In the Estate of FRANCES JANE O'GRADY (DECEASED) - [2017] SASC 150

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of FRANCES JANE O'GRADY (DECEASED)
[2017] SASC 150
Judgment of The Honourable Justice Stanley
19 October 2017
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - CHANGING, TRANSPOSING, OMITTING OR SUPPLYING WORDS - OMITTING WORDS
Frances Jane O’Grady died on 26 February 2016 leaving her last formal will dated 27 August 2015. This is an application seeking rectification of that will under rule 67 of the Probate Rules 2015 (SA). The will appointed the plaintiff as the executor of the deceased estate. The plaintiff is the granddaughter of the deceased. Prior to any grant of probate, the plaintiff seeks to have several words deleted from clause 7 of the will.
Clause 7 reads, “I declare that I have made no provision for my grandson Adam Bernard Vincent Zito as he stole a number of valuable items including jewellery from me and I have not spoken to him since that date and we no longer have a meaningful relationship.” The plaintiff seeks to have the following words omitted to avoid embarrassment to the grandson, "he stole a number of valuable items including jewellery from me and I have not spoken to him since that date and”.
Whether the language of clause 7 serves a testamentary purpose and whether the words ought to be deleted by way of rectification.
Whether this case is distinguishable from other instances where the court has refused to omit words, due to the libellous content of the proposed deleted words, or the allegations of criminal dishonestly.
Held, per Stanley J:
1. Despite the words in question being both offensive and libellous, the words do not represent an attempt by the deceased to use her will as a vehicle for libel, but rather are used to explain the terms of her will (at [17], [20]).
2. The words the subject of the application for omission should not be excluded (at [22]).
3. Application dismissed (at [22]).
Probate Rules 2015 (SA) r 67; Administration and Probate Act 1919 (SA) s 5; Probate Rules 2004 (SA) r 66; Criminal Law Consolidation Act 1935 (SA) s 257(1), referred to.
In the Estate of Betty Jean Hoffman (deceased) [2016] SASC 110; In the Estate of Enjakovic (deceased) (2008) 100 SASR 486; In the Estate of Hall (deceased) [1943] 2 All ER 159; In the Estate of Brummitt (deceased) [2011] SASC 116, applied.
In the Will of JP (deceased) (1922) 39 WN (NSW) 228, discussed.
In the Estate of Roche (dec’d) [2012] SASC 219; Searles v Scarlett [1892] S QB 56; John Fairfax & Sons Ltd v Hook & Anor (1983) 72 FLR 190, considered.

In the Estate of FRANCES JANE O'GRADY (DECEASED)
[2017] SASC 150
STANLEY J.
Introduction

This is an application to omit words from the copy of a will to be admitted to probate.
By summons dated 15 September 2016 the plaintiff seeks an order for the omission of words of an offensive or libellous nature from the copy of the will which is to be admitted to probate for Frances Jane O’Grady (the deceased).
The deceased died on 26 February 2016 and she had executed her last will and testament on 27 August 2015 (the will).
The will
By her will she appointed the plaintiff as her executor and made the following provision:
·a pecuniary legacy of $230,000.00 to five named grandchildren, a cousin and a sister-in-law as survive and attain 21 years of age as tenants in common in equal shares absolutely;
·a gift of two bicentennial prints by Charles Billich to a named grandson; and
·the residue to be divided equally between the Salvation Army South Australia Property Trust and the Children’s Medical Research Institute ABN 47 002 684 737.
Relevantly, clause 7 of the will provides:
7.I DECLARE that I have made no provision for my grandson ADAM BERNARD VINCENT ZITO as he stole a number of valuable items including jewellery from me and I have not spoken to him since that date and we no longer have a meaningful relationship.
Pursuant to rule 67 of the Probate Rules 2015 (SA) (the Probate Rules), the plaintiff seeks an order that the words “he stole a number of valuable items including jewellery from me and I have not spoken to him since that date and” be omitted from clause 7 of the deceased’s will.
In In the Estate of Betty Jean Hoffman (deceased),[1] I set out the relevant law and principles in relation to rule 67 of the Probate Rules in circumstances where an applicant seeks the omission of words of an offensive or libellous nature from a grant of probate.
[1] [2016] SASC 110.
The power to omit words from a will
The power to omit a word or words from a will is found in the inherent power of this Court to protect its processes from abuse. The inherent jurisdiction extends to probate as expressly provided for in s 5 of the Administration and Probate Act 1919 (SA). The relevant process needing protection from abuse is the process for the proving of wills.[2] Rule 67 of the Probate Rules provides:
[2]    In the Estate of Enjakovic (dec’d) [2008] SASC 72, (2008) 100 SASR 486.
67Application for omission of words of an offensive or libellous nature from grant
(1)     An application for an order for the omission of words of an offensive or libellous nature from the copy of the will to be admitted to proof may be made without notice to any other party to the Registrar by summons in Form 34.
(2)     The application must be supported by an affidavit (to which the will must be exhibited) setting out the grounds of the application, together with the consents in writing to the application given by all persons who may be prejudiced by the order.
Provided that if a person who is prejudiced by the application is not under a disability or cannot be ascertained or found, or if the Registrar is satisfied that in the circumstances it is just and expedient to do so, the Registrar may dispense with such consent.
The rule refers to the omission of words of “an offensive or libellous nature”. At common law words such as “scandalous” or “defamatory” have been used. In In the Estate of Brummitt (Deceased)[3] Gray J considered that the predecessor rule[4] reflected the inherent jurisdiction of the Court to protect its processes from being abused and to prevent unnecessary harm being caused to the subject or subjects of the words.
[3] [2011] SASC 116 at [7].
[4] Rule 66 Probate Rules 2004 (SA).
The exercise of the Court’s jurisdiction proceeds from the proposition that a will ought to be admitted to probate in the words of the will itself.[5] Conventionally, two criteria must be met in order to enliven the jurisdiction to omit a word or words from a will. First, the word or words must not have any dispositive effect or any other testamentary purpose. Second, the word or words must be capable of being characterised as scandalous, offensive, defamatory or blasphemous. Satisfaction of those criteria does not necessarily result in the omission of the word or words, it merely enlivens the Court’s jurisdiction. The power to omit a word or words from a will is to be exercised on a case-by-case basis and with great care.[6] Underlying the exercise of the discretionary power is the proposition that a testator is not entitled to use his will as a vehicle for libel but has a right to explain why he has disposed of his estate as he has in his will.[7]
[5]    In the Estate of Hall (deceased) [1943] 2 All ER 159 at 160.
[6]    In the Will of JP (deceased) (1922) 39 WN (NSW) 228 at 229.
[7]    In the Estate of Hall (deceased) [1943] 2 All ER 159 at 160.
The principles applicable to the exercise of the Court’s power to omit words from a will were summarised by Gray J in In the Estate of Brummitt (Deceased)[8] as follows:[9]
[8] [2011] SASC 116.
[9] [2011] SASC 116 at [32].
·Prima facie, probate ought to issue in the words of the will itself;
·A testator not only has the right to dispose of his or her property, but to provide reasons for so disposing. This right, however, is not unqualified and a testator is not to use his or her will as a vehicle for defamation, scandal or offense, where those words have no testamentary effect. The Court is to be mindful to protect the Court’s processes from abuse and the potential hurt to people named in the instrument;
·The power to omit words from a will is an extension of the Court’s inherent power to prevent abuse of court processes, but only extends to the omission from the probate copy of the will, not the will itself;
·Generally, two criteria are to be met before the power to omit words is enlivened: the words have no dispositive effect and the words must be capable of being characterised as scandalous, offensive, defamatory or blasphemous. Whether or not these two criteria are met is to be assessed according to fact on a case by case basis;
·The exercise of the power, once enlivened, is a matter of discretion for the court to determine on a case by case basis;
·It is well established that the power is to be exercised with great care and that only words which fully fall within the categories of the second criterion are open to be omitted. Interference with a testator’s testamentary affairs is to be kept to a minimum, consistent with protecting the Court’s processes from abuse;
·The onus is on those who seek to have probate granted with the words omitted to establish, on the balance of probabilities, that the words should not be admitted in the probate copy of the will. The attitude of beneficiaries and executors to the application is a material consideration;
·Generally, insofar as words provide or support a cause or reason for testamentary dispositions, they ought not to be omitted from the will; and
·Where the words have dispositive effect or assist in the interpretation of the will, the court may decline to omit them.
[Citations omitted.]
Meaning of the terms “offensive” and “libellous”
The meaning of the terms “offensive” and “libellous” are well settled. In In the Estate of Enjakovic (dec’d)[10] Gray J addressed the meaning of the word “offensive” as follows:[11]
The meaning of the word “offensive” has most commonly been considered in the context of offences of “offensive behaviour”. In this context, in Densley v Mertin, Napier CJ observed that the term had the following meaning:
… “giving, or of a nature to give offence; displeasing; annoying; insulting,” and it seems to me that the word is used objectively, ie it includes any conduct which is calculated to annoy or give offence to other people, even if that result is not actually intended.
In Worcester v Smith, O’Bryan J observed:
Behaviour, to be “offensive” … must, in my opinion, be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.
The Macquarie Dictionary meaning of “offensive” is “causing offence or displeasure; irritating; highly annoying … repugnant to moral sense … pertaining to offence or attack”. In my view the above definitions would apply equally to an understanding of the meaning of “offensive” in the context of the within proceedings.
[Citations omitted.]
[10] [2008] SASC 72, (2008) 100 SASR 486.
[11] [2008] SASC 72 at [19], (2008) 100 SASR 486 at 493 – 494.
“Libellous” is the adjective of the verb “to libel”. To libel a person is to make a defamatory statement of a person in a durable form which is visible. Frequently this is in writing. A statement is defamatory if it tends “to lower the plaintiff in the estimation of right thinking members of society generally” or “if it is likely to cause ordinary decent folk in the community, taken in general, to think less of him”.[12]
[12] John Fairfax & Sons Ltd v Hook & Anor (1983) 72 FLR 190 at 193.
Publication by an executor, in the absence of malice, is privileged, being an accurate republication of a register kept pursuant to statute.[13] A will published with a grant of probate is a “public document” for the purposes of the statutory defence in s 26 of the Defamation Act 2005 (SA).
[13] Searles v Scarlett [1892] S QB 56; In the Estate of Enjakovic (dec’d) [2008] SASC 72 at [21], (2008) 100 SASR 486 at 494.
Criminal defamation?
The plaintiff submits that when probate is granted to the deceased’s will it becomes a public document and the grant represents the publication of the will. He submits that as a result the Registrar of Probates is at risk of contravening s 257(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) which provides:
(1) A person who, without lawful excuse, publishes defamatory matter concerning another living person—
(a) knowing the matter to be false or being recklessly indifferent as to whether the matter is true or false; and
(b) intending to cause serious harm, or being recklessly indifferent as to whether the publication of the defamatory matter will cause serious harm, to a person (whether the person defamed or not),
is guilty of an offence.
Maximum penalty: Imprisonment for 3 years.
I do not accept that submission. To the extent that the Registrar could be considered to publish the will by the grant of probate, he does so with a lawful excuse within the meaning of s 257 of the CLCA.
Consideration
The plaintiff submits that the authorities indicate that caution is to be taken when considering whether words should be omitted from the copy of the will to be admitted to proof. She submits that this case can be distinguished from cases such as In the Estate of Enjakovic[14] and In The Estate of Roche[15] where the court declined to omit offensive words from a will because the words sought to be omitted in this case go as far as an actual allegation of criminal dishonesty.
[14] [2008] SASC 72, (2008) 100 SASR 486.
[15] [2012] SASC 219.
I agree that the words used by the testatrix are both offensive and libellous. To state in writing that a person, not only had stolen valuable items including jewellery, but had stolen those items from his grandmother, is to lower the reputation of that person in the estimation of right thinking members of society generally and would cause ordinary decent members of the community to think less of him. It is a direct attack on the person’s moral character.
I am also satisfied that the words sought to be omitted from clause 7 of the will do not have any dispositive effect. However, to my mind, the words do have a clear testamentary purpose.
The deceased named and made provision for five of her other grandchildren and expressly excluded Adam Zito as a named beneficiary. Therefore, by the inclusion of clause 7, the deceased has sought to explain her reason for excluding him as a beneficiary.
Although the words do make a direct accusation of criminal dishonesty, they are also directly relevant to the explanation of the deceased’s testamentary dispositions. The words provide a very powerful explanation for the exclusion of her grandson from her testamentary bounty. For these reason I do not consider the words to represent an attempt by the deceased to use her will as vehicle for libel but rather are used to explain the terms of her will. As was said in In the Will of JP (Deceased)[16] by Owen AJ:[17]
I doubt whether the Court would be justified in removing from the probate the strongest reason, or one of the strongest reasons which influenced the testator in declining to make a disposition in favour of a particular son.
[16] (1922) 39 WN (NSW) 228.
[17] (1922) 39 WN (NSW) 228 at 229.
The plaintiff submits that this Court in In the Estate of Enjakovic (dec’d)[18] and In the Estate of Roche (dec’d)[19] declined to omit words from the wills in each case, which contained allegations of reprehensible conduct but which stopped short of directly asserting dishonest dealings. In Enjakovic Gray J noted that an allegation of theft, which imports a notion of criminality, bears a more serious adverse connotation than dishonesty. The plaintiff contends that this case is distinguishable from Enjakovic and Roche because the words sought to be omitted make direct allegations of criminal conduct. Accordingly, she submits the opposite result should follow and the Court should omit the impugned words. While the premise of the plaintiff’s submission can be accepted, the conclusion for which she contends does not necessarily follow. The submission exposes a paradox. On the one hand, the seriousness of the allegation in this case must occasion the exercise of caution by the Court in its evaluation of the application to omit words which constitute an allegation of criminal conduct. On the other hand, it is the very seriousness of the allegation which justifies the exclusion of the subject of the words from the deceased’s bounty. Notwithstanding the seriousness of the allegation I am not persuaded the Court should exclude the words which explain the basis upon which the deceased has exercised her testamentary disposition. To do so would considerably weaken the deceased’s explanation for why she has disposed of her estate in the way in which she did. The omission of the words would conceal rather than reveal the deceased’s testamentary purpose.
[18] [2008] SASC 72, (2008) 100 SASR 486.
[19] [2012] SASC 219.
Conclusion
For the above reasons, the words that are the subject of the application for omission should not be excluded from the copy of the will to be admitted to proof. I would dismiss the application.