IN the ESTATE of JANIS ZAULS: JANIS BRAKOVSKIS (APPLICANT) No. SCPRB 95/54 Judgment No. 5146 Number of Pages - 13 Wills

[1995] SASC 5146

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE AJ

CWDS
Wills, probate and letters of administration - Testamentary instruments - three informal documents - execution - circumstances in which the last document (dated 1989) came to the applicant - unusual circumstances - serious doubts as to the signature - document not admitted.

Private International Law - s25BWills Act 1936 - Domicile Act 1988 - domicile of choice established - court has jurisdiction to make a grant pursuant to 512(2) of the Wills Act - cases discussed - execution according to the tenor - cases discussed.

Rules of Court (Administration and Probate Act) 1984; Wills Act 1936 ssl3, 14, 25b; Domicile Act 1988 ss 4, 9 and 11; William Roberts - Treatise on the Law of Wills and Codicils 3rd Ed (1826) at 183 and Coote's Probate Practice 26th Ed 397. In re Benko, deceased (1968) SASR 243, distinguished. In the Estate of Sutton, deceased (1989) 51 SASR 150; Pepin v Bruyere (1902) l Ch 24; In the Will of Lambe (1972) 2 NSWLR 273; In the Estate of Slavinskyj (1988) 53 SASR 221; In re Kolodnicky, deceased (1981) 27 SASR 347; In the Estate of Graham (1978) 20 SASR 198; Scott v Rhodes (1809) 1 Phil Ecc 12 and 161 ER 898; Salmon and Breese v Hayes (1833) 4 Hagg Ecc 382 and 162 ER 1485; Baumanis v Praulin (1980) 25 SASR 423; In the Estate of Blakely (1983) 32 SASR 473; In the Estate of Williams (1984) 36 SASR 423; In the Goods of Robinson (1867) l LR P and D 384; In the goods of Slinn (1890) 15 PD 156; Williams (1984) 36 SASR 423; In the Goods of Baylis (1865) 1 P and D 21; In the Goods of Fry
(1827) l Hagg Ecc and 162 TR 514; In the Estate of McKenzie (1909) P 305 and In the Estate of Bernadette Agnes Ryan, deceased (1986) 126 LSJS 288, discussed.

HRNG ADELAIDE, 29 June 1995 #DATE 29:6:1995 #ADD 4:9:1995

Solicitors for applicant:    Treloar and Treloar

ORDER
    That the document bearing the date the 18th day of July
    1967 (being the exhibit marked 'JB17' referred to in the
    affidavit of Janis Brakovskis sworn on the 5th day of
    December 1994) be taken to be the last will of Janis Zauls,
    deceased, and that probate of the said will be granted to
    the said Janis Brakovskis, the sole executor according to
    the tenor of the said will.

JUDGE1 LEGOE AJ The applicant by notice pursuant to R 61 of the Rules of Court (Administration and Probate Act) 1984 seeks a grant of probate of one of three documents, namely, first, a piece of paper writing dated 5 January 1989, secondly, a piece of paper writing dated 18 July 1967, and thirdly, a piece of paper writing dated 18 November 1963. All three documents have one signature only, that of the person named Janis Zauls. However, it is questionable whether the signature on the latest document of January 1989 is that of the deceased.

2. The deceased died at his home at Mile End in South Australia. He was last seen alive by his friend, the applicant, on 22 October 1989. The applicant found his dead body in a portable sauna at the rear of the deceased's house on 3 November 1989. He left an estate comprising largely of real estate valued at $169,814.17. The furniture and effects were valued at $200 and cash at the Commonwealth Bank, Torrensville, was $6,269.17, the balance being the value of the house property at Mile End. Liabilities consisted of some $64,760.01 due in council rates which had not been paid, and funeral expenses of $2,752 which has been paid and other liabilities, including memorial expenses, amounting to $5,366.98 which was paid by the applicant.

3. The deceased was born in Latvia on 25 April 1906. He emigrated to Australia in 1947 (paragraph 3 of the applicant's affidavit). He died in South Australia without issue or a parent. His relatives were two brothers, one Voldemars Zauls and Peteris Zauls and one sister, Katrina Liboards, all of whom lived and died in Latvia. His brother Voldemars and his sister Katrina both predeceased the deceased. Peteris survived him but has died since on 2 February 1992. The only persons who are entitled to the estate in the event of an intestacy or a partial intestacy are the estate of Peteris Zauls, a nephew Alvis Zauls, and a niece Intra Kokina who are children of the deceased's brother Voldemars. His brother Peteris left two children, namely, sons Ivar Zauls and Janis Zauls. Both are adults and they inherit the estate of their father Peteris Zauls in equal shares. A photostat copy of the order of the Liepaja City Court in the Republic of Latvia dated 23 November 1993 is exhibited to the affidavit of the applicant substantiating their inheritance (see paragraph 34 of the applicant's affidavit).

THE BACKGROUND FACTS
4. I take the relevant basic facts from the affidavit of the applicant who was a long-time friend of the deceased, and from the affidavits of two others, namely, Edgars Ceplitis and Karlis Treilibs, who were also friends of the deceased still living in South Australia, and visited the deceased from time to time.

5. All the affidavits disclose that the deceased was a physical fitness enthusiast. He had his own gymnasium equipment which he kept at his home at Mile End. Throughout his life he would approach many sporting organisations with ideas on physical fitness. He enjoyed all forms of sport and would take a particular interest in anyone who showed an aptitude for sport and participated regularly in sports which were played by his own nationals, namely, the Latvian basketball team. It was through participation in the Latvian basketball team that the applicant first met the deceased in 1954.

6. The applicant is also of Latvian origin. He migrated to Australia in 1949. He got to know the deceased in 1954 because he, too, was interested in physical fitness and sport and was involved with the Latvian basketball team. The deceased invited the applicant to come to his house on Sunday mornings where the gymnasium equipment was installed. It had been designed and built by the deceased. For a time the applicant visited the deceased three times a week for fitness training. They became close friends. They remained close friends for the rest of the deceased' life.

7. Edgars Ceplitis started playing basketball for a Latvian team in about 1958. He, too, got to know the deceased through this association. At the time Edgars was about 18 years of age. The deceased set a physical fitness program for Edgars. He came to Edgars home to supervise this program. Edgars went to the deceased's gymnasium about three times a week to go through fitness regimes. Edgars eventually reached the State basketball team where he remained for some seven years. He attended the deceased's home for fitness training for about ten years. When Edgars married, he shifted from his home at Plympton and went to live at Magill. He then ceased attending the deceased's home for exercises but still saw him socially at Latvian functions. He also continued to drop in and see him at his home socially. Edgars also met the applicant at the deceased's home when they were both doing fitness training. That was in about 1958.

8. In the early 1960s the deceased made certain alterations to his property at Mile End. The applicant assisted him with the building work. The applicant married in 1961 and moved to live at Klemzig. When the applicant's children were small, the deceased came and built things for them in the yard. Apart from periods when the deceased was living interstate, he visited the applicant and his family every week.

9. All of the affidavits disclose that the deceased was a loner. He was also secretive. The applicant assisted the deceased with his personal affairs. The deceased's English was never good. In 1965 the deceased departed to stay with friends in Victoria for a couple of years. He executed a power of attorney in favour of the applicant. The applicant collected rent from the letting of the deceased's house during this period pursuant to the power of attorney. The applicant paid the rates and taxes and attended to other matters. The applicant continued to do this right up until the deceased's death whenever the deceased was interstate. The regular visits to each other continued when the deceased returned to live in Adelaide. The applicant continued to help the deceased with his personal affairs. In later years the applicant mowed the deceased's lawn every four or five weeks. On one occasion, about a year before the deceased died, the applicant was painting the gutters of his own house. The deceased rode over on his bike. While watching the applicant paint he said to the applicant words to the effect "One day you will get my house". The applicant replied that he already had a house. Nothing further was said.

10. Edgars saw the deceased during the last five years of his life approximately once every three weeks. On one occasion, about six months prior to the deceased's death, the deceased called at Edgars business premises at Stepney. During the course of a conversation the deceased said that he was not feeling particularly well and that the applicant and Edgars would benefit from his death.

11. In December 1988 Edgars and the deceased both attended a world- wide Latvian sports carnival in Sydney. Edgars saw the deceased at the carnival each day. Towards the end of the carnival the deceased informed Edgars that he would not be returning home immediately but was going to visit and stay with friends. The carnival ended on 4 January 1989.

12. When the applicant found the deceased's body in the sauna bath on 3 November 1989, the police attended and an autopsy was carried out. After the autopsy, the police permitted the applicant and Edgars to enter the deceased's premises for the purpose of sorting out his papers. On 8 November 1989 the applicant, his wife and Edgars attended at the deceased's house for this purpose. In the top drawer of a writing desk they found a document dated 1967 and another document dated 1963. They were both informal wills. In late December 1989 the applicant received through the post a letter in the Latvian language enclosing a photocopy of the 1989 informal document. The English translation of the letter to the applicant reads:-
    "Recently I have heard that our Janis has died. Therefore,
    I am sending these letters which he left with me. The
    original copy stays with me.

Antons"

13. The letter bore no surname nor any address. Both documents were sent in an envelope which bore the postmark and date "St Kilda South, Victoria, 20/12/89". The applicant did not know of any person called "Anton" who could have sent the documents so he placed an advertisement in the Latvian language in the Australian Latvian News in February 1990. The English translation of the advertisement reads:-
    "Friend of Janis Zauls
    Anton
    please contact me in the matter of the Testament
    J. Brakovskis, 84 Pine Ave,
    Novar Gardens, SA 5040."

14. On 19 February 1990 the applicant received another letter in the latvian language signed by Anton enclosing the original of the 1989 document. The translation of that letter reads:-
    "Recently I heard that there is a request in the latvian
    newspaper to send Janis Zauls' original Testament. I am
    leaving for vacation for a longer time, therefore, I am
    sending you the Testament."

15. Once again there was no address or surname and the envelope bore the postmark "St Kilda Victoria 16/2/90".

16. The applicant recalled that the deceased had a long-term Latvian friend living in Melbourne by the name of "Anton Britsis". As it was possible that on returning from the carnival in Sydney in January 1989 the deceased may have stayed with this friend, who was also known to be somewhat of a recluse, the applicant made attempts to contact Anton Britsis. He arranged for a search of the electoral rolls in Adelaide and Melbourne. A search was made of the Victorian Motor Vehicles Department. No person of that name was located. He placed a further six advertisements in the Australian Latvian News between June 1990 and January 1991 addressed to "Anton" asking him to contact the applicant. There was no response. The applicant made inquiries from people who knew the deceased both in Adelaide and in Melbourne and from the editor of the Australian Latvian News and the Victorian Transport Authority where it was believed that Anton Britsis worked, but without success.

17. The applicant enlisted the aid of a friend who resides at Kew in Victoria to assist him in his searches. He received a letter from his friend, Mrs Benere, dated 12 March 1991 informing him that she had found a person who lived with the deceased in the same house in Melbourne for a number of years but that he was not named Anton. She contacted two other persons by the name of Anton who knew the deceased but neither were aware of the 1989 document. They did mention to her a third Anton whom they thought had died in 1990. There has never been any identification of a person called Anton who wrote the letters.

THE 1989 DOCUMENT
18. The document dated January 5, 1989 is written in blue ink in the Latvian language on a single foolscap sheet of white paper. It has been signed "J. Zauls" but not witnessed. A translation of this document is:-
    "TESTAMENT January 5, 1989

I, Janis Zauls of 18 Rose Tce, Mile End express my wishes.
    I bequeath 50% of all my goods and property to Janis
    Brakovskis of 84 Pine Ave, Novar Gardens and 50% to Edgars
    Ceplitis of 16 Bounds Ave, Magill.

Money at home and in bank to Janis Brakovskis for various
    expenses.
    J. Zauls" The applicant, who is one of the residuary devisees and legatees named in the will, and who is familiar with the deceased's handwriting does not consider the writing of this document to be that of the deceased. Furthermore, he considers that the signature is "different in some respects from other signatures of the deceased" and is, therefore, not able to identify it as the deceased's signature. However, Edgars Ceplitis, the other residuary devisee and legatee, while agreeing that the will is not in the handwriting of the deceased, considers that the signature is the deceased's signature. There has been no evidence submitted from a handwriting expert.

19. In the Estate of Sutton, deceased (1989) 51 SASR 150 and 153, White J said:-
    "The fact that I asked for a handwriting expert was not
    because I suspected the son of doing these things but
    because of the high standard of proof required by the
    statute to be satisfied that there is no reasonable doubt
    that the will in its present form as altered does in fact
    constitute his testamentary wishes and that the document is
    his will."

20. In Sutton's case, the part of the document which constituted a reinstatement of the son's entitlement was printed and not hand written. After some delay in being provided with "convincing" independent expert evidence that the printing was under the hand of the deceased, White J held that he was satisfied that there could be no reasonable doubt that the deceased intended the document to constitute his will, and he ordered probate of the document.

21. In this matter, the applicant himself is not able to say that the signature is that of the deceased, and both the applicant and another friend of the deceased, Edgars, say that the handwritten document itself, other than the signature, is not that of the deceased. Edgars, however, claims that the signature is the deceased's signature.

THE JURISDICTION OF THE COURT
22. The deceased's domicile of origin was Latvia. In this case, the majority of the estate consists of real estate, namely, the deceased's house property. At common law, a will of immovables (that is, real estate and chattels real) had to comply with the formalities required by the law of the place where the immovables are situated (whatever may have been the domicile at death). This is known as the lex situs: see Pepin v Bruy're (1902) 1 Ch 24. On the other hand, a will of movables (personal property exclusive of chattels real) had to comply with the formalities prescribed by the law of the place where the testator was domiciled at the date of his decease (in the Will of Lambe (1972) 2 NSWLR 273 and in the Estate of Slavinskyj (1988) 53 SASR 221 at 224-225.

23. S13 of the Wills Act 1936 provides that wills made out of the State be admitted if made according to the law of the place where they were made. This section is restricted to personal estate of a deceased. Likewise, s14 relates to wills as regards personal estate when made in the State, whatever may be the domicile of the testator at the time of making it or at the time of his or her death, should be held to be well executed if executed according to the forms required by the laws for the time being in force in the State. But it is the amendment to the Wills Act in s25b that is relevant in this matter, as that section provides:-
    "25b. Notwithstanding any other provision of this Act, a
    will is to be treated as properly executed for all purposes
    if its execution conformed to the internal law in force in
    the place where it was executed, or in the place, at the
    time of its execution or of the testator's death, he or she
    was domiciled or had his or her habitual residence, or in a
    country of which, at either of those times, he or she was a
    national."

24. All documents in this matter are informal as they have not been attested by two witnesses. None of them are formally valid according to the law of the place where each one of them was executed, namely, South Australia. But since 1976 South Australia has made provision for the admission of informal wills to probate: see s12(2) of the Wills Act 1936.

25. The affidavits clearly establish that:-
    1. The deceased came to South Australia in or about 1947.

2. Apart from the period in the 1960s when he was living in
    the State of Victoria, he remained here in South Australia
    from 1947 until the date of his death in October 1989.

3. He lived in his own house property. He built and
    installed the fitness equipment, including the sauna bath
    himself at that property.

4. He left furniture in his house property which he had
    used during his life in South Australia.

5. He had money in a bank account, namely, the Commonwealth
    Bank (Torrensville) amounting to $6,269.17 at the date of
    his death.

6. The 1967 document and the 1963 document were found in
    his house after his death by the applicant. It is
    reasonable to assume that those documents were prepared by
    him here in South Australia.

26. By Act No 81 of 1980 the South Australian Parliament passed an Act to reform the law relating to domicile. S4(4) of that Act was to have effect 'to the exclusion of the application of the laws of any other country relating to a matter dealt with by this Act". S9 of the Domicile Act provides:-
    "The intention that a person must have in order to acquire a
    domicile of choice in a country is the intention to make his
    home indefinitely in that country."

27. S11 provides:-
    "The acquisition of a domicile of choice in place of a
    domicile of origin may be established by evidence that would
    be sufficient to establish to domicile of choice if the
    previous domicile had also been a domicile of choice."

28. Applying the principles of private international law and the provisions of the Domicile Act, particularly ss9 and 11, satisfy me that the deceased acquired a domicile of choice here in South Australia some time after 1947. He never abandoned that domicile of choice, and although he left South Australia to go and live in Victoria for a short period, he returned to South Australia for the remaining years of his life, and he died here in South Australia. For these reasons I would distinguish In re Benko, deceased (1968) SASR 243. There is, therefore, no evidence of any change to his South Australian domicile of choice acquired over many years up to the time of the execution of the document, and in particular for the purpose of determining whether any of the informal documents which should be admitted to probate, his South Australian domicile remained as at his death: see s25b of the Wills Act, the Domicile Act, in the Estate of Slavinsky (supra) and In re Kolodnicky, deceased (1981) 27 SASR 347 at 381.

29. For these reasons, the Court undoubtedly has jurisdiction to hear and determine this motion for the orders that either one of the three informal paper writings be admitted to proof, and for an order relating to the costs of the application.

THE ADMISSIBILITY OF THE 1989 PIECE OF PAPER WRITING TO PROOF
30. When the deceased died in October/November 1989, the Wills Act, s12, which had been amended to come into operation on 29 January 1976, read:-
    "12(1) A will is valid if executed in accordance with this
    Act, notwithstanding the will is otherwise published.

(2) A document purporting to embody the testamentary
    intentions of a deceased person shall, notwithstanding that
    it has not been executed with the formalities required by
    this Act, be deemed to be a will of the deceased person if
    the Supreme Court, upon application for admission of the
    document to probate as the last will of the deceased, is
    satisfied that there can be no reasonable doubt that the
    deceased intended the document to constitute his will."

31. There have been numerous decisions in the Supreme Court of South Australia discussing the application of sub-s(2) above. The importance of those decisions is in relation to the heavy onus of proof which the statute places upon applications pursuant to that sub-section. The paradox which is raised by the section was clearly expressed by Jacobs J in the first reported case on the sub-section in the Estate of Graham (1978) 20 SASR 198 at 201 where His Honour said:-
"The question ... is whether s12(2) can be given its plain
    and natural meaning, or whether it must necessarily be read
down if s8 of the Act, which stands unrepealed, is not to be
emasculated. Put more succinctly, does not s12(2), if given
    its plain and natural meaning, permit proof of informal
    wills in the very circumstances in which such wills might
    have been admitted to probate prior to the enactment of the
Wills Act 1837 (UK), s9 - of which s8 of the Wills Act 1936
    (SA) is an exact replica - thus reviving the very problems
    which the legislation of 1837 was designed to overcome?"

32. Jacobs J went on to disavow any intention to lay down any fundamental principles for the application of the sub-section but rather to decide the particular matter before him on its own particular facts, leaving to later decisions to attract "its own body of case law". That has proved to be the case. Be that as it may, Jacobs J pointed out at page 202 that the sub-section 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 s8 of the Act". His Honour then went on to point out that prior to the UK 1837 Act, the Ecclesiastical Courts, who had the sole jurisdiction of deciding on testaments of personal property, did not require a will of personal estate to be authenticated by attestation, or even by signature of the testator, and reference was made to William Roberts Treatise on the Law of Wills and Codicils (3rd Ed) 1826 at page 183 and the cases of Scott v Rhodes (1809) 1 Phil Ecc 12; 161 ER 898, and Salmon and Breese v Hayes (1833) 4 Hagg Ecc 382; 162 ER 1485, and other earlier authorities referred to by the learned Judge on pages 202-203.

33. On page 204, Jacobs J, after referring to the background of the formal execution sections in the English Act (s9) and the South Australian Act (s8), observed that the Parliament of this State in 1976 again intervened to admit the admission to probate of documents that plainly "constitute the will of the testator". There have only been two or three applications under that sub-section since it was enacted in 1976 where the court has rejected the application on the grounds that the applicant has not satisfied the court that the deceased intended the document to constitute a will. On the other hand there is a vast majority of decisions where the sub-section has been applied. Those few cases where the court has rejected the document have mainly been resolved on the question as to whether the document displayed an testamentary intention.

34. In Baumanis v Praulin (1980) 25 SASR 423, the court was concerned with a case where a patient in hospital gave instructions for the preparation of his will and a typewritten will was prepared accordingly. After reading the document, the patient desired some small alterations to be made, and the document was taken away to be retyped and brought back later that day for execution. But before the document could be retyped and executed the patient died. Mitchell J (as she then was) held, first, that the sub-section had no application to a document, although embodying the testamentary intentions of the deceased person, has not been executed at all by that person. Secondly, Her Honour held that in any event the sub-section would not have been applicable in the instant case because the deceased had not intended the typewritten document submitted for probate to constitute his will, but had intended that the retyped document should so constitute his will. After referring to some remarks of Jacobs J in the Estate of Graham, deceased (supra), Her Honour observed at page 425 that the sub-section seemed to pre-suppose some form of execution:
    "I would think that some execution is necessary, although it
need not be execution in the manner prescribed by s8."

35. Her Honour adopted and agreed with the obiter remarks of Jacobs J in the Estate of Graham, deceased (supra) at page 205, and concluded her judgment at page 426 when she said:
    "There is no evidence here that the deceased intended the
    document which is before me to constitute his will."

36. Her Honour went on to say that the evidence was quite to the contrary and that what the deceased intended to constitute as his will was the engrossed document after it had been retyped. As Her Honour observed at the very end of her reasons:
    "In order to admit the document to probate, the court must
    be satisfied, therefore, that the deceased intended that
    document, not a document in similar form, to be his will."

37. The first ground for the decision in Baumanis v Praulin (supra) has been qualified on different facts since cf In the Estate of Blakely (1983) 32 SASR
473 and In the Estate of Williams (1984) 36 SASR 423.

38. The form of a paper writing does not affect its admissibility to probate, provided that the intention of its author is that it should operate after death. In the Goods of Robinson (1867) 1 LR P and D 384, the Court of Probate was concerned with an agreement for seven years lease which had been duly executed and attested by two witnesses, containing a provision as to the application of the rent in the event of the lessor's death before the expiration of the lease. The lessee being beneficially interested in such application, it was held that as no part of the agreement was revocable, and as it came into operation immediately upon its execution, it was not entitled to probate as a testamentary paper. Sir J.P. Wilde (as he then was) said at page 386:-
    "The question in this case is whether a certain instrument,
    or a portion of it, is testamentary and entitled to probate.
    The instrument is not in a testamentary form ... (His
    Lordship then described the nature of the agreement) ... The
    first difficulty that arises is, that the court is asked to
    deal with a portion only of a document, and declare it to be
    testamentary. ... One of these invariable tests is, whether
    the paper is revocable. Apply that test, and I think this
    application must fail, on the ground that the instrument in
    question is irrevocable in all its parts, not only as to the
    tenancy, but also as to the other provisions which are
    relied on as testamentary. ... Further the agreement was
    intended to take effect immediately upon its execution, and
    its effect was not to be postponed until after the
    grandfather's death. It does not require the death of the
    alleged testator for its consummation; on the contrary, it
    is a living, active instrument, taking effect from the
    moment when the grandson took possession of the land. For
    these reasons, probate of the document must be refused."

39. On the other hand, in the Goods of Slinn (1890) 15 PD 156, probate was granted of a deed poll duly executed and attested by two witnesses but containing no reference to the death of the testatrix, and extrinsic evidence was admitted to show that she intended it to operate as a will. Upon affidavit evidence, it appeared that a few days before the deceased died, she said she wanted to give money in a savings bank to her niece, a Mrs Walker, and that she wanted to do that in the cheapest way. A neighbour borrowed a book and drew a document from a form in the book, adding words to that document "and in the presence of each other" as he said that he looked upon the document more in the light of a will and he thought those words were usually inserted in wills. The President of the Probate Court, Sir James Hannen, was of the opinion that the paper should be admitted to proof. His Lordship said at page 158:-
    "It is clear that extrinsic evidence is admissible for the
    purpose of showing with what intention an ambiguous paper
    has been executed. In addition to the improbability that a
    person would denude himself or herself of all property
    during his or her life, there is in this case, as in one or
    more of the cases which have been referred to, evidence of
    expressions wholly inconsistent with the idea that it was a
    gift out and out."

40. The document that is sought to be admitted to proof on this motion is short and expressive. It states that the deceased intends to express his wishes. Further, it states "I bequeath ...". In my opinion, the document clearly expresses testamentary intentions by the person who wrote the document. Accordingly, I am satisfied that there can be no reasonable doubt that whoever wrote and signed that document intended it to constitute a will.

41. However, the difficulty in this particular matter is who was the author of that document. The circumstances in which the document came into the possession of the applicant, plus the fact that the applicant himself is unable to say that it was the signature of the deceased, his friend Janis Zauls, has left a considerable doubt in my mind as to the origins and authorship of that as one which came from the hand of the deceased. Furthermore, why was it sent to the applicant who did not know an "Antons"? In the absence of any handwritten evidence, which, in my opinion, would not dispel that very considerable doubt, I am quite unable to say that it was the deceased who intended that document to constitute his will. That doubt is not dispelled by the view expressed by the deceased's other friend Edgars, who was of the opinion that although the handwriting in the document itself was not that of the deceased, he thought that the signature was the deceased's signature. The applicant, who had handled the deceased's personal affairs during his lifetime, cannot say that it is the deceased's signature.

42. It is possible to speculate on some alternatives as to how this document could have come into existence through the authorship or dictation of the deceased himself. But the surrounding circumstances are so suspicious that I cannot exclude the various alternatives which point to the fact that the will may have been composed by some other person at a time when the deceased was either dead or certainly was not expressing his intention to dispose of his assets 50% to the applicant and 50% to Edgars. The extrinsic evidence from both the applicant and Edgars as to what the deceased actually said about his estate does not in any way indicate that the distribution would be half and half to each of the two deponents.

43. I come to this conclusion on a different basis from the case of Baumanis v Praulin (supra), but applying the second principle in that case. It arises from the general principles in the cases decided under the sub-section, and is confined to the mandatory requirements of the sub-section that any document containing testamentary intentions must, in the case of a document which has been executed by the deceased, by the proof of the deceased's signature satisfy the court that it was executed in circumstances where there can be no reasonable doubt that it was intended to constitute that deceased's will.

44. For these reasons I would reject the application to admit the 1989 document to probate.

SHOULD THE 1967 DOCUMENT BE ADMITTED TO PROBATE? 45. The 1967 document is written in blue ink in the Latvian language on a single sheet of lined writing paper. The English translation of that document reads:-
    "TESTAMENT

18 Rose Street Mile End

18 July, 1967

My last wish is that after my death all my goods and
    property shall be distributed among my relatives in Latvia.
    I nominate Janis Brakovskis of 3 McCulloch Avenue, Klemzig
    as executor and empower him to sell all my goods and
    property within two years and with that money to send gift
    parcels to my relatives in Latvia.

To my sister Katrina Liboards, of the District of Liepaja,
    43 2 Raina Street, Durbe, I leave 50% of all my property.
    30% of all my property to Peteris Zauls. To my brother
    Voldemars Zauls I leave 20% of all my property. A fee is to
    be paid to Janis Brakovskis for acting as executor.

J. Zauls"

46. In this case the applicant has identified both the writing and the signature to be the handwriting and the signature of the deceased which is well known to him. There are no circumstances here in which a handwriting expert is required such as In re Sutton (supra).

47. It is clear from the authorities and principles which I have discussed above that this document:-
    (a) embodies testamentary intentions; and
    (b) had not been executed with the formalities required by
    the Act.

48. I am further satisfied that this document is one where there can be no reasonable doubt that the deceased intended the same to constitute a will: see Williams (1984) 36 SASR 423 at 433. In support of this finding, I would summarise the relevant facts as:-
    (a) The writing of the 1967 will is in the deceased's
    handwriting.
    (b) The 1967 document was found in the deceased's house in
    the top centre drawer of a writing desk where the deceased
    kept his papers of importance eg the 1963 document, a bank
    passbook and the certificate of title to his property.
    (c) There is no doubt that the document was made animus
    testandi. This may be implied from the nature and content
    of the document itself as well as the extrinsic evidence
    which I have mentioned above.
    (d) There is no evidence or suspicion of any fraud or
    imposition or suspicious circumstances surrounding this
    document.

49. The application seeking admission to proof of this 1967 document in the alternative seeks an order that probate be granted to the applicant as the sole executor named therein. In the original document in the Latvian language the deceased did not use the word "executor" but a foreign word purporting to mean "executor". No expression in a foreign tongue purporting to mean "executor" will be accepted by the Probate Court as constituting an executor: see Tristram and Coote's Probate Practice (26th Ed) 397. Hence although the applicant has not been appointed executor the will, he may still be entitled to take probate of the will provided the will sets out duties to be performed by him sufficient to constitute him an executor according to its tenor. A simple direction, for example, to a person to pay debts, funeral and testamentary expenses is expressly necessary to show that a person has been appointed an executor according to the tenor of the document: see in the Goods of Baylis (1865) 1 P and D 21 and in the Goods of Fry (1827) 1 Hagg Ecc; 162 TR 514. However, in the Estate of McKenzie (1909) P 305, there was no direction to pay debts and Bargrave Deane J held that property left to two named persons, or the survivor of them, "in trust to pay the whole of the income arising from" the estate to her husband during his life and at his death to realise the estate and divide the proceeds equally amongst her four children, was an appointment as executors according to tenor. I would also refer to my own decision in the Estate of Bernadette Agnes Ryan, deceased
(1986) 126 LSJS 288 where I dealt with the legal principles relating to an appointment of an executor according to the tenor of the document. Accordingly, in view of the directions given by the deceased in this document that the applicant sell the deceased's goods and property within two years and with the proceeds "to send gift parcels to my relatives in Latvia" in varying proportions, it must constitute him as an executor according to the tenor of the will. I would add that I am grateful to the Registrar of Probates for his useful report in relation to this and other aspects of this most unusual matter.

50. A deed of family arrangement dated 26 April 1994 has been entered into between the applicant, Edgars Ceplitis, Ivars Zauls, Janis Zauls, Alvis Zauls and Intra Kokina who are the only persons who would have an interest in the estate of the deceased whether under any of the documents or on an intestacy. Pursuant to the terms of this deed, the manner in which the estate is to be distributed has been agreed between the parties. The parties to the agreement are all adults. They have consented to the orders sought for any one of the three alternatives to be admitted to proof. There is, therefore, no opposition to the application.

51. I am of the view that there is sufficient evidence to support the admission to proof of the 1967 document, and I therefore make an order in these terms:-
    That the document bearing the date the 18th day of July
    1967 (being the exhibit marked 'JB17' referred to in the
    affidavit of Janis Brakovskis sworn on the 5th day of
    December 1994) be taken to be the last will of Janis Zauls,
    deceased, and that probate of the said will be granted to
    the said Janis Brakovskis, the sole executor according to
    the tenor of the said will.