In the Estate of CHARLES WILLIAM LEONARD DARE (DECEASED) - [2015] SASC 153

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of CHARLES WILLIAM LEONARD DARE (DECEASED)
[2015] SASC 153
Reasons for Decision of The Honourable Justice Gray
2 October 2015
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS
Application for the issue of citations in respect of a will and informal codicil. The deceased died on 23 October 2007. His primary assets were parcels of farming land and the capital and assets of a farming partnership. The deceased left three testamentary documents: a will executed 29 January 1997; an informal codicil dated 18 June 2000; and a will executed 19 June 2002. The applicant, David Dare, a son of the deceased, seeks a grant of probate in respect of the 1997 will. The applicant requested that the Registrar of Probates issue citations in respect of the informal codicil and the 2002 will.
Whether the Registrar has power to issue a citation to propound an informal codicil.
Held (granting the application):
1. It is plain that the term “will” includes a codicil under the relevant legislation.
2. The effect of the legislation is that no distinction is to be drawn between a will and codicil for the purpose of the issue of citations pursuant to rule 55 of the Supreme Court Probate Rules 2004 (SA).
3. The Registrar has the power to issue citations in respect of both the 2002 will and the codicil.
Wills Act 1936 (SA) s 3(1); Administration and Probate Act 1919 (SA) s 4 and s 8; Supreme Court Probate Rules 2004 (SA) r 3.01(i), r 53.03 and r 55, referred to.
In the Estate of Muirhead [1971] P 263; In the Goods of William Benbow (1862) 2 Sw & Tr 488, not followed.

In the Estate of CHARLES WILLIAM LEONARD DARE (DECEASED)
[2015] SASC 153
Testamentary Causes Jurisdiction
GRAY J.

Charles William Leonard Dare, the deceased, died on 23 October 2007. He was survived by two sons, David and Charles, and two daughters, Susan and Anna. The primary assets of the deceased were parcels of farming land and the capital and assets of a farming partnership.
The deceased left three testamentary documents: a will executed 29 January 1997; an informal codicil dated 18 June 2000; and a will executed 19 June 2002. The latter two testamentary documents only exist in copy. The applicant, David Dare, a son of the deceased, seeks a grant of probate in respect of the 1997 will. The applicant requested that the Registrar of Probates issue citations in respect of the informal codicil and the 2002 will.
The Registrar had concerns about his power to issue a citation in respect of the informal codicil and sought my advice and direction in that respect. On 4 June 2015, I made an order that citations be issued in respect of the 2002 will and the informal codicil. My reasons follow.
Background
Both wills record that there is no provision for the deceased’s daughters, Susan and Anna, as they were provided for under the will of the deceased’s former wife. However, if either of the deceased’s sons should predecease, Anna is named as the substitute beneficiary under the 1997 will and Anna and Susan are joint substitute beneficiaries under the 2002 will. Under the 1997 will, the deceased nominates one daughter, Susan, as a joint executor and trustee. The terms of the 2002 will nominate the Public Trustee as the sole executor and trustee of the estate.
The two wills provide for the disposition of the farming properties between the deceased’s sons. The wills also address the deceased’s interest in his farming partnership with David. There is some variance in the terms of the two wills. The informal codicil only addresses the deceased’s share in farming plant, machinery and livestock.
Rule 55 of the Supreme Court Probate Rules 2004 (SA) provides a procedure for the Registrar to issue citations to persons interested in a will requiring them to propound the will. Rule 55 provides:
55.01 A citation to propound a will must be directed to the executors named in the will and to all persons interested thereunder, and may be issued at the instance of any citor having an interest contrary to that of the executors or such other persons.
55.02 If the time limited for appearance has expired, the citor may -
(a) in the case where no person has entered an appearance apply to the Registrar by summons in the Form No.33 supported by an affidavit of service search and non-appearance for an order for a grant as if the will were invalid;
(b) in the case where no person who has entered an appearance, proceeds with reasonable diligence to propound the will, apply to the Registrar by summons (which must be served on every person cited who has entered an appearance) for such an order as is mentioned in paragraph (a) of this Rule.
A person who believes a subsequent will is not valid may apply to the Registrar for the issuing of citations to persons interested in that subsequent will. The citor must enter a caveat prior to issuing the citation.[1] If the executor or another interested person chooses to propound the subsequent will, the matter proceeds in solemn form. However, if there is no response to the citation, or any interested parties agree to not propound the subsequent will, the citor may obtain an order stating that the subsequent will is invalid. As noted above, the applicant seeks a grant of probate in respect of the 1997 will and has requested that citations be issued in respect of the informal codicil and the 2002 will.
[1] Supreme Court Probate Rules 2004 (SA) rule 53.03.
The Application
The Registrar referred this application to me pursuant to section 8 of the Administration and Probate Act 1919 (SA), which provides:
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.
There is no issue in this case with issuing a citation to the executor and interested parties requiring them to propound the 2002 will. A doubt, however, arises as to whether the Registrar has the power to issue a citation to propound an informal codicil.
There is English authority which provides that a citation cannot be issued in respect of codicils. In In the Goods of William Benbow[2] the deceased died on 27 March 1862, leaving a will dated 17 April 1860 and a paper purporting to be a codicil dated one day prior to his death. The codicil disposed of the deceased’s property in a different manner from the will. The executors of the will sought to prove the will alone and applied for the issuing of citations to the legatees under the codicil. In refusing the application, Sir Creswell Creswell said:[3]
For the citation you ask there appears, after careful search, to be no precedent whatever, and it seems strange for the executors to call on any other person to propound testamentary papers. But the executors may proceed to prove the will in solemn form, and cite the next of kin and the asserted legatees under the codicil to see that will proved, which, I suppose, will effect the same object.
[2] In the Goods of William Benbow (1862) 2 Sw & Tr 488.
[3] In the Goods of William Benbow (1862) 2 Sw & Tr 488, 489.
The decision in Benbow has been widely criticised. The second edition of Mortimer on Probate Law & Practice provides:[4]
Where the executors of a will desired to cite the beneficiaries under a codicil, which they believed to be invalid, to propound the codicil, it was said that there was no precedent for a such a citation, but that the executors might proceed to prove the will in solemn form, and to cite the beneficiaries under the codicil to see proceedings (u).
[4] Clifford Mortimer and Hamish H. H. Coates, Mortimer on Probate Law & Practice (Sweet & Maxwell, 2^nd ed, 1927) 512.
The footnote to this passage cites Benbow and states:[5]
... Sed quare; see Wms. On Exors. (11^th ed.), p. 237, note (g), and the cases there cited. There seems to be no reason why such a citation should be refused.
[Emphasis added.]
[5] Clifford Mortimer and Hamish H. H. Coates, Mortimer on Probate Law & Practice (Sweet & Maxwell, 2^nd ed, 1927) 512 nn (u).
In the 14^th edition of Williams on Executors and Administrators, when referring to the decision in Benbow, it was said:[6]
... Executors of a will are allowed to cite the beneficiaries under a later will to propound it (see Palmer v. Dent, 2 Robert. 284); and there seems to be no reason for distinguishing between a codicil and any other testamentary document. It is believed that citations in the form under consideration have frequently been issued without question. In Speke v. Deakin, 109 L.T. 719, the executors provided a will and two codicils in common form. A legatee successfully propounded and proved a third codicil, and the executors were condemned in the costs of the suit.
[6] George Williams Keeton, Williams on Executors and Administrators (Stevens & Sons, 14^th ed, 1960) vol 1, 83 nn 17.
The English Court was given the opportunity to reconsider Benbow over 100 years later in In the Estate of Muirhead.[7] In Muirhead, the deceased had executed a will in 1951 appointing his wife as sole executrix and beneficiary. However, in 1967 he purportedly executed a codicil substantially benefitting his secretary. The deceased died in 1969 and his wife issued citations to the secretary requiring the secretary to propound the codicil. The Registrar endorsed the citation with queries, including as to whether the procedure was correct. No appearance was entered on the citation and the wife commenced a motion for a grant of probate in respect of the will alone. Cairns J, as his Lordship then was, refused to depart from Benbow. His Honour held:[8]
In my view, in the circumstances existing in the case before me, the procedure which has been adopted is not appropriate. I am not persuaded that the decision in Benbow, 2 Sw. & Tr. 488 is wrong or has ceased to be good law. I consider, both on authority and on principle, that the executrix should apply for a grant of probate in solemn form and if she has reason to believe that the codicil is not a valid testamentary document, should adduce evidence to satisfy the court accordingly. I therefore reject the motion.
[7] In the Estate of Muirhead [1971] P 263.
[8] In the Estate of Muirhead [1971] P 263, 270.
The Legislation
In South Australia, it plain that the term “will” includes a codicil under the relevant legislation. Section 3(1) of the Wills Act 1936 (SA) provides:
will includes testament, codicil, appointment by will or by writing in the nature of a will in exercise of a power and a disposition by will and testament or devise of the custody and tuition of any child by virtue of the Imperial Act passed in the twelfth year of the reign of King Charles the Second, Chapter 24, and any other testamentary disposition.
Similarly, section 4 of the Administration and Probate Act provides:
will comprehends testament and codicil and all other testamentary instruments of which probate can be granted.
“Will” is not defined under the Probate Rules. However, rule 3.01(i) provides:
words and expressions defined in the Administration and Probate Act, 1919 and the Wills Act, 1936 shall have the same meanings as are assigned to them in those Acts;
In my view, the effect of the legislation is that no distinction is to be drawn between a will and codicil for the purpose of the issue of citations pursuant to rule 55 of the Probate Rules.
Discussion
The purpose of the issue of citations is to prevent the expense and inconvenience of the need for solemn form proceedings each time there is a dispute over the validity of purported testamentary dispositions subsequent to an original will. The procedure is particularly useful in proceedings such as the present, where there is a handwritten, unattested, photocopied codicil with undated deletions and no reference to the original will. It may well be that interested persons, knowing there to be obvious issues in respect to the inconsistencies in the 2002 will and the validity of the codicil, will not seek to propound those purported testamentary dispositions. The effect of the legislative provisions means that it is strictly unnecessary for me to consider the procedure at common law and the decisions in Benbow and Muirhead. The Registrar has the power to issue citations in respect of both the 2002 will and the codicil. Rule 55 of the Probate Rules applies to wills and codicils.