In the Estate of ROHAN ALEXANDER RUSSELL (DECEASED) - [2016] SASC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of ROHAN ALEXANDER RUSSELL (DECEASED)
[2016] SASC 56
Judgment of The Honourable Justice Stanley
22 April 2016
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - NO REASONABLE DOUBT MAKER INTENDED DOCUMENT AS WILL
This is an application made pursuant to s 12(2) of the Wills Act 1936 (SA) for an order admitting an informal will of 29 April 2015 to probate.
The applicant, Katherine Elizabeth Russell, is the sister of the deceased, Rohan Alexander Russell, who died on 30 April 2015. She is the executrix named in the informal will.
The deceased died by suicide. His body was found in a hotel room in Adelaide on 30 April 2015. Found among his possessions in the room was the informal will and an iPhone containing an electronic file of a video and audio recording of the deceased.
The application seeks to have the will form admitted to probate as the last will of the deceased.
Held per Stanley J:
1. It is inferred from the acts of the deceased that he knew his death was imminent and he intended that the will form document was to operate as his last will and testament (at [19]).
2. The will form document be admitted to probate as the last will of the deceased and that probate of the same be granted to Katherine Elizabeth Russell the sole executor named therein (at [21]).
3. The costs of and incidental to this application and order be paid out of the estate of the deceased (at [21]).
Wills Act 1936 (SA) s 8, s 12(2); Probate Rules 2015 (SA) r 64, referred to.
In the Estate of Wilden (deceased) (2015) 121 SASR 516, distinguished.
In the Estate of Frank William Davis (deceased) [2011] SASC 143; Tsagouris & Anor v Bellairs & Anor [2010] SASC 147; Estate of John James Dunn; Anderson v Scrivener [2002] NSWSC 900; Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895; Fielder v Burgess [2014] SASC 98; Costa & Anor v The Public Trustee of NSW [2008] NSWCA 223, considered.

In the Estate of ROHAN ALEXANDER RUSSELL (DECEASED)
[2016] SASC 56
Testamentary Causes Jurisdiction
STANLEY J:
Introduction

This is an application made pursuant to s 12(2) of the Wills Act 1936 (SA) (the Act) for an order admitting an informal will of 29 April 2015 to probate.
The applicant, Katherine Elizabeth Russell, is the sister of the deceased, Rohan Alexander Russell, who died on or about 29 April 2015. She is the executrix named in the informal will.
The application is made by amended Summons issued pursuant to r 64 of the Probate Rules 2015 (SA) (the Rules). The application is supported by affidavits of the applicant affirmed 27 July 2015 and 28 August 2015, and an affidavit of Rodney Lawrence Jones affirmed 21 March 2016.
The matter was referred to me for determination by the Registrar pursuant to r 64(4)(b). Rule 64 provides:
(1)Unless a probate action has been commenced, an application under section 12(2) of the Wills Act 1936 for an order admitting to proof a document purporting to express the testamentary intentions of a deceased person must be made by summons to the Registrar in Form 34A and must be supported by an affidavit setting out the facts upon which the applicant relies to which is annexed the written consents to the application of all persons not under disability who may be prejudiced by the admission of the document to proof.
Provided that if it appears to the Court or the Registrar expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined), the Court or the Registrar may dispense with the requirement of a summons in Form 34 (and if the Registrar thinks fit also dispense with the requirement for an oath in modification (f) to Form 37) for the purpose of saving expense.
(2)The Registrar may dispose of an application under section 12(2) of the Wills Act 1936 if the Registrar is satisfied that all persons who may be prejudiced by the admission of the document to proof are not under a disability and have consented to the application.
Provided that if it appears to the Court or the Registrar expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined), the Court or the Registrar may dispense with compliance for the purpose of saving expense.
(3)Where a person who is not under a disability and may be prejudiced by the admission of the document to proof has not given a written consent to the application — the Registrar may deem that person to have consented if that person fails to attend before the Registrar after such service upon him or her as the Registrar may direct of the proceedings and notice of the application.
(4)Where—
(a) any person who may be prejudiced by an order sought under this rule is under a disability or cannot be ascertained or found or has not consented; or
(b) the Registrar is in doubt or difficulty about any order which should be made pursuant to this rule,
the Registrar may refer the application to a Judge in Court or in Chambers.
The deceased
The deceased was born on 20 January 1985. He was 30 years of age at the time of his death. He was a medical practitioner. At the time he was married to Prasanna Devi Ramachandran but they were separated. There were no children of the marriage.
The deceased died by suicide. His body was found in a hotel room in Adelaide on 30 April 2015. Found among his possessions in the room was the informal will and an iPhone containing an electronic file of a video and audio recording of the deceased.
Exhibited to the second affidavit of the applicant was a USB containing an electronic file of the video and audio recording contained on the iPhone located amongst the deceased’s possessions when his body was discovered. Exhibited to the first affidavit is a transcript of that recording.
The informal will
The informal will is a will form document from a will kit. It provides that it is the last will of the deceased and revokes all previous wills, testamentary acts and dispositions. The informal will appoints the applicant as the sole executrix of the deceased’s estate but provides that in the event that she did not outlive the deceased, or was unwilling to act or incapable of acting as executrix of his estate, then it appoints his father, Richard Alan Russell, as executor. The will makes specific bequests of $125,000 each to the applicant and to the deceased’s father, and of $25,000 to his wife, Ms Ramachandran. The residue of his estate, including the proceeds of superannuation funds, is gifted to the applicant. By the terms of the will, the deceased expresses the wish that his body be cremated without a funeral and that his organs be donated.
The application seeks to have the will form admitted to probate as the last will of the deceased.
The informal will is in the form of a completed will form from a will kit where the blank parts of the document were completed in handwriting by the deceased, signed by him and dated 29 April 2015. The will is informal because the requirements of s 8 of the Act concerning attesting witnesses have not been met. The deceased’s execution of the document was not witnessed by attesting witnesses as required pursuant to s 8(c), (d) and (e) of the Act.
The only person who may be prejudiced by admission of the informal will to probate is the deceased’s estranged wife. There is no evidence of the deceased having previously made a will. Accordingly, if the informal will is not admitted to probate, the deceased would have died intestate and his wife would be entitled to the whole of the deceased’s intestate estate. Ms Ramachandran has given a written consent pursuant to r 64 to the admission of the informal will to probate.
The iPhone recording
The transcript of the iPhone recording, apparently made in the hotel room in which the deceased died, commencing at 7:03 p.m. on 29 April 2015, records the deceased saying:
This is the last will and testament of me, Rohan Alexander Russell of 74 Alexandra Avenue, Rose Park, 5067 in South Australia which commences on this page and which concludes with the words “This is the end of my Will” as it appears. By this Will I revoke all previous Wills and testamentary acts and dispositions.
I appoint Katherine Elizabeth Russell of Gage Street, St Morris, 5068, my sister in the State of South Australia as the executor of my Will and trustee of my estate but if she is unable to or unwilling to act or incapable of acting then I appoint Richard Alan Russell, my father of 74 Alexandra Avenue, Rose Park, 5067 in the State or Territory of South Australia.
I make the following special gifts which are legacies, bequests or devices to the following people. My wife Prasanna Debbie Ramachandran whom which I am estranged $25,000. My sister Katherine Elizabeth Russell $125,000. My father Richard Alan Russell $125,000.
I direct my executors to pay all my debts and then I give any residue of my estate to Katherine Elizabeth Russell her date of birth being the 9^th of the 5^th 1990. This includes my superannuation SSS Super ID NO. 90109322 and my Statewide Super with the ID 6019488.
It is my wish that I do not have a funeral. I would ask that my body is cremated. It is also my wish that any organs be used for medical benefit for other people as follows. I ask that all my organs if useful are donated to others.
If my executors are holding any part of my estate in trust for any beneficiary my executors will have all power given to them or trustees by the legislation in any of the Australian States or Territories, not just the State or Territory where my estate is being administered. Free where permitted of any limitations expressed in terms of time or money I have signed this on 29^th of April 2015.
I ask that my wishes are respected. I have completed bank cheques to provide those who I believe should receive the monies entitled to them and I hope that this represents evidence enough of my wishes despite the fact that witnesses to the Will itself were not present, they were unable to be present at the time of its writing. I have asked Mr Jenkins to act on my behalf and I have also forwarded to him copies of receipts for the bank cheques which I wish to be issued on my behalf from my funds.
I am very hopeful this will be a legally acceptable action given I have very little recourse in regards to what happens following my future actions.
I am sorry that it has come to this but unfortunately there was, there is no other way.
I love you.
I have watched and listened to the recording. It depicts the deceased, who appears to be calm and rational, and decided upon taking his life, seeking to provide for the disposition of his estate by making a will. By the time of the recording, he had completed the will form from the will kit. He recites its contents. The recording discloses that the deceased appreciated that the will he had made was defective by reason of the absence of attesting witnesses, but that he nonetheless hoped that it would be effective as an instrument of testamentary disposition.
Section 12(2) of the Wills Act
Section 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.
The legislative purpose of s 12(2) in the scheme of the Act was explained in In the Estate of Frank William Davis (deceased)[1] where Gray J said:[2]
[1] [2011] SASC 143, (2011) 7 ASTLR 572
[2] [2011] SASC 143 at [21] – [22], (2011) 7 ASTLR 572 at 576 – 577.
Section 12 of the Wills Act deals with the validity of wills and provides that a will is valid if executed in accordance with the Act. The formal requirements are contained in section 8: the document must be signed by the testator or by some other person in the testator's presence and by the testator's direction; it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; the witnesses must attest and sign the will; and, the signatures of the witnesses must be made or acknowledged in the presence of the testator – but not necessarily in the presence of each other.
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 section 8 of the Act. The remedial nature of section 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 the Estate of Graham, the first decision to consider section 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].
This matter involves the application of those principles to the circumstances of this case.
I am satisfied the will form completed by the deceased on 29 April 2015 meets the requirement of s 12(2). The document expresses testamentary intentions of the deceased. It clearly expresses his intentions as to what is to happen to his property upon his impending death.[3]
[3] Tsagouris & Anor v Bellairs & Anor [2010] SASC 147 at [24], (2010) 5 ASTLR 403 at 410.
I am satisfied that the deceased intended the document to constitute his will. I am satisfied of this matter by the terms of the document itself but I am also persuaded by the probative force of the iPhone recording. I accept the submission of Mr Edmonds-Wilson, counsel for the applicant, that the acts of the deceased in completing the will form in his handwriting and in signing and dating the document, evidence the deceased’s intention that the document was to be his will. A signature placed on a document which is testamentary in nature frequently is an important indicator that the maker of the document intended the document to constitute his or her will.[4] Likewise, dating a document in these circumstances frequently is an indication that the document is in its final form and intended to operate.[5]
[4] Estate of John James Dunn; Anderson v Scrivener [2002] NSWSC 900 at [38].
[5] In the Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 at [272].
Finally, the deceased completed the document when he was contemplating suicide providing a compelling reason to make a will in order to dispose of his estate as he intended.[6] I infer from the acts of the deceased that he knew his death was imminent and he intended that the will form document was to operate as his last will and testament.[7]
[6] Fielder v Burgess [2014] SASC 98 at [34].
[7] Costa & Anor v Public Trustee of NSW [2008] NSWCA 223.
The amended Summons sought, in the alternative to a grant of probate being made in favour of the will form document, that the transcript of the iPhone recording be admitted to probate as the last will of the deceased. There can be no doubt that such a document is capable of being admitted to probate as a will.[8] On the hearing of the application Mr Edmonds-Wilson abandoned that claim. He submitted that this case differs from the situation considered by this Court in In the Estate of Wilden (deceased)[9] where, by the express terms of a DVD recording, the testator said that he intended the recording to act as his will as he did not have a written document available. I accept this submission. The facts of this case are readily distinguishable from the facts of Wilden’s case. The audio and video recording evidence the deceased reading out the content of the will form document. There is nothing in the recording to indicate that the deceased intended the recording itself to constitute his will. On the contrary, by reading out the content of the document the deceased was indicating that the document was to be his will. I am satisfied that the recording merely evidences that the deceased’s final testamentary intentions were to be found in the will form document which had already been completed by him. The recording is corroborative evidence of the fact that the deceased intended the will form document to be his final will.
[8] In the Estate of Wilden (deceased) [2015] SASC 9, (2015) 121 SASR 516.
[9] [2015] SASC 9, (2015) 121 SASR 516.
Conclusion
For these reasons I made the following orders on 23 March 2016:
1. The document as contained in the paper writing dated the 29^th day of April 2015 (being the exhibit marked “C” referred to in the affidavit of Katherine Elizabeth Russell affirmed on the 28^th day of August 2015) be admitted to probate as the last will of the deceased and that probate of the same be granted to Katherine Elizabeth Russell the sole executor named therein.
2.The costs of and incidental to this application and order be paid out of the estate of the deceased.