In the Estate of STEWART ARTHUR HANDFIELD
[2010] SASC 22
•12 February 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of STEWART ARTHUR HANDFIELD
[2010] SASC 22
Judgment of The Honourable Justice Gray
12 February 2010
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - ATTESTATION - IN GENERAL
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA - NO REASONABLE DOUBT THAT MAKER INTENDED DOCUMENT AS WILL
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - MISTAKES AND OMISSIONS
SUCCESSION - FAMILY PROVISION AND MAINTENANCE - JURISDICTION - PERSONS IN WHOSE FAVOUR ORDER MAY BE MADE - OTHER PERSONS
Application for a grant of probate – document not executed with the formalities required by section 8 of the Wills Act 1936 (SA) – attesting witnesses not “present at the same time” - inquiry made under section 12(2) of the Wills Act to admit the document – whether the document expresses the testamentary intentions of the deceased – whether the deceased intended the document to constitute his will – if application pursuant to section 12(2) unsuccessful, whether the court will make a declaration pursuant to section 11B of the Family Relationships Act 1975 (SA) that the applicant was a domestic partner of the deceased.
Held: document clearly intended to constitute the will of the deceased – document expresses the testamentary intentions of the deceased – appropriate circumstance to use power conferred by section 12(2) – alternatively, applicant a domestic partner of the deceased at the time of death - no need to make declaration pursuant to section 11B of Family Relationships Act.
Administration and Probate Act 1919 (SA) s 72J; Wills Act 1936 (SA) s 8 and s 12(2); Inheritance (Family Provision) Act 1972 s 6; Family Relationships Act 1975 (SA) s 11A and s 11B, referred to.
In the Estate of Hennekam (2009) 104 SASR 289, considered.
In the Estate of STEWART ARTHUR HANDFIELD
[2010] SASC 22Testamentary Causes
GRAY J
Introduction
This is an application for a grant of probate.
The deceased, Stewart Arthur Handfield, died on 26 November 2008 aged 81 years. The deceased left a document in the form of a “will kit” will. The document is signed by the deceased and by two witnesses. The document is dated 30 June, but the year is unclear. It is said that it could be 2003 or 2005. The document appoints the deceased’s partner of almost 35 years, Frank Anthony Kerstens, as executor and sole beneficiary. Mr Kerstens is the present applicant.
Initially, Mr Kerstens applied for a grant of probate in common form. Following requisitions it became apparent that there were doubts as to the due execution and formal validity of the document; in particular, whether the attesting witnesses were present “at the same time”. Section 8 of the Wills Act 1936 (SA) sets out the requirements as to writing and execution of a valid will, and relevantly provides:
(a) it must be signed by the testator or by some other person in the testator's presence and by the testator's direction; and
(b) it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
(c) the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) the witnesses must attest and sign the will (but no form of attestation is necessary); and
(e) 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).
[emphasis added]
Mr Kerstens now applies for a grant of probate pursuant to section 12(2) of the Wills Act. That section allows the court to admit to probate a document, despite non-compliance with section 8, if it is satisfied that the document expresses testamentary intentions and that the deceased intended that document to constitute his or her will.
Background
The deceased did not marry and had no children or siblings. He had told Mr Kerstens that his parents had died many years ago. The persons who would be entitled to his estate in the event of an intestacy,[1] are unknown. Mr Kerstens deposed that the deceased told him many times that he had no living relatives. Colin Frank Ivey who was a witness to the document, deposed that the deceased had made statements to the same effect over at least the last ten years of his life. Further, Darrell William George Norley, the other witness to the document, deposed that some time after the year 2000, the deceased had told him that he had no living relatives.
[1] Relatives – or issue of relatives – of the third for fourth degree: Administration of Probate Act 1919 (SA), section 72J.
A statement of assets and liabilities of 4 May 2009, estimates the total value of the deceased’s estate to be $586, 332.89. This is principally made up of a fee simple interest in a home in Cumberland Park.
The Registrar of Probates made an order appointing Leonie Millard, a solicitor, to represent the class of persons who would be adversely affected by the order sought. Ms Millard did not resist the application for a grant of probate in the manner sought.
The Document
One of the witnesses to the will is Mr Ivey, a friend of the deceased for more than 50 years. Mr Ivey recognises his own signature. He remembers signing the document in the sitting room of his house, but does not remember anyone else being present. His signature is in blue pen, and the printing of his name, address and occupation, which he also recognises as his own writing, is in black pen. Mr Ivey cannot recall why this is so, but deposed that he often has many pens on his sitting room table. He does not know the deceased’s signature. He thinks that the will was signed in 2005. Mr Ivey had urged the deceased to make a will and remembers the deceased asking him to witness the signing of his will. Mr Ivey also remembers the deceased telling him that he only had a small estate and that “everything would go to Frank”. Mr Ivey does not recall the deceased signing the will.
The other witness to the will, Mr Norley, had known the deceased for more than 20 years, first meeting him when he worked part time for the deceased at a cinema. He worked with the deceased for more than ten years. Mr Norley recognises the writing in the body of the will as that of the deceased and recognises the deceased’s signature. He also recognises his own signature. Otherwise, Mr Norley has no recollection of signing the document at all. He deposed that the date must have been earlier than October 2005, because in that month, he and the deceased had a disagreement that permanently ended their friendship.
Mr Kerstens deposed that some years before his death, the deceased informed him that Mr Ivey had encouraged the deceased to make a will, and that the deceased had left everything Mr Kerstens. Mr Kerstens further deposed that on many occasions following that conversation, the deceased had confirmed that he had left everything to him and that he would have a “nice little nest egg”. The deceased did not tell Mr Kerstens that he had made him executor; nor did he tell him the location of the will until he was in hospital, shortly before his death. Mr Kerstens deposed that during this time, he had asked the deceased about the location of the will
Consideration of the Application
The evidence of Mr Ivey and Mr Norley does not prove due execution of the document. Due execution can be presumed in a number of circumstances, even when the attesting witnesses have no recollection of the events.[2] However, in the present case, the presumption of regularity is so weak as to be of little assistance. The attestation clause used in the will form does not exclude the possibility of non-compliance with section 8(1)(c) of the Wills Act, which provides that the signature must be made or acknowledged by the testator in the presence of two or more witnesses “present at the same time.”[3]
[2] Hardingham, Neave and Ford, Wills and Intestacy in Australia and New Zealand (2nd ed, at [220]; Haines, Succession Law in South Australia, at [7.24].
[3] See also Hutley’s Australian Wilsl Precedents (7th ed at [31.31, fn 8]; Re Eastwood (1910) 13 NZGLR 112 and Re Will of AB [1930] NZGLR 381continued to be applied in South Australia.
The recollections of the witnesses are not consistent and do not suggest compliance with section 8 of the Wills Act. Mr Ivey thinks that he signed the will in his own sitting room. Mr Norley, however, recalls that although it is possible that he signed the will in Mr Ivey’s sitting room, it is most likely that he signed it at the cinema. As earlier mentioned, neither remembers the other being present at the time of signing. Further, the witnesses have used different pens, which would be consistent with the signings happening on two separate occasions.
I am not satisfied that the document has been executed with the formalities required by section 8 of the Wills Act. It is in these circumstances that the preferable course for the Court is to make inquiry under section 12(2) of the Wills Act. That section provides:
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.
I considered the operation of section 12(2) of the Wills Act in In the Estate of Hennekam[4] and there observed:
As outlined, section 12(2) of the Wills Act (SA) provides that any deficiency in the formal requirements of a valid will can be overcome if the court is satisfied that the document expresses the testamentary intentions of a deceased person and the deceased intended the document to constitute his or her will.
…
The remedial nature of section 12(2) was emphasised by King CJ in In the Estate of Williams. In relation to the interpretation of section 12(2) King CJ commented:
There is no reason, as a matter of construction or logic, to differentiate between signature and any of the other formalities for execution required by s. 8.
…
Section 12(2) is a remedial provision designed to avoid failure of the testamentary purpose caused by non-compliance with the formalities required by s. 8 arising out of ignorance or inadvertence. There is no reason to suppose that Parliament intended to limit the circumstances in which the remedial provision would operate and no reason for the Court to construe the sub-section other than in accordance with the natural meaning of the words used.
[4] In the Estate of Hennekam (2009) 104 SASR 289 at [27] and [32].
There seems little doubt that the document the subject of this proceeding expresses the deceased’s testamentary intentions. The very form of the document, in particular being a will kit will, indicates that it expresses testamentary intentions. Further, the will’s terms and the provisions made are consistent with the evidence of Mr Ivey, Mr Norley and Mr Kerstens.
Again, there would appear to be little doubt that the deceased intended the document to constitute his will. The form and nature of the document suggests so. The signature of the deceased, and the fact that he specifically obtained the signature of two witnesses, is also suggestive of this being the case. There is no other sensible conclusion open on the face of the matter.[5]
[5] It is to be noted that there is no evidence of fraud in the present proceedings.
In light of the foregoing, it is my view that the use of the Court’s power under section 12(2) of the Wills Act is appropriate.
One further matter
If the document the subject of the present proceeding was not admitted to probate, resulting in intestacy, the provisions of the Inheritance (Family Provision) Act 1972 (SA) and Administration and Probate Act 1919 (SA) would apply.[6] It is in these circumstances that in the course of the proceedings, the possibility of this Court making a declaration pursuant to section 11B of the Family Relationships Act 1975 (SA) was raised. That provision allows the Court, on application, to declare a person a domestic partner if it is satisfied that that person was at the relevant time a domestic partner within the meaning of section 11A. That section relevantly provides:
[6] Administration and Probate Act 1919 (SA) part 3A.
A person is, on a certain date, the domestic partner of another person if he or she is, on that date, living with that person in a close personal relationship and—
(a) he or she—
(i)has so lived with that other person continuously for the period of 3 years immediately preceding that date; or
(ii)has during the period of 4 years immediately preceding that date so lived with that other person for periods aggregating not less than 3 years; or
(b) a child, of whom he or she and the other person are the parents, has been born (whether or not the child is still living at that date).
Section 11B outlines the relevant considerations in making a declaration as follows:
(1) A person whose rights or obligations depend on whether—
(a) he or she and another person; or
(b) 2 other persons,
were, on a certain date, domestic partners 1 of the other may apply to the Court for a declaration under this section.
(2) If, on an application, the Court is satisfied that—
(a) the persons in relation to whom the declaration is sought were, on the date in question, domestic partners within the meaning of section 11A; or
(b) in any other case—
(i)the persons in relation to whom the declaration is sought were, on the date in question, living together in a close personal relationship; and
(ii) the interests of justice require that such a declaration be made,
the Court must declare that the persons were, on the date in question, domestic partners 1 of the other.
…
Mr Kerstens deposed to living with the deceased almost continuously for thirty-five years as a domestic partner. Mr Kerstens deposed that over that time, the couple shared five or six residences which were bought and registered in the name of the deceased, and in respect of which he had devoted time, energy and financial resources to renovating and repairing. Mr Kerstens said that despite their sexual relationship ending some three years before the death of the deceased, they still lived together on a genuine domestic basis, where he provided care and support to the deceased as he grew older and more frail. These depositions are supported by other affidavit material before the Court.
Because of my conclusions with respect to the section 12(2) application, I do no need to arrive at a conclusion on this question. If I needed to, on my review of the material and having regard to the provisions of section 11B of the Family Relationships Act, I would make a declaration. I am satisfied that at the time of the death of the deceased, Mr Kerstens and the deceased were domestic partners within the meaning of section 11A of the Family Relationships Act. In any event, the circumstances would give rise to a declaration under section 11B(2)(b). This is particularly so in light of the duration of Mr Kersten and the deceased’s relationship; their common residence over that period; their financial and other interdependence; the ownership and domestic arrangements of their property; and the mutual commitment to a shared life over a long period.[7]
[7] Pursuant to section Family Relationships Act1975 (SA) section 11B(3).
Conclusion
In the circumstances I make the following orders:
-The document (being the exhibit marked “A” referred to in the affidavit of Darrell William George Norley affirmed on 4 September 2009) be admitted to probate as the last will and testament of Stewart Arthur Handfield, late of 74 Edward Street Cumberland Park in the State of South Australia, retired, theatre operator, deceased.
-Probate of the will be granted to Frank Anthony Kerstens of 74 Edward Street Cumberland Park aforesaid the executor therein named as therein mentioned.
-The costs of and incidental to this application and order be paid out of the estate of the deceased.
2