that the deceased intended the draft to constitute his will. In these circumstances, the draft will not be admitted to probate.
I have reached this conclusion having regard to the heightened civil onus discussed in Briginshaw. However, even if a lower civil onus were to be applied, I would reach the same conclusion. The fact that the draft did not accord with the deceased’s intention as expressed to the applicant both before and following the giving of instructions is telling. This factor, coupled with the delay and the circumstance that the deceased at no time had seen or had read over to him the draft will, would lead me to the same conclusion on a simple preponderance test.
The application is refused.