In the Estate of DAVID BRIAN COOMBER - [2014] SASC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of DAVID BRIAN COOMBER
[2014] SASC 37
Judgment of The Honourable Justice Gray
13 March 2014
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF ADMINISTRATION GENERALLY - TO WHOM GRANTED AND WHEN NECESSARY GENERALLY - SOUTH AUSTRALIA
SUCCESSION - MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - MARRIAGE, DIVORCE OR ANNULMENT - GENERALLY
PRIVATE INTERNATIONAL LAW - DOMICILE - GENERALLY
This is an application for a grant of letters of administration. The deceased died in Thailand and was survived by two children, the applicants, and a wife. The deceased had made a will in 1997. The deceased subsequently married in Thailand in 2007.
Whether the deceased’s will was revoked by his subsequent marriage in Thailand by operation of section 20 of the Wills Act 1936 (SA). Where the Court was informed that under Thai law a subsequent marriage does not have the effect of revoking an earlier will.
Whether the deceased was domiciled in Australia or Thailand at the time of his marriage and at the time of his death.
Whether the applicants are entitled to a grant of probate. Where the widow has renounced her entitlement to a grant of administration.
Held (granting the application):
(1) The deceased intended to remain domiciled in Australia, both at the time of his marriage and at the time of his death (at [20]).
(2) The deceased’s will was revoked by his subsequent marriage in accordance with section 20 of the Wills Act (at [20]).
(3) The applicants are entitled to a grant of letters of administration (at [22]).
Wills Act 1936 (SA) s 20 and s 23; Domicile Act 1980 (SA) s 9; Probate Rules 2004 (SA) r 32.01, referred to.
Lewis v Balshaw (1935) 54 CLR 188; In Re the Duchess D’Orleans (1859) 164 ER 716; Hyland v Hyland (1971) 18 FLR 461; Udny v Udny (1869) LR 1 Sc 441; Terrassin v Terrassin (1968) 14 FLR 151, considered.

In the Estate of DAVID BRIAN COOMBER
[2014] SASC 37
Testamentary Causes Jurisdiction
GRAY J.

This is an application for a grant of letters of administration of the estate of the deceased, David Brian Coomber. The application was referred to me by the Registrar of Probates.
The deceased died in Thailand on 18 June 2012. He is survived by a wife who is resident in Thailand, Ponnapat Chansoi, and two adult sons of an earlier marriage, Ritnarong Coomber and Tassagon Coomber. The application for a grant of letters of administration is brought by the deceased’s two sons. The deceased left a will executed in Tasmania on 16 July 1997 in which he appointed his mother and an aunt to act as executors. However, the application is made on the premise that the will was revoked by the deceased’s subsequent marriage to Ms Chansoi in accordance with section 20 of the Wills Act 1936 (SA) and that the deceased therefore died intestate.
Several affidavits were filed in support of the application, including affidavits sworn by Lindsay Albert William Smith, the applicants’ solicitor, an affidavit sworn by Sommai Coomber, the deceased’s ex-wife, and an affidavit sworn by the applicants. In recording the facts that appear later in these reasons, I have drawn from the contents of those affidavits.
On 13 January 1992, the deceased married Sommai Coomber in Thailand. Their two children, the applicants, were born in 1992 and 1994 respectively. The deceased and Ms Coomber were divorced by the Family Court of Australia at Devonport on 16 October 1998. In her affidavit, Sommai Coomber deposed that she is not contemplating making an application for family provision and that she supports the application for letters of administration made by the applicants.
On 17 November 2007, the deceased married Ms Chansoi in Thailand. It appears that the marriage would be recognised as a valid marriage pursuant to Part VA of the Marriage Act 1961 (Cth) as the deceased was divorced at the time and there is no evidence or suggestion of invalidating factors under the Act.
Following the death of the deceased, Ms Chansoi has remained living in Thailand. Ms Chansoi applied for and was granted probate in Thailand in respect of the Thai assets of the deceased’s estate. The Court has been provided with a copy of the order of the Ratchaburi Provincial Court, Thailand, dated 7 September 2012, as well as an English language translation of that order.
On 12 March 2013, a deed of family arrangement was entered into between Ms Chansoi and the applicants. By that deed, the parties agreed that Ms Chansoi is to receive the deceased’s assets located in Thailand and an additional $10,000.00 from the net assets of the deceased’s estate. The applicants are to retain equally the balance of the deceased’s property located in Australia, including the benefit of family trust assets of which they are already appointed trustees. Ms Chansoi has renounced administration of the deceased’s estate in South Australia by way of a Renunciation of Letters of Administration that was signed on 1 February 2013.
The assets of the deceased’s estate include assets previously held by the deceased in his capacity as trustee of the Coomber Family Trust, a discretionary trust created by deed dated 11 March 2010. Those assets include an investment of $250,000.00 with Assist Finance Corporation Limited. A certificate prepared by Assist Finance Corporation Limited relating to that investment refers to the deceased as the investor but does not record that the investment was made by the deceased in his capacity as trustee of the Coomber Family Trust. However, Mr Smith deposed that he was informed by the deceased’s accountant that the deceased considered this investment to be an asset of the Coomber Family Trust and the deceased’s accounts were prepared on that basis. On 15 June 2012, the deceased retired as trustee of the Coomber Family Trust and the applicants each accepted appointment as a trustee. However, it appears that the legal ownership of the investment with Assist Finance Corporation Limited was not transferred to the applicants. Following the death of the deceased, the applicants were advised by Assist Finance Corporation Limited that they would be required to provide an original grant of administration or a certified copy thereof in order to facilitate payment of the investment money to the deceased’s estate.
As earlier mentioned, the application for letters of administration was made on the basis that the deceased’s will was revoked by his subsequent marriage to Ms Chansoi in accordance with section 20 of the Wills Act. The question that arises is whether section 20 is the applicable law for the purposes of the application, or whether it is instead necessary to consider the effect of Thai law.
It is clear that under South Australian law, the deceased’s marriage to Ms Chansoi would have the effect of revoking the will earlier made by the deceased. Section 20 of the Wills Act provides:
(1)Subject to subsection (2), every will made by a man or woman is revoked by his or her marriage (except a will made in exercise of a power of appointment when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir executor or administrator, or the person entitled as his or her next of kin under the Statute of Distributions).
(2)A will made after the commencement of the Wills Act Amendment Act 1969 which is expressed to be made in contemplation of marriage, is not revoked by the solemnisation of the marriage contemplated.
The Court was informed that there is no equivalent provision under Thai law and that a subsequent marriage by a testator does not have the effect of revoking an earlier will. The primary issue for determination on the present application therefore concerns the applicable law.
The law of a deceased’s domicile applies to a grant of probate in respect of movable assets.[1] If the deceased was domiciled in Australia, then the 1997 will was revoked by his subsequent marriage to Ms Chansoi and the deceased died intestate. If the deceased was domiciled in Thailand, it may be necessary to consider the application of Thai law.
[1] Lewis v Balshaw (1935) 54 CLR 188, 193; In Re the Duchess D’Orleans (1859) 164 ER 716.
Pursuant to section 9 of the Domicile Act 1980 (SA), the question of domicile depends on the intention of the individual. That section provides:
The intention that a person must have in order to acquire a domicile of choice in a country is the intention to make his home indefinitely in that country.
Further guidance is provided by the case law. The acquisition of a domicile may be inferred from the fact of voluntary and lawful residence in a particular place coupled with an intention to continue to reside in that place.[2] That residence must be “residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation”.[3] A variety of factors have been relied on as evidence of intention. Relevantly, the acquisition of the citizenship of the country concerned, or the failure to acquire citizenship, may provide some evidence as to the person’s intention to remain in that country indefinitely.[4]
[2]    Hyland v Hyland (1971) 18 FLR 461.
[3]    Udny v Udny (1869) LR 1 Sc 441, 458.
[4]    Terrassin v Terrassin (1968) 14 FLR 151.
Section 23 of the Wills Act provides that any change of domicile does not itself have the effect of revoking an earlier will. That section provides:
No will made by a testator who has died or dies after 22 October, 1895, will be held to be revoked, or to have become invalid, nor will the construction of the will be altered, by reason of any subsequent change of domicile of the person making the will.
On the evidence available to the Court, several factors indicate that the deceased intended to remain domiciled in Australia, both at the time of his marriage to Ms Chansoi and at the time of his death.
In her affidavit, Ms Coomber deposed that she presently resides in Australia. Counsel for the applicants suggested that this was relevant to the question of domicile as it indicates that the deceased had previously married abroad but brought his wife back to Australia to live with him.
During the deceased’s subsequent marriage to Ms Chansoi, they resided variously in Thailand and in Australia. They resided in Australia for two or three continuous periods of six months’ duration. They were unable to stay in Australia for a continuous period exceeding six months as a consequence of the conditions of Ms Chansoi’s Australian visa. At the time of the death of the deceased, the deceased and Ms Chansoi had been living in Thailand for a continuous period of approximately two years. The deceased was required to leave Thailand every twelve months in order to satisfy the conditions of his Thai visa. Whilst in Thailand, the deceased lived with Ms Chansoi in rented accommodation. The deceased never owned a dwelling in Thailand. The deceased also never acquired nor sought Thai citizenship.
Another indication that the deceased intended to remain domiciled in Australia appears on the deceased’s tax return for the financial year 2010 to 2011, a copy of which was provided to the Court. On that tax return, the deceased’s home address is listed as 29 Encounter Crescent, Middleton. An Electronic Lodgment Declaration Form provided to the Court indicates that this tax return was prepared on the basis of information supplied by the deceased on 20 July 2011.
On the balance of the evidence, I am satisfied that the deceased intended to remain domiciled in Australia, both at the time of his marriage to Ms Chansoi and at the time of his death. As a consequence, section 20 of the Wills Act applies, the deceased’s will was revoked by his subsequent marriage to Ms Chansoi and the deceased died intestate.
The remaining question is whether the applicants are entitled to a grant of letters of administration. The order of priority of entitlement to a grant of letters of administration is set out in rule 32.01 of the Probate Rules 2004 (SA). Rule 32.01 provides:
Where the deceased died on or after the 29th January 1976, wholly intestate, the persons entitled in distribution under Part IIIA of the Act shall be entitled to a grant of administration in the following order of priority, namely -
(i)Where the spouse [or the domestic partner] of the deceased has survived the deceased for 28 days, the surviving spouse [or the domestic partner];
(ii)The children of the deceased, or the issue of any such child who died before the deceased;
(iii) The father or mother of the deceased;
(iv)Brothers and sisters of the deceased, or the issue of any deceased brother or sister who died before the deceased;
(v) Grandparents of the deceased;
(vi)Uncles and aunts of the deceased and the issue of any deceased uncle or aunt who died before the deceased.
As earlier mentioned, Ms Chansoi, the spouse of the deceased, has renounced her entitlement to a grant of letters of administration. Accordingly, the applicants, as the children of the deceased, are the persons next entitled to a grant of letters of administration.
Conclusion
The will of the deceased executed on 16 July 1997 was revoked by the deceased’s subsequent marriage to Ms Chansoi by operation of section 20 of the Wills Act and the deceased died intestate. The applicants are entitled to a grant of letters of administration.