In the Estate of DAVID WAYNE BROWN (DECEASED) BETWEEN YIWEN QIN AND JULIE SPEAR AS GUARDIAN FOR THALIA JADE SPEAR

[2016] SASC 199

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

In the Estate of DAVID WAYNE BROWN (DECEASED) BETWEEN YIWEN QIN AND JULIE SPEAR AS GUARDIAN FOR THALIA JADE SPEAR

[2016] SASC 199

Judgment of The Honourable Justice Stanley

22 December 2016

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR'S INTENTION - GENERALLY

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - GENERALLY

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION

This is an application made pursuant to s 12 of the Wills Act 1936 (SA) for a common form order admitting to probate the will of David Wayne Brown (“the deceased”) dated 10 September 2015 (“the will”) or, in the alternative, an order admitting to probate the will and an undated document as a codicil to the last will and testament of the deceased.

The plaintiff, Yiwen Qin, is the executrix named in the will.  She is a friend of the deceased who died on 15 September 2015.  The cause of the deceased’s death is unknown.  A coronial inquiry is pending, but it appears that the deceased committed suicide.  His body was found at his place of residence at Murray Bridge.  The application is supported by an affidavit sworn by the plaintiff on 27 October 2016 and an affidavit sworn by Virginia Leigh on 12 August 2016.  Ms Leigh was one of the witnesses to the execution by the deceased of a document apparently prepared by him from a will kit which purports to be his will.

The deceased’s wife, Meiji Qin, and his daughter, Amy Brown, have consented to the will and the letter being admitted to probate. The defendant, who is the guardian for Thalia Jade Spear, who claims to be a child of the deceased, did not wish to be heard on the application and will abide the order of the Court.

The issues before the Court are whether the document dated 10 September 2015 executed by the deceased and purporting to be his will should be admitted to probate, and whether an undated document apparently mailed to the plaintiff by the deceased after he executed his will also should be admitted to probate as a codicil to the will.

Held, per Stanley J:

1.  The will is to be admitted to probate (at [35]).

2.  The letter is not admitted to probate as a codicil to the will (at [36]).

3.  Order that there be a grant of probate in common form of the last will and testament of David Wayne Brown late of 89 Thiele Road Murray Bridge in the State of South Australia the abovenamed deceased being the document bearing the date the 10th day of September 2015 referred to as Exhibit “A” in the affidavit of the plaintiff Yiwen Qin sworn the 27th day of October 2016 filed in this action and propounded on behalf of the plaintiff (at [36]).

Wills Act 1936 (SA) s 8, s 12, s 25AA, referred to.
In the Estate of Frank William Davis (Deceased) [2011] SASC 143; In the Estate of TLB (2005) 94 SASR 450; Re Allsop [1968] Ch 39; In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446; Costa & Anor v The Public Trustee of NSW [2008] NSWCA 223, considered.

In the Estate of DAVID WAYNE BROWN (DECEASED) BETWEEN YIWEN QIN AND JULIE SPEAR AS GUARDIAN FOR THALIA JADE SPEAR
[2016] SASC 199

Testamentary Causes Jurisdiction

STANLEY J.

Introduction

1. This is an application made pursuant to s 12 of the Wills Act 1936 (SA) (“the Act”) for a common form order admitting to probate the will of David Wayne Brown (“the deceased”) dated 10 September 2015 (“the will”); or, in the alternative, an order admitting to probate the will and an undated document as a codicil to the last will and testament of the deceased; or, in the further alternative, an application pursuant to s 25AA of the Act for rectification of the will.

2. The plaintiff, Yiwen Qin, is the executrix named in the will.  She is a friend of the deceased who died on 15 September 2015.  The cause of the deceased’s death is unknown.  A coronial inquiry is pending, but it appears that the deceased committed suicide.  His body was found at his place of residence at Murray Bridge.  The application is supported by an affidavit sworn by the plaintiff on 27 October 2016 and an affidavit sworn by Virginia Leigh on 12 August 2016.  Ms Leigh was one of the witnesses to the execution by the deceased of a document apparently prepared by him from a will kit which purports to be his will.

3. Upon this matter coming on for hearing before me, Mr D Crocker, counsel appearing for the plaintiff, abandoned the claim for rectification. 

4. The deceased’s wife, Meiji Qin, and his daughter, Amy Brown, have consented to the will and the letter being admitted to probate.

5. The defendant, who is the guardian for Thalia Jade Spear, who claims to be a child of the deceased, indicated through her solicitor, Mr Nitschke, that she did not wish to be heard on the application and would abide the order of the Court.

6. Accordingly, the issues before the Court are whether the document dated 10 September 2015 executed by the deceased and purporting to be his will should be admitted to probate, and whether an undated document apparently mailed to the plaintiff by the deceased after he executed his will also should be admitted to probate as a codicil to the will.

   Background facts

7. On the basis of the affidavit evidence, I make the following findings:

   1The deceased was born on 29 March 1958.  He was 57 years of age at the time of his death.  He was a motor trimmer.  At the time, he was married to Meiji Qin.  She is the sister of the plaintiff.  The deceased and Meiji Qin were married on 1 August 2014.  There is no child of the marriage.  Amy Brown, a child of the deceased, was born on 26 August 1987.

   2On Thursday, 10 September 2015, the deceased was at the plaintiff’s residence.  He drafted the will.  Having done so, the deceased, together with the plaintiff, attended at the house of some neighbours, Virginia Leigh and Michael Brazil.  At the request of the deceased, they witnessed his execution of the will.  Both were present at the time the deceased executed the will and attested and subscribed to the document in the presence of the deceased.  Ms Leigh deposed to the deceased appearing to understand thoroughly the will and to have knowledge of its contents.

   3Shortly thereafter the deceased and the plaintiff returned to her house.  While walking there, the deceased said to the plaintiff that he had left everything to her.  The deceased left the will with the plaintiff for safe keeping. 

   4It appears that the deceased committed suicide.  His body was found in a shed on the deceased’s property at Murray Bridge East on Tuesday, 15 September 2015.  The plaintiff saw the deceased’s body in the shed and, soon after, an ambulance arrived.  Earlier that day, the plaintiff received in the post at her home in Adelaide a letter from the deceased.  I will refer to the terms of the letter later in these reasons.  It was in the deceased’s handwriting.  Having read the letter, she was concerned and tried to make contact with him, without success.  Consequently, the police were alerted and the plaintiff drove to the deceased’s property.

   5The plaintiff gave the letter to an ambulance officer and the letter was subsequently provided to the police at Murray Bridge.  The letter is exhibited to the affidavit of the plaintiff.

   6The net value of the deceased’s estate at the time of his death was $66,725.64.

   The will

8. The will is in the form of a completed will form from a will kit where the blank parts of the document have been completed in handwriting by the deceased. 

9. By clause 1 of the will, the deceased revoked all previous wills and testamentary acts and dispositions.  By clause 2 he appointed the plaintiff as the executrix of his estate.  Clause 4 of the will is headed “Special Gifts”.  The document identifies a number of specific special gifts, but does not identify any beneficiary in respect of the same.  The special gifts are:

   ·The deceased’s house at 89 Thiele Road, Murray Bridge, South Australia 5253, which he identifies as having a mortgage with the Commonwealth Bank of $220,000, including all furniture in the house and unit everything in his shed;

   ·Carrabean ski boat;

   ·VT Commodore S 513 ASC;

   ·Isuzu truck (XHJ 706) plus two trailers.

10. By clause 5 of the will the deceased provides that the plaintiff, as executrix, is to pay all the deceased’s debts and gives the residue of his estate to the plaintiff.

11. Section 12 of the Act provides that a will is valid if executed in accordance with the Act. Section 8 of the Act sets out the formal requirements. There is no issue in regard to the validity of the will. It has been executed in accordance with the formalities prescribed by s 8. There is no reason it should not be admitted to probate. What is contentious is whether the letter should be admitted to probate as a codicil to the will.

    The letter

12. The letter is in the deceased’s handwriting.  The letter is addressed to the plaintiff.  It is undated. 

13. The deceased has written his address in the top right-hand corner of page 1 of the letter.  He has concluded the letter on page 2 by writing out his full name and immediately underneath affixing his signature. 

14. The letter was sent in an envelope with a stamp affixed.  Together with the letter, the envelope contained some bankcards and keys to the deceased’s house.  The plaintiff does not know what happened to the envelope.

15. The text of the letter is important.  It is in the following terms:

    Dear Emmy (Yi)

    I am so sorry for everything meaning not going to China to help your sister May.  I love both of you.  You are very nice people.  the problem is i’m not happy and havnt been happy for a long time.  I think Ive got Depression just like you Emmy when you was in Modbury Hospital.  I am not the man I use to be meaning hard working conferdent etc.

    I am so sick of this life and I dont know what to do.  It seems to me all I do is try to make everyone else Happy but Im so sad all the time.  Im in a rut but dont know what to do. 

    But it does make me Happy that you have seen your daughter Nancy after what 3-5 years?  That’s great!!

    As you know Allready I have left my house and all belongings to you in my Will. coz you have been a great friend to me over the years.  Thank you for that.

    What I want you to do is give my friend Phillip Standford anything he wants from my workshop or Car Garage like the sewing machine to do the car or boat interiors ok? 

    Emmy with the 2 houses I would like you to fill the house’s with Chinese or Asian people and collect some good Rent it’s up to you want you want to do ok?

    Emmy you have met my friend Phillip from Victor Harbour do you remember him?  Big mouth pommy!  he come look at your Carport when you wanted to replace your carport with a new carport. 

    Emmy I think I still owe around $220,000 on the House and I know you cant afford to pay that mortgage so it might be better if you sell the house. 

    Like I have allready told you I want you to give my boat to my good friend Arther Nigro.  So Arther and his wife plus his 2 sons can enjoy the boat ok?  Arthers Ph. no. 0438813090.  The 2 trailers I have I want you to give them to my friend Phillip Standford from Victor Harbour ok?  Phillip’s Ph. no. 0438060842 plus give Phillip anything he wants from the Workshop and the car garage ok?

    Yi Im so lucky to have a great friend like you.  Thank You. 

    Regards David Wayne Brown

    [signature]

16. The letter continues on a third page as follows:

    Emmy I sorry for everything I’ve had enuff of being depressed all the time.  I would like you to ring St George Automotive Finance please and tell them to pick up my Comordore ute the blue car ok?  I still owe money on the ute so Im guessing that they will come and take my car away.

    Again Im sorry for everything.  I hope that selling my house will make things a lot easier for you. 

    Love you Emmy

    Love may too.

    PS  my House is with the Commonwealth Home loan 519674108 Bank.  if you want to talk to the Bank ok?  Sell Truck + Car Vt Comordoore.

    Tell St George to take the ute ok? 

    Last of all I should have married you Yi.

    All my love. David

    PS  my pay will be in the bank on Wednesday I will give you my card so you can take the money.

17. The deceased’s execution of the letter was not witnessed by attesting witnesses as required by s 8 of the Act.

18. I am satisfied that the letter was written by the deceased.  I am further satisfied that it was written subsequent to the execution of the document dated 10 September 2015 purporting to be the deceased’s will.  I am satisfied that is the case on the basis that the letter refers to the will and arrived in the post on Tuesday, 15 September 2015, five days after the deceased made his will.

19. The plaintiff seeks to have the letter admitted to probate as a codicil to the last will of the deceased.

    Section 12(2) of the Act

20. A document that has not been executed in accordance with the formalities required by the Act may be admitted to probate as a will of the deceased if the Court is satisfied that the document expresses testamentary intentions of a deceased person and that the deceased person intended the document to constitute his will.[1] By reason of the definition of “will” in the Act, s 12(2) applies to a codicil in the same way as it does to the principal document comprising a will.[2]

    [1] Section 12(2) of the Act.

    [2]    In the Estate of Frank William Davis (Deceased) [2011] SASC 143 at [24].

21. The operation of s 12(2) was considered in In the Estate of Frank William Davis (Deceased)[3] where Gray J said:[4]

    [3] [2011] SASC 143.

    [4]    In the Estate of Frank William Davis (Deceased) [2011] SASC 143 at [21] – [24].

    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.

    Section 12(2) is a dispensing power, allowing the Court, where it is satisfied that a document expresses the testamentary intentions of a deceased person and that that person intended the document to constitute his or her will, to admit that document to probate notwithstanding that it fails to meet the formal requirements set out in section 8 of the Act. The remedial nature of section 12(2) is now well recognised. The section provides a power by which unnecessary intestacies can be avoided. The following often quoted remarks of Jacobs J in In the Estate of Graham, the first decision to consider section 12(2) after its enactment, are apposite:

    But if there is one proposition that may be stated with reasonable confidence, it is that s 12(2) is remedial in intent, that is to say, that its purpose is to avoid the hardship and injustice which has so often arisen from a strict application of the formal requirements of a valid will, as dictated by s 8 of the Act. This conclusion is, I think, clearly justified upon a review of the legislative history of the relevant sections of the Act, and the cases.

    The liberal construction to remedial or beneficial provisions was endorsed by the High Court in IW v City of Perth, where Brennan CJ and McHugh J observed:

    [It is a] rule of construction that beneficial and remedial legislation … is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.

    Section 12(2) relevantly 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.

    For the purposes of the Act, section 3 defines “will” to include:

    …testament, codicil, appointment by will or by writing in the nature of a will in exercise of a power and a disposition by will and testament or devise of the custody and tuition of any child by virtue of the Imperial Act passed in the twelfth year of the reign of King Charles the Second, Chapter 24, and any other testamentary disposition.

    Accordingly, a codicil is capable of being admitted to proof as a will under section 12(2).

    [Footnotes omitted.]

    The application

22. The real issue on the application involves a consideration of the effect of the letter and whether the letter itself satisfies the requirements of s 12(2) as a document containing testamentary intentions, and which the deceased intended to constitute a codicil to his will.

23. To admit the letter to probate, the Court must be satisfied that the s 12(2) criteria have been established on the balance of probabilities, having regard to the Briginshaw principle.

24. Suicide, by itself, will not give rise to a presumption that the deceased lacked the requisite testamentary capacity.  It is not an indication of itself that the deceased was not of sound mind when he wrote the letter, or that he lacked testamentary capacity at the time of his death.[5]  The fact that the deceased appears to have committed suicide is only a consideration in determining whether he had the requisite mental capacity.  While the terms of the letter reflect a state of mind on the part of the deceased, that he was possibly depressed, certainly sad and in a state of despair, there is no evidence that he was incapable of thinking rationally. 

    [5]    In the Estate of TLB (2005) 94 SASR 450 at 458.

25. In my view, what is contentious is whether the terms of the letter express testamentary intentions and that the deceased intended that the letter constitute a codicil to his will, or whether the terms of the letter are merely precatory in nature. 

26. What is in issue is the intention of the deceased at the time he wrote the letter.  This is a question of fact.  The Court must be careful in seeking to find as a matter of fact the specific nature of his intentions by looking at the literal meaning of the words of the letter alone.  There is the potential for a too literal approach to frustrate the testator’s intention.  The Court must consider not only the terms of the letter, but consider the letter in the light of the surrounding circumstances.[6] However, it is not enough that the first limb of the test in s 12(2) is satisfied. The second limb of the test must also be satisfied. It is not enough that the letter might express testamentary intention. The writer of the letter must also have intended that the letter would constitute a codicil to his will. That is not to say that it is necessary that the deceased conceptualised the letter in those terms. Rather, the evidence must establish that the intention of the deceased was that the letter constitute an amendment, alteration, revocation, explanation or confirmation to his will in the sense of being capable of effecting a transfer of property, upon death, to the intended beneficiaries.

    [6]    Re Allsop [1968] Ch 39 at 47.

1. In In the Estate of Masters (Deceased);  Hill v Plummer;  Plummer v Hill,[7] Mahoney JA said:[8]

   Ordinarily, a transaction will or will not be an act in the law of the particular kind according to whether it was of the relevant form or nature and was intended to operate as such. ... A person may set down in writing what are his testamentary intentions but not intend that the document be operative as a will. ... What is to be determined in respect of a document propounded under s 18A[9] is whether, assuming it to embody the testamentary intentions of the deceased, it was intended by the deceased as his testamentary act in the law, that is, to have present operation as a will. 

   [7] (1994) 33 NSWLR 446.

   [8] (1994) 33 NSWLR 446 at 455.

   [9] Section 18A of the Probate and Administration Act 1898 (NSW), the equivalent section to s 12(2) of the Wills Act 1936 (SA).

2. Those observations apply equally to a codicil.  That passage was cited with approval by Basten JA in Costa & Anor v The Public Trustee of NSW.[10] Basten JA identified the question as whether the deceased intended that the document constitute his or her will.  That question will depend in part upon his or her state of knowledge and understanding of the nature of a will.  Basten JA said the state of knowledge of the putative testator is obviously a relevant consideration in assessing intention, but the ultimate question is one of satisfaction as to that intention.  This is a question of fact. 

   [10] [2008] NSWCA 223.

3. The letter appears to express testamentary intentions.  It refers to the deceased having left the plaintiff his house and all his belongings to her in his will.  On the other hand, the letter reflects a misunderstanding of the terms of his will.  It appears that the deceased intended in his will to make various specific bequests.  All these bequests fail due to the failure to nominate specific beneficiaries in respects of whom the requests are made.  On the other hand, the failure of these specific bequests results in each gift falling into the residue of the estate.  The plaintiff is the sole beneficiary in respect of the residue.  Accordingly, she will take the house and all its belongings under the will.

4. While it is open to speculate that by the letter the deceased intended to rectify the failure to effectively make the specific bequests he intended, that appears unlikely given the failure of the letter to reflect the underlying premise that he understood that the specific bequests made were ineffectual. 

5. It may be that he merely intended to reflect in the letter the terms of his own understanding of the effect of the will.  The difficulty with that is that the language of the letter is precatory rather than testamentary.  So much of the letter referring to assets of the deceased is framed in terms of “what I want you to do”, “I would like you to”, “I want you to give” and “Plus give Phillip anything he wants from the workshop and the car garage ok?”.

6. Mr Crocker submits that the letter should be construed not as expressing precatory wishes but, rather, as directions from the deceased to the executrix of his will.  The difficulty with that submission is that the plaintiff was wearing two hats.  She was both the sole executrix and the sole beneficiary of the residue of the deceased’s estate.  It is unclear in what capacity the deceased was addressing the plaintiff in the letter.

7. I am not persuaded that is the correct construction of the letter for which Mr Crocker contends.  But in any event, even if I was to accept that submission, I do not consider that the letter can be admitted to probate as a codicil to the will.  I am not satisfied that the deceased intended the letter should operate as a codicil to his will.  The letter was written within no more than four days of the execution of his will.  I am satisfied it was written in contemplation of his death.  I cannot be satisfied that he intended the letter to constitute a codicil to his will.  He plainly understood the necessity for particular formalities to be observed in executing a document which is intended to have testamentary effect.  He did not take any steps to observe those formalities, nor did he proffer any explanation for the failure to do so.  It may be that the letter reflects his misunderstanding as to what testamentary disposition he had effected in his will.  Nonetheless, that does not provide a satisfactory foundation for finding that he intended the letter to be a codicil to the will. 

8. Accordingly, even if I was satisfied that the letter expressed testamentary intentions, which I am not, the letter cannot be admitted to probate as a codicil to the will because I am not satisfied that the deceased intended the letter to constitute his will or a codicil to his will.

   Conclusion

9. The will is to be admitted to probate. 

   Order

10. Order that there be a grant of probate in common form of the last will and testament of David Wayne Brown late of 89 Thiele Road Murray Bridge in the State of South Australia the abovenamed deceased being the document bearing the date the 10^th day of September 2015 referred to as Exhibit “A” in the affidavit of the plaintiff Yiwen Qin sworn the 27^th day of October 2016 filed in this action and propounded on behalf of the plaintiff.