In the Estate of GAIL LORRAINE CZERNY (DECEASED) - [2015] SASC 111

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of GAIL LORRAINE CZERNY (DECEASED)
[2015] SASC 111
Judgment of The Honourable Justice Gray
4 August 2015
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR'S INTENTION - HOME MADE WILL
SUCCESSION - MAKING OF A WILL - REVIVAL AND REPUBLICATION - BY CODICIL
SUCCESSION - MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - DESTRUCTION OR MUTILATION, OR STRIKING OUT PORTIONS
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - GENERALLY
Application to admit a will to probate. In July 2013, the deceased executed a formal will drafted by solicitors. Some time later, the deceased indicated that she was unhappy with the terms of the will. In about October 2013, the deceased executed a will kit will. The next day, the deceased indicated that she was unhappy with the terms of the will kit will and wanted to revert to the July 2013 will. The deceased destroyed her copy of the will kit will and arranged for the other copy of the will kit will to be destroyed. In November 2013, shortly before her death, the deceased had discussions about making changes to her will. A search of the deceased’s property following her death identified a folder of personal papers including a photocopy of the July 2013 will and a letter addressed to the deceased’s niece enclosed in an envelope titled “additions to my will”. The letter consisted of writings of a testamentary nature. The parties reached a compromise in the proceedings.
Whether to permit the litigation guardian of the deceased’s grandchildren to enter into a compromise reached between the parties on their behalf.
Held (approving a compromise in the proceeding):
A contested hearing would have potentially put MC and VC in a worse position than the proposed compromise. In all the circumstances, it was appropriate to authorise their litigation guardian to enter into the deed of compromise on their behalf.
Wills Act 1936 (SA) s 12 and s 25; Minors Contracts (Miscellaneous Provisions) Act 1979 (SA) s 6 and s 8; Inheritance (Family Provision) Act 1972 (SA) s 6 and s 8, referred to.
In Estate of Horne (1920) 20 SR (NSW); In Will of Killick [1960] VR 98; Major v Williams (1843) 163 ER 781; In Goods of Hodgkinson [1893] P 339; In re Frame (1984) 116 LSJS 222; Dunn v Dunn (1866) LR 1 P & D 277; Re Jones, decd: Evans v Harries [1976] 2 Ch 200; Eckersley v Platt (1886) LR 1 P & D 281; Re Hampel, deceased [1949] SASR 232, considered.

In the Estate of GAIL LORRAINE CZERNY (DECEASED)
[2015] SASC 111
Testamentary Causes Jurisdiction
GRAY J.

This is an application to admit a will dated 15 July 2013 to probate. On 12 March 2015, I approved a compromise in the proceeding. These are my reasons.
Background
Gail Lorraine Czerny, the deceased, died on 2 December 2013 aged 72 years after committing suicide. The deceased was unmarried and her son, Andre Johann Czerny, had died in a motor vehicle accident on 21 August 2005.
On 15 July 2013, the deceased executed a will drafted by her solicitors which provided, inter alia, for:
-the appointment of her sister, Jillian Diane Langman, as executor;
-the appointment of her niece, Elke Nicola Langman, as substitute executor;
-the gifting of the estate in equal shares to her grandsons, MC and VC, upon their attaining 21 years of age;
-in the event that MC or VC predeceased or died before attaining 21 years of age, the gifting of their shares to their children; and
-in the event that none of MC or VC or their children survive her, the gifting of the estate in equal shares to her nieces, Carly, Zana and Elke Langman.
After making her will, the deceased expressed on a number of occasions a desire to amend her will to provide legacies for Elke Langman, Constantino Kambas, her friend of over 35 years and carer of about eight years, and Anne-Marie Blackstock, the mother of the deceased’s grandchildren and who the deceased hoped would take an active role in managing the estate.
The deceased was admitted to Flinders Hospital in about October 2013. She suffered from asthma and emphysema. The deceased requested that Elke Langman purchase a will kit for her. The deceased then made a will using the will kit which provided for, inter alia:
-the revocation of all previous wills;
-the appointment of Elke Langman as executor;
-the gifting to Mr Kambas of a life interest in the deceased’s property at Victor Harbour and a legacy of $10,000.00; and
-the gifting of a legacy of $10,000 to each of Elke Langman and Ms Blackstock.
The will kit will was signed by the deceased in the presence of her two lifelong friends, Ingaborg and Erhard Pluegge. Elke Langman made a photocopy of the will kit will for the deceased and retained the original.
After executing the will kit will, the deceased spoke to Ms Blackstock and said that she had made a will kit will but was unhappy with its content. She indicated that she wanted to destroy the will kit will and revert to her July 2013 will.
The day after making her will kit will, the deceased told Elke Langman that she had changed her mind about her will. She no longer saw any utility in granting a life interest in the property at Victor Harbour to Mr Kambas as he had told her that he would return to Greece upon her death. She wanted to revert to her July 2013 will. She advised that she had destroyed her copy of the will kit will and asked Elke Langman to do the same, which she did. As a consequence, a copy of the will kit will was not before the Court.
The deceased was discharged from hospital in about November 2013. On about 26 November 2013, she indicated to Elke Langman that she thought it was wrong not to leave Mr Kambas any money and wanted to leave him the sum of $40,000.00. She further advised that she wanted to leave Elke Langman and Ms Blackstock the sum of $5,000.00 each, with the residuary estate to pass to the grandchildren in accordance with her July 2013 will. Elke Langman encouraged the deceased to see her solicitors to arrange for the amendments to be made to her July 2013 will. The deceased indicated that she did not want to do that due to the expense involved and that she would instead write it down. The deceased was aware that Jillian Langman had heart disease and was unwell. On this basis, the deceased told Elke Langman that she wanted her to be an executor. The deceased wanted Elke Langman to manage the legal and financial matters and Ms Blackstock, who lived nearby, to manage the property at Victor Harbour. This was the last occasion on which Elke Langman spoke to the deceased.
On 2 December 2013, Ms Blackstock attended on the deceased’s home. The deceased told Ms Blackstock that she had made provision for Mr Kambas.
The police conducted a search of the deceased’s premises following her death. They located a blue folder containing personal papers, including a photocopy of the June 2013 will and a letter addressed to Elke Langman. The following text was written on the envelope:
Additions to my Will
Executor
To/ Elke Langman
plus
2^nd Executor Anne Marie Blackstock
(if Anni wishes to work with Elke)
Within the envelope was a handwritten letter dated 22 November 2013 which provided:
Dear Elke
In the event of my death, I am needing to put into a writing form the extra matters I wish you to deal with as “Executor” of my Will for me.
Namely I wish after Probate A cheque to be written for Constantinos Kambas [address].
The Amount of Forty Thousand dollars. Of course if Con is no longer alive then that money RETURNS To the Boys [MC] & [VC] re their Trust A/C.
Elke I leave to you $5,000.00 cont “As Executor of the Will”
Anne Marie Blackstock $5000.00 cont Annie did mention working in with you – as also TWO ARE BETTER than one.
At the time of her death, the deceased’s estate consisted of real property in Victor Harbour, cash and household chattels. The value of the estate was approximately $557,000.00.
The Application
On 29 August 2014, Elke Langman filed an application to admit the July 2013 will and the letter and envelope as the last will and testament of the deceased. The application sought a grant of probate to Elke Langman and Ms Blackstock.
The application was supported by affidavits of Elke Langman, Mr Kambas, Mrs Pluegge and Ms Blackstock. I have drawn on this affidavit material in preparing these reasons. Consents of Ms Blackstock, Mr Kambas, Carly Langman, Zana Langman and Jillian Langman were filed with the application, along with a renunciation of Jillian Langman.
On 11 November 2014, the Registrar of Probates made an order appointing Leonie Evans Millard as guardian ad litem for MC and VC and referring the application to me.
Before the matter proceeded to a contested hearing, Ms Blackstock, Mr Kambas and Elke, Jillian, Carly and Zana Langman reached a compromise in the proceeding which relevantly included the following terms:
-Elke, Carly, Zana and Jillian Langman, Mr Kambas and Ms Blackstock would not enter an appearance to propound the will kit will;
-Elke, Carly, Zana and Jillian Langman, Mr Kambas and Ms Blackstock would not lead any evidence in opposition to the July 2013 will and would consent to an order admitting the handwritten envelope and letter to probate;
-legacies of $5,000.00 would be paid to each of Elke Langman and Ms Blackstock;
-a legacy of $40,000.00 would be paid to Mr Kambas;
-the costs of the litigation would be paid by the estate; and
-the estate would otherwise be administered subject to the terms of the July 2013 will.
The agreement was to be accepted in full and final satisfaction of all claims that the parties may have had against the estate, including any claim pursuant to the terms of the Inheritance (Family Provision) Act 1972 (SA).
Ms Millard swore an affidavit in support of an application to obtain approval of the Court to execute the deed of compromise on behalf of MC and VC pursuant to sections 6 and 8 of the Minors Contracts (Miscellaneous Provisions) Act 1979 (SA). In her affidavit, Ms Millard stated that she had regard to the test in In re Frame,[1] namely whether MC and VC would be better off after a trial of the matter than under the terms of the compromise. In her view, the cost of a contested hearing would significantly deplete the estate, which would impact predominantly on the entitlements of MC and VC. Even if MC or VC were successful at trial, once costs were taken into account, their position would likely be worse off than under the terms of the compromise.
[1] In re Frame (1984) 116 LSJS 222.
Consideration
It is to be understood that a contested hearing in this matter would have been complex. A number of legal issues would have required consideration. There does not appear to be any doubt as to the validity of the July 2013 will. However, the Court would have been required to make findings concerning the validity of the will kit will and its terms, notwithstanding the absence of a copy of the document. If the will kit will were valid, its effect would likely have been to revoke the July 2013 will. The Court would have been required to determine whether the destruction of the will kit will was sufficient to amount to revocation. If it was, the Court would have needed to determine whether the destruction of the will kit will was contingent on the revival of the July 2013 will or whether the deceased would have destroyed the will kit will in any event.[2] Consideration would have needed to be given to whether the July 2013 will was revived upon the destruction of the will kill will.[3] If it was not, the Court would have been required to consider whether the making of the handwritten letter and envelope were a will or a codicil which revived one of the will kit will or the July 2013 will. To resolve these matters, the Court would have been required to hear evidence from a number of witnesses on the topic of the deceased’s testamentary intentions at different times. Family provision claims could also be made against the estate. The matter would be fit for counsel and involve a number of parties.
[2] See Re Hampel, deceased [1949] SASR 232; Eckersley v Platt (1886) LR 1 P & D 281; Re Jones, decd: Evans v Harries [1976] 2 Ch 200.
[3] See Wills Act 1936 (SA) sections 12, 25; Dunn v Dunn (1866) LR 1 P & D 277; In Goods of Hodgkinson [1893] P 339; Major v Williams (1843) 163 ER 781; In Estate of Horne (1920) 20 SR (NSW); In Will of Killick [1960] VR 98.
The best outcome for MC and VC, namely the admission to probate of the July 2013 will only, would have entitled them to approximately $50,000.00 more than the proposed compromise. There was a risk that, following a hearing, the July 2013 will would not have been admitted to probate. Even if it was, the costs associated with the litigation would have diminished much of the gains for MC and VC, and potentially put them in a worse position than the proposed compromise. Against this background, I considered it appropriate to authorise Ms Millard to enter into the deed on behalf of MC and VC.
Conclusion
For the foregoing reasons, I gave approval to Ms Millard to enter into the deed of compromise on behalf of MC and VC and approved the terms of the compromise.