IN THE ESTATE OF SUGARS (DECEASED)
[2021] SASC 62
•27 May 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF SUGARS (DECEASED)
[2021] SASC 62
Judgment of the Honourable Justice Nicholson
27 May 2021
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED
Application for probate.
The applicants applied for an order under subsection 12(2) of the Wills Act 1936 (SA) that an undated and unsigned document prepared by the deceased’s solicitor purporting to express the testamentary intentions of the deceased be admitted to probate.
Held:
1.The document marked exhibits A, B, C and D to the affidavit of Lynton Allan Sugars, Jason Francis Bridgman and Darren Robert Bridgman affirmed on 22 October 2020 and 27 November 2020 is admitted to probate as the last will of Susan May Sugars.
2.Probate of the will is granted to Lynton Allan Sugars, Jason Francis Bridgman and Darren Robert Bridgman.
3.Upon application for a grant of probate in a form acceptable to the Registrar of Probates, the Registrar is directed to issue the grant.
Administration and Probate Act 1919 (SA) s 72G; Wills Act 1936 (SA) s 12; Probate Rules 2015 (SA) r 64, referred to.
In the Estate of William Edward Dodds [2013] SASC 56; In the Estate of Williams, deceased (1984) 36 SASR 423, considered.
IN THE ESTATE OF SUGARS (DECEASED)
[2021] SASC 62
Testamentary Causes Jurisdiction
NICHOLSON J.
Introduction
Susan May Sugars died on 23 March 2018 without leaving a will that had been executed with the formalities required by the Wills Act 1936 (SA). The deceased is survived by her husband, Lynton Allan Sugars, now 80 years old and two adult sons from a previous marriage, Jason Francis Bridgman and Darren Robert Bridgman, who are the only issue of the deceased for the purposes of any administration of the deceased’s estate by way intestacy pursuant to section 72G of the Administration and Probate Act 1919 (SA).
Mr Sugars and Messrs Jason and Darren Bridgman (the applicants) have applied for an order pursuant to subsection 12(2) of the Wills Act 1936 (SA) that an undated document, purporting to express the testamentary intentions of the deceased, be admitted to probate.
In support of the application, I have received and relied on the following affidavit material.
(i)Joint affidavit affirmed by each of the applicants on 22 October 2020 (Mr Sugars) and 27 November 2020 (Messrs Bridgman) together with exhibits A to L.
(ii)Exhibit L to the above affidavit which is itself an affidavit, this time sworn,[1] by Mr Sugars on 22 October 2020.
(iii)Affidavit sworn by Mikayla Leanne Wilson, a solicitor for the applicants, on 4 February 2021.
(iv)Affidavit sworn by Jennifer Louise Brook, a solicitor for the applicants, on 3 March 2021.
(v)Affidavit affirmed by Tamara Jane Solly, a solicitor for the applicants, on 3 September 2020.
[1] It is not known which of the two 22 October 2020 affidavits by Mr Sugars was executed first. I leave aside the question of whether at some time on 22 October 2020, Mr Sugars had an epiphany or a crisis of religious confidence.
According to a Statement of Assets and Liabilities for the estate of the deceased, exhibit K to the applicants’ joint affidavit, the value of the net estate disclosed at the time of affirmation was $740,268.76. The estate is comprised principally of readily realisable shares and money on deposit and the deceased’s residential property at Christie Downs in which she and Mr Sugars resided at time of death. That property was last valued by the Valuer General at $285,000. Were the estate to be administered by way of intestacy Mr Sugars, as surviving spouse, would be entitled to $100,000 together with 50 per cent of the balance of the estate and Messrs Jason and Darren Bridgman would share the other 50 per cent of the balance. Were the informal will propounded by the applicants to be admitted to probate, Mr Sugars, in effect, would be entitled to a life interest in the Christie Downs property with the balance of the estate and the remainder interest in the Christie Downs property passing to the two sons in equal shares.
Mr Sugars in his own affidavit (exhibit L to the joint affidavit) has confirmed, inter alia, his understanding that the admission of the informal will to probate would have an adverse impact on him as to his rights, otherwise, on an intestacy, that he is sui juris, that he has received independent legal advice and that he consents to the informal will being admitted to probate and to the orders as sought by the applicants.
Subsection 12(2)
Subsection 12(2) of the Wills Act 1936 (SA) is in these terms.
(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.
Whilst the dispensation applies to a document “even though it has not been executed with the formalities[2] required by this Act”, it is not a requirement that the document in question in fact be executed, albeit informally.[3] Further, subsection 12(2) only requires that the Court arrive at a state of satisfaction. In earlier versions of subsection 12(2), the Court had to be satisfied “that there can be no reasonable doubt” of certain matters. That is no longer the case.
[2] For the formalities, see section 8.
[3] In the Estate of Williams, deceased (1984) 36 SASR 423 at 434.
Subsection 12(2) is a remedial provision as has been repeatedly observed.[4]
Section 12(2) of the Wills Act removes the harsh consequence that testators will die intestate if their will has not met the formalities required in section 8 of the Act. The section allows a document to be admitted to probate notwithstanding non-compliance with the statutory formalities, providing the court is “satisfied” of the matters specified in the section. As Jacobs J observed in In the Estate of Graham, deceased:
… 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 observations of King CJ in In the Estate of Williams, deceased are also relevant:
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] For example, In the Estate of William Edward Dodds [2013] SASC 56 at [13]-[14].
The circumstances of this matter
The document propounded by the applicants is an unexecuted and undated four page typed document presenting itself as the will of the deceased and prepared by solicitors engaged by the deceased purportedly in conformity with the instructions that she provided. The document relied on is exhibited to the applicants’ joint affidavit with each page respectively marked A, B, C and D. The document is in relatively common form for a will prepared by a solicitor practising in the area. It provides for the three applicants to be executors. It purports to dispose of the estate essentially in the manner earlier indicated subject to certain conditions and qualifications. The document also purports to provide for various broad ranging trustee powers.
On the basis of the affidavit evidence before me which I accept, I am satisfied that the document propounded came into existence and remained unexecuted in the following circumstances.
(i)On 13 October 2016, the deceased and Mr Sugars attended at the solicitors’ office, provided instructions for the preparation of mutual wills and the deceased signed a note said to summarise her instructions.
(ii)On 7 November 2016, a draft will purportedly prepared in compliance with those instructions was emailed to the deceased.
(iii)On 8 November 2016, the deceased emailed the solicitors with certain additional instructions.
(iv)On 17 November 2016, an amended draft will was emailed to the deceased together with an explanation of recent changes.
(v)On 4 July 2017, the deceased and Mr Sugars sent a joint responding email to the solicitors, containing the following instructions.
Many apologies for the delay in finalising this matter. I, Susan Sugars, am happy with my will. My address will need to be changed to [Christie Downs] as we have since moved into my house.
In the email, the deceased also gave instructions concerning a required amendment to a power of attorney that was also being prepared. Instructions were also given concerning address changes to Mr Sugars’ draft will. The email concluded with the following.
Once these corrections have been made we will pay the invoice and send copies of the paperwork to our respective children to sign. Thank you for your patience in this matter.
At the time, both the deceased’s sons who (together with Mr Sugars) were to be her attorneys lived interstate.
(vi)On 17 July 2017, the solicitors emailed to the deceased a reply to the joint email of 4 July 2017. The email contained the following.
I have updated all your documents to reflect that you now reside at [Christie Downs].
The email went on to provide advice and seek instructions concerning a proposed enduring power of attorney before concluding as follows.
I will await your further instructions before sending through all of your amended documents.
(vii)On 24 July 2017, the deceased and Mr Sugars sent another joint email to the solicitors providing further instructions concerning their proposed enduring powers of attorney, but making no mention of the deceased’s proposed will. The deceased advised that her sons would be in Adelaide (coming from interstate) between 2 and 9 August 2017, “so this will be the ideal time to have them sign the documentation”.
(viii)On 25 July 2017, amended versions of the deceased’s proposed enduring power of attorney (EPA), advanced care directive (ACD) and will (showing the Christie Downs address) were emailed by the solicitors to the deceased.
(ix)Messrs Jason and Darren Bridgman visited the deceased between 2 and 9 August 2017 and they signed her EPA and ACD.[5] The will was not executed at this time. However, given that all three of the applicants were recorded as executors and beneficiaries it is not surprising that this was not the occasion for execution of the will.
(x)Not long after, on 17 August 2017, the deceased was diagnosed with leukaemia and admitted to hospital where she underwent a course of chemotherapy.
(xi)The deceased returned to her home shortly before Christmas 2017 but was readmitted to hospital for a bone marrow transplant.
(xi)The bone marrow transplant took place on 17 January 2018 following which the deceased returned home.
(xii)However, soon after, the deceased was urgently readmitted to hospital where she died unexpectedly on 23 March 2018 notwithstanding that the deceased’s initial prognosis towards a complete cure had been positive.
[5] Whether or not the deceased also signed is unknown. No executed version of either the EPA or the ACD has been located.
Resolution
I am satisfied that the dispositive aspects of the draft will conformed to the instructions as received by the solicitors. I am also satisfied that the draft will in final form (exhibits A, B, C and D) had been approved of by the deceased as at 4 July 2017 and that as at that date the deceased had an intention to execute a will in that form. Further, a new draft (with the correct, Christie Downs, address) that was in conformity with the deceased’s instructions and expressed intention as at 4 July 2017 was emailed to the deceased only on 25 July 2017. As of that date, the deceased was in a position to execute the will. However she did not do so. I recognise that in early August 2017 the deceased had her sons execute the EPA and ACD whilst they were visiting from interstate. Whilst she might have turned her mind to the will then (there is no evidence to this effect) for the reason earlier given, this would not have been an appropriate occasion to execute the will. The deceased needed to organise two independent witnesses.
The proposed will once received (25 July 2017) remained unexecuted for only a little more than three weeks before the deceased received what must have been a most shocking diagnosis.
Thereafter, the deceased experienced a period during which she was unwell and focussed on her treatment. Much of the time was spent in hospital. She most likely was very preoccupied until she passed away suddenly in March 2018. Furthermore, until very near the end, the deceased was of the belief that she would make a full recovery. In these circumstances, the execution of the will, most likely, was not seen as urgent.
In the circumstances, I am satisfied that:
(a)the document (exhibits A, B, C and D) propounded by the applicants expresses the testamentary intentions of the deceased; and
(b)the deceased intended, as at her death, the document to constitute her last will and testament.
On the basis of the affidavit evidence, I also am satisfied that all reasonable and appropriate searches for the existence of an executed will have been made but to no avail and that the deceased did not attend upon any other solicitor for the purpose of giving instructions for a will at any time after giving the instructions that are reflected in the document propounded by the applicants.
I am satisfied that the propounded document should be admitted to probate pursuant to subsection 12(2) of the Wills Act 1936 (SA) and I order as follows.
1.Pursuant to section 12(2) of the Wills Act 1936 (SA) and rule 64 of the Probate Rules 2015 (SA), the document marked exhibit A, B, C and D to the affidavit of Lynton Allan Sugars, Jason Francis Bridgman and Darren Robert Bridgman affirmed on 22 October 2020 and 27 November 2020, be admitted to probate as the last will of Susan May Sugars even though the will has not been executed in accordance with the formalities required by the Wills Act 1936 (SA).
2.Probate of the will be granted to Lynton Allan Sugars, Jason Francis Bridgman and Darren Robert Bridgman, the executors named in the will being exhibit A, B, C and D.
3.Upon Lynton Allan Sugars, Jason Francis Bridgman and Darren Robert Bridgman making an application for a grant of probate in a form acceptable to the Registrar of Probates, the Registrar is directed to issue the grant.
4.Orders need not be drawn up.
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