IN the ESTATE of MEAD DECEASED No. SCGRG-96-106 Judgment No. S6547

[1998] SASC 6547

IN THE ESTATE OF MEAD DECEASED

Williams J:

This is an application by Notice of Motion for an order:

(a) that an unsigned and undated typewritten document (the "unsigned document") expressed to be the last will and testament of the deceased be admitted to probate under s12(2) of the Wills Act 1936 (SA).

and in the alternative

(b)     for probate of an instrument signed and dated 30 June 1990.  This document upon its face is incomplete and it is apparent that at least the last page has been omitted from the document.  The document finishes in mid-sentence in the course of declaring the Trustee’s powers to let freehold and leasehold property.

The applicant is a son of the deceased and is the executor named in each of the documents abovementioned.

The unsigned document was prepared by a wills officer employed by ANZ Executors and Trustee Company (South Australia) Ltd.  He attended upon the deceased at his home on 5 December 1995 for the purpose of taking instructions and he prepared a will in terms of the unsigned document and sent it to the deceased that day.

There is evidence from a neighbour of the deceased that the deceased intended taking the will to Flinders Medical Centre on 28 December 1995 in anticipation that witnesses would be available there.  However the deceased later told his neighbour that he had forgotten to take the will with him.  He died on 6 January 1996 without having executed the document.

Although this case is marginal in terms of the effect of the evidence, I am not persuaded that the circumstances can be brought within s12(2) of the Wills Act 1936 (SA) which reads as follows:

1. Subject to this Act, if the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses testamentary intentions of a deceased person, the document will be admitted to probate as a will of the deceased person."

I am not "satisfied" (in terms of the subsection) that the deceased intended the document to be operative as a testamentary instrument.

The evidence does not show that the deceased ever finally adopted the unsigned document as expressing his testamentary intentions.  The evidence shows that the deceased had in contemplation the making of a will in terms of the unsigned document.  The fact of the matter is that the deceased either overlooked finishing the task or else he changed his mind.

In In the Estate of Ermelinda Iasiello deceased (Judgment S4459 28 March 1994) Legoe J reviewed the authorities regarding the approach which the court should take to unsigned drafts and engrossments.  His Honour cites an extract from Professor Langbein’s article "Excusing harmless errors in the execution of wills: a report on Australia’s tranquil revolution in probate law" (1987) 87 Columbia L.R. 1 at 23 which reads:

"Many a testator decides not to execute a will that has been prepared to his instructions.  One of the things you can do with a draft will is decide you do not want to use it.  Signature is the formality that permits us to distinguish between drafts and wills.  Decide such a case the other way and the risk arises that any unsigned draft, any scrap of paper, can be argued to be an intended but unexecuted will."

In the present case the deceased’s statement to his neighbour shows that the deceased had given at least provisional approval to the unsigned document. However, the document remained unsigned for some time thereafter and in this state of the evidence I am not satisfied that the document expresses animus testandi. (see Nichols v Nichols 161 ER 1113.)

In my opinion the will of the deceased dated 30 June 1990 should be admitted to probate.

The order of the court will be:

1. No order as to paragraph 1 of the notice of motion.

1. That probate of the will bearing date the 30th day of June 1990 of the said Maurice Mervin Mead otherwise Maurice Mervyn Mead deceased (being the exhibit marked "SAM" referred to in the affidavit of Stephen Anthony Mead sworn on the 10th day of April 1997) be granted to the said Stephen Anthony Mead son of the said deceased the sole executor therein named."