In the Estate of ROBERTS (DECEASED) - [2018] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of ROBERTS (DECEASED)
[2018] SASC 78
Judgment of The Honourable Justice Bampton
8 June 2018
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR'S INTENTION - HOME MADE WILL
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING
The plaintiff seeks an order that an informal document executed by his brother (the deceased) on 11 October 2015 be admitted to probate pursuant to s 12(2) of the Wills Act 1936 (SA) – whether the deceased had testamentary capacity – whether the informal document expresses the deceased’s testamentary intentions – whether the deceased intended the informal document to constitute his will.
HELD: The document in question be admitted to probate as the will of the deceased pursuant to s 12(2) of the Wills Act 1936 (SA).
Wills Act 1936 (SA) s 12(2), referred to.

In the Estate of ROBERTS (DECEASED)
[2018] SASC 78
Testamentary Causes Jurisdiction

BAMPTON J: The plaintiff, James Roberts (“James”), seeks an order that the informal testamentary document executed by his brother, Damien Ronald Roberts (“Damien”), on 11 October 2015 be admitted to probate pursuant to s 12(2) of the Wills Act 1936 (SA) (“the Act”).
In his affidavit sworn on 18 March 2016, James deposes that Damien had been diagnosed with gliosarcoma after his admission to the Royal Adelaide Hospital for treatment following a motor vehicle accident on 23 August 2015. Damien also suffered from bipolar depression. On 20 September 2015, Damien was readmitted to the Royal Adelaide Hospital and was diagnosed as terminally ill on or about 2 October 2015. On 23 October 2015, Damien was aged 58 when he died in palliative care at Daw House Hospice as a result of gliosarcoma.
James deposes that Damien was an Australian resident and citizen who had worked as a registered nurse.
Damien is survived by his five brothers: James, Frank Roberts (“Frank”), John Roberts (“Jack”), Gregory Roberts (“Gregory”) and Gerard Roberts (“Gerard”). James deposes that he and his brothers were born to Ronald Theodore Roberts and Margaret Theresa Roberts, both of whom are deceased. James deposes that all of Damien’s brothers are alive and were in contact with Damien before his death.
James says that Damien never married, but was in a long term relationship with Julie Ann Wigzell (“Julie”) for approximately 12 years, until the date of his death. Damien and Julie never cohabitated, but they lived near each other as neighbours for a number of years. James says it is his belief that Julie was Damien’s long term partner and was acknowledged as such by all family members.
James deposes that Damien also maintained a friendship with Benjamin John Jackson (“Benjamin”), who was considered a close and trusted friend for a long period of his life.
James deposes that on 18 September 2015, Damien provided instructions that he intended to make provision upon his death for Julie, Benjamin, Frank, James and Jack. James deposes that, on 9 October 2015 whilst admitted to the Royal Adelaide Hospital, Damien gave him specific instructions to prepare a document which was intended to be his final testamentary instructions. These testamentary instructions were intended to assist in the preparation of a formal will by a solicitor. James says he took notes of Damien’s oral instructions, noting that he did not provide him with specific quantum of monies to be gifted to Jack, Benjamin, Frank, or himself. He says that Damien told him to leave those allocations blank and that he would think about them overnight and fill them in by hand when James returned the following day for him sign the typed version of the document. On 10 October 2015, James converted Damien’s oral instructions into a typed document at his home, using his notes.
James returned to the Royal Adelaide Hospital with Julie on 11 October 2015 for Damien to sign the document. Damien instructed James to insert specified dollar amounts into the document to be gifted to Jack, Benjamin, James, and Frank, which James did by hand. The document does not appoint or nominate an executor. It does under the heading “Instructions to my Power of Attorney, James Roberts” provide instructions for James to deal with superannuation accounts and “to manage all of my affairs at his discretion, while at all times acting in my best interests, and with a care to maintaining the integrity of the estate, as well as preserving the spirit and intent of my last will and testament”. James deposes that the signature at the bottom of the document is the signature of Damien. The scribble at the very bottom of the document is where Damien made a mark to ensure that the pen was working before signing the revised instructions document, which is annexure JR1 to James’ affidavit sworn 18 March 2016.
On 12 October 2015, Damien was considered by treating practitioners to be incompetent and, as a result, James says it was not possible to instruct lawyers to prepare a formal document based on JR1.
Annexed to James’ affidavit as JR3 is a copy of a letter dated 23 February 2016 regarding Damien’s competency from Damien’s medical practitioner, Dr Nimit Singhal, a medical oncologist at the Royal Adelaide Hospital. Dr Singhal states that Damien was admitted to hospital between 20 September 2015 and 16 October 2015. During his admission, Damien had fluctuating episodes of delirium and confusion. Dr Singhal states that when he saw Damien on 8 October 2015, he was “clearly competent to make legal documents”. Dr Singhal says, by reference to Damien’s medical records, that he was “definitely competent” on 8 and 9 October 2015. Dr Singhal did not see Damien on 11 October 2015 and notes by reference to the medical records that from 11 October 2015 Damien became more confused and delirious. Dr Singhal saw him again on 12 October 2015 at which time he was drowsy and “certainly not competent due to worsening of his underlying condition”. Dr Singhal says that as he did not see Damien on 11 October 2015 he is not in a position to say definitely that at the time of giving instructions for and signing JR1 he was or was not competent.
James deposes that, to the best of his knowledge and belief, Damien had capacity to understand, provide instructions to him, and execute JR1 on 11 October 2015. He says Damien was alert and aware at the time he instructed James to fill out the monetary amounts and when he executed the document. Finally, James says that while JR1 is not prepared or executed in accordance with the formalities of the Act, it purports to reflect Damien’s testamentary intentions on the following grounds, in accordance with s 12(2):
1.JR1 expresses the testamentary intentions of Damien, as it was prepared by James in accordance with Damien’s express instructions given at a time when Damien had capacity to provide instructions; and
2.Damien instructed James that Damien intended the document to constitute his last will and testament and duly executed the document which was expressly named “Revised instructions for last will and testament”, and Damien was fully aware of the nature of the document and the instructions it contained upon his execution of it on 11 October 2015.
James deposes to further details regarding the creation of JR1 in two further affidavits. In his affidavit sworn on 20 October 2016, James deposes that Damien’s instructions given on 18 September 2015 were only ever oral and occurred in the context of a conversation between Damien and himself as to his declining health and his wish to provide for the individuals referred to in JR1.
James deposes that, on 18 September 2015, Damien advised him that he wished Julie to inherit his Commonwealth Super Account and that the remainder of his savings in a Westpac bank account were to be divided between Benjamin, Frank, Jack and himself. Damien did not discuss how much each person should inherit from his cash savings. He did foreshadow the necessity for Frank’s travel expenses to be paid from his estate in order that Frank could travel from overseas to attend his funeral. James also says that Damien told him that Damien’s personal possessions and motor vehicle were to go to James.
In his third affidavit sworn on 16 May 2018, James deposes that Damien prepared a document in 2011, executed on 29 January 2011, which James believes Damien intended to be an earlier version of his testamentary intentions. This document is exhibited to the third affidavit (“the earlier document”).
James says he became aware of the earlier document in early 2011 when Damien showed it to him during one of his regular visits to Damien’s home. Damien asked him to sign it as a witness during a visit; however, James refused to do so as he stood to benefit from the estate and he did not want to create any perception of conflict by being the sole witness of this earlier document. James says that in the following three years Damien referred to the earlier document on several occasions in their discussions on the topic of estate planning.
James deposes that, on 18 September 2015, whilst he was visiting Damien at his home and at which time Damien was aware of his rapidly declining health, Damien talked in detail about his estate planning and advised that he wanted to update his testamentary instructions.
Damien was admitted to hospital on 20 September 2015 and thereafter proceeded to provide the instructions on his final testamentary instructions which resulted in the preparation of JR1. James deposes that it is his unequivocal belief that Damien intended for JR1 to supersede the earlier document.
James says that he came into possession of the earlier document on 9 December 2015 in the course of packing up the contents of Damien’s home.
Accordingly, James seeks an order admitting JR1 to probate as Damien’s will pursuant to s 12(2) of the Act.
Solicitors acting for James have given notice of the application to Frank, Jack, Gerard, Gregory, Julie, and Benjamin. Frank, Jack, Julie, and Benjamin have forwarded correspondence confirming that they consent to the making of this application and declaration sought.
Gregory has advised that he is not opposed to Damien’s estate being distributed in accordance with JR1.[1] Gerard has advised James’ solicitor that he has received the notification of the application and does not want anything to do with the matter.[2]
[1] Affidavit of Bronwyn Kaye Case sworn on 7 December 2017.
[2] Second Affidavit of Bronwyn Kaye Case sworn on 16 May 2018.
In her affidavit sworn on 15 May 2018, Julie deposes that she met Damien in 2003 and that they formed a relationship shortly thereafter. She deposes that whilst they were in a committed and loving relationship, they decided early on that they would not live together as Damien suffered bipolar depression. For that reason, they maintained separate residences throughout the relationship. In 2012, they moved into adjoining courtyard homes where they lived until Damien’s death. Damien spent the majority of his time at Julie’s home, where they would have meals and spend time together. As a consequence of their relationship, Julie deposes that she knew Damien very well and it would have been immediately apparent to her if he was ever doing something which he did not properly understand or appreciate.
Julie deposes that she attended hospital every day during his last admission, to spend time with Damien until his death.
Julie refers to James attending the hospital while she was present on 9 October 2015 and that during this attendance Damien provided James with instructions regarding the preparation of a document setting out his wishes to assist in the preparation of a formal will to be drafted by a solicitor.
Julie deposes that she recalls Damien expressing to James that the instructions were his final testamentary instructions.
Julie deposes that, on 11 October 2015, she attended the hospital with James at which time James produced a document that he said he had typed based on Damien’s instructions on 9 October 2015.
Damien instructed James to fill in the monetary amounts beside each beneficiary’s name following which Damien signed JR1.
Finally, Julie deposes that at the time of signing JR1 Damien was, in her opinion, alert. She unreservedly believes that he had a complete understanding of JR1 and its effects, and that he intended it to convey his dying intentions. She says this is because of the clear way in which he was communicating his wishes to James regarding the amounts to be gifted to each beneficiary and the manner in which he was interacting with her and James generally regarding JR1 bringing finality to his affairs.
I am satisfied, having regard to the affidavit evidence filed in support of this application, that Damien Ronald Roberts had testamentary capacity at the time he signed JR1, that JR1 expresses his testamentary intentions, and that he intended JR1 to constitute his will. I am also satisfied, having regard to the tenor of JR1, that Damien Ronald Roberts intended to appoint James Roberts as his executor.
Accordingly, pursuant to s 12(2) of the Act, JR1 annexed to the affidavit of James Roberts sworn 18 March 2016 is to be admitted to probate as the will of Damien Ronald Roberts who died on 23 October 2015 even though it has not been executed in accordance with the formalities required by the Act.