In the Estate of MICHAEL ANTHONY WHELAN (DECEASED) - [2013] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of MICHAEL ANTHONY WHELAN (DECEASED)
[2013] SASC 18
Judgment of The Honourable Justice Gray
25 February 2013
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - EXECUTORS ACCORDING TO TENOR - PERSONS CHARGED WITH EXECUTORIAL DUTIES
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR'S INTENTION - GENERALLY
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF COURT - SOUTH AUSTRALIA
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL
Application under section 12(2) of the Wills Act 1936 (SA) for an order admitting an informal will to probate - whether the requirements of section 12(2) had been met - whether the applicant was constituted by the words of the informal document as executor according to the tenor of the will - whether, if admitted, the document disposes of the personal property of the deceased.
Held: Application granted - the document sought to be propounded expressed the testamentary intentions of the deceased - the deceased intended the document to constitute his will - the deceased intended to appoint the applicant as executor - the circumstances supported a presumption against intestacy - will construed so that the word “balance” referred to the balance of the proceeds of all of the property of the deceased, including his personal property.
Wills Act 1936 (SA) s 8 and s 12(2); Probate Rules 2004 (SA) r 77, referred to.
Tsagouris & Anor v Bellairs & Ors [2010] SASC 147; Estate of Williams (1984) 36 SASR 423, considered.

In the Estate of MICHAEL ANTHONY WHELAN (DECEASED)
[2013] SASC 18
Testamentary Causes Jurisdiction
GRAY J.

This is an application under section 12(2) of the Wills Act 1936 (SA) for an order admitting an informal will to probate. Orders were also sought for rectification.
The proceeding has been referred by the Registrar of Probates pursuant to rule 77 of the Probate Rules 2004 (SA). The referral also raised two further questions. First, whether the applicant, John Christopher Whelan, the brother of the deceased, is constituted by the words of the informal document as executor “according to the tenor”[1] of the will. Secondly, whether, if admitted, the document disposes of the personal property of the deceased.
[1] See Tsagouris & Anor v Bellairs & Ors [2010] SASC 147.
Michael Anthony Whelan, the deceased, died on or about 17 January 2012. He was a divorced man and was survived by his three adult children. Apparently a draft will was prepared for the deceased in 1988, but there is no evidence that this document was ever executed.
In December 2010, following a serious assault, the deceased was in the Queen Elizabeth Hospital. He contacted the applicant and informed him that he wished to make a will. The applicant received instructions from the deceased and prepared a typewritten document which the deceased signed. The applicant and his wife, Patricia Whelan, were both present when the deceased signed the document. Patricia Whelan signed as a witness, but the applicant did not do so.
The document sought to be propounded is in the following terms:
Will and Final Testament - Michael Anthony Whelan
In the event of my death, it is my wish that my estate be administered by my brother John Christopher Whelan of ….
It is my further wish that disbursements from my estate may be granted to my three children only, except for payments required to meet Utilities such as Gas, Electricity, Water and Sewerage and the like as well as Bank Mortgage repayment costs and associated expenses.
In granting disbursements to my three children, from available cash funds, I have instructed my brother John Christopher Whelan to make certain that any disbursements are on a proven ‘needs only’ basis.
Should one of [sic] more of my three children need to live in my house, they will be required to meet the monthly mortgage repayments and other outgoings as long as they live there, so long as the house is vacated within 24 months. When the house is no longer required for that purpose, my brother John Christopher Whelan is hereby authorised to sell the house and clear any remaining debts.
After all debts are cleared, the balance of my estate is to be distributed to my three children equally.
The evidence before this Court establishes that the deceased, at the time he signed the document sought to be propounded, was seriously ill in hospital, but not cognitively impaired. As noted above, the deceased requested that the applicant prepare a will for him to sign. The document was prepared in accordance with the instructions given to him by the deceased. It was typed and brought to the deceased by the applicant in the presence of Patricia Whelan. The document was read through without haste by the deceased. He expressed his satisfaction with the document as his will. The deceased then signed the document in the presence of the applicant and Patricia Whelan.
The three adult children of the deceased consent to the admission of the document to probate.
An Informal Will
The draft will sought to be admitted to probate fails to comply with the statutory formalities. Not all of the requirements of section 8 of the Wills Act have been complied with. Section 8 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).
Section 12(2) of the Wills Act sets out the requirements that need to be satisfied for a will to be admitted to probate notwithstanding that it has not been executed in accordance with the statutory formalities of the Act. Section 12(2) has been amended on a number of occasions.
I adopt the following summary of the legislative history of section 12(2) as set out in In the Estate of TLB:[2]
[2]    In the Estate of TLB (2005) 94 SASR 450, [20]-[28].
Section 12(2) of the Wills Act sets out the requirements that need to be met for a will to be admitted to probate notwithstanding that it has not been executed with the formalities of the Wills Act. This subsection was first introduced in 1975 and has been subsequently amended on four occasions.
Subsection (2) was first introduced into the Act by the Wills Act Amendment Act (No 2) 1975 (SA), and came into operation on 29 January 1976. The subsection then provided:
A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed with the formalities required by this Act, be deemed 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 will.
The enactment of this subsection was a result of the South Australian Law Reform Committee’s concern regarding the plight of would-be testators who attempted to execute a will but failed for want of satisfying the formal requirements.[3]
[3]    28th Report of South Australian Law Reform Committee to Attorney-General Reform of the Law of Intestacy and Wills (1974).
The subsection was amended by the Statute Law Revision Act (No 2) 1990 (SA), which replaced the word “shall” with the word “will”, “deemed” was replaced by “taken” and “or her” was added after the word “his”. The subsection provided:
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.
The onus of proof demanded by the amended subsection was the subject of criticism. In May 1992, the judiciary recommended that the subsection ought to be amended by striking out the words “that there can be no reasonable doubt” and replacing them with “the Court is satisfied that the deceased intended the document to constitute his or her will”.
The subsection was amended by the Wills (Miscellaneous) Amendment Act 1994 (SA) to provide:
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.
The amended subsection omitted the express requirement of the progenitor provision, namely that the Court had to be satisfied that the document being propounded was intended by the deceased, as his or her will.
This omission was noted in the observations of Mullighan J in In the Estate of McCartney deceased.[4] In that case, the document in question comprised jottings on two pages of green notepaper attached to a notepad. On another page of the notepad, the deceased had written her name. The notes were consistent with instructions for a will. Counsel for the applicant submitted that as a consequence of the 1994 amendment to section 12(2), the animus testandi was no longer required, provided the document contained the intentions of the deceased. Mullighan J found that, on the balance of probabilities, the deceased intended the document to be her will. As a result, His Honour found it unnecessary to consider counsel’s submission.
[4]    In the Estate of McCartney deceased (unreported, S5884, 12 November 1996).
Section 12(2) was further amended and came into force on 3 December 1998 by the Statutes Amendment (Attorney-General’s Portfolio) Act 1998 as follows:
Subject to this Act, if the Court is satisfied that –
(a)     a document expresses testamentary intentions of a deceased person; and
(b)     the deceased person intended to make a will or a codicil to give effect to the testamentary intentions expressed in the document,
the document will be admitted to probate as a will (or a codicil to the will) of the deceased person even though it has not been executed with the formalities required by this Act.
There appears to be little parliamentary or judicial comment on this amendment.
The subsection was further amended in 2000 by the Statutes Amendment and Repeal (Attorney-General’s Portfolio) Act 2000 (SA) as follows:
…
This amendment came into force on 20 July 2000 and constitutes the provision presently in force.
Section 12(2), in its present form and as relevant to these proceedings, provides:
Subject to this Act, if the Court is satisfied that—
(a)     a document expresses testamentary intentions of a deceased person; and
(b)     the deceased person intended the document to constitute his or her will,
the document will be admitted to probate as a will of the deceased person even though it has not been executed with the formalities required by this Act.
Section 12(2) of the Wills Act removes the harsh consequence that testators will die intestate if their will has not met the formalities required in section 8. The section allows a document to be admitted to probate notwithstanding non-compliance with the statutory formalities, providing the court is “satisfied” of the matters specified in the section. As Jacobs J observed in In the Estate of Graham deceased:[5]
… But if there is one proposition that may be stated with reasonable confidence, it is that s 12(2) is remedial in intent, that is to say, that its purpose is to avoid the hardship and injustice which has so often arisen from a strict application of the formal requirements of a valid will, as dictated by s 8 of the Act. This conclusion is, I think, clearly justified upon a review of the legislative history of the relevant sections of the Act, and the cases.
The observations of King CJ in In the Estate of Williams deceased are also relevant:[6]
Section 12(2) is a remedial provision designed to avoid failure of the testamentary purpose caused by non-compliance with the formalities required by s 8 arising out of ignorance or inadvertence. There is no reason to suppose that Parliament intended to limit the circumstances in which the remedial provision would operate and no reason for the Court to construe the sub-section other than in accordance with the natural meaning of the words used.
[5]    In The Estate of Graham deceased (1978) 20 SASR 198, 202.
[6]    In the Estate Williams deceased (1984) 36 SASR 423, 425.
The court must be satisfied that the document sought to be admitted to probate expresses the testamentary intentions of the deceased and that the deceased intended the document to constitute his or her will.
The document relevantly identifies the major asset of the deceased, his house property, and makes special provision enabling his daughter who resided there to continue occupation for two years. Further, the document identifies the persons having a moral claim on the estate, namely, the deceased’s children, it refers to his debts and mortgage, and it gives clear and appropriate instructions as to the division of the net proceeds after the discharge of his debts, including the mortgage debt.
The evidence, as noted above, establishes that the deceased informed the applicant that he wished to make a will and that he gave the applicant instructions. When the document which had been prepared by the applicant was produced, the deceased read through it and said he was satisfied with the content. The deceased then signed the document in the presence of two persons, only one of whom, however, signed the document as a witness.
Having regard to the foregoing, I am satisfied that the document sought to be propounded expresses the testamentary intentions of the deceased and I am further satisfied that he intended the document to constitute his will. I order that the document be admitted to probate as the will of the deceased, even though it has not been executed in accordance with the formalities required by the Wills Act.
Appointment of an Executor
I turn to address the question of whether the will constitutes a constructive appointment of the applicant as executor. Three references in the will are relied on to allow the conclusion that the deceased intended the applicant to be his executor. They are as follows:
-“… it is my wish that my estate be administered by my brother John Christopher Whelan …”;
-“… I have instructed my brother John Christopher Whelan to make certain that …”; and
-“… my brother John Christopher Whelan is hereby authorised to sell the house and clear any remaining debts.”
Each of the above extracts from the will evidence an intention on the part of the deceased that the applicant perform executorial functions. Additionally, the will provides that the applicant is to make sure that any child of the deceased occupying the house during the two year period meet the expenses of the utilities and rates and mortgage instalments. This also evidences the intent of the deceased that the applicant be under an obligation, that is, an executorial function, designed to ensure that debts are not incurred or increased to the detriment of any non-occupying beneficiary.
In Tsagouris v Bellairs,[7] I reviewed the authorities addressing the appointment of an executor and, in particular, a constructive appointment. I refer, in particular, to my discussion of the judgment of Legoe J in Estate of Willliams:[8]
The following principles relevant to the present case can be drawn from Estate of Williams: the appointment of an executor may be express or implied; whether it is implied will depend on a construction of the whole will and whether a conclusion is reached that the named persons will carry out the functions normally associated with the office of executor; upon reaching such a conclusion, the persons named are said to be called the executor according to tenor; a mere direction to persons to pay debts, funeral and other testamentary expenses can appoint such persons as executors according to tenor; and, in order for named persons to constitute executors according to tenor, a reasonable construction of the will should disclose an intention on the part of the testator that the named persons should collect the assets of the testator, pay the debts and funeral expense and discharge the legacies contained in the will.
[7] Tsagouris & Anor v Bellairs & Ors [2010] SASC 147, [29]-[31].
[8] Tsagouris & Anor v Bellairs & Ors [2010] SASC 147, [30] discussing Estate of Williams (1984) 36 SASR 423, 435.
Having regard to the obligations cast on the applicant, and the particular words in the will extracted above, I am satisfied that the deceased intended to appoint the applicant as his executor. In particular, the passages cited constitute constructive appointment of the applicant as administrator, that is, executor according to the tenor of the will.
Rectification
Initially, rectification was sought by deleting the words “disbursements from my estate may be granted to my three children only except for” in the second clause of the will and by interpolating the words “be met by my estate” immediately after the word “expenses” in the first clause of the will. Further, the applicant sought the deletion of the third clause of the will and the substitution of the word “or” for the word “of” immediately before the word “more” in the fourth clause of the will. However, on the hearing of the application, the claim for rectification was abandoned.
On the application, counsel referred to the shorter Oxford dictionary definitions of the following words:
“disburse”-1. “To pay out or expend; to pay or defray”.2.“To spend, give out or away”.
“Disbursement” “the act or fact of disbursing; money paid out; expenditure”.
“Needs” “of necessity, necessarily”.
“Need” “necessarily arising from the facts and circumstances of a case”.
The applicant then submitted that if the will is read with those definitions in mind, no difficulty arises as to any question of the construction. It was said that the use of those words, having regard to those definitions, accorded with and carried into effect the deceased’s intentions. I accept this submission. The question of rectification does not require any further consideration.
Partial Intestacy
There is no explicit reference to any item of personal property in the will. The question arises as to whether the will disposes of the deceased’s personal property or whether there is a partial intestacy in that regard.
The final clause of the will provides, “[a]fter all debts are cleared, the balance of my estate is to be distributed to my three children equally.” The applicant submitted that these words were intended to be and were a reference to the whole estate of the deceased. It was said that those words were to include the personal property of the deceased as well as the proceeds of the sale of the house property. It was further said that the inference should be drawn that the deceased’s property should be sold and converted into money to be used towards the payment of debts and the mortgage, with the balance thereafter to be distributed equally between the three children.

The critical question to be answered is whether the word “balance” refers only to the remaining cash and/or money in the bank together with the net proceeds of the sale of the house after payment of debts, or whether the word “balance” is to be read as referring not only to the foregoing, but also to the proceeds of the sale of the personal property. If the former is correct, then there is a partial intestacy. If the latter is correct, then there is no intestacy. It may be noted that whichever approach is taken, the three adult children, the named beneficiaries, would share equally in the proceeds or any balance of the personal property.
The deceased did not wish to die intestate. The circumstances support a presumption against intestacy. It would be unusual, to my mind, for the deceased not to have intended to dispose of his entire estate through his will. I am prepared to construe the will so that the word “balance” refers to the balance of the proceeds of all of the property of the deceased, including his personal property.
Conclusion
The applicant is entitled to a grant of probate. Minutes of order in accordance with these reasons should be prepared.