IN THE ESTATE OF COLIN WILLIAM BROWN - [2021] SASC 113

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF COLIN WILLIAM BROWN
[2021] SASC 113
Judgment of the Honourable Justice Stanley
23 September 2021
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - GENERALLY
The late Colin William Brown (the deceased) died on 29 December 2018 aged 82 years. The deceased was survived, inter alia, by his nephew, David Alan Brown the applicant. At issue on the application is the testamentary disposition of residential property at Glandore which is the substantial asset of the deceased’s estate. The last formal will made by the deceased which can be found is dated 16 July 2014. That document appoints the applicant as the executor of the deceased’s estate and the applicant’s wife Helen Therese Brown as the substitute. It makes a number of specific bequests including a gift of $50,000 to the applicant, or if he does not survive the deceased, to Mrs Brown, but leaves the residue of the estate, which is expressly stated to include the deceased’s property on Anzac Highway, Glandore, to the respondent Scouts SA. The Applicant claims the deceased made a later will gifting his Glandore property to him and revoked the will of 16 July 2014.
Issues
1.      Should the Court admit to probate a reconstruction of a lost will made by the deceased subsequent to 16 July 2014 evidenced by various statements made by the deceased to the applicant and Mrs Brown, the note of 12 April 2016 and the letter of 12 February 2018;
2. Whether the note of 12 April 2016 signed by the deceased should be admitted to probate as an informal will pursuant to s 12(2) of the Act;
3.      Whether the note of 12 April 2016 constitutes an instrument of revocation of the will of 16 July 2014 pursuant to s 22 of the Act, justifying the Court making a declaration that the deceased died intestate; or
4.      Whether the Court should admit to probate the will of 16 July 2014.
Held
1. The evidence undermines any suggestion that the deceased would not have left the Glandore property to Scouts SA. There is no evidence that any subsequent will was either duly executed in accordance with the requirements of s 8 of the Act, or alternatively, if not duly executed, that there is a document which meets the requirements of s 12(2) of the Act. Further, there is no evidence that any subsequent will revoked the will of 16 July 2014.
2. In relation to the existence of an informal will, the note of 12 April 2016 does not express the testamentary intentions of the deceased and therefore does not satisfy the requirements of s 12(2)(a) of the Act.
3. The note of 12 April 2016 does not express an intention to revoke the will of 16 July 2014. The note of 12 April 2016 rather records past events. It does not meet the requirements of s 12(3).
4.      The Application is dismissed.
5.      The will dated 16 July 2014 is admitted to probate.
Wills Act 1936 (SA) s 12(2), 12(3), 25AA, s 22(c), s 8, referred to.
Elton v Public Trustee [2014] SASC 149; In the Estate of Frank William Davis (Deceased) [2011] SASC 143; Gair v Bowers (1909) 9 CLR 510; Wesley v Wesley (1998) 71 SASR 1, applied.
Whyte v Pollok (1882) 7 App. Cas. 400; In the Estate of Frame (Deceased) [2007] SASC 164, considered.

IN THE ESTATE OF COLIN WILLIAM BROWN
[2021] SASC 113
Testamentary causes jurisdiction
Introduction

The late Colin William Brown (the deceased) died on 29 December 2018 aged 82 years. The deceased was survived, inter alia, by his nephew, David Alan Brown who is the applicant in this action.
At issue on the application is the testamentary disposition of residential property at Glandore which is the substantial asset of the deceased’s estate. First, the applicant seeks an order that there be admitted to probate as the last will of the deceased a will in the form of a reconstruction of a will alleged to have been made by the deceased after the making of a will on 16 July 2014 and subsequently “lost”. Second, in the alternative, the applicant seeks an order pursuant to s 12(2) of the Wills Act 1936 (SA) (the Act) that there be admitted to probate as the last will of the deceased a handwritten note prepared by the applicant and signed by the deceased on 12 April 2016. Third, in the further alternative, the applicant seeks an order pursuant to s 12(3) of the Act that the 16 July 2014 will was revoked informally by the note of 12 April 2016, as a consequence of which he seeks a declaration that the deceased died intestate.
The applicant also sought an order pursuant to s 25AA of the Act that the will of the deceased dated 16 July 2014 be rectified so that the deceased’s property at Glandore be gifted to him and the residue of the deceased’s estate be left to the Scout Association of Australia (South Australian Branch) (Scouts SA). That relief is no longer pressed.
The applicant claims that between 16 July 2014 and 12 April 2016 the deceased made a will which now is lost. That will left residential property at 176 Anzac Highway, Glandore, and its contents, to the applicant and the applicant’s wife, Helen Therese Brown (Mrs Brown). He seeks an order that he be granted probate of a reconstruction of the deceased’s will exhibited to his affidavit sworn 3 March 2020[1] as the last will and testament of the deceased, limited until the original will or a more authentic copy of it is brought into and left in the Probate Registry.
[1] Exhibit DAB 8.
The reconstructed will the applicant seeks to have admitted to probate is in the following terms:
THIS IS THE LAST WILL AND TESTAMENT of me COLIN WILLIAM BROWN of 176 Anzac Highway, Glandore, in the State of South Australia, Retired Manager.
1.   I REVOKE all previous wills and testamentary acts made by me.
2.   APPOINTMENT OF EXECUTORS
a)I APPOINT as my executor and trustee my nephew DAVID ALAN BROWN of 10 Parsons Road, Dernancourt, South Australia;
b)If my nephew DAVID ALAN BROWN dies before me, refuses or is unable or unwilling to act as my executor, then I APPOINT as my executor and trustee HELEN THERESE BROWN of 10 Parsons Road, Dernancourt, South Australia;
c)Gifts to persons named as my executors are not dependent upon those persons so acting as executors and trustee.
3.   GIFTS OF MONEY
a)I give the sum of ten-thousand dollars ($10,000) to the SALVATION ARMY (SOUTH AUSTRALIA) PROPERTY TRUST for its general purposes;
b)I give the sum of ten-thousand dollars ($10,000) to MEALS ON WHEELS SA INC for its general purposes;
c)I declare that the receipt of the chief executive, president, secretary, treasurer or other proper officer of any of the above named organisations shall be an absolute discharge to my executor who shall not be bound to see to the application thereof.
4.   SPECIFIC GIFTS
I give all of my right title and interest in the real property situate at and known as 176 Anzac Highway Glandore, South Australia (“the property”) together with all of my personal property and effects, my book and coin collections and all of my furniture and household contents located in the property to such of my said nephew DAVID ALAN BROWN and his said wife HELEN THERESE BROWN as survived me by thirty (30) days and if both then in equal shares between them absolutely.
5.   GIFT OF RESIDUARY ESTATE
I give my residuary estate after payment of my debts, funeral and testamentary expenses to SCOUTS AUSTRALIA SA BRANCH for its general purposes and I declare that the receipt of the chief executive, president, secretary, treasurer or other proper office shall be an absolute discharge to my executor who shall not be bound to see to the application thereof.
6.   INTERPRETATION
In this Will:
a)Unless the contrary is expressly provided, a reference to the singular will include the plural and vice versa;
b)While headings are used as a point of reference in this Will they will not be taken into account in the interpretation of its clauses;
c)The term “my executors” means my executors or trustees for the time being;
d)The term “child” shall include a natural or legally adopted child but shall not include a step-child or foster child and “children” “grandchild” and “grandchildren” shall have a corresponding meaning.
e)Where:
i)two or more persons have died;
ii)one or more persons have died and one or more deaths are presumed; or
iii)two or more deaths are presumed; and
iv)the order of deaths, whether proved or presumed, is uncertain this Will is to be construed as if the deaths, whether proved or presumed, had taken place in order from the oldest to the youngest.
f)Any gift which depends on a person surviving me by a specified period or event is contingent and does not vest in the person until he or she has survived the period or event;
g)If by reason of the inclusion of any word, description or provision in this Will, all or any part of this Will would be invalid, then this Will is to be construed as if the word, description or provision were not included in this Will.
7.   POWERS OF EXECUTORS
I EMPOWER my Trustees in their absolute discretion in addition to the powers that they may exercise at law:
a)During any period in which any beneficiary is contingently entitled under this will to apply the whole or any part of the income or of the prospective share (the capital) of that beneficiary for his or her maintenance education or benefit and advancement in life; and
b)Any money applied by my Trustee may be paid to the beneficiary or to the guardian or guardians of the beneficiary without my Trustee being bound to see to its application;
c)To retain, invest or change investments freely as if they were beneficially entitled and this power includes the right to invest in non-income-producing assets including property for occupation or use by a beneficiary;
d)To sell lease exchange or otherwise dispose of assets in my estate on such terms as they consider expedient as if they were the absolute beneficial owner;
e)To treat any income derived from assets held by my executors pending the satisfaction of a contingency, as arising at the time it is received by my executors and not apportioned to any other time or period;
f)To calculate net income in accordance with taxation, accounting or other definitions or concepts;
g)To separately record, identify, pay, allocate, apply or accumulate any income, right, credit, rebate or capital and to do so by the reference to any categories, source, class or other means of identification;
h)To appropriate any asset or share or interest in an asset of the estate not specifically given to a beneficiary in full or partial satisfaction of a legacy or share of my estate without needing to obtain the consent of any beneficiary;
i)To use income, capital or both income and capital to pay capital gains tax levied on the disposal of an asset, and apportion liability for that tax;
j)To delegate in writing the exercise of any powers or discretions and to execute any powers of attorney or other instruments necessary to effect the delegation;
k)To make declarations as to the beneficial ownership of particular trust assets, including but not confined to business goodwill and life, total and permanent disability, trauma and other insurance policies;
l)To sell call in and convert into money the whole or any part of my estate;
m)To pay all or any of the debts, taxes and funeral and testamentary expenses associated with my death, the administration of my estate, or in consequence of my death;
n)To exercise or refrain from exercising all or any of the powers, authorities or discretions of my executors notwithstanding that they may have a personal interest in my estate or any other real or possible conflict of interest;
o)To postpone the sale and conversion of any part of my estate, for so long as they think fit without being responsible for the loss and in this regard also to continue the carrying on of a business of which I am interested in at my death either alone or in partnership and to appoint or employ any person in the conduct of such business.
8.   FUNERAL DIRECTIONS
I wish for my funeral to be arranged at the discretion of my executor in accordance with any wishes made known by me during my lifetime.
IN WITNESS whereof I have hereunder set my hand this ………. day of ………20
The application seeks to determine the deceased’s testamentary intentions. Since the deceased’s death the last formal will made by him which can be found is dated 16 July 2014. That document appoints the applicant as the executor of the deceased’s estate and the applicant’s wife Helen Therese Brown as the substitute. It makes a number of specific bequests including a gift of $50,000 to the applicant, or if he does not survive the deceased, to Mrs Brown, but leaves the residue of the estate, which is expressly stated to include the deceased’s property on Anzac Highway, Glandore, to the respondent Scout Association of Australia (South Australian Branch). The bequest is expressed to be made to Scouts Australia SA Branch. There is no issue that this is a reference to the respondent. The will is in the following terms:
THIS IS THE LAST WILL AND TESTAMENT of me COLIN WILLIAM BROWN of 176 Anzac Highway Glandore in the State of South Australia 5037 (“the Glandore property”) Retired Manager.
1.   I REVOKE all former Wills and other testamentary dispositions made by me.
2.   I APPOINT my nephew DAVID ALAN BROWN as my sole executor and trustee PROVIDED ALWAYS that if he is not alive at the date of my death or if he is unable to act I APPOINT HELEN THERESE BROWN as my substituted executor and trustee.
3.
3.1     I GIVE the Salvation Army South Australian Property Trust the sum of Ten


Thousand Dollars ($10,000);
3.2I GIVE Meals on Wheels (SA) Incorporated the sum of Ten Thousand Dollars ($10,000);
3.3I GIVE DAVID ALAN BROWN the sum of Fifty Thousand Dollars ($50,000) and if he is not alive at the date of my death, I GIVE HELEN THERESE BROWN the sum of Fifty Thousand Dollars ($50,000);
3.4I GIVE all items of personal property, my personal effects, my book collection and coin collection, and furniture and contents at the Glandore Property to my nephew DAVID ALAN BROWN and his wife HELEN THERESE BROWN equally between them; and
3.5I GIVE the balance of my estate to my trustees on trust to pay my debts funeral and testamentary expenses and all duties and taxes (if any) payable in respect of my estate and including the land and buildings constituting my Glandore Property to Scouts SA.
4.   MY TRUSTEES have the following powers:-
4.1My trustees have all the general powers of investment of trust funds by virtue of the Trustee Act to invest trust funds in any form of investment, and at any time my trustees may vary an investment or realise an investment of trust funds and reinvest money resulting from the realisation in any form of investment.
4.2My trustees may apply the whole or any part of the income or the capital of the actual or contingent share of any beneficiary as my trustees think fit in or towards the maintenance, education, advancement or for the benefit of such beneficiary and may pay such income or capital to the guardian or guardians for the time being of any infant beneficiary.
4.3My trustees may appropriate any property forming part of my estate in or towards the share of any beneficiary with power to fix the values of such property so appropriated or set apart in such manner as my trustees think fit and every such appropriation will be binding on the beneficiaries and any other persons having an interest in such determination.
IN WITNESS whereof I have hereunto set my hand to this my Will and Testament this 16^th day of July 2014.
The applicant contends that this document does not properly reflect the deceased’s testamentary intention at the date of his death. In particular, the applicant contends that the deceased intended to leave the Glandore property and its contents to him. He says this is evidenced by two documents. The first is a note which was drafted by the applicant on 12 April 2016 and signed by the deceased, which referred to a change having been made to his will. A copy of this note is also exhibited to the same affidavit sworn 3 March 2020.[2] The note reads:
Recheck on Colin W
145pm 12/4/16 for birthday.
Re Will – David you are to get house &
all contents your the only
relation which stuck by me
so I Have changed it so you
get all my possessions.
[2] Exhibit DAB 3.
Signed by the applicant and the deceased 12/4/16 2:48pm.
The second is a letter dated 12 February 2018 from the deceased to the applicant. It reads:
Dear David,
I write to apologise for my anger and emotional reactions (and responses) when we last (on 21/1) spoke on the telephone.
Many things have happened in my life since mid-December – the death of two lifelong friends, the suffering of another friend due to cancer (which he is still enduring) and the death of a close neighbour and friend.
My life and lifestyle has taken a dramatic change since all this began.
Today I have another appointment with my solicitor and I write you to tell you that my will has not been changed or altered – you will still inherit my home and all contents on my death.
I hope that you can understand all that I have endured and we can both remain friends. Please ring me to confirm your understanding of all that has happened to me and our friendship will remain ongoing.
My best wishes to you all, I look forward to your response.
Yours truly, Uncle Colin.
The note of 12 April 2016 is the document the applicant seeks to have admitted to probate as a will of the deceased pursuant to s 12(2) of the Act or, in the alternative, he contends the note revokes any previous will made by the deceased.
For the reasons that follow I have concluded that the applicant is not entitled to any of the orders he seeks.
The applicant’s factual case
The applicant claims that he was always close to his uncle, the deceased, but in the last 10 years of the deceased’s life the applicant became closer to him. He assisted him more with ordinary every day tasks that the deceased found difficult.
Nonetheless, on 18 May 2004 the deceased made a will leaving his estate to a friend, Suzanne Sproesen. Shortly thereafter, there was a falling out between the deceased and Ms Sproesen. The deceased decided to make a new will. On 14 June 2014 the applicant and the deceased met at the deceased’s house at Glandore. The deceased told the applicant that he wanted to make a new will leaving some money to charity and the balance of the estate, including the Glandore property, to the applicant and Mrs Brown. Included in the charitable gifts was $10,000 to Scouts SA.
At about this time a friend of the deceased, Donald Bolton, arranged for the deceased to meet the Chief Executive of Scouts SA, Mr Stephen Hastwell (Mr Hastwell). This meeting occurred on 17 June 2014. The deceased told Mr Hastwell that he wished to leave a pecuniary legacy to the applicant but the residue of his estate, including the Glandore property, was to be left to Scouts SA. Following the meeting with Mr Hastwell the deceased met with an employee of Scouts SA, Ms Gabrielle Cespi (Ms Cespi). The deceased gave Ms Cespi similar instructions in relation to his will that were recorded by Mr Hastwell. Ms Cespi arranged for the deceased to instruct a solicitor, Mr Robert Richards (Mr Richards), for the purposes of making a new will. The deceased saw Mr Richards who drafted a new will, executed by the deceased on 16 July 2014, as well as an enduring power of attorney and an advanced care directive appointing the applicant and Mrs Brown to positions of attorney and the holder of the directive. I have set out the terms of the will of 16 July 2014 earlier.

At that time the Glandore property was subject to a reverse mortgage. There was a concern that the reverse mortgage would require the sale of the Glandore property so that the deceased came to believe at this time that he was not going to be able to retain the corpus of the Glandore property without its sale.
On 22 July 2014 the applicant and Mrs Brown attended at Mr Richards’ office. As events transpired they read the deceased’s will of 16 July 2014. This provoked a discussion between the applicant and Mr Richards whereby the former asserted that the terms of the will made by Mr Richards did not accurately reflect the deceased’s testamentary intentions. Mr Richards suggested that the applicant should take this up with the deceased. He did so the following day. The applicant told the deceased that he needed to change his will. The deceased rejected this advice saying words to the effect, “Do you think you know more than a lawyer”?
The applicant was not prepared to accept the position which resulted in a further conversation with Mr Richards on 5 August 2014. That failed to resolve the situation. Events drifted unhappily, with the applicant declining to broach the topic of the will again, until 12 April 2016. On that occasion the deceased and the applicant had a conversation where the deceased said he had changed his will so the Glandore property and its contents were left to the applicant. The applicant, concerned that there was the earlier will of 16 July 2014, made a note of the discussion and asked the deceased to sign it. He duly did so, as did the applicant. I have set out the contents of that document earlier.
Thereafter there were a number of conversations between the applicant and the deceased, and the deceased and the applicant’s wife, in which the deceased reiterated that he had changed his will so that it left the Glandore property and its contents to the applicant.
The applicant and Mrs Brown continued to provide care and assistance to the deceased until there was an argument in January 2018 between the applicant and the deceased in relation to the terms of the will. At the deceased’s request the applicant drove him to Mr Richards’ office and deposited him at the front door. The applicant cannot say what the deceased did but it is accepted there is no record on Mr Richards’ file of the deceased attending on that day or providing any instructions in relation to his will. But on 12 February 2018 the deceased wrote a letter to the applicant. I have set out the terms of that letter earlier.
Later in 2018 the deceased became unwell and eventually was admitted to the Royal Adelaide Hospital. On 17 December 2018 while the deceased was in hospital, the applicant attended upon Mr Richards’ office and obtained a copy of the 16 July 2014 will, the enduring power of attorney and the enduring power of guardianship. The applicant was informed that there were no other wills or instruments relating to the deceased held by the firm.
On 29 December 2018 the deceased died. The applicant retained solicitors and commenced the process of trying to find the most recent will which had been referred to repeatedly by the deceased. The applicant was unaware of any other law firm having been retained by the deceased. An advertisement was placed in the Law Society of South Australia’s newsletter requesting any firm come forward with the lost will. This resulted in Treloar & Treloar identifying that they held a will of the deceased made on 18 May 2014.
Relevant legal principles
Lost Wills
In Elton v Public Trustee[3] I discussed the principles applicable to the admission of a copy of a lost will to probate in the following terms:[4]
[3] [2014] SASC 149.
[4] [2014] SASC 149 at [10], [37]-[45].
In Re Estate of Hall (Deceased) Gray J summarised the principles applicable to the admission of a copy of a missing will to probate as follows:
·       “that the original will existed;
·       that the original will was duly executed; or, if the original will does not fulfil the formalities required by legislation, that it satisfies the legislative requirements allowing it, as an informal will, to be admitted to probate;
·       that there is evidence of the terms of the original will;
·       that the copy will is an accurate and complete copy of the original will;
·       that thorough searches have been conducted to find the original will, including publishing advertisements regarding the missing original will;
·       that the original will revoked all pre-existing wills;
·       the circumstances surrounding the absence of the original will;
·       that all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris; and
·       that the presumption of revocation does not arise or has been rebutted.”
…
… It is clear that in certain circumstances a Court will recognise a lost will and admit it to probate. … The relevant principles concerning granting probate of a lost will, modified to reflect the changes to the law effected by the equivalent of s 12 of the Wills Act 1936 (SA), were enunciated in Cahill v Rhodes by Campbell J as follows:
“First, it must be established that there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous Wills, third, the presumption that when a Will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her Will.”
While the burden of proof remains the usual civil standard of balance of probabilities, the authorities emphasise the need for clear and convincing evidence of the existence of a lost will.
In The Estate of Ralston Hodgson J said:
“ … there should be clear and convincing proof similar to that appropriate to other classes of case where the Court is asked to give effect to parol arrangements in circumstances where the law requires, or the parties have chosen, that a particular matter be recorded in some formal way, or where the Court is asked to make a finding concerning a legal transaction by a deceased person.
However, this does not mean that what is required is other than proof on a balance of probabilities. In a case such as this, I believe that what is required is that the party bearing the onus of proof must be sufficiently diligent in calling available evidence, because the Court will not be prepared to act on material which it considers inadequate … ”
(Citations omitted)
Hodgson J cited as authority for this proposition the High Court's judgment in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd which is an application of the Briginshaw test. In applying the balance of probabilities standard in considering applications to admit a lost will to probate the Court must be vigilant, being fully cognisant of the dangers of error and fraud and the gravity of the consequences flowing from any finding made. In my view, these considerations apply with particular force where the evidence the Court is asked to act upon is purely oral.
I do not regard anything said subsequently in Gruzdeff v Lough by Hodgson J as detracting from this proposition. While parol evidence may be adduced to prove the contents of a lost will the Court must take particular care in considering whether such evidence leaves it reasonably satisfied “not just as to the existence of the will but as to its contents”.
If the Court is satisfied that the document sought to be propounded as the lost will of the deceased existed, the next issue the Court must consider is whether the document itself, or so much of the document as may be proved, was intended by the deceased to constitute his will. The Court must be satisfied that the document sought to be admitted to probate, or at least so much of the contents of the document as the Court is satisfied has been proved, purports to embody the deceased's testamentary intentions. That means the deceased intended the document, without more on his part, to take effect as a testamentary disposition of his property upon his death. This is to be decided by reference to the document itself, the circumstances regarding its contents (including such marks or handwriting as may appear on it) and any other relevant circumstances. While each case must depend upon its own facts, the greater the departure from compliance with the formal requirements for the making of a will, the more difficult will it be for the Court to be satisfied that the deceased intended the reconstructed document to be his will.
Next the Court must be satisfied of two related matters: the terms of the testamentary instrument and whether the terms included a provision revoking all previous wills.
If the Court is satisfied of these matters it must then turn to consider the presumption of revocation. This involves two issues: does the presumption arise and, if so, is it rebutted. The presumption was described in Welch v Phillips in the following terms:
“ … If a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. … ”
In The Estate of Gibbs Gray J made the following observations regarding the rebuttal of the presumption.
“The presumption of revocation is a presumption of fact which may be rebutted by appropriate evidence. It is the applicant who carries the onus of rebutting the presumption. Further, when determining if the presumption has been rebutted, the court is ‘to consider the whole of the facts together, and draw what inference should be drawn from the totality of the evidence.
[Citations omitted].
Informal wills
Section 12(2) of the Act provides:
(2)     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.
The legislative purpose of s 12(2) is explained in In the Estate of Frank William Davis (Deceased)[5] where Gray J said:[6]
Before addressing the issues in any detail, it is appropriate to consider the relevant provisions of the Wills Act.
Section 12 of the Wills Act deals with the validity of wills and provides that a will is valid if executed in accordance with the Act. The formal requirements are contained in section 8: the document must be signed by the testator or by some other person in the testator's presence and by the testator's direction; it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; the witnesses must attest and sign the will; and, 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.
[5] [2011] SASC 143, (2011) 7 ASTLR 572.
[6] [2011] SASC 143 at [21]-[22], (2011) 7 ASTLR 572 at 576-577.
Revocation
Section 12(3) of the Act provides:
If the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses an intention by a deceased person to revoke a document that might otherwise have been admitted to probate as a will of the deceased person, that document is not to be admitted to probate as a will of the deceased person.
In Gair v Bowers[7] Isaacs J (as he then was) said:[8]
The requirements of the law as to proof of revocation have been stated by Lord Macnaghten speaking for the Privy Council in these terms:- “It is well settled that a will duly executed is not to be treated as revoked, either wholly or partially, by a will which is not forthcoming, unless it is proved by clear and satisfactory evidence that the later will contained either words of revocation, or dispositions so inconsistent with the dispositions of the earlier will that the two cannot stand together. It is not enough to shew that the will which is not forthcoming differed from the earlier will, if it cannot be shewn in what the difference consisted. It is also settled that the burden of proof lies on the person who challenges the will that is in existence. These propositions have been established in this country both in this tribunal and in the House of Lords: Cutto v Gilbert; Hitchins v Bassett; Goodright v Harwood; and as they are founded on reason and good sense they must be regarded as of general application”: Nawab Sahib Mirza v Mussammat Unda Khaanam.
[7] (1909) 9 CLR 510.
[8] (1909) 9 CLR 510 at 529-530.
The common law position is enshrined in s 22(c) of the Act which provides:
Subject to section 12(3), no will or codicil or any part of a will or codicil is revoked otherwise than—
…
(c) by some writing declaring an intention to revoke the will or codicil or the part of the will or codicil and executed in the manner in which a will is required by this Act to be executed; or
…
The witnesses
The applicant gave evidence as did his wife. I formed a generally unfavourable impression of the applicant. I thought some of his evidence was tailored to support his claim to the benefit of the Glandore property and its contents. I consider he felt he had an entitlement to this property and his evidence was filtered through the prism of his sense of entitlement. I also consider he felt Scouts SA was undeserving of the bequest of the Glandore property. The applicant has a forceful, bellicose personality. Driven by his sense of entitlement, I find that he attempted at various times to persuade the deceased to make a will which left him the house and its contents. I find that this effort to persuade the deceased to make a will in those terms involved the applicant attempting to manipulate the deceased by denying him his company and support when the deceased failed to provide the applicant with the assurances he sought in relation to the disposition of the deceased’s estate. In turn, I am satisfied that this caused the deceased to mislead the applicant and Mrs Brown as to his true intentions.
Mrs Brown’s evidence was limited in its scope. I find that she endeavoured as best she could to support her husband’s evidence. Yet some of her evidence contradicted his evidence. I am not prepared to accept her account, in its entirety, of reading the will in Mr Richards’ office on 22 July 2014. On the other hand, I do not reject her evidence concerning subsequent conversations she had with the deceased concerning the contents of the will. I am satisfied that the deceased was prepared to mislead Mrs Brown as well as the applicant.
The respondent called evidence from Donald Andrew Bolton (Mr Bolton), Mr Richards, Mr Hastwell and Ms Cespi. Mr Bolton, Mr Richards and Mr Hastwell were cross-examined on their affidavits. There was no challenge to the evidence of Ms Cespi contained in her affidavit sworn on 10 December 2020. I accept the evidence of each of the respondent’s witnesses. Mr Bolton, Mr Hastwell and Ms Cespi were all associated in one way or another with Scouts SA. Even though Scouts SA stands to benefit financially from the deceased’s estate if the 16 July 2014 will is not revoked, I do not consider there is any basis to think that their evidence has been influenced or tainted by financial considerations. They did not stand to benefit personally from that will. There is no reason to think they gave anything other than honest and reliable accounts of the relevant events traversed in their evidence.
I also accept the evidence of the solicitor, Mr Richards. He was a careful witness. Unsurprisingly, his recollection of these events was limited and he needed to refer to the contents of his file to refresh his memory and to rely on his established practise. Notwithstanding these handicaps he did his best to recount accurately events as he recalled them. He did not embellish or reconstruct. Where his evidence differs from the evidence of the applicant and Mrs Brown, I prefer Mr Richards’ evidence.
The evidence and findings of fact
The applicant’s evidence is that he was always close to his uncle who had never married or had children. In the last 10 years of the deceased’s life, however, this bond became closer and the deceased came to depend more on the kindness and assistance of the applicant.
Despite this, on 18 May 2014 the deceased made a will leaving his estate to Suzanne Sproesen (Ms Sproesen). The Court heard evidence of the making of this will, but the will itself was not in evidence. There was some evidence that shortly after the making of this will the deceased became disenchanted with Ms Sproesen. That is consistent with the deceased making another will on 16 July 2014.
It is against that background that the applicant gave evidence that the deceased and he met on 14 June 2014 at the deceased’s house at Glandore. Mrs Brown also was present. The applicant’s evidence is that the deceased told him he wanted to make a new will leaving some money to various charities and the balance of the estate, including his house, to the applicant. The deceased referred to making a $10,000 gift to Scouts SA with the residue of his estate being left to the applicant and Mrs Brown. To the applicant this was significant as the Glandore house held some sentimental attachment for him. The applicant’s evidence is corroborated by his wife. Subject to one matter I accept their evidence concerning what the deceased said to them on this occasion. I attach some importance to the applicant’s evidence concerning the significance to him of the house. I am prepared to infer that the applicant informed the deceased of his hope that he would inherit the property. I find that this was a significant factor in explaining the deceased’s conduct. I will return to this topic later.
That one matter concerns the applicant’s evidence that on 14 June 2014 the deceased told him that he had called Treloar & Treloar about making another will, that solicitors had attended at his house and advised that their fees for making another will were $550.00 and the deceased responded by telling them to “piss off” and kicked them out of his house as he did not have $550.00 to spend on a will.[9] I consider this evidence to be highly implausible. The deceased had retained Treloar & Treloar to make a new will. That will was executed by the deceased on 18 May 2014. Presumably he was charged by the firm for that work. It is unlikely that some time between 18 May 2014 and 14 June 2014 he would have reacted in the manner described given that he must have understood that the firm would charge a fee to make a further will. I find that this incident of the deceased ejecting from his house solicitors from Treloar & Treloar did not occur. I am not satisfied that the deceased told the applicant that it did.
[9] T48-49, 50.35-57, 54.29-33.
The applicant said he offered to take the deceased to a solicitor to make a new will and pay the fee himself for doing so. The deceased did not accept this offer. I find that was because he was concerned the applicant did not discover the terms of the will he intended to make.
Mr Bolton was a friend of the deceased. Although they shared a background in the Scouts, they did not form a friendship until they were adults, some 20 to 25 years ago. They would catch up periodically for a drink at hotels or at the deceased’s home. Mr Bolton has a lifetime involvement in the Scouts and is now an Honorary Commissioner of Scouts SA. By the time he first came to know the deceased, the deceased had not been involved in the Scouts for many decades. From time to time, however, they would discuss the Scouts along with other aspects of their lives.

Relevantly, Mr Bolton gave evidence that occasionally the deceased would refer to the applicant in uncomplimentary terms. He had no memory of the deceased saying anything positive about the applicant. Mr Bolton reported a complaint by the deceased that the applicant did not telephone him at Christmas or on his birthday. The deceased also complained that upon the death of his brother, the applicant’s father, the applicant made contact with the deceased to ask him to pay for the funeral.
Mr Bolton recounted a conversation with the deceased, which he said occurred between 2014 and 2016, where the deceased mentioned wanting to change his will. Mr Bolton suggested the deceased speak to the Chief Executive Officer of Scouts SA, Mr Hastwell. Mr Bolton arranged a meeting between the deceased and Mr Hastwell. They met on 17 June 2014.
Mr Hastwell gave evidence that when they met, the deceased gave him handwritten documents that expressed an intention that the deceased wished to leave a pecuniary legacy to the applicant and the residue of his estate, including the Glandore property, to the Scouts. I accept the evidence of Mr Hastwell. I do so notwithstanding that the deceased’s express testamentary intentions as relayed to Mr Hastwell were inconsistent with the account given by the applicant of the terms of his conversation with the deceased three days earlier. I will return to this topic later.
On 26 June 2014 the deceased, without alerting the applicant, met with Ms Cespi of Scouts SA. Part of her role in the Scouts was to assist persons to make bequests in favour of the Scout movement. She met the deceased and took similar instructions from those that were discussed with Mr Hastwell. Ms Cespi arranged for the deceased to confer with a solicitor, Mr Richards, for the purposes of preparing a will. Scouts SA paid Mr Richards’ fee for making the will.
I find the deceased did not disclose to the applicant his dealings with Mr Bolton, Mr Hastwell and Ms Cespi.
Mr Richards gave evidence of taking instructions for the making of the will. Initial instructions were taken on 8 July 2014. Those instructions were for specific bequests to the Salvation Army of $5,000, to Meals on Wheels of $5,000 and to the applicant and Mrs Brown of $20,000 and his personal effects. The residue was left to Scouts SA. Mr Richards prepared a will accordingly. On 14 July 2014 the deceased telephoned Mr Richards and amended his instructions to increase the specific bequests to the Salvation Army and Meals on Wheels to $10,000 each and to the applicant and Mrs Brown to $50,000. In addition, Mr Richards took instructions for the making of an enduring power of attorney and an advanced care directive both of which appointed the applicant and Mrs Brown to the positions of attorney and holder of the directive. On 16 July 2014 the deceased executed his will as prepared by Mr Richards in accordance with the deceased’s instructions. Obviously, the terms of the will are inconsistent with the evidence of the applicant and Mrs Brown of the conversation with the deceased on 14 June 2014.
This evidence raises three possibilities. First, the applicant’s evidence concerning the conversation on 14 June 2014 is wrong. Second, the deceased changed his testamentary intentions between 14 June and 17 June 2014. Third, the deceased provided a knowingly false account of his testamentary intentions to the applicant in an attempt to mislead him. I find that the third possibility is more likely. I reach this conclusion on the basis that I reject the other two possibilities as unlikely. As to the first possibility, as I have already found, I generally accept the evidence of the applicant and Mrs Brown concerning their conversation with the deceased on 14 June 2014. This is supported by the evidence of the applicant and his wife of their conference at Mr Richards’ office on 22 July 2014. Having read the will of 16 July 2014 the applicant’s immediate reaction was that the will did not accurately reflect the deceased’s testamentary intentions as conveyed to him by the deceased on 14 June 2014.[10] The applicant could not have known the contents of the will of 16 July 2014 beforehand. If the applicant’s account of the conversation with the deceased on 14 June 2014 was false, he had to concoct that account in a matter of minutes before speaking to Mr Richards. I find this unlikely. As to the second possibility, I consider it unlikely that the deceased would have changed his testamentary intentions within a period of three days. Further, on 17 June 2014 the deceased told Mr Hastwell that he recently met the applicant and offered him some of the contents of the Glandore property but not the property itself.[11] That account of the conversation cannot be reconciled with the deceased changing his mind over the intervening period of three days leading to 17 June 2014. While it leaves open the possibility that the applicant and Mrs Brown are not telling the truth on this topic I reject that hypothesis given the applicant’s spontaneous reaction to reading the will at Mr Richards office on 22 July 2014.
[10] Mr Richards has a limited recollection of this meeting. It does not extend beyond a recollection of it as a difficult meeting.
[11] Exhibit R6 SJH-01.
I am satisfied that the deceased chose to conceal from the applicant and Mrs Brown his true testamentary intentions. This is a not uncommon feature of human conduct well recognised in the authorities. In Wesley v Wesley[12] Debelle J said:[13]
Evidence might also be led from persons other than the testator’s solicitor to whom the testator had spoken either before or after the execution of his will. Care must be taken with such evidence. The evidence may be tainted by self-interest or by a desire to enable a particular person to benefit. Alternatively, a testator who has expressed an intention to benefit a person not named in the will might have been intending to appease a member of his family. It is not uncommon in human experience for a testator to give divergent accounts of his will to different persons either to maintain harmony or to curry favour with family or friends. Each case will have to be determined on its own facts and each will suggest the kind of caution which should be exercised.
[12] (1998) 71 SASR 1.
[13] (1998) 71 SASR 1 at 5.
I have referred earlier in these reasons to the terms of the will executed by the deceased on 16 July 2014. Importantly, it left the balance of his estate, which included the Glandore property, to Scouts SA. The deceased’s chattels and personal items at the Glandore property were left to the applicant and Mrs Brown equally. I find that the terms of the will executed by the deceased on 16 July 2014 reflected the instructions the applicant ultimately gave Mr Richards.
At that time the Glandore property was subject to a reverse mortgage.
I find that the deceased, in making this will, expected it would require the sale of the Glandore property in order to discharge the reverse mortgage. That is consistent with the contents of the will file of Mr Richards and, in particular, the terms of a letter dated 5 August 2014 written by Mr Richards to the deceased.
In any event, on 22 July 2014 the applicant and Mrs Brown attended at Mr Richards’ office for the purpose of executing the power of attorney and advanced care directives. They met Mr Richards in the conference room. Mr Richards invited them to peruse the documents and left the room to allow this to occur. I find that inadvertently the deceased’s will was also left on the conference room table. In his second affidavit the applicant said that he and his wife observed the contents of the will when meeting with Mr Richards.[14] Their evidence in this regard is unsatisfactory. However, I find that the applicant and Mrs Brown read enough of the will to ascertain that the deceased had not left the Glandore property to the applicant.
[14] Exhibit A2 paragraph [18].
It appears this provoked some discussion between the applicant and Mr Richards.
The evidence of these events is confusing. The applicant said that when he was in Mr Richards’ office he read only that part of the will which gave legacies to the Salvation Army and Meals on Wheels but did not read the clause which provided him with a legacy of $50,000 because Mr Richards returned to the room.[15] He said his wife read more of the will. But her evidence was to the contrary. She said the applicant was more inclined than her to reading the will in the office.[16] She said she read the clause that provided for the gift or residue to Scouts SA.[17] She said that she noticed that the applicant was a beneficiary but did not take much notice that he was to receive a legacy of $50,000.[18] But the applicant’s evidence was that by the time they were in the car after leaving Mr Richards’ office his wife had read enough of the will to know that he received a legacy of $50,000.[19] He said he only learned about the $50,000 legacy when his wife was speaking to the deceased on the phone in the car.[20] But shortly thereafter he gave evidence that his wife told him that he was to receive $50,000 under the will while they were at Mr Richards’ office.[21] Yet within a short space of time the applicant contradicted himself again saying he did not know of the $50,000 legacy when he was in the car after leaving Mr Richards’ office.[22] He gave an account of not knowing of the $50,000 legacy until 17 December 2018 when he collected the original will from Mr Richards’ office. This left him “flabbergasted”.[23]
[15] T 34.17-33.
[16] T 110.3-4.
[17] T 106.21-24 and 30-32.
[18] T 106.28-29 and 33-35.
[19] T 39.1-5.
[20] T 35.2-6.
[21] T 38.5-9.
[22] T 39.9-10.
[23] T 29.2-26.
The applicant said that after leaving Mr Richards’ office he and Mrs Brown went to a restaurant. After leaving the restaurant she called the deceased from their car.[24] Later the applicant gave evidence that they called the deceased when they were at Assagio’s at Newton.[25] But Mrs Brown’s evidence was that the applicant called the deceased from their car on the way home from Mr Richards’ office.[26] She said she played little role in the telephone call because she “can’t get a word in edgewise” when the applicant is speaking.[27] Yet the applicant’s evidence was that it was his wife who spoke to the deceased.[28] He said that she was the one talking to the deceased on the phone because she knew the “legal side” of the will and he did not.[29]
[24] T 29.32.
[25] T 98.19-27.
[26] T 107.26-29.
[27] T 107.33-35.
[28] T 39.18.
[29] T 98.30-31.
In his affidavit, the applicant gave evidence that the next day he had a further phone call with the deceased. He said that when he spoke to the deceased he complained that the terms of the will did not reflect the representations the deceased had made to the applicant concerning his testamentary intention with respect to the Glandore property. Obviously, by this time the applicant must have been aware of the term of the will that left the property to Scouts SA. The applicant gave evidence that the deceased responded that Mr Richards had advised him that it was more appropriate that he leave a specific bequest in favour of the applicant because after discharge of the mortgage and payment of the costs of the administration and other specific legacies and commission, the remaining balance would be minimal. I am unable to make a finding as to whether this precisely reflects what the deceased said to the applicant but I accept the evidence of Mr Richards that he did not give advice in those terms to the deceased as it would not have reflected the actual position. Mr Richards understood that after the sale of the home and payment of the other bequests, costs of administration and discharge of the reverse mortgage, the residue would not have been minimal.
Some argument occurred between the applicant and the deceased. The applicant told the deceased that he was being badly advised by Mr Richards and that the will needed to be changed to give effect to his wishes. The deceased rejected this asking, presumably rhetorically:
Do you think you know more than a lawyer?
I do not accept the evidence of the applicant and Mrs Brown concerning them reading the will. Both were at pains to downplay the extent to which they read the will. I do not accept their claims that they merely glanced at it. It is implausible given what they read was, they say, contrary to their expectations and, as they understood it, prejudicial to their interests. Further, they did not receive a copy of the 22 July 2014 will until shortly before the deceased’s death in December 2018. Yet Mrs Brown gave evidence that on various occasions after 22 July 2014 she discussed the terminology of the will, which she considered very badly written, with the deceased, explaining to him a few of the provisions in the document.[30] It is hard to understand how she could have done so if she had merely glanced at the document in Mr Richards’ office.
[30] T 108.21-34.
Notwithstanding the confused state of the evidence, I find that the applicant and Mrs Brown read enough of the will in Mr Richards’ office to understand that the terms of the will did not reflect their expectations of what they were to receive from the deceased’s estate. The applicant complained to Mr Richards that the will was wrong. Mr Richards suggested the applicant should take this up with the deceased. The applicant did so.
There was a further conversation between the applicant and Mr Richards on 5 August 2014. There is a conflict in the evidence as to the terms of that conversation. I prefer the evidence set out in the letter of that date sent by Mr Richards to the deceased.[31] Mr Richards wrote:
David Brown rang me, in a somewhat agitated state on 5 August. 2014. He said that he had your authority to ring me.
He said that an amendment had to be made to the Will because the Will gave the home to the charity, and he interpreted that to mean that there could be no funds available to pay the specific bequests set out earlier in the Will. One of those bequests concerns his $50,000 payment!
I said that I saw no difficulties with the Will and that there was no need to make any change.
I invited him to put it in writing.
The position is that a trustee of a trust has got powers to sell assets in order to satisfy the terms of a Will. The power to sell and deal with assets is set out in your Will. But there is a broad range of powers available to trustees under the Trustee Act and under the general law. There is no doubt that David as your trustee has the power to sell the asset in order to satisfy the specific bequests. And that would mean that the residue is comprised of cash, payable to Scouts SA.
I think that David might have been preoccupied with the words “and including the land and buildings” referred to in clause 3.5. I inserted those words at your suggestion, and to make it clear that you recognised that the home fell into the residue. But the overriding circumstances are such that the specific bequest cannot be made without selling the home and accordingly what has been said above applies i.e. the home must be sold to satisfy the bequests.
[31] Page 39, Exhibit RLR2 to the affidavit of Robert Lewis Richards deposed 10 December 2020.
I find that there was a discussion between the applicant and Mr Richards concerning the $50,000 bequest made to the applicant who queried how this could occur if the house was left to Scouts SA. The terms of the discussion, as reflected in the text of the letter from Mr Richards, is inconsistent with the evidence of the applicant and Mrs Brown of what the deceased told him of his testamentary intentions on 14 June 2014. As I say, I prefer the objective evidence of the contemporaneous document. By the time of the telephone discussion with Mr Richards the applicant’s concern was that if the house was left to Scouts SA there would not be sufficient assets left in the estate to pay the pecuniary legacy of $50,000 left to the applicant. He did not complain to Mr Richards that the house should have been left to him. It is clear in any event that no attempt was made to amend the will or add a codicil.
Contrary to the terms of the applicant’s affidavit[32] after 5 August 2014 the applicant did broach the subject of the deceased’s will with him urging him to change it.[33]
[32] Affidavit of David Alan Brown sworn 27 October 2020 paragraph 28.
[33] T 60.22-26.
It appears nothing further of significance occurred until 12 April 2016. The applicant gave evidence that he had a conversation with the deceased who told him that he had changed his will so that the Glandore property and its contents were left to the applicant. The applicant, concerned that previous representations made to him by the deceased were not accurately reflected in the terms of the 16 July 2014 will, made a note of the conversation which was signed by the deceased. This is the note of 12 April 2016 referred to earlier in these reasons.
Both the applicant and Mrs Brown gave evidence that subsequently there were a number of conversations with the deceased in which he reiterated that the Glandore property would be left solely to the applicant. Nonetheless, the deceased made a diary note on 29 June 2017 by which he recorded: “New Will”. The evidentiary significance of this entry is obscure. There is no evidence of the deceased making a new will at this time.
Whatever the significance of this diary entry, the applicant gave evidence that he and his wife provided care and assistance to the deceased until some time in January 2018 when there was an argument between the applicant and the deceased in relation to the terms of the deceased’s will. I am satisfied that this argument occurred on 21 January 2018.[34] The applicant says that following this, he drove the deceased to Mr Richards’ office. He left him there. He does not know what happened in the office. Curiously there is no record on Mr Richards’ file of the deceased attending on 21 January 2018[35] or providing any instructions in relation to the matter. I am satisfied the deceased did not see Mr Richards on this occasion. However, on 12 February 2018 the deceased wrote a letter to the applicant. I have set out the contents of that letter earlier in these reasons. The terms of this letter are confusing. The letter refers to the deceased having another appointment with his solicitor although he writes as if that has already occurred. Yet again there is no record on Mr Richards’ file of any attendance by the deceased on that date. I find the explanation is that the deceased did not see Mr Richards or any member of his firm to seek advice or provide instructions on that date. The letter further suggests that there is an existing will which leaves the Glandore property and its contents to the applicant. Yet there is no evidence of a formal will made by the deceased that leaves his house and its contents to the applicant. A possible explanation is that the deceased is referring in this letter to the document of 12 April 2016 which the applicant seeks to have admitted to probate as an informal will. I do not consider that to be an acceptable explanation. That document refers to the deceased having changed his will to leave the Glandore house and its contents to the applicant. It is expressed in the past tense. I appreciate that the note was made by the applicant but it was adopted by the deceased. I find that the applicant intended that it evidenced what he was led by the deceased to believe was the existing state of affairs. The applicant gave evidence that he did this because on that date the deceased told him he had changed his will so the applicant would receive the Glandore property and its contents. The applicant said he made the note because of the issues surrounding the 16 July 2014 will.[36]
[34] This is evidenced by the terms of the letter from the deceased to the applicant of 12 February 2018 and an entry in Exhibit DAB 16 which evidences a telephone call on 21 January 2018.
[35] Or any other day proximate to 21 January 2018.
[36] Affidavit of David Alan Brown deposed 27 October 2020, paragraph 29.

The deceased was familiar with making wills. He had made two within a short period of time in 2014. I am satisfied he appreciated the formalities of making a will. I do not consider that he would have understood that by signing the document of 12 April 2016 he was purporting to make a new will, albeit an informal will. I find that in referring in the letter of 12 February 2018 to his will the deceased understood and intended that reference to mean a will made with the formalities required by the Act. In writing this letter the deceased intended to mislead the applicant into believing that the effect of his last will was to bequeath the Glandore property and its contents to the applicant. By the time the deceased wrote this letter he was a sick and lonely old man. He was to some extent dependent upon the applicant for care and company. In those circumstances I find he wanted to avoid alienating the applicant. For reasons I will explain later I am satisfied that the applicant from time to time had threatened in effect to abandon the deceased if he did not make a will in terms acceptable to the applicant.[37] I find that this provided the deceased with a motive to deceive the applicant into believing that he had made a will that left the Glandore property and its contents to the applicant. Accordingly, I find that when writing the letter of 12 February 2018 the deceased did not intend to make a testamentary disposition of his house and its contents in favour of the applicant. Further, I am satisfied that had been the position since 14 June 2014.
[37] In the Estate of Brown [2021] SASC 113 at [67]-[76].
During the course of 2018 the deceased’s health deteriorated culminating in his admission to the Royal Adelaide Hospital in December 2018. On 17 December 2018, while the deceased was in hospital, the applicant attended Mr Richards’ office and obtained a copy of the 2014 will, the enduring power of attorney and the advanced care directives. I find that the applicant was told that Mr Richards’ office held no other will made by the deceased. I find that advice accurately reflected the true position.
The deceased died on 29 December 2018. The applicant retained solicitors for the purpose of undertaking an investigation into the existence of a will made by the deceased subsequent to 16 July 2014. None has been found.
The issues
Against this factual background, the issues which fall for determination in these proceedings are:
1.Should the Court admit to probate a reconstruction of a lost will made by the deceased subsequent to 16 July 2014 evidenced by various statements made by the deceased to the applicant and Mrs Brown, the note of 12 April 2016 and the letter of 12 February 2018;
2.Whether the note of 12 April 2016 signed by the deceased should be admitted to probate as an informal will pursuant to s 12(2) of the Act;
3.Whether the note of 12 April 2016 constitutes an instrument of revocation of the will of 16 July 2014 pursuant to s 22 of the Act, justifying the Court making a declaration that the deceased died intestate; or
4.Whether the Court should admit to probate the will of 16 July 2014.
Lost wills
The application seeks an order admitting to probate a reconstruction of a will the applicant contends was made by the deceased after August 2014 but subsequently lost.
In my view the applicant has failed to discharge the onus of proof he bears seeking the admission of a copy of a lost will to probate. The application fails fundamentally. The applicant has not proved the existence of a lost will in the terms he propounds leaving the Glandore property and its contents to him and his wife. The evidence does not dispel the probability that from June 2014 the deceased never intended to leave the Glandore property to the applicant and Mrs Brown. Rather, it was his intention when he executed the will of 16 July 2014 to leave the Glandore property to Scouts SA and to make a specific bequest of $50,000 to the applicant, and that remained his intention until his death. Notwithstanding what I find to have been his true testamentary intention, I am satisfied that the deceased, from time to time from April 2016, represented to the applicant and Mrs Brown that his will left the Glandore property and its contents to him. Those representations include the note dated 12 April 2016 signed by the deceased and his letter to the applicant of 12 February 2018. These representations were false. I find they were made knowingly by the deceased for the purpose of placating the applicant. They were motivated by a concern that if the applicant was not satisfactorily reassured by the deceased that he would be left the Glandore property, the applicant would withdraw his friendship and support from the deceased. I am satisfied the applicant conducted himself in a manner which made real the deceased’s anxieties about the applicant’s future conduct.
That finding is supported by three aspects of the applicant’s evidence. First, that beginning on 12 April 2016 the deceased told him that he made a will leaving the Glandore property and all of its contents to him and that the deceased assured him of this when the applicant discussed with him arrangements for his care. The applicant said that the deceased told him this in a tone which indicated worry that he would not look after the deceased if he did not assure the applicant that this was what his will provided.[38] Second, that evidence is reinforced by the applicant’s evidence of saying to the deceased on 12 April 2016:
If you don’t want me, I’ll walk away now and that is the end of our relationship.[39]
[38] Affidavit of applicant sworn 3 March 2020 paragraph 8.
[39] T 62 - 26.28.
Third, the letter from the deceased to the applicant of 12 February 2018 refers to an emotional and angry conversation on the telephone on 21 January 2018 which the deceased was concerned might have ruptured their friendship. In cross‑examination the applicant explained what was said in the following terms:[40]
Well I most probably had a gutful and just told him “Right, I’ve been here through the beginning and to the end. If you don’t want me, forget it. That’s the end of it. I don’t want nothing more to do with you”. So whatever the discussion was about, I said, “You want to be what you want to be, I can play your game too”. I said, you know? I don’t know what the discussion was about. I couldn’t tell you but it was most probably a heated argument and he basically hanged up in my ear and I said, “Well, so be it, Colin. Go find someone else to cater for you if you don’t want me to … because you won’t find anyone else.”
[40] T 82.4-15.
The applicant in his evidence subsequently disavowed remembering the content of the argument but I am satisfied this evidence substantially reflects what was said.
Three weeks later the deceased wrote to the applicant reassuring him that his will had not been changed. It left his home and all its contents to the applicant. Yet that assurance is contrary to the terms of the only will in evidence. In the conversation between the applicant and the deceased on 12 April 2016 the applicant said the deceased told him he had already changed his will to leave him the home and its contents. If this were true, the deceased must have made a new will between 16 July 2014 and 12 April 2016. I am not prepared to find that this occurred. There are a number of reasons for so finding. There is nothing in the terms of that conversation, as recounted by the applicant, which suggests that this had occurred shortly before 12 April 2016. If it had occurred at all, I would have expected two things would have happened. First, the deceased would have notified the applicant at the time. That is because the deceased would have been keen to inform the applicant of the change in his testamentary intentions given the friction between them engendered by the terms of the will of 16 July 2014. Second, the deceased would have taken up the applicant’s offer to have him meet the legal costs of a new will being made in those terms. There is no suggestion that this happened. Further, it is clear that in 2014 the deceased had retained two firms of solicitors to make wills for him, Treloar & Treloar and Richards Commercial Lawyers. Yet the only reasonable inference is that he did not retain either of these firms to make a further will after 16 July 2014 otherwise such a will, or a copy thereof, would have been found. While I accept that the deceased might have felt some hesitation about approaching Mr Richards to make a new will which would have significantly diminished the benefit to Scouts SA, there is no reason to think he would not have retained Treloar & Treloar if the applicant was prepared to meet the costs of a new will being made. In the alternative, he could have retained Matthew Mitchell, for whom Mrs Brown worked, to make a new will. I am satisfied that if the deceased had made a new will he would have retained solicitors to do so. He understood the necessity for formality in making a will. But no other firm of solicitors has produced a will made by the deceased after 16 July 2014. Searches by the applicant at the Glandore property and of the deceased’s Commonwealth Bank safety deposit facility have failed to find another will. The fact that reasonable searches have failed to find the original or a copy of such a will, in my view, is telling. I find the explanation lies in the nonexistence of such a will.
The applicant contends that the Court should find that the deceased made a new will leaving the Glandore property to him because of the unlikelihood that the deceased would have left the substantial asset of his estate to Scouts SA when he had little, if any, contact with the scouts since he was an adult. I do not accept this submission. Accepting, as I do, the evidence of Mr Bolton, Mr Hastwell, Ms Cespi and Mr Richards, it is clear the deceased intended Scouts SA to benefit from his estate.
In any event, even if I had formed a contrary view and was satisfied the deceased made another will after 16 July 2014, the application to admit to probate the reconstructed will faces other insuperable evidentiary hurdles.
There is no evidence that any subsequent will was either duly executed in accordance with the requirements of s 8 of the Act, or alternatively, if not duly executed, that there is a document which meets the requirements of s 12(2) of the Act. Further, there is no evidence that any subsequent will revoked the 16 July 2014 will. Neither is there any evidence that could satisfy the Court that a subsequent will was made in terms of the reconstructed will. Finally, the evidence does not permit a finding that the absence of the subsequent will at the deceased’s death can be satisfactorily explained so that the presumption of revocation of the subsequent will does not arise or has been rebutted.
Accordingly, I would refuse the application for the admission to probate of the reconstructed will.
Informal wills
In the alternative, the application seeks the admission to probate of the note of 12 April 2016 prepared by the applicant and signed by the deceased as an informal will pursuant to s 12(2) of the Act.
It follows from the findings I have made that the note of 12 April 2016 signed by the deceased is not to be admitted to probate as an informal will pursuant to s 12(2) of the Act. This is because I am not satisfied that, in accordance with s 12(2)(a), the document expresses the testamentary intentions of the deceased. On the contrary, I consider that insofar as it records what the deceased told the applicant on that date, the deceased intended to deceive the applicant. It was not the deceased’s intention, at that time or subsequently, to leave the Glandore property to the applicant.
In any event, the evidence falls short of proving that even if the deceased intended to leave the Glandore property to the applicant, he intended the 12 April 2016 note to constitute his will. The note was not prepared by him but by the applicant. The applicant’s evidence was that the note was not a will but merely a written record of past events. It was not a testamentary act.[41]
[41] Whyte v Pollok (1882) 7 App. Cas. 400 per Lord Selborne L.C. at 405; In the Estate of Frame (Deceased) [2007] SASC 164 at [18].
Revocation
In the further alternative, the application seeks an order revoking the will of 16 July 2014 and all former testamentary acts of the deceased and a declaration that the deceased died intestate. The applicant contends that the note of 12 April 2016 expressed the deceased’s intention to revoke the will of 16 July 2014 and any other testamentary instrument pursuant to s 12(3) of the Act.
Again, it follows from the findings I have made that no proper basis has been established to revoke the will of 16 July 2014 and to make a declaration that the deceased died intestate. Contrary to s 12(3) the note of 12 April 2016 does not express a true intention by the deceased to revoke the will of 16 July 2014. I consider that in fact, insofar as it records what the deceased told the applicant on that date, it was intended to deceive the applicant. The deceased’s intention at that time, as it had been from 16 July 2014 to his death, was that his estate should be administered in accordance with the will of 16 July 2014.
In any event, the note of 12 April 2016 does not express an intention to revoke previous wills but rather to record past events. It does not meet the test prescribed by s 12(3) to revoke the 16 July 2014 will.
Admission to probate of the will of 16 July 2014
In the circumstances, there is no reason not to admit to probate the will of 16 July 2014. I am satisfied that when it was made it accurately reflected the deceased’s testamentary intentions. There is no evidence of any valid later will apart from subsequent representations made by the deceased to the applicant and Mrs Brown. For the reasons I have explained, those representations did not accurately reflect his testamentary intentions. I find that the will continued to reflect the deceased’s testamentary intentions in the period up to his death.
Conclusion
I would dismiss the application. I would order that the will dated 16 July 2014 be admitted to probate. I would hear the parties as to costs and any other orders they seek.