In the Estate of MARGARET JEANETTE WESTWOOD (DECEASED) - [2014] SASC 23

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of MARGARET JEANETTE WESTWOOD (DECEASED)
[2014] SASC 23
Judgment of The Honourable Justice Gray
5 March 2014
SUCCESSION - MAKING OF A WILL - EXECUTION - ATTESTATION - GENERALLY
SUCCESSION - MAKING OF A WILL - EXECUTION - ATTESTATION - ATTESTATION CLAUSE
This is an appeal from a decision of the Registrar of Probates to refuse an application for a grant of probate. Margaret Jeanette Westwood, the deceased, left a will executed in 1996 in which she appointed the applicant as executor. The will contained the following attestation clause “SIGNED by [the deceased] in the presence of us both present at the same time in her presence have signed our names as witnesses.” Probate was refused by the Registrar of Probates. The applicant has appealed against that decision.
Whether the attestation clause used in the deceased’s will excludes the possibility of noncompliance with section 8 of the Wills Act 1936 (SA). Whether the Court should apply the presumption of regularity. Where the evidence established that the deceased had executed wills on five previous occasions and that the likelihood was that, at the time of executing the 1996 will, the deceased had access to an instruction form conveying the formalities required for compliance with section 8 of the Wills Act.
Held (allowing the application for a grant of probate):
(1) The attestation clause is grammatically incorrect (at [17]). It is possible that a reasonable testator or witness might have construed the attestation clause in a manner that does not comply with the requirements of section 8 of the Wills Act (at [18]). There is some doubt about the due execution of the deceased’s will (at [18]).
(2) The deceased’s will was duly executed and is admitted to probate (at [29]).
Probate Rules 2004 (SA) r 17 and r 76; Supreme Court Civil Rules 2006 (SA) r 286; Wills Act 1936 (SA) s 8, referred to.
In re Bladen [1952] VLR 82; In re Unsworth, deceased; McLeod v Burchall (1974) 8 SASR 312, considered.

In the Estate of MARGARET JEANETTE WESTWOOD (DECEASED)
[2014] SASC 23
Testamentary Causes Jurisdiction
GRAY J.

This is an appeal pursuant to rule 76 of the Probate Rules 2004 (SA) against a decision of the Registrar of Probates to refuse an application for a grant of probate in respect of the estate of Margaret Jeanette Westwood, the deceased.
The deceased died on 27 June 2012, leaving a will made on 30 October 1996 in which she appointed Austrust Limited and her husband, since deceased, to act as her executors. The application for a grant of probate was made by Australian Executor Trustees Limited, formerly known as Austrust Limited, as the sole surviving executor. The statement of assets and liabilities records a net value of the deceased’s estate of $153,805.38.
The deceased’s will contains the following attestation clause:
SIGNED by MARGARET JEANETTE WESTWOOD in the presence of us both present at the same time in her presence have signed our names as witnesses.
The will then bears the signatures of two attesting witnesses, Jacqueline Mills and Donald Cook.
On 14 December 2012, the Probate Registry issued a memorandum to the applicant stating that the above attestation clause was defective and requesting that one of the attesting witnesses provide an affidavit of due execution and knowledge of contents in accordance with rule 17.01 of the Probate Rules. That rule provides:
Where a will contains no attestation clause or the attestation clause is insufficient or where it appears to the Registrar that there is some doubt about the due execution of the will, the Registrar shall, before admitting it to proof, require an affidavit as to due execution from one or more of the attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present at the time the will was executed.
Following further correspondence with the Probate Registry, the applicant made written submissions to the Registrar of Probates. It was contended that the attestation clause used in the will was not defective, that rule 17.01 of the Probate Rules was not engaged and that the Registrar of Probates was therefore not entitled to require an affidavit of due execution in accordance with that rule.
On 27 June 2013, the Registrar of Probates published reasons for judgment and made an order refusing the application for probate. In his reasons, the Registrar indicated that the attestation clause used in the will of the deceased was “unusual” and “grammatically incorrect”. After setting out the attestation clause, the Registrar observed:
One would expect such an attestation clause to say:
“in the presence of us both present at the same time and we in her presence have signed out names as witnesses”
or
“in the presence of us both present at the same time who in her presence have signed out names as witnesses”.
There is at least one word missing from the clause. It is not the job of an examining officer to speculate as to what word or words those might be. There is a defect in the clause. In my view, it does not matter whether that defect is an “insufficiency” – although I think that it is. The fact is that the defect properly raises concerns in the mind of the examining officer. There is a “doubt”. The examining officer was correct to issue the requisition.
[Emphasis added.]
The applicant has appealed against the Registrar’s decision. The appeal is out of time and the notice of appeal is accompanied by an application for an extension of time. I consider it appropriate to grant an extension of time within which to bring the appeal.
On the appeal, the applicant sought to rely on affidavits sworn by Neil Whitehall Page, legal counsel for the applicant, and Elyse Amber Miller, the client service adviser for the applicant. Mr Page also gave oral evidence on the hearing of the appeal.
The Nature of the Appeal
An appeal against a decision of the Registrar of Probates may be brought in accordance with rule 76 of the Probate Rules. Rule 76.01 provides:
An appeal shall lie to a Judge in Chambers from any judgment, determination, order, direction or decision given or made by the Registrar or Deputy Registrar and shall be instituted in the manner prescribed by Supreme Court Rule 97.03(1).
Provided that where any person aggrieved is desirous of appealing from any judgment, determination, order, direction or decision of the Deputy Registrar the matter must first be referred to the Registrar for a direction (unless the Registrar is absent) and the Deputy Registrar must act in accordance with such direction.
The reference to Supreme Court Rule 97.03(1) appears to be a reference to the Supreme Court Rules 1987 (SA), which apply only to actions commenced before 4 September 2006. The relevant provisions under the Supreme Court Civil Rules 2006 (SA) appear to be those set out in Part 2 of Chapter 13. In particular, section 286 provides:
(1)An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2)Subject to any limitation on its powers arising apart from these rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3)Subject to any limitation on its powers arising apart from these rules, the Court may—
(a)     draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b)     amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c)     remit the case or part of the case for rehearing or reconsideration;
(d)     make orders for the costs of the appeal.
In the absence of any indication to the contrary, it would appear that the present appeal is to be by way of rehearing.
The Attestation Clause
Section 8 of the Wills Act 1936 (SA) sets out the formalities required for the execution of a valid will. That section 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).
Where it is established that a will has been executed in accordance with the formalities required by section 8 of the Wills Act, it is assumed that the testator had testamentary capacity and knew and approved of the contents of the will. In the absence of circumstances suggesting a concern, the use of an attestation clause which excludes the possibility of noncompliance with section 8 is sufficient to establish due execution. A function of an attestation clause is therefore to address the need for compliance with section 8.
On the appeal, the appellant submitted that the Registrar did not identify any aspect of compliance with section 8 of the Wills Act which he considered was not satisfied by the attestation clause used in the deceased’s will or which gave rise to a doubt as to compliance in that respect. It was contended that the attestation clause necessarily demonstrated compliance with each of the requirements of section 8. It was further submitted that it is irrelevant that the particular form of attestation clause used could have been cast in other terms, or could have included additional words which would have rendered it more grammatical or elegant in form.
The applicant further submitted that the sufficiency of the attestation clause used in the deceased’s will is a question of some importance and concern to the applicant. Mr Page deposed that the particular attestation clause used in the deceased’s will may be replicated in hundreds or thousands of wills that have been drawn by the applicant in the past and which may be the subject of future applications for probate. The applicant, however, has made a review of a small sample of the wills held by it, but has been unable to locate any other wills that use the same specific attestation clause.
On the appeal, a practitioner from the Crown Solicitor’s Office appeared as amicus curiae to make written and oral submissions to assist the Court with the issues arising. In those submissions, counsel traced the history of attestation clauses and contended that such clauses perform two broad functions. First, an attestation clause acts as an instruction in telling the testator and the witness what to do. Secondly, an attestation clause serves an evidentiary purpose in conveying the actions of those signatories who through it make their declaration. It was submitted that, in order to perform these functions, an attestation clause should be clear and unambiguous such that the testator and the attesting witnesses are left in no doubt as to what they must do and what they are declaring that they collectively have done. It was contended that the attestation clause used in the deceased’s will is affected by a grammatical error and that it remained for the Court to determine whether that error was such that the attestation clause was “insufficient” or was capable of giving rise to some doubt about the due execution of the will.
The attestation clause used in the deceased’s will is grammatically incorrect in that without additional words or punctuation, it does not form a complete sentence. The difficulty that arises relates to the ability of the attestation clause to exclude noncompliance with subsections 8(c) and (e) of the Wills Act. Those subsections require two separate acts – signing by the testator and witnessing. An attestation clause must address each of those acts. It may do so by describing the acts in separate sentences. The present attestation clause describes these two acts in a composite sentence. The problem is that without additional conjunctions and pronouns being inferred by the reader, the two acts are liable to be run together. Depending on where those additional conjunctions and pronouns are inferred, the clause may be susceptible to different interpretations, not all of which comply with the requirements of section 8.
It is to be borne in mind that the function of an attestation clause is to exclude the possibility of noncompliance with section 8 of the Wills Act. It is insufficient for an attestation clause to merely be consistent with compliance. In the present case, it is possible that a reasonable testator or witness might have construed the attestation clause in a manner that was consistent with the requirements of section 8. However, in my view, it is also possible that a reasonable testator or witness might have construed the attestation clause in a manner that did not comply with section 8. Accordingly, I consider that there is some doubt about the due execution of the deceased’s will.
The Alternative Contention
The above conclusion regarding the attestation clause gives rise to the further issue of how this Court should now dispose of the application for probate. The applicant submitted that this Court is in a position, on the state of the evidence before it on the appeal, to determine that an order should be made directing the Registrar to issue a grant of probate without further requirements of the appellant.
Rule 17.01 of the Probate Rules, as extracted earlier, provides that where there is some doubt about the due execution of the will, the Registrar shall require an affidavit as to due execution from one or more of the attesting witnesses. Mr Page has deposed that of the two attesting witnesses to the deceased’s will, Mr Cook is deceased and there is little or no practical possibility of obtaining an affidavit of due execution from Ms Mills. As such, the requirement under rule 17.01 cannot be satisfied and it is necessary to consider the two alternatives under rule 17.
Rule 17.02 of the Probate Rules provides:
If no affidavit can be obtained in accordance with Rule 17.01, the Registrar may, if the Registrar thinks fit, accept evidence on affidavit to show that the signatures on the will are in the handwriting of the deceased and of the subscribing witnesses or of any other matter which may raise a presumption in favour of the due execution of the will.
The applicant submitted that if the Court were to proceed under rule 17.02, the applicant would be required to procure affidavits identifying the signatures of the deceased and both attesting witnesses. It was contended that this would be onerous, particularly in regard to the witness Mr Cook. The applicant therefore submitted that it was unnecessary and undesirable for the Court to require the applicant to attend to the further steps envisaged by rule 17.02.
Rule 17.03 of the Probate Rules provides that:
The Registrar may admit a will to proof without evidence as aforesaid upon being satisfied that the distribution of the estate is not thereby affected.
This rule cannot apply in the present circumstances. The penultimate known will of the deceased was made on 23 April 1985. The beneficiaries under that will are different to the beneficiary under the 1996 will. The distribution of the deceased’s estate would therefore be affected by admission of the 1996 will to proof.
The applicant submitted that, in the circumstances, the Court is entitled to apply the presumption of regularity and make an order for the admission of the will to probate in common form. The attention of the Court was drawn to a number of authorities in which the presumption has been applied in relation to the execution of a will containing no attestation clause, or an imperfect attestation clause.
In In re Bladen, Sholl J made the following observations regarding the application of the presumption of regularity in circumstances where there is no attestation clause or a defective attestation clause:[1]
… But it appears to me, after considering the numerous authorities cited to me in the course of the argument and others which I have looked at for myself, that even when there is no attestation clause or merely an attestation clause omitting the declaration of all or some of the requirements of the law, there has for over 100 years at least been applied to wills a presumption of due execution where both witnesses are dead or are unavailable or undiscoverable (usually on proof of their signatures and their death or unavailability); where one or both witnesses survive but has or have no memory of the relevant events; where one or both survive but his or their evidence is rejected; and where both survive and their evidence is conflicting, but the witness negativing due execution is not accepted. Sometimes in these cases the Courts have relied, indeed I think it is right to say that wherever possible they have relied, upon surrounding circumstances in order to support the finding of due execution by logical inferences of fact. But it is not to be denied that over a long period it is possible to find a considerable body of authority according to which in the absence of any proof that the testator or the witnesses knew the requirements of the law, and in the mere presence of a document bearing the signature of the testator and the signatures of the witnesses, with an incomplete attestation clause, or with none, the courts have admitted such documents to probate on the basis of a presumption of due execution. Indeed as early as 1843 it was stated in the Privy Council that it was admitted that if the witnesses were dead such a document would be admitted to probate; see Cooper v. Bockett (1846), 4 Moo. P.C.C. 419, at p. 434; and even before the Wills Act, Tindal C.J., in Wright v. Tatham (1834), 1 Ad. & El. 3, at p. 22, said that the signature of an attesting witness, proved after his death, would warrant the presumption that he witnessed all that the law required for the due execution of a will. …
…
The presumption of due execution, in the absence of an attestation clause, and in the absence or rejection of positive testimony, is frequently referred to as an application of the maxim omnia praesumuntur, and that maxim is usually referred to as a presumption of law: see Phipson (8th ed.), pp. 662, 665-6; Best, op. cit., 312; Halsbury's Laws of England (2nd ed.), vol. 13, p. 635. But this so-called presumption has not perhaps attained the full status of a presumption of law. The ultimate onus of proving an issue may ordinarily be discharged by direct evidence, by circumstantial evidence, or by presumption–per Dixon J., Axon v. Axon (1937), 59 C.L.R. 395, at p. 403. So, as in that case, the onus of proving a subsisting marriage may be proved in the first instance by proof of the ceremony and by reliance on the presumption of validity, so that the onus of adducing evidence establishing, on the balance of probabilities, an earlier marriage subsisting at the time of the later ceremony is thrown upon the opposite party, and if he does not adduce it, the presumption carries the day. But, in the case of a will, no presumption of due execution arises from the mere tender of the document, without any evidence as to the witnesses, unless it is produced from proper custody and is over thirty years old. Otherwise, it is only when the evidence of the witnesses is unavailable, or is rejected, or fails to help the Court to a conclusion, that the presumption arises. Otherwise a propounder could always launch a case by mere production of an apparently regular will, however recent.
[1] In re Bladen [1952] VLR 82, 85-87.

The application of the presumption of regularity in the case of execution of a will was also considered by Bray CJ in In re Unsworth, deceased:[2]
… There is a presumption in the case of a will, regular on the face of it and apparently duly executed, that the formal requirements of the statute have been duly complied with in the absence of proof to the contrary: William and Mortimer, above, at p. 180, Tristram and Coote, above, at p. 712. Wills apparently regular on their face have frequently upheld, even though the attesting witnesses are dead or remember nothing of the circumstances. The presumption was defined and explained by Lindley L.J. in Harris v. Knight in the following words:
“The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect.”
The presumption applies in full when there is a regular attestation clause and the signatures of the witnesses appear beneath it or alongside it. It applies with less force when there is an imperfect attestation clause or no attestation clause at all. Nevertheless it has been applied in the absence of any direct evidence of execution, both in the case of an imperfect attestation clause (Vinnicombe v. Butler and in the case of no attestation clause at all (In the goods of Frances Peverett).
Here there is no evidence to the contrary of due execution and the presumption would, in my view, undoubtedly apply if the will is regular on the face of it and apparently duly executed. …
[Emphasis added. Footnotes omitted.]
[2] In re Unsworth, deceased; McLeod v Burchall (1974) 8 SASR 312, 318-319.
On the hearing of the appeal, Mr Page gave evidence that he had been legal counsel to the applicant for almost nine years. In that time, it had been standard practice that where a will could not be signed at the office of the applicant, it would be posted to the testator together with a form providing instructions to assist the testator in complying with the requirements of section 8 of the Wills Act. Mr Page has been informed by other employees of the applicant that this was also standard practice at the time of the making of the deceased’s will in 1996. The Court received as annexures to Mr Page’s affidavit a copy of the instruction form in use in about 1988 and a copy of the instruction form currently in use. Both of these instruction forms convey in clear language the formalities required for compliance with section 8 of the Wills Act, including the requirements of subsections 8(c) and 8(e). The likelihood that the deceased would have had access to a similar instruction form at the time of the execution of the will enables an inference to be drawn that the will was duly executed.
In his affidavit, Mr Page deposed that the applicant had assisted the deceased in preparing wills on five earlier occasions. The deceased’s familiarity with the process of signing a will further strengthens the inference that the will was properly executed on this occasion.
Having regard to the foregoing, I am satisfied that the will was duly executed. In reaching this conclusion, I have examined the entirety of the evidence. This examination reveals cogent circumstantial evidence that the will was duly executed. I consider that the evidence was sufficient to raise the presumption of regularity, but in any event, the evidence went further and was sufficient for me to reach a conclusion without the need to rely on the presumption.
Conclusion
The document described as the will of the deceased made on 30 October 1996 was duly executed and is appropriate to be admitted to probate.