In the Estate of Mary Carrel Deslandes: Public Trustee v Catherine Margaret Gibbons No. SCRG 92/453 Judgment No. 3849 Number of Pages 5 Wills, Probate and Letters of Administration

[1993] SASC 3849

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PRIOR J

CWDS
Wills, probate and letters of administration - the making of a will - revocation - Writing "cancelled" and "new will to be made" said to constitute lawful revocation of a will pursuant to ssl2(2) and 22 of the Wills Act 1936 - Formalities required by s8 not met - Document not embodying testamentary intentions as 512(2) required.
Held: The original will not revoked, pronounced in solemn form with administration of the estate being granted to the plaintiff.
Wills Act 1936s8; sl2(2); s22(b) and (c).
In the Goods of Irvine (1919) 2 Ir.R 485; In the Goods of Hicks (1869) 1 LRP and D 683; In the Goods of Fraser (1869) LRP and D 40; In the Goods of Gosling
(1886) 11 PD 79. In the Estate of Ryan (1986) 40 SASR 305 and In the Estate of Kelly (1983) 32 SASR 413; 34 SASR 370, discussed.

HRNG ADELAIDE, 3 March 1993 #DATE 3:3:1993
Counsel for plaintiff:         Mr P J Day
Solicitors for plaintiff:     Mellor Ollson
Counsel for defendant:         Mr R G Frost
Solicitors for defendant:     Treloar and Treloar

ORDER
I pronounce for the 1956 will in solemn form of law excluding the 1981 writings which appear on the first page. I further order that administration with the 1956 will annexed be granted to the plaintiff.

JUDGE1 PRIOR J Application for pronouncement of a will in solemn form and a grant of administration of the estate to the plaintiff. 2. Mary Carmel Deslandes died on 2 June 1991. She had made and executed a will in proper form on 21 December 1956. Her husband and a solicitor were appointed executors. They both predeceased her, her husband dying on 19 July 1981. The will left her entire property to her husband should he survive her and then provided that in the event of her husband predeceasing her, the deceased's mother, two sisters and two brothers were to receive sums of money with the residue of the estate going in equal shares to named charitable bodies. 3. Evidence before me from the deceased's two sisters is that on or about 27 July 1981, they were both present at the deceased's home when the deceased made certain markings and notations on the 1956 will. One sister's evidence is that, "the deceased was talking and crossing out and writing at the same time. It was a very weepy time, in view of the fact that it was so close following the death of her husband." 4. Both sisters depose to seeing the deceased holding a blue biro in her hand and scratching out various portions of the will. One sister says that the deceased then said she was scratching out what she considered did not apply any longer. Both sisters say that the deceased spoke of having to make a new will at the Public Trustee, her will being out of date and not applying any more. 5. The evidence is that the deceased told her sisters that they and their brother James were the only people that the will now applied to. The deceased mentioned her belief that two charitable bodies named in the will no longer existed, "so that would cut them out of her will". Her mother and a brother had predeceased her. Because of that, they were cut out of the will, but by July 1981 the Roman Catholic Archdiocese of Adelaide Charitable Trust Act 1981 was in force. Section 15 of that Act could see another body benefiting in the stead of the bodies named in the will. On that basis the deceased had a false belief about who continued to benefit under the will. 6. Both sisters saw the deceased write the word "cancelled" on the front page of the will and sign her name there. After the deceased had said and done these things she put the will down in the chair that she was sitting in. One sister was asked to go and arrange an appointment for her with the Public Trustee. That sister attempted to do so, to be told that the appointment had to be made by the deceased herself. She told the deceased that. The deceased said she would make the arrangement some other day. When the other sister spoke to the deceased about a fortnight later, enquiring whether she had done anything about her will, she says she was told by the deceased that she had not and that she would not worry about it as she had already written that the old will was no good. 7. The word "cancelled" is written on the first page, alongside the date "17.7.81", with the deceased's signature below that date. These writings appear below the 1956 signature of the deceased as witnessed at the foot of the first page of the will. The 1956 signature has lines across it in the same colour biro ink as the 1981 signature, date and word "cancelled" are written at the foot of that page. Both sisters saw the deceased sign and make those endorsements but neither of them signed their names on the document. The clause appointing the deceased's husband and solicitor Executors has lines drawn through the names of those appearing in that appointments clause. Above the name of the deceased's husband the deceased has written "The Public Trustee". At the top of the first page of the will she wrote "New will to be made at the Public Trustee, Adelaide". 8. The back sheet of the will, besides having the word "cancelled" and date across it, has marks across the name of the Solicitor preparing the will. It also bears the words "my old will" and initials. The second and last page of the will has no alterations on it. It consists mainly of the attestation clause and signatures. 9. I accept that all the evidence makes plain that the date put on to the 1956 will in July 1981 is incorrect and that what the sisters say is correct, namely that the marking and writing over the will occurred after the death of the deceased's husband and on or about 27 July 1981. I find that on this occasion the deceased had no intention of then making a will. She saw the old will as out of date and intended to make a new will. No new will or codicil ever occurred. Her endorsements contemplated a new will and spoke of cancelling the old. 10. The defendant represents all of the deceased's next of kin. It is submitted that the events on or about 27 July 1981 constituted a lawful revocation of the 1956 will. 11. Section 22 of the Wills Act 1936 provides:-
    "No will or codicil or any part of a will or codicil is revoked
    otherwise than -
    (a) by marriage as provided by this Act;
    (b) by another will or codicil executed in the manner required
    by this Act;
    (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;
    (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." 12. Paragraphs (b) and (c) are relied upon. It is submitted that those paragraphs may be read in conjunction with s12(2) of the Act to have this Court rule that the 1956 will is revoked and that the deceased therefore died intestate. 13. The manner in which a will is required to be executed by the Wills Act is specified in s8 of the Wills Act. The 1981 writings did not meet its demands. The sisters were present when the deceased signed her name but they failed to attest it. Section 8 is expressed to be subject to the other provisions of the Act. Section 12(2) provides:-
    "A document purporting to embody the testamentary intentions of
    a deceased person will, notwithstanding that it has not been
    executed with the formalities required by this Act, be taken to
    be a will of the deceased person if the Supreme Court, upon
    application for admission of the document to probate as the last
    will of the deceased, is satisfied that there can be no
    reasonable doubt that the deceased intended the document to
    constitute his or her will." 14. The 1981 writings cannot be taken to be a will unless the deceased's testamentary intentions are embodied in them and the Court satisfied that the deceased intended them to constitute her will. Her testamentary intention may ultimately have been to have her surviving brother and sisters take equal shares in her whole estate, but no document embodying her testamentary intentions came into existence by the endorsements made in 1981. Her 1981 writings contemplated a new will being drawn up as much as cancellation of the 1956 will. The 1981 writings taken together did not constitute a document embodying testamentary intentions. What was written put nothing in concrete form. Section 12(2) requires a document not executed as s8 requires to embody testamentary intentions before it can be taken to be a will. Testamentary intentions were not embodied. They were left for another day and another document or for clarification by reference to words and conduct, some of which was not contemporaneous with these writings. 15. Sub-section(2) of s12 permits the admission of a document to probate as the last will of a deceased, notwithstanding its failure to comply with the requirements of s8, if the Court is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute her will. The endorsement that a new will was "to be made at the Public Trustee" negates the intention that must be proved beyond reasonable doubt. The 1981 writings could not be admitted to probate as the last will of the deceased. They were not intended to constitute her will. Other events were referred to in the writings. Those writings were "merely the first act towards accomplishing the design ... to make a new will": In the Goods of Irvine (1919) 2 Ir. R 485 at 490. Had the word "cancelled" stood alone, it may have been different: In the Goods of Hicks (1869) 1 LRP&D; 683; In the Goods of Fraser (1869) 2 LRP&D; 40; In the Goods of Gosling (1886) 11 PD 79. "Cancelled" did not stand alone. The other endorsements contemplated testamentary intentions being embodied somewhere else. Testamentary intentions were not embodied in the document as a whole, nor could it be said that the document, be it the 1981 writings alone or in conjunction with the 1956 will, were intended to constitute her will. The result is that the 1956 will stands unrevoked and the subject of an order for admission to proof in solemn form with administration of the estate being granted to the plaintiff. 16. Section 12(2) has been considered in a number of cases including In the Estate of Kelly (1983) 32 SASR 413 and 34 SASR 370 and In the Estate of Ryan
(1986) 40 SASR 305. In Ryan at p309, O'Loughlin J expressed the view that -
    "... there is no doubt that s.12(2) can apply to the most
frequently used method of revocation covered in s.22 of the
    Wills Act, viz. - 'another will or codicil executed in manner
    hereinbefore required': Kelly, per Zelling J at pp.381-382.
(Conversely it is clear that ss.21 and 22 of the Wills Act apply
    to s.12(2): Kelly (1983) 34 SASR 370, and see per Matheson J in
Lynch (1985) 39 SASR 131." 17. The authorities cited support the view that s22 can be brought into operation by a document validated under s12(2) so that such a document can revoke an earlier will. They also support the proposition that a document validated under s12(2) is just as much a will for the purposes of the WillsAct as one which complies with s8. However, in this case, the demands of sub-section (2) of s12 are not met by the writings made in 1981 or by a combination of them with the 1956 will. Things written on the 1956 will in July 1981 do not evince any testamentary intent. Property was not disposed of at all. That was left for the future. By the writings nothing was done: In the Goods of Fraser (supra) at 41. For paragraph (b) of s22 to have any room to operate in conjunction with s12(2), testamentary intention must be spelt out and property disposed of. This did not occur. 18. As Lord Penzance put it in In the Goods of Fraser (supra) at p41: "The deceased does nothing by (the 1981 writings), in no way disposes of any property, (s)he only revokes the paper to which it is attached." 19. The same case questions whether the 1981 writings constitute "some writing" within paragraph (c) of s22. Even if an intention to revoke the 1956 will is declared by "some writing", the demands of s8 and s12(2) of the Act are not met. No lawful revocation of the 1956 will therefore occurred. Whilst acknowledging the force of the views expressed in the authorities cited, I remain to be convinced that s12(2) can apply to s22 at all. I have assumed that for the purposes of this case, but the language within each of those sections is not complementary of each other. Nor is the language of s8 so clear a bridge to link them in the manner accepted by others and assumed for the purposes of this case. Section 22 invokes the language of s8 by speaking of execution in the manner required by the Act. It denies alternatives by denying revocation "otherwise than" by the means identified in paragraphs (a), (b), (c) and (d). Section 12(2) does not create a manner of execution. It permits a document not executed in the manner required by the Act to be taken to be what it is not upon a condition being met, that of testamentary intentions being embodied in the document. The sub-section then permits admission of the document "to probate as the last will of the deceased" only if the Court "is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute her will". 20. Assuming the section applies to revocations, the conditions imposed in s12 cannot be satisfied in this case. New South Wales has made the law there plain. Perhaps our Parliament should do the same. 21. I pronounce for the 1956 will in solemn form of law excluding the 1981 writings which appear on the first page. I further order that administration with the 1956 will annexed be granted to the plaintiff.