In the Estate of Nola Marie Harrington
[2024] ACTSC 250
•2 August 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of Nola Marie Harrington |
Citation: | [2024] ACTSC 250 |
Hearing Date: | 31 July 2024 |
Decision Date: | 2 August 2024 |
Before: | Baker J |
Decision: | (1) In the Estate of Nola Marie Harrington, late of Mona Tait Gardens, 160 Ellenborough Street Kaleen in the ACT, I direct that the Registrar complete the grant of probate of the Will dated 17 April 2019 and the codicil dated 10 August 2023 of the deceased. |
Catchwords: | PROBATE APPLICATION – JURISDICTION, PRACTICE AND PROCEDURE – revival of revoked will by codicil – where no reference in codicil to intermediary will – whether revived will revoked intermediary will |
Legislation Cited: | Court Procedure Rules 2006 (ACT), rr 3005(6), 3032(3)(c) Succession Act 2006 (NSW), ss 8(2)(b), 15 Wills Act 1968 (ACT), ss 21, 22 |
Cases Cited: | Cadell v Wilcocks [1898] P 21 In re Baker [1929] 1 Ch 668 In re Pearson, deceased, Rowling v Crowther [1963] 1 WLR 1358 In the Estate of Robert Paul Anderson (deceased) [2009] SASC 400; 267 LSJS 93 In the Will of Killick [1960] VR 98 Re Dear [1975] 2 NZLR 254 Slack v Rogan [2013] NSWSC 522; 85 NSWLR 253 Timbury v Coffee [1941] HCA 22; 66 CLR 277 Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; 14 BPR 26867 |
Texts Cited: | G L Certoma, The Law of Succession in New South Wales (4th ed, LBC 2010) Mason and Handler, Succession Law and Practice New South Wales (Lexis Nexis, 1985) |
Parties: | Timothy Neale Harrington ( Applicant) Matthew Charles Harrington ( Applicant) David Peter Harrington ( Applicant) |
Representation: | Counsel T Hewen ( Applicant) |
| Solicitors Tetlow Legal ( Applicant) | |
File Number: | PRO 553 of 2024 |
BAKER J:
Introduction
1․This is an application in the Estate of Nola Marie Harrington (the deceased) for probate of a will dated 17 April 2019 and a codicil dated 10 August 2023. The application is brought by the deceased’s three surviving children, Matthew Charles Harrington, Timothy Neale Harrington and David Peter Harrington (the applicants).
2․As outlined below, there are three different documents that purport to embody the testamentary intentions of the deceased. The Deputy Registrar raised a concern about whether the documents propounded by the applicants, namely the will dated 17 April 2019 and the codicil dated 10 August 2023, should be admitted to probate. For an abundance of caution, the Deputy Registrar referred the application to myself, as duty judge, under r 6255(1) of the Court Procedure Rules. I determined to conduct a hearing under r 6255(2) of the Court Procedure Rules.
3․After receiving comprehensive written submissions prepared by the applicant’s legal representative, I was satisfied that it was appropriate for a grant of probate to be made in respect of that will and codicil. I accordingly directed that the Registrar complete the grant of probate of the will dated 17 April 2019 and the codicil dated 10 August 2023 of the deceased. These are my reasons for so finding.
Background
Factual background
4․The deceased passed away on 5 December 2023.
5․Prior to her death, the deceased duly executed three documents, each of which purported to embody her testamentary intentions at the time:
(a)A will dated 17 April 2019 (the 2019 will),
(b)A will dated 13 May 2020 with an ‘attachment note’ (the 2020 will),
(c)A document described as a codicil to the 17 April 2019 Will, dated 10 August 2023 (the 2023 codicil).
6․The 2019 will appoints the deceased’s four children as executors. It provides that gifts of $50,000 are to be given to the grandchildren of the deceased, and the residue of the estate is to be divided equally between her four children. The 2019 will provides that if any of the deceased’s children predecease her, their share is to be divided equally amongst the deceased’s surviving children. The 2019 will appears to have been drafted by solicitors (Meyer Vandenberg, now MV Law).
7․The 2020 will purports to revoke all former wills. It contains one minor difference to the 2019 will, which is that instead of the residue of the estate being divided equally amongst the deceased’s surviving children, where a child predeceases the deceased and leaves children of their own, “then those children on attaining their respective majorities take equally the share of which their parent would otherwise have taken”.
8․The 2020 will also contains an ‘attachment note’, signed by the deceased, which provides as follows:
I… am aware that I have a current Will but as I didn’t direct the solicitor on my wishes and I did not fully understand what was in that Will, I have now made a new Will stating what my wishes are and how I wish to have my assets distributed.
It is my wish that there be FAIRNESS in the distribution of my estate, this new Will meets that wish.
9․The executors named in the 2020 will are Lynette Joan Butters and David Chalmers Butters. Their relationship to the deceased is unclear. The 2020 will was witnessed by pharmacists. There is no indication as to whether the 2020 will was drafted by solicitors.
10․The 2023 codicil has two clauses: first, it amends the 2019 will by removing a child of the deceased person who predeceased her, from both the clause appointing executors and the clause distributing the residue between them; and second, it purports to confirm the 2019 will.
11․The 2023 codicil does not revoke the 2020 will, and in fact does not refer to its existence. The codicil appears to have been drafted by the same solicitors who drafted the 2019 will. Although the codicil includes an attestation clause in the usual form, it appears to have been executed by the deceased and the witnesses with a permanent marker.
Procedural history
12․On 14 June 2024, the applicants filed an application for a grant of probate. The affidavit seeking the grant annexed the 2019 will, the 2020 will and the 2023 codicil. In the affidavit, the applicants stated that they believed that the 2019 will and the 2023 codicil together constituted the last will of the deceased and sought a grant of probate on that basis.
13․The Deputy Registrar had concerns about whether a grant of probate should be made on the 2019 will and 2023 codicil in circumstances where the 2020 will had not been expressly revoked by the 2023 codicil. The application was referred to me as duty judge on 26 July 2024.
14․On 26 July 2024, my associate wrote to the applicant’s legal representative, noting that the 2023 codicil does not expressly revoke the 2020 will. The email advised the applicants that the proceedings had been listed for hearing on 31 July 2024 so that the applicants could advise the Court as to whether there was any “practical difference” between the entitlements of individual beneficiaries under the 2020 will and the 2019 will as amended by the 2023 codicil.
15․On 30 July 2024, the applicants’ solicitor sent the Court an email advising that the interested persons potentially affected by the application were the surviving executor of the 2020 will (the other named executor having predeceased the deceased) and four of the deceased’s grandchildren (whose father, the deceased son, predeceased the deceased). The applicants’ legal representative advised the Court that an agreement had been reached with the affected persons, pursuant to a Deed of Family Arrangement dated 12 June 2024. Under that Deed, it was agreed that the applicants would seek probate of the 2019 will and that none of the affected persons would seek to propound the 2020 will. The applicant’s legal representative also provided written submissions addressing the revocation issue identified by the Court.
16․At the oral hearing of the application on 31 July 2024, I then made the orders referred to at [1] above.
Relevant legislation and principles
Revocation by revived will
17․Section 22 of the Wills Act 1968 (ACT), provides as follows:
22.Revival of revoked will
(1)A will, or a part of a will, that has been revoked is not revived unless—
(a)the testator re-executes it in the manner in which a valid will is required by part 2 to be executed; or
(b)the testator executes, in the manner in which a valid will is required by part 2 to be executed, a valid codicil that shows the intention of the testator to revive the will.
(2)If a testator who has revoked the remainder of a will after having previously revoked part of the will revives the will, the revival operates, unless the contrary intention appears, to revive only so much of the will as was last revoked.
(3)A will that is revoked and subsequently revived shall, for this Act, be deemed to have been made at the time when it is revived.
18․As in the present case, where a will is revived under s 22, a question will sometimes arise as to whether the revived will has the effect of revoking an intermediate will.
19․Two recent considerations of this issue include the decision of Gray J in In the Estate of Robert Paul Anderson (deceased) [2009] SASC 400; 267 LSJS 93 (Anderson) and of White J in Slack v Rogan [2013] NSWSC 522; 85 NSWLR 253 at [57] (Slack).
20․The deceased in Anderson had made a will on 17 November 1989, in which he relevantly left his estate to his wife, provided that she survived him by one month, and appointed her as his executor (the 1989 will). On 3 September 1990, the deceased executed another will, the contents of which were identical to the contents of the 1989 will (although it was differently formatted) (the 1990 will). There was no apparent explanation for the making of this will, which contained the “usual clause revoking prior wills”: Anderson at [4].
21․In 2008, the deceased fell seriously ill. The deceased was a legal practitioner, and he asked a partner of his law firm to prepare a codicil to his will. He did not specify which will. The 1989 will was in the firm’s records, but the firm had no record of the 1990 will. For this reason, the codicil was prepared as a codicil to the 1989 will, rather than the 1990 will. Clause 1 of the codicil revoked the clause of the 1989 will that appointed his wife as his executor, and appointed the deceased’s children and his friend, Mr Webster, as the executors and trustees of his estate (the 2008 codicil). The codicil was duly executed by the deceased prior to his death. The 1990 will was discovered in the deceased’s papers at his home after his death. The deceased’s children and Mr Webster then applied to the Supreme Court of South Australia for rectification of the 2008 codicil, so that it would refer to the 1990 will, rather than the 1989 will.
22․After a comprehensive consideration of authorities dating back to 1881 concerning the principles to be applied to revived wills, Gray J declined to grant rectification of the 2008 codicil. At [12], his Honour summarised his reasoning for so concluding as follows:
- the codicil is expressed to be a codicil to the 1989 will;
- the draftsperson (and for these purposes the draftsperson’s mind is the testator’s) did not know of the existence of the 1990 will and could not have been intending to draw a codicil to it;
- the reference in the codicil to the 1989 will and the confirmation of it by the codicil are sufficient words to indicate an intention to revive that will. The draftsperson, and therefore it might be suggested the testator, intended that the 1989 will be confirmed;
- the 1989 will has been revived with effect from 4 June 2008. The revocation clause in the revived will revokes the 1990 will;
- the 1989 will should be admitted to probate with the codicil;
- no question of rectification arises.
23․Similarly, the deceased in Slack had made a will in 2003 substantially in favour of her nephew (the 2003 will). In 2007, the deceased made a will revoking all previous wills and leaving her estate to her grandchildren (the 2007 will). In 2008, the deceased signed a further document which purported to revive the 2003 will, but which had not been executed in accordance with the provisions of the Succession Act 2006 (NSW) (the 2008 document). The 2008 document made no reference to the 2007 will.
24․Justice White was satisfied that the deceased intended that the 2008 document form her will. Accordingly, s 8(2)(b) of the Succession Act had the effect that the 2008 document was taken to have been duly “executed” within the meaning of s 15 of that Act: Slack at [56].
25․His Honour held that that as a consequence of s 15 of the Succession Act (which is in similar terms to s 22 of the ACT Wills Act), “the 2003 will which had been revoked was revived and was taken to have been executed on 4 December 2008”: Slack at [57]. His Honour further held that the revocation clause in the revived 2003 was “operative to revoke the 2007 will”: Slack at [57], citing In re Baker [1929] 1 Ch 668 at 673, In re Pearson, deceased, Rowling v Crowther [1963] 1 WLR 1358 at 1360; In the Will of Killick [1960] VR 98 at 105 and Anderson at [48]. His Honour concluded that an earlier grant of probate of the 2007 will should be revoked, and that a fresh grant of probate of the 2003 will, together with the 2008 document, should be made: Slack at [60].
26․Both Anderson and Slack demonstrate that a revocation clause in a revived will may have the effect of revoking an intermediate will, even where there is no mention of the intermediate will in the reviving document. Academic commentary is to the same effect. For example, in The Law of Succession in New South Wales (4th ed, LBC 2010), G L Certoma states that:
Where a revoked will is revived, it will impliedly revoke any inconsistent provisions contained in a will made between the date of the revoked will and the date of revival and if the revived will contains a revocation clause it will expressly revoke such intermediate will in toto.
(Certoma at [7.40], citing Re Pearson [1963] 1 WLR 1358, emphasis added.) See also Mason and Handler, Succession Law and Practice New South Wales (Lexis Nexis, 1985) at [s 15.4.5] (“Where a first will is wholly revoked by the terms of a second will and a third will (being a codicil to the first) confirms and revives the first will (with amendments) the second will must be taken as having been revoked, either because the revocation clause in the first will is to be treated as operating from the date of the first will, or the terms of the first will as affected by the third will are completely irreconcilable with the continued operation of the second”.)
27․Of course, as Gray J emphasised in Anderson at [19], the question of whether a later instrument in fact revives an earlier will is a question of construction, which will depend on the language of “the subject document in each particular case”. It is also necessary to construe the revocation clause which has been revived. When construing such a revived revocation clause, it is necessary to apply s 22(3) of the Wills Act, which deems a revived will “to have been made at the time when it is revived”; cf Re Dear [1975] 2 NZLR 254 at 264.
Revocation implied by later will
28․Section 21 of the Wills Act provides as follows:
21 Revocation of will
Subject to sections 8B, 16A, 20 and 20A, a will or part of a will is not revoked except—
(a)if the testator is a person to whom section 16 applies—by the testator expressing his or her intention to revoke the will or part of the will in a manner in which he or she is entitled to dispose of his or her property under that section; and
(b)whether or not the testator is a person to whom section 16 applies—
(i) by a subsequent valid will of the testator; or
(ii) by the testator executing a document in like manner as a will is required by part 2 to be executed that shows his or her intention to revoke the will or part; or
(iii) by the burning, tearing or otherwise destroying of the will or part by the testator, or by a person acting in the presence of and by the direction of the testator, with the intention of revoking the will or part. (emphasis added)
29․As noted at [26] above, in his text The Law of Succession in New South Wales (4th ed), G L Certoma notes that where a “revoked will is revived, it will impliedly revoke any inconsistent provisions contained in a will made between the date of the revoked will and the date of revival” (at [7.40]). A later will dealing with the whole of a testator’s property will impliedly revoke all prior testamentary instruments: Certoma at [7.40], citing Cadell v Wilcocks [1898] P 21.
Determination
30․As noted at [27] above, whether a later will has the effect of reviving an earlier will is a matter of construction, which will depend upon the language of the subject document in each particular case: Anderson at [19].
31․In the present case, I was satisfied that the deceased intended the 2023 codicil to revive the 2019 will for the following reasons:
(a)The 2023 codicil expressly refers to the 2019 will. In particular, the 2019 will is referred to by date on the cover page of the codicil, in the header of the codicil and in clauses 1.1, 1.2 and 2 of the codicil;
(b)Clause 2 of the 2023 codicil contains an express confirmation of the unamended clauses of the 2019 will; and
(c)The 2023 codicil expressly refers to and replaces specific numbered clauses in the 2019 will concerning the appointment of executors and the disposition of the remaining estate.
(d)There is no reference in the 2023 codicil to the 2020 will or its content. Further, the wording of the 2023 codicil, if read together with the 2020 will (rather than the 2019 will), would result in an incoherent document.
(e)The 2019 will as amended by the 2023 codicil exhaustively disposes of the whole of the deceased’s estate in a manner which is inconsistent with the disposition of the deceased’s estate in the 2020 will.
32․Accordingly, as a result of s 22(3) of the Wills Act, the 2019 will (as amended by the 2023 codicil) is deemed to have been executed on 10 August 2023, being the date that the 2023 codicil revived the 2019 will. Accordingly, cl 1 of the 2019 will (which is taken to have been made on 10 August 2023) has the effect of revoking all other wills and testamentary acts executed prior to 10 August 2023, including the 2020 will.
33․In the alternative, the 2020 will is impliedly revoked by the 2019 will as amended by the 2023 codicil, because the effect of the 2019 will as amended by the 2023 codicil is to dispose of the whole of the deceased’s estate in a manner which is inconsistent with the 2020 will.
34․In so finding, I have not overlooked the fact that the 2020 will contained an attachment which indicated that, in making the 2019 will, the deceased did not instruct her solicitors as to her wishes, and did not, at that time, “fully understand what was in [that] will”. However, due execution of the 2023 codicil, which expressly referred to the 2019 will, is sufficient to raise an inference that the deceased knew and approved of its contents: Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; 14 BPR 26867 at [42]. As the 2023 codicil has been duly executed, the rebuttable presumption of capacity arises: Timbury v Coffee [1941] HCA 22; 66 CLR 277 at 283. None of the potential beneficiaries contend otherwise.
35․Accordingly, there should be a grant of probate in the terms sought in the application.
Orders
36․For the above reasons, I made the following orders:
(1)In the Estate of Nola Marie Harrington, late of Mona Tait Gardens, 160 Ellenborough Street Kaleen in the ACT, I direct that the Registrar complete the grant of probate of the Will dated 17 April 2019 and the codicil dated 10 August 2023 of the deceased.
| I certify that the preceding [36] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: |
0
4
3