In the Estate of DRUMMOND (DECEASED) - [2019] SASC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of DRUMMOND (DECEASED)
[2019] SASC 74
Judgment of The Honourable Justice Bampton
16 May 2019
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR'S INTENTION - HOME MADE WILL
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS
The applicants seek orders that an informal document be admitted to probate pursuant to s 12(2) of the Wills Act 1936 (SA) and that they be granted letters of administration with the will annexed – where no executor named in the document – whether the informal document expresses the deceased’s testamentary intentions – whether the deceased intended the informal document to constitute his will.
HELD: The document in question be admitted to probate as the will of the deceased pursuant to s 12(2) of the Wills Act 1936 (SA).
Wills Act 1936 (SA) s 12(2), s 8; Probate Rules 2015 (SA) r 64(2), referred to.

In the Estate of DRUMMOND (DECEASED)
[2019] SASC 74
Testamentary Causes Jurisdiction

BAMPTON J: Maria Sagias and Theodore Sagias (“the applicants”) were the neighbours of Ian Brooker Drummond (“the deceased”). The applicants commenced these proceedings seeking orders that the document marked “A” referred to in their affidavit filed in support of the application be admitted to probate as the last will of and that letters of administration with the will annexed be granted to them pursuant to s 12(2) of the Wills Act 1936 (SA) (“Wills Act”). The applicants also made application that the Registrar make an order in accordance with r 64(2) of the Probate Rules 2015 (SA) dispensing with the need to serve the cousins of the deceased, namely Peter Ian Brooker, David Robert Brooker, and John Owen Brooker (“the Brooker brothers”).
In their affidavit sworn on 16 August 2018, the applicants depose that they are the beneficiaries named in the informal document made by the deceased (“the document”). They depose that they believe the document is the deceased’s last will and testament which authorises them to administer the estate. The document has not been executed in accordance with s 8 of the Wills Act and does not appoint an executor. It is handwritten in the form of a letter and signed “Ian Dummond” as follows:
Dear Sir,
On this day Sunday, the 5^th JUNE 2016, that I, IAN BROOKER DRUMMOND of … SAINT CLAIR wish to declare that THEO SAGIAS and his wife MARIA SAGIAS of … SAINT CLAIR and ABSOLUTELY NO ONE ELSE are the sole beneficiaries of my estate.
Yours sincerely,
Ian Drummond
(Emphasis in original)
The deceased died on 27 November 2016 aged 68. The applicants depose that they were neighbours of the deceased in a group of units and came to know him very well. They depose that the deceased was an intensely private man whom they came to know over the years. The deceased was not married, did not have a partner, and did not have any children. They depose that the deceased had a family friend, Viktorija Magaletta (nee Basic), but did not have any other relationships. They say that he spoke of a cousin, John, but said that he had not seen him for many years.
The applicants assert that they provided extensive assistance to the deceased in his last years of life and helped him with small amounts of money. They depose that they assisted him in attending doctor’s appointments, ran errands and cooked for him most days after he became unwell. They state that they were named as his next of kin at the hospital and arranged for his funeral after he died.
The applicants depose that the deceased mentioned to them a number of times before he died that he wished them to be the beneficiaries of his estate. On the day he made the document, the applicants say that the deceased called them and handed it to them in an envelope, saying “I haven’t got money to make a will, but this is good enough because it’s my last wish. I don’t want my cousin or the government to get it”.
Following the death of the deceased, the applicants approached the Public Trustee for advice. They assert that after some time it became apparent that the Public Trustee was intending to administer the estate as if the deceased had died without a will. They also found out through the Public Trustee that the deceased had made an earlier “will” in favour of Ms Magaletta, which Ms Magaletta intended to prove. The document relied on by Ms Magaletta has been lodged with the Probate Registry. It is dated 25 August 2014, appears to be written in the same handwriting as the document and bears a similar signature to the signature on the document. It is addressed to whom it may concern and purports to “appoint Viktoria Basic and absolutely no-one else … as the sole beneficiary of my estate”.
Having learnt about Ms Magaletta’s interest in the estate the applicants sought advice from a solicitor and following negotiations with Ms Magaletta’s solicitor, entered into a deed whereby Ms Magaletta agreed not to oppose their application for probate. Upon entering into that deed, Ms Magaletta agreed that she would allow the caveat she had lodged against a grant in the deceased’s estate once the applicants’ application was filed.
The applicants state that their solicitor advised them that the deceased’s cousins may be entitled to a portion of the deceased’s estate in the event that he died without a will. The Public Trustee in a letter to their solicitor 14 March 2018 provided the names and addresses of the Brooker brothers. The applicants’ solicitor then wrote to the Brooker brothers by letters dated 22 May 2018 advising them of this application:
… because you may be entitled to a share in the estate of the deceased in the event he died intestate (that is, without any last will and testament at all). In accordance with the Probate Rules we are required to attempt to obtain your consent to an application for probate.
The applicants say that their solicitor informed them that he was contacted by telephone on 28 May 2018 by John Brooker, who said that he would speak to his brothers about what to do. Their solicitor advised John Brooker that he should seek independent legal advice and that the applicants had a strong case for a grant of probate or administration of the document. The solicitor sent a further letter to John Brooker on 25 June 2018 enquiring whether he had discussed the matter with his brothers and whether he was amenable to signing and returning the consent form that had been enclosed in the letter dated 22 May 2018.
The solicitor informed the applicants that he was contacted by John Brooker on 5 July 2018, who advised that he would not sign the consent form enclosed with the letter dated 22 May, declined to give any indication of his brothers’ view in relation to the matter and declined to give any indication of whether or not he intended to take any action in relation to the matter. The applicants depose that, as at the date of swearing their affidavit on 16 August 2018, their solicitor had not heard further from the Brooker brothers.
Finally, the applicants depose that, given the size of the estate and the clearly testamentary nature of the document, they consider it wasteful to engage in further activity to notify the Brooker brothers or involve them in the application.
The applicants’ solicitor, Kym Jackson, in an affidavit sworn on 3 December 2018, deposes to having a telephone conversation with John Brooker on 29 October 2018. John Brooker informed him that he was a first cousin of the deceased and that his father, John Percival Brooker (who died 24 February 2005), was the brother of the deceased’s mother, Daisy Amelia Drummond (nee Brooker).
John Brooker stated that he and his brothers were the deceased’s only first cousins and that John Percival Brooker and Daisy Amelia Brooker had no other siblings apart from another child who had been stillborn. John Brooker stated that the deceased was the only child of Daisy Amelia Brooker and that he and his two brothers were the only children of John Percival Brooker. John Brooker informed Mr Jackson that the deceased’s father, Alfred Dalgliesh Drummond, had no children apart from the deceased. The deceased’s father was one of five children, whom John Brooker asserted did not have any issue. John Brooker also confirmed that the deceased never married and never had children. Mr Jackson deposes that during his conversation with John Brooker, John Brooker indicated to him that he recalled receiving Mr Jackson’s letters in the past and asked where the matter was up to. Mr Jackson explained that he was currently prosecuting the application that the document in favour of the applicants be admitted to probate. He explained the process of ensuring that all parties who would be entitled on intestacy had an opportunity to object. John Brooker indicated that he did not wish to consent to the application, but thought that actively opposing it would be “sending good money after bad”. Mr Jackson indicated to John Brooker that he could not give him legal advice, and that if he had any intention of opposing the application he should take action sooner rather than later.
Mr Jackson, in his second affidavit sworn on 29 March 2019, deposes that at the Court’s request, he again forwarded correspondence to each of the Brooker brothers and obtained tracking reports from Australia Post indicating that the three letters had been delivered to the three recipients. Mr Jackson deposes that on 21 March 2019 he telephoned John Brooker, stating that he had sent a letter to him on 13 March 2019. John Brooker said that he had received it but did not intend to take any action in relation to it. Mr Jackson deposes that he had no response from David Brooker or Peter Brooker.
On 13 March 2019, Mr Jackson sent an email to Ms Magaletta’s solicitor requesting a signed consent to the applicants’ application from Ms Magaletta. On 20 March 2019, Mr Jackson received Ms Magaletta’s signed consent to the application dated 18 March 2019.
In the correspondence to the Brooker brothers dated 13 March 2019, Mr Jackson advised that the matter was listed for hearing before me at 9.30 am on 2 April 2019. He advised that if there was no attendance it was likely that application would be granted.
Peter Brooker attended the hearing on 2 April 2019 and informed me of the relationship he and his brothers had with the deceased. I adjourned the matter in order that he and his brothers could consider seeking legal advice concerning the application. Mr Jackson indicated that he had previously offered that he would seek instructions to pay for the Brooker brothers’ legal advice out of the estate, confident that the advice would be to not challenge the application. The matter was adjourned to 8 May 2019 to allow the Brooker brothers an opportunity to seek legal advice from a probate law practitioner.
At the adjourned hearing on 8 May 2019, there was no appearance for the Brooker brothers. Annexed to Mr Jackson’s third affidavit sworn 7 May 2019 are copies of his correspondence with Peter Brooker during the period of the adjournment. I note that, on 3 April 2019, Mr Jackson wrote to Peter Brooker, providing the names of three solicitors who practise in probate law. By email dated 5 April 2019, Peter Brooker informed Mr Jackson that he had had a discussion with his brothers. He made reference to being informed during the hearing on 2 April 2019 that a deed had been entered into with Ms Magaletta whereby Ms Magaletta would receive a share of the estate and that the Brooker brothers wished to explore entering into a deed allowing them a share of the estate. Peter Brooker stated that I had suggested that he and his brothers might approach Mr Jackson to discuss the possibility of a similar deed to include them. I make clear that I made no such suggestion, instead stressing the importance of the need to obtain legal advice.
By email dated 8 April 2019, Mr Jackson informed Peter Brooker that his clients would not enter into negotiations with him or his brothers and that they did not have any claim against the deceased’s estate. Mr Jackson again suggested that independent legal advice be sought regarding the prospect of disputing the validity of the document and that an appearance to the proceedings be filed.
The Public Trustee in its letter to Mr Jackson 14 March 2018 acknowledged that the applicants intended to seek to admit the document and advised that to its best knowledge those entitled to benefit on intestacy are the Brooker brothers. I am satisfied that the Brooker brothers have been notified of this application and have had ample opportunity to obtain legal advice regarding the validity of the document and to file an appearance in these proceedings.
Having regard to the evidence before me and noting Ms Magaletta’s written consent to the application, pursuant to s 12(2) of the Wills Act and r 64 of the Probate Rules 2015 (SA), I am satisfied that the document was written, signed and dated by the deceased, that it clearly expresses his testamentary intentions and that he intended it to constitute his will. Accordingly, I make orders in terms of the draft minutes of order marked “A”, initialled by me and dated 16 May 2019 as follows:
THE COURT ORDERS that a document (being the exhibit marked “A” referred to in the affidavit of Maria and Theodore Sagias sworn on 16 August 2018 and filed in this matter) be admitted to probate as the last will and testament of Ian Brooker Drummond late of […] St Clair 5011 retired teacher deceased being the script bearing date the 5th day of June 2016 propounded on behalf of the applicants. There being no executor named therein the applicants are granted permission to apply for letters of administration with the will annexed as the residuary devisees and legatees therein named.
The Probate Registry shall make the document available for collection by the applicants’ solicitor for that purpose.
AND THE COURT ORDERS that the applicants’ costs of the action be taxed or agreed as between solicitor and client and paid out of the estate of the deceased.