In the Estate of BETTY JEAN HOFFMAN (DECEASED)

[2016] SASC 110

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction)

In the Estate of BETTY JEAN HOFFMAN (DECEASED)

[2016] SASC 110

Judgment of The Honourable Justice Stanley

28 July 2016

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF COURT - SOUTH AUSTRALIA

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - CHANGING, TRANSPOSING, OMITTING OR SUPPLYING WORDS - OMITTING WORDS

Betty Jean Hoffman (the deceased) died on 21 June 2015.  The deceased executed her last will and testament (the will) on 8 August 2014. 

By summons dated 19 May 2016 the plaintiff seeks an order for the omission of words of an offensive or libellous nature from the copy of the will to be admitted to Probate and an order rectifying the back sheet of the will which incorrectly identifies the testatrix as Jan Elizabeth Hoffman rather than Betty Jean Hoffman. 

Held:

1. The words the subject of the application for omission should not be excluded from probate (at [16]).

2. The back sheet is not part of the will and is not copied and included in the grant of probate (at [17]).

3. Application dismissed (at [18]).

Administration and Probate Act 1919 (SA) s 5; Probate Rules 2015 (SA) r 67; Defamation Act 2005 (SA) s 26; Criminal Law Consolidation Act 1935 (SA) s 257(1), referred to.
In the Estate of Enjakovic (Deceased) (2008) 100 SASR 486; Re Brummitt (Deceased) [2011] SASC 116; Re Estate of Hall (Deceased) [1943] 2 All ER 159; In the Will of JP (Deceased) (1922) 39 WN (NSW) 228; John Fairfax & Sons Ltd v Hook (1983) 72 FLR 190; Searles v Scarlett [1892] S QB 56, considered.

In the Estate of BETTY JEAN HOFFMAN (DECEASED)
[2016] SASC 110

Testamentary Causes Jurisdiction

STANLEY J:

Introduction

1. By summons dated 19 May 2016 the plaintiff seeks an order for the omission of words of an offensive or libellous nature from the copy of the will to be admitted to probate and an order rectifying the back sheet of the will which incorrectly identifies the testatrix as Jan Elizabeth Hoffman rather than Betty Jean Hoffman. 

2. Betty Jean Hoffman (the deceased) died on 21 June 2015.  The deceased executed her last will and testament (the will) on 8 August 2014. 

3. By her will she appointed the plaintiff to be her executor.  She left her residual estate to be divided amongst two of her children, the plaintiff and Jan Elizabeth Hoffman.  Importantly, clause 7 of the will provides:

   7.     No provision

   I DECLARE that the reason that no provision is hereby made for my daughter, GAY CHAMBERLAIN (Nee HOFFMAN), is I have not seen nor heard from the said GAY CHAMBERLAIN since 1985 at my late mother’s funeral.  FURTHERMORE I consider the said GAY CHAMBERLAIN to be a compulsive liar, and her lies have hurt me severely over the years.  I FURTHER CONSIDER that the said GAY CHAMBERLAIN seems to be independently wealthy and is possessed of adequate means. 

4. The application is for an order that the second sentence of clause 7 be omitted from the will. 

   The power to omit words from a will

5. The power to omit a word or words from a will is found in the inherent power of this Court to protect its processes from abuse. The inherent jurisdiction extends to probate as expressly provided for in s 5 of the Administration and Probate Act 1919 (SA). The relevant process needing protection from abuse is the process for the proving of wills.[1]  Rule 67 of the Probate Rules 2015 (SA) provides:

   [1]    In the Estate of Enjakovic (Deceased) [2008] SASC 72, (2008) 100 SASR 486.

   67Application for omission of words of an offensive or libellous nature from grant

   (1)An application for an order for the omission of words of an offensive or libellous nature from the copy of the will to be admitted to proof may be made without notice to any other party to the Registrar by summons in Form 34.

   (2)The application must be supported by an affidavit (to which the will must be exhibited) setting out the grounds of the application, together with the consents in writing to the application given by all persons who may be prejudiced by the order.

   Provided that if a person who is prejudiced by the application is not under a disability or cannot be ascertained or found, or if the Registrar is satisfied that in the circumstances it is just and expedient to do so, the Registrar may dispense with such consent.

6. The rule refers to the omission of words of “an offensive or libellous nature”.  At common law words such as “scandalous” or “defamatory” have been used.  In Re Brummitt (Deceased)[2] Gray J considered that the predecessor rule[3] reflected the inherent jurisdiction of the Court to protect its processes from being abused and to prevent unnecessary harm being caused to the subject or subjects of the words. 

   [2] [2011] SASC 116 at [7].

   [3]    Rule 66 Probate Rules 2004 (SA).

7. The exercise of the Court’s jurisdiction proceeds from the proposition that a will ought to be admitted to probate in the words of the will itself.[4]  Conventionally, two criteria 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.  Satisfaction of those criteria does not necessarily result in the omission of the word or words, it merely enlivens the Court’s jurisdiction.  The power to omit a word or words from a will is to be exercised on a case-by-case basis and with great care.[5]  Underlying the exercise of the power is the proposition that a testator is not entitled to use his will as a vehicle for libel but has a right to explain why he has disposed of his estate as he has in his will.[6]

   [4]    Re Estate of Hall (Deceased) [1943] 2 All ER 159 at 160.

   [5]    In the Will of JP (Deceased) (1922) 39 WN (NSW) 228 at 229.

   [6]    Re Estate of Hall (Deceased) [1943] 2 All ER 159.

8. The principles applicable to the exercise of the Court’s power to omit words from a will were summarised by Gray J in Re Brummitt (Deceased)[7] as follows:[8]

   [7] [2011] SASC 116.

   [8] [2011] SASC 116 at [32].

   ·Prima facie, probate ought to issue in the words of the will itself;[9]

   ·A testator not only has the right to dispose of his or her property, but to provide reasons for so disposing.[10]  This right, however, is not unqualified and a testator is not to use his or her will as a vehicle for defamation, scandal or offense, where those words have no testamentary effect.  The Court is to be mindful to protect the Court’s processes from abuse and the potential hurt to people named in the instrument;[11]

   ·The power to omit words from a will is an extension of the Court’s inherent power to prevent abuse of court processes,[12] but only extends to the omission from the probate copy of the will, not the will itself;[13]

   ·Generally, two criteria are to be met before the power to omit words is enlivened: the words have no dispositive effect and the words must be capable of being characterised as scandalous, offensive, defamatory or blasphemous.[14]  Whether or not these two criteria are met is to be assessed according to fact on a case by case basis;[15]

   ·The exercise of the power, once enlivened, is a matter of discretion for the court to determine on a case by case basis;[16]

   ·It is well established that the power is to be exercised with great care[17] and that only words which fully fall within the categories of the second criterion are open to be omitted. Interference with a testator’s testamentary affairs is to be kept to a minimum, consistent with protecting the Court’s processes from abuse;

   ·The onus is on those who seek to have probate granted with the words omitted to establish, on the balance of probabilities, that the words should not be admitted in the probate copy of the will.[18]  The attitude of beneficiaries and executors to the application is a material consideration;[19]

   ·Generally, insofar as words provide or support a cause or reason for testamentary dispositions, they ought not to be omitted from the will;[20] and

   ·Where the words have dispositive effect or assist in the interpretation of the will, the court may decline to omit them.[21]

   [9]    Re Estate of Hall (dec’d) [1943] 2 All ER 159.

   [10]   Re Estate of Hall (dec’d) [1943] 2 All ER 159.

   [11]   See for example Re Estate of L (1996) 185 LSJS 408.

   [12]   In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486; In the Will of JP, deceased (1922) 39 WN (NSW) 228; In the Estate of Ward (2006) 244 LSJS 326; In the Estate of Adler (1989) 155 LSJS 53.

   [13]   Rasheed v Rasheed (1999) 73 SASR 346; Re Maxwell (1929) 140 LT 471.

   [14]   See In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486, 493; 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.

   [15]   In the Will of O’Reilly [1927] VLR 533, 535.

   [16]   In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486.

   [17]   See for example: 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.

   [18]   In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486, 491 citing Re Bryden [1975] Qd R 210, 213; Re Fenwick [1972] VR 646, 651.

   [19]   In the Will of JP, deceased (1922) 39 WN (NSW) 228, 229.

   [20]   For example see In the Estate of Hawke [1973] 6 SASR 278, 279-280.

   [21]   In the Estate of John Rawlings (deceased) (1934) 78 Sol Jo 338.  It is to be noted that Legoe J in In the Estate of Adler (1989) 155 LSJS 53 distinguished Rawlings on the basis that the words that Legoe J was concerned with did not “attach” to a condition or explanation by the deceased in relation to a disposition in the will, which might help in the interpretation of the will.

   Meaning of the terms “offensive” and “libellous”

9. The meaning of the terms “offensive” and “libellous” are well settled.  In In the Estate of Enjakovic (Deceased)[22] Gray J addressed the meaning of the word “offensive” as follows:[23]

   [22] [2008] SASC 72, (2008) 100 SASR 486.

   [23] [2008] SASC 72 at [19], (2008) 100 SASR 486 at 493 – 494.

   The meaning of the word “offensive” has most commonly been considered in the context of offences of “offensive behaviour”.  In this context, in Densley v Mertin,[24] Napier CJ observed that the term had the following meaning:

   … “giving, or of a nature to give offence; displeasing; annoying; insulting,” and it seems to me that the word is used objectively, ie it includes any conduct which is calculated to annoy or give offence to other people, even if that result is not actually intended.

   In Worcester v Smith,[25] O’Bryan J observed:

   Behaviour, to be “offensive” … must, in my opinion, be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.

   The Macquarie Dictionary meaning of “offensive” is “causing offence or displeasure; irritating; highly annoying … repugnant to moral sense … pertaining to offence or attack”.  In my view the above definitions would apply equally to an understanding of the meaning of “offensive” in the context of the within proceedings.

   [24]   Densley v Mertin [1943] SASR 144 at 145.

   [25]   Worcester v Smith [1951] VLR 316 at 318.

10. “Libellous” is the adjective of the verb “to libel”.  To libel a person is to make a defamatory statement of a person in a durable form which is visible.  Frequently this is in writing.  A statement is defamatory if it tends “to lower the plaintiff in the estimation of right thinking members of society generally” or “if it is likely to cause ordinary decent folk of the community, taken in general, to think less of him”.[26] 

    [26]   John Fairfax & Sons Ltd v Hook (1983) 72 FLR 190 at 193.

11. Publication by an executor, in the absence of malice, is privileged, being an accurate republication of a register kept pursuant to statute.[27] A will published with a grant of probate is a “public document” for the purposes of the statutory defence in s 26 of the Defamation Act 2005 (SA). Mr Daws, counsel for the plaintiff, submits that when probate is granted to the deceased’s will it becomes a public document and the grant represents the publication of the will. He submits that as a result the Registrar of Probates is at risk of contravening s 257(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) which provides:

    (1) A person who, without lawful excuse, publishes defamatory matter concerning another living person—

    (a)     knowing the matter to be false or being recklessly indifferent as to whether the matter is true or false; and

    (b)     intending to cause serious harm, or being recklessly indifferent as to whether the publication of the defamatory matter will cause serious harm, to a person (whether the person defamed or not),

    is guilty of an offence.

    Maximum penalty: Imprisonment for 3 years.

    [27]   Searles v Scarlett [1892] S QB 56; In the Estate of Enjakovic (Deceased) [2008] SASC 72 at [21], (2008) 100 SASR 486 at 494.

12. I do not accept that submission.  To the extent that the Registrar could be considered to publish the will by the grant of probate, he does so with a lawful excuse within the meaning of s 257 of the CLCA. 

    Consideration

13. In my view the words used by the testatrix that her daughter, Gay Chamberlain, is considered by the testatrix to be a compulsive liar is both offensive and libellous.   I am satisfied that the words are calculated to wound the feelings, arouse anger or resentment in the mind of a reasonable person.  The words are annoying and insulting whether that was the testatrix’s intention or not.  I am further satisfied that to state in writing that a person is a compulsive liar is to lower the reputation of that person in the estimation of the ordinary decent folk of the community.

14. I am also satisfied that the words sought to be omitted from clause 7 of the will do not have any dispositive effect.  However, I consider that the words do have a testamentary purpose.  The words are used by the deceased to explain why she failed to make any provision for her daughter, Ms Chamberlain.  I do not consider the words represent an attempt by the deceased to use her will as a vehicle for libel.  Rather, she has sought to explain the reasons for the disposition of her estate and the exclusion of her daughter from her bounty. 

15. As was said in In the Will of JP (Deceased)[28] by Owen AJ:[29]

    I doubt whether the Court would be justified in removing from the probate the strongest reason, or one of the strongest reasons which influenced the testator in declining to make a disposition in favour of a particular son. 

    [28] (1922) 39 WN (NSW) 228.

    [29] (1922) 39 WN (NSW) 228 at 229.

16. In these circumstances the words the subject of the application for omission should not be excluded from probate. 

    Application for rectification

17. The back sheet on the will records that this is the original will of Jan Elizabeth Hoffman.  This is incorrect.  Jan Elizabeth Hoffman is the daughter of the deceased.  She accompanied the deceased when she attended on her solicitors for the purposes of making the will.  The plaintiff seeks rectification of the back sheet.  That is unnecessary.  The back sheet is not part of the will and is not copied and included in the grant.  Accordingly, I am not prepared to make any order for rectification. 

    Conclusion

18. The application is dismissed.