In the Estate of JIMMY GEORGE GHOLAM (DECEASED) - [2011] SASC 125

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of JIMMY GEORGE GHOLAM (DECEASED)
[2011] SASC 125
Judgment of The Honourable Justice Gray
4 August 2011
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA - NO REASONABLE DOUBT THAT MAKER INTENDED DOCUMENT AS WILL
Application made pursuant to section 12(2) of the Wills Act 1936 (SA) for an order admitting to probate an informal will - the document was signed by the deceased in the presence of only one witness contrary to the requirements in section 8 of the Wills Act - whether the document expresses the deceased's testamentary intentions - whether the deceased intended the document to constitute his will - whether an order should be made dispensing with the requirement to obtain consent of all persons prejudiced by the application if it is granted.
Held: Application granted - the document did express the deceased's testamentary intentions - the deceased did intend the document to constitute his will - appropriate case to utilise the remedial nature of section 12(2) - the document admitted to probate as a will of the deceased - probate of that document granted to the applicant - order made dispensing with the requirement to obtain consent of all persons prejudiced by the application.
Wills Act 1936 (SA) s 8 and s 12; Probate Rules 2004 (SA) r 64, referred to.
In Re Hallam, Deceased (1991) 162 LSJS 429; In the Estate of Slavinskyj (deceased) (1988) 53 SASR 221; In the Estate of Taylor (Deceased) (1994) 175 LSJS 430; In the Estate of Gall (2008) 260 LSJS 12; In the Estate of TLB (2005) 94 SASR 450; In the Estate of Graham, deceased (1978) 20 SASR 198; In the Estate of Williams (1984) 36 SASR 423; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535; Tsagouris v Bellairs [2010] SASC 147; In the Estate of Maslen [2009] SASC 304, considered.

In the Estate of JIMMY GEORGE GHOLAM (DECEASED)
[2011] SASC 125
Testamentary Causes Jurisdiction
GRAY J:

This is an application pursuant to section 12(2) of the Wills Act 1936 (SA) for an order admitting to probate an informal will of Jimmy George Gholam, the deceased, dated 13 August 2008.
The application is made by Silvana Marie LaPirow, a niece of the deceased. In making the findings recorded in these reasons, I have acted on the affidavit evidence filed in support of the application.
On 28 April 2011, I made the orders annexed to this judgment. These are my reasons for making those orders. At the outset, it is worth noting that in my view this is a paradigm example of the exercise of the dispensing power conferred by section 12(2) of the Wills Act.
The Facts
The deceased died in Adelaide on 30 March 2010. He was predeceased by his brothers, Elias George Gholam and Tewfick George Gholam, and by his half-sister, Marie Rose Caruana. However, he was survived by his siblings’ children – six nieces and nephews. The applicant is the daughter of Tewfick.
The deceased’s estate comprised a house property in South Plympton valued by the Valuer-General at $375,000.00; cash assets of $126,422.22; and, furniture and household effects valued by the executor at $2,000.00.
In August 2008, the deceased spent time visiting his nephew and the son of Tewfick, George Gholam, in Ivanhoe, Victoria. On 13 August 2008, while George was at work, the deceased signed the document sought to be admitted to probate in the presence of Brenda Margaret McMahon. Ms McMahon is George’s mother-in-law. The deceased asked Ms McMahon to witness the document in his presence. The deceased signed his name on the left hand side of the document immediately below the attestation clause in Ms McMahon’s presence. At the deceased’s request, Ms McMahon attested and signed the document in the deceased’s presence by signing the right hand side immediately below the attestation clause.
At the time that the document was signed and witnessed, Ms McMahon had no knowledge of the contents of the document. However, when shown the document at a later date, she recognised the signature below the attestation clause as her own signature and she recognised the signature directly opposite to be that of the deceased.
The applicant and George do not know who prepared the document of 13 August 2008 or whether the deceased’s prepared it himself. The document provides:
THIS IS THE LAST WILL AND TESTAMENT
of me JIMMY GEORGE GHOLAM
of … South Plympton
in the State of South Australia
1.   I revoke all former Wills and Codicils made by me
2.   I appoint my niece Silvana Lipirow of … Kew East Victoria (hereinafter referred t [sic] as my “trustee”) to be the sole executor and trustee of this my Will
3.   I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate to my trustee upon trust to call in or to sell and convert into money all such parts thereof as shall not consist of money with power to postpone such conversion for so long as my trustee shall think fit and pay thereout my funeral and testamentary expenses and debts and all the duties payable in respect of my estate without subsequent adjustment or apportionment of the said duties and stand possessed of the residue upon trust for such of them my brother ELIAS GEORGE GHOLAM, my niece SILVANA LAPIROW and my nephew GEORGE GHOLAM as survive me in equal shares. Should my brother ELIAS GEORGE GHOLAM not survive me then my estate is to be divided equally between my niece SILVANA LAPIROW and my nephew GEORGE GHOLAM
4.   NOTWITHSTANDING the foregoing trust for sale and conversion I SPECIFICALLY EMPOWER my trustee to appropriate any real estate in specie / or personal estate in specie forming portion of my estate at the time of my death in full satisfaction or part satisfaction of a legacy or a share of my residuary estate at the time of my death in full satisfaction or part satisfaction of a legacy or a share of my residuary estate provided that such real estate and / or personal estate has not been specifically devised / or bequeathed under the provisions of this my Will
DATED this 13 day of August 2008
SIGNED by the abovementioned Testator as and for his last Will in the presence of us both being present at the same time who at his request in his presence and in the presence of each other have hereunto subscribed our names as witnesses.
The two signatures earlier described appear at the bottom of the document and “13” and “August” forming part of the date are handwritten.
The effect of the terms of the propounded document is that the deceased’s estate is to be divided equally between Elias, George and the applicant and if Elias dies before the deceased, the deceased’s estate is to be divided equally between George and the applicant.
The deceased spoke to the applicant on a number of occasions regarding his wishes as to the disposition of his property upon his death. The deceased said words to the effect of “leave it to me and I will send you something when I am ready”.
In late 2008, the deceased informed the applicant during a telephone conversation that he had executed a new will and that he would forward the document to her for safe keeping. The deceased advised the applicant that he had named as beneficiaries, his brother Elias, who resided in New York, together with George and the applicant. The deceased said that he did so as a courtesy to Elias as Elias had informed the deceased that he had named the deceased as a beneficiary in his own will. The deceased also informed the applicant and George that if Elias predeceased the deceased, then the whole of the deceased’s estate would be left to the applicant and George and that the deceased had no intention of leaving Elias’s share to his children.
Sometime in 2009, the applicant received by post the document of 13 August 2008 which appeared to the applicant, on its face, to be the deceased’s will. The deceased had written an accompanying note to the applicant asking her to hold the document on his behalf. She has been unable to locate that note. In all probability, it was discarded shortly after receipt. The applicant retained possession of the document of 13 August 2008 until she delivered it to her solicitors.
George last visited the deceased in February 2010. During that visit, the deceased spoke to him about his testamentary wishes. The deceased informed George of his intention to provide for George and the applicant in his will. The deceased suggested to George that when he died, George should redevelop the deceased’s property and build townhouses on the land.
The applicant and George both had a good relationship with the deceased. George visited the deceased in his early years with the applicant at the deceased’s home in South Plympton. During his adult years, George kept in contact with the deceased by telephone. The applicant communicated with the deceased on a regular basis. The deceased sent the applicant a mother’s day card every year because he said that she reminded him of his mother. The deceased had suggested moving to Melbourne to live with the applicant. However, this did not eventuate.
During the deceased’s visit to Melbourne in August 2008, the deceased left $500.00 for the applicant and $500.00 for George to help them pay for the costs of Tewfick’s funeral. The deceased often sent the applicant and George small amounts of money, mainly for the benefit of their children.
It is also to be noted that the applicant conducted thorough searches following the death of the deceased and did not find any subsequent testamentary documents.
The Application
As earlier mentioned, this application is made pursuant to section 12(2) of the Wills Act and seeks an order that the document of 13 August 2008, an informal will, be admitted to probate. It is evident from the facts set out above that the document was signed in Victoria. However, that does not preclude this Court from considering this application as section 12(4) of the Wills Act provides that section 12 of the Act “applies to a document whether it came into existence within or outside” South Australia.
Section 8 of the Wills Act provides:
Subject to this Act, no will is valid unless it is in writing and executed in the following manner:
(a)     it must be signed by the testator or by some other person in the testator's presence and by the testator's direction; and
(b)     it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
(c)     the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)     the witnesses must attest and sign the will (but no form of attestation is necessary); and
(e)     the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).
The document sought to be admitted to probate has been signed by the deceased. The terms of the header and the final paragraph suggest that the deceased intended by his signature to give effect to the document as his will. However, the document offends section 8 of the Wills Act in that there was only one witness present when the document was signed by the deceased and that person was the only witness who attested and signed the document in the presence of the testator.
However, section 12(2) sets out the requirements that need to be met for a document to be admitted to probate notwithstanding that it has not been executed with the formalities required by section 8. It provides a dispensing power. Section 12 is in the following terms:
(1)A will is valid if executed in accordance with this Act, notwithstanding that the will is not otherwise published.
(2)Subject to this Act, if the Court is satisfied that—
(a)a document expresses testamentary intentions of a deceased person; and
(b)the deceased person intended the document to constitute his or her will,
the document will be admitted to probate as a will of the deceased person even though it has not been executed with the formalities required by this Act.
(3)If the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses an intention by a deceased person to revoke a document that might otherwise have been admitted to probate as a will of the deceased person, that document is not to be admitted to probate as a will of the deceased person.
(4)This section applies to a document whether it came into existence within or outside the State.
(5)Rules of Court may authorise the Registrar to exercise the powers of the Court under this section.
[Emphasis added.]
Subsection 2 came into force in the Wills Act in 1976 against the background of a report of the South Australian Law Reform Committee concerning, inter alia, the plight of would be testators who attempted to execute a will that failed for want of satisfying the formal requirements.[1] In In the Estate of TLB, I summarised the legislative history of section 12(2) and the amendments made to the subsection following its introduction.[2] I incorporate that history as part of these reasons.
[1] South Australian Law Reform Committee, Reform of the Law of Intestacy and Wills, Report No 28 (1974).
[2] In the Estate of TLB (2005) 94 SASR 450, [20]-[28].
A review of the section 12(2) reported decisions of this Court discloses that a common reason for the making of section 12(2) applications is that the will or codicil was signed by the deceased in the presence of only one witness and that only one witness attested and signed the will.[3]
[3] See for example, In Re Hallam, Deceased (1991) 162 LSJS 429, 430; In the Estate of Gall (2008) 260 LSJS 12; In the Estate of Maslen [2009] SASC 304; see also, In the Estate of Slavinskyj (deceased) (1988) 53 SASR 221, 232-234 where the testator signed the will in the presence of two witnesses, but only one of the witnesses signed the will; see further, In the Estate of Taylor (Deceased) (1994) 175 LSJS 430 where probate of a codicil to the deceased’s will was granted even though the codicil had not been signed in the presence of two witnesses nor had it been attested by two witnesses.
The remedial nature of section 12(2) is now well recognised. In the first decision to consider section 12(2), Jacobs J in In the Estate of Graham, Deceased noted this remedial nature and observed:[4]
…s 12(2) will no doubt attract its own body of case law, hopefully with a more consistent thread than is discernible in many of the cases under s 8 and its counterpart in other jurisdictions. But if there is one proposition that may be stated with reasonable confidence, it is that s 12(2) 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 s 8 of the Act. This conclusion is, I think, clearly justified upon a review of the legislative history of the relevant sections of the Act, and the cases.
Similarly, in In the Estate of Williams [5] King CJ later observed:[6]
Section 12(2) is a remedial provision designed to avoid failure of the testamentary purpose caused by non-compliance with the formalities required by s 8 arising out of ignorance or inadvertence. There is no reason to suppose that Parliament intended to limit the circumstances in which the remedial provision would operate and no reason for the Court to construe the sub-section other than in accordance with the natural meaning of the words used.
Section 12(2) has been amended since King CJ and Jacob J made the above observations. However, in my view, their observations remain relevant.
[4]    In the Estate of Graham, deceased (1978) 20 SASR 198, 201-202.
[5]    In the Estate of Williams (1984) 36 SASR 423.
[6]    In the Estate of Williams (1984) 36 SASR 423, 425.
It is evident from the terms of section 12(2) that to grant the present application, I must be satisfied that the document sought to be admitted to probate expresses the testamentary intentions of the deceased and that the deceased intended the document to constitute his will.
The terms of the document of 13 August 2008 express testamentary intentions. The testamentary intentions there expressed are consistent with the evidence of both the applicant and George regarding the deceased’s intentions. In particular, the evidence given by the applicant regarding her telephone conversation with the deceased in late 2008 suggests that paragraph three of the document propounded contains the deceased’s testamentary intentions. As mentioned, in that conversation, the deceased informed the applicant that Elias, George and the applicant would be the beneficiaries under his will and that if Elias predeceased the deceased, then the applicant and George would be the sole beneficiaries. Further, George gave evidence that the deceased informed him that both he and the applicant were to benefit under the deceased’s will.
In addition, the deceased’s good relationship with the applicant and George and the explanation set out earlier as to why the deceased wanted to leave Elias a share of his estate, further support a finding that the propounded document expresses the deceased’s testamentary intentions.
I turn now to consider the requirement that the deceased intended the document to constitute his will. The terms of the document, particularly the heading and the final paragraph, provide some evidence to satisfy this requirement. As I observed in Tsagouris v Bellairs citing Re Application of Brown; Estate of Springfield:[7]
… It would be odd to suggest that a document purporting to be a will, wholly handwritten by a deceased person, bearing the signature of that person, was not intended to be the will of that person. …
Of course, in the present proceeding, the propounded document is typed. However, the fact that the document is substantially in the form of a conventional will, purports to be a will and bears the signature of the deceased are strong factors leading to the conclusion that the deceased intended the document to constitute his will.
[7] Tsagouris v Bellairs [2010] SASC 147, [23]; see also, Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, 540 where Powell J observed:
“… that, in cases where the subject document is either wholly written out, or, being on a will form, has been filled in, in the handwriting of the relevant deceased, and in cases where the subject document bears the signature of, or some mark made by, the relevant deceased indicating his intention to adopt it as his own, I would have little difficulty in finding myself satisfied that it was intended by the relevant deceased that the subject document should constitute his will. …”
Further support can be derived from the applicant’s evidence as to her conversation with the deceased in late 2008 when the deceased informed her that he had made a new will and that he would forward it to her for safe keeping. The document which the applicant received in 2009 was the propounded document. The timing of the applicant’s conversation with the deceased suggests that the deceased was referring to the propounded document as his will. The contents of the propounded document reflect the contents of the deceased’s will as they had been described to the applicant over the telephone.
I am of the view that both requirements in section 12(2) of the Wills Act are satisfied and that it is appropriate to order that the document be admitted to probate as a will of the deceased notwithstanding that it has not been executed with the formalities required by section 8 of the Wills Act and that probate be granted to the applicant.
One Further Matter

The applicant sought an order dispensing with the requirement in rule 64 of the Probate Rules 2004 (SA) to obtain the consent of all persons prejudiced by the application if it is granted. Pursuant to rule 64.02, I may dispense with that requirement for the purpose of saving expense. Rule 64.02 provides:
64.02The Registrar may dispose of an application under Rule 64.01 if the Registrar is satisfied that all persons who may be prejudiced by the admission of the document to proof are sui juris and have consented to the application
Provided that if it appears to the Court or the Registrar expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) the Court or the Registrar may dispense with compliance for the purpose of saving expense.
The persons adversely affected by the application are those entitled under a previous will made by the deceased on 1 December 2005. In that will, the deceased appointed the Public Trustee as executor and left his residuary estate to his brothers, Elias and Tewfick. As mentioned, both Elias and Tewfick predeceased the deceased. As there was no substitution clause in the will, had the present application been unsuccessful, there would have been a partial intestacy. There would have been a partial intestacy as the appointment of the Public Trustee itself is a sufficient testamentary act. The persons entitled on a partial intestacy would have been the children of the deceased’s siblings; that is, the children of the deceased’s half-sister, Ms Caruana, the children of Elias and the children of Tewfick.
The applicant and George are the only children of Tewfick and they are not adversely affected by the application as they are beneficiaries under the propounded document. The three children of Ms Caruana are adversely affected by the application and have been served documents relevant to the present application. Although they have not consented to the application, they have not formally opposed it.
The only child of Elias, Nicholas Gholam, could not be contacted. It is thought that he resides in the United States of America. The Registrar appointed a solicitor to represent the next of kin of Elias in the present application. That solicitor emphasised that the estate is not large and that there are insufficient funds to engage a professional investigator to locate Nicholas. She deposed that the likelihood of a notice in a newspaper resulting in contact with Nicholas appears to be remote. The solicitor indicated that she would abide by the decision of the Court.
Having had regard to all of the above circumstances, I am of the view that it is appropriate to dispense with the requirement to obtain consent from all persons prejudiced by the application.
Conclusion
For the above reasons, I granted the application. I made the following orders:
1That the document (being the exhibit marked “A” referred to in the affidavit of the applicant, sworn on the 17^th day of June 2010) be admitted to probate as the last will of the deceased and that probate of the same be granted to the applicant, the sole executor named in the will.
2That the need to obtain the written consents of those persons prejudiced under the application pursuant to Rule 64 of the Probate Rules be dispensed with.
3That the costs of the applicant and of Ms Judith Quick as guardian of the next of kin of Elias George Gholam deceased of and incidental to this application and order be paid out of the estate of the deceased.