In the Estate of JOHN HENRY MARSHALL
[2015] SASC 61
•17 April 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of JOHN HENRY MARSHALL
[2015] SASC 61
Judgment of The Honourable Justice Stanley
17 April 2015
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE - EVIDENCE
Application for an order that probate of the will of John Henry Marshall late of Pinnaroo Soldiers Memorial Hospital, Bundey Terrace, Pinnaroo, retired glazier, deceased, who died on 24 February 2012, as contained in a reconstructed copy will undated, be granted to David Marshall, the executor therein, until the original will or a more authentic copy of it is brought into and left in the probate registry of the Court.
The applicant is the deceased's son David Marshall. The application is made ex parte pursuant to rule 68 of the Probate Rules (2004) (SA). The application is made ex parte as there is no person disadvantaged by the application. If a grant of probate is made in respect of the reconstructed will the applicant is effectively the sole beneficiary as specific gifts in the reconstructed will were destroyed and, accordingly, those gifts lapse. If the order is not made in respect of the reconstructed will the presumption of revocation has the consequence the deceased died intestate and the applicant would be the sole beneficiary.
Held:
1. The Court pronounces against the alleged will of John Henry Marshall late of Pinnaroo Soldiers Memorial Hospital, Bundey Terrace, Pinnaroo, retired glazier, the deceased, who died on 24 February 2012 as contained in a reconstructed copy will undated (at [17]).
2. The Court pronounces against the alleged will of John Henry Marshall late of Pinnaroo Soldiers Memorial Hospital, Bundey Terrace, Pinnaroo, retired glazier, the deceased, who died on 24 February 2012 as contained in a document described as a will dated 29 July 1984 (at [18]).
3. There be a grant of letters of administration to David Marshall in respect of the estate of John Henry Marshall late of Pinnaroo Soldiers Memorial Hospital, Bundey Terrace, Pinnaroo, retired glazier, the deceased limited until an original will or a copy be brought into and left in the probate registry of the Court (at [19]).
Probate Rules 2004 (SA) r 68; Wills Act 1936 (SA) s 12, referred to.
In the Estate of Hall (deceased) (2011) 120 SASR 1; Elton v Public Trustee [2014] SASC 149; Re Grey Smith [1978] VR 596; Spoehr v Health Services Charitable Gifts Board (2014) SASR 174; Docking v Schwarzkopf [2015] SASC 18, considered.
In the Estate of JOHN HENRY MARSHALL
[2015] SASC 61Testamentary Causes Jurisdiction: Application
STANLEY J
Introduction
This is an application for an order that probate of the will of John Henry Marshall late of Pinnaroo Soldiers Memorial Hospital, Bundey Terrace, Pinnaroo, retired glazier, deceased, who died on 24 February 2012, as contained in a reconstructed copy will undated, be granted to David Marshall, the executor therein, until the original will or a more authentic copy of it is brought into and left in the probate registry of the Court.
The applicant is the deceased's son David Marshall.
The application is supported by affidavits of David Marshall sworn 6 November 2013 and 12 January 2015, an affidavit of Pamela Jean McEwin sworn 4 February 2015, and an affidavit of Karin Stella Harris sworn 4 February 2015.
The application is made ex parte pursuant to rule 68 of the Probate Rules 2004 (SA).
The application is made ex parte as there is no person disadvantaged by the application. If a grant of probate is made in respect of the reconstructed will the applicant is effectively the sole beneficiary as specific gifts in the reconstructed will were destroyed and accordingly, those gifts lapse. If the order is not made in respect of the reconstructed will the presumption of revocation has the consequence the deceased died intestate and the applicant would be the sole beneficiary.
The reconstructed will
The reconstructed will is in the following terms:-
1.I revoke all testamentary dispositions previously made by me.
2.I appoint my son David Marshall sole Executor and Trustee of this my Will.
3.I give my stamp collection to my friend Martin of Pinaroo.
4.I give my books on gold prospecting to my granddaughter Emma Marshall.
5. I give the rest of my estate to my Trustee to pay thereout my debts and funeral and testamentary expenses and to hold the balance then remaining upon trust for my son David Marshall absolutely.
Dated the ____ day of November 2002
Signed by the abovenamed JOHN HENRY MARSHALL the Testator as and for his last will and testament in the presence of us both 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
J D Lawson (sgd) Sam Townsley (sgd)
29 Kruse road
Pinaroo
Section 12 of the Wills Act 1936
The applicant contends that this document should be admitted to probate as a lost will pursuant to section 12 of the Wills Act 1936 (SA). Section 12 provides:
(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.
Relevant legal principles
In Re Estate of Hall (deceased),[1] Gray J summarised the principles applicable to the admission of a copy of a missing will to probate as follows:[2]
[1] [2011] SASC 117.
[2] [2011] SASC 117 at [15].
Missing wills has been the subject of much judicial commentary. The following considerations for admission of a copy of a missing will to probate have been conveniently extracted from that commentary:
· that the original will existed;
· that the original will was duly executed; or, if the original will does not fulfil the formalities required by legislation, that it satisfies the legislative requirements allowing it, as an informal will, to be admitted to probate;
· that there is evidence of the terms of the original will;
· that the copy will is an accurate and complete copy of the original will;
· that thorough searches have been conducted to find the original will, including publishing advertisements regarding the missing original will;
· that the original will revoked all pre-existing wills;
· the circumstances surrounding the absence of the original will;
· that all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris; and
· that the presumption of revocation does not arise or has been rebutted.
(citations omitted)
In Elton v Public Trustee,[3] I discussed the legal principles relevant to the Court granting probate in respect of a lost will. I said:[4]
[3] [2014] SASC 149.
[4] [2014] SASC 149 at [37]-[45].
It is clear that in certain circumstances a Court will recognise a lost will and admit it to probate. It is common ground between the parties that if the Court is satisfied that the Irrevocable Order is admitted to probate the Court should revoke the grant made in favour of the 1991 will. The relevant principles concerning granting probate of a lost will, modified to reflect the changes to the law effected by the equivalent of s 12 of the Wills Act 1936 (SA), were enunciated in Cahill v Rhodes by Campbell J as follows:
First, it must be established that there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous Wills, third, the presumption that when a Will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her Will.
While the burden of proof remains the usual civil standard of balance of probabilities, the authorities emphasise the need for clear and convincing evidence of the existence of a lost will.
In The Estate of Ralston Hodgson J said:
... there should be clear and convincing proof similar to that appropriate to other classes of case where the Court is asked to give effect to parol arrangements in circumstances where the law requires, or the parties have chosen, that a particular matter be recorded in some formal way, or where the Court is asked to make a finding concerning a legal transaction by a deceased person.
However, this does not mean that what is required is other than proof on a balance of probabilities. In a case such as this, I believe that what is required is that the party bearing the onus of proof must be sufficiently diligent in calling available evidence, because the Court will not be prepared to act on material which it considers inadequate...
Hodgson J cited as authority for this proposition the High Court’s judgment in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd which is an application of the Briginshaw test. In applying the balance of probabilities standard in considering applications to admit a lost will to probate the Court must be vigilant, being fully cognisant of the dangers of error and fraud and the gravity of the consequences flowing from any finding made. In my view, these considerations apply with particular force where the evidence the Court is asked to act upon is purely oral.
I do not regard anything said subsequently in Gruzdeff v Lough by Hodgson J as detracting from this proposition. While parol evidence may be adduced to prove the contents of a lost will the Court must take particular care in considering whether such evidence leaves it reasonably satisfied “not just as to the existence of the will but as to its contents”.
If the Court is satisfied that the document sought to be propounded as the lost will of the deceased existed, the next issue the Court must consider is whether the document itself, or so much of the document as may be proved, was intended by the deceased to constitute his will. The Court must be satisfied that the document sought to be admitted to probate, or at least so much of the contents of the document as the Court is satisfied has been proved, purports to embody the deceased’s testamentary intentions. That means the deceased intended the document, without more on his part, to take effect as a testamentary disposition of his property upon his death. This is to be decided by reference to the document itself, the circumstances regarding its contents (including such marks or handwriting as may appear on it) and any other relevant circumstances. While each case must depend upon its own facts, the greater the departure from compliance with the formal requirements for the making of a will, the more difficult will it be for the Court to be satisfied that the deceased intended the reconstructed document to be his will.
Next the Court must be satisfied of two related matters: the terms of the testamentary instrument and whether the terms included a provision revoking all previous wills.
If the Court is satisfied of these matters it must then turn to consider the presumption of revocation. This involves two issues: does the presumption arise and, if so, is it rebutted. The presumption was described in Welch v Phillips in the following terms:
... If a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. ...
In The Estate of Gibbs Gray J made the following observations regarding the rebuttal of the presumption.
The presumption of revocation is a presumption of fact which may be rebutted by appropriate evidence. It is the applicant who carries the onus of rebutting the presumption. Further, when determining if the presumption has been rebutted, the court is “to consider the whole of the facts together, and draw what inference should be drawn from the totality of the evidence”.
(Citations omitted)
Facts
I find that:
1.The deceased died on 24 February 2012.
2.The deceased died at the Pinnaroo Soldiers Memorial Hospital, Bundey Terrace, Pinnaroo.
3.He left an estate with a net value as at the date of death of $71,896.47.
4.David Marshall is the sole issue of the marriage of the deceased and Stephanie Paulette Marshall. There is no other child of the deceased.
5.The marriage of the deceased and Stephanie Paulette Marshall was dissolved by a decree nisi which became absolute on 16 February 1981.
6.In about June 2003 the house in which the deceased was then living was destroyed by fire.
7.In the fire that destroyed the deceased's house in 2003, the deceased's stamp collection and his books on gold prospecting were destroyed.
8.On 21 November 2013 a solicitor Karen Stella Harris had a telephone conversation with James David Lawson, known as Jim Lawson. Mr Lawson told Ms Harris that he recalled witnessing a will made by the deceased about late 2002. Mr Lawson said this occurred in the deceased's home in Pinnaroo. The will was also witnessed by Sam Townsley. Mr Lawson said the deceased spoke of the contents of the will at this time. He said he left most of his estate to his only son David Marshall but a couple of bits and pieces to other people. One of the specific gifts was a stamp collection which was left to a friend of the deceased's called Martin. Another specific gift was books on gold prospecting which the deceased left to his granddaughter Emma. Mr Lawson said he recalls the specific bequest set out in handwritten pages attached to the will which was a typed document. He said he thought the handwritten pages were in the deceased's handwriting. Mr Lawson said the deceased told him that he was making the will to replace a previous will. Mr Lawson said the deceased claimed that he had made some previous provision for his brother in England but that he had retired comfortably and he had decided to exclude him from his estate for that reason. Mr Lawson said that the deceased signed the will in the presence of Mr Townsley and himself. Mr Lawson told Ms Harris that he and Mr Townsley then signed the will in the presence of the deceased and the presence of each other. Mr Lawson said he recalled seeing the deceased place the will in a box in the deceased's house where other paperwork was kept. Mr Lawson told Ms Harris that he no longer knew of the whereabouts of Mr Townsley and he was not aware of any later will being made by the deceased.
9.Despite a thorough and extensive search including of the deceased's home at 2 McIntosh Avenue, Pinnaroo following his death, a will made by the deceased as described by Mr Lawson cannot be located.
10.Mr Lawson has not sworn or affirmed an affidavit prepared by Ms Harris which deposes to the matters set out in paragraph 8.
11.Mr Lawson cannot now be located. It is believed that he has left the jurisdiction and now resides in Thailand.[5]
12.Mr Townsley cannot be located.
13.Ms McEwin wrote letters to solicitors practising in the South East of South Australia in December 2013 inquiring whether any held a will for the deceased or had prepared a will for him. They responded that they did not hold a will for the deceased nor had they prepared one.
14.Ms McEwin caused an advertisement to be placed in the Law Society In Brief email newsletter in January 2014 inquiring whether anyone knew the whereabouts of a will of the deceased believed to have been signed in 2002. Following this she was contacted by a firm of solicitors in Renmark informing her they held a hand-made will for the deceased but did not have any file to indicate they had drawn a will for him. That document is dated 29 July 1984. It revokes all former testamentary dispositions and bequeaths the whole of the deceased's estate to David Marshall.
[5] In the course of submissions Ms McEwin told the Court that she had received information to suggest that Mr Lawson may have returned from Thailand.
Submissions of the applicant
Ms McEwin, counsel for the applicant, submits that the Court should act on the contents of the draft affidavit of Mr Lawson prepared by Ms Harris. She submits that this is an adequate evidentiary basis for the Court to allow the application and grant probate to the reconstructed will. She submits the contents of the draft affidavit of Mr Lawson tells a reasonable story as to why the deceased wished to change his will and the basis of the two specific gifts. She submits that the recollection of Mr Lawson as described to Ms Harris concerning the form of the will is consistent with the form of the previous will of 29 July 1984.
Consideration
The authorities emphasise the need for clear and convincing evidence of the existence of a lost will. The Court must be vigilant in considering whether to admit a lost will of probate. It must be fully cognisant of the dangers of error and fraud and the gravity of the consequences flowing from any finding made. In Elton I emphasised that these considerations apply with particular force where the evidence the Court is asked to act upon is purely oral. That caution must apply a fortiori where there is a lack of viva voce evidence. In this case I am not satisfied as to the existence of the 2002 will and necessarily therefore as to its contents. The failure of Mr Lawson to swear or affirm the affidavit prepared by Ms Harris in accordance with his instructions leaves me with sufficient doubt about the matters concerning the making of the 2002 will he described in the telephone conversation with her and set out in her affidavit. In the absence of any supporting evidence from any other source I am not prepared to find that the will existed.
That leaves the issue of whether I should make an order admitting to probate the 29 July 1984 will. No application has been made to the Court to pronounce in favour of the 29 July 1984 will. An interesting question of revocation arises. The evidence suggests the 29 July 1984 will was duly executed. While evidence of due execution gives rise to a presumption that the will should be admitted to probate, the presumption is rebuttable. Evidence giving rise to a well founded suspicion the document is not valid for whatever reasons will rebut the presumption.[6] Notwithstanding that I am not satisfied on the evidence of Ms Harris as to the existence of the 2002 will, the evidence, such as it is, raises the question as to whether the deceased died intestate. The 29 July 1984 will leaves the whole of the deceased's estate to the applicant. Yet Mr Lawson told Ms Harris that the deceased was making a will in 2002 because it was his intention to replace a previous will that made some provision for his brother in England whom he now wished to exclude as a beneficiary of his estate. That suggestion is inconsistent with the terms of the 29 July 1984 will. While I am not prepared to act on the hearsay evidence of Ms Harris for the purposes of being satisfied as to the existence of the 2002 will, her evidence is relevant to the question of revocation in relation to the 29 July 1984 will.
[6] Re Grey Smith [1978] VR 596 at 604; Spoehr v Health Services Charitable Gifts Board [2014] SASC 171 at [37] - [38], (2014) 121 SASR 174 at 184 - 185; Docking v Schwarzkopf [2015] SASC 18 at [8].
It raises the question of whether the deceased subsequently revoked the 29 July 1984 will and made some further testamentary disposition which included his brother. While I am not prepared to find that this occurred given the state of the evidence, neither am I satisfied that the 29 July 1984 will represents the final expression of the deceased's testamentary intention. I cannot be satisfied the deceased did not subsequently revoke the 29 July 1984 will. The evidence gives rise to a well founded suspicion that the 29 July 1984 will was revoked.
In these circumstances Ms McEwin submits an order should be made for a grant of administration limited until an original will or a copy be brought into the probate registry where, on the death of the deceased, no will or a copy of a will can be produced but the applicant is unable to depose to an intestacy in circumstances where he may know, or have reason to believe that there was a will in existence.
I am satisfied I should adopt this course. I am reinforced in this view by the fact that the only evidence as to the deceased's testamentary intentions before the Court would have the whole of the deceased's estate left to the applicant. The same outcome would result if the estate is administered on the basis of intestacy.
Conclusion
The Court pronounces against the alleged will of John Henry Marshall late of Pinnaroo Soldiers Memorial Hospital, Bundey Terrace, Pinnaroo, retired glazier, the deceased, who died on 24 February 2012 as contained in a reconstructed copy will undated.
The Court pronounces against the alleged will of John Henry Marshall late of Pinnaroo Soldiers Memorial Hospital, Bundey Terrace, Pinnaroo, retired glazier, the deceased, who died on 24 February 2012 as contained in a document described as a will dated 29 July 1984.
There be a grant of letters of administration to David Marshall in respect of the estate of John Henry Marshall late of Pinnaroo Soldiers Memorial Hospital, Bundey Terrace, Pinnaroo, retired glazier, the deceased, limited until an original will or a copy be brought into and left in the probate registry of the Court.
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