In the Estate of BURGESS (DECEASED) - [2011] SASC 223

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of BURGESS (DECEASED)
[2011] SASC 223
Judgment of The Honourable Justice Gray
9 December 2011
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF THE COURT - SOUTH AUSTRALIA
Application for letters of administration with will annexed - where deceased executed last will in India a few days prior to her departure to Australia to reside with her son and his family - where the will did not refer expressly to any South Australian property - where the deceased died with property in South Australia - whether property within the South Australian jurisdiction sufficient basis to invoke probate jurisdiction of the Supreme Court - whether the deceased was domiciled in South Australia at the time of her death - whether will properly executed.
Consideration of the probate jurisdiction of the Supreme Court - consideration of section 25B of the Wills Act 1936 (SA) and principles of private international law.
Held: the Supreme Court has jurisdiction to grant letters of administration with the will annexed notwithstanding that the will does not expressly dispose of property in South Australia, in the circumstance where there is property in South Australia and in the further circumstance where the deceased intended her will to have testamentary operation in South Australia - the deceased was domiciled in South Australia at the time of her death - it follows that the law which governs whether the deceased's will was properly executed and ought to be admitted to probate, is the law of South Australia - will properly executed in accordance within the terms of section 8 of the Wills Act.
Administration and Probate Act 1919 (SA) s 5 and s 8; Testamentary Causes Act 1867 (SA) s 6; Court of Probate Act 1858 (UK); Supreme Court Act 1935 (SA) s 18; Wills Act Amendment Act 1965-1966 (SA); Wills Act Amendment Act (No 2) 1975 (SA); Wills Act 1936 (SA) s 8 and s 25B; Wills Act 1968 (ACT) s 15C; Succession Act 2006 (NSW) s 48(1); Wills Act 2000 (NT) s 46(1); Succession Act 1981 (Qld) s 33T; Wills Act 2009 (Tas) s 60(1); Wills Act 1997 (Vic) s 17(1); Wills Act 1970 (WA) s 20(1); Indian Succession Act 1925 (India), referred to.
In re Kuhl [1933] SASR 394; Re Aylmore [1971] VR 375; Re Carlton [1924] VLR 237; In the Goods of Mann [1891] P 293; In the Goods of Jordan [1868] LR 1 P & D 555; In the Will of Lambe (1972) 2 NSWLR 273; Pepin v Bruyere [1902] 1 Ch 24; In the Estate of John Wentworth Varley (decd) [2007] SASC 420; n the Estate of Crawford (decd) [2004] SASC 370, considered.

In the Estate of BURGESS (DECEASED)
[2011] SASC 223
Testamentary Causes Jurisdiction
GRAY J:
Introduction

This is an application for letters of administration with the will annexed.
Nancy Daphne Burgess died on 31 December 2009, aged 84 years. She was, at the time of her death, a widow with three adult children. Mrs Burgess left a last will made and executed in India on 13 December 2006. From 21 December 2006, until the time of her death, Mrs Burgess lived with her son, Ralph Burgess at Golden Grove, South Australia, and over that period held funds in bank accounts in this State. Ralph has applied to this Court for letters of administration with the 13 December 2006 will annexed. The application takes that form because the will does not name an executor and does not expressly deal with the residual property of Mrs Burgess’s estate, which leaves Mrs Burgess partially intestate as to the residue of her estate. Probate has not been granted in any other jurisdiction. A number of issues arise on the application.
Mrs Burgess executed her last will only days before her departure to Australia. Her will is in the following terms:
WILL
KNOW ALL MEN BY THESE PRESENT that I, MRS. NANCY DAPHNE BURGESS W/O LATE MAJ GEN D R BURGESS CHRISTIAN aged about 81 years Occ: House Wife, R/o. H. No, 67 VAYUPURI, Sainikpuri Post, Secunderabad, do hereby executed this my last WILL on this the 13^th day of December 2006, and I hereby revoke all former wills codicils if any hereto for made by me.
I am now aged 81 years, and at present I am hale and healthy and in disposing state of mind. As I have become considerable old and death is certain and may occur at any time, I have decided to execute this my last will to avoid future misunderstandings between my family members after my death.
I am the sole and absolute Bank Account Holder of Pension Account No. … and Saving Account No. …, Both in SYNDICATE BANK, SAINIKPURI AND SECUNDERABAD…
I have one son by name Mr. RALPH BURGESS S/O. MRS. NANCY DAPHNE BURGESS I am will be living along with my son Mr. RALPH BURGESS at the Address … Golden Groves, ADELAIDE, SOUTH AUSTRALIA - 5125.
Now I have decided to bequeath my said BANK ACCOUNTS IN SYNDICATE BANK, Situated at SAINIKPURI, SECUNDERABAD, under Malkajgiri Municipality and Mandal, Ranga Reddy District, to my Son Mr. RALPH BURGESS Absolutely after my death. I shall enjoy the said Bank Accounts during my life-time and after me, the Said bank Accounts will go to my Son Mr. RALPH BURGESS absolutely.
I hereby reserve my right to revoke, or annul the said my last will during my life-time and this will shall come into force only after my death.
As I come to later, the affidavit evidence establishes that Mrs Burgess intended to live with her family in Australia and to make Adelaide her permanent place of residence. In the circumstances, I consider that the inference may be safely drawn that she intended her will to have testamentary effect in South Australia.
On 22 June 2010, the Registrar of Probates sought further information from the applicant relating to the basis on which Mrs Burgess’s will was executed in India given the formalities for execution of a will in the Republic of India, and as to whether the will can be admitted to probate in South Australia because it does not expressly refer to South Australian property. The Registrar then referred the matter to me pursuant to section 8 of the Administration and Probate Act 1919 (SA).[1]
[1] Section 8 of the Administration and Probate Act 1919 (SA) provides:
8—Registrar to obtain direction of Judge in doubtful case
In any case where it appears to the Registrar doubtful whether probate or administration should be granted, or whether he should exercise any power or discretion appertaining to his office, he shall obtain the direction of a Judge, and act accordingly, and the Registrar shall be subject in all cases to the control and orders of the Court.
The jurisdiction of the Supreme Court in relation to probate and letters of administration appear to have been first enacted in 1867 in the Testamentary Causes Act 1867 (SA). Section 6 provided the Supreme Court with the like jurisdiction exercised by the English Court of Probate under the Court of Probate Act 1858 (UK). This enactment was repealed and replaced by other enactments and is presently represented by section 5 of the Administration and Probate Act, which provides:
5—Probate jurisdiction of Supreme Court
(1)     The like voluntary and contentious jurisdiction and authority as immediately before the coming into operation of this Act belonged to or were vested in the Supreme Court, in relation to granting or revoking probate of wills and letters of administration of the effects of deceased persons, shall be vested in and exercised by the said Court in relation to granting or revoking probate of wills and letters of administration of the estate, as well real as personal, of deceased persons within the said State; and the Court shall have the same power of granting probate or administration, where the only estate within the State consists of realty, as if such estate comprised both realty and personalty.
(2)     The said Court shall also have and exercise the like powers, and its grants and orders shall have the like effect within the said State, in relation to the real and personal estate therein of deceased persons, as immediately before the coming into operation of this Act the said Court and its grants and orders respectively had within the said State, in relation to those matters and causes testamentary, and those effects of deceased persons, which were within the jurisdiction of the said Court.
(3)     All duties which by statute or otherwise were, immediately before the coming into operation of this Act, imposed on or to be performed by the said Supreme Court in respect to probates, or administrations, or matters or causes testamentary within its jurisdiction shall continue to be performed by such Court within the said State.
A comparable provision addressing the jurisdiction of the Supreme Court in relation to probate and letters of administration, is to be found in section 18 of the Supreme Court Act 1935 (SA), which provides:
The court shall, in relation to probates and letters of administration, have the following jurisdiction, that is to say:
(a)     The like voluntary and contentious jurisdiction and authority in and for the State in relation to the granting or revoking of probate of wills, and administration of the effects of deceased persons, as was vested in or exercisable by the Court of Probate established in England under the Court of Probate Act 1857, together with full authority to hear and determine all questions relating to testamentary causes and matters:
(b)     The like jurisdiction and powers with respect to the real estate of deceased persons as it has with respect to the personal estate of deceased persons:
(c)     All probate jurisdiction which, under or by virtue of any enactment not repealed by this Act, is vested in or capable of being exercised by the court.
In In the Estate of Tadeusz Jan Rogowski, I had occasion to consider the Court’s jurisdiction and there observed:[2]
Section 18 of the Supreme Court Act 1935 (SA) vests in the Court all the powers, jurisdiction and authority in testamentary causes or matters which were formally vested in the Court of Probate in England under the Court of Probate Act 1857. Sections 5 and 21 of the Administration and Probate Act preserve the testamentary causes jurisdiction and practice successively vested in this Court by the Testamentary Causes Act 1867.[3] The jurisdiction to make a grant of probate or administration in South Australia is limited to cases where the deceased left real or personal property within the jurisdiction.[4]
The property requirement appears steadfast even in the case of an ad litem grant.[5] Any property is sufficient and the fact that the will does not dispose of it is not a ground for refusing the grant.[6] These requirements apply to the re-sealing of a grant. When a grant is re-sealed it has the same force, effect and operation as if it had been originally granted by the re-sealing court.
[2]    In the Estate of Tadeusz Jan Rogowski Deceased [2007] SASC 161, [12]-[13].
[3]    Testamentary Causes Act 1867 (SA) sections 6 and 14. The history of the jurisdiction is noted by Napier J in In re Kuhl [1933] SASR 394.
[4]    Administration and Probate Act 1919 (SA) section 5.
[5]    Re Aylmore [1971] VR 375.
[6]    Re Carlton [1924] VLR 237.
The Registrar has drawn attention to a suggested conflict in the authorities. He has pointed out the observations of a number of textbook writers[7] suggesting that a deceased must have left property whether real or personal in the jurisdiction which is disposed of by will before a grant can be made. Reference is frequently made to the English decision in In the Goods of Mann.[8]
[7] Those writers include Mortimer, Certoma, Mason & Handler and Haines.
[8] In the Goods of Mann [1891] P 293.
The facts of Mann were similar to the present proceeding. The testatrix left a will appointing executors in the United States of America and was expressly limited to her property in the United States of America. She died with assets in the United States of America and also in England. The Court held that letters of administration could be granted in respect of the English assets on the basis that the deceased died intestate with respect to those assets. However, the report does not suggest that any application was made to prove the will in England. The question of jurisdiction to do so was not considered.
There are number of authorities to the contrary. In the Victorian Full Court decision of Re Carlton[9] the issue arose as to whether there was jurisdiction to re-seal a New Zealand grant in Victoria. This was to enable Victorian property to be dealt with. The Full Court held that it was unnecessary for the will to refer to any Victorian property. The Court concluded that the mere fact that there was property within Victoria was a sufficient basis for jurisdiction and the fact that the will did not dispose of any property in Victoria was not itself sufficient reason for the Court refusing in Victoria to grant probate of such will. I do not consider there to be any relevant distinction between an application for re-sealing a grant of probate, an application for a grant of probate or an application for letters of administration with the will annexed.
[9] Re Carlton [1924] VLR 237.
In Re Carlton the Court observed:[10]
Sec. 5 of the Administration and Probate Act 1915 provides that “the Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property whether real or personal within Victoria.” If there be propounded in Victoria a will duly executed in compliance with the law of Victoria by a foreign testator who at the time of his death had property in Victoria, the fact that no Victorian property is by such will disposed of is not, by itself, we think, any sufficient reason for refusing a Victorian grant of probate. The mere appointment of an executor by a duly executed testamentary instrument not purporting to dispose of any property may suffice to entitle such executor to a grant of probate: In the Goods of Jordan.[11] Where a person has died leaving property within Victoria and a duly executed testamentary instrument appointing an executor and revoking all prior wills, probate of such instrument as a will might properly, we think, be granted in Victoria, even if the will contained no dispositions of any property. The right to such a grant should surely not be less if the will contained dispositions of certain property, even though none of such property was in Victoria.
The Court noted however the jurisdiction to refuse to grant probate where a will itself sufficiently manifested an intention that in Victoria the will “should not have any testamentary operation either as an appointment of an executor or as a distribution of property or otherwise howsoever”. The Court relevantly observed:[12]
Quite consistently, however, with these considerations, the Court in Victoria may refuse to grant probate of the duly executed will of a person who has left property within Victoria where there is found in the will itself a sufficiently manifested intention that in Victoria it should not have any testamentary operation, either as an appointment of an executor, or as a disposition of property, or otherwise howsoever. In such a case the Victorian Court would properly decline to make a grant recognizing as effectual for Victorian purposes a will which, in the Court's opinion, manifested an intention that for any Victorian purposes it should not be operative. In re Palmer (supra), to which we were referred, was such a case.
The language of the will in In re Palmer, as in the English cases, upon which the judgment of Madden, C.J., was there based, such as In the Goods of Coode and In the Goods of Tamplin, justified, in each case, the view there taken that to grant probate as sought would be to give to the will an extra-territorial operation clearly not intended by the testator. The headnote to the report of In re Palmer, justified by language in the judgment, is in these words:- "A will disposing of foreign property only is not entitled to probate in Victoria, even though the testator be domiciled in Victoria." If these words be construed as meaning that the absence from a will of any disposition of Victorian property is sufficient reason for refusing probate of such will in Victoria, we do not accept the proposition of law so expressed. But, if construed as meaning that probate in Victoria should be refused where it is manifest from the will that it was not intended to have any operation whatsoever, except as a disposition of some non-Victorian property, these words in the headnote are consistent, we think, with the view we have here expressed.
[Footnotes omitted.]
[10] Re Carlton [1924] VLR 237, 240.
[11] [1868] LR 1 P & D 555.
[12] Re Carlton [1924] VLR 237, 240-241.
It is to be accepted that there are some differences in the legislative provisions in Victoria and South Australia. However, having regard to the legislative provisions conferring probate jurisdiction on this Court, I confirm my view that the observations in Re Carlton are apposite.
I consider that the Court has jurisdiction to grant letters of administration with the will annexed of the deceased notwithstanding that the will does not dispose of property in South Australia, in the circumstance where there is property in South Australia and in the further circumstance where the deceased intended her will to have testamentary operation in South Australia.
The Application
A further question before the Court is whether, as a matter of law, the applicant has satisfied the criteria for a grant of letters of administration with the will annexed. For the reasons that follow, I have reached the conclusion that those criteria have been satisfied.
The estate is modest. The statement of assets and liabilities before the Court discloses that Mrs Burgess died with property in South Australia: namely, furniture and household effects; jewellery and personal effects of a modest value; approximately $26,000.00 in a Commonwealth Bank Account; a term deposit held at the Adelaide suburb of Golden Grove Commonwealth Bank branch of a little more than $200,000.00; and, a Hearing Life Adelaide refund of a little more than $4,000.00. Outside of Australia, Mrs Burgess held money in bank accounts in India to the value of the equivalent of approximately $70,000.00. The net estate is estimated at the time of death to be worth $298,719.72.
It is to be noted that at common law, the formal validity of a will of moveables was, regardless of residence, nationality or place of execution of the will, governed by the law of the domicile of the deceased at the time of death.[13] A will relating to immovable property, at common law had, regardless of the domicile of the testator at the time of their death, to conform with the lex situs – the law of the country where the property is situate.[14] This distinction between moveable and immoveable property was abandoned by legislation enacted in States and Territories across Australia in the mid 1960s based on the Hague Convention of 1961 on the Conflict of Laws Relating to the Form of Testamentary Dispositions.
[13] See the seminal treatment of these matters in Davies, Bell & Brereton, Nygh’s Conflict of Laws in Australia (8^th ed, 2010) [38.10]-[38.13]; In the Will of Lambe (1972) 2 NSWLR 273.
[14] Pepin v Bruyere [1902] 1 Ch 24.
By the Wills Act Amendment Act 1965-1966 (SA), the South Australian Parliament enacted Part 3 of the Wills Act 1936 (SA), with section 25B being part of these amendments. The second reading speech discloses that this legislation was enacted to bring the formal requirements for the making of wills into line with the law of the United Kingdom, which law had then been recently amended to enable the United Kingdom to ratify the above mentioned Convention. The speech further discloses that in a time of much immigration to Australia, uniformity and a certain practical flexibility was considered necessary in the area of the formality of wills. During the second reading speech it was stated:[15]
The question of validity of wills is becoming one of increasing practical importance in private international law for it is now common for people to travel and migrate from one part of the word to another. In Australia we have welcomed many thousands of migrants who may well have executed wills in accordance with the law of the country from where they have come. It is surely reasonable to treat such wills as being validly executed. The main object of the law relating to formal validity is to ensure that a will is executed with due formality. It matters little what formalities are required so long as they ensure that the will is properly executed with due regard to its importance.
[15] South Australia, Parliamentary Debates, Legislative Council, 15 September 1965, 1482 (The Hon Albert James Shard).

Section 25B creates a “general rule as to formal validity” and presently provides:[16]
Notwithstanding any other provision of this Act, a will is to be treated as properly executed for all purposes if its execution conformed to the internal law in force in the place where it was executed, or in the place where, at the time of its execution or of the testator's death, he or she was domiciled or had his or her habitual residence, or in a country of which, at either of those times, he or she was a national.
[16] For reference to section 25B in factual circumstances dissimilar to those of the within proceeding, see for example: In the Estate of John Wentworth Varley (decd) [2007] SASC 420, Re Crawford (decd) (2004) 90 SASR 119.
Since its enactment in 1966, only minor amendments immaterial to the within proceedings have been made to section 25B.[17]
[17] In 1975 by the Wills Act Amendment Act (No 2) 1975 (SA), section 25B was amended by striking out the words “for the purpose of being admitted in the State to probate” and inserting in lieu thereof “for all purposes”. In 1991further minor amendments were made.
As can be seen, section 25B contemplates a number of “places” or “countries” of which the internal law shall be the applicable law for the purposes of formally valid execution of a will. They may be broken down as follows:[18]
[18] For a treatment of all comparative Australian provisions see Davies, Bell & Brereton, Nygh’s Conflict of Laws in Australia (8^th ed, 2010) [38.13].
·The place where the will was executed;
·The place where the testator was domiciled at the time of execution of the will;
·The country of which the testator was a national at the time of execution of the will;
·The place where the testator had their habitual residence at the time of execution of the will;
·The place where the testator was domiciled at the time of their death;
·The place where the testator had their habitual residence at the time of their death; and
·The country of which the testator was a national at the time of their death.
The Wills Act defines “country”, “internal law” and “place” as follows:
country means any place or group of places having its own law of nationality (including the Commonwealth of Australia and its territories);
internal law in relation to any country or place means the law which would apply in a case where no question of the law in force in any other country or place arose;
place means any territory (including a State or Territory of the Commonwealth of Australia).
[Emphasis in original.]
Other State and Territory Acts have comparable legislation to the same or similar effect.[19]
[19] Wills Act 1968 (ACT) section 15C; Succession Act 2006 (NSW) section 48(1); Wills Act 2000 (NT) section 46(1); Succession Act 1981 (Qld) section 33T; Wills Act 2009 (Tas) section 60(1); Wills Act 1997 (Vic) section 17(1); Wills Act 1970 (WA) section 20(1).
Relevantly to the circumstances of the present proceeding, it is evident from the terms of section 25B that Mrs Burgess’s will is to be treated by this Court as properly executed for all purposes, if the execution was in accordance with the law in force in the place where Mrs Burgess was domiciled or had her habitual residence at the time of her death. Therefore, provided that Mrs Burgess’s domicile can be established at the time of death as being South Australia, it follows that the law of South Australia is the relevant law and that the law of India does not need to be considered.
Before turning to discuss further the relevant provisions of the Wills Act for the purposes of determining due execution, it is convenient to address the issue of domicile.
Section 9 of the Domicile Act 1980 (SA) is entitled “intention for domicile of choice” and provides that the intention that a person “must have in order to acquire a domicile of choice in a country is the intention to make his home indefinitely in that country”.
Mrs Burgess, until 2006, lived her entire life in India. The applicant and his two sisters have for some time lived in Australia. By affidavit dated 21 September 2011, the applicant deposed that he received a telephone call from Mrs Burgess in about December 1997 and that during that conversation Mrs Burgess informed him that she wished to migrate permanently from India to Australia. In January 1998, the applicant applied for a “parent-migrant permanent visa” for his mother. By letter dated 18 October 2006, from the Department of Immigration and Multicultural Affairs, the applicant was informed that the visa had been granted.
Some time thereafter, Mrs Burgess sold her real estate in India. On 13 December 2006, the will the subject of the present proceedings was executed. By affidavit dated 26 July 2011, the applicant deposed the following:
Immediately prior to my mother’s December 2006 departure from India and upon her arrival in Australia, my mother advised me that she did not intend to return to the Republic of India given her age and that she intended to reside and domicile in Australia for the rest of her natural life and had sold her real estate residence in India with the settlement proceeds credited to her bank account in Australia.
On 21 December 2006, Mrs Burgess arrived in Adelaide, leaving no possessions in India. A short time thereafter, the proceeds from the sale of her real property in India were credited to Mrs Burgess’s Commonwealth Bank account. During her time in Australia, Mrs Burgess applied for and received Medicare benefits.
From the time of her arrival in Adelaide in 2006 until her death on 31 December 2009, Mrs Burgess resided with the applicant at his family home in Golden Grove and did not at any point during this time leave Australia. Mrs Burgess occupied a bedroom in that home and was supported by members of her family.
The applicant and his two sisters, as earlier mentioned, all live in Australia. Between them they have eight children. When Mrs Burgess migrated to Australia, she had no living relatives in India.
I am satisfied that Mrs Burgess’s domicile at the time of her death was South Australia. It follows that the law which governs whether Mrs Burgess’s will was properly executed and ought to be admitted to probate is the law of South Australia.
I turn now to the formal requirements for the valid execution of a will. Section 8 of the Wills Act sets out those requirements, and provides as follows:
(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).
The applicant contended that the requirements of section 8 were met in the present proceeding and contended that in the alternative, the requirements of section 12(2) of the Wills Act were met. Section 12(2) provides a power in the Court to dispense with any of the formal requirements of section 8 provided that it is satisfied that the document propounded expresses testamentary intentions of the deceased person and that the deceased person intended that document to constitute his or her will. However, for reasons that follow, I am satisfied that the requirements of section 8 of the Act have been met. Accordingly, section 12(2) does not arise.
The will is a two page document, typed and bearing a number of stamps and signatures. It appears on “stamp paper”, a paper which is purchased and used in India to provide an official revenue record of many types of legal documents. The will apparently bears Mrs Burgess’s signature and apparently bears the signatures of two witnesses. One of those signatures is that of Ivan Alvares, who, by affidavit dated 7 July 2011, deposed to such. The other signature is that of Puthettu Kurien Mani, who Mr Alvares deposed was also present at the time when the will was executed. Mr Alvares deposed to himself and Mr Mani being present at the same time when Mrs Burgess signed the will and that they both attested and subscribed the will in the presence of Mrs Burgess.
Finally, it is to be observed that affidavit evidence was tendered with a view to satisfying the Court that the will satisfied the formal requirements of Indian law; a route of enquiry which was open to me to consider in accordance with section 25B. I was also provided with a copy of the Indian Succession Act 1925 (India). As I have reached the above conclusions with respect to section 8 of the South Australian legislation, I of course need not determine compliance with the Indian legislation. However, the will does appear prima facie to also satisfy that legislation.
Conclusion
For these reasons, it is my view that the Registrar has jurisdiction to proceed to address the application for letters of administration with the will annexed.