In the Estate of JOHN LESLIE XAVIER MONAGHAN (DECEASED) - [2012] SASC 130

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of JOHN LESLIE XAVIER MONAGHAN (DECEASED)
[2012] SASC 130
Judgment of The Honourable Justice Gray
27 July 2012
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA - DOCUMENT NOT EXECUTED BY MAKER
Application for an order that a document purporting to express testamentary intentions of the deceased, a draft will, be admitted to probate pursuant to section 12(2) of the Wills Act 1936 (SA) - where the deceased provided instructions to his solicitor to draft a will - a draft will was prepared - the deceased conveyed approval of the will to his wife, but requested minor corrections - handwritten amendments were made to the will by the deceased’s wife - the deceased died three days before his appointment to execute the wills - whether the deceased was aware of and had approved the terms of the draft will as being his testamentary intentions.
Held: Application granted - the draft will expressed the testamentary intentions of the deceased - the deceased intended the draft to constitute his will - the document as rectified was admitted to probate.
Wills Act 1936 (SA) s 8, s 12(2) and s 25AA; Probate Rules 2004 (SA) r 64.01 and r 77, referred to.
In the Estate of TLB (2005) 94 SASR 450; In the Estate of Graham deceased (1978) 20 SASR 198; In the Estate of Williams deceased (1984) 36 SASR 423; In the Estate of Ashley David Schwartzkopff (2006) 94 SASR 465; Deeks v Greenwood [2011] WASC 359; In the Estate of Michailo Krawczuk Deceased (1992) 168 LSJS 231, considered.

In the Estate of JOHN LESLIE XAVIER MONAGHAN (DECEASED)
[2012] SASC 130
Testamentary Causes Jurisdiction
GRAY J.

This is an application for an order that a document purporting to express the testamentary intentions of John Leslie Xavier Monaghan, the deceased, be admitted to probate pursuant to section 12(2) of the Wills Act 1936 (SA) and rule 64.01 of the Probate Rules 2004 (SA).[1]
[1] Rule 64.01 of the Probate Rules 2004 (SA) is in the following terms:
Unless a probate action has been commenced an application under section 12(2) of the Wills Act, 1936 for an order admitting to proof a document purporting to express the testamentary intentions of a deceased person must be made by summons to the Registrar in the Form No. 33 (1) and must be supported by an affidavit setting out the facts upon which the applicant relies together with the written consents to the application of all persons not under disability who may be prejudiced by the admission of the document to proof.
The application is made by Gregory Michael Griffin, a solicitor and a named executor in the document sought to be admitted to probate. Initially the application was made to the Registrar of Probates. The Registrar considered that matters of some complexity arose with respect to the application, and referred the matter to me pursuant to rule 77 of the Probate Rules 2004 (SA).[2]
[2] Rule 77 of the Probate Rules 2004 (SA) provides:
The Registrar may require any application made to the Registrar to be brought before the Registrar by summons, and may refer any application made to the Registrar, or any matter, whether by summons or otherwise, to a Judge or require the same to be brought before the Court by summons.
When the matter proceeded, counsel appeared on behalf of Mr Griffin. Counsel also appeared to represent the unascertained class of persons who may be adversely affected by the application and who had not consented to the application. As a consequence, the Court was assisted by submissions from a contradictor.
Background
The deceased married Leona Gaye Monaghan on 4 February 1989. She was his second wife. There are two children of this marriage, Leticia Jane Monaghan and Talia Rae Monaghan. The deceased had three children from earlier relationships, Grant Patrick Monaghan, Craig John Monaghan and Renee Colleen Monaghan. The deceased died on 11 October 2008. His widow and his five children survived him.
The document sought to be admitted to probate is a draft will of the deceased on which minor handwritten corrections appear. The handwritten corrections do not affect any of the substantive provisions of the draft. The first correction is to the address of Mrs Monaghan, the words “28 Urrbrae Avenue, Myrtle Bank” are crossed out and the handwritten address “1, 3 Angus Court Henley Beach” is inserted. Throughout the draft will, the surname of the deceased and of members of his family is misspelt. In the draft the spelling is “Monoghan”. The correct spelling is “Monaghan”. The handwritten notation with the correct spelling “Monaghan” appears in five places. The correct spelling of the first name of one of the deceased’s daughters is “Talia”. In the draft will, it has been misspelt as “Tahlia” and “Thalia”. The correct spelling “Talia” appears as a handwritten notation in five places. The draft will sought to be admitted has the word “DRAFT” stamped across each page of the five page document.
On 30 July 2008, the deceased and his wife conferred with their solicitor, Mr Griffin, and provided instructions in relation to the preparation of wills for each of them. At the same time they provided instructions for the preparation of leases for properties in which the deceased had an interest.
Mr Griffin recorded his instructions for the deceased’s will in handwriting. He then transcribed those notes onto tape and had them typed. The original handwritten notes were not kept. However, the typewritten document is in evidence before the Court. Denis Marjas, a solicitor employed by Griffins Lawyers, used the typewritten note to prepare the draft will for the deceased. Mr Marjas forwarded by post the draft will for the deceased, a draft will for his wife and the draft leases.
In the latter part of September 2008, the deceased and his wife read through their draft wills. On this occasion, the deceased also read through the draft of his wife’s will. When the reading was complete, the deceased informed his wife that the content and substance of both wills were in accordance with the instructions given to Mr Griffin on 30 July 2008, and that he was “happy with the wills”. The deceased pointed out to his wife the earlier referred to errors, being the incorrect address and the incorrect spelling of Talia’s name and of the surname “Monaghan”. Mrs Monaghan also considered that her draft will had been prepared in accordance with the instructions given to Mr Griffin. Her draft will also required corrections to the spelling of her surname and the correct spelling of her daughter Talia’s name.
The deceased then requested that his wife make handwritten amendments to his draft will on his behalf to correct the address, first name and surname errors. He wanted these minor corrections brought to the attention of Griffins Lawyers before the wills were executed. Mrs Monaghan, in accordance with the deceased’s directions, made a number of corrections to the deceased’s draft will. Mrs Monaghan also deposed that nothing had been said by the deceased about the execution and operation of his will to be conditional on the execution and operation of her will or vice versa.
During the last week of September 2008, in accordance with the deceased’s directions, Mrs Monaghan telephoned Mr Marjas and informed him that she and her husband were agreed with the content and substance of the draft wills that had been forwarded and she made an appointment with the solicitors for the execution of their wills. However, she advised that there were some minor spelling and address errors that required correction. It was agreed that these corrections would be made when they attended to execute the wills.
On 8 October 2008, Mrs Monaghan telephoned Mr Marjas to reschedule the appointment for the execution of the wills. The rescheduling related to the need to finalise some aspects of the proposed leases. The appointment was rescheduled for 14 October 2008.
On 8 October 2008, the deceased telephoned Mr Griffin and left a voice message the substance of which was as follows – “thanks for the wills, they’re great”. As earlier noted, the deceased died on 11 October 2008, three days prior to the rescheduled appointment on 14 October 2008 when he intended to execute his will.
The Wills Act
The draft will sought to be admitted to probate fails to comply with the statutory formalities. The draft will is unexecuted. None of the requirements of section 8 of the Wills Act have been complied with. Section 8 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).
Subsection 12(2) of the Wills Act sets out the requirements that need to be satisfied for a will to be admitted to probate notwithstanding that it has not been executed in accordance with the statutory formalities of the Act. Subsection 12(2) has been amended on a number of occasions.
I adopt the following summary of the legislative history of subsection 12(2) as set out in In the Estate of TLB:[3]
[3]    In the Estate of TLB (2005) 94 SASR 450, [20]-[28].
Section 12(2) of the Wills Act sets out the requirements that need to be met for a will to be admitted to probate notwithstanding that it has not been executed with the formalities of the Wills Act. This subsection was first introduced in 1975 and has been subsequently amended on four occasions.
Subsection (2) was first introduced into the Act by the Wills Act Amendment Act (No 2) 1975 (SA), and came into operation on 29 January 1976. The subsection then provided:
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.
The enactment of this subsection was a result of the South Australian Law Reform Committee’s concern regarding the plight of would-be testators who attempted to execute a will but failed for want of satisfying the formal requirements.[4]
[4]    28th Report of South Australian Law Reform Committee to Attorney-General Reform of the Law of Intestacy and Wills (1974).
The subsection was amended by the Statute Law Revision Act (No 2) 1990 (SA), which replaced the word “shall” with the word “will”, “deemed” was replaced by “taken” and “or her” was added after the word “his”. The subsection provided:
A document purporting to embody the testamentary intentions of a deceased person will, notwithstanding that it has not been executed with the formalities required by this Act, be taken 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 or her will.
The onus of proof demanded by the amended subsection was the subject of criticism. In May 1992, the judiciary recommended that the subsection ought to be amended by striking out the words “that there can be no reasonable doubt” and replacing them with “the Court is satisfied that the deceased intended the document to constitute his or her will”.
The subsection was amended by the Wills (Miscellaneous) Amendment Act 1994 (SA) to provide:
Subject to this Act, if the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses testamentary intentions of a deceased person, the document will be admitted to probate as a will of the deceased person.
The amended subsection omitted the express requirement of the progenitor provision, namely that the Court had to be satisfied that the document being propounded was intended by the deceased, as his or her will.
This omission was noted in the observations of Mullighan J in In the Estate of McCartney deceased.[5] In that case, the document in question comprised jottings on two pages of green notepaper attached to a notepad. On another page of the notepad, the deceased had written her name. The notes were consistent with instructions for a will. Counsel for the applicant submitted that as a consequence of the 1994 amendment to section 12(2), the animus testandi was no longer required, provided the document contained the intentions of the deceased. Mullighan J found that, on the balance of probabilities, the deceased intended the document to be her will. As a result, His Honour found it unnecessary to consider counsel’s submission.
[5]    In the Estate of McCartney deceased (unreported, S5884, 12 November 1996).
Section 12(2) was further amended and came into force on 3 December 1998 by the Statutes Amendment (Attorney-General’s Portfolio) Act 1998 as follows:
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 to make a will or a codicil to give effect to the testamentary intentions expressed in the document,
the document will be admitted to probate as a will (or a codicil to the will) of the deceased person even though it has not been executed with the formalities required by this Act.
There appears to be little parliamentary or judicial comment on this amendment.
The subsection was further amended in 2000 by the Statutes Amendment and Repeal (Attorney-General’s Portfolio) Act 2000 (SA) as follows:
…
This amendment came into force on 20 July 2000 and constitutes the provision presently in force.
Subsection 12(2), in its present form and as relevant to these proceedings, provides:
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.
Subsection 12(2) of the Wills Act removes the harsh consequence that testators will die intestate if their will has not met the formalities required in section 8 of the Act. The subsection allows a document to be admitted to probate notwithstanding non-compliance with the statutory formalities, providing the court is “satisfied” of the matters specified in the subsection. As Jacobs J observed in In the Estate of Graham deceased:[6]
… 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.
The observations of King CJ in In the Estate of Williams deceased are also relevant:[7]
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.
[6]    In The Estate of Graham deceased (1978) 20 SASR 198, 202.
[7]    In the Estate Williams deceased (1984) 36 SASR 423, 425.
The court 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 or her will.
In In the Estate of Schwartzkopff,[8] I undertook a review of prior authorities of this Court. That review revealed a number of instances where the Court admitted to probate draft wills and a number of instances where the Court declined to do so. It would appear that the critical question to be determined was whether the deceased was aware of and had approved the terms of the draft will as being the deceased’s testamentary intentions.
[8] In the Estate of Ashley David Schwartzkopff (2006) 94 SASR 465.
Such an approach is consistent with the primary function of the formal requirements relating to the execution of a will. This primary function was discussed in Deeks v Greenwood where Heenan J drew on the report of the Western Australian Law Reform Commission and observed:[9]
[9] Deeks v Greenwood [2011] WASC 359, [54]-[55].
When considering the significance and effect of Pt X of the Wills Act 1970 (WA) in allowing the proof of informal wills which would otherwise be inefficacious for want of proper execution, it is useful to identify the function which the requirements of formal execution of a will, as contained in s 8 of the Wills Act, are designed to achieve. These have been set out succinctly in the report of the Law Reform Commission of Western Australia “Wills: Substantial Compliance”, project number 76, Pt 1 of November 1985 which recommended reforms which led to the introduction of Pt X of the Act. Addressing this subject, the authors of the Law Reform Commission report wrote as follows:
2.15 The primary function of the formal requirements is the so-called “evidentiary function”. Those concerned with the estate of the deceased need to know with some certainty that a propounded will is in fact that of the deceased. They also need to be able to ascertain the expressed desires of the deceased. The requirement as to writing makes the words of the deceased available with a certainty that would not be found with an oral expression, the proof of which is dependent on the memory, lifespan and integrity of those who witnessed it. A written will creates a more permanent form of authentication of the deceased’s wishes.
2.16 The signature of the deceased serves to link him with the document and indicates his assent to its contents. It characterises the paper as other than a “draft”. The signature may also go to the proof of testamentary capacity. The requirement as to witnesses helps to establish authenticity, but of course does not guarantee it. In many cases, the witnesses will be available to give evidence if the will is called into doubt.
2.17 Commentators have identified several other advantages that can be said to spring from the formal requirements, as follows:
(a)The contemporaneous presence of witnesses also helps to protect against duress or undue influence and to ensure that the execution of the will was free and voluntary. This has been described as “the protective function”.
(b)Compliance with the formalities is said to impress on a testator the serious nature of the transaction and cause him to give the matter due consideration and attention. This has been called “the cautionary function”.
(c)The statutory requirements also tend to standardise both the proof and, to a lesser degree, the form of wills. This facilitates their processing, reduces litigation and makes for a quick and uncomplex execution of the expressed desires of the deceased. This is known as “the channelling function”.
As the authors of the Law Reform Commission report themselves observed (para 5.1) the striking down of the validity of a will because of non-compliance with the formal requirements alone may result in the defeat of the major purpose which these requirements were designed to protect, namely, securing implementation of the testator’s testamentary intentions. Accordingly, when considering whether or not a particular document being propounded should be admitted to proof as an informal will of a deceased, it is necessary for the court to bear in mind the purposes which the formal requirements were designed to achieve, that is, to guard against fraud, preliminary but not concluded expressions of opinion, lack of full deliberation, possible adverse influence upon the deceased, and lack of appreciation of the seriousness and effect of the intentions as expressed. These are factors which need to be considered in determining whether or not a particular writing or documented expression of intention does, in fact, embody the final settled testamentary intentions of the deceased at the time it was made or approved.
Consideration of the Application

I make the following specific findings. The deceased did not intend to die intestate. The deceased intended his estate to be distributed in accordance with the terms of the draft will as initially forwarded to him. The deceased knew and approved of the contents of that draft will. The deceased advised Mrs Monaghan that he approved the contents of the draft will. The deceased informed Mrs Monaghan that there needed to be minor corrections to her address and to the spelling of the names “Tahlia”, “Thalia” and “Monoghan” appearing in the draft will. The deceased directed his wife to make handwritten amendments to his draft will to effect these minor corrections and to bring these corrections to the attention of his solicitor before he attended to execute his will. The deceased’s daughter, Leticia, was present at the time that the deceased informed his wife that he approved the contents of the draft will and gave the direction concerning the need for the minor corrections. Mrs Monaghan advised Mr Marjas of the corrections to be made to the draft will during the week commencing 29 September 2008. The deceased conveyed his approval when he informed Mr Griffin “thanks for the wills, they’re great”. The minor corrections to be made were not matters of any substance and had no material impact on any of the provisions made in respect of the distribution of the estate of the deceased.
The document containing the handwritten corrections was a draft will that the deceased had approved as correctly setting out his testamentary wishes. He had conveyed his approval to his wife in the presence of one of his daughters. He authorised his wife to instruct the solicitors to prepare a will with the minor corrections for execution. He conveyed his approval to Mr Griffin.
The primary question to be answered in these proceedings is whether there is a document which it can fairly be said the deceased intended to be his will.
The evidence establishes that the deceased intended his draft will containing handwritten notations to operate immediately on execution as his will. Although it was intended that his wife would execute her will simultaneously, the execution and operation of his will was not conditioned on the execution of her will.
Had the solicitors made the amendments before the deceased died and placed the document on the file awaiting execution, the document would be admitted to probate in accordance with the authority of this Court in In the Estate of Krawczuk Deceased.[10]
[10] In the Estate of Michailo Krawczuk Deceased (1992) 168 LSJS 231.
In my view there is no relevant difference between this case and In the Estate of Krawczuk Deceased.[11] In both cases a document containing the testamentary intentions is in existence. The intention of the deceased is established in written form. There is no doubt that he intended to execute a document in these terms. The remedial provisions of the Wills Act are sufficiently broad to allow a draft will amended in accordance with the instructions given by the deceased prior to death to be admitted to probate.
[11] In the Estate of Michailo Krawczuk Deceased (1992) 168 LSJS 231.
Rectification
The Court’s powers of rectification are found in section 25AA of the Wills Act, which provides:
(1)If the Court is satisfied that a will does not accurately reflect the testamentary intentions of a deceased person, the Court may order that the will be rectified so as to give proper expression to those intentions.
(2)An application for an order under this section must not, except with the consent of the Court, be made more than six months after the grant of probate or letters of administration.
(3) Nothing in this section affects the operation of section 29 of the Trustee Act 1936.
As noted above, the document sought to be propounded is a hard copy draft will with incomplete handwritten notes to the changes of spelling and address. It is to be readily inferred that these notes are intended as a shorthand reference to each spelling and address error appearing in the draft will. The word “DRAFT” is stamped on each page. As the draft will is to be admitted to probate, it is appropriate that there be a direction that the draft will be rectified to correct the spelling errors and error as to address. Further, the “DRAFT” watermark should be removed from each page of the draft will.
Conclusion
Having regard to all the above considerations, I am satisfied that the draft will expresses the testamentary intentions of the deceased. I am satisfied that the deceased intended the draft to constitute his will. The document as rectified is admitted to probate. Subject to the submissions of the parties, I propose making an order as follows:
On being satisfied that the undated paper writing (“the document”) being the exhibit marked “GMG7” referred to in the affidavit of Gregory Michael Griffin sworn on the 7^th day of September 2011 expresses the testamentary intentions of John Leslie Xavier Monaghan late of Unit 1, 3 Angus Court, Henley Beach in the State of South Australia deceased (“the deceased”) who died at the Cruising Yacht Club of South Australia, Lady Gowrie Drive, North Haven in the said State on the 11^th day of October 2008 and that the deceased intended the document to constitute his will but that the document does not accurately reflect the testamentary intentions of the deceased IT IS ORDERED that:
1.     The document be admitted to probate as the last will and testament of the deceased.
2.     The will be rectified by:
(a)     removing the word “DRAFT” which appears as a watermark on all five pages of the will.
(b)     removing the words “28 Urrbrae Avenue, Myrtle Bank” in paragraph 2.1 and replacing them with the words “1, 3 Angus Court, Henley Beach”.
(c)     replacing the word “Tahlia” with the word “Talia” in paragraphs 5, 6.1, 6.2 and 8.
(d)     replacing the word “Thalia” with the word “Talia” in paragraph 6.4.
(e)     replacing the word “Monoghan” with the word “Monaghan” in paragraphs 2.1, 4.2, 4.3, 4.4, 5, 6.1, 6.2, 6.4 and 8.
3.Probate of the will as rectified be granted to Gregory Michael Griffin the sole executor therein named.
4.The costs of and incidental to this application and order be paid out of the estate of the deceased.