In the Estate of LINDA VERA FRENCKEN - [2017] SASC 160

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of LINDA VERA FRENCKEN (DECEASED)
[2017] SASC 160
Reasons of The Honourable Justice Stanley
9 November 2017
SUCCESSION - MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - DESTRUCTION OR MUTILATION, OR STRIKING OUT PORTIONS - GENERALLY
Application for the admission of a will to probate in common form disregarding a blue pen mark through part of clause 3 of the will.
The deceased made a will dated 25 March 2003 using a homemade will kit. It was found in a pre-printed envelope titled “MY WILL” and located in a drawer at her last residence. The will appears to have been executed in accordance with the formalities required by s 8 of the Wills Act 1936 (SA). The blue ink looping scrawl, through part of clause 3 of the will, was not executed in accordance with the requirements of ss 22(c) or 24 of the Act. Evidence of one of the attesting witnesses established that at the time the will was executed, the deceased appeared to have thoroughly understood the terms of the will, and that at that time, there was no blue mark through clause 3.
Held: Application granted. Probate of the will dated 25 March 2003 of Linda Vera Frencken be granted in common form, disregarding the mark to Harry Frencken, the executor named in the said will.
Wills Act 1936 (SA) s 8, s 12, s 22, s 24; Statutes Amendment Repeal (Attorney-General’s Portfolio) Act 2000 (SA) (SA), referred to.

In the Estate of LINDA VERA FRENCKEN (DECEASED)
[2017] SASC 160
Stanley J.
Introduction

This is an application for the admission of a will to probate in common form disregarding a blue pen mark.
Linda Vera Frencken died on 1 February 2013 (the deceased). The deceased is survived by her husband, Harry Frenken, formerly called Henricus Cornelius Frencken, and in the will called Henricus Cornelius Frencken, and two adult children, Lisa Anne Frencken and Adrian John Frencken. She made a will dated 25 March 2003 using a homemade will kit titled “MY LAST WILL” (the will). The will was found in a pre-printed envelope titled “MY WILL” and was located in a drawer in the deceased’s last residence. The will appears to have been executed in accordance with the formalities required by section 8 of the Wills Act 1936 (SA) (the Act) and the deceased’s husband as the named executor has now applied for a grant of probate.
The will
The will is a single-page document with writing on both sides. Part of the document is printed and part of the document is hand-written in black ink. On the evidence, I am satisfied that the handwriting is that of the deceased.
The will provides that the testatrix revokes all previous wills and appoints her husband as executor and if he did not survive her, then the will appoints her daughter as executor. The will expresses a wish that the testatrix be cremated and that all of her personal items, including jewellery and clothing, be given to her husband.
In issue is a blue ink looping scrawl through clause 3 of the will on the front page (the mark). The mark is visible to the naked eye and the wording of clause 3 is still legible. However, the mark has not been executed in accordance with either of the requirements of section 22(c) or 24 of the Act. Section 22(c) provides:
22—In what cases wills may be revoked
Subject to section 12(3), no will or codicil or any part of a will or codicil is revoked otherwise than—
...
(c) by some writing declaring an intention to revoke the will or codicil or the part of the will or codicil and executed in the manner in which a will is required by this Act to be executed;
Section 24 provides:
24—No alteration in a will has any effect unless executed as a will
No obliteration interlineation or other alteration made in any will after its execution is valid or has any effect except so far as the words or effect of the will before such alteration are not apparent unless the alteration is executed in the manner in which a will is required by this Act to be executed; but the will with the alteration as part of the will is to be taken to be duly executed if the signature of the testator and the subscription of the witnesses are made in the margin or on some other part of the will opposite or near to the alteration or at the foot or end of or opposite to a memorandum referring to the alteration and written at the end or some other part of the will.
The Registrar of Probates has referred the matter to me to determine whether pursuant to section 12(3) of the Act, the mark has revoked a portion of clause 3 of the will.
The relevant part of clause 3 where the mark appears, states:
Upon my death and after payment of any requests or special gifts listed in clause 2 and payment of all my debts, funeral and testamentary expenses I GIVE the rest of my estate as follows:
I Give $20,000 each to my children – Lisa Anne Frencken and Adrian John Frencken from my Insurance policy with Savings and Loans. The rest of insurance money and the Superannuation from the Savings and Loans Policy I give to my Husband Harry Frencken.
I give my Super SA to my Husband Harry Frencken.
I give my share of Estate to my husband Harry Frencken, if he fails to survive me I give it to my two children – Lisa Anne Frencken and Adrian John…
The remainder of clause 3 carries over to the back page but there is no mark in blue ink through the remainder of clause 3 on the back page. That reads:
Frencken; in equal shares. If any of my two children fail to survive me and they have children then the share of my estate which each child would have received shall go to his or her children (my grandchildren) when they reach 21 years of age in equal shares. If my husband, Harry, fails to survive me all my life insurance, superannuation (savings & loans) and SA Super shall be shared equally between my two children Lisa Anne Frencken and Adrian John Frencken, upon their failing to survive me and they have children to be shared equally, upon reaching 21 years of age.
The evidence
There is evidence from one of the attesting witnesses, Linda Ansell, that the will was executed by the testatrix herself and the other subscribing witness at the same time in the presence of each other and that the testatrix signed the will twice, once in the correct location, in accordance with the instructions in the will kit, and once adjacent to the words “SIGNED BY THE TESTATOR”. Ms Ansell says that the testatrix explained that she was making gifts to her husband and to her children. She says that the testatrix appeared to understand thoroughly the contents of the will. Importantly, she says that she had no recollection of any blue mark on the will when she affixed her signature as a subscribing witness.
The evidence further establishes that the will was located by Harry Frencken after the testatrix’s death. Until then he had no knowledge of the existence of the will. I am satisfied that neither of the testatrix’s children had seen the will prior to its discovery by their father. Accordingly, there is no evidence as to how or when the mark was made on the will, or who made it.
Apart from Harry Frencken, the only persons who had a share in the estate of the testatrix are her children who are sui juris and have attained their majority. The total value of the estate is estimated to be $43,800.
The evidence establishes that, at the time that the testatrix executed the will, she held a superannuation account with SuperSA with a balance not exceeding $132.600.84. On or about 20 April 2011 the deceased was paid $132,600.84 as a total and permanent disability insurance benefit pursuant to her policy with SuperSA. People’s Choice Credit Union, formerly Savings and Loans, has no record of a life insurance policy for the testatrix. Inquiries made with CGU Insurance, at the suggestion of People’s Choice Credit Union, indicate that GGU Insurance has no record of an insurance policy for the testatrix.
Possible consequences
Whether the will is admitted to probate disregarding the blue mark, or is admitted to probate excluding the terms of clause 3, whether in whole or in part, or the blue mark is construed as revoking the will in its entirety, Harry will take the entirety of the testatrix’s estate either as beneficiary[1] or on an intestacy. Accordingly, the interests of the testatrix’s children are unaffected. In any event, they have consented to the application by their father for the will to be admitted to probate, disregarding the blue mark.
[1] The testatrix’s husband will take the whole of the residue of the estate in these circumstances because the pecuniary legacies to the children are ineffective as the testatrix did not have any interest in an insurance policy at the date of her death.
Consideration
Section 22(d) of the Act provides:
Subject to section 12(3), no will or codicil or any part of a will or codicil is revoked otherwise than –
...
(d)by the burning, tearing or otherwise destroying the will or codicil or the part of the will or codicil by the testator or by some person in the testator’s presence and by the testator’s direction with the intention of revoking it.
Section 12(3) provides:
12—Validity of will
...
(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.
Prior to the amendment of the Act effected by the Statutes Amendment and Repeal (Attorney-General’s Portfolio) Act 2000 (SA) which amended s 22 of the Act by the inclusion of the qualifying words “subject to section 12(3)”, the law in South Australia provided that s 22(d) had a restrictive application such that an alteration to a will affected by striking through a provision with a pen was of no effect unless it was attested to by witnesses, or unless the original words of the provision were rendered utterly illegible. The authorities considered that striking the will through with a pen in that manner was not effective to revoke the will or a provision of the will.[2]
[2] In the Estate of Shephard (deceased) (1982) 29 SASR 247; In the Estate of Kirs (deceased) (1990) 55 SASR 61.
The effect of the 2000 amendment to the Act is to provide that where a court is satisfied that a document that has not been executed with the formalities required by the Act, but nonetheless expresses an intention to revoke a testamentary document that might otherwise have been admitted to probate as a will, it is not to be admitted in accordance with the provisions of s 12(3).
In my view, s 12(3) does not apply in this case. On the evidence before the Court, I am not satisfied that the testatrix intended to revoke either the will or just clause 3.
The evidence does not enable me to be satisfied that the mark was made by the testatrix, let alone that it was made with the intention of revoking all or part of the document. On the contrary, there is reason to find that the testatrix did not intend to revoke the document, but intended that it would have testamentary effect. That inference arises from the following facts that I am satisfied have been established:
·the testator did not destroy the document;
·the document was retained in its envelope;
·the document was found in a drawer at the deceased’s residence years after it was executed;
·no other will or testamentary document has been located;
·the deceased knew she was dying and, nonetheless, appears to have retained the document;
·there are no other words in the document or markings on the document which unequivocally evidence an intention to revoke the will or clause; and
·it is apparent that when the testatrix made the will she appreciated the need to comply with the formalities that were explained in the will kit. Those instructions included a direction that if the testatrix wished to alter the terms of the will she must cross out the clause or clauses and the alterations must be initialled by her and attesting witnesses. The non-compliance with these directions strongly contraindicates an intention to revoke.
Insofar as any suggestion might be made that the mark evidences an intention to revoke clause 3, I consider that is contraindicated by the failure to strike through the whole of clause 3.
For these reasons, I am satisfied that the document should be admitted to probate in common form, disregarding the blue mark.
Conclusion
I would order that probate of the will dated 25 March 2003 of Linda Vera Frencken be granted in common form, disregarding the mark, to Harry Franken, the executor named in the said will.
I direct the costs of this application be paid out of the estate