In the Estate of HUGHES-ROBERTS (DECEASED) - [2018] SASC 133

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of HUGHES-ROBERTS (DECEASED)
[2018] SASC 133
Judgment of The Honourable Justice Bampton
11 September 2018
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ADMISSIBILITY AND USE OF EXTRINSIC EVIDENCE IN AID OF CONSTRUCTION
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF COURT - SOUTH AUSTRALIA
Application for grant of probate by sole executor named in a will made by deceased in South Australia in 2012 – deceased also made a will in Thailand in 2014 – deceased, who was domiciled in South Australia, died 6 February 2015 leaving assets in Australia and Thailand – deceased’s Thai estate administered in accordance with Thai law – whether deceased intended to revoke the Australian will by the Thai will.
HELD:
1. The deceased did not intend to revoke the Australian will by the Thai will.
2. The deceased intended to make the Thai will in accordance with Thai law to dispose of the Thai estate exclusively.
3. Probate of the Australian will relating to the estate of the deceased situate in the Commonwealth of Australia granted to the applicant.
4. Pursuant to r 5(8) of the Probate Rules 2015 (SA), the disclosure of assets and liabilities required under r 8 of the Probate Rules need not include the value of the Thai estate.
Family Relationships Act 1975 (SA) s 11A; Wills Act 1936 (SA); Probate Rules 2015 (SA) r 5, r 8, referred to.
In the Estate of Crawford (Deceased) (2004) 90 SASR 119, applied.
Re Wayland [1951] 2 All ER 1041; Guardian Trustee and Executors Co of NZ Ltd v Darroch [1973] 2 NZLR 143; Re Barker [1995] 2 VR 439, discussed.

In the Estate of HUGHES-ROBERTS (DECEASED)
[2018] SASC 133
Testamentary Causes Jurisdiction

BAMPTON J: Karen Bone (“Karen”) seeks an order that probate of a will executed by her brother, Gareth Vincent Mark Hughes-Roberts (“Gareth”), on 14 November 2012 be granted to her as the sole executor named in the will.
Gareth died on 6 February 2015 in Thailand having sustained a serious head and brain injury in a motorbike accident. He was a divorced man, aged 53; he did not have a domestic partner as defined by section 11A of the Family Relationships Act 1975 (SA) nor any children when he died.
Gareth’s South Australian death certificate records that he was born in the United Kingdom but had been an Australian resident for 48 years.
At the date of his death Gareth had assets in Australia and Thailand.
Gareth’s Australian assets, totalling $375,816.72 for probate purposes, comprise monies on deposit in Australian banks and bonds held in Australian share registries.
The Thai assets comprised a condominium, monies on deposit in two Thai bank accounts, a car, and a motorcycle (which was destroyed in Gareth’s fatal road accident). The value of the Thai assets is not known but estimated to be $160,000.
Gareth died leaving two wills.
The Australian…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading In the Estate of HUGHES-ROBERTS (DECEASED)

Details

AGLC: In the Estate of HUGHES-ROBERTS (DECEASED) [2018] SASC 133
Case: [2018] SASC 133
Decision Date: 11 September 2018

CaseChat Overview and Summary

The case involved an application for the grant of probate by the sole executor named in a will made by the deceased in South Australia in 2012. The deceased also made a will in Thailand in 2014. The deceased, who was domiciled in South Australia, died on 6 February 2015, leaving assets in Australia and Thailand. The deceased’s Thai estate was administered in accordance with Thai law. The central issue was whether the deceased intended to revoke the Australian will by the Thai will.

The court examined the admissibility and use of extrinsic evidence in aid of construction of the wills. It relied on the case of Re Barker and the principles established in In the Estate of Crawford (Deceased). The court held that statements made by the testator, whether at the time of making the will or thereafter, are admissible as evidence of the testator’s intention. In applying these principles, the court found that the deceased did not intend to revoke the Australian will by the Thai will.

The court was satisfied that the evidence, including the deceased’s statements to Karen and Strat Kostoglou, along with the terms of the Thai will, established that it was the deceased’s intention to make a will in accordance with Thai law to dispose of his Thai assets exclusively. The court concluded that the deceased made the Thai will in the belief and desire that the Australian will remain in effect. Therefore, the deceased did not intend by the Thai will to revoke the Australian will.

The court granted probate of the Australian will to Karen Bone, the sole executor named in the will, limited to the deceased’s estate situate in the Commonwealth of Australia. The court also ordered that the disclosure of assets and liabilities required under the Probate Rules need not include the value of the Thai estate. The costs of the application were to be paid out of the deceased’s estate situate in the Commonwealth of Australia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ouwens Lawyers submit that the costs associated with pursuing the matter with the Thai law firms is prohibitive.The affidavit evidence In her affidavit affirmed on 16 June 2016 and filed in support of her application, Karen deposes that Gareth resided permanently with her and her children at Port Broughton, and that he never expressed any intent to live permanently in Thailand or move away from South Australia. She states that Gareth had a number of friends in Thailand whom he liked to visit on a temporary basis and that he started to obtain temporary visas to spend periods of time in Thailand from 2010. She further states that he was not granted permanent visas to reside in Thailand, that he held an Australian passport, a Medicare card, and a South Australian driver’s licence, and she believed that he was listed on the Australian Electoral Roll. In her second affidavit affirmed on 7 March 2018, Karen deposes that Gareth told her in about January 2014 that he:1.was making a will in Thailand;2.“wanted to distribute the Thai and Australian assets separately in these respective countries”;3.was leaving his Thai assets exclusively to his partner; and4.was leaving the Australian assets to be dealt with in accordance with the terms of the Australian will. Karen says that, because of this discussion with Gareth, she believes that he did not intend to revoke the Australian will and that, consistent with what Gareth told her, the Thai will does not deal with any of the Australian assets. Suwannee Ponmuang Karen deposes that Gareth was not married to, but lived with, Ms Ponmuang in Thailand for two months prior to his death. In addition to being the sole beneficiary of the Thai will, Ms Ponmuang is named as beneficiary of a specific gift of $25,000 under the Australian will (as referred to above Ponmuang is spelt “Phonlamuang” in the Australian will). Karen deposes in her third affidavit affirmed on 29 June 2018 that in April 2016 she contacted Ms Ponmuang by email and by way of the telephone application “Line”, explaining that she was having issues applying for probate of the Australian will. Ms Ponmuang replied by letter dated 16 August 2016 (“KMB1” to Karen’s third affidavit) stating that Gareth told her that:… he wrote a second will here in Thailand in my favour because we were not married. Under Thai Law, I would have no claim to his estate here if there was no will in place to deal with the probate. Thai law states without a will written in Thailand the next of kin is the only beneficiary they would recognise. That is why Gareth wrote one will for me and a separate one for you.Karen I hope this short explanation clears the way for Gareth’s last wishes to be granted. Karen also deposes that, after many attempts, following receipt of the letter dated 16 August 2016, she was able to make further contact with Ms Ponmuang and obtain her new contact details. Karen says she has been unable to ascertain the value of Gareth’s Thai estate other than Ms Ponmuang’s estimation that it was worth $160,000.Affidavit of Gareth’s friend Strat Kostoglou

Decision

Reasons for decision

The decision in in Re Barker[5] was applied in In the Estate of Crawford (Deceased),[6] by Besanko J who held that in determining a testator’s intention in respect of a revocation clause, statements made by a testator, whether made at the time of the making of the will or thereafter, are admissible as evidence of that intention. His Honour found that the testator did not intend to revoke an Australian will by a later English will and made an order granting probate to the sole executor of the Australian will limited to the testator’s estate situate in the Commonwealth of Australia.[7] [5] [1995] 2 VR 439.[6] (2004) 90 SASR 119, 124–5.[7] In the Estate of Crawford (Deceased) (2004) 90 SASR 119, 127.Conclusion A testator’s intention to revoke an earlier will must be discernible. On the whole of the evidence, I do not consider that Gareth intended to revoke the Australian will by the Thai will. I am satisfied that the evidence of what Gareth said to Karen and Mr Kostoglou, together with the terms of the Thai will, establish that it was Gareth’s intention to make a will in accordance with Thai law to dispose of his Thai assets exclusively. I am also satisfied that he made the Thai will in the belief and desire that the Australian will remain in effect. I am satisfied that Gareth did not intend by the Thai will to revoke the Australian will. I am satisfied that he intended Karen to be the executor of the Australian will and Ms Ponmauang to be the executor of the Thai will. Ordinarily, pursuant to r 8 of the Probate Rules 2015 (SA) (“the Probate Rules”), a person who applies for a grant of probate must lodge with the application an affidavit disclosing the assets and liabilities of the deceased at the time of death. Where the deceased is domiciled in Australia, as in this case, that is taken to mean all assets and liabilities, wherever situate. In the circumstances of this matter, I make the following orders:1.Probate of the Australian will dated 14 November 2012 relating to the estate of Gareth Vincent Mark Hughes-Roberts situate in the Commonwealth of Australia be granted to Karen Bone, the sole executor named in the will.2.Pursuant to r 5(8) of the Probate Rules, the disclosure of assets and liabilities required under r 8 of the Probate Rules need not include the value of the Thai estate.3.The costs of this application are to be paid out of the estate of Gareth Vincent Mark Hughes-Roberts situate in the Commonwealth of Australia.Annexure ALAST WILL(TESTAMENT)Mr Gareth Vincent Mark Hughes – Roberts [LAW OFFICE DETAILS]WILLMade at 21/203 Soi Hua Hin88Hua Hin Sub-District, Hua Hin DistrictPrachuapkhirikhan ProvinceDate: 6 Month: March Year: 2014I am Mr Gareth Vincent Mark Hughes-Roberts Age 52 year(s). Nationality of Australian, Passport Number M8979935 Residing at 15/93 Floor 2 Building number 16/93 Building name Hua Hun Condotel & Resort Taweeporn Soi Moo Baan Sa Mor Prong Sub-district Hua Hin, District of Hua Hin, Province of Prachuabkirikhan This WILL had been made for whenever I will be died, these properties will have belonged to people as follows:Clause 1, Condominium number 16/93 Floor 2 Building number 1 Building name Hua Hin Condotel & Resort Taweeporn Condominium Building license number 2/2550 Position of the Land Title Deed number 12178 Sub-district Hua Hin, District of Hua Hin Province of Prachuabkirikhan When I died. It will be for Miss Suwannee Ponmuang Nation of Thai ID Card Number 3 4012 00573 07 3Clause 2, Bank Account Kasikorn Bank Public Company Limited, Branch of Hua Hin Market Village Savings Account, Account Number 485-2-19478-8 Name of Account MR.HUGHES-ROBERTS GARETH VINCENT MARK. When I died. It will be for Miss Suwannee Ponmuang Nation of Thai ID Card Number 3 4012 00573 07 3Clause 3, Bank Account Krungsri Ayudhya Bank Public Company Limited, Branch of Hua Hin Savings Account, Account Number 074-1-50273-2 Name of Account MR.GARETH VINCENT MARK HUGHES-ROBERTS. When I died. It will be for Miss Suwannee Ponmuang Nation of Thai ID Card Number 3 4012 00573 07 3Clause 4 Motorcycle brand Suzuki license no. Khor Jor Jor 716, Province of Prachauapkhirikhan, Black color. When I died. It will be for Miss Suwannee Ponmuang Nation of Thai ID Card Number 3 4012 00573 07 3Clause 5 Car brand Nissan license no. Kor Jor 6316, Province of Prachauapkirikhan, White color. When I died. It will be for Miss Suwannee Ponmuang Nation of Thai ID Card Number 3 4012 00573 07 3Clause 6 All the property beside the above clause 1 to 5 have mentioned in Thailand at the present time or in the future will be for Miss Suwannee Ponmuang Nation of Thai ID Card Number 3 4012 00573 07 3(7) Require Miss Suwannee Ponmuang Nationality of Thai to be my Administrator.This WILL has made in three copies that all same which was kept as follows as:No. 1This WILL has been kept by meNo. 2This WILL has been kept by for Mrs.Ninhom NgamsyNo. 3This WILL has been kept by Mr.Bunjerd YamoathAll of the descriptions in this WILL was made in truth and correct by my intention. I has signed name in the presence of witnesses[Signed] Signed Testator(Mr. Gareth Vincent Mark Hughes-Roberts)Certify that Mr.Gareth Vincent Mark Hughes-Roberts has good commonsense hereunder has signed the names in the presence of witnesses:[Signed]Signed Witness(Mr. Bunjerd Yamoath)[Signed] [Signed]Signed Witness Signed Witness(Miss Somluk Rueangroop) (Miss Thanaporn Bangkunthien)Annexure BIN THE NAME OF HIS MAJESTY THE KINGCertified true copy.(2 pages)The Hua Hin Provincial Court[Signature](Mrs. Sirisat KWANON*)Court of Justice Officer, Professional Level DATE: 28th July 2015For Director of Hua Hin Provincial Court OfficeDate: 28th July 2015CASE: Civil CaseMiss Suwannee PONMUANG The ApplicantBetweenSubject: Requesting to be appointed as an estate executorThe applicant lodged a claim that she had lived as husband and wife with Mr. HUGHES-ROBERTS Gareth Vincent or Mr. Gareth Vincent Mark HUGHES-ROBERTS, ‘the Deceased’ who had passed away and had appointed her as an estate executor. Therefore, the applicant requested a court order to name her as an estate executor.The court has called for a hearing, and there was no one who disagreed.According to the hearing, the court found that the applicant had lived with ‘the Deceased’ as husband and wife without registering a marriage. The Deceased passed away on 6th February 2015 from severe head and brain injury resulting from an accident. The deceased owned assets which included one apartment, two bank accounts, one car and he might have other properties. The inheritance administration was disrupted. The applicant reached her legal age. She is a sane and an able person and has not filed bankruptcy by any other court order. The judge has examined the case and found that the applicant was the stake holder in the inheritance of ‘the Deceased’. She has the rights to apply to be appointed as an estate executor. There was an impediment on the estate administration.The applicant is not a person prohibited by law to be an estate executor. Moreover, there is a will appointing her as the estate executor. The court issued the order to appoint Miss Suwannee PONMUANG, the applicant, to be the estate executor for Mr. HUGHES-ROBERTS Gareth Vincent or Mr. Gareth Vincent Mark HUGHES-ROBERTS, the Deceased, by section 1713 of the Civil and Commercial Code. She has all legal rights and duties.Mrs. Sirikn THITTAPHAKDEE*Mr. Prayad DAENGBANCHONG*

Ratio Decidendi

Legal Principle Established

The Thai will records that one copy is to be kept by Gareth, another by a Mrs Ninhom Ngamsy, and another by Mr Yamoath.The administration of Gareth’s Thai estate Karen’s solicitors, Ouwens Lawyers, in correspondence to the Registrar of Probates dated 2 November 2017, state that they are unable to lodge with the Probate Registry the originals of the Thai will as they have been informed by the Thai Lawyer, Mr Yamoath, who prepared the will, that he still has an original but cannot release it. In response to Ouwens Lawyers’ query about Mrs Ninhom Ngamsy, Mr Yamoath said “For Mrs Ngamsy that you asked me, I saw her name in page 4 of the will that it is the mistake from our clerk who did not to change the name of the administrator for English” [sic]. Ouwens Lawyers also refer to being unable to make contact with the administrator of the Thai will, Ms Ponmuang. Ouwens Lawyers also state that a further affidavit from Mr Yamoath has not been obtained, as the affidavit of Mr Yamoath, affirmed on 15 July 2016 and referred to above, cost in excess of $700 to obtain. Ouwens Lawyers have attempted to obtain information regarding the administration of Gareth’s estate in Thailand by contacting the Thai lawyers, Legal Services Hua Hin, who dealt with the Thai equivalent of an application for a grant of probate. Legal Services Hua Hin have said that their file concerning the application to the Court had been archived and cannot be retrieved. The only information released by Legal Services Hua Hin was a copy of the order of the Hua Hin Provincial Court dated 28 July 2015 (“the Thai Court Order”) and advice that Gareth’s Thai estate has been fully administered. As the Thai Court Order was written in Thai, Ouwens Lawyers arranged for it to be translated. The English translation of the Thai Court Order is Annexure B to these reasons. By reference to the translation of the Thai Court Order it “appoints Miss Suwanee Ponmuang, the applicant, to be the executor for Mr Hughes-Roberts Gareth Vincent or Mr Gareth Vincent Mark Hughes Roberts, the deceased, by section 1713 of the Civil and Commercial Code. She had all legal rights and duties” [sic]. Ouwens Lawyers submit that the costs associated with pursuing the matter with the Thai law firms is prohibitive.The affidavit evidence In her affidavit affirmed on 16 June 2016 and filed in support of her application, Karen deposes that Gareth resided permanently with her and her children at Port Broughton, and that he never expressed any intent to live permanently in Thailand or move away from South Australia. She states that Gareth had a number of friends in Thailand whom he liked to visit on a temporary basis and that he started to obtain temporary visas to spend periods of time in Thailand from 2010. She further states that he was not granted permanent visas to reside in Thailand, that he held an Australian passport, a Medicare card, and a South Australian driver’s licence, and she believed that he was listed on the Australian Electoral Roll.