In the Estate of KATHLEEN TORR - [2005] SASC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of KATHLEEN TORR
Judgment of The Honourable Justice Besanko
10 February 2005
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA
Application for probate of a will and other documents - where deceased executed a will in accordance with s 8 of the Wills Act - where the will referred to a letter to be given to a friend detailing the deceased's specific bequests - where no such letter was given to friend - where a hand-written list describing items of property and naming various persons was found upon the deceased's death together with a number of envelopes and photographs of items of property - where some envelopes and photographs had writing on them and some did not - where the handwriting was that of the deceased - where the list was signed by the deceased - where some envelopes and photographs were signed by the deceased and some were not - where the deceased had told the friend named in the will about the list, envelopes and photographs - whether the list, envelopes and photographs are 'documents' within s 12(2) of the Wills Act - whether the list, envelopes and photographs express the testamentary intentions of the deseased - whether the deceased intended the list, envelopes and photographs to constitute a codicil to her will - application granted in relation to the will and other documents.
Wills Act 1936 ss 3, 8, 12; Acts Interpretation Act 1915 s 4; Interpretation Act 1987 (NSW) s 21; Interpretation Act 1978 (NT) s 19; Acts Interpretation Act 1931 (Tas) s 24(bb); Interpretation of Legislation Act 1984 (Vic) s 38; Acts Interpretation Act 1954 (Qld) s 36; Legislation Act 2001 (ACT) Dictionary Part 1; Interpretation Act 1984 (WA) s 5; Evidence Act 1995 (Cth) Dictionary, referred to.
In the Estate of Ryan (1986) 40 SASR 305; In the Estate of Slavinskyj (1988) 53 SASR 221; In the Estate of Williams (1984) 36 SASR 423; In the Estate of Graham (1978) 20 SASR 198; Lyell v Kennedy (No 3) (1884) 50 LT 730; Treacy & Ors v Edwards: Estate of Edwards (2000) 49 NSWLR 739; R v Hill [1945] 1 All ER 414; Victor Chandler v Customs & Excise [2000] 2 All ER 315; Huddleston v Control Risks Ltd [1987] 2 All ER 1035; R v Reed (1993) 173 LSJS 123, considered.

In the Estate of KATHLEEN TORR
[2005] SASC 49
Testamentary Causes Jurisdiction

BESANKO J: This is an application by summons for probate of a will and other documents. The application is made by the executors named in the will.
Mrs Kathleen Torr (“the deceased”) died without issue on 18^th April 2003. Her husband died some years before that date. At the time of her death, the deceased owned and lived in a house at 87 Brougham Place, North Adelaide, in the State of South Australia.
The deceased left a will which had been executed in accordance with the formalities prescribed by s 8 of the Wills Act 1936 on 18^th March 2000. The executors named in the will are Mr Mark Joseph O’Leary and Mr Simon Bryan O’Leary. They are the applicants in this action. Clause 4 of the will provides as follows:
“4. I DIRECT THAT MY DEAR AND LOYAL FRIEND MARGARET CARMEN BYRNES of 2A Grosvenor Street, Somerton Park, in the said State shall deal with all of my clothing, jewellery and other articles of personal or domestic use or adornment in the terms of a letter signed and provided by me to her for such purposes.”
The deceased did not provide a letter to Mrs Byrnes as contemplated by clause 4 of the will. Nor was such a letter found amongst her personal effects at the time of her death.
It is unnecessary to set out the details of the will. It is sufficient to say that the beneficiaries named in the will are the following persons:
1Mrs Gladys Adams, friend.
2Mrs Margaret Carmen Byrnes, friend.
3Captain Alexandra Harry, goddaughter.
4Ms Annabelle Harry, goddaughter of the deceased’s late husband.
5Mrs Margaret Browne, sister.
6Legacy Club of Adelaide Inc.
7Animal Welfare League.
8St Francis Church Altar Society.
The evidence establishes the due execution of the will and I will grant probate of the will.
The issue in this case centres on other documents left by the deceased which are said to be of a testamentary nature. It is said by the applicants that those documents contain the deceased’s wishes as to the disposal of various personal items including paintings, furniture, medals, trophies and other personal items valued by the deceased. The recipients of her bounty named in the documents include some of the beneficiaries named in the will, namely Mrs Adams, Captain Alexandra Harry, Ms Annabelle Harry and Mrs Browne. The documents consist of a two-page handwritten document and a number of envelopes and photographs.
The two page handwritten document is dated 23^rd October 2002. Each page has two columns with the first column describing an item of personal property and the second column containing the name of a person and sometimes other information. The following is an example of an entry on the document:

“Photo of ‘Mercowie’ (hanging opposite clock)
For Annabelle Harry
(Tom’s goddaughter)”

The evidence establishes that the handwriting on each page is that of the deceased, and that the deceased has signed each page. I will refer to this document as “the list”. There are 17 items of personal property or groups of items referred to in the list.
In the case of 11 of the 17 items or groups of items referred to in the list, the deceased photographed the item or items and placed the photograph or photographs in an envelope. In each case the deceased wrote the intended recipient’s name on the envelope, and in a couple of cases she wrote other comments on the front of the envelope. Furthermore, the deceased wrote on the front or back of the photographs, sometimes a note, sometimes the name of the intended recipient and sometimes a more detailed description of the object, such as the name of a painting.
The deceased left six envelopes with photographs in each envelope of items of personal property which are not referred to in the list. I take as an example the envelope which for convenience in this action has been given the number 18. The deceased has written the following on the front of the envelope:
“Photos of dining room furniture for Annabelle Harry”
Within the envelope are nine photographs of various items of dining room furniture including cabinets, a dining room table, chairs and a tapestry. There is no writing on the photographs. In short, in the case of a number of items of personal property, the deceased has given a very general description of the item and has then photographed the relevant item and placed that photograph in an envelope. I might add at this point that I do not think that it can be sensibly argued that the deceased’s intention was to leave the photograph to the person named as distinct from the item shown in the photograph.
The applicants apply for an order that the list, envelopes and photographs be admitted to probate as a codicil to the will of the deceased. Clearly, the list, envelopes and photographs have not been executed in accordance with the formalities prescribed by s 8 of the Wills Act. Accordingly, the applicants rely on s 12(2) of the Wills Act which is in the following terms:
“(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.”
The definition of “will” in s 3 of the Wills Act includes codicil.
All the persons entitled to participate in the distribution of the assets of the estate of the deceased by reason of the will have consented to the application made by the executors that the list, envelopes and photographs be admitted to probate. Nevertheless, I must be satisfied that the requirements in s 12(2) have been met and that it is appropriate to admit the list, envelopes and photographs to probate.
The facts
Most of the relevant factual information has come from the deceased’s friend, Mrs Byrnes, and from the deceased’s solicitor for a number of years prior to her death, Mr David Peacock.
Mrs Byrnes was a close friend of the deceased for at least 50 years. The deceased often said to Mrs Byrnes that it was her wish that Mrs Byrnes would ensure that the deceased’s wishes as to the disposition of specific bequests to specific persons upon her death would be honoured. The deceased told Mrs Byrnes that she had photographed many of the items in her house and that she had written on the developed photographs her wishes indicating to whom the items were to be given. The deceased told Mrs Byrnes on a number of occasions that the photographs and her written instructions as to her wishes were kept in envelopes held in her late husband’s desk. The deceased told Mrs Byrnes that the items referred to therein were special to her and that she wanted them to pass to the persons she had designated. Mrs Byrnes has seen the list, envelopes and photographs and she says that those documents contain the stated wishes of the deceased as to the disposition of the items referred to therein. As I have said, the deceased never gave Mrs Byrnes a letter signed by her as contemplated by clause 4 of the will.
Mr David Peacock is a legal practitioner. He was the deceased’s solicitor for some time prior to her death. He prepared the will executed on 18^th March 2000, and he did so in accordance with the deceased’s instructions. He had prepared at least three wills for the deceased prior to March 2000. At or about the time that he prepared the will which was executed on 18^th March 2000, Mr Peacock was told by the deceased that she wished to bequeath certain items of property to specified persons. The deceased told him that she had prepared a list of the items and the persons to whom she wished to bequeath the same. Mr Peacock advised the deceased to complete in writing the bequests and to give the same to her trusted friend, Mrs Byrnes.
The will was executed on 18^th March 2000 and Mr Peacock kept the original will in his office. He mentioned to the deceased perhaps on two occasions that she should finalise what she wanted to bequeath by way of specific gifts and that a new will should be prepared reflecting her wishes in that regard. Mr Peacock can recall the deceased telling him that she was organising it and that he should not push her. On numerous occasions before her death, the deceased told Mr Peacock that she kept her documents and records in what she described as her late husband’s roll-top desk, which desk was situated in her house. The deceased never advised Mr Peacock of the existence of any photographs or of any writing thereon relevant to the specific bequests which she had mentioned to him.
Under clause 11 of the will, Mr Peacock was appointed to attend the proving of the will and the administration of the deceased’s estate. On 20^th April 2003, Mr Peacock went to the deceased’s house. He was accompanied by his sister and secretary, Ms Pamela Loxton, and by Mrs Gladys Adams who had been the deceased’s housekeeper at the time of her death. Mr Peacock went to the roll-top desk and he found that it was locked. Mr Peacock opened the roll-top desk after Mrs Adams had located the key. He found a green cash tin in the roll-top desk. The tin was locked and again Mrs Adams was able to locate the key. Mr Peacock unlocked the tin and opened it in the presence of Ms Loxton and Mrs Adams. He found the list. It was a loose document in the sense that it was not within an envelope or other form of enclosure. The two pages were stapled together. He also found numerous envelopes within the said tin, and the envelopes were stacked one behind the other. Some of the envelopes were sealed while others were unsealed. Within an envelope which he subsequently numbered 5, he found nine smaller envelopes each containing one photograph. Each photograph had written upon the face thereof a number, being a number between one and nine. Mr Peacock opened each of the envelopes in the presence of Ms Loxton and Mrs Adams. After he had done so, the envelopes were returned to the tin and the tin was locked. Mr Peacock searched through the other papers in the roll-top desk, but he found no other documents which he considered expressed the testamentary intentions of the deceased. He conducted a search throughout the rest of the deceased’s house and he did not locate any other documents or material which expressed a testamentary intention of the deceased or which are relevant to this action.
Mr Peacock removed the tin, its contents and the key from the deceased’s house and took them to his office. On 11^th September 2003 he removed the envelopes from the tin. Each envelope and photograph was given a number. In each instance, the envelope and the photograph which he located within the envelope were affixed with the same number. He prepared an album of photographs. In addition to these photographs, Mr Peacock found five photographs depicting framed tapestries but without any writing on or accompanying the photographs or any accompanying document designating an intended beneficiary of those items. The executors named in the will do not seek to have these photographs admitted to probate.
Mr Peacock states that the handwriting on the list, envelopes and the photographs is that of the deceased. I make a finding to this effect.
The issues on the application
As I have said, probate of the will should be granted, and the important issue on this application is whether probate of the list, envelopes and photographs should be granted on the basis that they meet the requirements in s 12(2) of the Wills Act. That issue in turn raises two questions. First, are the items, and in particular the photographs, “documents” within the terms of s 12(2)? Secondly, and assuming an affirmative answer to the first question, do the list, envelopes and photographs express the testamentary intentions of the deceased and did the deceased intend the list, envelopes and photographs to constitute a codicil to the will?
I start with the question whether the list, envelopes and photographs are documents. Clearly, the list is a document and the envelopes which all have something written on them (ie., either a name or a more detailed note) are also documents. The more difficult question is whether the photographs, and in particular the photographs which have nothing written on them, are documents within the terms of s 12(2).
Section 8 of the Wills Act is a standard provision setting out the requirements for the execution of a valid will and it states that a will is not valid unless (inter alia) it is in writing. By contrast, s 12(2) refers to a document being admitted to probate. Neither the word “writing” nor the word “document” is defined in the Wills Act. The Acts Interpretation Act 1915 contains a definition of writing which will be taken to apply to the term used in the Wills Act unless a contrary intention appears. Section 4 of the Acts Interpretation Act contains the following definition of the word “writing”:
“ ‘writing’ includes any visible form in which words may be reproduced or represented.”
Unless it is a photograph of writing, a photograph does not fall within the terms of this definition.
A number of other legislatures in Australia have chosen to define the word “document” in their equivalent to the Acts Interpretation Act and other legislation and have done so in a way that makes it clear that a photograph is a document (Interpretation Act 1987 (NSW) (s 21); Interpretation Act 1978 (NT) (s 19); Acts Interpretation Act 1931 (Tas) (s 24(bb)); Interpretation of Legislation Act 1984 (Vic) (s 38); Acts Interpretation Act 1954 (Qld) (s 36); Legislation Act 2001 (ACT) (Dictionary Part 1); Evidence Act 1995 (Cth) (Dictionary); Interpretation Act 1984 (WA) (s 5)).
The wide definition of “document” in s 21 of the Interpretation Act 1987 (NSW) led Austin J to conclude in Treacey & Ors v Edwards; Estate of Edwards (2000) 49 NSWLR 739 that an audiotape could be admitted to probate under s 18A of the Wills, Probate and Administration Act 1898. That section is broadly equivalent to s 12(2) of the Wills Act.
In R v Hill [1945] 1 All ER 414 Humphreys J said when considering the meaning of the word “document” (at 417):
“I ask myself: What do I understand by a document in this relation? Whether I throw my mind back to the original meaning of the word ‘document’, which is presumably the English interpretation of the Latin word ‘documentum,’, or whether I look at the latest decision, which is I think the only decision upon the meaning of the word ‘document’ in recent years, I find that there is one underlying principle which must apply to all documents. I think the meaning of the word ‘document’ which originates, no doubt, from the Latin word ‘doceo,’ is that it must be something which teaches you, something from which you can learn something; in other words, something which gives you information. In the dictionaries, some of which have been referred to and some of which were referred to in a case which I am going to mention, the word ‘evidence’ is used repeatedly. It is said that a document must be something which is evidence. In my view it is plain that that word ‘evidence’ is not used in the sense of being something which is admissible in a court of law, it is used in its strict literal meaning, something which makes evident what would otherwise not be evident. Using the word in that sense, I agree that a document must be something which makes evident, which is not itself evidence of something which it purports to inform you about. Subject to that, I think the form which the so-called document takes is perfectly immaterial so long as it is information conveyed by something or other; it may be anything, upon which there is written or inscribed information.”
It seems that the courts have taken a broad view of what constitutes a “document” when they consider that that will fulfil the purpose of the relevant statutory provision (Victor Chandler v Customs and Excise [2000] 2 All ER 315; Huddleston v Control Risks Ltd [1987] 2 All ER 1035; R v Reed (1993) 173 LSJS 123; Lyell v Kennedy (No 3) (1884) 50 LT 730).
In the absence of a relevant statutory definition I have also considered various definitions of the word “document”. For example:
1A Concise Law Dictionary P G Osborn 9^th ed page 114
“document. Something on which things are written, printed or inscribed, and which gives information: any written thing capable of being evidence. See the statutory definition of the Civil Evidence Act 1995, s 13 and Criminal Justice Act 1988 Schedule 2”
2 Jowitt’s Dictionary of English Law J Burke 2^nd ed page 645:
“document, any solid substance upon which a matter has been expressed or described by conventional signs, with the intention of recording or transmitting that matter. A piece of paper on which words are written, typewritten, printed or stamped, or expressed by arbitrary signs or ciphers, is a document; and so is a tally or piece of wood with notches to represent figures or amounts”
3Concise Oxford Dictionary 10^th ed page 421:
“a piece of written, printed, or electronic matter that provides information or evidence or that serves as an official record”

I think that it is open to me to construe the word “document” in s 12(2) of the Wills Act in a broad way. It is probably true to say that the word document is primarily understood to mean writing on paper or similar material, but the cases and the definitions to which I have referred indicate that the word is not restricted to that meaning. Section 12(2) is remedial in intent and that is clearly established by the cases (In the Estate of Graham (1978) 20 SASR 198 per Jacobs J at 202; In the Estate of Williams (1984) 36 SASR 423 per King CJ at 425). It should not be given a narrow construction. I note also the wide definition of the word in the other States of Australia although that is to be accorded limited weight because that has come about because of statutory intervention. For present purposes, I think a document includes information recorded on a piece of paper and that it follows that the photographs in this case are documents. I note at this point that it has also been held by this Court that it is not necessary that the writing, if there be writing, be on a piece of paper. In the Estate of Slavinskyj (1988) 53 SASR 221 the writing was on a wall and it was held that that fact did not preclude the application of s 12(2) of the Wills Act.
Before leaving this issue I wish to make one or two observations about the use of photographs to record testamentary intentions. Depending on all the circumstances, the use of photographs might add to the difficulty of satisfying on the balance of probabilities the requirements in paragraphs (a) and (b) of s 12(2). Furthermore, and again depending on all the circumstances, the use of photographs may create difficulties for a court construing the testamentary documents. For example, difficulties might arise if two or more items of personal property are photographed, or if the item photographed has other items inside it.
The second question is whether the list, envelopes and photographs express the testamentary intentions of the deceased and whether the deceased intended the documents to constitute a codicil to her will. The question whether the documents express the testamentary intentions of the deceased involves a consideration of whether they contain a statement of her intentions as to what was to happen to the property described in the documents upon her death. In other words, is it clear that the documents express her intentions as to the disposition of the property upon her death? The question whether the documents were intended by the deceased to constitute a codicil to her will involves a consideration of whether the deceased intended the documents to be operative at her death to dispose of the property referred to therein in the manner described. There is obviously a significant overlap between the two requirements.
On the evidence, I have reached the conclusion that the two requirements in s 12(2) are satisfied. Section 12(2) relaxes the formal requirements for the execution of a valid will in s 8. The sub-section itself has been amended since it was first introduced such that the requirements for the proof of an informal will have themselves been further relaxed. When Jacobs J decided In the Estate of Graham (supra) in 1978, s 12(2) was in the following terms:
“(2)A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed with the formalities 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.”
Jacobs J said (at 202) that the sub-section, as it then was, was remedial in intent and that its purpose was to avoid the hardship and injustice which had arisen from a strict application of the formal requirements of a valid will. (See also In the Estate of Williams (supra) and In the Estate of Ryan (1986) 40 SASR 305.)
It must be said that taken in isolation there are some matters which suggest that a finding that the list, envelopes and photographs express the testamentary intentions of the deceased, and that she intended those documents to constitute her will, should not be made. Mr Peacock was the deceased’s solicitor and before preparing the will which was executed in March 2000 he had prepared at least three wills for the deceased. Those matters suggest that the deceased would have been aware of the procedure attendant upon the making of a will. After March 2000, Mr Peacock had regular contact with the deceased and he told her that she should finalise what she wanted to bequeath by way of specific gifts and that a new will should be prepared reflecting her wishes in that regard. On at least one occasion, the deceased responded by saying:
“I am organising it, don’t push me.”
It might be inferred from this that the deceased was aware that a new will should be prepared. The deceased never told Mr Peacock of the existence of any photographs or writing relevant to the specific bequests which she had mentioned to him. One might have expected her to do that.
On the other hand, these matters cannot be considered in isolation and there are a number of matters supporting the conclusion that the documents express the testamentary intentions of the deceased and that she intended the documents to constitute a codicil to her will. First, at the time she executed her will, the deceased had been advised by Mr Peacock after she had told him that she had prepared a list of the items and the persons to whom she wished to bequeath the same, to complete in writing a list of bequests and give the same to her trusted friend, Mrs Byrnes. That advice seems to reflect the provisions of clause 4 of the will. It is likely that as a result of that advice, the deceased considered that she could dispose of various personal items in an informal way. Secondly, the deceased told Mrs Byrnes on many occasions that it was her strong wish that she, Mrs Byrnes, ensure that the deceased’s wishes as to the disposition of specific bequests to specific persons upon her death would be honoured. The deceased told Mrs Byrnes that she had photographed many of the items which were the subject of the specific bequests and that she had written on the developed photographs her wishes indicating to whom the items were to be given. The deceased told Mrs Byrnes on a number of occasions that the photographs and her written instructions as to her wishes were kept in envelopes held in her late husband’s desk. The deceased told Mrs Byrnes that the items referred to were special to her and that she wanted them to pass to the persons she had designated. Thirdly, the list, envelopes and photographs were found in a locked tin in a locked desk and in a place where the deceased had told Mrs Byrnes the documents would be found. She had told Mr Peacock that she kept her documents and records in her late husband’s roll-top desk. Fourthly, at least for the most part the instructions themselves are quite clear and unequivocal. The deceased signed both pages of the list. She has signed some of the envelopes and some of the photographs.
Having regard to all these circumstances, I am satisfied on the balance of probabilities that the requirements in s 12(2) have been met.
Conclusion
In my opinion, the will should be admitted to probate. The list, envelopes and photographs satisfy the requirements of s 12(2) of the Wills Act and should also be admitted to probate.
I will hear the applicants as to the appropriate orders.