In the Estate of HUGHES-ROBERTS (DECEASED)
[2018] SASC 133
•11 September 2018
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 133Testamentary 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 will
Gareth made a will using a pre-printed will form titled “Australian Legal Will Kit” on 14 November 2012 at Port Broughton in South Australia (“the Australian will”). The will kit pack or booklet that the pre-printed form was attached to, and would have been taken from, cannot be located.
The Australian will appears to have been executed in accordance with the Wills Act 1936 (SA) (“the Wills Act”). It contains a revocation clause, appoints Karen “executor of my estate in full”, and makes the following specific gifts:
1.$30,000 to Joshua James Roy Bone of Lot 741, Casey Street, Port Broughton;
2.$30,000 to Phoebe Caitlin Rose Bone of Lot 741, Casey Street, Port Broughton;
3.$5,000 to Sean Douglas Hughes-Roberts of 18 King Street, Perth, Tasmania;
4.$5,000 to Kayla Anne Hughes-Roberts of 18 King Street, Perth, Tasmania;
5.$10,000 to David John Spencer Hughes-Roberts, c/o Karen Bone;
6.$5,000 to Troy Jacob Sferco, c/o Karen Bone;
7.$5,000 to Susan Marie Bolton of 3 Roseberry Way, Tring Hertfordshire;
8.$25,000 to Alinlat Doketanyong of 34/3 M.5 T.Sriprachan A.Sriprachan, Suphan Buri, Thailand; and
9.$25,000 to Suwannee Phonlamuang Ban Khogmaingam of 59 M.7 Nong Makhea subdistrict, Phon District, Khon Kaen Province, Thailand.
Karen is the residual beneficiary of the estate.
The Australian will was witnessed by Leah Townsend and Kerrie Rann, both of Port Broughton.
Leah Townsend deposes in her affidavit sworn 7 August 2017 that she was one of the subscribing witnesses to the Australian will. Ms Townsend says that Gareth did not disclose the terms of the will to her nor did he discuss any details. She deposes that Gareth said that he had prepared the document using a will kit and required two witnesses to cause the will to become binding. Gareth signed the will in her presence and in the presence of Kerrie Rann.
The Thai will
On or about 6 March 2014, Gareth made a will in Thailand (“the Thai will”).
The Thai will was prepared by Bunjerd Yamoath, a Thai lawyer employed by the Phongladda Law Office. Mr Yamoath deposes in an affidavit affirmed on 15 July 2016 that he has experience in drafting wills and is competent in the English language. Mr Yamoath states that “In order for a will to be valid under Thai law it must be in writing, dated at the time of making the will and signed by the testator before at least two witnesses present at the same time who shall then and there sign their names certifying the signature of the testator”. He further states that he drafted the will for Gareth in both Thai and English in accordance with Gareth’s instructions. Mr Yamoath says that at the time of making the Thai will Gareth had capacity, that he read through the will, appeared to understand and approve its contents, and executed it in accordance with Thai law. Each paragraph of the Thai will is written in Thai, with the subsequent paragraph an English translation of the preceding Thai paragraph. The English paragraphs of the Thai will are set out as Annexure A to these reasons.
The Thai will does not contain a general revocation clause and purports only to deal with property in Thailand.
“Miss Suwannee Ponmuang” is named as the sole beneficiary of the Thai will. I note that the Australian will provides for a specific gift to “Suwannee Phonlamuang”. I also note that in correspondence exhibited to Karen’s affidavit affirmed 29 June 2018, the name of the person referred to by Karen as “Suwanee Phonlamuang” is written in Thai script. Karen deposes that this person is also known as “Dang”. Having compared the name in the correspondence exhibited to the affidavit with the name recorded as the sole beneficiary and administrator in the Thai will, I am satisfied that Suwannee Phonlamuang, Suwanee Phonlamuang, Suwannee Ponmuang, and Dang are all references to the same person, whom I shall refer to as Ms Ponmuang.
Clause 1 of the Thai will gifts to Ms Ponmuang the condominium, clauses 2 and 3 gift monies held on deposit in two Thai bank accounts, clause 4 gifts the motorcycle and clause 5 the car.
Clause 6 provides “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” (emphasis added). Clause 7 of the Thai will provides as follows “Require Miss Suwannee Ponmuang Nationality of Thai to be my Administrator”.
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.
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; and
4.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
In his affidavit affirmed on 27 June 2018, Strat Kostoglou deposes that he was a friend of Gareth’s for about 20 years. Mr Kostoglou states that in or about the beginning of 2014, Gareth informed him that “… he had a will in Australia, and that he was intending on making a will in Thailand as well in relation to his Thai assets”.
Consideration
I am satisfied that when executed the Australian will was a valid will in accordance with the Wills Act. I am satisfied that Gareth was domiciled in Australia at the time of his execution of the Australian and Thai wills and at his death.
Karen is entitled to have the Australian will admitted to probate unless it was revoked by the Thai will. Section 25B of the Wills Act provides that a will executed in another country, where at the time of its execution, or of the testator’s death, the testator was domiciled or had their habitual residence, is valid if the formalities required for execution prescribed by the other country are complied with. The Thai will, according to the evidence before me, appears to be a valid will made in accordance with Thai law and s 8 of the Wills Act.
The Australian will is not expressed to apply only to assets in a particular place or exclude assets in a particular place. There is no evidence before me to indicate that Gareth had assets in Thailand at the time he made the Australian will. The only reference to Thailand in the Australian will is in the specific bequests to Alinlat Doketangong and Suwanee Phonlamuang, whose addresses are recorded in the Australian will as Suphan Buri and Khon Kaen, respectively. Suphran Buri and Khon Kaen are provinces of Thailand.
At the time that he made the Thai will, Gareth knew he had Australian assets and the Australian will. Significantly, the Thai will makes no reference to the Australian assets. My reading of clause 6 of the Thai will is that Ms Ponmauang is the residuary beneficiary of Gareth’s Thai estate. Clause 6 provides: “All the property beside the above clause 1 to 5 have mentioned in Thailand at the present time or in the future...”. The Thai will only deals with Gareth’s Thai assets.
Case law
In his text Principles of Australian Succession Law, Mackie provides a useful discussion of cases concerning the question of whether a later will was intended to revoke an earlier will. In each of the cases considered, the later will contained a revocation clause:[1]
In Re Wayland,[2] a British subject who was domiciled in England made a will in Belgium, in accordance with Belgian law, that dealt only with property owned by him in that country. Some years later he made a will that clearly pointed out that he was disposing of only his English property. This will contained a general revocation clause. It was held that the clause only applied to prior wills affecting the property in England. The testator has no intention of revoking his Belgian will, which was unaffected by the clause. A similar result was reached in Guardian Trust and Executors Co of NZ Ltd v Darroch[3] where a will was executed in New Zealand, the testator later moving to Australia making another will containing a general revocation clause. The court held that the clause should be read as applying only to the disposition of assets in Australia and therefore the New Zealand will, dealing with assets in that country, remained unrevoked. This case was followed by the Victorian Supreme Court in Re Barker.[4] There the testator was born in Europe in 1914, came to Australia in 1951 and returned to Europe in 1969. She died in Austria in 1992 leaving an estate that comprised personal property in both Victoria and Europe and real property in Victoria. She made a will in May 1985 that was prepared by her solicitor in Australia. In the same year she made another will in Germany, the later German will containing a revocation clause to the effect that it invalidated any previous written wills. The court admitted extrinsic evidence, including statements made to her Australian solicitor, and inferred from that evidence that the testator had no intention when making the German will to revoke the Australian will and that each will was intended to be self contained and to have its own sphere of influence. The Australian will was intended to deal only with Australian assets and the German will only with German assets. Probate was accordingly granted of the Australian will.
(Footnotes in original)
[1] Ken Mackie, Principles of Australian Succession Law (Lexis Nexis Butterworths, 2007) at 118-119.
[2] [1951] 2 All ER 1041.
[3] [1973] 2 NZLR 143.
[4] [1995] 2 VR 439.
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 A
LAST WILL
(TESTAMENT)
Mr Gareth Vincent Mark Hughes – Roberts
[LAW OFFICE DETAILS]
WILL
Made at 21/203 Soi Hua Hin88
Hua Hin Sub-District, Hua Hin DistrictPrachuapkhirikhan Province
Date: 6 Month: March Year: 2014
I 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 3
Clause 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 3
Clause 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 3
Clause 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 3
Clause 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 3
Clause 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 me
No. 2This WILL has been kept by for Mrs.Ninhom Ngamsy
No. 3This WILL has been kept by Mr.Bunjerd Yamoath
All 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 B
IN THE NAME OF HIS MAJESTY THE KING
Certified true copy.(2 pages)
The Hua Hin Provincial Court
[Signature]
(Mrs. Sirisat KWANON*)
Court of Justice Officer, Professional Level DATE: 28th July 2015
For Director of Hua Hin Provincial Court Office
Date: 28th July 2015
CASE: Civil Case
Miss Suwannee PONMUANG The Applicant
Between
Subject: Requesting to be appointed as an estate executor
The 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*
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