In the Estate of LESSES (DECEASED)
[2013] SASC 23
•21 February 2013
Supreme Court of South Australia
(Testamentary Causes Jurisdiction)
In the Estate of LESSES (DECEASED)
[2013] SASC 23
Reasons for Decision of The Honourable Justice Gray
21 February 2013
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF ADMINISTRATION GENERALLY - TO WHOM GRANTED AND WHEN NECESSARY GENERALLY - SOUTH AUSTRALIA
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - GENERALLY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS - GENERALLY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - MISTAKES AND OMISSIONS
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - PASSING OVER OF EXECUTOR AND OTHER MATTERS
Application for letters of administration with a will annexed - the will was prepared by the deceased's brother - it was read by the deceased and was then duly executed - whether the clause appointing the executor failed for uncertainty - whether that clause should be omitted from the will - whether the deceased had testamentary capacity - whether the deceased had knowledge and approval of the contents of the will.
Held: Application granted - the clause which sought to appoint the executor failed for uncertainty - it was unnecessary to omit the appointment clause from the will - the deceased had testamentary capacity - the deceased knew and approved the contents of the will.
Wills Act 1936 (SA) s 8; Probate Rules 2004 (SA) r 31, referred to.
In the Goods of Baylis (1862) 2 Sw & Tr 613; In the Goods of Blackwell (1877) 2 PD 72; In the Estate of Frame (deceased) (2007) 248 LSJS 341; In the Estate of Varley, deceased; In the Estate of Veldhuis deceased (2007) 251 LSJS 461; Hastilow v Stobie (1865) LR 1 P & D 64; Hoff v Atherton [2004] All ER (D) 314; Tyrrell v Painton [1894] P 151; Child v Osment [1914] P 129; Nock v Austin (1918) 25 CLR 519; Guardhouse v Blackburn (1866) LR 1 P & D 109; In re Morris deceased [1971] P 62; Gregson v Taylor [1917] P 256; Re Fenwick [1972] VR 646; Barry v Butlin [1838] EngR 1056; Re Horrocks; Taylor v Kershaw [1939] P 198; Hendy v Jenkins (1901) 18 WN (NSW) 140, considered.
In the Estate of LESSES (DECEASED)
[2013] SASC 23Testamentary Causes Jurisdiction
GRAY J.
On 24 April 2012, I made an order granting letters of administration with a will annexed. These are my reasons for making that order.
Introduction
On 4 June 2008, George Jim Lesses, the deceased, provided instructions to his brother, John Kosmas Lesses, to prepare a will. On 13 June 2009, the deceased executed the will in accordance with section 8 of the Wills Act 1936 (SA).[1] The will is in the following terms:
[1] Section 8 of the Wills Act 1936 (SA) 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).
LAST WILL
1. This is the last will of me, GEORGE JIM LESSES of … in the State of South Australia. By this will, I revoke all previous wills and testamentary acts and dispositions.
2. Executor
I appoint [e.g. NIKOLAS LESSES of … and JOHN KOSMAS LESSES] of … to be the Executor of my Will and Trustee of my estate, but if the said Nikolas Lesses and John Kosmas Lesses do not outlive me or are unwilling to act or are incapable of acting, then I appoint as the Executor the PUBLIC TRUSTEE of …
3. Gift of my Estate
I direct that the executor pay all my debts and the residue of my estate to be given into three [3] equal portions, to be given one portion to my partner Eleanor Lesses, one portion to my daughter Alison Jokela and one portion to my son Kosmas Lesses.
I direct that in the event of Eleanor Lesses’ death that her unallocated 1/3 portion shall be transferred to Jason Gronthos.
I direct that in the event of Alison Jokela’s death that her unallocated 1/3 portion shall be transferred to my grandson Jasper Jokela and in the event of any other siblings, such portion shall be divided in equal shares.
I direct that in the event of Kosmas Lesses’ death that his unallocated 1/3 portion shall be transferred to my granddaughter Andriana Lesses and in the event of any other siblings, such portion shall be divided in equal shares.
I direct that in the event of any of my grand children’s death that their unallocated portion shall be transferred to either of my aforesaid grandchildren Jasper Jokela and Andriana Lesses and/or other surviving grand children.
4. Funeral directions
I direct that I be interred at the Centennial Park Cemetery in the State of South Australia in accordance with the Greek Orthodox Faith.
5. Body Organ Donations
None of my body organs shall be used for any medical purpose or benefit of another person.
6. Estate held in trust
If the Executors determine to hold any part of my estate in trust for any beneficiary, the Executors shall have all the powers given to an executor or trustee by the legislation in any of the Australian States or Territories (not just the State or Territory where my estate is being administered) – free (as permitted) of any limitations expressed in terms of time or money.
SIGNATURES
Signed below in the presence of two witnesses.
TESTATOR
Signed and dated this 13th day of June 2009
[signed] (Signature of Testator)
[George Jim Lesses]
WITNESSES
This Will was signed by the Testator in the presence of both of us as witnesses and signed by both of us in the presence of the other, and in the presence of the Testator.
Name: Peter Kourakis (Signature): [signed]
Address: … Post Code: …
Name: Kosmas Lesses (Signature): [signed]
Address: … Post Code: …
[Emphasis in original.]
The deceased’s son, Kosmas Lesses, deposed that in 2008 he was informed by the deceased that he had been to see John, that he had organised his will and that John would be his executor. Kosmas was then informed by the deceased that the will provided that the deceased’s estate would be divided equally between the deceased’s wife, Eleanor Lesses, the deceased’s daughter, Alison Jokela, and Kosmas. Kosmas discussed the deceased’s will with him again in 2010. At that time, the deceased provided the same detail about the contents of the will. Similarly, the deceased informed Alison that he had made a will which provided that his estate would be divided equally between her, Mrs Lesses and Kosmas.
The evidence discloses that the deceased gave paperwork a low priority and that all of his legal paperwork was attended to by John. Alison provided an example of this. Following the deceased’s divorce to his first wife, an order was made by the Family Court that real estate in Coromandel Valley should vest in the deceased. However, the deceased did not arrange for his name to be registered on the Certificate of Title. When Alison became aware of this, she arranged with John for the title to be properly transferred into the name of the deceased. She went to the deceased’s house and collected the paperwork. She then discussed the process with John and the deceased’s lawyers.
Alison also deposed that the deceased was a carpenter and that he often conducted work based on a handshake rather than a written contract. Alison gave evidence that she telephoned the deceased to ensure that he had renewed his driver’s and building licences as she was concerned that he would not bother to renew them.
On 10 May 2011, the deceased died aged 70 years. He was survived by Mrs Lesses and his two adult children. They are all sui juris. The deceased’s estate has a net value of $399,513.14.
John made an application seeking a grant of probate. However, an issue was raised as to whether the clause in the will appointing the executors failed for uncertainty. Mrs Lesses, the deceased’s widow and a devisee and legatee named in the will, subsequently sought a grant of letters of administration with the will annexed.
Appointment of the Executor
The clause in the will which appoints the executor is in the following terms:
I appoint [e.g. NIKOLAS LESSES of … and JOHN KOSMAS LESSES] of … to be the Executor of my Will and Trustee of my estate, but if the said Nikolas Lesses and John Kosmas Lesses do not outlive me or are unwilling to act or are incapable of acting, then I appoint as the Executor the PUBLIC TRUSTEE of …
The issue of an uncertain appointment clause was addressed in In the Goods of Baylis.[2] In that matter, the appointment clause was in the following terms:[3]
I hereby appoint Lewis Alford, Esq., merchant, of Cape Town, to whom I bequeath ten pounds, as my executor, with any two of my sons
Sir C Cresswell decided that there was “uncertainty about the clause which [prevented him] treating it as an appointment”.[4]
[2] In the Goods of Baylis (1862) 2 Sw & Tr 613.
[3] In the Goods of Baylis (1862) 2 Sw & Tr 613, 613.
[4] In the Goods of Baylis (1862) 2 Sw & Tr 613, 614.
The subsequent decision of In the Goods of Blackwell[5] applied In the Goods of Baylis.[6] The appointment clause which was in question is emboldened in the following passage:[7]
… This is the last will and testament of me, Benjamin Blackwell, of Chertsey, in the county of Surrey, grocer and cheesemonger. I devise and bequeath all my real and personal estate, of whatsoever nature or quality, and wheresoever situate, of which I may be possessed or entitled unto at the time of my death, unto my three sisters, viz., Jane, Mary Ann, and Ann Blackwell, or to which of them as are alive at the time of my decease. And I do hereby appoint one of my sisters my sole executrix of this my last will, hereby revoking all other wills or testamentary bequests by me at any time heretofore made."
[Emphasis added.]
At the time of the testator’s death, only one of his sisters survived him. Despite that fact, Sir J Hannen (President) decided that the appointment clause was void for uncertainty:[8]
The question is, which sister did the testator appoint as executrix. I cannot infer from the words of the will that the testator intended to appoint any particular sister executrix. I may conjecture that he would have given directions to appoint the surviving sister if he had foreseen the events that have happened; but he has not done so. I cannot distinguish this case from that of In the Goods of Baylis, and I reject the motion.
[Footnote omitted.]
[5] In the Goods of Blackwell (1877) 2 PD 72.
[6] In the Goods of Baylis (1862) 2 Sw & Tr 613.
[7] In the Goods of Blackwell (1877) 2 PD 72, 72.
[8] In the Goods of Blackwell (1877) 2 PD 72, 72.
In the Goods of Baylis has also been cited with approval in South Australia. In In the Estate of Frame (deceased),[9] I cited it as an example of a decision in which the appointment of executors failed for uncertainty.[10]
[9] In the Estate of Frame (deceased) (2007) 248 LSJS 341.
[10] See footnote 4 in In the Estate of Frame (deceased) (2007) 248 LSJS 341.
In In the Estate of Veldhuis deceased,[11] the clause appointing the executor was in the following terms:[12]
I APPOINT my solicitor ROBERT LEMPENS of Camatta Lempens 391 Torrens Road Kilkenny solicitor or a partner of the firm with which Robert Lempens practices [sic] to be the sole Executor and Trustee of this my Will.
In respect of this clause, Debelle J relevantly observed:[13]
The uncertainty arises because the appointment of the executor is expressed in the alternative. An appointment of “A or B” as executor with no additional words indicating the circumstances in which B is to be executor is void. Similarly, the appointment of “any two of my sons”: re Baylis’ Goods (1862) 2 Sw&Tr 613, or “one of my sisters”: re Blackwell’s Goods (1877) 2 PD 72 is void for uncertainty. See generally Tristram & Coote Probate Practice (29th ed) at 119 and re Estate of Yearwood (1982) 30 SASR 169.
[11] In the Estate of Varley, deceased; In the Estate of Veldhuis deceased (2007) 251 LSJS 461.
[12] In the Estate of Varley, deceased; In the Estate of Veldhuis deceased (2007) 251 LSJS 461, [17].
[13] In the Estate of Varley, deceased; In the Estate of Veldhuis deceased (2007) 251 LSJS 461, [19].
In the present proceeding, the uncertainty arises as the wording of the appointment clause does not necessarily indicate that both John and Nikolas Lesses,[14] the deceased’s brothers, are to be joint executors. The singular use of “Executor” and “Trustee” suggests the opposite. However, the use of both of their names in combination with verbs using the plural form later in the appointment clause provides an indication that they are to be joint executors. The use of square parentheses and the abbreviation “e.g.” suggest that the clause in its current form was not intended to be its final form. Further, there is evidence before the Court that the deceased believed that only John was the executor of his will. This is not reflected in the terms of the will.
[14] This name is spelt in two ways on the court file. Except where the name forms part of a quote, I have used the spelling “Nikolas Lesses” throughout these reasons.
A reason for the unusual format of the appointment clause was provided by John. He deposed that he used the phrase “[e.g. NICHOLAS LESSES of … and JOHN KOSMAS LESSES]” in order to give the deceased the option as to who he might chose to be his executor. John did not suggest the appointment of Mrs Lesses or the deceased’s children as executor as he believed that a beneficiary could not act as an executor. John instructed the deceased to cross out one of the names if he only wanted one executor or to remove the brackets and cross out the “e.g.” if he wanted both executors. John also deposed that he said the following to the deceased: “Do you want to appoint both of us? Take the will home, read it carefully and talk to [Mrs Lesses] and the children. Then come back and tell me exactly what you want to do. I will then make the necessary corrections.” John suggested to the deceased that once the final draft of the will had been made, he then go to the Unley Civil Centre to have the will executed before a justice of the peace. It is evident from the terms of the executed will that the deceased did not follow these instructions.
In my view, the present proceeding falls into the same category of cases as those discussed above. The appointment clause was intended as a draft which was to be modified by the deceased before execution. This did not occur. This led to an uncertainty that cannot be resolved. Accordingly, I am of the opinion that the clause appointing the executor fails for uncertainty.
In these circumstances, it was appropriate for Mrs Lesses to bring an application seeking a grant of letters of administration with the will annexed.[15]
[15] See rule 31 of the Probate Rules 2004 (SA) which relevantly provides:
The person or persons entitled to a grant of probate or administration with the will annexed shall be determined in accordance with the following order of priority, namely -
(i) The executor;
(ii) Any residuary devisee and/or legatee in trust for any other person;
(iii) Any residuary devisee and/or legatee for life;
(iv) The universal or residuary devisee and/or legatee (including one entitled on the happening of any contingency), or, where the residue is not wholly disposed of by the will, any person entitled to share in the residue not so disposed of or, subject to Rule 35.03, the personal representative of any such person:
Provided that -
(a) unless the Registrar otherwise directs a residuary devisee or legatee whose devise or legacy is vested in interest shall be preferred to one entitled on the happening of a contingency; and
(b) where the residue is not in terms wholly disposed of, the Registrar may, if the Registrar is satisfied that the testator has nevertheless disposed of the whole, or substantially the whole of the estate as ascertained at the time of the application for the grant, allow a grant to be made to any devisee or legatee entitled to, or to a share in, the estate so disposed of or, subject to Rule 35.03, the personal representative of any such person without regard to the persons entitled to share in any residue not disposed of;
(v) Any specific devisee or legatee or any creditor or, subject to Rule 35.03, the personal representative of any such person or, where the estate is not wholly disposed of by the will, any person who, notwithstanding that the value of the estate is such that he or she has no immediate beneficial interest in the estate, may have a beneficial interest in the event of an accretion thereto;
(vi) Any specific devisee or legatee entitled on the happening of any contingency, or any person having no interest under the will of the deceased who would have been entitled to a grant if the deceased had died wholly intestate.
Knowledge and Approval of the Contents of the Will
A grant of letters of administration with the will annexed will only be made if the deceased had knowledge and approval of the contents of the will.[16] Before establishing knowledge and approval, it is necessary to establish that the deceased had testamentary capacity.[17]
[16] See, Hastilow v Stobie (1865) LR 1 P & D 64, 68 (Sir J P Wilde).
[17] See, Hoff v Atherton [2004] All ER (D) 314; see also Thomson Reuters, Australian Succession Law, vol. 1, [135.150].
Chee Moey, the deceased’s medical practitioner from April 1984 until his death in May 2011, reported that on 4 June 2008, when the deceased gave instructions for his will, and on 13 June 2009, the date on which the deceased executed his will, he had sufficient mental capacity to comprehend the nature of what he was doing and its effects, to realise the extent and character of the property he was dealing with and to weigh the claims upon his bounty which naturally ought to press upon him. This was supported by evidence from both of the deceased’s children that the deceased’s mental state did not change until a few weeks before his death. Prior to that, the deceased was described by his son as always having had perfect conversation, sharing a ribald sense of humour and discussing politics, family and the deceased’s work. The totality of the evidence is sufficient to satisfy me that the deceased had testamentary capacity at all relevant times.
In the present proceeding, the issue of whether the deceased knew and approved the contents of the will is more complex. The test for knowledge and approval of the contents of a will has previously been described in the following terms:
-Did the testatrix know what [he or she] was doing when [he or she] executed this will?[18]
-Is the court satisfied that the will does express the true will of the deceased?[19]
-Did the testator fail to understand the nature and effect of his or her act?[20]
[18] Tyrrell v Painton [1894] P 151, 156 (Lindley LJ).
[19] Child v Osment [1914] P 129, 132 (Sir Samuel Evans, President).
[20] Nock v Austin (1918) 25 CLR 519, 523 (Barton and Gavan Duffy JJ).
There are a number of presumptions relevant to the present proceeding. In Nock v Austin, Isaacs J made the following pertinent remarks:[21]
The relevant law is not doubtful. It may be thus stated:—(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents (Barry v. Butlin; Fulton v. Andrew). (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document (Baker v. Batt; Tyrrell v. Painton; Shama Churn Kundu v. Khettromoni Dasi). (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate (Baker v. Batt; Fulton v. Andrew). …
[Emphasis added. Footnotes omitted.]
[21] Nock v Austin (1918) 25 CLR 519, 528 (Isaacs J).
In Guardhouse v Blackburn, Sir J P Wilde relevantly observed:[22]
[22] Guardhouse v Blackburn (1866) LR 1 P & D 109, 116.
… After much consideration, the following propositions commend themselves to the Court as rules which, since the statute, ought to govern its action in respect of a duly executed paper:- First, that before a paper so executed is entitled to probate, the Court must be satisfied that the testator knew and approved of the contents at the time he signed it. Secondly, that except in certain cases, where suspicion attaches to the document, the fact of the testator's execution is sufficient proof that he knew and approved the contents. Thirdly, that although the testator knew and approved the contents, the paper may still be rejected, on proof establishing, beyond all possibility of mistake, that he did not intend the paper to operate as a will. Fourthly, that although the testator did know and approve the contents, the paper may be refused probate, if it be proved that any fraud has been purposely practised on the testator in obtaining his execution thereof Fifthly, that subject to this last preceding proposition, the fact that the will has been duly read over to a capable testator on the occasion of its execution, or that its contents have been brought to his notice in any other way, should, when coupled with his execution thereof, be held conclusive evidence that he approved as well as knew the contents thereof. Sixthly, that the above rules apply equally to a portion of the will as to the whole. …
[Emphasis added.]
However, Guardhouse v Blackburn[23] was not followed in In re Morris deceased.[24] It appears that the Court took issue with the conclusive nature of the fifth principle set out in the above extract. In In re Morris deceased, having reviewed a number of relevant authorities, Latey J then made reference to Gregson v Taylor[25] and Crerar v Crerar[26] to reach his conclusions. In this respect, his Honour observed:[27]
[23] Guardhouse v Blackburn (1866) LR 1 P & D 109.
[24] In re Morris deceased [1971] P 62.
[25] Gregson v Taylor [1917] P 256.
[26] Crerar v Crerar as cited in ‘Knowledge and Approval’ (1956) 106 Law Journal 694.
[27] In re Morris deceased [1971] P 62, 77-79.
In Gregson v. Taylor [1917] P. 256, Hill J., although not finding it necessary to determine the precise extent to which the effect of Guardhouse v. Blackburn, L.R. 1 P. & D. 109 must be taken to have been qualified, in cases where no fraud is alleged, by Fulton v. Andrew, L.R. 7 H.L. 448, assumed that it was no longer a binding rule. He went on to say, at p. 261:
"… the direction which a judge should give a jury or himself must be put at least as high as this, that when it is proved that a will has been read over to or by a capable testator, and he then executes it, these circumstances afford a very grave and strong presumption that he knew and approved all the contents, a presumption which can be rebutted only by the clearest evidence."
Indeed, when those conditions are satisfied prima facie the inference would be that the testator knew and approved, but the point is that the court is not precluded from considering all the evidence to arrive at the truth, and this is so not only if fraud is suggested but also if mistake is suggested.
In my opinion, the approach of the court today is as stated by Sachs J. in Crerar v. Crerar. This case was not reported. A transcript of the judgment was asked for, but it is the practice, so I was informed, for the shorthand writer to destroy his notes after 10 years have elapsed; and the judgment was given in April 1956. However, the material passages are quoted in an article written and signed by a member of the Bar, headed: "Knowledge and Approval," in the Law Journal of November 2, 1956, (106 Law Journal 694). Moreover, those parts of the judgment concerned with the law were prepared verbatim for delivery and Sachs L.J. has been good enough to allow me to verify from those prepared parts the accuracy of the quotations in the article. They are accurate. Sachs J. said that "inquiries touching the validity of a testamentary disposition have always been considered matters touching the conscience of the court," and he rejected
"the idea that there is any rule of law applicable to unusual cases which can so put that conscience into a strait-jacket as to preclude it from drawing inferences in the usual way and thus force the court to a decision which would, on the particular facts, be artificial."
He went on to say that the court had
"to consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption of law."
The author of the article concluded by hoping:
"… that the decision of Sachs J. in the Crerar case will help the probate court to give effect to the wishes of other testators, and to avoid imputing to them a fictitious knowledge and approval of testamentary documents whose meaning they did not know and would not have approved."
That aspiration, in my opinion, should not be a pious one.
The testatrix was competent, did (as I have found) in a literal, physical sense read the codicil and did duly execute it, and if the rule in Guardhouse v. Blackburn L.R. 1 P. & D. 109 survived, I should be bound to find that she knew and approved of the contents of it. But that rule does not survive in any shape or form and on all the evidence I have no doubt at all that she did not in fact know and approve its contents.
Although the remarks of Latey J cast doubt on the absolute nature of the statement in Guardhouse v Blackburn, those remarks do not detract from the fact that reading the will prior to its execution is grave and strong evidence that the testator knew and approved the contents of the will. This view is supported by the following observations of Menhennitt J in the Victorian Supreme Court decision of Re Fenwick:[28]
1. The due execution of a will raises a presumption that the testator knew and approved of its contents: Barry v Butlin [1838] EngR 1056; (1838) 2 Moo PC 480; 12 ER 1089; Re Horrocks; Taylor v Kershaw, [1939] P 198, at p. 216; [1939] 1 All ER 579.
2. In an appropriate case, probate may be granted in respect of portion only of a document executed as a will, omitting other portions where, for example, by fraud, mistake or inadvertence there has been included in the instrument words which in truth were not part of the will of the testator: Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153; [1961] ALR 831; Re Duane (1862) 2 Sw and Tr 590; 164 ER 1127; Fulton v Andrew (1875) LR 7 HL 448; [1874-80] All ER Rep 1240; Rhodes v Rhodes (1882) 7 App Cas 192, at p. 198, and Re Hemburrow, deceased [1969] VicRp 98; , [1969] VR 764.
3. Whilst probate may be granted in an appropriate case with words omitted from a will, it is not permissible to grant probate with words added: Re Horrocks; Taylor v Kershaw, supra, and Re Hemburrow, deceased, supra, although this last-mentioned rule is qualified by the rules applied in Re Tait, deceased [1957] VicRp 57; , [1957] VR 405; [1957] ALR 862.
4. The onus is on those who seek to have probate granted with words omitted to rebut the presumption of knowledge and approval of those words which arises from the due execution of the will. …
5. Where it is established that a will has been read by or to a testator, the presumption that the testator knew and approved of the contents of the will is a very strong one and can be rebutted only by the clearest evidence: Gregson v Taylor, [1917] P 256, at p. 261. I agree with the statement in Williams & Mortimer, Executors, Administrators and Probate, at pp. 157, 158 that "it is, however, going too far to say that it must be established beyond all doubt that the words which a party seeks to have omitted did not form part of the testator's will", as was said in Gregson v Taylor, supra. The onus was not put as high as that in Re Horrocks; Taylor v Kershaw, supra. Further, I agree, with respect, with the conclusion of Latey, J, in Re Morris, deceased, [1971] P 62; [1970] 1 All ER 1057 (and followed by Stirling, J, in Re Phelan, deceased, [1971] 3 WLR 888; [1971] 3 All ER 1256, that, in so far as Guardhouse v Blackburn (1866) LR 1 P and D 109; [1861-73] All ER Rep 680; Atter v Atkinson (1869) LR 1 P and D 665, and Harter v Harter (1873) LR 3 P and D 11, p. 22, may have laid down a rule that where a will has been read by a testator, there is a conclusive presumption that he knew and approved of its contents except in the case of fraud, later decisions, on which Latey, J, relies, qualified this rule and extended the exception to include mistake.
[Emphasis added.]
[28] Re Fenwick [1972] VR 646, 651-652.
In the present proceeding, the deceased’s will was duly executed which raises the presumption that the deceased knew and approved of its contents.[29] Further, a subscribing witness to the will deposed that prior to its execution, the deceased read over the document and appeared to thoroughly understand it and to have full knowledge of its contents. The reading of the will prior to execution raises a presumption that the deceased knew and approved its contents.[30] The only evidence which could rebut these presumptions relates to the appointment clause. Accordingly, the issue to be determined is whether the deceased knew and approved of the terms of the appointment clause in his will. Having regard to the evidence of the deceased’s conversations with his children about his will which indicate that he had an accurate understanding of the distribution of his estate in accordance with the terms of the will and based on the fact that the deceased read the will prior to its execution and appeared to have knowledge of its contents, I am satisfied that he knew and approved the other terms of his will.
[29] See, Re Fenwick [1972] VR 646 citing Barry v Butlin [1838] EngR 1056; Re Horrocks; Taylor v Kershaw [1939] P 198, 216; see also, Nock v Austin (1918) 25 CLR 519, 528.
[30] See, Gregson v Taylor [1917] P 256, 261; Re Fenwick [1972] VR 646.
It can be inferred from the evidence that the deceased intended for John to be the executor of his will. The deceased had informed both of his children that John would be his executor and the deceased also informed Alison that “John would look after everything”. Further, the deceased did not ever mention to either of his children that Nikolas Lesses was named as an executor in his will.
However, there is also evidence that John had discussed the appointment clause with the deceased and that, prior to execution, the deceased read the will. By executing the will without modifying the appointment clause, it can be inferred that the deceased had knowledge of it and approved its contents.
Further, the deceased was a man who had a lot of time for his work, his friends and his family, and little time for paperwork. This could explain why he was prepared to execute the will even though the appointment clause still contained square parentheses, the abbreviation “e.g.” and inconsistencies between the use of the singular and the plural.
In Hendy v Jenkins,[31] the Court decided that where a testator knows of the terms of his or her will and does not alter those terms for a number of years following execution, then that constitutes strong evidence of knowledge and approval of its contents. In the present proceeding, the deceased executed the will in June 2009 and it remained unaltered from that time until his death in May 2011. In my view, this evidence, in combination with the strong presumption in favour of knowledge and approval due to the fact that the deceased read the will and duly executed it, is sufficient to satisfy me that the deceased did have knowledge and approval of the contents of his entire will, including the clause appointing the executor.
[31] Hendy v Jenkins (1901) 18 WN (NSW) 140.
Omission of Words from the Will
The final issue to be addressed is whether the clause purporting to appoint the executor should be omitted from the will. I have found that the deceased knew and approved the contents of the clause, but that it fails for uncertainty. Wills often contain words which are not given any effect. For example, it is often unnecessary to give effect to the words in substitution clauses. In the present proceeding, the appointment clause will be given no effect as it fails for uncertainty. In my view, it is not necessary to omit the appointment clause from the will.
Conclusion
As earlier mentioned, on 24 April 2012, I ordered that letters of administration with the will annexed be granted to Mrs Lesses.
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