In the Estate of NICHOLLS - [2014] SASC 204

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of NICHOLLS
[2014] SASC 204
Judgment of The Honourable Justice Gray
24 December 2014
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - ALTERATIONS, ADDITIONS AND INTERLINEATIONS - GENERALLY
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS
SUCCESSION - MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - DESTRUCTION OR MUTILATION, OR STRIKING OUT PORTIONS - GENERALLY
Application for a grant of probate in common form. The deceased left a will executed in will kit form in which he appointed the applicant as the executor of his estate. A portion of the document had been excised and replaced with a piece of paper bearing the deceased’s signature. Other amendments made to the document were initialled by the deceased but not by the attesting witnesses. All persons that would benefit were the deceased’s estate administered in accordance with the rules of intestacy consented to the application.
Whether the will was revoked as a result of the excision of part of the document. Whether the alterations to the document comply with the formalities required by section 8 of the Wills Act. Whether the alterations should be admitted in accordance with section 12 of the Wills Act.
1. There was no intention to revoke the testamentary instrument completely, but merely to revoke the part excised.
2. The alterations to the document have not been authenticated in accordance with the formalities required by the Wills Act.
3. It is appropriate to order that the propounded will be admitted to probate in accordance with section 12(2) of the Wills Act.
Probate Rules 2004 (SA) r 20, r 23, r 64 and r 77; Wills Act 1936 (SA) s 8, s 12(2), s 22 and s 24, referred to.
In re Talbot [1925] SASR 100; In the Estate of Gibbs [2012] SASC 230; Cahill v Rhodes [2002] NSWSC 561, considered.

In the Estate of NICHOLLS
[2014] SASC 204
Testamentary Causes Jurisdiction
GRAY J.

This is an application for a grant of probate in common form.
Peter Nicholls, the deceased, died on 19 April 2014. An affidavit of assets and liabilities discloses that the deceased’s estate has a net value of $408,881.21. The deceased was divorced at the time of his death and is survived by three sons, Mark Andrew Nicholls, Eric Peter Nicholls and Gregory John Nicholls. The deceased left a will dated 31 August 1999 in which he appointed his son, Mark Nicholls, as the sole executor of his estate. Mark Nicholls has applied for a grant of probate in common form. The application was referred to me by the Registrar of Probates pursuant to rule 77 of the Probate Rules 2004 (SA).
The document propounded as the deceased’s will has been drafted from a will kit form. The document comprises a mixture of typed and handwritten text, with the standard terms of the will kit appearing in typed text, and with handwritten alterations, apparently made by the deceased, providing for the disposition of the deceased’s assets. The document that has been submitted to probate by the applicant comprises two pages, appearing on both sides of a single sheet of blue paper. However, typed text at the foot of each page indicates that the will kit was initially four pages in length. It is apparent that the portion of the document forming pages three and four has been torn or cut from the document. No explanation has been provided for the whereabouts of the other two pages of the document. However, it appears on the face of the document that the two pages that have been propounded form a complete will.
The handwritten text directs that the deceased’s home is to be sold, with the profits invested in the Peter Nicholls Family Trust. Mark Nicholls is appointed as the “appointer” of the trust, “which is to be administered by A.P.T Strategy P/L for the benefit of [the deceased’s three] children”. A funeral benefit held by the deceased with Lifeplan Australia Friendly Society is gifted to a branch of the Communist Party of Australia. All other property is bequeathed to the deceased’s three sons, to be divided between them “by mutual agreement”. Finally, the document provides that the deceased’s sons “must ensure Kathleen Ann Downes will be given any items of a personal nature she wishes to have including CD’s – videos – photos – memorabilia”.
A portion of the blue paper has been cut from the document. It appears that this has excised from the document about two lines of the handwritten text that appeared on page one. It is not possible to say what words have been excised. In its place, a section of white paper has been attached with adhesive tape. The white paper bears the text “Section removed by P Nicholls – 7th August 2012”, which is followed by the deceased’s signature. In the margin of the document next to the white paper, the text “100%” has been written. The deceased’s initials appear below. The text “100%” appears again on the next line of the document and is again followed by the deceased’s initials. All of the handwritten text on the document appears in blue pen, except for the text on the white paper, the two references to “100%” and accompanying initials, the date at the foot of the document, and the signatures of the deceased and the witnesses.
The document has been dated and signed by the deceased and two witnesses at the foot of page one. Page two of the document is blank, except for markings that were made for the purposes of submitting the document to probate.
In an affidavit tendered in support of the application, Mark Nicholls deposed that, shortly prior to the deceased’s death, the deceased told him that he had made a will. On 23 April 2014, following the deceased’s death, Mark Nicholls found the propounded will in an envelope in a desk draw at the deceased’s home. The will was located together with two photocopies of the will. The photocopies, which have been provided to the Court, have also had a section of paper excised that corresponds with the section removed from the original document. One of the photocopies has had a piece of paper inserted in a similar manner to the propounded will. The other photocopy has no piece of paper attached, but contains other remarks and signatures relating to the alteration. Both documents also include the text “100%” followed by the deceased’s initials, appearing in the same place as on the original document, but with minor differences of style.
It is evident that the text “100%” has been added after the photocopies were made. The signatures of the deceased and the witnesses appearing on each photocopy differ slightly from those appearing on the other photocopy, and also differ from the signatures appearing on the original document. Accordingly, it is evident that the signatures have been made separately to the original document and to the two photocopies, and that this has occurred after the photocopies were made.
Mark Nicholls identified the handwriting, signatures and initials on all three documents as belonging to the deceased. He further deposed to the exhaustive enquiries made regarding the whereabouts of the witnesses to the will. One of the signatures that appears as “J Evans” is a person unknown to Mark Nicholls and whose identity has not been revealed by enquiries with the deceased’s acquaintances. The other witness is a friend of the deceased who is suffering from advanced dementia and has no recollection of witnessing the will.
The first question that arises to be determined on the application is whether the will was revoked pursuant to section 22(d) of the Wills Act 1936 (SA) as a result of the excision of part of the document. Section 22 deals with the revocation of wills and relevantly provides:
Subject to section 12(3), no will or codicil or any part of a will or codicil is revoked otherwise than—
…
(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.
Rule 23 of the Probate Rules provides:
Any appearance of attempted revocation of a will by burning, tearing or otherwise, and every other circumstance leading to a presumption of revocation by the testator, must be accounted for to the Registrar's satisfaction
The effect of a partial destruction of a will was considered in In re Talbot.[1] In that case, a testator had cut out a portion of his will which had bequeathed a legacy. Angas Parsons and Napier JJ held that there was sufficient evidence to permit the presumption to be drawn that there was no intention to revoke the testamentary instrument completely, but merely to revoke the part excised. Angas Parsons J observed:[2]
Now, according to the principles laid down by Sir John Dodson, in Clarke and others v. Scripps, (1852) 2 Robs. Ecc. Cas. 563, from the circumstances of the will having been in the custody and possession of the testator the ordinary presumption is that the cutting out of part of the will was done by the testator himself, and in the absence of any express declaration of intention of the testator to revoke wholly or in part that intention may be inferred from the nature and extent of the act done by the testator, that is, it may be inferred from the state and condition to which the instrument has been reduced by the act, and from the face of the document it may be inferred either that the testator had intended to destroy it altogether or that he did not. That principle, stated so long ago by Sir John Dodson, is quoted with approval and applied by Lord Penzance in the case referred to by my brother Napier, In re John Woodward, (1871) L.R. 2 P. & D. 206, where the first part of the will had been torn off and the rest of the will was admitted to probate; and it was applied also in Christmas and Christmas v. Whinyates, (1863) 3 Sw. & T. 81, where Sir Creswell Creswell presumed that the mutilation had taken place after the execution of the codicil. The evidence which is before us here shews that the excision must have taken place after the codicil had been executed. In In the goods of Dinah Leach, (1890) 63 L.T. 111, the will was found after the death of the testatrix mutilated by apparently having the name of one of the executors cut out wherever it appeared in the document. Butt J. directed that notice of the motion for probate should be given to the executor. I think, however, that we have sufficient material before us enabling us to draw the presumption – the only one which I think can be drawn in this case – that there was no intention of a complete revocation of the testamentary instruments themselves, but merely an intention to revoke the particular part that was excised. This is an application for probate of the will and codicil in common form, and the practice of the Court is to admit an instrument to probate on being satisfied that it has before it the material and relevant facts sufficient for this purpose. I think we have this evidence, and that we should admit the instruments to probate in their present condition.
Napier J expressed some reservations about granting probate without evidence that inquiries had been made of the beneficiary of the excised legacy:[3]
I have already said that I feel some doubt as to whether probate should be granted without evidence that inquiries have been made of the lady interested in supporting the legacy which has been excised from the will. It would not be necessary to hold that notice of this motion must be given to her, and I do not question the cases cited to us, which shew that the Court cannot replace the missing part by extrinsic evidence. But in this case the Court is obliged to act upon circumstantial evidence as to the circumstances under which the mutilation was effected. I think it is the duty of the executors on applications of this sort to lay before the Court the whole of the facts which may affect that inference. In this case I feel some hesitation in saying that the Court has the whole of the facts if no such inquiry has been made of that lady and if she has had no notice of this application. However, the affidavits do say that all inquiries which it occurred to the executors to make have been made, and that being so, I feel very little doubt in my own mind that the Court has the whole of the facts. In any event there is the right to have the matter reopened. For these reasons, although I feel some hesitation, I am prepared to assent to the order proposed by my learned brother.
[1]    In re Talbot [1925] SASR 100.
[2]    In re Talbot [1925] SASR 100, 102-3.
[3]    In re Talbot [1925] SASR 100, 103.
In In the Estate of Gibbs, I made the following observations regarding the rebuttal of the presumption of revocation:[4]
The presumption of revocation is a presumption of fact which may be rebutted by appropriate evidence.[5] It is the applicant who carries the onus of rebutting the presumption.[6] Further, when determining if the presumption has been rebutted, the Court is “to consider the whole of the facts together, and draw what inference should be drawn from the totality of the evidence”.[7]
[4]    In the Estate of Gibbs [2012] SASC 230, [31].
[5]    Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); see also, Colvin v Fraser (1829) 2 Hag Ecc 266; Welch v Phillips (1836) 1 Moo PC 299; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [32].
[6]    Welch v Phillips (1836) 1 Moo PC 299, 302; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [34]; see eg, Allan v Morrison [1900] AC 604.
[7]    Gordon v Beere [1962] NZLR 257.
Another relevant factor in determining whether the presumption of revocation has been rebutted is whether the will makes a careful and complete disposition of the testator’s property. Campbell J in Cahill v Rhodes, drawing on the earlier decisions in Sugden v Lord St Leonards[8] and Finch v Finch,[9] relevantly observed:[10]
What Sugden v Lord St Leonards, and Finch v Finch, show is that if a testator has made a Will which makes a careful and complete disposition of his property, and an examination of the circumstances relevant to the Deceased's testamentary intentions between the time of the making of that Will and the time of his death does not reveal anything which shows that the testator had any reason to revoke the Will by destroying it, the strength of the presumption is weakened to such an extent that it is overcome. This is no more than a particular application of how the factual presumption can be overcome by circumstantial evidence which shows, on the balance of probabilities, that, even though the Will is missing at the testator's death, it is more likely than not that the reason for it being missing is something other than that the testator destroyed it with the intention of revoking it.
[8] Sugden v Lord St Leonards (1876) LR 1 PD 154.
[9] Finch v Finch (1867) LR 1 PD 371.
[10] Cahill v Rhodes [2002] NSWSC 561, [68]; see also, Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993).
On the evidence before the Court, several factors weigh against applying the presumption of revocation. In conversations with his son, the deceased expressed an understanding that he had a valid will. Further, the words “Section removed by P Nicholls – 7th August 2012” appearing on the white paper that has been affixed to the will indicate that the deceased intended to endorse the excision. This conclusion is strengthened by the fact that the same excision has been made to the two photocopies of the will. On balance, I am satisfied that there was no intention to revoke the testamentary instrument completely, but merely to revoke the part excised.
The second question that arises to be determined is whether the alterations to the document comply with the formalities required by section 8 of the Wills Act. Section 8 of the Wills Act 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 24 of the Wills Act relates to alterations to testamentary instruments and 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.
It is clear that the alterations to the document, including the text on the attached white paper and the text “100%”, have not been authenticated in accordance with the formalities required by sections 8 and 24 of the Wills Act. In particular, neither alteration appears to have been witnessed. Accordingly, it is necessary to consider the application of rule 20 of the Probate Rules, which provides:
Where there appears in a will any obliteration, interlineation or other alteration which is not authenticated in the manner prescribed in section 24 of the Wills Act, 1936, or by the re-execution of the will, or by the execution of a codicil, the Registrar shall require evidence to show whether the alteration was present at the time the will was executed, and shall give directions as to the form in which the will is to be proved:
Provided that this Rule shall not apply to any alteration which appears to the Registrar to be of no practical importance.
As earlier mentioned, it is apparent that the alterations that have been made to the will were made after the document was photocopied. Further, the signatures of the deceased and those of the two witnesses appear to have been made separately to the propounded will and to the two photocopies at some time after the photocopies were made. In these circumstances, it is not possible to determine whether the alterations to the propounded will were present at the time that the will was executed. It is to be further noted that the exception to rule 20 cannot apply to the present application. It is not possible to ascertain the contents of the excised text and therefore it cannot be said that the alteration is of no practical importance.
As the alterations to the propounded document do not comply with the formalities required by the Wills Act, the next question that arises is whether the alterations should be admitted in accordance with section 12(2) of the Act. Section 12(2) 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.
Applications under section 12(2) of the Wills Act are to be made in accordance with rule 64 of the Probate Rules, which provides:
64.01Unless a probate action has been commenced an application under section 12(2) of the Wills Act, 1936 for an order admitting to proof a document purporting to express the testamentary intentions of a deceased person must be made by summons to the Registrar in the Form No. 33 (1) and must be supported by an affidavit setting out the facts upon which the applicant relies together with the written consents to the application of all persons not under disability who may be prejudiced by the admission of the document to proof.
64.02The Registrar may dispose of an application under Rule 64.01 if the Registrar is satisfied that all persons who may be prejudiced by the admission of the document to proof are sui juris and have consented to the application
Provided that if it appears to the Court or the Registrar expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) the Court or the Registrar may dispense with compliance for the purpose of saving expense.
64.03Where a person who may be prejudiced by the admission of the document to proof and who is not under disability, has not given a written consent to the application, the Registrar may deem that person to have consented if that person fails to attend before the Registrar after such service upon him or her as the Registrar may direct of the proceedings and notice of the application.
64.04 Where -
(a)     any person who may be prejudiced by the order sought under this Rule is not sui juris or cannot be ascertained or found or has not consented, or
(b)     the Registrar is in doubt or difficulty about any order which should be made pursuant to this Rule,
the Registrar may refer the application to a Judge in Court or in Chambers.

Mark Nicholls deposed that he had searched among the deceased’s papers and could find no record of any will other than the propounded document. As earlier noted, the deceased was divorced at the time of his death. The only persons that would be entitled to benefit if the deceased’s estate were administered in accordance with the rules of intestacy are his three sons, who are therefore the persons whose interests may be prejudiced by the admission of the propounded document to proof. An affidavit consenting to the present application has been provided by the deceased’s other two sons, Gregory John Nicholls and Eric Peter Nicholls. Accordingly, pursuant to rule 64.02 of the Probate Rules, all persons who may be prejudiced by the admission of the document to proof are sui juris and have consented to the application. I am satisfied that it is appropriate to dispense with the need to make an application under rule 64.01 of the Probate Rules.
On the hearing of the application, the Court was informed that the three children would undertake to ensure that the branch of the Communist Party of Australia would receive its gift in accordance with the will. In these circumstances, and having regard to the modest value of the estate, I am satisfied that it is appropriate to order that the propounded will be admitted to probate in accordance with section 12(2) of the Wills Act.
Conclusion
The document dated 31 August 1999 and marked “A” referred to in the affidavit of Mark Andrew Nicholls affirmed on 29 July 2014 is to be admitted to proof as the last will and testament of the deceased and probate of that document is to be granted to Mark Nicholls.