In the Estate of CRAWFORD (DECEASED) - [2004] SASC 370

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of CRAWFORD (DECEASED)
Judgment of The Honourable Justice Besanko
19 November 2004
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF THE COURT
Application for an order that probate of a will relating to the estate of the deceased be granted to the applicant as the sole executor named in the will - where the deceased made two wills in 1996, one dealing with his assets in England and one dealing with his assets in Australia - where the deceased made a further English will in 1997 purporting to revoke all previous wills - whether the second English will revoked the Australian will - consideration of the principles which govern the revocation of a will by a subsequent will - whether there is clear and unequivocal evidence to displace the effect of the revocation in the second English will - held that the deceased did not intend by his second English will to revoke his Australian will - probate of the Australian will granted to the applicant.
Wills Act 1936 s 25B, s 8; Wills Act 1837 (UK), referred to.
Re Barker [1995] 2 VR 439, applied.
Methuen v Methuen (1817) 161 ER 1186; Gladstone v Tempest (1840) 163 ER 538; Lowthorpe-Lutwidge v Lowthorpe-Lutwidge [1935] P 151; In the Will of Page [1969] 1 NSWR 471, discussed.
In re Resch's Will Trusts [1969] 1 AC 514; In the Estate of Wayland [1951] 2 All ER 1041; Re Luck (deceased) [1977] WAR 148; Re Tait, deceased [1957] VR 405, considered.

In the Estate of CRAWFORD (DECEASED)
[2004] SASC 370
Testamentary Causes Jurisdiction

BESANKO J: This is a summons in the testamentary causes jurisdiction of this Court. The deceased is John Morrison Crawford and he died on 28^th December 1999. The applicant is John Leonard Poole and he seeks an order that probate of a will dated 25^th February 1996 relating to the estate of the deceased situate in the Commonwealth of Australia be granted to him as the sole executor named in the will. He also seeks an order that the costs of and incidental to the application and order be paid out of the estate of the deceased.
The hearing before me proceeded on affidavit evidence and there was no cross examination of the deponents.
The deceased was 86 years of age when he died and his place of domicile was England. At the date of his death the deceased had assets in England and assets in South Australia. The assets in South Australia comprised two bank accounts with the Commonwealth Bank of Australia.
The deceased made two wills on 25^th February 1996. The first will provides that the deceased is making the will to dispose of his assets in Australia and provides that the deceased revokes his English will but only insofar as it relates to his Australian assets. I will refer to this will as “the Australian will”. The Australian will provides that any prior Australian wills relating to the deceased’s Australian assets are revoked. The Australian will provides that the applicant, a solicitor practising in New South Wales, is appointed the executor and trustee of the will. The will provides for the payment of a legacy to a Ms Janice Smith and for the balance of the real and personal property to be distributed between such of the deceased’s friends, Mr Norman Lawrence and Mrs Monica Lawrence, living at his death in equal shares.
The second will provides that the deceased revokes all previous wills and codicils he has made and that it is his last will. I will refer to this will as “the first English will”. The deceased appoints Mr Nigel Balfour, chartered accountant of Middlesex, the executor of the will. The will provides for the payment of a legacy to Mr Peter Pearce and Ms Claudia Pearce, the payment of a legacy to Ms Janice Smith and for the rest of the deceased’s estate to be distributed to Mr Norman Lawrence and Mrs Monica Lawrence jointly as joint tenants.
There is no evidence before me as to which of the two wills was executed first.
The deceased made a further will on 17^th June 1997. The will provides that all previous wills and testamentary depositions made by the deceased are revoked and that the will is his last will. I will refer to this will as “the second English will”. The deceased appoints Mr Balfour and the senior partner willing to act at the date of his death of the firm of solicitors, Finers, the executors of his will. The will provides for all of the estate to be called the “residuary estate” and provides for it to be distributed, after the payment of all proper expenses, as follows:
1. as to 10% to the League of Friends of Worthing Hospital
2. as to 30% to Mr Douglas Arthur Gulland and
3.as to 60% to Mr Norman Lawrence and Mrs Monica Lawrence or to the survivor of them as joint tenants (if they both survive the deceased) absolutely.
The correct name of the League of Friends of Worthing Hospital was the League of Friends of Worthing Hospitals. It is now known as the League of Worthing Hospitals and Community Friends. For convenience I will refer to this organisation as “the League of Friends”.
The question for this Court is whether the second English will revoked the Australian will. If not, and assuming proper execution of the will, the Australian will should be admitted to probate.
Before turning to consider the facts I need to say something about the procedure which has been adopted in this action. A number of affidavits were filed before the summons was issued by the applicant on 30^th March 2004. I will now make brief reference to the affidavits for the purpose of considering the procedure which has been followed. I will need to return to them later when considering the merits of the application.
The executors of the second English will swore an affidavit on 19^th February 2002. On 23^rd April 2001 the High Court of Justice of England and Wales (The District Probate Registry at Brighton) granted probate of the second English will to the executors. The executors state that they have sworn the affidavit at the request of the applicant. They state that they have knowledge of the circumstances surrounding the execution of the second English will. They state that the net value of the deceased’s estate in the United Kingdom is 75,060 pounds (£75,060). The executors of the second English will do not assert in their affidavit that they oppose the admission to probate of the Australian will.
Mr Gulland, a beneficiary under the second English will, swore an affidavit on 6^th July 2001, and he states that in his opinion the deceased in his second English will did not intend to revoke the Australian will.
Mr Gulland died on 3^rd October 2002. Ms Georgina Whitford Glover was given a Grant of Representation in respect of the will of Mr Gulland by the High Court of Justice (The Probate Registry of Wales) on 22^nd January 2003. Ms Glover swore an affidavit on 4^th June 2003 and she states that she is aware of the circumstances surrounding the applicant’s application for probate and that Mr Gulland’s estate will be adversely affected if probate of the Australian will is granted. She states that she is aware that during his lifetime Mr Gulland did not press for his share of the deceased’s assets in Australia on the basis that the second English will revoked the Australian will, and she states that she consents to an order granting probate of the Australian will even though the estate of Mr Gulland will be adversely affected.
Mr Lawrence died on 7^th January 1998. Mrs Lawrence has sworn three affidavits on 16^th July 2001, 19^th June 2003 and 9^th September 2003 respectively. It is clear from those affidavits that she does not oppose a grant of probate in relation to the Australian will. In fact, she gives evidence in support of a grant of probate of the Australian will which I will mention later.
Mr George Annis is the honorary treasurer of the League of Friends. The League of Friends is a registered charity in the United Kingdom. Mr Annis has sworn two affidavits dated 2^nd September 2003 and 4^th August 2004 respectively. In his first affidavit, Mr Annis states that the League of Friends opposes the grant of probate in relation to the Australian will and he sets out reasons why there should not be a grant of probate. An affidavit of the applicant’s solicitor received on the hearing before me makes it clear that the League of Friends maintains its opposition to a grant of probate of the Australian will but that it did not intend to appear by counsel at the hearing.
It is clear from what I have set out above, that no party who may be adversely affected by a grant of probate of the Australian will, opposes an order to that effect except for the League of Friends. The Registrar of Probates directed that the application for the grant of probate made to him be brought before him by summons pursuant to r 77 of the Probate Rules 1998 and he has referred the application to a Judge of this Court. As I have said, the affidavits filed in this Court and previously referred to indicate that prior to the issuing of the summons the only party which might oppose the granting of probate in relation to the Australian will is the League of Friends. On 29^th April 2004 a Judge of this Court made an order that a copy of the summons and various affidavits filed in relation to the application be served on the League of Friends, being a party whose interests may be adversely affected by the proceedings and that was subsequently done.
The League of Friends did not file an appearance and it did not appear at the hearing of the summons before me. It did file the two affidavits of Mr Annis to which I have previously referred.
At the hearing of the summons before me, the applicant appeared by counsel. No other party appeared, or sought leave to appear. In those circumstances, counsel for Mr Poole submitted that I should make the orders sought in the summons without conducting any further enquiry. That submission should not be accepted. Previously an application of this nature would be brought by notice of motion and no appearance is required to be entered to an originating notice of motion. In any event, the question raised is one of law or mixed law and fact and I must be satisfied that it is in accordance with law to grant probate of the Australian will.
I mention at this point that I have read carefully the affidavits filed on behalf of the League of Friends. Those affidavits raise a question as to the appropriateness of the applicant’s conduct in taking instructions for the preparation of the Australian will in circumstances where the applicant took instructions from a beneficiary and did not communicate with the deceased. However, the material before me is insufficient to support a conclusion that probate should not be granted having regard to those circumstances. Not surprisingly perhaps, the affidavits filed on behalf of the League of Friends raise no factual matters (as distinct from submissions) relating to the question of whether the second English will revoked the Australian will.
I am satisfied that when executed the Australian will was a valid will. The relevant choice of law rule provides that the validity of the will is to be determined by reference to English law being the place where the will was executed and the place where the deceased was domiciled (s 25B of the Wills Act 1936 (SA)). The relevant English law (s 9 of the Wills Act 1837 (UK)) corresponds in substance with s 8 of the Wills Act 1936 (SA). I am satisfied, having regard to the evidence of the attesting witnesses (Mr Michael Hare and Mrs Janis Parker) and Mrs Lawrence, that the Australian will has been executed in accordance with English law. The applicant is entitled to have the Australian will admitted to probate unless it has been revoked by the second English will.
It is convenient to start with the legal principles which govern the revocation of a will by a subsequent will. Of course, the precise question in this case is whether the second English will revokes all prior wills including the Australian will or revokes only the first English will.
In Re Barker [1995] 2 VR 439 Tadgell J identified three questions which must be considered in circumstances not dissimilar to the circumstances in this case. I think that they are the questions which I must consider. They are:
1.Is the second English will formally valid? In this case, it is accepted that the second English will is formally valid.
2.Is the second English will sufficient by its terms to effect a revocation of the Australian will? That is a question of the construction of the second English will which, prima facie, is to be determined by reference to the lex domicilii of the deceased. As I have said it appears that the deceased was domiciled in England and the lex domicilii is English law. English law is no different from Australian law in this respect. In any event, counsel for the applicant did not suggest that the second English will was not sufficient by its terms to effect a revocation of the Australian will, and I proceed on that basis.
3.Was the second English will intended to affect the Australian will? This question is to be determined as a matter of evidence and according to the lex fori.
The second English will contains a general revocation clause. Clause 1 provides:
“1.I hereby revoke all previous wills and testamentary dispositions made by me and declare this to be my last Will.”
It is well established that a general revocation clause in a will is not sufficient to revoke a prior will if a court of probate is satisfied that the testator did not intend by a later will to revoke the earlier.
In Methuen v Methuen (1817) 2 Phill Ecc 416; 161 ER 1186 Sir John Nicholl said:
“In the court of probate the whole question is one of intention: the animus testandi and the animus recocandi are completely open to investigation.”
(See In Re Resch’s Will Trusts [1969] 1 AC 514 per Lord Wilberforce at 547.)
In Gladstone v Tempest (1840) 2 Curt 650; 163 ER 538 Sir Herbert Jenner said (at 2 Curt 653-4; 163 ER 540):
“… generally speaking, there is no doubt that by such a general clause there is a revocation of all prior testamentary acts. But it has been over and over again laid down that probate of a paper may be granted of a date prior to a will with a revocatory clause, provided the Court is satisfied that it was not the deceased’s intention to revoke that particular legacy or benefit.”
As Tadgell J observed in Re Barker (at 446) attitudes have varied over the years to the reception and application of evidence that would tend to rebut the force of a general revocation clause (Geddes and Rowland, “Revocation by Later Will: Relevance and Proof of Intention” (1984) 58 Australian Law Journal 186). The position has now been reached that evidence ought to be generally admitted such as may throw light on the intention with which a testator included a general revocation clause in a later will. In Lowthorpe-Lutwidge v Lowthorpe-Lutwidge [1935] P 151 Langton J said (at 157):
“It really is a question in each case for the Court to decide: Is there evidence, and sufficient evidence, to establish that the testator did not intend to revoke? I do not think really the law is more complicated than that.”
The existence of a revocation clause in a will is prima facie evidence of the testator’s intention and evidence sufficient to rebut it must be clear and unequivocal (In the Estate of Wayland [1951] 2 All ER 1041). In In the Will of Page [1969] 1 NSWR 471 Helsham J discussed the nature of an application for probate. He said (at 474 – 5):
“… This means an inquiry inter alia into what the deceased person intended should constitute the whole of his testamentary dispositions; so that the inquiry is not always so much into what a deceased person said or meant in any particular document which does constitute his will, but whether he intended that the document should constitute his will, and if so either wholly or partly, and to the exclusion of other prior documents and so on. The central fact to be proved, assuming formal validity, is a deceased’s intention as to the document, which is not necessarily to be found from the document.
The fact that a deceased says in the document which he executes as a will that it is to constitute the whole of his testamentary dispositions to the exclusion of any other instruments (for example by describing it as his will and by including a revocation clause) is a factor which bears upon the proof of whether he intended it to contain the whole of his testamentary dispositions. Normally it is cogent evidence from which the factum of intention can be inferred and will operate to displace other evidence of intention, or at least to outweight it, for a court will place great weight upon what a deceased person has said in his own formal legal document as to what his intention was in executing it; it is normally the best evidence from which his intention can be inferred. But it is not necessarily conclusive proof of a deceased’s intention. If it is established by evidence that a particular instrument was not intended by a deceased to contain the whole of his testamentary dispositions, then notwithstanding that the instrument itself has words in it from which it might be inferred that the deceased did so intend, these words will not be allowed to prevail in some cases so as to defeat the true intention. Such cases occur when it can be shown that the words in it do not reflect the deceased’s intention at all or only reflect that intention conditionally upon some other event happening. Cases of mistake are instances of the former and cases of dependant relative revocation are instances of the latter type of situation.”
(See also Re Luck (deceased) [1977] WAR 148; Re Tait, deceased [1957] VR 405 per Lowe J at 410 and Sholl J at 418.)
Statements of the testator are admissible as evidence of the testator’s intention and include statements by the testator made after the will was made as well as statements made at the time the will was made. In Re Barker (supra) Tadgell J said (at 453):
“The general rule applies in a court of probate when what is in issue is the factum of a will. Thus, evidence of declarations of a testator as to that of which his will consists may be received in a probate suit as presumptive evidence of the mental condition which they indicate. The better view is that they are received not as part of the res gestae or as exceptions to the hearsay rule, but as original evidence: Walton v. R., loc. cit. That being so it is, in general, immaterial to admissibility, as distinguished from weight, whether they were made before or after the testamentary act to which they refer, or whether in form they expressed a future intent or asserted a past fact: Phipson on Evidence, 13^th ed., para 24-79.”
I turn now to examine the facts in light of these principles.
The applicant is a solicitor practising in New South Wales and he was involved in the preparation of the Australian will and he received instructions from Mr Lawrence on behalf of the deceased who, like the deceased, was living in England at the time. It seems that the applicant did not at any time correspond with the deceased or speak to him.
Mr Michael Hare and Ms Janis Parker witnessed the execution of the Australian will and the first English will. On 25^th February 1996 Mr Hare and Ms Parker conducted a hotel business in Sussex, England. They briefly met the deceased and Mr and Mrs Lawrence who were having a meal in the restaurant in the hotel and they were asked to witness the execution of the Australian will and the first English will. They did so. Both wills were executed at the same time, although, as I have said, there is no evidence as to which will was executed first. That fact does not matter because it is clear that both wills which were executed on the same occasion were intended to be effective and operative wills.

Mrs Lawrence last saw the deceased on 31^st July 1999 at the Melrose Nursing Home at Worthing. She spent about four hours talking to him. The deceased mentioned that he still had assets in Australia and that he hoped they would remain in Australia. Mr Lawrence, who had died about 18 months earlier, was an Australian. Mrs Lawrence states that the deceased knew that she and her husband intended to move to Australia after Mr Lawrence’s retirement. Mrs Lawrence states that she believes the deceased favoured her husband and herself in the Australian will because they intended to retire in Australia. I put little weight on this statement because it is a statement of Mrs Lawrence’s belief and the basis of her belief is not set out. However, the following statement is important. The deceased said to Mrs Lawrence words to the following effect:
“There is nothing to worry about because my Australian will means that those monies would be treated separately from my English assets in the event of my death.”
I see no reason on the evidence put before me to treat this statement as qualified in any way.
Mrs Lawrence says that she and her husband saw the deceased four or five times a year. From her knowledge the deceased did not appear to have many friends and he appeared to enjoy their company.
Mrs Lawrence exhibits to one of her affidavits correspondence surrounding the preparation and execution of the Australian will. I do not think that it is necessary to set out the details. She also gives evidence about the handwritten additions which were made to the Australian will.
In 1997 Mr Stephen Arthur was a partner in Finers, solicitors. He received instructions from Mr Lawrence on behalf of the deceased for the preparation of the second English will. In June 1997 Mr Arthur received instructions from Mr Lawrence on behalf of the deceased and a copy of the first English will. Mr Arthur did not know that the deceased had made a will dated 25^th February 1996 disposing of his assets in South Australia, nor was he aware that the deceased owned assets in Australia. The original of the second English will was sent to Mr Gulland. A copy was to be sent to Mr Lawrence, although it is not clear whether that was done. Mr Arthur states in relation to the will he prepared that became the will dated 25^th February 1996 that he never had any direct contact with the deceased either by telephone or by letter. I think this is a clear error and that Mr Arthur intended to refer to the will he prepared that became the will dated 17^th June 1997 (ie., the second English will).
Mr Gulland was the deceased’s cousin. He and Mr Lawrence assisted the deceased in the management of his affairs. Mr Lawrence died about two years before the deceased died. Mr Gulland was not aware of the Australian will at the time it was executed. He states that he is aware of the issue in this action, and gives his account of the circumstances surrounding the execution of the second English will. I will refer to that evidence briefly.
Mr Gulland and Mr Lawrence discussed the deceased’s testamentary wishes with him. Mr Lawrence gave instructions to the firm, Finers, on behalf of the deceased to prepare a new will and power of attorney for the deceased. That was done and the documents were sent to Mr Gulland rather than Mr Lawrence. Mr Gulland had never had any previous dealings with Finers and the deceased had not had any previous connection with the firm.
Mr Gulland took the will and power of attorney to the deceased and he discussed them with the deceased. Neither the Australian will nor the deceased’s assets in Australia were discussed. Mr Gulland was present when the will was signed by the deceased and witnessed.
Mr Gulland states that he believes the deceased did not intend to revoke the Australian will at the time he made the second English will. His belief as such is not relevant, but the basis of his belief, if it relates to words and/or conduct of the deceased, may be relevant. Mr Gulland states that in his earlier discussions with the deceased, the deceased had informed him that he wanted to keep his wills separate. The deceased had a desire, which Mr Gulland describes as an obsession, to pay as little tax as possible and Mr Gulland states that in his discussions with the deceased, the deceased thought the making of separate wills might achieve his wish. This evidence is imprecise in terms of when these earlier discussions took place but it is nevertheless of some assistance.
I have already set out the general revocation clause in the second English will. The clause is wide enough to revoke the Australian will. However, in February 1996 the deceased knew that he had assets in England and assets in Australia. At that time he decided to make two wills, one dealing with his assets in Australia and one dealing with his other assets, namely, his assets in England. Less than 18 months later in June 1987 he decided to make a further will. At that time he knew he had assets in two countries and separate wills in relation to those assets. On the evidence, the deceased made no reference to his Australian will or his assets in Australia at the time he made the second English will. I do not think that he intended to revoke the Australian will by the second English will. There is no reason to think that the deceased did not maintain his wish to pay as little tax as possible and his belief that the existence of separate wills might have that effect. I think what the deceased said to Mrs Lawrence in July 1999 is particularly important on the question of intention because it establishes the deceased’s belief and desire that his Australian will remain in effect. Although as a whole the evidence is not overwhelming, in my opinion it is sufficiently clear and unequivocal to displace the effect of the general revocation clause in the second English will. I am satisfied that the deceased did not intend by his second English will to revoke his Australian will.
I will make an order that probate of the will dated 25^th February 1996 relating to the estate of the deceased situate in the Commonwealth of Australia be granted to the applicant, the sole executor therein named. I will hear from counsel for the applicant as to the costs of the application and order.