In the Estate of FREDERICK EDWARD WARD

[2006] SASC 161

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

In the Estate of FREDERICK EDWARD WARD

[2006] SASC 161

Judgment of The Honourable Justice Gray

5 June 2006

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF THE COURT

Application for an order that certain words be omitted from the probate copy of a will - consideration of jurisdiction of court to omit words of a scandalous or offensive nature - consideration of principles to be applied - application dismissed - words not of a scandalous or offensive nature.

Administration and Probate Act 1919 (SA) s 35, referred to.
In the Estate of Adler (1989) 155 LSJS 53; Re N [1950] VLR 139; In the Estate of Hawke [1973] 6 SASR 278; Re O'Reilly [1927] VLR 533; Worcester v Smith [1951] VLR 316, considered.

In the Estate of FREDERICK EDWARD WARD
[2006] SASC 161

Civil

GRAY J

Introduction

1. This is an application by summons for the omission of certain words from the copy of a will to be admitted to probate.

2. Martin Gregory Ward, the applicant, is the son of the deceased, Frederick Edward Ward.  The deceased died on 29 July 2005.  The deceased’s will appoints the deceased’s widow, Pamela Ruth Ward, and his son, Frederick Fraser Ward, to be his executors.  After the division of the assets, the will concludes with the following paragraph:

   I wish it to be known that I have not included Martin’s children in this will because I consider I have given enough assets to provide for them himself: - They are:- From this will approx $225,000, 1 house valued at approx $350,000, over $50,000 in cash, the payment of many fines and house repairs and fines and A/cs and also $170,000 from his sisters estate.  He has refused to accept the gifts of a house and $50,000 from his brother Rick.  Therefore I do not think he should have any further claim on my Estate.

3. The applicant seeks an order that all the words in the penultimate sentence, “He has refused to accept the gifts of a house and $50,000 from his brother Rick”, be omitted from the will. 

4. On 20 October 2005, the executors of the will lodged an application for probate of the deceased’s will.  On 24 October 2005, the applicant entered a caveat.  On 27 October 2005, the caveat was warned by the executors.  Pursuant to the warning, the applicant needed, within 21 days, to enter an appearance identifying the interest he claimed that was contrary to the interest of the executors.  Alternatively, if the applicant did not have a contrary interest but wished to prevent the granting of probate, he needed to serve a summons for directions returnable before the Registrar.  The applicant did not enter an appearance or issue a summons in time.  The caveat ceased to have effect pursuant to Probate Rule 52.10.[1]

   [1] Rule 52.10 of the Probate Rules 2004 provides:

5. On 15 December 2005, the applicant wrote to the Registrar of Probate advising that he did not contest the validity of the will but wished the penultimate sentence of the deceased’s will to be omitted: 

   May I, as I wish to, have it noted and put on the record file of the probate of Dad’s (Frederick Edward Ward) Will that I never did refuse a house and money as stated in the 2^nd last paragraph of Dad’s Will.  This fraud would wrongly inform the world that I am to blame for the plight of my children by refusing what they need.  I do not contest the validity of Dad’s Will overall, that is the 2^nd last sentence excepted and other inaccuracies and reasoning applicable on what is mentioned in the last paragraph of Dad’s Will.  Otherwise I do accept it as a valid will.

6. The Registrar of Probate, in exercising his discretion, permitted the applicant to issue a summons, seeking the omission of words in the second last sentence of the will, an examination of the executors and a declaration of the rights and interests of the parties and person involved.

7. The applicant’s written submissions, made by letter, deny the allegations made by his father in the last paragraph of the will and attempt to address each of the inaccuracies said to exist in the deceased’s will.  The applicant outlined his grievance with the penultimate sentence of the will:

   I suggest that I have a pecuniary interest not to be just told and record like this that I have refused a house and money without reason as to why something so absurd and irrational has been plainly stated on the face of Dad’s Will.  It is a very big penalty for me and my children if we are to be held to having actually refused a house and money by the granting of probate on Dad’s Will as a fully valid instrument, which is published I believe.  I have interest in my reputation is not harmed by facts for which I am not to blame, or partly to blame.

8. The applicant’s application also sought an order that the executors be examined pursuant to section 24 of the Administration and Probate Act 1919 (SA) in relation to the circumstances surrounding the last paragraph of the deceased’s will.

9. On 17 January 2006, solicitors for the executors notified the Registrar that the executors had no objection to the proposed deletion.

10. The summons issued by the applicant was set down for hearing on 21 March 2006.  The applicant failed to attend the hearing.  Besanko J dismissed the summons.  The applicant was notified of the decision and informed that he could apply to have the orders set aside if there was good reason for his non-attendance at the hearing.

11. On 5 April 2006, the applicant wrote to this Court satisfactorily explaining his non-attendance and requesting the order of Besanko J be set aside and the application be heard on its merits.  On 5 May 2006, I set aside the order of Besanko J and the applicant put oral submissions to this Court to support his application for the omission of the sentence from the probate copy of the deceased’s will. 

    Jurisdiction

12. There is no specific legislative provision enabling this Court to exclude words from documents being admitted to probate. However, the inherent jurisdiction of this Court, expressly provided for in section 5 of the Administration and Probate Act, and previous decisions of this Court, provide ample authority for doing so.  A detailed history of this Court’s authority to omit words from the probate copy of the will was discussed by Legoe J in In the Estate of Adler:[2]

    Section 5(1) of the Administration and Probate Act, 1919 as amended sets out the voluntary and contentious jurisdiction and authority of this Court as immediately before the coming into operation of the Act in relation to granting or revoking probate of wills and letters of administration of the effects of deceased persons.  There is no provision in the Act or Rules relating to applications for the exclusion of words contained in documents submitted for admission to probate.  But it has been laid down in previous decisions of this Court that the practice of the Court is founded upon that of the Court of Probate in England immediately after the coming into operation of the Court of Probate Act 1858 (see in Re Kuhl (1933) SASR 394 at 396-397 and In the Estate of Shepherd (1982) 29 SASR 347 at 252-254). In Re N (1950) VLR 139 at 141 Sholl J. said that he found a course of authority in England extending over a century allowing in certain circumstances “excision of words from probate copies of a will”. His Honour went on to observe that the English practice did not rest on any statutory provision but he had no doubt that two previous decisions in the Supreme Court of Victoria namely Re O’Reilly (1927) VLR 533 a decision of Lowe J. and in Re B, deceased (1947) an unreported decision of Gavan Duffy J. were sufficient authority in the State of Victoria upon which to base the acceptance of adoption of the practice of the English Court. His Honour added that having examined the matter himself and after reference to sections in the Supreme Court Act and the Supreme Court Constitution Act of 1852 as well as a section in the Administration and Probate Act of 1928 and Rule 39 of the Victorian Probate Rules it was clear that the Court was enabled “to give directions as to the exclusion of words from probate documents similar to the directions given by the Probate Division of the High Court in England; see the late Mr Vasey’s book on Administration and Probate (2^nd edition) (1921) pp.4 et sequ.; Re Cotter (1907) VLR 78 and Re England (1900) 22 ALT 86.”

    [2] In the Estate of Adler (1989) 155 LSJS 53, 55-57.

    Principles to be applied

13. In Re N,[3] Sholl J excluded words from the probate copy of a will after finding that they were offensive and that they did not constitute a testamentary declaration of the testator’s reasons for excluding the wife or child from the will.  The words omitted were as follows:[4]

    I do not desire the presence of my wife at my funeral or near me when I am dead as she has been unfaithful to me and has borne a child to another man during our married life and through her lies, deceit and false promises got me to make my military allotment to her which she did not deserve due to her immorality.

    [3] Re N [1950] VLR 139.

    [4] Re N [1950] VLR 139 at 139.

14. Sholl J, after a lengthy discussion of the case law, summarised the principles that can aid the court in exercising its jurisdiction to exclude words from the probate copy of the will.  The principles included:[5]

    (1)     Words will not be struck out of the will itself…

    (2)If the words complained of are scandalous and offensive and non-dispository in their nature (in the sense that they dispose of no property), and are not inserted as an alleged reason for making or not making certain dispositive provisions, the Court may exclude them from the probate...

    (3)If the words complained of are scandalous and offensive, and non-dispository in their nature (in the sense that they dispose of no property), but state the testator’s reasons for making or not making certain dispositions, then, at all events, if there is prima facie evidence before the Court of their untruth, the Court may omit them…and probably if they are scandalous and offensive as being libellous of an individual, even without specific evidence of their untruth being placed before the Court, the Court may omit them…

    (4)If the words are merely offensive to the testator’s family in relation to the disposal of the testator’s body and are non-dispositive as regards property, the Court may omit them…

    (5)If the words are blasphemous, and non-dispositive as regards property, there is some authority that they may be omitted…

    …

    (7)If the words may have some dispository effect, or assist as a matter of construction in the interpretation of actual dispository provisions, the Court may decline to expunge them…

    [5] Re N [1950] VLR 139 at 145-147.

15. These principles were adopted by Legoe J in In the Estate of Adler, where His Honour excluded a number of sentences from the probate copy of the will, which he held to be libellous, non-dispositive, gratuitously offensive and spiteful. 

16. Words may not be excluded where they affect the disposition of the will.  In the Estate of Hawke, deceased,[6] the testator’s wife made an application to exclude a portion of the will from probate that she said was of a scandalous nature and embarrassing to her.  The paragraph stated:[7]

    My reason for altering and making a Fresh will is that since making my last will my wife Emma Rosina Hawke left me and went to live with another man at Sefton Park…

    [6] In the Estate of Hawke [1973] 6 SASR 278.

    [7] In the Estate of Hawke [1973] 6 SASR 278 at 279.

17. The rest of the sentence was omitted from the judgment, but Mitchell J stated it concerned the name of the man and the wife’s treatment of that man.  The testator’s wife applied to have the words omitted from probate after the word “me”.  Her Honour decided to omit the words after “Sefton Park” as the testator was entitled to state why he had not left anything to his wife.  The rest of the sentence, however, Her Honour considered to be unnecessary and inappropriate. Her Honour reasoned as follows:[8]

    The basis upon which the court will direct that statements in a will shall be omitted from probate is twofold, namely 1. that the statements are in their nature scandalous and defamatory, and 2. that they are in no way germane to the dispositions made by the will.  The 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 property as he has in his will… 

    In this case it seems to me that the testator was entitled to say why he made no provision for his wife and his reason, as he gave it, was not only that she left him but also that she went to live with another man.  However, the way in which she treated that other man could not have been material to the testator’s disposition of his property.

    [8] In the Estate of Hawke [1973] 6 SASR 278 at 279.

18. Mitchell J referred to In the Will of O’Reilly[9] in support of the proposition that words can be omitted from the probate copy of the will if “they are in no way germane to the dispositions made by the will”.[10]  However, Scholl J in Re N, in discussing O’Reilly, observed:[11]

    [A]ny statement of a testator’s reasons for excluding a particular individual or individuals from his will, or reducing his bounty to him or them, may be said to be logically “germane to the dispositions of the will” (however libellous or defamatory it might be), but that, I think, is not the sense in which the expression “non-dispository” and similar expressions are employed in stating the English rule.

    Scholl J continued:[12]

    [I]t seems to me that absence of testamentary value or effect in the sense of non-dispositiveness in relation to property – i.e., that the words themselves do not effect any disposition – is the test which has been more generally adopted in the English authorities, particularly In the Estate of White and In the Estate of Hall.  I think the effect of the latter case is that any right to give reasons for exclusion is subject to the limitation that if scandalous or offensive they may be omitted. 

    In the Estate of Adler, Legoe J further supported this reasoning.[13]

    [9] Re O’Reilly [1927] VLR 533.

    [10] In the Estate of Hawke [1973] 6 SASR 278 at 279.

    [11] Re N [1950] VLR 139 at 146.

    [12] Re N [1950] VLR 139 at 146.

    [13] In the Estate of Adler (1989) 155 LSJS 53 at 62.

19. It is clear, on the authorities, that this Court may exclude from the probate copy of the will, words of a scandalous, offensive, blasphemous or libellous character.  When determining whether or not such words ought to be omitted, the court has regard to the testator’s right to give reasons for making or not making certain dispositions.  However, as Mitchell J, observed whilst a testator is entitled to explain why he or she disposed of property in a certain manner, he or she is not entitled to use the will as a “vehicle for libel”.[14]  Accordingly, a testator’s reasons will not be disturbed unless they are scandalous or offensive.

    [14] In the Estate of Hawke [1973] 6 SASR 278 at 279.

20. It is important to emphasise that an order excluding the offending words does not expunge the words from the will itself but from probate and the copy of the will kept in the Probate Registry.  Consequently, a court can always look at the original will if further proceedings should arise. 

    Consideration of the Issue

21. The words that the applicant is seeking to exclude from probate provide a reason for the deceased not making certain dispositions.  Therefore, as observed earlier, this Court will only exclude the sentence if it is offensive or scandalous or if satisfied of its untruth.  No evidence was led by the applicant to support his submission that the sentence was not true.  It appears from the applicant’s submissions that his concern is that the sentence is out of context and “paints him in a bad light”.  The applicant, in answer to questions from the Court, provided the following explanation of his concerns:

    His HonourLet me just see if I understand exactly what your concern is.  You say that the second to last sentence in the will is factually incorrect.

    [Applicant]It’s certainly taken out of context.

    His HonourWell that it’s really taken out of context in a way that you say paints you in a bad light.

    [Applicant]Yes.

    His HonourThat in your dialogue and discussion with your family, that will disadvantage you.  Is that the essence of your case?

    [Applicant]Yes, not only adversely affect me amongst my family, but with other families around you know, who get to –

    His HonourAll right, with wider impact all right.

    [Applicant]You know, I don’t know how many would know those words in the will, but not just my family. 

22. The applicant continued with his reasons for why he considered the words offensive:

    Well, it would be offensive to me you know, it would show me as a bad parent, that’s how it would affect my feelings and reputation and indeed I think I said, it might be then held that I have actually refused the house and money which is not the truth either. 

23. However, the applicant was not certain what effect the exclusion of the words from probate would have:

    His HonourMr Ward, what do you – if I was to agree to your application, and exclude that second last sentence from the document as propounded.  What would that –

    [Applicant]I don’t know if it really does help me, I don’t really care that it is.  It might be better then that I can say to them now it’s published, I don’t have to get over that hurdle to further bring up the subject you know, under those sort of matters.

24. After the hearing, the applicant wrote to this Court putting further submissions which he said supported his application to have the words omitted from probate.  The applicant expressed a number of concerns in his letter.  However, his primary concern appears to have been that the words are out of context and bring his reputation into disrepute, leading to the possibility that people will question his ability to provide for his children. 

25. The Macquarie Dictionary meaning of “offensive” is “causing offence or displeasure; irritating; highly annoying … repugnant to the moral sense … pertaining to offence or attack”.  The dictionary meaning of “scandalous” is something that is “disgraceful to reputation; shameful or shocking”.  The standard is judged objectively, according to what the reasonable person would find offensive.[15]

    [15] Worcester v Smith [1951] VLR 316 at 318.

26. A reasonable person would not be offended, nor would a reasonable person find scandalous, the words sought by the applicant to be omitted.  The words are an explanation for the deceased’s decision not to make any further dispositions to the applicant.  There is no evidence to suggest an untruth.  The words in the penultimate sentence of the deceased’s will, namely –

    He has refused to accept the gifts of a house and $50,000 from his brother Rick,

    - should not be excluded from probate.

27. This application is dismissed.

    
    

If the time limited for appearance has expired and the caveator has not entered an appearance the person warning may file an affidavit in the Form No.10 showing that the warning was duly served, that no appearance has been entered and that the person warning has not received a summons for directions under Rule 52.09, and thereupon the caveat shall cease to have effect.