In the Estate of NATKA STANKOVIC (DECEASED)

[2013] SASC 179

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction)

In the Estate of NATKA STANKOVIC (DECEASED)

[2013] SASC 179

Judgment of The Honourable Justice Gray

14 November 2013

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS

SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS  - ALTERATIONS, ADDITIONS AND INTERLINEATIONS - GENERALLY

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION - OTHER CASES

This is an application pursuant to section 12(2) of the Wills Act 1936 (SA) that a document purporting to express the testamentary intentions of the deceased be admitted to probate. The deceased executed a document in a will kit form. Sticker labels were later added to the document, covering writing on the document. It was not possible to discern the words that had been covered by the sticker labels. Further writing was placed on top of the sticker labels. There was no evidence that the obliterations effected by the fixing of the labels were authenticated as required by section 24 of the Wills Act. Whether the document could be admitted to probate pursuant to section 12(2).

Held (allowing the application in part):

(1) Section 12(2) of the Wills Act does not apply as the document appears to be duly executed (at [6]).

(2)     The contents of the document other than the revoking of all earlier wills and the appointment of the executor cannot be determined (at [8]).

(3)     The portion of the document revoking all earlier wills and appointing the applicant as executor is to be admitted to probate.  The estate is then to be administered according to the laws of intestacy (at [10]).

Wills Act 1936 (SA) s 12(2) and s 24, referred to.

In the Estate of NATKA STANKOVIC (DECEASED)
[2013] SASC 179

Testamentary Causes Jurisdiction

GRAY J.

1. This is an application pursuant to section 12(2) of the Wills Act 1936 (SA) that a document purporting to express the testamentary intentions of Natka Stankovic, the deceased, be admitted to probate as her last will and that probate be granted to Milan Stankovic, the widower of the deceased.

2. The deceased died on 27 September 2012.  Evidence before the Court establishes that she executed a document in a will kit form on 25 March 2010.  The document is partly typed and partly handwritten.  The typed portion forms part of the will kit.  On that will kit, matters pertaining to the deceased’s estate are set out in handwriting.  The handwriting is that of Vasko Vukoje.  Mr Vukoje is also one of the subscribing witnesses.  The writing records a gift of the deceased’s house to her husband, Milan Stankovic, but provides that if the deceased survives her husband the house is given to her niece.

3. The deceased had no children.  It appears that there are no other interested parties.  The only asset of the deceased is an estate in fee simple in an undivided part of land at Paralowie valued at $110,000.00.  The only liability disclosed is a funeral expense leaving a net estate of a value of $101,667.50.  The property is presently unoccupied, the husband of the deceased having returned to live in Serbia.

4. At an unspecified time, four sticker labels were added to the first page of the document.  The labels cover writing on the document.  It is not possible to completely discern the words that have been covered.  Further writing has been placed on top of portions of the labels.  It appears that the deceased and the witnesses to the document have placed signatures on one of these labels. 

5. Mr Vukoje does not recall the circumstances in which the document was written.  He does not recall how the labels came to be affixed to the document.  The other subscribing witness, Milenko Suljagic, is said to now be aged 93 years and without any recollection of how the labels came to be affixed to the document. 

6. Section 12(2) of the Wills Act 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.

   An immediate difficulty arises.  On its face, the document appears to be duly executed.  It contains an appropriately worded attestation clause.  There is no evidence before the Court that establishes that the document has not been executed with the formalities required by the Wills Act.  In this circumstance, the powers of the Court under subsection 12(2) are not enlivened.  The application to admit the document pursuant to this subsection cannot succeed.

7. It is apparent that handwritten words are concealed by the labels.  In the main, it is not possible to discern those words.  It is possible that the gift to the husband was in some way qualified.  It is possible that other persons were to benefit.  The evidence does not allow any conclusion to be drawn on these matters.

8. Section 24 of the Wills Act provides:

   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 evidence before the Court does not establish that the obliterations effected by the fixing of the labels were authenticated as required by the Act. The evidence leaves open to conjecture the circumstances in which the labels were placed on the document. Shortly put, the contents of the testamentary document, other than the revoking of all earlier wills and the appointment of the executor, cannot, on the evidence before the Court, be determined. There is no evidence of due execution of the obliteration and, as a consequence, it is not possible to determine whether section 24 has application.

9. As earlier noted, the net estate is modest and comprises an interest in land.  In the circumstances, I am prepared to proceed to determine the application without the possibility of other claimants being pursued.  I consider the possibility of other adverse interests to be remote.

10. Having regard to the foregoing it is appropriate to admit the following portion of the document to probate:

    This is the last Will and Testament of me, 

    NATKA STANKOVIC  (name)

    of      […]  (address)

    in the State of             SOUTH AUSTRALIA  

    1.   I revoke all Wills and other documents of testamentary intent previously made by me; this is my last Will and Testament.

    2.   I appoint MILAN STANKOVIC – MY HUSBAND  (name)

    of               […]  

    to be Executor or Executrix and Trustee of this my Will.

    The estate is then to be administered according to the laws of intestacy.