In the Estate of TUIT (DECEASED) - [2016] SASC 72

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of TUIT (DECEASED)
[2016] SASC 72
Judgment of The Honourable Justice Bampton
31 May 2016
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS
Application for the issue of citations in respect of a document expressing testamentary intentions – the deceased died on or about 7 September 2015 possessed of real and personal estate – a document expressing testamentary intentions was located near the body of the deceased – the document names the deceased’s daughter, son, and sister as beneficiaries – the deceased’s daughter requested that the Registrar of Probates issue citations addressed to her brother and the deceased’s sister – whether the Registrar of Probates has power to issue citations at the request of a person who is a potential beneficiary in the document sought to be removed by the citation process.
Held:
1. As this matter turns on its own facts, and it appearing the success of a r 64 application is remote, and the expense of such an application unwarranted, the Registrar of Probates has power in the particular circumstances of this matter to issue citations at the request of a person who is a potential beneficiary under the document sought to be removed by the citation process.
2. Rule 55 requires that all persons interested under the document be cited. As the deceased’s daughter is such a person and as she is the applicant/citor, the requirement that she be cited is dispensed with pursuant to r 5(8).
Administration and Probate Act 1919 (SA) s 27, s 4; Probate Rules 2004 (SA) r 3.01(i), r 55; Probate Rules 2015 (SA) r 55, r 53(2), r 53(3), r 53(5), r 33, r 34, r 64, r 5(8), r 55(1); Wills Act 1936 (SA) s 12(2), s 3(1), referred to.
In the Estate of Charles William Leonard Dare (deceased) [2015] SASC 153, considered.

In the Estate of TUIT (DECEASED)
[2016] SASC 72
Testamentary Causes Jurisdiction

BAMPTON J: John Maxwell Tuit, the deceased, was last seen alive on 6 September 2015 and his body was found on 7 September 2015.
A handwritten document entitled “DRAFT COPY FOR LAWYER” signed “John Tuit” and dated 5 August 2015 (the document) expressing testamentary intentions was located near the body of the deceased.
The document does not appoint an executor but names the deceased’s daughter, Amber Lee (in the document called Amber Lee Tuit), and the deceased’s son James Maxwell (in the document called James Maxwell Tuit), the universal devisees and legatees and names the deceased’s sister Marlene Joy Revell (in the document Marlene Revell) as a specific legatee of goods and chattels.
The document reads as follows
LAST WILL AND TESTEMENT [sic]
1.ALL ASSETS TO BE DIVIDED EQUALLY BETWEEN MY CHILDREN.
1.    AMBER LEE TUIT
2.    JAMES MAXWELL TUIT.
IT IS MY WISH THAT THEY USE THIS MONEY. TO PURCHASE OR CONTRIBUTE TO
1.A DWELLING.
2.THEIR CHILDRENS EDUCATION.
I WOULD REALY [sic]. LIKE THIS TO BE PAID AS AN ANUITY.! [sic]
BUT THIS MAY BE INPRACTICAL! [sic]
WITH EXCEPTION TO THE ABOVE.!
IF SHE ACCEPTS THE PROPOSAL! ALL GOODS AND CHATELS [sic] THAT BELONG TO ME!
SHOULD BECOME THE PROPERTY OF MARLENE REVELL FOR HER TO DISPOSE OF AS SHE SEE’S [sic] FIT
GOODS + CHATLES [sic] ARE THOSE ITEMS NOT PART OF THE HOUSE OR LAND BUT THOSE ITEMS FOUND ON THE PROPERTY. AND STORED THERE.
ASSETS.
1.     HOUSE + LAND
AT     12 CUMBERLAND AVE
MODBURY HEIGHTS
2.     BANK ACCOUNTS.
1.    BEYOND BANK. —
2.    ANZ —
PELICAN PLAZA.
3.    COM SUPER ACC —
4.    McQUARRIE [sic] ROLLOVER —
3.     CONTENTS
GOODS + CHATLES [sic]
AT ABOVE ADDRESS
Amber Lee (Ms Lee) instructed Ms McEwin of Treloar & Treloar to make application pursuant to r 55 of the Probate Rules 2015 (“the Probate Rules”) for citations to propound a will to issue addressed to James Maxwell, Marlene Revell and herself as persons who receive a benefit under the document.
The Deputy Registrar of Probates queried the appropriateness of the citation process in circumstances where a person sought to cite themselves to meet the requirements of r 55. Accordingly, the matter was referred to me.
During submissions on 2 May 2016, Ms McEwin informed me she had instructions to withdraw the application for a citation to issue against Ms Lee.
As Ms Lee abandoned her application to cite herself, the issue for determination became whether the Registrar of Probates (“the Registrar”) has the power to issue citations pursuant to r 55 at the request of a person who is a potential beneficiary in the document.
On 2 May 2016, I made an order that citations pursuant to r 55 issue from the office of the Registrar of Probates (“the Registry”) on the application of Ms Lee to James Maxwell and Marlene Revell. These are my reasons.
The application
An affidavit of Ms Lee sworn 20 January 2016 was submitted to the Registry in accordance with r 53(2) and a caveat entered against the estate in compliance with r 53(3). The document was lodged in the Registry as prescribed by r 53(5).
In her affidavit, Ms Lee deposes to the fact that the deceased died a divorced man, that she and her brother James Maxwell, both of whom are adults, are the only persons entitled to share in the estate in the event of intestacy and that the deceased died possessed of real and personal estate in South Australia.
It would appear Ms Lee has the highest priority to claim a grant under r 33 of the Probate Rules (if the document is entitled to proof) and under r 34 if there is an intestacy.
In an affidavit sworn on 27 April 2016, Ms McEwin deposes that she has been informed that the deceased’s household and personal furniture and effects have very little value. Ms McEwin also deposes that Marlene Revell has informed her that she does not wish to receive the deceased’s goods and chattels.
Ms McEwin further deposes that she has been informed that the deceased did not have any formal will and accordingly if the document had not been found then the deceased would have died intestate. The result of the deceased dying intestate would be that Ms Lee and her brother James Maxwell would be the equal beneficiaries and either or both of them could apply to administer the estate.
Ms McEwin states that she advised Ms Lee that the document could potentially be the subject of an application pursuant to s 12(2) of the Wills Act 1936 (SA) (“the Wills Act”) to be declared to be an informal will. Ms McEwin also advised that as the document was titled “DRAFT COPY FOR LAWYER” that an application under s 12(2) may be problematic and that a more convenient and cost effective way of dealing with the document (given that Marlene Revell did not wish to take the goods and chattels) would be to use the citation process provided for in the Probate Rules.
Ms McEwin deposes that she is informed that Ms Lee and Marlene Revell have contacted solicitors local to the deceased’s home and ascertained that the deceased had not given any of those solicitors instructions for the preparation of a will. Further, a search of the deceased’s home and papers did not reveal any correspondence to or from solicitors, nor any invoices from a solicitor reinforcing Ms Lee and Marlene Revell’s view that there was no will prepared by solicitors for the deceased. It is also the view of Ms Lee and Marlene Revell that, given the mental health issues which the deceased had suffered most of his life, he would not have instructed a solicitor in respect of a will.
The citation procedure
As stated in Succession Law in South Australia,[1] a citation is a document issued by the Registrar under seal of the Court which states that there is a matter before the Court brought at the instigation of an interested party (the citor) calling upon the person(s) cited to enter an appearance and to take a step specified in the citation.
[1] DM Haines, Succession Law in South Australia (2003) at 20.5.
The commentary in Tristram & Coote’s Probate Practice,[2] Williams, Mortimer and Sunnucks on Executors, Administrators and Probate,[3] and Succession Law in South Australia,[4] all refer to the citation procedure as a means by which a person may cite the executors and beneficiaries to propound an alleged will which would adversely affect his or her interest under an intestacy, or under an earlier will.
[2]    RR D’Costa, JI Winegarten & T Synak, Tristram & Coote’s Probate Practice (30^th ed, 2006) at 24.31.
[3]    JR Martyn & N Caddick, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (2008) at 32 – 04.
[4]    DM Haines, Succession Law in South Australia (2003) at 20.7.
I have not been referred to, nor have I located, any authority to the effect that a potential beneficiary under an informal testamentary document sought to be removed by way of the citation process cannot make application for citations to issue in respect of the informal testamentary document.
The Court’s jurisdiction to issue citation proceedings is prescribed by s 27 of the Administration and Probate Act 1919 (SA) (the Administration and Probate Act).
Rule 55 provides for the citation procedure by which a person may cite the executors and beneficiaries to propound an alleged will which would adversely affect his or her interest under an intestacy, or under an earlier will.
Rule 55 of the Probate Rules provides:
Citation to propound a will
(1)A citation to propound a will must be directed to the executors named in the will and to all persons interested thereunder, and may be issued at the instance of any citor having an interest contrary to that of the executors or such other persons.
(2)If the time limited for appearance has expired, the citor may—
(a) where no person has entered an appearance— apply to the Registrar by summons in Form 34 supported by an affidavit in Form 11 of service search and non-appearance for an order for a grant as if the will were invalid.
Provided that if citations have been directed to more than one person and one or more but not all of the citees have entered an appearance, the summons is to name all of the citees as defendants and be served on all of them;
(b) where no person who has entered an appearance proceeds with reasonable diligence to propound the will— apply to the Registrar by summons in Form 34 (which must be served on every person cited who has entered an appearance) for such an order as is mentioned in paragraph (a).
Rule 55 obliges the citation of all persons interested under the will sought to be removed by the citation process. Ms Lee is such a person. In the circumstances of this matter, and noting Ms Lee has withdrawn her application to cite herself, pursuant to r 5(8) I dispense with the requirement that Ms Lee be cited.
Ms McEwin submitted that the Registry has issued citations in the past where the person seeking the citations to be issued was also a person affected by the document intended to be removed by virtue of the citation process.
In the matter of Anthony Charles Dott (Deceased), an informal document of the deceased purported to leave an estate equally between the citee, and also the person making the application. The Court issued citations even though the person making the application had an interest in the informal testamentary document being removed by way of a citation process.
In In the Estate of Charles William Leonard Dare (Deceased),[5] David Leonard Dare made application seeking a citation to issue to Charles Peter Dare. David Leonard Dare and Charles Peter Dare were named as equal residuary beneficiaries under a will dated 19 June 2002 and also an informal codicil dated 18 June 2000 which the citation was purporting to remove. As the Registrar had concerns about his power to issue a citation in respect of the informal codicil, he referred the matter to Gray J for advice and direction. Justice Gray noted that the term “will” includes a codicil under s 3(1) of the Wills Act and s 4 of the Administration and Probate Act.His Honour further noted that while “will” was not defined under the Probate Rules 2004 (SA) (“the 2004 Probate Rules”), r 3.01(i) provided:
words and expressions defined in the Administration and Probate Act, 1919 and the Wills Act, 1936 shall have the same meanings as are assigned to them in those Acts;
[5] [2015] SASC 153.
His Honour determined the effect of the legislation is that no distinction is to be drawn between a will and codicil for the purpose of the issuing of citations pursuant to r 55 of the 2004 Probate Rules and that r 55 of the 2004 Probate Rules applies to wills and codicils. In ordering that the Registrar had the power to issue citations in respect of both the 2002 will and the codicil, His Honour said:[6]
The purpose of the issue of citations is to prevent the expense and inconvenience of the need for solemn form proceedings each time there is a dispute over the validity of purported testamentary dispositions subsequent to an original will. The procedure is particularly useful in proceedings such as the present, where there is a handwritten, unattested, photocopied codicil with undated deletions and no reference to the original will.
[6] [2015] SASC 153 at [17].
Bearing in mind that the matter before Justice Gray concerned a will and an informal codicil, His Honour’s observations regarding the purpose of the citation procedure may have application to the circumstances of this matter. Ms Lee is a person whose interests under intestacy are affected by the document. On intestacy she and her brother James Maxwell would be the equal beneficiaries and either or both of them could apply to administer the estate. Marlene Revell has indicated she has no interest in the goods and chattels referred to in the document. In the particular circumstances of this matter, which include the fact that Ms Lee is a potential beneficiary under the document, the citation procedure is a step towards the due administration of the deceased’s estate without the expense and inconvenience of solemn form proceedings. If no appearance is entered by the citees, Ms Lee or her brother or both of them may then apply for a grant to administer the estate on intestacy.
Accordingly, as this is matter that turns on its own facts and it appearing the success of an application under r 64 is remote and the expense of any such application is unwarranted, I ordered that the Registrar has in the particular circumstances of this case the power to issue citations at the request of Ms Lee.
I make a further order pursuant to r 5(8) dispensing with the requirement of r 55(1) that Ms Lee be cited.