In the Estate of FRANK WILLIAM DAVIS (DECEASED) - [2011] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of FRANK WILLIAM DAVIS (DECEASED)
[2011] SASC 143
Judgment of The Honourable Justice Gray
2 September 2011
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA - OTHER CASES
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - OTHER WILLS, CODICILS OR WRITINGS
Application for order pursuant to section 12(2) of the Wills Act 1936 (SA) that an informal will of 2005 be admitted to probate - where the 2005 document refers to a 2002 document - whether either or both documents satisfy the requirements of section 12(2) that the document contain testamentary intentions of the deceased and that the deceased intended the document to constitute his will - whether the 2005 document impliedly revokes, in part or in whole, the 2002 document.
Held: Satisfied that the deceased intended the 2002 document to constitute his will and the 2005 document to be a codicil to his 2002 will - direct that both documents be admitted to probate.
Wills Act 1936 (SA) s 8, s 12(2), s 12(3) and s 22, referred to.
Re Hennekam (2009) 104 SASR 289; Tsagouris v Bellairs [2010] SASC 147; In the Estate of Stewart Arthur Handfield [2010] SASC 22; In the Estate of Gall [2008] SASC 349; In the Estate of Schwarzkopff (2006) 94 SASR 465; In the Estate of Torr (2005) 91 SASR 17; In the Estate of Williams (1984) 36 SASR 423; In the Estate of Graham deceased (1978) 20 SASR 198; IW v City of Perth (1997) 191 CLR 1; In the Estate of Kroemer (1988) 143 LSJS 160; In the Estate of EC Zimmerman (Unreported, Supreme Court of South Australia, Legoe J, 23 December 1992); In the Estate of Taylor deceased (1994) 175 LSJS 430; In the Estate of Gerard deceased (2007) 251 LSJS 176; Re Buckley, deceased [1952] VLR 107; Estate of Collins [2000] NSWSC 407; Re Resch’s Will Trusts [1969] 1 AC 514; In the Goods of Petchell (1874) 3 P & D 153; Dempsey v Lawson (1877) 2 PD 98, considered.

In the Estate of FRANK WILLIAM DAVIS (DECEASED)
[2011] SASC 143
Testamentary Causes Jurisdiction
GRAY J.

This is an application made pursuant to section 12(2) of the Wills Act 1936 (SA) for an order admitting an informal will of 2005 to probate.
Introduction
The applicant, Barry Leonard Tugwell, is a nephew of the deceased, Frank William Davis. Jane Penny, a friend of the deceased, initially opposed but now consents to the application.
The within proceeding calls on this Court to consider the effect of two documents testamentary in nature. The first document is headed with the words, “the Will”, the second, later document is a letter from the deceased to his accountant purporting, as contended by the applicant, to revoke the first document and redistribute the assets of the deceased.
The issues for determination require the Court to consider section 12 of the Wills Act. The documents have not been executed with the formalities required by the Wills Act. Neither document is witnessed. In that event, section 12(2) provides that the documents may be admitted to probate if the Court is satisfied that the documents contain testamentary intentions of the deceased and that the deceased intended the documents to constitute his will. The definition section of the Act defines “will” to include “codicil”. It is also necessary to consider section 12(3), which concerns the revocation of a document that might have been a will, but the revocation is expressed in a document that was not executed with the formalities required by the Act.
On the hearing of this application, I received affidavit evidence[1] and heard oral evidence from Ms Penny. There was no challenge to the substance of her evidence. In making findings, I have acted on the affidavit and oral evidence.
[1] Affidavit of Barry Leonard Tugwell dated 14 December 2006; Affidavit of Roger David Brauer dated 15 February 2007; Affidavit of Barry Leonard Tugwell dated 7 March 2007; Affidavit of Roger David Brauer dated 19 November 2007; Affidavit of Mary Helen Homann dated 19 November 2007; Affidavit of Barry Leonard Tugwell dated 20 November 2007; Affidavit of Thelma Eileen Shannon dated 20 November 2007; Affidavit of Roger David Brauer dated 25 February 2009; Affidavit of Joan Metcalfe dated 15 March 2009; Affidavit of Lindi Gay Bowen-Needs dated 25 March 2009; Affidavit of David Barnfield dated 2 April 2008; Affidavit of David Barnfield dated 10 May 2010; Affidavit of David Barnfield dated 13 May 2010.
Background
The deceased died on 27 April 2006 at the Royal Adelaide Hospital, aged 77 years. He died a bachelor without children or a surviving parent. He was a retired farmer. He was eccentric and lived at times a hermit-like existence.
The deceased was the youngest of six; having five sisters. He was survived by his sisters Thelma Eileen Shannon, Marjorie Constance Davis and Dorothy Jean Hayton. Marjorie, however, died on 21 March 2008 and Dorothy, who is the mother of the applicant, died on 26 September 2006. Two sisters, Irene Alice Williamson and Gwenneth Lucy Battersby, predeceased the deceased. The deceased has 13 nieces and nephews.
The deceased had engaged chartered accountants Brauer Lian Ho & Chong for some years and had dealings with Roger Brauer and Mary Homann of that firm.
A letter dated 19 August 1999 was received by Mr Brauer from the deceased in which the deceased asked for a quote for the charge for “settling a will”. The letter indicated that the will might be left at the Stirling branch of Westpac which also held the title deeds to the deceased’s property at Crafers. Mr Brauer replied with a quote as requested.
Over two and a half years later, a letter dated 21 June 2002 from the deceased to Mr Brauer indicated that an envelope had been left at Westpac Stirling branch containing a “written will” and asking Mr Brauer to “have the job of sorting and settling it”. The letter refers to the “quote” of 1999.
A further letter dated 15 July 2002 from the deceased to Mr Brauer indicated that there was a “fuss” about the bank holding “The Will” and a blue envelope enclosing “The Will” was included with the letter. Handwritten on a piece of lined paper, dated 21 June 2002, is the document headed with the words “The Will”, and is what I shall refer to as the 2002 document:
The Will,
The property at [street address] Crafers per rates of reference number [reference numbers] to be given to free of debt, Jane Penny, who is daughter of Robert Blow who is resident part proprietor of Blow Brothers Nursery [street address] Stirling.
Money from term deposits and investments with banks to nieces and nephews of which there might be ~~nine~~[2] ten. One of them is Kevin Battersby of Hope Valley, postage stamp shop proprietor).
Included with them is Lindi Bowen [NSW address] and Joan Metcalf [telephone number].
The nieces and nephews have $22,000 each and $12000 to Lindi and $12,000 to Joan the two previously mentioned.
Any money not accounted for goes with property.
F.W. Davis
[2] Strikethrough in original, with the word “ten” appearing above the strikethrough.
Ms Penny worked at the nursery which the deceased frequented. Ms Penny would sometimes deliver plants to the deceased at his home. Over time their mutual interest in plants led them to become friends.
Lindi Gay Bowen-Needs is the granddaughter of Dorothy – one of the sisters of the deceased. Joan Metcalfe deposed that she was known to the deceased and helped when he was unable to fend for himself by doing the shopping and for example, helping with the lawns. Her actual relation to the deceased is unclear, however it appears she was at some time a carer for him.
Handwritten on a piece of lined paper and dated 7 February 2005 is a further letter from the deceased to Mr Brauer which made reference to the 2002 document and to the estate. I shall refer to this as the 2005 document:
R Brauer,
Dear Sir,
A Will left with you several months ago, would you please cancel.
Have the estate divided equally between nieces and nephews who might be identified, by sister Thelma at Lockleys S.A. in phone directory as T.E. Shannon.
The items referred to is investments term deposits with banks Westpac, Bank SA. COM: at Stirling.
Yours Faithfully
F.W. Davis
It is in these circumstances that an application has been made for the 2005 document to be admitted to probate as the will of the deceased pursuant to section 12(2) of the Wills Act.
On about 24 April 2006, the applicant visited the deceased at the Royal Adelaide Hospital. Lorraine Smithers from the office of Public Trustee was present to assist in the preparation of any documents that the deceased may have wished to have prepared. The applicant asked the deceased if he wished to make a will. The deceased replied with words to the effect: “I have a Will already…It’s with Brauer”.
The applicant has recounted that after discussions between family members it had fallen on him to take on the responsibility of winding up the estate of the deceased. As at 7 March 2007, the estimated value of the deceased’s estate was approximately $950,000.00, comprising: a property at Crafers with an estimated value of $660,000.00 and money with banks approximating $290,000.00.
It is to be noted that on an intestacy, the deceased’s estate would be divided into five:[3] the two children of Irene Williamson receiving one-fifth equally; the three children of Gwenneth Battersby sharing one-fifth between them; the estate of Dorothy Hayton receiving one fifth; Thelma Davis taking one fifth; and the estate of Marjorie Davis taking one fifth. Further, it is to be noted that Mr Brauer has renounced any right, title or interest he may have had to probate and execution of any will and to letters of administration of the estate of the deceased.
[3] In accordance with the distribution provisions of the Inheritance (Family Provision) Act 1972 (SA).
None of the deceased’s siblings or the beneficiaries of their respective estates or the deceased’s nieces and nephews oppose the within application. However, as earlier mentioned, Ms Penny initially but no longer opposes the application. It is to be recalled that the application was made for the admission to probate of the 2005 document alone, as it is the applicant’s position that the 2005 document effectively revokes the 2002 document.
The Legislative Scheme
Before addressing the issues in any detail, it is appropriate to consider the relevant provisions of the Wills Act.
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.[4] 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: [5]
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:[6]
[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.
[4]    See Re Hennekam (2009) 104 SASR 289, [27], [32]. See also Tsagouris v Bellairs [2010] SASC 147; In the Estate of Stewart Arthur Handfield [2010] SASC 22, [14]; In the Estate of Gall [2008] SASC 349, [14]-[15]; In the Estate of Schwarzkopff (2006) 94 SASR 465, [30]-31]; In the Estate of Torr (2005) 91 SASR 17, [32]; In the Estate of Williams (1984) 36 SASR 423.
[5]    In the Estate of Graham deceased (1978) 20 SASR 198, 202. The “ample and beneficial operation” of section 12 has been confirmed in subsequent cases: see for example, In the Estate of Williams (1984) 36 SASR 423, 425 (King CJ), 433 (Legoe J); In the Estate of Torr (2005) 91 SASR 17, [32] (Besanko J); In the Estate of Schwarzkopff (2006) 94 SASR 465, [30]-[31].
[6]    IW v City of Perth (1997) 191 CLR 1, applied in In the Estate of Gall [2008] SASC 349, [15]-[16].
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).[7]
[7] In the Estate of Kroemer (1988) 143 LSJS 160; In the Estate of EC Zimmerman (Unreported, Supreme Court of South Australia, Legoe J, 23 December 1992); In the Estate of Taylor deceased (1994) 175 LSJS 430; In the Estate of Gerard deceased (2007) 251 LSJS 176; In the Estate of Gall [2008] SASC 349, [17].
As demonstrated by the earlier extracts, the 2002 document is in writing, is entitled “The Will”, purports to dispose of property to named persons and is signed and dated by the deceased. It is, however, not witnessed and accordingly does not comply with the formal requirements of section 8. The 2005 document it also in writing. It purports to dispose of property to named persons. It is dated and signed by the deceased. It is not witnessed. It falls short of the requirements of section 8 of the Wills Act. Neither document purports to appoint an executor.
Section 22 of the Wills Act deals with revocation of wills:
Subject to section 12(3), no will or codicil or any part of a will or codicil is revoked otherwise than—
(a)     by marriage or termination of marriage as provided by this Act; or
(b)     by another will or codicil executed in the manner required by this Act; or
(c)     by some writing declaring an intention to revoke the will or codicil or the part of the will or codicil and executed in the manner in which a will is required by this Act to be executed; or
(d)     by the burning, tearing or otherwise destroying the will or codicil or the part of the will or codicil by the testator or by some person in the testator's presence and by the testator's direction with the intention of revoking it.
[Emphasis added.]
Section 12(3) of the Wills Act provides:
If the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses an intention by a deceased person to revoke a document that might otherwise have been admitted to probate as a will of the deceased person, that document is not to be admitted to probate as a will of the deceased person.
The language of both sections 22 and 12(3) of the Wills Act make it clear that a testator must have an intention to revoke a will. The older authorities refer to this intention to animus revocandi. The intention may be express or implied. An example of an express revocation is a clause to that effect in a subsequent will. In the absence of an express revocation clause, it will be a question of construction as to whether a later document impliedly revokes an earlier document, by, for example, containing clauses inconsistent with a previous will.
When considering two documents testamentary in nature and the question of the effect of the later document on the former, Young J in Estate of Collins, drawing on a number of authorities, made the following observations:[8]
Generally, where a later will deals with the whole of the testator’s property, impliedly all prior testamentary instruments are revoked: Cadell v Wilcocks [1898] P 21. Here, the informal document deals with the deceased’s entire estate.
However, where a later testamentary instrument which does not contain a revocation clause is partially or totally inconsistent with a former testamentary instrument, then the former will is considered to be revoked in whole or in part. The mere fact of making a subsequent testamentary document does not work a total revocation of the prior one unless expressly stated or the two are incapable of standing together: Lemage v Goodban (1865) 1 P & D 57; Re Gilbert (1905) 22 WN (NSW) 186. If possible, the court will attempt to construe wills not containing revocation clauses as standing together in which case the later will prevail over the earlier one to the extent of any inconsistency: In the Goods of Budd (1862) 3 Sw & Tr 196; (1862) 164 ER 1249; In the Goods of Petchell (1874) 3 P & D 153; Re Christie (1883) 9 VLR (IP & M) 46; Re Resch’s Will Trusts [1969] 1 AC 514. Generally, a prior testamentary instrument will be disturbed only to the extent needed to give effect to the later inconsistent document.
The question is really one question of the testator’s intention - can it be discerned whether the testator intended the informal document to completely revoke his former will, or merely to amend (partially revoke) it?
[8] Estate of Collins [2000] NSWSC 407, [5]-[7].
The observations in In Re Resch’s Trusts in the Privy Council, are pertinent:[9]
…As a general principle, their Lordships need do no more than restate their adherence to the "very clear and strong rule" that it is incumbent upon those who contend that a gift in one testamentary instrument is not to take effect by reason of some subsequent instrument to show that the intention to revoke is as clear and free from doubt as the original intention to give (see Follett v. Pettman per Kay J. referring to the opinion of Tindal C.J. on behalf of the judges in Doe d. Hearle v. Hicks….
[9] Re Resch’s Will Trusts [1969] 1 AC 514, 547.

In In the Goods of Petchell,[10] Sir James Hannen determined that the two documents propounded ought to be admitted to probate as together containing the will of the deceased. In reaching this conclusion, he observed:[11]
…Where there are two instruments, the later of which in date, purporting to be the last will, does not contain words of absolute revocation, it is a question of construction whether or not it revokes the former. Of course if it be wholly inconsistent with the earlier will there is no difficulty, but where some of the provisions of the former may be made to stand with those of the latter questions of difficulty arise. On this matter there has been a difference in the tendency of opinion amongst the civilians and other jurists who have had to consider it. I must say that if I could have dealt with the question uninfluenced by the later decisions, I should have been disposed to adopt the views of Sir H. J. Fust in Plenty v. West, that in order that two wills should be entitled to be admitted to probate there must be something in the second indicating an intention on the part of the testator that the two instruments should be construed conjointly. But the later decisions are otherwise, and the principle of them must be taken to be correctly expressed in Williams' Exors. 7th ed. 162. " The mere fact of making a subsequent testamentary paper does not work a total revocation of a prior one, unless the latter expressly or in effect revoke the former or the two be incapable of standing together; for though it be a maxim, as Swinburne says above, that no man can die with two testaments, yet any number of instruments, whatever be their relative date, or in whatever form they may be, so as they be all clearly testamentary, may be admitted to probate, as together containing the last will of the deceased. And if a subsequent testamentary paper be partly inconsistent with one of an earlier date, then such latter instrument will revoke the former as to those parts only where they are inconsistent." The law thus laid down was acted upon by my predecessor, Lord Penzance, in Lemage v. Goodban….
[Emphasis added.]
[10] In the Goods of Petchell (1874) 3 P & D 153.
[11] In the Goods of Petchell (1874) 3 P & D 153, 156.
Later, Sir James Hannen had cause again to consider these principles, and in Dempsey v Lawson, observed:[12]
…I assent to the principle expressed in the passage referred to, and I have had occasion to act upon it in the case of In the Goods of Petchell, but it becomes necessary on the present occasion to consider more minutely the nature and extent of the inconsistency of a later testamentary instrument, which will have the effect of revoking an earlier will. In this investigation the Court is necessarily called upon to put a construction upon the language of the instrument in question. The intention of the testator conveyed in that language has to be ascertained by reference to the facts in connection with which it was used; but in seeking for the true meaning of the testator, the substance and not the form of the instrument must be regarded. If it can be collected from the words of the testator in the later instrument that it was his intention to dispose of his property in a different manner to that in which he disposed of it by the earlier document, the earlier document will be revoked, and this, although in some particulars the later will does not completely cover the whole subject-matter of the earlier. …
Sir James Hannen went on to make the following observations, which I consider apposite:[13]
…Even if the second instrument contains a general revocatory clause, that is not conclusive, and the Court will, notwithstanding, consider whether it was the intention of the testator to revoke a bequest contained in a previous will: Denny v. Barton. On the other hand, though there be no express revocatory clause, the question is whether the intention of the testator, to be collected from the instrument, was that the dispositions of the earlier will should remain in whole or in part operative. Dr. Lushington, in giving the judgment of the Privy Council in Henfrey v. Henfrey, says, "the question is total revocation or partial revocation." And on this question Sir J. Nicoll says, in Methuen v. Methuen,"In the Court of Probate the whole question is one of intention; the animus testandi and the animus revocandi are completely open to investigation in this Court." In the present case I am of opinion that the intention of the testatrix, to be collected from the dispositions of the two wills, is that the second should stand alone, and be in complete substitution for the first, and that it contains all the testamentary dispositions which she intended at that time to constitute her last will and testament, and consequently that it does by implication revoke the whole of the will of 1858….
[Emphasis added.]
[12] Dempsey v Lawson (1877) 2 PD 98, 105-107.
[13] Dempsey v Lawson (1877) 2 PD 98, 107.
In In the Estate of Gall[14] the deceased executed a formal will in 2004, and in 2006, executed a codicil also complying with the required formalities of the Wills Act. In 2007, the deceased executed a second codicil. However, it was not dated and was attested to by only one witness. The first codicil provided for legacies to the deceased’s two grandchildren. The second codicil, in addition to the legacies to the two grandchildren, provided for a legacy of $50,000.00 to another person. An application was brought seeking, inter alia, a declaration that the later codicil be taken to have impliedly revoked the earlier codicil. After considering the decision of Sholl J in Re Buckley, deceased,[15] I observed:[16]
In my view, the reasoning in Re Buckley is apposite to the present case. In particular, the fact that, save for clause 4C, the wording of the 2006 and 2007 codicils is identical, both confirm the will dated 11 August 2004 and both were drawn by the same firm of solicitors supports a conclusion that the 2007 codicil impliedly revoked the 2006 codicil.
Since Re Buckley, cases have suggested that in circumstances where the question of implied revocation may arise, the central issue is one of construing the testator’s intention, and that oral and extrinsic evidence is admissible for this purpose.[17]
In the present case, the Court has the advantage of extrinsic affidavit evidence from the solicitor who witnessed the 2006 codicil and drew up the 2007 codicil. In her affidavit of 28 May 2008, the solicitor refers to taking instructions for a “new codicil”. Annexed as an exhibit to the solicitor’s further affidavit of 3 April 2008 is a letter from the solicitor to the deceased which refers to a telephone attendance “in regards to changes to your Codicil” and which encloses two versions of the codicil (one of which was the 2007 codicil) for the deceased’s perusal. Although the solicitor does not directly depose to taking instructions to draw up a codicil which would revoke or supersede the 2006 codicil, the above facts strongly support this inference.
In conclusion, for the above reasons, I am satisfied that 2007 codicil impliedly revokes the 2006 codicil in accordance with subsections 22(b) and 12(3) of the Wills Act. In reaching this conclusion I do not consider that it is material that both codicils are referred to as a “first” codicil.
[14] In the Estate of Gall [2008] SASC 349.
[15] Re Buckley, deceased [1952] VLR 107.
[16] In the Estate of Gall [2008] SASC 349, [28]-[31].
[17] Payten v Perpetual Trustee Co Ltd [2005] NSWSC 345, 100 (Austin J) citing In the Estate of Brian [1974] 2 NSWLR 231 and Re Fairhurst [1976] 1 NZLR 51.
It is to be observed that Scholl J in Buckley cited with approval the earlier referred to observations of Sir James Hannen.
The Application
Counsel for the applicant accepted that the 2002 document, at the time it was written and delivered to Mr Brauer in 2002, satisfied the requirements of section 12(2); that is, it expressed testamentary intentions of the deceased, and that at that time he intended it to constitute his will. This is an appropriate concession. The document describes itself as a will and generally identifies and distributes the deceased’s assets. In my view, it is clear from the face of the document that it contains testamentary intentions and that the deceased intended it to constitute his will. The correspondence with Mr Brauer supports a finding that the 2002 document was intended by the deceased to be his will.
Accordingly, the principal issue before this Court for determination involves a consideration of the effect of the 2005 document. First, as to whether that document itself satisfies the requirements of section 12(2) of the Wills Act as a document containing testamentary intentions and as one which the deceased intended to constitute his will or a codicil to his will. Second, assuming that both documents are capable of being admitted to probate pursuant to section 12(2), what effect the 2005 document has on the 2002 document, and more precisely, whether for the purposes of section 12(3) of the Wills Act, the 2005 document impliedly revokes the 2002 document in part or in whole.
It was the applicant’s primary position that the 2005 document is an informal will capable of being propounded under section 12(2) and that it has the effect of revoking the 2002 document. The applicant accepted, however, that it was open to this Court to consider the 2005 document as a testamentary instrument – a codicil to the 2002 document – allowing for the admission to probate of both documents. The applicant also accepted that the position could be that the 2005 document effects a revocation for the purposes of section 12(3), but that it does not contain the requisite intentions to constitute a will; ultimately resulting in an intestacy.
Despite almost two and a half years passing between the execution of the two documents, the 2005 document makes reference to a will left “several months ago”. As there is no evidence of any other wills, despite diligent attempts to find such documents, I infer that this is a reference to the 2002 document.
It was contended that by the use of the words “would you please cancel”, the 2005 document expressed the intention to revoke required by section 12(3). It was said that the natural meaning of “cancel” is to annul or delete, ultimately amounting to a revocation.
The applicant submitted that the direction in the 2005 document is to the 2002 document in its entirety. The difficulty confronting this submission is that the final sentence of the 2005 document makes specific reference to “[t]he items referred to is investments term deposits with banks …”. The implication that follows is that the deceased intended only part of the 2002 document to be “cancelled”. I consider this to be the clear intent of the 2005 document and as a consequence, reject the above referred to submission.
Ms Penny in evidence recounted her ongoing friendship with the deceased in the period of 15 years preceding his death. He visited the nursery and Ms Penny would on occasions assist him in regard to the delivery of plants. They had a common interest and love of plants. During examination it became apparent that the deceased also had contact with Ms Penny’s children who would on occasions accompany her when she made deliveries of plants. She explained during examination that although the deceased had never discussed with her directly what he would do with his property on his death, he did say that “he would see that I was looked after”. Although Ms Penny could not remember the occasions when this was said, it was a statement repeated on a few occasions.
There was no suggestion that there had been any breakdown in the relationship between Ms Penny and the deceased, or that there was any other reason as to why he would wish to exclude her from benefiting from his estate. To the contrary, Ms Penny’s evidence established that he had on a number of occasions spoken of “looking after her”.
In my view it is of significance that the 2002 document in making a bequest in favour of nieces and nephews, linked those bequests to “money from terms deposits and investments with banks”. When regard is had to the 2005 document, it is evident that “have the estate divided equally between nieces and nephews” is a reference to that part of his estate comprising “investment term deposits with banks”. The 2005 document makes no reference at all to the Crafers property.
Having regard to all the circumstances, I am satisfied that the deceased intended the 2002 document to constitute his will, the 2005 document to constitute a codicil to his will and the 2005 document to vary the terms of his 2002 bequest of his term deposits and investments with banks. In other words, the deceased intended the 2005 document to be a codicil to his 2002 testamentary dispositions. As a consequence I would direct that both the 2002 and 2005 documents be admitted to probate.
I would hear the parties as to the terms of the order to give effect to these reasons.