In the estate of Radosav Srejic
[2023] ACTSC 135
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the estate of Radosav Srejic |
Citation: | [2023] ACTSC 135 |
Hearing Date: | 19 May 2023 |
DecisionDate: | 1 June 2023 |
Before: | Curtin AJ |
Decision: | See [65] |
Catchwords: | WILLS, PROBATE & ADMINISTRATION – Informality – Wills Act 1968 (ACT) – Whether deceased intended document to constitute his will – Subsequent amendments to will – Application of relevant principles |
Legislation Cited: | Wills Act 1968 (ACT), ss 11A, 12 |
Cases Cited: | In the estate of Niko Ojvan [2023] ACTSC 42 |
Parties: | Gregory John Simms (Applicant) |
Representation: | Counsel A Nicolaidis (Applicant) |
| Solicitors Baker Deane and Nutt Lawyers (Applicant) | |
File Number: | SC 132 of 2023 |
CURTIN AJ:
Introduction
This is an application brought pursuant to s 11A of the Wills Act1968 (ACT) (the Act), for a declaration that a particular document written by the late Radosav Zivorad Srejic (the deceased) signed and dated sometime between 29 April 2019 and 16 July 2022, constituted a will of the deceased notwithstanding that it was not executed in its entirety in accordance with the formal requirements of the Act.
For the reasons that follow I am satisfied that the document referred to above constituted the will of the deceased.
Principles
The relevant statutory provisions are ss 11A and 12 of the Wills Act 1968 (ACT).
Section 11A concerns the validity of a will not executed with the required formalities. It says:
11AValidity of will etc not executed with required formalities
(1) A document, or a part of a document, purporting to embody testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the formal requirements of this Act, constitute a will of the deceased person, an amendment of the will of the deceased person or a revocation of the will of the deceased person if the Supreme Court is satisfied that the deceased person intended the document or part of the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will respectively.
(2) In forming a view of whether a deceased person intended a document or a part of a document to constitute his or her will, an amendment of his or her will or a revocation of his or her will, the Supreme Court may, in addition to having regard to the document, have regard to—
(a) any evidence relating to the manner of execution of the document; or
(b)any evidence of the testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or not) of statements made by the deceased person.
Section 12 concerns the required formalities for alterations. It says:
12Alteration in will
(1) An obliteration, interlineation, or other alteration made in a will after the execution of the will is not valid or effectual for any purpose, except so far as a word in the will or the effect of the will before the alteration is not apparent, unless—
(a) the obliteration, interlineation or alteration is signed by the testator or by another person in the presence of and by the direction of the testator; and
(b) the signature of the testator is made or acknowledged, or the signature of the person who signs the will by the direction of the testator is acknowledged, by the testator in the presence of 2 or more witnesses present at the same time; and
(c) 2 or more of those witnesses each attest that signing or that acknowledgment of that signing and subscribe the obliteration, interlineation or alteration in the presence of the testator and of the other witness or witnesses.
(2) An obliteration, interlineation or other alteration made in a will after the execution of the will shall be deemed to comply with the provisions of subsection (1) if the signature of the testator or of the person who signs on behalf of the testator and the subscription of the witnesses, in relation to the obliteration, interlineation or other alteration, are made—
(a) in the margin, or on some other part of the will, opposite or near to the obliteration, interlineation or other alteration; or
(b) at the foot or end of, or opposite to, a memorandum that refers to the obliteration, interlineation or other alteration and is written at the end, or at another part, of the will.
The relevant legal principles to apply in relation to a s 11A application (such as this) were comprehensively set out by McWilliam J in In the estate of Niko Ojvan [2023] ACTSC 42 at [4]-[15] with particular reference to Re Letcher (deceased) (1993) 114 FLR 397, a decision of a judge of this Court and followed ever since. There is no need to repeat those principles other than to state the following.
The three questions to be asked and answered are:
(1)Is there a document?
(2)Does the document purport to embody testamentary intentions of the deceased?
(3)Does the evidence satisfy the Court that at the time the document was brought into existence or at some later time, the deceased, by some act or words, demonstrated that it was his or her then intention that the document should, without more on his or her part, operate as his or her will?
In answering those questions, the following (sometimes overlapping) principles extracted from the authorities are applicable:
(a)The critical question is whether, at the time the document was brought into existence or at some later time, the deceased, by some act or words, demonstrated that it was his or her then intention that the document should, without more on his or her part, operate as his or her will.
(b)The words “without more on his or her part” direct attention to whether the particular document was intended to operate as a will: to have present operation as such, not to serve merely as a draft, a diary note or the like.
The requirement that the Court be satisfied that the deceased intended a document constitute his or her will goes to the deceased’s actual intention regarding the operative effect of the document in question.
Background
Prior to his death the deceased lived in Theodore, in the ACT. He died on 16 July 2022 whilst in Thailand.
The deceased died as a single man and had no children.
The evidence establishes that the deceased executed a will in proper form on 11 December 2004. I will refer to that will as the original will. The original will is contained in a booklet titled “Australian Will Kit” which includes advice on matters pertaining to the drafting and execution of a will. The booklet contains a fold-out document titled “Last Will” which is provided for the holder of the booklet to complete.
It is evident that the deceased completed the Last Will provided in the booklet and signed it on 11 December 2004. It became exhibit 5 in the application albeit with alterations made after 11 December 2004 which did not comply with s 12 of the Act. For the avoidance of doubt, exhibit 5 includes the alterations.
Exhibit 5 has five sections, each with a printed heading. Section 1 concerns revoking previous wills. Section 2 concerns the appointment of an executor. Section 3 concerns the deceased’s wishes regarding disposal of his body. Section 4 concerns guardians. Section 5, the relevant section so far as concerns this application, is headed (in printed form):
5. Specific Bequests:
I make the following specific bequests:
There then appears in the deceased’s handwriting:
All my assets split between these people:
That was followed by about 21 lines of handwritten names and a small amount of other material (about which more will be said later). All of the handwriting below the handwritten words “All my assets split between these people;” was (in exhibit 5’s final form) redacted by use of a black marker pen with the exception of the handwritten words “GORAN SREJIC & CASEY”.
This application arises because of the various alterations made to the original will (including but not limited to the black redactions) since being executed on 11 December 2004, such alterations being non-compliant with s 12 of the Act.
The evidence establishes that the first two alterations to the original will were made on 14 January 2017.
The first alteration was to change the deceased’s address (from a Cooma, NSW, address to the deceased’s last residence in Theodore, ACT).
The second alteration was to delete the previous executor (the deceased’s former wife) and add the present applicant, Mr Simms as sole executor. Mr Simms was a close friend of the deceased and had known him from about 1974.
Both changes were indicated by a roughly horizontal line drawn through the previous address and the name of the previous executor and the addition of the new address and new executor’s name. The alterations were initialled and dated by the deceased in the margin. The date adjacent to the deceased’s initials was 14 January 2017 (which was the date given in the description of exhibit 5 when it was tendered because that is the most legible date although the date of the original will was 11 December 2004).
The deceased sent a copy of the altered original will to Mr Simms by SMS shortly after 14 January 2017. A copy of that document appears as annexure C to the affidavit of Mr Simms affirmed on 24 March 2023.
The document sent to Mr Simms by SMS contained the names of 18 beneficiaries together with their telephone numbers. One name, that of Casey Taueki (misspelled as “Taeuki” in the original will) had the word “niece” next to Ms Taueki’s telephone number and five names had the word “cousin” adjacent to their telephone numbers.
Ms Taueki now uses her maiden name of Srejic, but I shall refer to her in these reasons, without any disrespect intended, as Ms Taueki for ease of cross-referencing given that that is the surname used for her in the will.
On 23 October 2017, Mr Simms received an email from the deceased. The subject line of the email read “Rade’s Will”. The email relevantly said:
I have 19 people written in my will (way too many). And whilst 19 different people rang or texted me yesterday, only 7 of those are on my will. Which means that 12 people written in my Will can’t be bothered to call me on my birthday LOL. And they are gone…
So I have reduced my Will to a manageable 7 people.
(The email then contained seven names)
Please save this somewhere. I have crossed the names out in my will, which lies in my brief case at all times.
Have a great day mate.
Rads
I interpolate to note that the document exhibit 5 was, consistently with the terms of that email, found in the deceased’s briefcase after his death.
There is a notation under the black redactions on exhibit 5 which is readable and which says “7 LEFT, UPDATED 23.10.17” followed by the initials of the deceased.
Given the contents of that email and notation referred to immediately above I am satisfied that on 23 October 2017 the deceased purported to delete 12 of the original 18 beneficiaries and added one more beneficiary to make a total of seven remaining beneficiaries. The added beneficiary was the deceased’s former wife, and her name was added immediately above the first of the original 18 names.
That finding is corroborated by an email the deceased sent to his Ms Taueki and copied to Mr Simms dated 11 December 2017. In that email the deceased said:
So I am going overseas in 2 weeks and in case I do not come back (either because of death or because I get a better offer lol), he [sic] is a rundown of my updated WILL:
GREG SIMMS … is my oldest friend and also executor.
….
At the start of the year, I divided everything among 20 people – family and friends.
Recently I decided, that 13 of those people never contact me first, I always contact them… they never send me a message to say, hey, how are you …
…
So I divide everything among these:
(The same seven names as appeared in the email of 23 October 2017 were then listed, followed by the words “Some charities of my choosing (yet to be named)”)
…
PS. Greg, please file this my friend. The will is in my briefcase.
Rade Srejic
…
The deceased desired to change his testamentary intentions the following year, in 2018.
On 16 May 2018 the deceased emailed Ms Taueki. The subject line of the email read “Re: Uncle Rads”. The email said:
Hi sweet,
My new will only has:
(There followed a list of four names followed by the words “Some charities of my choosing (yet to be named)”)
The simpler the better.
On 3 August 2018 the deceased emailed Ms Taueki again. The subject line of the email read “Uncle Rads Will”. The email said:
Yeah, you better include Goran in the list now:
(There then followed the same four names as were listed in the email dated 16 May 2018, together with the name Goran Srejic (the deceased’s brother) and the notation “Some charities of my choosing (yet to be named)”)
Cheers,
Rade Srejic
On exhibit 5 there appears under the black redaction a notation “4 LEFT, UPDATED 12/8/18” followed by the initials of the deceased.
Goran Srejic’s name appears in exhibit 5 immediately below the last of the original 18 beneficiaries (and followed by the notation “& CASEY”) and two lines above the words “4 left, updated”. In between that last notation and Goran Srejic’s name was the notation “7 LEFT, UPDATED 23/10/17”.
The given name “CASEY” when appearing after “Goran Srejic” also appears as the given name of the first person (Ms Casey Taueki) listed amongst the original 18 beneficiaries.
Even though the notation “4 LEFT, UPDATED 12/8/18” is inconsistent with the email dated 3 August 2018 in that “4” is inconsistent with the email’s five listed names, the most probable inference is that when the deceased made the notation on 12 August 2018 (some nine days later) he overlooked his desire expressed in the email dated 3 August to add Goran Srejic to the four persons he had already listed as beneficiaries.
Mr Simms’ evidence is to the effect that the handwritten notations referred to above and appearing on exhibit 5, including the deceased’s initials, are all in the deceased’s handwriting.
The deceased desired to change his testamentary intentions the following year, in 2019.
There is a further notation in exhibit 5 and under the black redactions dated 29 April 2019 and initialled by the deceased which says “2 LEFT, UPDATED 29/4/19”.
On exhibit 5, the redactions with black marker pen obscure all names in the list of beneficiaries other than the entry “GORAN SREJIC & CASEY”. Both Mr Simms and Ms Taueki recognise that entry to be in the deceased’s handwriting.
There is no direct evidence when the black redactions were made. The black redactions were found on exhibit 5 upon the deceased’s death and so appear to have been added whilst the deceased was alive but, in the view that I have taken, were added or applied at different times. That is, some black redactions were probably made in October 2017, further redactions made in 2018 and still further redactions made in 2019.
There is evidence the deceased used a black marker pen in other journals kept by him which is some corroborative evidence that it was the deceased who made the redactions apparent in exhibit 5.
The net effect of all of the black redactions was to leave two names visible on exhibit 5, being Goran Srejic and “Casey”.
I infer “Casey” was Casey Taueki since Ms Taueki’s name appears as the first of the original 18 beneficiaries, the word “niece” appears to the right of her name, there is no evidence of anyone else known to the deceased who went by the name “Casey”, the emails before me from the deceased to Ms Taueki were expressed in language of affection and Ms Taueki’s name appears in the list of beneficiaries listed in the deceased’s emails dated 23 October 2017, 11 December 2017, 16 May 2018 and 3 August 2018.
That the deceased intended the original will plus its subsequent alterations to constitute his will is evident from the evidence I have referred to above together with the fact that no one, including the deceased’s best friend (Mr Simms) and a niece evidently regarded with affection (Ms Taueki), is aware of any other testamentary document made by the deceased. Thorough searches have been undertaken of the deceased’s last residence and none was found. No other will was found with the deceased in Thailand.
A search was conducted in this Court’s Registry and the deceased’s solicitors’ files and no will was found.
A notice was published in the Canberra Times on 10 March 2023 asking anyone who held or knew of the whereabouts of a will or other testamentary document of the deceased to contact the applicant’s solicitors. No one has responded to that notice.
Notice was also published in the ACT Law Society publication “Hearsay” on 24 March 2023 in the ‘Missing Wills’ sections asking that any practitioner holding any document or who had knowledge of the existence of a will or other testamentary document of the deceased to contact the applicant’s solicitors. No one has responded to that notice.
Interested Parties
All beneficiaries named at one time or another in the will have been contacted and made aware of this application other than for seven. Of those seven, three have been served with the material but have not responded. The other four have not been directly contacted because neither the applicant, Ms Taueki nor the applicant’s solicitor has any contact details for them and have not been able to obtain any contact details from other sources. Such details as are contained in the original will have not borne fruit.
In addition, the deceased’s surviving relatives were his mother Stefanija, his brothers Goran and Tony, his niece Casey and his nephew Anthony. Stefanija, Tony and Anthony have all been served with the required material relating to this application.
I am satisfied that all reasonable attempts have been made to contact all potential interested parties.
Question 1
The first question is whether there is a document. The answer to that question is “yes”, the document being exhibit 5.
Question 2
The second question is whether exhibit 5 purports to embody testamentary intentions of the deceased. By exhibit 5 I mean the document as it appears now. That is, with:
(a)the deceased’s address being at Theodore, ACT;
(b)the (sole) executor being Mr Simms; and
(c)the only two beneficiaries being Goran Srejic and Casey Taueki (now Casey Srejic).
In my view exhibit 5 (as it now appears) embodies the deceased’s testamentary intentions for the following reasons.
Exhibit 5 is headed “Last Will”. It is a document forming part of a booklet titled “Australian Will Kit”.
Section 5 of the will concerns specific bequests and includes the words “All my assets split between these people”.
The deceased’s emails dated 23 October 2017, 11 December 2017 and 16 May 2018 all refer to the deceased’s testamentary intentions, those intentions being consistent with the contents of exhibit 5 (as it now appears).
The alterations I have referred to above were largely corroborated by contemporaneous emails. They are consistent with the notations “7 LEFT, UPDATED, “4 LEFT, UPDATED” and “2 LEFT, UPDATED”, and those notations were in the deceased’s handwriting and were initialled and dated by him.
Exhibit 5 was found where the deceased told Mr Simms and Ms Taueki they would find his will.
Extensive searches and enquiries have failed to find any other document purporting to be a will or purporting to include the deceased’s testamentary intentions.
Individually and collectively those facts satisfy me that exhibit 5 (as it now appears) embodies the testamentary intentions of the deceased.
Question 3
The third question is whether the evidence satisfies the Court that at the time exhibit 5 (as it now appears) was brought into existence or at some later time, the deceased, by some act or words, demonstrated that it was his then intention that the document should, without more on his or her part, operate as his or her will.
This question should be answered in the affirmative for the same reasons as appear in [55]-[60] above.
Custody of Exhibit 5
Custody of exhibit 5 should remain with the Court rather than being released to the applicant.
Orders:
I make the following orders:
(1)Pursuant to s 11A of the Wills Act 1968 (ACT), the Court declares that the document being exhibit 5 in the application (as it now appears and in accordance with [53] above) constitutes the Will of the late Radosav Zivorad Srejic.
(2)The Registrar is directed to do all things and take all steps necessary to grant probate of the document constituting the last will of the deceased identified in Order 1 to Gregory John Simms.
(3)The costs of the application are to be paid out of the estate on a solicitor-client basis.
(4)The applicant is granted liberty to apply should there be any difficulty in accessing exhibit 5 for the purposes of probate.
| I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: |
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