In the Estate of WILDEN (DECEASED) - [2015] SASC 9

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of WILDEN (DECEASED)
[2015] SASC 9
Judgment of The Honourable Justice Gray
30 January 2015
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - TESTAMENTARY CHARACTER - PARTICULAR DOCUMENTS
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - MEANING OF “DOCUMENT”
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - EXECUTORS ACCORDING TO TENOR - PERSONS CHARGED WITH EXECUTORIAL DUTIES
Application for a grant of probate. The deceased left two items of a testamentary nature, a DVD containing a video recording of the deceased and a typed document signed by the deceased but not witnessed. The applicant applied for orders that both documents be admitted to probate under section 12(2) of the Wills Act 1936 (SA) as the will of the deceased.
Whether the typed document should be admitted to probate pursuant to section 12(2) of the Wills Act. Whether the DVD is a document for the purposes of section 12(2). Whether the DVD should be admitted to probate pursuant to section 12(2). Whether the applicant is appointed as executor according to the tenor of the documents.
Held (granting probate):
1. The DVD is a document for the purposes of section 12(2) of the Wills Act.
2. It is appropriate to order that both documents be admitted to probate as the will of the deceased pursuant to section 12(2) of the Wills Act.
3. The applicant is appointed as executor by the tenor.
Probate Rules 2004 (SA) r 64; Wills Act 1936 (SA) s 12(2); Acts Interpretation Act 1915 (SA) s 4(1), referred to.
In the Estate of Torr (2005) 91 SASR 17; Mellino v Wnuk [2013] QSC 336; Cassie v Koumans; Estate of Cassie [2007] NSWSC 481; In the Estate of Graham, deceased (1978) 20 SASR 198; In the Estate of Davis (deceased) [2011] SASC 143; Tsagouris v Bellairs (2010) 5 ASTLR 403, considered.

In the Estate of WILDEN (DECEASED)
[2015] SASC 9
Testamentary Causes Jurisdiction
GRAY J.

This is an application for a grant of probate.
Wayne Gregory Wilden, the deceased, died on 22 January 2014. Sandra Joy Carpenter, the applicant, is the deceased’s sister. The deceased did not leave a will executed in accordance with section 8 of the Wills Act 1936 (SA). Instead, the deceased left two items, a DVD and a typed document dated 16 February 2011 and signed by the deceased which were found, after death, located in a cabinet at the deceased’s home. The applicant has applied for orders that those documents be admitted to probate as the will of the deceased.
The DVD contains video footage of the deceased which appears to have been made on 11 May 2005. The applicant’s solicitors prepared a transcript of the words spoken by the deceased as recorded on the DVD. The transcript, inter alia, provides:
…this is ah somewhat of an official last will and testament as I don’t have a written document anywhere at this stage. This is just um a fail safe until such time as I do get something like that done. Um. Um. My will is that everything that I own goes to my younger sister Sandra Carpenter and her husband Michael Carpenter and my two nephews Lachlan and Jacob. Um I don’t have a wife or any children or anything like that at this stage so if anything should happen to me now or in the next few years or whatever um this is just so there is some kind of an official record of how things should be distributed. I don’t want the rest of my family ie my other brothers and sisters to get anything… so um sell all my stuff, um um thousands of dollars worth of audio equipment um that should easily be sold off to go see my employer [name] he will probably buy it all off you…Um yeh keep what you want Sandra, sell what you want, enjoy, keep the money…
The deceased also provides directions as to his burial.
The document in typed form and signed by the deceased dated 16 February 2011 does not conform to the requirements of section 8 of the Wills Act as it does not bear the signature of any witness. The document provides:
LAST WILL AND TESTEMENT [sic] WAYNE GREGORY WILDEN.
THIS IS AN OFFICIAL LAST WILL AND TESTEMENT [sic] FOR MYSELF, WAYNE WILDEN. THIS IS TO ADD TO MY VIDEO OF MY LAST WILL AND TESTEMENT [sic] RECORDED ON 11.5.05.
I WOULD LIKE TO OFFICIALLY RECORD THAT MY WILL IS THAT EVERYTHING I OWN GOES TO MY YOUNGER SISTER SANDRA CARPENTER AND HER HUSBAND MICHAEL CARPENTER AND MY TWO NEPHEWS [J] and [S].
THIS INCLUDES MY PROPERTY AT [address], ALL POSSESSIONS, ALL MONEY IN BANK ACCOUNTS AND ALL SUPERANNUATION PAYMENTS AS MY NEXT OF KIN.
I DO NOT WANT MY OTHER BROTHERS AND SISTERS OR THEIR FAMILIES TO RECEIVE ANYTHING.
[Signed.]
[Emphasis added.]
The applicant seeks orders for the admission to probate pursuant to section 12(2) of the Wills Act of the typed document and the written transcript of the words recorded in the DVD. The applicant contends that the deceased intended that the typed document and the DVD would jointly comprise his last will.
The summons has been referred to me by the Registrar of Probates pursuant to rule 64 of the Probate Rules 2004 (SA), which relevantly provides:
64.01Unless 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 the Form No. 33 (1) and must be supported by an affidavit setting out the facts upon which the applicant relies together with the written consents to the application of all persons not under disability who may be prejudiced by the admission of the document to proof.
64.02The Registrar may dispose of an application under Rule 64.01 if the Registrar is satisfied that all persons who may be prejudiced by the admission of the document to proof are sui juris 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.
…
64.04 Where -
(a) any person who may be prejudiced by the order sought under this Rule is not sui juris 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 died a bachelor without issue. His parents predeceased him. A draft statement of assets and liabilities that has been filed indicates that the deceased’s estate has a net value of $197,578.32. The deceased is survived by nine siblings, who would be the persons entitled to an interest in the deceased’s estate if it were administered in accordance with the laws of intestacy. Each sibling, other than the applicant, has provided a written consent to the present application as required by rule 64.01 of the Probate Rules.
Section 12(2) of the Wills Act 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.
Four questions arise on the application: whether the typed document should be admitted to probate pursuant to section 12(2) of the Wills Act; whether the DVD is a document for the purposes of section 12(2); whether the DVD should be admitted to probate pursuant to that section; and, if so, whether the applicant is appointed as executor according to the tenor of the documents.
The word “document” is not defined in the Wills Act. In In the Estate of Torr,[1] Besanko J held that photographs could be admitted to probate as documents under section 12(2). In Mellino v Wnuk,[2] Dalton J was satisfied that a DVD was a document for the purposes of the Succession Act 1981 (Qld). In Cassie v Koumans; Estate of Cassie,[3] Windeyer J held that a video tape constituted a document for the purposes of the New South Wales wills legislation. His Honour stated:[4]
For such a claim to succeed, it is necessary to show that there is a document which embodies the testamentary intentions of the deceased and which the deceased intended to operate, in this case, as an amendment to her 1977 will. The question then is whether or not the document does so operate. It has been decided in an earlier case of Treacey & Ors v Edwards; Estate of Edwards (2000) 49 NSWLR 739 that for the purposes of section 18A the definition of “document” under the Interpretation Act 1987 is relevant. In those circumstances it was held in that case that an audio cassette did constitute a document. I should follow that decision and consider it correct. I must say I do not consider this desirable or intended as it can lead to real uncertainty, but that is irrelevant to the consideration of this matter.
[1]    In the Estate of Torr (2005) 91 SASR 17.
[2]    Mellino v Wnuk [2013] QSC 336.
[3]    Cassie v Koumans; Estate of Cassie [2007] NSWSC 481.
[4]    Cassie v Koumans; Estate of Cassie [2007] NSWSC 481, [9].
The decision in In the Estate of Torr,[5] predated the introduction of a statutory definition of “document” in the Acts Interpretation Act 1915 (SA). Section 4(1) of that Act relevantly provides:
In this Act and in every other Act or statutory instrument, unless the contrary intention appears—
…
document includes—
(a)     any paper or other material on which there is writing; and
(b)     any map, plan, drawing, graph or photograph; and
(c)any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and
(d)any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;
[5]    In the Estate of Kathleen Torr (2005) 91 SASR 17.
There is no contrary intention in the Wills Act that would prevent the general definition of the word document in the Acts Interpretation Act from having application. In my opinion, the DVD is a document for the purposes of section 12(2) of the Wills Act. It is an article or material from which sounds and images are capable of being reproduced with the aid of another article or device. I consider that a construction of the word document in section 12(2) that extends the range of possible documents constituting wills to wills made in non-traditional forms or using non-traditional media, including by a recording in the form of a DVD, is consistent with the liberal construction that is to be accorded to remedial legislation, such as section 12(2).[6]
[6] In the Estate of Graham, deceased (1978) 20 SASR 198, 202; In the Estate of Davis (deceased) [2011] SASC 143, [22].
Testamentary intentions are an expression of what a person intends to happen to his or her property upon death. Both the 16 February 2011 document and the DVD express testamentary intentions. Their content makes it clear that the deceased intended that both documents were to constitute his will and together govern the disposition of his estate after his death. I am satisfied that both items are documents that express the testamentary intentions of the deceased and that the deceased intended these documents to together constitute his will. I am satisfied that it is appropriate to order that those documents be admitted to probate as the will of the deceased pursuant to section 12(2) of the Wills Act.
As earlier mentioned, the next question that arises is whether the will contains an appointment of the applicant as executor according to the tenor. There is no express appointment of an executor in either the DVD recording or the typed document. However, the applicant contends that there is sufficient evidence in those documents to indicate that the deceased intended for the applicant to act as his executor.
In Tristram & Coote’s Probate Practice, it is stated:[7]
An executor according to the tenor of a will is a person, not expressly nominated an executor, who is directed by the will to perform one or more of the duties of an executor.
[Footnote omitted.]
[7] JI Winegarten, R D’Costa and T Synak, Tristram and Coote’s Probate Practice (LexisNexis Butterworths, 30^th ed, 2006) [4.19].
In Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, it is said:[8]
An executor appointed by implication is usually called executor according to the tenor; for although no executor is expressly nominated in the will by the word “executor”, yet, if by any word of circumlocution the testator recommends or commits to one or more the charge and office, or the rights which appertain to an executor, it amounts to as much as the ordaining or constituting him or them to be executors. Thus an executor may be appointed by necessary implication.
[Footnote omitted.]
[8] EV Williams, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Sweet & Maxwell, 19^th ed, 2008) [3.13].
In Tsagouris v Bellairs,[9] I summarised the authorities relating to whether a will contains an appointment of an executor by the tenor. I refer in particular to paragraphs 28 to 31 of that judgment. For present purposes, it is convenient to include the following extract:[10]
… the appointment of an executor may be express or implied; whether it is implied will depend on a construction of the whole will and whether a conclusion is reached that the named persons will carry out the functions normally associated with the office of executor; upon reaching such a conclusion, the persons named are said to be called the executor according to tenor; a mere direction to persons to pay debts, funeral and other testamentary expenses can appoint such persons as executors according to tenor; and, in order for named persons to constitute executors according to tenor, a reasonable construction of the will should disclose an intention on the part of the testator that the named persons should collect the assets of the testator, pay the debts and funeral expense and discharge the legacies contained in the will.
[9] Tsagouris v Bellairs (2010) 5 ASTLR 403.
[10] Tsagouris v Bellairs (2010) 5 ASTLR 403, [31].
The question of whether there is an appointment of an executor according to the tenor is a matter of impression and inference to be drawn from the words used by the testator.
In the circumstances of this proceeding, the words used by the testator are to be understood by reference to the consideration that the testator was not legally aided in preparing his will, and therefore was unlikely to have been conversant with the requirements for the making of a valid will and of the matters of prescription that ought be included in his will. In such circumstances, the Court may take a more liberal approach to drawing an inference that an executor is appointed by the tenor of the document than in the case of a document which has been drawn by a person more conversant with will drafting.
I am satisfied that the words said by the deceased in the DVD recording carry with them the necessary implication that the deceased intended for the applicant to carry out his testamentary wishes. In particular, I have reached this conclusion having regard to the following words:
so um sell all my stuff, um um thousands of dollars worth of audio equipment um that should easily be sold off to go see my employer [name] he will probably buy it all off you…Um yeh keep what you want Sandra, sell what you want, enjoy, keep the money…
The deceased’s instruction is not directed to all four beneficiaries, but to the applicant only. The implication to be drawn from the language used by the deceased is that he intended the applicant to undertake the task of determining whether to realise any particular asset by sale or to keep or retain the asset. The task of realising the estate of a testator is one which is normally undertaken by an executor. I am satisfied that by the above extracted words, the deceased committed to the applicant a right which appertains to the office of executor. I consider that there is an appointment of executor by the tenor.
For the above reasons, I order that the document dated 16 February 2011, being the exhibit marked “A” referred to in the affidavit of Sandra Joy Carpenter sworn on 14 August 2014, and the transcript of the DVD recording, being the exhibit marked “B” referred to in the said affidavit of Sandra Joy Carpenter, be admitted to probate as the last will of the deceased and that probate of the same be granted to Sandra Joy Carpenter. I further order that the costs of and incidental to this application be paid out of the estate of the deceased.