In the Estate of PAUL WILLIAM BRUMMITT (DECEASED)

[2011] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Civil)

In the Estate of PAUL WILLIAM BRUMMITT (DECEASED)

[2011] SASC 116

Judgment of The Honourable Justice Gray

20 July 2011

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF THE COURT - SOUTH AUSTRALIA

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - CHANGING, TRANSPOSING, OMITTING OR SUPPLYING WORDS - OMITTING WORDS

Referral from the Registrar of Probates regarding words used in the will of the deceased - where deceased’s will referred to “extra marital affairs” of his former wife as the reason for him not having provided in his will for his son, who it was stated in the will, was not his son - whether this Court should exercise its power to omit apparently scandalous or offensive words from the will of the deceased for the purposes of a grant of probate - consideration of the circumstances when it is appropriate to exercise the power to omit words. 

Observations about considering words in their contemporary context. 

Held: Not an appropriate case to exercise the power to omit the impugned words from the will - direct that the Registrar of Probates admit the document to probate including the impugned words.

Probate Rules 2004 (SA) r 10.05, r 66 and r 77; Administration and Probate Act 1919 (SA) s 5, s 7, s 7A and s 8; Acts Interpretation Act 1915 (SA) s 21, referred to.
In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486; In Estate of Ward (2006) 244 LSJS 326; In the Estate of Hawke (1973) 6 SASR 278; In the Estate of Adler (1989) 155 LSJS 53; Re Estate of L (deceased) (1996) 185 LSJS 406; D’orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Rasheed v Rasheed (1999) 73 SASR 346; In the Estate of Hall (dec'd) [1943] 2 All ER 159; Re Maxwell (1929) 140 LT 471; In the Will of JP, deceased (1922) 39 WN (NSW) 228; In the Goods of Honywood [1871] LR 2 P&D 251; In the Will of O’Reilly [1927] VLR 533; In the Goods of Bowker [1932] P 93; In the Estate of White [1914] P 153; Curtis v Curtis (1825) 162 ER 393; In re Goods of George Wartnaby (1846) 163 ER 1088; Marsh v Marsh (1860) 164 ER 845; In the Estate of T, deceased (1961) 105 Sol Jo 325; Re Bryden [1975] Qd R 210; In the Estate of John Rawlings (deceased) (1934) 78 Sol Jo 338; Re Mark Alfred Clarkson (Unreported, Supreme Court of Victoria, Fullagar J, 27 October 1987), considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"scandalous", "offensive", "defamatory"

In the Estate of PAUL WILLIAM BRUMMITT (DECEASED)
[2011] SASC 116

Testamentary Causes Jurisdiction

GRAY J:

Introduction

1. This is a referral from the Registrar of Probates pursuant to rule 77 of the Probate Rules 2004 (SA), regarding words used in a will of the deceased, Paul William Brummitt.  This referral calls for a consideration of the power to excise words from a will for the purpose of a grant of probate. 

   Background

2. The deceased died on 5 April 2010, leaving a will executed on 21 February 2007.  He was aged 62 years at the time of his death. 

3. By clause 7 of the will the deceased directed that no death notice was to be published.  In clause 6, the deceased declared that he had not provided for D because he believed that his former wife had had extra marital affairs and that D was not his child.  He asserted that both his former wife and D had declined DNA testing. 

4. The will is relevantly in the following terms:

   2.I wish to be cremated and to have my ashes scattered at any place known by my executor to have been enjoyed by me.

   3.     3.1     I appoint as my executor and trustee BELINDA MARY GILCHRIST

   3.2     If BELINDA MARY GILCHRIST refuses or is unable to act or continue to act as my executor or trustee I appoint as my executor and trustee MICHAEL AIDEN GILCHRIST

   …

   4.     My executors shall hold my estate on trust:

   4.1     Subject to sub-paragraph 2, to divide it equally among BELINDA MARY GILCHRIST and RICHARD McDAIRMID MINCHIN who survive me;

   4.2     If a person referred to in subparagraph 4.1 has already died or dies before me or before attaining a vested interest leaving children who attain the age of 21 years then those children on attaining the age of 21 years take equally the share of which their parent would otherwise have taken. 

   5.     I direct that my former wife [DB] shall not take any benefit from my estate.  I have not provided for the said [DB] as I acknowledge no further obligation to her in any circumstances. 

   6.     I declare that I have not provided for [D] as I believe upon the basis that my former wife [DB] had extra marital affairs that the child [D] is not my child.  Both the child [D] and my former wife [DB] refused to co-operate with a DNA test in respect of paternity of [D]. 

   7.I direct my executors that no notice of my death is to be published in any newspaper periodical or other form of media whatsoever. 

   8.     My executors may in their discretion:

   …

   [Emphasis added.]

5. As at August 2010, the net estate was estimated to be worth $434,113.27; being primarily comprised of a three bedroom unit at Paradise, furniture and other personal effects contained in the unit and money in a bank account. 

6. An issue arose as to the applicability of rules 10.05 and 66 of the Probate Rules, which provide:

   10.05Where an application is made for proof of a will which, in the Registrar’s opinion, contains words of an offensive or libellous nature, the Registrar shall not allow the grant to issue until an application has been made under Rule 66 to have such words excluded from the grant copy of the will.

   Application for omission of words of an offensive or libellous nature from grant

   66.01An application for an order for the omission of words of an offensive or libellous nature from the copy of the will to be admitted to proof may be made without notice to any other party to the Registrar by summons in the Form No. 33

   66.02The application must be supported by an affidavit (to which the will must be exhibited) setting out the grounds of the application, together with the consents in writing to the application given by all persons who may be prejudiced by the order:

   Provided that if a person who is prejudiced by the application is not sui juris or cannot be ascertained or found, or if the Registrar is satisfied that in the circumstances it is just and expedient to do so, the Registrar may dispense with such consent.

7. It is to be noted that the rules above refer to words of an “offensive or libellous” nature.  In other jurisdictions, words to a similar effect have been used, such as “scandalous” or “defamatory”.  I consider that the rules reflect the inherent jurisdiction of the Court to protect its processes from being abused and to prevent unnecessary harm being caused to the subject or subjects of the words, topics which I return to shortly.  Later in these reasons, when I use any of these terms, I intend them to refer to the same matter. 

8. The applicant for probate contended that the words do not amount to being offensive or libellous and that probate ought to issue in the words of the will as it stands.  The applicant’s position was that the wording used in clause 6 is an explanation of why the deceased has made the testamentary decisions that he has.  The applicant submitted that although more gentle drafting could have been used, the expression “extra marital affairs” was not intended to be, nor is, offensive or libellous. 

9. No application under rule 66.01 has been made in the present proceeding.  Belinda Gilchrist, as executor of the estate of the deceased, sought a grant of probate.  The Registrar of Probates sought a submission from the applicant on the applicability of rules 10.05 and 66 of the Probate Rules.  He referred to clause 6 of the will and in particular to the use of the words “extra marital affairs”.  In light of the position taken by the applicant for probate as outlined above, the Registrar referred the matter to me. 

10. In circumstances where no application under the rules above has been made, a question arises as to the scope of rule 77 of the Probate Rules, the rule pursuant to which this matter was referred to me.  Rule 77 is in the following terms:

    Power to require application to be made by summons

    The Registrar may require any application made to the Registrar to be brought before the Registrar by summons, and may refer any application made to the Registrar, or any matter, whether by summons or otherwise, to a Judge or require the same to be brought before the Court by summons.

11. The source of the power for rule 77 is to be found in sections 7, 7A and 8 of the Administration and Probate Act 1919 (SA). It is appropriate to extract the terms of section 8:

    Registrar to obtain direction of Judge in doubtful case

    In any case where it appears to the Registrar doubtful whether probate or administration should be granted, or whether he should exercise any power or discretion appertaining to his office, he shall obtain the direction of a Judge, and act accordingly, and the Registrar shall be subject in all cases to the control and orders of the Court.

12. I consider rule 77 to embody a broad power of referral. As much is clear from the terms of the rule and in particular the use of the words “or any matter, whether by summons or otherwise”. In any event, the terms of section 8 of the Administration and Probate Act are clear; if the Registrar entertains any doubt as to whether he or she should exercise any power or discretion appertaining to his or her office, he or she shall obtain the direction of a Judge, and act accordingly. 

13. Further, in my view, although rules 10.05 and 66 of the Probate Rules contemplate an application being made, the Court retains its inherent power[1] to strike out words from a will in certain circumstances, of its own motion.

    [1] See section 5 of the Administration and Probate Act 1919 (SA), which provides:

    Probate jurisdiction of Supreme Court

    (1)   The like voluntary and contentious jurisdiction and authority as immediately before the coming into operation of this Act belonged to or were vested in the Supreme Court, in relation to granting or revoking probate of wills and letters of administration of the effects of deceased persons, shall be vested in and exercised by the said Court in relation to granting or revoking probate of wills and letters of administration of the estate, as well real as personal, of deceased persons within the said State; and the Court shall have the same power of granting probate or administration, where the only estate within the State consists of realty, as if such estate comprised both realty and personalty.

    (2)   The said Court shall also have and exercise the like powers, and its grants and orders shall have the like effect within the said State, in relation to the real and personal estate therein of deceased persons, as immediately before the coming into operation of this Act the said Court and its grants and orders respectively had within the said State, in relation to those matters and causes testamentary, and those effects of deceased persons, which were within the jurisdiction of the said Court.

    (3)   All duties which by statute or otherwise were, immediately before the coming into operation of this Act, imposed on or to be performed by the said Supreme Court in respect to probates, or administrations, or matters or causes testamentary within its jurisdiction shall continue to be performed by such Court within the said State.

    The Relevant Principles

14. As I set out in In the Estate of Enjakovic (dec’d),[2] the inherent power of this Court, expressly provided for in section 5 of the Administration and Probate Act, together with previous decisions of this Court,[3] provide authority in support of a power in the Court to exclude words from documents being admitted to probate.  The jurisdiction to omit words is part of the Court’s inherent jurisdiction to protect its processes from abuse.[4]  This inherent jurisdiction extends to probate.[5]  The relevant process needing protection from abuse in the probate context is the process for the proving of wills.[6] 

    [2]    In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486, drawing on the observations in In Estate of Ward (2006) 244 LSJS 326, [12].

    [3]    See for example In the Estate of Hawke (1973) 6 SASR 278; In the Estate of Adler (1989) 155 LSJS 53; Re Estate of L (deceased) (1996) 185 LSJS 406; In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486.

    [4]    In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486 citing D’orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, [201] (McHugh J).

    [5]    See for example Rasheed v Rasheed (1999) 73 SASR 346.

    [6]    In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486, 492.

15. The starting point is that a will ought to be admitted to probate in the words of the will itself.[7]  The Court has a power to omit words from the probate copy and subsequent copies of the will ordered[8] that are scandalous, offensive, blasphemous or defamatory in character.[9]  It is to be borne in mind that the power to omit words is to be exercised with great care.[10]  This can be traced to the observations of Lord Penzance in In the Goods of Honywood:[11]

    …[I]t is a power to be exercised with great moderation, and in cases of a definite character. … It would be a great misfortune if the Court on light grounds should interfere in such a matter, and put before the world under its seal a document professing to be, but actually not, a true copy of the will.

    [7]    In the Estate of Hall (dec’d) [1943] 2 All ER 159, 160.

    [8]    That is, the words cannot be expunged from the will itself: Re Maxwell (1929) 140 LT 471.

    [9]    See further Estate of Ward (2006) 244 LSJS 326.

    [10]   In the Estate of Hall (dec’d) [1943] 2 All ER 159; In the Will of JP, deceased (1922) 39 WN (NSW) 228, 229; In the Will of O’Reilly [1927] VLR 533, 535.

    [11]   In the Goods of Honywood [1871] LR 2 P&D 251, 252, these observations were endorsed and applied by Lowe J in In the Will of O’Reilly [1927] VLR 533, 535.

16. In In the Will of JP, deceased,[12] Owen AJ in the Supreme Court of New South Wales was faced with an application to which there were four applicants all seeking to have omitted separate words from the probate copy of the will.  A grant of probate in respect of that will had been made earlier.  One applicant, a son-in-law of the testator, sought the omission of the words relating to him “A Spiegler and…”, in the context of a description of him as a “Spiegler and a gambler”.  A son of the testator sought the removal of the words which accused him of threatening to set fire to a house the testator was building.  Another son of the testator sought the removal of the words that he would take the testator’s money if he could get it.  Another son of the testator took issue with the words in the will which referred to him as having married a woman he should not have married and which stated that there were no children of the marriage and that there never would be. 

    [12]   In the Will of JP, deceased (1922) 39 WN (NSW) 228, 229.

17. The Court’s reluctance to interfere with the words of a will, except in a clear and definite case, is demonstrated by the approach taken by Owen AJ in In the Will of JP.  With respect to the description of his son-in-law as a “Spiegler”, his Honour characterised the word used as nothing more than “exceedingly plain-spoken”, and expressed doubt about whether the Court ought to remove such words merely because they are plain-spoken.  Further, the reference to his son’s threat to set fire to the house being built by the testator, was clearly expressed as a reason for excluding that son from the benefit of the will.  In these circumstances, Owen AJ concluded the following, which I consider pertinent:[13]

    I doubt whether the Court would be justified in removing from the probate the strongest reason, or one of the strongest reasons which influenced the testator in declining to make a disposition in favour of a particular son.

    In relation to the statement that one of the sons would take the money if he could get it, Owen AJ considered the words used to be unkind, but questioned whether they were so offensive as to justify striking them out.  Finally, in regard to the words relating to one son’s choice of wife and their prospects of producing offspring, his Honour concluded that there was nothing offensive about them.  Ultimately, his Honour rejected all claims and considered the case before him not an appropriate case to exercise the jurisdiction of the Court to strike out words of a will.[14] 

    [13]   In the Will of JP, deceased (1922) 39 WN (NSW) 228, 229.

    [14]   In the Will of JP, deceased (1922) 39 WN (NSW) 228, 230.

18. Bucknill J in In the Estate of Hall,[15] was faced with an application to expunge from a will of the deceased words said to be scandalous, offensive and libellous.  Bucknill J observed that the issue before him was rather barren with authority.  However, his Honour did draw on the observations of Bargrave Deane J in In the Estate of White,[16] who had reviewed what were then the only four known relevant decisions on the topic.[17]  The law report records Bargrave Deane J as being of the view that:[18]

    …[A] will ought not to be made the medium of slanderous statements, and that where in a testamentary document words were inserted which in no sense had any testamentary value or effect and could serve no useful purpose if left in, they should be omitted from the document itself …

    [15]   Re Estate of Hall (dec'd) [1943] 2 All ER 159.

    [16]   In the Estate of White [1914] P 153.

    [17]   Those four decisions being: Curtis v Curtis (1825) 162 ER 393; In re Goods of George Wartnaby (1846) 163 ER 1088; Marsh v Marsh (1860) 164 ER 845; In the Goods of Honywood [1871] LR 2 P&D 251.

    [18]   In the Estate of White [1914] P 153, 154.

19. In In the Estate of Enjakovic (dec’d),[19] I dealt with these principles in some detail.  In that decision, a clause in the deceased’s will directed that her son was not to benefit from her will, and in providing a reason for that direction, implied inappropriate and possibly dishonest conduct on the part of the son.  The relevant clause provided:

    I DIRECT that my son MILAN ENJAKOVIC is not to benefit from this my Will.  For many years he has borrowed money from me and from my late husband MILOS ENJAKOVIC which he has never repaid.  My said son owes me over FIVE THOUSAND DOLLARS ($5,000.00).  In December, 1993, I was in hospital.  While I was in hospital he used my personal identification number to withdraw money from the National Bank at Enfield.  I have photocopies of these transactions.  I telephoned him and he did not deny that he had taken the money.  When I asked: “Why did you take it”? he said he would ring me back but he has not done so.

    [Emphasis added. The emboldened words were the subject of the application.]

    [19]   In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486.

20. In the event, having accepted that the words had no dispositive effect, I concluded that they provided an explanation for the deceased’s dispositions.  I considered that the impugned words did infer inappropriate and possibly dishonest behaviour and were, prima facie, defamatory – the allegation of theft in fact importing a notion of criminality.  However, I further considered that the impugned words stopped short of directly asserting that the son had engaged in dishonesty.  Finally, I concluded that although the words could be viewed as being “hurtful”, “painful” or “unkind”, “a reasonable person would not be so offended by the words as to require their omission”.[20]

    [20]   In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486, 495.

1. On the topic of the right of the testator to give reasons for making or not making certain dispositions, a right which has long been recognised,[21] in In the Estate of Enjakovic (dec’d) I drew on the authorities in the following way:[22]

   …The court would not be justified in excluding from probate words used for [the] purpose [of giving reasons for making dispositions].[23] However, as was recognised by Bucknill J in In the Estate of Hall, deceased,[24] this right is not unqualified:

   I think that a testator not only has the right to dispose of his property, but he has the right also to give reasons why he has disposed of it in a certain way.  On the other hand, he is not entitled to use his will as means of libelling and unjustly injuring somebody against whom he has a spite; or, even if he has no spite, he has no right, I think, to libel anybody in his will by using words which have no direct bearing on the devolution of his property.

   The Court’s power to exclude words of a scandalous, offensive, blasphemous or defamatory character was recently summarised in In the Estate of Ward, [25] where I observed:

   It is clear, on the authorities, that this Court may exclude from the probate copy of the will, words of a scandalous, offensive, blasphemous or libellous character. When determining whether or not such words ought to be omitted, the court has regard to the testator’s right to give reasons for making or not making certain dispositions. However, as Mitchell J observed, [in In the Estate of Hawke [1973] 6 SASR 278 at 279] whilst a testator is entitled to explain why he or she disposed of property in a certain manner, he or she is not entitled to use the will as a “vehicle for libel”. Accordingly, a testator’s reasons will not be disturbed unless they are scandalous or offensive.

   [Emphasis added.]

   [21]   See for example In the Estate of Hall (dec’d) [1943] 2 All ER 159, 160.

   [22]   In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486, [14]-[15].

   [23]   In the Estate of T, deceased (1961) 105 Sol Jo 325.

   [24]   In the Estate of Hall (dec’d) [1943] 2 All ER 159, 160.

   [25]   In the Estate of Ward (2006) 244 LSJS 326, [19].

2. Two criteria, at least conventionally,[26] must be met in order to enliven the jurisdiction to omit a word or words from a will.  First, the word or words must not have any dispositive effect or any other testamentary purpose.  Second, the word or words must be capable of being characterised as scandalous, offensive, defamatory or blasphemous.  I emphasise that if the two criteria are met it does not follow that the word or words will be omitted – the jurisdiction is merely enlivened[27] and is to be exercised on a case-by-case basis.[28]

   [26]   See Re Estate of L (deceased) (1996) 185 LSJS 406, 408; In the Estate of Hawke (1973) 6 SASR 278, 279; Re N [1950] VLR 139, 145-146; In the Goods of Bowker [1932] P 93; In the Will of O'Reilly [1927] VLR 533, 535; In the Estate of White [1914] P 153, 154.

   [27]   See In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486, 493.

   [28]   See In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486.

3. In In the Estate of Hawke,[29] Mitchell J emphasised the importance of the entitlement of a testator to provide reasons for his or her testamentary dispositions, but considered that words that are scandalous, offensive or libellous and do not support the reason provided should be excluded.[30]

   In this case it seems to me that the testator was entitled to say why he made no provision for his wife and his reason, as he gave it, was not only that she left him but also that she went to live with another man. However, the way in which she treated that other man could not have been material to the testator's disposition of his property. In so far as it may be regarded by the widow as scandalous, it seems to me appropriate that the latter statement, together with the name of the man, should be excluded from probate, but, notwithstanding that the allegation that the testator's wife left him and went to live with another man may contain a libel against her, the fact that she did so, if it be true, may provide good and sufficient reason for the testator to make no provision for her. Upon an application to exclude words from the probate of a will the court does not enquire into their truth. In this case the widow, who has sworn an affidavit in support of the application, complains that the words are scandalous and embarrassing to her, but does not deny the allegations made therein. In so far as the allegations show a cause for the failure of the testator to provide for his wife they should appear in the probate and in the copy of the will to be kept at the Registry, but those words which do not support the failure and which are regarded by the widow as and may be scandalous should be excluded.

   [Emphasis added.]

   [29]   In the Estate of Hawke [1973] 6 SASR 278.

   [30]   In the Estate of Hawke [1973] 6 SASR 278, 279-280.

4. In In the Estate of Adler,[31] Legoe J undertook a detailed review of the English and Australian authorities.  His Honour, without setting out the impugned words in his reasons for decision, characterised the words as libellous, non-dispositive and gratuitously offensive.[32]

   [31]   In the Estate of Adler (1989) 155 LSJS 53.

   [32]   In the Estate of Adler (1989) 155 LSJS 53, 63.

5. With respect to the jurisdiction of the Court, Legoe J observed:[33]

   In my judgment there is abundant authority in the inherent jurisdiction of this Court to consider applications of this sort and to make orders accordingly.  However, in the cases which have been referred to above and in the exhaustive analysis carried out by Sholl J in Re N … it appears that the extent of that jurisdiction has not always been clear or fully analysed bearing in mind the basic principle in probate law that a grant of probate or letters of administration … is conclusive as to what the words of the will are and as to the state in which the will was at its execution…

   [33]   In the Estate of Adler (1989) 155 LSJS 53, 57.

6. In that decision, Legoe J approved of the analysis that had been undertaken by Sholl J in Re N[34] in the Supreme Court of Victoria where Sholl J, within his summary of the relevant principles with respect to words supplied as an alleged “reason” for making or not making certain dispositive provisions, observed:[35]

   If the words complained of are scandalous and offensive and non-dispository in their nature (in the sense that they dispose of no property), and are not inserted as an alleged reason for making or not making certain dispositive provisions, the Court may exclude them from the probate...

   [34]   Re N [1950] VLR 139.

   [35]   Re N [1950] VLR 139, 145-146.

7. The impugned words in Re N before Sholl J were as follows:[36]

   I do not desire the presence of my wife at my funeral or near me when I am dead as she has been unfaithful to me and has borne a child to another man during our married life and through her lies, deceit and false promises got me to make my military allotment to her which she did not deserve due to her immorality.

   Following the review of the authorities undertaken by Sholl J which I have referred to above, his Honour concluded to omit the impugned passage, relying on, inter alia, the decisions in In the Estate of White[37] and In the Estate of Hall.[38]  Further his Honour considered as important the fact that the passage did not explicitly purport to provide a reason for exclusion of a person under the will and, although the passage may have provided grounds for an inference as to the testator’s reasons, it was not a testamentary declaration of such reasons.[39] 

   [36]   Re N [1950] VLR 139, 139.

   [37]   In the Estate of White [1914] P 153.

   [38]   Re Estate of Hall (dec'd) [1943] 2 All ER 159.

   [39]   Re N [1950] VLR 139, 148.

8. The attitude of those interested under the will to the proposed excision is a matter to be taken into consideration.[40]  The Court will hesitate to accede to such a proposal in the absence of the consent of those interested under the will unless the impugned words are so defamatory, so scandalous or so offensive that they ought not to remain and that the words could under no possible circumstances be of any value or have any testamentary effect.[41]

   [40]   In the Will of JP, deceased (1922) 39 WN (NSW) 228, 229

   [41]   In the Will of JP, deceased (1922) 39 WN (NSW) 228, 229.

9. Before turning to consider whether the criteria are met in the present proceeding, it is appropriate first to say a little about the meaning of the words scandalous, offensive and defamatory.  It should be noted that variations of these adjectives, mostly synonyms of one another, are used in this context.  It is sufficient and appropriate for me to briefly address the meaning of the three words scandalous, offensive and defamatory.[42]  Before addressing these words in turn, it is convenient to set out a passage from the text Tristram and Coote’s Probate Practice:[43]

   Words of an offensive, libellous or blasphemous nature

   A testator has the right to explain why he has disposed of his property in a certain way, but he is not entitled to use his will as a vehicle for slander.  The court will upon application exclude from probate words of an atrocious, offensive or libellous character.

   The court will also exclude words of a blasphemous nature; and the district judge or registrar may refuse to grant probate until the necessary application has been made.  The court, however, will not lightly interfere in a man’s testamentary affairs, and will not exclude words on these grounds unless they come fully within these categories; nor, it seems, if the words are in any sense dispositive.

   For words to be atrocious or offensive they need not necessarily allude to any individual.  In Re Bowker’s Goods the court ordered exclusion of words relating solely to the funeral and disposal of the testator’s remains on the ground that such words, which were liable to be published in the press, were ‘offensive and objectionable and repugnant to the members of the deceased’s family’.

   [Footnotes omitted.]

   [42]   The need to address the meaning of blasphemous does not arise in the present proceeding.

   [43]   Costa, Wingarten and Synak, Tristam and Coote’s Probate Practice (30th ed), [3.272]-[3.274].  South Australian practice follows the 26th edition of this text; the section on this topic being to the same effect.

10. There does not appear to be much debate about the meaning of “scandalous”, as stated by Fullagar J in Re Clarkson:[44]

    There can be little doubt of what is meant by “scandalous”, but I should perhaps say that two of the meanings of “scandal” are, on the one hand, a general feeling of there being an outrage upon propriety and, on the other, a malicious gossip. Assistance towards the meaning of “scandalous” is provided by the following expressions: outrageous, deserving of opprobrium, deserving of the label of shameful or disgraceful, causing scandal, of the nature of malicious gossip.

    [44]   Re Mark Alfred Clarkson (Unreported, Supreme Court of Victoria, Fullagar J, 27 October 1987).

11. The same might be said about the terms “offensive” and “defamatory”, which I addressed in In the Estate of Enjakovic (dec’d) in the following way:[45]

    [45]   See In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486, 493-494.

    The meaning of the word "offensive" has most commonly been considered in the context of offences of "offensive behaviour". In this context, in Densley v Mertin, Napier CJ observed that the term had the following meaning:

    ... "giving, or of a nature to give offence; displeasing; annoying; insulting," and it seems to me that the word is used objectively, ie it includes any conduct which is calculated to annoy or give offence to other people, even if that result is not actually intended.

    In Worcester v Smith, O'Bryan J observed:

    Behaviour, to be "offensive" ... must, in my opinion, be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person."

    The Macquarie Dictionary meaning of "offensive" is "causing offence or displeasure; irritating; highly annoying ... repugnant to moral sense ... pertaining to offence or attack". In my view the above definitions would apply equally to an understanding of the meaning of "offensive" in the context of the within proceedings.

    The meaning of "defamatory" has been the subject of extensive judicial discussion and is well-settled. An example comes from the decision of the Federal Court in John Fairfax & Sons Ltd v Hook, where Gallop and Morling JJ observed:

    A matter is defamatory if it tends "to lower the plaintiff in the estimation of right-thinking members of society generally" (Gatley, op cit, para 41) or "if it is likely to cause ordinary decent folk of the community, taken in general, to think less of him" (per Jordan CJ in Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 172) ... The meaning to be given to the words used is the meaning they would convey to the ordinary reasonable man.

    It should be noted here that publication by the executor (absent malice) is privileged, being an accurate republication of a register kept pursuant to statute.28 Further, a will published with a grant of probate would be a "public document" for the purposes of the statutory defence in s 26 of the Defamation Act 2005 (SA). Nevertheless, the court will not allow its processes to be abused as a vehicle of defamation.

    [Footnotes omitted.]

12. A review of the authorities on the power to omit words from a will, allows the following principles to be distilled:

    -Prima facie, probate ought to issue in the words of the will itself;[46]

    -A testator not only has the right to dispose of his or her property, but to provide reasons for so disposing.[47]  This right, however, is not unqualified and a testator is not to use his or her will as a vehicle for defamation, scandal or offense, where those words have no testamentary effect.  The Court is to be mindful to protect the Court’s processes from abuse and the potential hurt to people named in the instrument;[48]

    -The power to omit words from a will is an extension of the Court’s inherent power to prevent abuse of court processes,[49] but only extends to the omission from the probate copy of the will, not the will itself;[50]

    -Generally, two criteria are to be met before the power to omit words is enlivened: the words have no dispositive effect and the words must be capable of being characterised as scandalous, offensive, defamatory or blasphemous.[51]  Whether or not these two criteria are met is to be assessed according to fact on a case by case basis;[52]

    -The exercise of the power, once enlivened, is a matter of discretion for the court to determine on a case by case basis;[53]

    -It is well established that the power is to be exercised with great care[54] and that only words which fully fall within the categories of the second criterion are open to be omitted. Interference with a testator’s testamentary affairs is to be kept to a minimum, consistent with protecting the Court’s processes from abuse;

    -The onus is on those who seek to have probate granted with the words omitted to establish, on the balance of probabilities, that the words should not be admitted in the probate copy of the will.[55]  The attitude of beneficiaries and executors to the application is a material consideration;[56]

    -Generally, insofar as words provide or support a cause or reason for testamentary dispositions, they ought not to be omitted from the will;[57] and

    -Where the words have dispositive effect or assist in the interpretation of the will, the court may decline to omit them.[58]

    [46]   Re Estate of Hall (dec’d) [1943] 2 All ER 159.

    [47]   Re Estate of Hall (dec’d) [1943] 2 All ER 159.

    [48]   See for example Re Estate of L (1996) 185 LSJS 408.

    [49]   In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486; In the Will of JP, deceased (1922) 39 WN (NSW) 228; In the Estate of Ward (2006) 244 LSJS 326; In the Estate of Adler (1989) 155 LSJS 53.

    [50]   Rasheed v Rasheed (1999) 73 SASR 346; Re Maxwell (1929) 140 LT 471.

    [51]   See In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486, 493; Re Estate of L (deceased) (1996) 185 LSJS 406, 408; In the Estate of Hawke (1973) 6 SASR 278, 279; Re N [1950] VLR 139, 145-146; In the Goods of Bowker [1932] P 93; In the Will of O'Reilly [1927] VLR 533, 535; In the Estate of White [1914] P 153, 154.

    [52]   In the Will of O’Reilly [1927] VLR 533, 535.

    [53]   In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486.

    [54]   See for example: In the Estate of Hall (dec’d) [1943] 2 All ER 159; In the Will of JP, deceased (1922) 39 WN (NSW) 228, 229; In the Will of O’Reilly [1927] VLR 533, 535.

    [55]   In the Estate of Enjakovic (dec’d) (2008) 100 SASR 486, 491 citing Re Bryden [1975] Qd R 210, 213; Re Fenwick [1972] VR 646, 651.

    [56]   In the Will of JP, deceased (1922) 39 WN (NSW) 228, 229.

    [57]   For example see In the Estate of Hawke [1973] 6 SASR 278, 279-280.

    [58]   In the Estate of John Rawlings (deceased) (1934) 78 Sol Jo 338.  It is to be noted that Legoe J in In the Estate of Adler (1989) 155 LSJS 53 distinguished Rawlings on the basis that the words that Legoe J was concerned with did not “attach” to a condition or explanation by the deceased in relation to a disposition in the will, which might help in the interpretation of the will.

    Consideration

13. It is plain that the words in clause 6 of the deceased’s will have no dispositive effect.  It is further plain that the words do provide an explanation for why the deceased did not provide for D.  Although the discretion like all judicial discretions will depend very much on the circumstances of the case, in my view the effect of the authorities is that the court should be reluctant to expunge words used by a testator in a will, particularly where those words go a way to explaining why the testator did or did not make certain dispositions.  On the other hand, that the words are used gratuitously and amount to an abuse of the probate process will be strong factors in favour of the granting of an order to omit the words from the will. 

14. It is to be recalled that in In the Estate of Enjakovic (dec’d), I refused the application because, inter alia, the impugned words stopped short of directly asserting that the son had engaged in dishonesty.  In the within proceeding, the words make a direct accusation against DB.  This was the concern raised by the Registrar of Probates in his referral to me. 

15. It might be that there is some scandal or offence connoted by the terms of clause 6 of the will and in particular by the words “extra marital affairs”.  However, taking the whole matter into consideration, and in particular having regard to the fact that the words are used clearly as part of the deceased offering an explanation for not providing for D – a person to whom it might otherwise be expected would naturally be conferred benefit by the deceased through his will – I have reached the conclusion that it is not appropriate to omit the words from the will. 

16. The words are not used gratuitously and do not appear to have been put in the will for the purposes of injuring the reputation of the deceased’s former wife or D.[59]  The words were used by the deceased to explain why he failed to provide for D.  Further, it cannot be said that the words amount to an abuse of process as they are primarily directed at providing a reason for the dispositions contained in the will and do not, at least in any substantial way, go outside that purpose. 

    [59]   See Re Estate of Hall (dec'd) [1943] 2 All ER 159, 159.

17. It might be accepted that directly accusing a former spouse of extra marital affairs and suggesting that that spouse bore a child not the product of that marriage, may be considered offensive to that former spouse, and indeed, scandalous.  However, notwithstanding that the words may be of an offensive character, I do not consider that this is an appropriate case in which to exercise the jurisdiction of the Court to strike out the impugned words of the will.  Insofar as the words are offensive, they cannot be said to be gratuitously so and, in any event, the other factors that I have identified militate against the making of an order in this proceeding. 

1. Further, it is appropriate to say something about the concept of words that are scandalous, offensive, libellous, defamatory and so on. Words acquire different meanings and in some cases wholly different meanings over the passage of time. It could not be said that the extraordinary power to omit words used by a testator in his or her last will and testament is to be utilised with reference to what was once upon a time, but not longer, considered scandalous, offensive or defamatory. At the very least it is to be accepted that these words ought to be considered in their contemporary context. In a statutory interpretation context, generally words in an Act are to be interpreted in accordance with their current meaning. The approach that an Act is deemed to “always be speaking”, is required by section 21 of the Acts Interpretation Act 1915 (SA).

2. In the within proceeding, the words scandalous and offensive are to be considered in their contemporary context.  What might have been scandalous yesteryear may no longer, in a contemporary context, be considered so.  One area where there has been significant change in societal attitudes is the assertion of an extra marital affair and a child born out of wedlock.  In my view, these considerations should in part inform my approach to the question of whether the words ought to be removed from a will.  Further, it is to be recalled that what will be offensive, scandalous or defamatory is to be viewed from the perspective of a reasonable person – such person being attributed contemporary attitudes, or at the least to be understood in a contemporary context. 

3. I have concluded that a reasonable person would not be so offended by the words or find them to be so scandalous as to require their omission.

4. The first sentence in clause 6 of the will explains the reason for why the deceased did not provide for D.  The second sentence expands on the basis of the belief giving rise to the purported reason.  Further, and importantly, in this case, unlike in Re N,[60] not only do the words explicitly provide a reason for a failure to dispose of property to a person, they form part of a testamentary declaration. 

   [60]   Re N [1950] VLR 139.

5. Finally, to remove the words “extra marital affairs” would render the residue of clause 6 incomprehensible and in order to appropriately remove the reference would, in my view, require the removal of the entire clause.  In the circumstances of this case this level of interference with a testator’s testamentary affairs would be disproportionate the offensive or scandalous character, if any, of the words used. 

   Conclusion

6. I direct that the Registrar of Probates admit the document to probate including the impugned words.