In the Estate of Nora Anella Leber (Deceased) - [2014] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of NORA ANELLA LEBER (DECEASED)
[2014] SASC 47
Judgment of The Honourable Justice Gray
3 April 2014
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - GENERALLY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - WHERE SEVERAL INSTRUMENTS - GRANT OF SINGLE PROBATE - GENERALLY
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF COURT - SOUTH AUSTRALIA
This is an application under section 12(2) of the Wills Act 1936 (SA) for an order admitting an informal will to probate. The deceased left two handwritten documents that appear to be testamentary in nature, the first dated 1998 and the second 2006. Both documents were torn. The applicant initially sought orders admitting the 1998 document to proof as the will of the deceased and the 2006 document to proof as a codicil to that will. Subsequently, the applicant sought an order admitting only the 2006 document to proof as the will of the deceased.
Whether the documents should be admitted to probate in accordance with section 12(2) of the Wills Act. Whether the tearing of the 1998 and 2006 documents had the effect of revoking those documents in accordance with section 22(d) of the Wills Act. Whether the 2006 document impliedly revokes the 1998 document. If the 2006 document does revoke the 1998 document, in what capacity is the applicant entitled to a grant in respect of the 2006 document.
Held (granting the application):
(1) It would be appropriate to admit both documents to probate under section 12(2) of the Wills Act (at [16]).
(2)     The deceased did not intend to revoke the documents by destruction (at [19]).
(3)     The wording of the 2006 document is sufficiently broad to suggest that the deceased was attempting to deal with her entire estate in that document. The deceased impliedly expressed an intention that the 2006 document would revoke the 1998 document (at [24]).
(4)     The deceased’s brother is the only beneficiary under the 2006 document and is therefore entitled to a grant of probate as the “universal devisee and legatee” (at [28]).
(5)     It is appropriate to dispense with the need for any further consents in accordance with rules 64.02 and 64A.02 of the Probates Rules 2004 (SA) (at [32]).
Wills Act 1936 (SA) s 8, s 12 and s 22; Probate Rules 2004 (SA) r 23, r 44, r 64 and r 64A, referred to.
In the Estate of Kavanagh (1977) 16 SASR 342; In the Estate of Davis (deceased) [2011] SASC 143; Estate of Collins [2000] NSWSC 407; Re Pearce [1946] SASR 118; Baker v Drysdale (1982) 29 SASR 572; Re Leury [1975] VR 601; In re Hallam, deceased (1991) 162 LSJS 429, considered.

In the Estate of NORA ANELLA LEBER (DECEASED)
[2014] SASC 47
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. The application has been referred to me by the Registrar of Probates under rule 64.04 of the Probate Rules 2004 (SA).
Nora Anella Leber, otherwise known as Nona Anella Leber, the deceased, died on 16 January 2009. Following her death, two handwritten documents that appear to be testamentary in nature and signed by the deceased were found. The first is dated 27 May 1998 and the second 14 May 2006. By summons, the applicant initially sought orders admitting the 1998 document to proof as the will of the deceased and the 2006 document to proof as a codicil to that will. However, following the hearing of the application, the applicant provided further written submissions in which it was contended that only the 2006 document should be admitted to proof as the will of the deceased.
The 1998 document provides:
27-5-98
This is my last will.
Please give my all savings at National Bank at Glenelg & Commonwealth Bank at Brighton and my jewelleries & belongings to my brother Gary William Maggs and clothes & fabrics materials to my sister in law Rosemary Maggs.
The knitting wools to my friend Joyce Bradbrook.
From Nona A Leber
The document has been torn horizontally such that the bottom portion of the document beneath the writing is missing.
The 2006 document has been torn in the top left corner as a result of which it is apparent that a small amount of writing is missing. The document then provides:
14-5-06.
…s my last will
if anything happens to me.
My all assets – house – … Marino 5049 & Mirage car & monies in the National Bank & investments go to my youngest brother Gary William Maggs.
He can do what he ever he wishes to sell, and jewelleries go to my sister in law Rosemary Maggs.
And monies go share to my nephews, Trevor, Wesley & Adrian Maggs.
Signed Nona A Leber.
The deceased died a widow without issue. The parents of the deceased predeceased her. If the estate of the deceased were to be administered according to the rules of intestacy, it would be divided equally between her three brothers. The applicant deposes that the net value of the deceased’s estate is $211,380.04 comprised almost entirely of funds held with financial institutions. The personal effects of the deceased, including jewellery, clothes, fabrics and knitting wools, have an estimated value of $50.00.
The application is brought by Adrian Edwards Maggs, a nephew of the deceased. It was contended that the person entitled to a grant is Gary William Maggs, the brother of the deceased, but that he is unable to act as executor by reason of physical incapacity. Adrian Maggs therefore applies for a grant for the use and benefit of Gary Maggs pursuant to rule 44 of the Probate Rules, which relevantly provides:
44.01Where the Registrar is satisfied that a person entitled to a grant is by reason of mental or physical incapacity incapable of managing his or her affairs, the Registrar may order that administration for such person’s use and benefit limited during such person’s incapacity or in such other way as the Registrar may direct, be granted -
(a)     in the case of mental incapacity -
(i)    to the committee of a lunatic so found by inquisition, or
(ii)to the administrator of the estate of such person appointed pursuant to section 35 of the Guardianship and Administration Act, 1993, or
(iii)to the manager of the property of such person appointed under the Aged and Infirm Persons' Property Act, 1940.
(b)     Where there is no such committee, administrator or manager appointed or in the case of physical incapacity -
(i)if the person incapable is entitled as executor and has no interest in the residuary estate of the deceased, to the person entitled to the residuary estate;
(ii)if the person incapable is entitled otherwise than as executor, or is an executor having an interest in the residuary estate of the deceased, to the person who would be entitled to the grant in respect of his or her estate if he or she had died intestate;
or to such other person as the Registrar may by order direct.
…
44.07In the case of physical incapacity the application for the grant under Rule 44 must, unless the Registrar otherwise directs, be supported by the consent of the person alleged to be so physically incapacitated.
…
The Court was provided with a copy of a letter from Dr James Farrent, the general practitioner of Gary Maggs. Dr Farrent indicated that Gary Maggs does have the capacity to make informed decisions and understands the impact of his decisions, but, due to physical difficulties, is unable to manage the complexities involved with the administration of the deceased’s estate. Gary Maggs has provided a consent to the present application.
Four questions arise to be determined on the application. First, whether the 1998 and 2006 documents are appropriate to be admitted to probate pursuant to sections 12(2) and (3) of the Wills Act, notwithstanding that the documents have not been executed with the formalities required by the Act. Second, whether the tearing of the 1998 and 2006 documents had the effect of revoking those documents in accordance with section 22(d) of the Wills Act. If I am satisfied that both documents should be admitted as testamentary instruments under section 12 and that the documents were not revoked as a result of being torn, the third question is whether the 2006 document impliedly revokes the 1998 document. If it does not, both documents should be admitted. If the 2006 document does impliedly revoke the 1998 document, only the 2006 document should be admitted to probate. If the 2006 document does revoke the 1998 document, the final question of construction is in what capacity Gary Maggs is entitled to a grant in respect of the 2006 document.
It appears to be settled that questions of construction can be dealt with by the Court on an application for a grant of probate, at least to the extent of deciding which testamentary documents should be admitted to probate, who is entitled to the grant and in what capacity they are so entitled.[1]
[1] In the Estate of Kavanagh (1977) 16 SASR 342, 345-346.
In regard to the first question, section 8 of the Wills Act sets out the formalities required for a valid will and 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).
It is clear that neither the 1998 nor the 2006 documents satisfy the requirements of section 8. In particular, neither document was signed by any attesting witness.
Section 12(2) of the Wills Act provides for the admission to probate of testamentary documents that have not been executed in accordance with the formalities required by 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.
Section 12(2) constitutes remedial legislation and is therefore to be accorded a liberal construction.[2]
[2]    In the Estate of Davis (deceased) [2011] SASC 143, [22].
An affirmation sworn in support of the application by Rosemary Maggs, the deceased’s sister in law, deposes that the deceased had often, prior to her death, discussed her will with Ms Maggs. Ms Maggs had asked the deceased if she had made a will and the deceased told her that she had. The deceased told Ms Maggs that she intended to leave the bulk of her estate to Gary Maggs. Ms Maggs also deposed that the deceased was fond of her nephews, being Trevor, Wesley and Adrian Maggs, and wanted to provide for them.
In his affirmation, Eric Maggs, the deceased’s brother, deposed that he had discussed with the deceased the question of whether she had a will on numerous occasions before her death. The deceased assured him that she had a will.
The facts deposed to by Rosemary and Eric Maggs suggest that the deceased intended to die testate and believed that she had at least one document in place which constituted her will. Both the 1998 and 2006 documents are capable of being consistent with that belief. Both documents clearly purport to direct the distribution of the deceased’s property in the event of her death. Both documents are in writing, are signed by the deceased and appear to commence with the words “This is my last will”. Putting to one side the remaining questions to be decided on this application, as identified above, I am satisfied that it would be appropriate to admit both documents to probate under section 12(2) of the Wills Act.
The second question to be determined, as earlier outlined, is whether the 1998 and 2006 documents were revoked pursuant to section 22(d) of the Wills Act as a result of having been torn. Section 22 of the Wills Act deals with the revocation of wills and provides:
Subject to section 12(3), no will or codicil or any part of a will or codicil is revoked otherwise than—
(a)     by marriage or termination of marriage as provided by this Act; or
(b)     by another will or codicil executed in the manner required by this Act; or
(c)     by some writing declaring an intention to revoke the will or codicil or the part of the will or codicil and executed in the manner in which a will is required by this Act to be executed; or
(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.
As earlier mentioned, both propounded documents have been torn. Rule 23 of the Probate Rules requires that in such circumstances, evidence be provided to address the issue of an attempted revocation by destruction. That rule 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.
On the limited evidence before the Court, several factors weigh against applying the presumption of revocation. The evidence of Rosemary and Eric Maggs regarding the deceased’s belief that she had a valid will is inconsistent with her having intended to revoke the propounded documents through destruction. However, there is no indication as to when the documents were torn. It is therefore unclear whether the documents were torn before or after the deceased had the relevant conversations with Rosemary and Eric Maggs. Further, it appears from an examination of the documents, as extracted earlier in these reasons, that no substantial words were omitted as a consequence of the documents having been torn. On balance, I am satisfied that the deceased did not intend to revoke the documents by destruction.
The third question to be determined is whether the 2006 document has the effect of impliedly revoking the 1998 document. As earlier mentioned, the applicant initially sought orders admitting the 1998 document to proof as the will of the deceased and the 2006 document to proof as a codicil to that will. However, following the hearing of the application, the applicant provided further written submissions in which it was contended that the 2006 document disposed of the whole of the estate of the deceased and, in doing so, impliedly revoked the 1998 document.
In In the Estate of Davis,[3] I considered the authorities relevant to the situation where a court is presented with two documents testamentary in nature and, in particular, the question of the effect of the later document on the earlier. It is convenient to again extract the following observations of Young J in Estate of Collins:[4]
Generally, where a later will deals with the whole of the testator’s property, impliedly all prior testamentary instruments are revoked: Cadell v Wilcocks [1898] P 21. Here, the informal document deals with the deceased’s entire estate.
However, where a later testamentary instrument which does not contain a revocation clause is partially or totally inconsistent with a former testamentary instrument, then the former will is considered to be revoked in whole or in part. The mere fact of making a subsequent testamentary document does not work a total revocation of the prior one unless expressly stated or the two are incapable of standing together: Lemage v Goodban (1865) 1 P & D 57; Re Gilbert (1905) 22 WN (NSW) 186. If possible, the court will attempt to construe wills not containing revocation clauses as standing together in which case the later will prevail over the earlier one to the extent of any inconsistency: In the Goods of Budd (1862) 3 Sw & Tr 196; (1862) 164 ER 1249; In the Goods of Petchell (1874) 3 P & D 153; Re Christie (1883) 9 VLR (IP & M) 46; Re Resch’s Will Trusts [1969] 1 AC 514. Generally, a prior testamentary instrument will be disturbed only to the extent needed to give effect to the later inconsistent document.
The question is really one question of the testator’s intention - can it be discerned whether the testator intended the informal document to completely revoke his former will, or merely to amend (partially revoke) it?
[Emphasis added.]
[3] In the Estate of Davis (deceased) [2011] SASC 143, [29]-[34].
[4] Estate of Collins [2000] NSWSC 407, [5]-[7].
The precise form of words used will be of central importance in determining whether the deceased intended by the latter document to dispose of their entire estate, thereby revoking the earlier document.
In Re Pearce,[5] Abbott J held that the words “balance of monies” were capable of carrying the whole residue of the estate not expressly referred to in the will. In Baker v Drysdale,[6] Legoe J reached a similar conclusion in relation to the phrase “such other benefits and monies that may be due to me”. In In re Hallam, deceased, Matheson J made the following relevant observations:[7]
The more difficult question to be determine [sic] in this case is whether the words in the document “do hereby bequeath all my personal wealth and possessions” are sufficient to pass the deceased’s entire estate to the widow as the universal devisee and legatee, or whether they should be construed in a limited sense as passing personal estate only.
There does not appear to be any case in which a court has had to consider the precise words used by the deceased, but it would appear that if he had said merely “all my possessions”, he would undoubtedly have effectively disposed of his whole estate, see In re Brigden (1938) 1 Ch.205.
[5]    Re Pearce [1946] SASR 118.
[6]    Baker v Drysdale (1982) 29 SASR 572; see also Re Leury [1975] VR 601.
[7]    In re Hallam, deceased (1991) 162 LSJS 429, 430.
In relation to the present application, it appears that two phrases in the 2006 document are sufficiently broad to suggest that the deceased was attempting to deal with her entire estate in that document. Those phrases are “My all assets” and “monies in the National Bank & investments”. I am satisfied that through those phrases, the deceased expressed an intention to deal with the whole residue of her estate not expressly referred to in the remainder of the document. Accordingly, I am satisfied that the deceased impliedly expressed an intention that the 2006 document would revoke the 1998 document.
Section 12(3) of the Wills Act provides:
If the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses an intention by a deceased person to revoke a document that might otherwise have been admitted to probate as a will of the deceased person, that document is not to be admitted to probate as a will of the deceased person.
Pursuant to section 12(3) of the Probate Rules, the 1998 document is not to be admitted to probate. The 2006 document is to be admitted to probate as the will of the deceased in accordance with section 12(2).

The remaining question to be determined on the application is in what capacity Gary Maggs is entitled to a grant in respect of the 2006 document. If Gary Maggs is the only beneficiary under the 2006 document, he would be entitled to a grant of probate as the “universal devisee and legatee”. If he is not the only beneficiary, he would be entitled as “one of the devisees and legatees”. This question turns on whether there is an effective gift in the 2006 document to any of Rosemary, Trevor, Wesley or Adrian Maggs.
As earlier discussed, the 2006 document, by use of the phrases “My all assets” and “monies in the National Bank & investments”, appears to provide a gift of the entire estate of the deceased to Gary Maggs. The words following these two phrases as earlier extracted, are ambiguous. Where a will clearly confers an interest on a beneficiary, subsequent ambiguous words cannot cut down that interest.[8] I am satisfied that Gary Maggs is the only beneficiary under the 2006 document and is therefore entitled to a grant of probate as the “universal devisee and legatee”.
[8] IJ Hardingham, MA Neave and HAJ Ford, Wills and Intestacy in Australia and New Zealand (Law Book Co, 2^nd ed, 1989) [1119].
Rule 64 of the Probate Rules deals with applications for grants under section 12(2) of the Wills Act. Rule 64 relevantly 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.
…
64.04 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.
Rule 64A of the Probate Rules appears in similar terms and applies to applications for the revocation of a document under section 12(3) of the Wills Act.
Each of the persons who would be entitled in the event of an intestacy have consented to the application as initially brought, namely, the admission of both the 1998 and 2006 documents to proof. However, no consents have been provided to an application on the basis that only the 2006 document is to be admitted to probate. Further, Joyce Bradbrook, who would take “knitting wools” under the 1998 document, has provided no consent.
Having regard to the size of the deceased’s estate and the fact that consents have been provided to the application as originally brought, I am satisfied that it is appropriate to dispense with the need for any further consents in accordance with rules 64.02 and 64A.02 of the Probate Rules.
Conclusion
The document dated 14 May 2006 and marked “B” referred to in the affirmation of Adrian Edward Maggs affirmed on 2 March 2012 is to be admitted to proof as the last will and testament of the deceased. The document is to be read and construed as revoking all former wills and testamentary dispositions of the deceased, and wholly disposing of the estate of the deceased to Gary William Maggs absolutely. It is appropriate that letters of administration of the deceased’s estate with the will annexed be granted to Adrian Edward Maggs for the use and benefit of Gary William Maggs during his incapacity. The costs of and incidental to the application are to be paid out of the estate of the deceased.