IN THE ESTATE OF ROBERT MORLEY (DECEASED) - [2023] SASC 102

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF ROBERT MORLEY (DECEASED)
[2023] SASC 102
Judgment of the Honourable Justice Stanley
14 July 2023
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - GENERALLY
This was an application under s 12(2) of the Wills Act 1936 (SA) for the admission to probate of two unsigned and undated documents as the will of the deceased.
The deceased, Robert Morley, died without making a will executed in accordance with the formal requirements of s 8 of the Wills Act 1936 (SA). Two unsigned, undated and unwitnessed documents were located among the deceased’s effects. The applicant, who is the executor appointed by those documents, sought to have both documents together propounded as the last will of the deceased.
The deceased was an only child whose parents predeceased him, and he died without spouse or children. However, he was survived by cousins, four of whom are known, all residing in Canada. The deceased’s cousins would have taken on an intestacy under s 72J of the Administration and Probate Act 1919 (SA), being the children of relatives of the fourth degree. A solicitor was appointed by the Court to represent their interests in the estate. They did not oppose the admission of the documents to probate.
Held:
1. The document be admitted to probate as the last will of the deceased pursuant to s 12(2) of the Wills Act 1936 (SA).
2. A grant of probate of the document be made to the applicant.
3. The costs of both the applicant and the representative party of and incidental to these proceedings be paid from the estate of the deceased on an indemnity basis.
Administration and Probate Act 1919 (SA) s 72J; Inheritance (Family Provision) Act 1972 (SA) s 6; Probate Rules 2015 (SA) r 64(1); Succession Act 1981 (Qld) s 18; Wills Act 1936 (SA) ss 8 and 12(2), referred to.
Banks v Goodfellow (1870) LR 5 QB 549; Baumanis v Praulin (1980) 25 SASR 423; Estate of Dunn [2002] NSWSC 900; Estate of John Leslie Xavier Monaghan (Deceased) [2012] SASC 130; Estate of Masters; Hills v Plummer (1994) 33 NSWLR 446; Fielder v Burgess [2014] SASC 98; In Estate of Clayton, Deceased (1982) 31 SASR 153; In the Estate of Davis (2011) 7 ASTLR 572; In the Estate of Gall (Deceased) [2008] SASC 349; In the Estate of Smith, Deceased (1985) 38 SASR 30; In the Estate of Torr (2005) 91 SASR 17; Jabado v Da Prato [2016] WASC 98; Kedzier v Postle [2002] NSWSC 875; Re Sanders [2016] VSC 694; Wood v Trudinger [2017] QSC 245, considered.

IN THE ESTATE OF ROBERT MORLEY (DECEASED)
[2023] SASC 102
Testamentary causes jurisdiction
STANLEY J:
Introduction

On 18 May 2023 I made orders in an application under s 12(2) of the Wills Act 1936 (SA) (the Act) for the admission to probate of two unsigned and undated documents as the will of the deceased. These are my reasons for those orders.
Robert Morley (the deceased) died on 23 May 2020. The deceased died without making a will executed in accordance with the formal requirements of s 8 of the Act. He was an only child whose parents predeceased him, and he died without spouse or children. However, he was survived by cousins, four of whom are known, all residing in Canada. The deceased’s cousins would have taken on an intestacy under s 72J of the Administration and Probate Act 1919 (SA), being the children of relatives of the fourth degree. They were represented by Ms Brook, solicitor, who was appointed by the Court to represent their interests in the estate. They did not oppose the admission of the documents to probate.
The applicant is the executor appointed by the documents I admitted to probate.
After the deceased’s death, two unsigned, undated and unwitnessed documents were located among his effects. The documents are typewritten, and each is headed “Robert Morley – provisions for will and funeral”. The first document has a subheading “Provisions for my will”. The applicant submitted that this document expresses the deceased’s testamentary intentions and was intended by him to constitute his will. The applicant submitted that the second document, headed “Attachment A”, while not expressing testamentary intentions provides wishes or “suggestions” for his funeral.
The applicant sought to have both documents together propounded as the last will of the deceased. Hereafter, I shall refer to both documents collectively as “the document”.
The document
The Court had to determine the preliminary issue of the provenance of the document in circumstances where the deceased did not tell anyone that he had made a will, or where it might be found. I admitted affidavit evidence of its discovery from friends of the deceased Mr Charles Gent and Father Nicholls. Neither had any financial interest in the outcome of the application. I relied on their evidence in making findings of fact.
The document was located by Mr Gent on 22 May 2020, the day before the death of the deceased. Mr Gent entered the deceased’s residence with Father Nicholls. Fr Nicholls was present when Mr Gent located folders containing important papers, including the document.
Mr Gent handed the folder containing the document, without “Attachment A”, to the applicant who kept it in his possession until it was delivered it to the Court via his then solicitors.
The applicant undertook various searches to try and locate a will of the deceased that had been executed in accordance with the formalities required under the Act.[1] In undertaking those searches, the applicant accessed the personal computer of the deceased where he located an electronic copy of the document.
[1] Exhibit A3.
The applicant engaged an employee of Adelaide Computer Superstore to undertake an examination of the deceased’s computer which established that the document was last modified on 30 December 2019.
The applicant submitted that, as the deceased lived alone and was extremely private about his personal affairs, the Court could be satisfied that the document was created by the deceased himself on or about 30 December 2019.
Along with directions regarding the deceased’s funeral and disposal of his remains, the document provides for:
·Any items which may be of interest or value to the deceased’s family to be forwarded by the executor to either of the deceased’s cousins Patricia Wood or Rick Morley, or in default of those persons, any member of their families or any relative of the deceased who expressed an interest;
·Personal items such as books or furniture to be given to any of the deceased’s friends who expressed an interest;
·$50,000 to be given to the applicant, in addition to any expenses which he incurred as executor;
·The remainder of the estate to be divided into six parts and distributed as:
oOne part to the deceased’s godson;
oOne part to the deceased’s goddaughter;
oTwo parts to the deceased’s cousin, Patricia Wood; and
oTwo parts to the deceased’s cousin, Rick Morley;
·If the deceased’s godson, goddaughter, Patricia Wood or Rick Morley predeceased the deceased, their share was to be paid to their estates;
·If the deceased died before his goddaughter reached the age of 18, her share is to be held by her parents to be used for her benefit as they see fit until she reaches the age of 18, at which point she is to have control of her share.
The representative party took no issue with the applicant’s submissions concerning the document and its provenance.
I find that the document was created by the deceased on 30 December 2019.
Legal considerations
Pursuant to s 8 of the Act, a will is not valid unless it is in writing and executed by the testator (or at the testator’s direction) in the presence of two or more witnesses, all present at the same time.
It follows that the document is not a valid will in accordance with s 8 as, other than the fact that it is in writing, it does not conform to the formalities required.
However, s 12(2) of the Act provides:
(2)     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.
In In the Estate of Davis, Gray J described the legislative scheme in s 12(2) of the Act as follows:[2]
Section 12(2) is a dispensing power, allowing the Court, where it is satisfied that a document expresses the testamentary intentions of a deceased person and that that person intended the document to constitute his or her will, to admit that document to probate notwithstanding that it fails to meet the formal requirements set out in s 8 of the Act. The remedial nature of s 12(2) is now well recognised. The section provides a power by which unnecessary intestacies can be avoided. The following often quoted remarks of Jacobs J in In Estate of Graham, the first decision to consider s 12(2) after its enactment, are apposite:
But if there is one proposition that may be stated with reasonable confidence, it is that s 12(2) is remedial in intent, that is to say, that its purpose is to avoid the hardship and injustice which has so often arisen from a strict application of the formal requirements of a valid will, as dictated by s 8 of the Act. This conclusion is, I think, clearly justified upon a review of the legislative history of the relevant sections of the Act, and the cases.
The liberal construction to remedial or beneficial provisions was endorsed by the High Court in IW v City of Perth, where Brennan CJ and McHugh J observed:
[It is a] rule of construction that beneficial and remedial legislation … is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.
[Citations omitted].
[2] (2011) 7 ASTLR 572 at 577.
The Court must consider the circumstances of each particular case when deciding whether or not s 12(2) applies.[3]
[3] In the Estate of Smith, Deceased (1985) 38 SASR 30 at 33; In Estate of Clayton, Deceased (1982) 31 SASR 153 at 157.
Further, considering the dual criteria in s 12(2), Besanko J in In the Estate of Torr said:[4]
The question whether the documents express the testamentary intentions of the deceased involves a consideration of whether they contain a statement of her intentions as to what was to happen to the property described in the documents upon her death. In other words, is it clear that the documents express her intentions as to the disposition of the property upon her death? The question whether the documents were intended by the deceased to constitute a codicil to her will involves a consideration of whether the deceased intended the documents to be operative at her death to dispose of the property referred to therein in the manner described. There is obviously a significant overlap between the two requirements.
[4] (2005) 91 SASR 17 at 25.
Rule 64(1) of the Probate Rules 2015 (SA) provides that an application under s 12(2) must be supported by an affidavit annexing the written consent of those persons who may be prejudiced. In this case, that is the deceased’s cousins who would have taken on an intestacy. As I have found, all of the deceased’s known cousins have indicated that they do not oppose the admission of the document to probate.
Testamentary intentions
The applicant submitted that the deceased’s testamentary intentions are evident from the document itself. It clearly set out not only the deceased’s assets, but also how they were to be distributed upon his death.
In Estate of Masters; Hills v Plummer, Priestley JA stated that “A document in which a person says what that person intends shall be done with that person’s property upon death seems to me to be a document which embodies the testamentary intentions of that person”.[5]
[5] (1994) 33 NSWLR 446 at 469.
The applicant submitted that it was clear from the words used in the document that it was intended to be a testamentary document weighing the following indicia:
1.The first heading of the document is “Robert Morley – Provisions for Will and Funeral”;
2.The second heading is “Provisions for my will”;
3.There is a heading “Disposal of personal property”;
4.There is a heading “Disposal of the remainder of the estate”;
5.Although not expressed in conventional language, there is a reference to the applicant “if he acts as executor”;
6.The document refers to “the estate is to be divided into six parts”;
7.The document explains to whom those six parts are to be distributed.
The applicant submitted that the real question for determination was whether the deceased intended the document to constitute his will.
The representative party agreed but contended that the document being unsigned was a significant issue.
Whether an informal will has been signed by the testator is significant.[6] However, lack of a signature is not fatal to an application under s 12(2).
[6] Fielder v Burgess [2014] SASC 98 at [34]; In the Estate of Gall (Deceased) [2008] SASC 349 at [20]; Baumanis v Praulin (1980) 25 SASR 423 at 426.
In Estate of John Leslie Xavier Monaghan (Deceased),[7] the testator had given instructions to a solicitor for the preparation for his will but died before he could sign the final version. However, between giving instructions and his death, the testator had advised his wife that he was happy with the draft will, apart from some minor corrections to names and addresses, and had also left a telephone message with the solicitor’s office stating “Thanks for the wills, they’re great”. Gray J held that the Court will admit an unsigned draft will where the deceased was aware of and had approved the terms of the draft will as being the deceased’s testamentary intentions. In that case the draft will was admitted to probate.
[7] [2012] SASC 130.
When dealing with an unsigned document, there must be “cogent evidence that the document embodies the deceased’s testamentary intentions”.[8]
[8] Jabado v Da Prato [2016] WASC 98 at [6].
In the present case, the deceased was in control of the entire process. It can be inferred from the evidence that the deceased prepared the document on his computer and, when satisfied with it, printed it out and placed the document with his other important papers in a place where they might easily be found upon his death. I am satisfied that the act of printing the final version of the document was indicative of the deceased’s knowledge and approval of the terms of the document as an accurate reflection of his testamentary intentions.
In my view the following evidence indicates that the deceased was unlikely to have executed a more formal document:
1.the deceased was a very private person who did not discuss his private affairs with his friends, even after the applicant encouraged him to create a formal will in 2019 when it was apparent that the deceased was very ill;
2.the applicant’s several discussions with the deceased urging him to prepare a will;[9] and
3.the applicant’s extensive searches for any other document which might constitute the last will of the deceased having revealed no other document, other than a similar document to the document currently in question, apparently created by the deceased in 2016.[10]
[9] Exhibit A3.
[10] Exhibit A3.
Additionally, in this matter there was no contraindication such as the deceased providing instructions for a draft to a solicitor and then declining to sign. Likewise, there was no evidence that the deceased had a history of prolific will-making and had made numerous wills with a solicitor and therefore would have been aware of the need to satisfy the formal requirements of s 8.[11]
[11] Estate of Dunn [2002] NSWSC 900 at [43]; Kedzier v Postle [2002] NSWSC 875 at [37]; Re Sanders [2016] VSC 694 at [88].
Rather, the evidence suggested an intention on the part of the deceased to make his own will without a solicitor and to be in control of the entire process.
For these reasons I found that the document contained the testamentary intentions of the deceased and that the deceased intended the document to constitute his will.
Capacity
As the document was not formally executed by the deceased, there was no presumption as to his capacity. It was therefore necessary to consider the testamentary capacity of the deceased.
In Fielder v Burgess, Kourakis CJ observed that:[12]
The due execution of a formal will before witnesses is, as a practical matter, a strong check against the making of a will by a person who lacks testamentary capacity.
[12] Fielder v Burgess [2014] SASC 98 at [25].
Here, there was no such “strong check” in place, noting that the document was prepared without any witnesses and not signed. Further, the document was apparently prepared in circumstances in which the deceased was suffering from declining health.
In Wood v Trudinger, Brown J stated:[13]
In Re Spencer (deceased), Dalton J set out the principles with respect to proving capacity and who bears the onus in the context of an informal will. Her Honour stated, inter alia:
I accept the authorities as to evaluating the evidence with care, in accordance with the Briginshaw principle. Where there is a duly executed will, there will be a presumption of capacity. In the absence of a duly executed will, there is no presumption of capacity in the relevant sense. In Phillpot v Olney, White J said, in considering the onus of proving testamentary capacity where there was an informal will:
‘The onus of proving that the deceased had testamentary capacity lies upon the plaintiff. If the Court is not affirmatively satisfied that she had such a capacity it is bound to pronounce against the documents. Where a document has been duly executed in accordance with the formal requirements for the making of a will and is rational on its face, such execution raises a prima facie case that the person is of competent understanding which may place an evidentiary onus on the person disputing that the document is the deceased’s will to adduce evidence raising doubts as to the deceased’s competency… In this case no such evidentiary onus is thrown on the defendant.’
…
Habersberger J in Fast v Rockman, stated that in the context of determining whether to make a declaration in favour of an informal will, the evidence needs to be evaluated with great care, in accordance with the Briginshaw principle.
[Citations omitted].
[13] [2017] QSC 245 at [35], [40].
Although Wood v Trudinger dealt with an application under the Queensland legislation,[14] the same principles apply in this jurisdiction.
[14] Succession Act 1981 (Qld) s 18.
The test for testamentary capacity is set out by Cockburn J in Banks v Goodfellow:[15]
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
[15] (1870) LR 5 QB 549 at 565.

The deceased clearly understood the nature and effect of a will, referring to the disposition of his property, his funeral arrangements, and the appointment of the applicant as executor.
It is evident the deceased understood the nature and content of his estate. The deceased listed his assets in the document, reasonably resembling the assets described in the statement of assets and liabilities lodged with the application for probate.
Although the deceased did not have to consider the inclusion in his will of anyone who might have a claim on his estate, as there was no one living at the date of his death who fell into the categories set out in s 6 of the Inheritance (Family Provision) Act 1972 (SA), the distant relatives and godchildren for whom he did make provision might be considered to be the natural object of his bounty.
Finally, the evidence of the applicant, Mr Gent and Father Nicholls demonstrated a gradual decline in health on the part of the deceased in the months leading to his death which explained the deceased’s intention in making a will. However, notwithstanding that evidence, there was no evidence that his declining health impaired his testamentary capacity. On the contrary, while there was no evidence of the deceased suffering a disorder of the mind, the clear language and rational dispositions set out in the document points to any such disqualifying inference being unlikely.
For these reasons I found that the deceased had testamentary capacity when the document was last modified on 30 December 2019.
Conclusion
As a result I ordered that the document be admitted to probate as the last will of the deceased pursuant to s 12(2) of the Act. I also ordered that a grant of probate of the document be made to the applicant, the executor appointed by the document.
I ordered that the costs of both the applicant and the representative party of and incidental to these proceedings be paid from the estate of the deceased on an indemnity basis.