In the Estate of WINTER (DECEASED)

Case •

[2012] SASC 16

•

9 February 2012

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

In the Estate of WINTER (DECEASED)

[2012] SASC 16

Reasons for Decision of The Honourable Justice Gray

9 February 2012

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA - OTHER CASES

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - OTHER WILLS, CODICILS OR WRITINGS

Referral from Registrar of Probates regarding which testamentary documents of the deceased should be admitted to probate - the deceased executed a formal will in 1999, bequeathing the residuary of her estate equally to her two nephews, her niece and the Holy Cross Lutheran Church Murray Bridge Inc. - a first, formal codicil was executed in 2002, not altering the residuary, but providing for a specific bequest of a dinner set and jewellery to the niece - a second, formal codicil was executed in 2006, revoking the residuary clause of the will and providing for the residue to be distributed equally to the two nephews and niece only - a third, informal document was executed in 2010, on its face bequeathing a cash sum to the Lutheran Community Care Services - where the 2010 document expressed to be an addendum to the last will of the deceased dated 5 December 2002, in circumstances where the last will of the deceased was dated 20 July 1999 and the first codicil dated 5 December 2002 - whether the 2010 document ought to be admitted to probate as a codicil to the will of the deceased pursuant to section 12(2) of the Wills Act 1936 (SA) as an informal codicil - whether the 2010 document impliedly revokes the second codicil, executed in 2006.

Consideration of principles regarding implied revocation of earlier testamentary documents.

Held: Document propounded contains testamentary intentions of the deceased - the deceased intended the document to constitute a codicil to her will - there is nothing in the document propounded, the surrounding circumstances or other evidence before the Court to give rise to an implication that the deceased intended to revoke the second codicil.

Probate Rules 2004 (SA) r 77; Wills Act 1936 (SA) s 3, s 8, s 12(2), s 12(3) and s 22, referred to.
In the Estate of Gall [2008] SASC 349; Re Estate of Gholam (decd) [2011] SASC 125; Re Estate of Davis (decd) [2011] SASC 143; Re Hennekam (2009) 104 SASR 289; Tsagouris v Bellairs [2010] SASC 147; In the Estate of Stewart Arthur Handfield [2010] SASC 22; In the Estate of Schwarzkopff (2006) 94 SASR 465; In the Estate of Torr (2005) 91 SASR 17; In the Estate of Williams (1984) 36 SASR 423; In the Estate of Kroemer (1988) 143 LSJS 160; In the Estate of EC Zimmerman (Unreported, Supreme Court of South Australia, Legoe J, 23 December 1992); In the Estate of Taylor deceased (1994) 175 LSJS 430; In the Estate of Gerard deceased (2007) 251 LSJS 176; Estate of Collins [2000] NSWSC 407; Re Resch’s Will Trusts [1969] 1 AC 514; In the Goods of Petchell (1874) 3 P & D 153; Dempsey v Lawson (1877) 2 PD 98; Re Buckley, deceased [1952] VLR 107; Payten v Perpetual Trustee Co Ltd [2005] NSWSC 345; Green v Tribe (1878) 9 Ch D 231; Upfill v Marshall (1843) 3 Curt 636; McLeod v McNab [1891] AC 471; Greenough v Martin (1824) 2 Add 239; Smidmore v Smidmore (1905) 3 CLR 344; Nicol v Chant (1909) 7 CLR 569; Jenkins v Stewart (1906) 3 CLR 799; Re Jackson (decd) [1950] SASR 268; Re Champion, Dudley v Champion [1893] 1 Ch 101; Re Fraser, Lowther v Fraser [1904] 1 Ch 726; Smith v Cunningham (1823) 1 Add 448, considered.

In the Estate of WINTER (DECEASED)
[2012] SASC 16

Testamentary Causes Jurisdiction

GRAY J:

Introduction

  1. This is a referral from the Registrar of Probates pursuant to rule 77 of the Probate Rules 2004 (SA), regarding which testamentary documents of the deceased should be admitted to probate. 

    Factual Background

  2. The deceased, Joyce Adela Winter, died a spinster on 1 July 2010, aged 85 years.  She died at a Resthaven facility in Murray Bridge, where she had moved to from her premises at Charles Street, Murray Bridge.  The estate is modest, the net value being approximately $200,000.00. 

  3. The deceased executed a formal will[1] on 20 July 1999.  That will was prepared by solicitors.  The will appoints as executors two of the deceased’s nephews, the applicants, Brenton Arthur Watts and Stephen John Watts.  The will bequeaths the residuary of the deceased’s estate equally to those two nephews, to a niece of the deceased, Christine Anne Watts, and to the Holy Cross Lutheran Church Murray Bridge Inc. 

    [1] That is, a will meeting the formal requirements of execution contained in section 8 of the Wills Act 1936 (SA).

  4. On 5 December 2002, the deceased executed a codicil to her will, confirming the will.   The codicil was prepared by the same solicitors who prepared the 1999 will.  The codicil does not alter the bequest regarding the residue of the estate, but provides for a specific bequest of the deceased’s dinner set and jewellery to her niece, Christine. 

  5. On 12 October 2006, the deceased executed a second codicil to her 1999 will, confirming the will, but not making any reference to the 2002 codicil.  The codicil was again prepared by solicitors.  That codicil revokes clause 4 of the 1999 will, which clause bequeathed the residue of the estate to Brenton, Stephen, Christine and the Holy Cross Lutheran Church Murray Bridge Inc.  The codicil provides for the residue of the estate to be divided equally between Brenton, Stephen and Christine only. 

  6. Both the 2002 and 2006 codicils and the 1999 will are formal testamentary documents, executed in accordance with the formalities required by section 8 of the Wills Act 1936 (SA).

  7. By affidavit sworn on 10 September 2010, Brenton deposes to having visited the deceased at Resthaven at Murray Bridge on 26 February 2010, on which occasion the deceased expressed to Brenton the wish to leave the money in her Lutheran Laypersons League passbook account to a community service organisation conducted by the Lutheran Church.  The balance of the account at that time was $5,577.10.  Brenton deposed to having suggested to the deceased that she arrange for this to be done through her solicitors, to which she expressed a desire not to do so due to the expense involved.  Brenton offered to draft a document which he called an “addendum” to the will, in order to give effect to the wish set out above.  On that occasion, the deceased indicated that she would be happy to sign such a document.  Brenton prepared the document which is relevantly in the following terms:

    To whom it may Concern

    This document is an addendum to my last will and testament of me, JOYCE ADELA WINTER…which bears the date of the 5th day December, Two thousand and Two. 

    1.  I Direct that my said Will be varied by inserting after paragraph 2A thereof and substituting thereafter the following paragraph:-

    “2B: I BEQUEATH the sum of FIVE THOUSAND, FIVE HUNDRED and SEVENTY SEVEN DOLLARS and TEN CENTS ($5,577.10) to the LUTHERAN COMMUNITY CARE SERVICES, 309 Prospect Road, BLAIR ATHOL, SOUTH AUSTRALIA 5082, a DIVISION of the LUTHERAN LAYPEOPLES LEAGUE”.

    My account Number for the bequeath request is…

    Depositor’s Bank Account Book enclosed

    2.  IN ALL other respects I confirm my said Will

    [Emphasis in original.]

  8. The document was signed by the deceased in the presence of Pastor John Thiel of the Lutheran Church and Brenton.  Brenton did not sign the document.  Brenton had arranged with Mr Thiel to attend on the deceased on 4 March 2010 at Resthaven.  Mr Thiel deposes to attending on that occasion, where the deceased indicated to him her wish to make a bequest to the Lutheran Community Care Service and that she wanted to sign the document which had been prepared by Brenton in order to give effect to that wish.  Mr Thiel deposes to the deceased having signed the document in the presence of both Brenton and himself, and that he signed the document in the presence of the deceased. 

  9. Following the death of the deceased, the 1999 will and the 2002 and 2006 codicils were located in the safe custody facility of the deceased’s solicitors.  No other testamentary documents were found following searches. 

  10. Christine has consented to the application and the Holy Cross Lutheran Church Murray Bridge Inc has been served, but has not entered an appearance.

    The Application

  11. Brenton and Stephen sought, pursuant to section 12(2) of the Wills Act, by ex parte summons, an order admitting to probate the document prepared by Brenton and signed by the deceased on 4 March 2010, as a third codicil to the deceased’s 1999 will. 

  12. Section 12(2) of the Wills Act is a dispensing provision allowing for the court to dispense with the formal requirements for a valid will demanded by section 8, where the court is satisfied that despite non-compliance with section 8 of the Act, the document propounded expresses the testamentary intentions of the deceased person and that the deceased person intended the document to constitute his or her will or codicil to his or her will. In this instance, the 4 March 2010 document offends section 8 of the Act insofar as there is only one attesting witness. Section 12(2) may be called in aid to admit the 2010 document to proof given the defect of the absence of a second witness.[2]

    [2]    See In the Estate of Gall [2008] SASC 349, [18].

  13. The issues arising for consideration on the application may be stated as follows.  Whether the document propounded expresses the testamentary intentions of the deceased and whether she intended the document to constitute a codicil to her will.  Whether the document, by implication, revokes the 2006 codicil.  Finally, the effect, if any, on the first two issues of the fact that the document propounded is expressed to be an addendum to the last will of the deceased bearing the date 5 December 2002, in circumstances where the last will of the deceased was dated 20 July 1999 and the first codicil dated 5 December 2002. 

  14. Following the hearing, I made orders that the 4 March 2010 document be admitted to probate as the third codicil of the 1999 will of the deceased and that probate be granted to Brenton and Stephen of the 1999 will and all three codicils. My reasons for making these orders follow.  For convenience, except where the context demands otherwise, I shall refer to the 5 December 2002 codicil, the 12 October 2006 codicil and the 10 March 2010 document as the first, second and third codicils respectively. 

    Section 12(2) of the Wills Act

  15. As mentioned, section 12(2) is a dispensing power, designed to deal with non-compliance with section 8 of the Wills Act, which section requires that: 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.  Here, the shortcoming is that Mr Thiel is the only attesting witness. 

  16. A common reason for the making of section 12(2) applications is that the will or codicil was signed by the deceased in the presence of only one witness and or in the alternative that only one witness attested and signed the will.[3] The beneficial nature of section 12(2) has now long been recognised.[4] The very purpose of section 12(2) is to overcome formal mistakes such as the failure of one witness to attest to the document, provided that the criteria contained in section 12(2) are met. Section 12 relevantly provides:

    [3]    See Re Estate of Gholam (decd) [2011] SASC 125, further citing examples: In Re Hallam, Deceased (1991) 162 LSJS 429, 430; In the Estate of Gall (2008) 260 LSJS 12; In the Estate of Maslen [2009] SASC 304; see also, In the Estate of Slavinskyj (deceased) (1988) 53 SASR 221, 232-234 where the testator signed the will in the presence of two witnesses, but only one of the witnesses signed the will; see further, In the Estate of Taylor (Deceased) (1994) 175 LSJS 430 where probate of a codicil to the deceased’s will was granted even though the codicil had not been signed in the presence of two witnesses nor had it been attested by two witnesses.

    [4]    See Re Estate of Davis(decd) [2011] SASC 143; Re Hennekam (2009) 104 SASR 289, [27], [32]. See also Tsagouris v Bellairs [2010] SASC 147; In the Estate of Stewart Arthur Handfield [2010] SASC 22, [14]; In the Estate of Gall [2008] SASC 349, [14]-[15]; In the Estate of Schwarzkopff (2006) 94 SASR 465, [30]-31]; In the Estate of Torr (2005) 91 SASR 17, [32]; In the Estate of Williams (1984) 36 SASR 423.

    (1)A will is valid if executed in accordance with this Act, notwithstanding that the will is not otherwise published.

    (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.

    …

  17. A codicil is capable of being admitted to proof as a will under section 12(2).[5] I am satisfied that the propounded document contains testamentary intentions of the deceased. This much is clear from the terms of the document and is consistent with the other evidence before the Court. Further, the wording of the document, the instructions given for the preparation of the document and the statements made to Mr Thiel by the deceased at the time of execution demonstrate that the deceased intended the document to constitute a codicil to her will. Subject to the absence of document attesting witness, all other formalities are met. I have no hesitation in reaching the state of satisfaction required by section 12(2).

    [5]    Re Estate of Davis(decd) [2011] SASC 143, [24]; In the Estate of Kroemer (1988) 143 LSJS 160; In the Estate of EC Zimmerman (Unreported, Supreme Court of South Australia, Legoe J, 23 December 1992); In the Estate of Taylor deceased (1994) 175 LSJS 430; In the Estate of Gerard deceased (2007) 251 LSJS 176; In the Estate of Gall [2008] SASC 349, [17]. See also section 3 of the Wills Act 1936 (SA).

    Does the third codicil impliedly revoke the second codicil?

  18. Implied revocation may arise where the testator has executed two testamentary documents and the later document does not contain an express revocation clause.  It then becomes a question of construction to determine whether the later document has impliedly revoked the earlier document, in whole or in part.[6]

    [6]    See In the Estate of Gall (deceased) [2008] SASC 349, [24].

  19. Section 22 of the Wills Act deals with revocation of wills:

    Subject to section 12(3), no will or codicil or any part of a will or codicil is revoked otherwise than—

    (a)     by marriage or termination of marriage as provided by this Act; or

    (b)     by another will or codicil executed in the manner required by this Act; or

    (c)     by some writing declaring an intention to revoke the will or codicil or the part of the will or codicil and executed in the manner in which a will is required by this Act to be executed; or

    (d)     by the burning, tearing or otherwise destroying the will or codicil or the part of the will or codicil by the testator or by some person in the testator's presence and by the testator's direction with the intention of revoking it.

    [Emphasis added.]

  20. Section 12(3) of the Wills Act provides:

    If the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses an intention by a deceased person to revoke a document that might otherwise have been admitted to probate as a will of the deceased person, that document is not to be admitted to probate as a will of the deceased person.

  21. The language of both sections 22 and 12(3) of the Wills Act make it clear that a testator must have an intention to revoke a will.  This is known as animus revocandi.  The intention may be express or implied.  An example of an express revocation is a clause to that effect in a subsequent will.  In the absence of an express revocation clause, as mentioned above, it will be a question of construction as to whether a later document impliedly revokes an earlier document, by, for example, containing clauses inconsistent with a previous will. 

  22. In Re Estate of Davis (decd),[7] I had recent occasion to consider the authorities and commentary relevant to implied revocation.  It is convenient to repeat some of that discussion here.  When considering two documents testamentary in nature and the question of the effect of the later document on the former, Young J in Estate of Collins, drawing on a number of authorities, made the following observations:[8] 

    Generally, where a later will deals with the whole of the testator’s property, impliedly all prior testamentary instruments are revoked: Cadell v Wilcocks [1898] P 21. Here, the informal document deals with the deceased’s entire estate.

    However, where a later testamentary instrument which does not contain a revocation clause is partially or totally inconsistent with a former testamentary instrument, then the former will is considered to be revoked in whole or in part.  The mere fact of making a subsequent testamentary document does not work a total revocation of the prior one unless expressly stated or the two are incapable of standing together: Lemage v Goodban (1865) 1 P & D 57; Re Gilbert (1905) 22 WN (NSW) 186. If possible, the court will attempt to construe wills not containing revocation clauses as standing together in which case the later will prevail over the earlier one to the extent of any inconsistency: In the Goods of Budd (1862) 3 Sw & Tr 196; (1862) 164 ER 1249; In the Goods of Petchell (1874) 3 P & D 153; Re Christie (1883) 9 VLR (IP & M) 46; Re Resch’s Will Trusts [1969] 1 AC 514. Generally, a prior testamentary instrument will be disturbed only to the extent needed to give effect to the later inconsistent document.

    The question is really one question of the testator’s intention - can it be discerned whether the testator intended the informal document to completely revoke his former will, or merely to amend (partially revoke) it?

    [7]    Re Estate of Davis(decd) [2011] SASC 143, [28]-[34].

    [8]    Estate of Collins [2000] NSWSC 407, [5]-[7].

  23. The observations in In Re Resch’s Trusts in the Privy Council, are pertinent:[9]

    …As a general principle, their Lordships need do no more than restate their adherence to the "very clear and strong rule" that it is incumbent upon those who contend that a gift in one testamentary instrument is not to take effect by reason of some subsequent instrument to show that the intention to revoke is as clear and free from doubt as the original intention to give (see  Follett v. Pettman per Kay J. referring to the opinion of Tindal C.J. on behalf of the judges in  Doe d. Hearle v. Hicks….

    [9]    Re Resch’s Will Trusts [1969] 1 AC 514, 547.

  24. In In the Goods of Petchell,[10] Sir James Hannen determined that the two documents propounded ought to be admitted to probate as together containing the will of the deceased.  In reaching this conclusion, he observed:[11]

    …Where there are two instruments, the later of which in date, purporting to be the last will, does not contain words of absolute revocation, it is a question of construction whether or not it revokes the former. Of course if it be wholly inconsistent with the earlier will there is no difficulty, but where some of the provisions of the former may be made to stand with those of the latter questions of difficulty arise. On this matter there has been a difference in the tendency of opinion amongst the civilians and other jurists who have had to consider it. I must say that if I could have dealt with the question uninfluenced by the later decisions, I should have been disposed to adopt the views of Sir H. J. Fust in Plenty v. West, that in order that two wills should be entitled to be admitted to probate there must be something in the second indicating an intention on the part of the testator that the two instruments should be construed conjointly. But the later decisions are otherwise, and the principle of them must be taken to be correctly expressed in Williams' Exors. 7th ed. 162. " The mere fact of making a subsequent testamentary paper does not work a total revocation of a prior one, unless the latter expressly or in effect revoke the former or the two be incapable of standing together; for though it be a maxim, as Swinburne says above, that no man can die with two testaments, yet any number of instruments, whatever be their relative date, or in whatever form they may be, so as they be all clearly testamentary, may be admitted to probate, as together containing the last will of the deceased. And if a subsequent testamentary paper be partly inconsistent with one of an earlier date, then such latter instrument will revoke the former as to those parts only where they are inconsistent." The law thus laid down was acted upon by my predecessor, Lord Penzance, in Lemage v. Goodban….

    [Emphasis added.]

    [10]   In the Goods of Petchell (1874) 3 P & D 153.

    [11]   In the Goods of Petchell (1874) 3 P & D 153, 156.

  1. Later, Sir James Hannen had cause again to consider these principles, and in Dempsey v Lawson, observed:[12]

    …I assent to the principle expressed in the passage referred to, and I have had occasion to act upon it in the case of In the Goods of Petchell, but it becomes necessary on the present occasion to consider more minutely the nature and extent of the inconsistency of a later testamentary instrument, which will have the effect of revoking an earlier will. In this investigation the Court is necessarily called upon to put a construction upon the language of the instrument in question. The intention of the testator conveyed in that language has to be ascertained by reference to the facts in connection with which it was used; but in seeking for the true meaning of the testator, the substance and not the form of the instrument must be regarded. If it can be collected from the words of the testator in the later instrument that it was his intention to dispose of his property in a different manner to that in which he disposed of it by the earlier document, the earlier document will be revoked, and this, although in some particulars the later will does not completely cover the whole subject-matter of the earlier. …

    Sir James Hannen went on to make the following observations, which I consider apposite:[13]

    …Even if the second instrument contains a general revocatory clause, that is not conclusive, and the Court will, notwithstanding, consider whether it was the intention of the testator to revoke a bequest contained in a previous will:  Denny v. Barton. On the other hand, though there be no express revocatory clause, the question is whether the intention of the testator, to be collected from the instrument, was that the dispositions of the earlier will should remain in whole or in part operative. Dr. Lushington, in giving the judgment of the Privy Council in Henfrey v. Henfrey, says, "the question is total revocation or partial revocation." And on this question Sir J. Nicoll says, in Methuen v. Methuen,"In the Court of Probate the whole question is one of intention; the animus testandi and the animus revocandi are completely open to investigation in this Court." In the present case I am of opinion that the intention of the testatrix, to be collected from the dispositions of the two wills, is that the second should stand alone, and be in complete substitution for the first, and that it contains all the testamentary dispositions which she intended at that time to constitute her last will and testament, and consequently that it does by implication revoke the whole of the will of 1858….

    [Emphasis added.]

    [12]   Dempsey v Lawson (1877) 2 PD 98, 105-107.

    [13]   Dempsey v Lawson (1877) 2 PD 98, 107.

  2. In In the Estate of Gall[14] the deceased executed a formal will in 2004, and in 2006, executed a codicil also complying with the required formalities of the Wills Act.  In 2007, the deceased executed a second codicil.  However, it was not dated and was attested to by only one witness.  The first codicil provided for legacies to the deceased’s two grandchildren.  The second codicil, in addition to the legacies to the two grandchildren, provided for a legacy of $50,000.00 to another person.  An application was brought seeking, inter alia, a declaration that the later codicil be taken to have impliedly revoked the earlier codicil.  After considering the decision of Sholl J in Re Buckley, deceased,[15] I observed:[16]

    In my view, the reasoning in Re Buckley is apposite to the present case.  In particular, the fact that, save for clause 4C, the wording of the 2006 and 2007 codicils is identical, both confirm the will dated 11 August 2004 and both were drawn by the same firm of solicitors supports a conclusion that the 2007 codicil impliedly revoked the 2006 codicil.

    Since Re Buckley, cases have suggested that in circumstances where the question of implied revocation may arise, the central issue is one of construing the testator’s intention, and that oral and extrinsic evidence is admissible for this purpose.[17]

    In the present case, the Court has the advantage of extrinsic affidavit evidence from the solicitor who witnessed the 2006 codicil and drew up the 2007 codicil.  In her affidavit of 28 May 2008, the solicitor refers to taking instructions for a “new codicil”.  Annexed as an exhibit to the solicitor’s further affidavit of 3 April 2008 is a letter from the solicitor to the deceased which refers to a telephone attendance “in regards to changes to your Codicil” and which encloses two versions of the codicil (one of which was the 2007 codicil) for the deceased’s perusal.  Although the solicitor does not directly depose to taking instructions to draw up a codicil which would revoke or supersede the 2006 codicil, the above facts strongly support this inference.

    In conclusion, for the above reasons, I am satisfied that 2007 codicil impliedly revokes the 2006 codicil in accordance with subsections 22(b) and 12(3) of the Wills Act. In reaching this conclusion I do not consider that it is material that both codicils are referred to as a “first” codicil.

    [14]   In the Estate of Gall [2008] SASC 349.

    [15]   Re Buckley, deceased [1952] VLR 107.

    [16]   In the Estate of Gall [2008] SASC 349, [28]-[31].

    [17]   Payten v Perpetual Trustee Co Ltd [2005] NSWSC 345, 100 (Austin J) citing In the Estate of Brian [1974] 2 NSWLR 231 and Re Fairhurst [1976] 1 NZLR 51.

  3. It is to be observed that Scholl J in Buckley cited with approval the earlier referred to observations of Sir James Hannen.

  4. It is appropriate to say something about the relationship between a codicil and a will in the context of revocation and revival of testamentary documents.  The seminal text, Tristram and Coote’s Probate Practice, comments:[18]

    In the absence of a contrary intention, a codicil confirming a will republishes the will, ie it has the effect of bringing the will down to the date of the codicil, and effects the same dispositions as if the testator had at that date made a new will containing the dispositions in the original will with the alterations, if any, effected by the codicil.

    The editors of Williams, Mortimer and Sunnucks on Executors, Administrators and Probate comment thus on the topic:[19]

    Difficult questions arise in determining the effect of the revival of a will upon codicils thereto.  Where the instrument which effects the revival expressly refers to the codicils, no difficulty arises; but assuming a testator to have made a will, then a first codicil modifying the will and later a second codicil confirming the will but not mentioning the codicil, the question arises whether the second codicil revives the will as it originally stood, or confirms the will as modified by the first codicil.

    Where the first codicil has been duly executed and neither it nor the will has been revoked, prima facie the will as modified by the first codicil is confirmed and the first codicil is not revoked.[20]  However, in every case it is a question of the intention of the testator.  Although a reference simply to the date of the will is not sufficient in itself to restrict the confirmation to that particular document, yet if other words and surrounding circumstances convey that intention with reasonable certainty, the first codicil will be treated as revoked, and the will together with the second codicil only admitted to probate.[21]

    [Emphasis added.]

    [18]   Costa, Winegarten and Synak, Tristram and Coote’s Probate Practice (30th ed, 2006) [3.174] citing Re Champion, Dudley v Champion [1893] 1 Ch 101; Re Fraser, Lowther v Fraser [1904] 1 Ch 726. South Australian practice follows the 26th edition of this text; the section on this topic being to the same effect.

    [19]   Martyn and Caddick (eds), Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (19th ed, 2008) [15-07].

    [20]   Re De La Saussaye (1873) LR 3 P & D 42; Green v Tribe (1878) 9 Ch D 231; Follett v Pettman (1833) 23 Ch D 337.

    [21]   Upfill v Marshall (1843) 3 Curt 636; McLeod v McNab [1891] AC 471.

  5. In Green v Tribe, a testator gave shares in her residue to her nephew by her will.  By a codicil, she revoked all bequests to her nephew and by a second codicil she devised certain later purchased property to the trustees of her will and confirmed her will.  A question arose as to whether the second codicil revoked the first.  Fry J addressed the principles and authorities as follows:[22]

    The general principle I take to be clear. On the one hand, where a testator in a codicil uses the word "will" abstractedly from the context, it will refer to all antecedent testamentary dispositions which together make the will of the testator, and consequently where the testator by a codicil confirms in general terms his will or his last will and testament, the will, together with all codicils, is taken to have been confirmed. "The will of a man," said Lord Penzance in Lemage v. Goodban, "is the aggregate of his testamentary intentions so far as they are manifested in writing, duly executed according to the statute." On the other hand, it is equally clear that the testator may by apt words express his intention to revoke any codicil already made, and to set up the original will unaffected by any codicil. The question, therefore, which I have to consider is whether the reference to the date of the original will is an indication of the intention to deprive all instruments other than the original will itself of any force - in fact, whether such a reference to a will effects a revocation of the antecedent codicils. To this inquiry a series of cases appears to afford a clear negative answer. The first to which I desire to refer is the case of Crosbie v. MacDowal. There the testator made a will and five codicils, and a question arose as to the effect of the fifth codicil upon the fourth codicil, by which certain annuities had been given. The fifth codicil recited the making of the will and the date which it bore, substituted one executor in the place of another, was silent as to all antecedent codicils, and concluded by confirming the testator's said will in all other respects. The then Master of the Rolls held that the fourth codicil was not revoked by the fifth. This decision rested upon two propositions. The first, that if a man ratifies and confirms his last will he ratifies and confirms it with every codicil that has been added to it. The second, that the ratification of a will described by its date is a ratification of the will as modified by the codicils, and therefore does not revoke the codicils which were made between the date of the will and the confirming codicil.

    [Emphasis added. Footnotes omitted.]

    His Honour continued:[23]

    In the case of Smith v. Cunningham a similar question arose. There the testator made first a will, then five codicils in succession, then a sixth codicil, by which he confirmed and republished his will and two codicils describing the will, and two codicils by the dates which they respectively bore, and it was held that the sixth codicil did not effect a revocation of the three unmentioned codicils. The Court held, in the first place, that the intention to revoke must be clear and unequivocal; in the second place, that no clear inference in favour of the revocation arose from the language of the sixth codicil; and, thirdly, that, looking at all the circumstances to ascertain the intention of the testator as to what instruments should operate as and compose his last will, as the Court of Probate was in the habit of doing (Greenough v. Martin), there was no intention to revoke. In In the Goods of De la Saussaye, a case which came before Sir James Hannen in the year 1873, a similar point arose. The testator there first made a will, he then made three codicils in Spain, he then made a codicil in England by which he revoked certain dispositions contained in his will, which he described as executed in London on the 12th of March, 1869, and concluded by confirming the dispositions contained in his will of the 12th of March, 1869, in whatever did not clash or interfere with the contents of that codicil. The question arose whether the express reference to the will of the 12th of March, 1869, implied an intention on the part of the testator to revoke his Spanish codicils. The Court held that it did not, on the ground that those codicils were to be deemed parts of the will, and were themselves confirmed by the ratification of the will of which they were modifications.

    [Footnotes omitted.]

    [22]   Green v Tribe (1878) 9 Ch D 231, 234-235.

    [23]   Green v Tribe (1878) 9 Ch D 231, 235-236.

  6. The following propositions, relevant to the within enquiry, may be discerned from the authorities:

    -The Court is to look at all the circumstances to ascertain the intention of the testator as to what instruments should compose his or her last will.[24]  After all, it is the first duty of the Court to ascertain what a testator meant by his or her words, expressly or implicitly, and to give effect as far as possible to that intention.[25]

    -The “will of a testator” is the aggregate of his or her testamentary intentions as expressed in valid wills and codicils.[26]  In short, prima facie, if a testator ratifies and confirms a last will he or she “ratifies and confirms it with every codicil that has been added to it.”[27]

    -Freedom of testation and the ambulatory nature of will allow a testator to revoke a testamentary document, including a codicil, and restore a will to be unaffected by that codicil.[28]

    -Implied revocation may arise where a later testamentary document does not contain an express revocation clause.

    -It is a question of construction as to whether a later document impliedly revokes an earlier document, for example by containing clauses inconsistent with the earlier document.

    -A central issue is one of construing the testator’s intention, and oral and extrinsic evidence is admissible for this purpose.[29]

    -Absent a contrary intention, a codicil confirming a will republishes the will, bringing it to the date of the codicil including the alterations or additions made.[30]  As put by Fry J in Green v Tribe “ratification of a will described by its date is a ratification of the will as modified by the codicils, and therefore does not revoke the codicils which were made between the date of the will and the confirming codicil.”[31]

    -An intention to revoke must be clear and unequivocal.[32]

    -A reference in a codicil to a will of a particular date being that to be confirmed will not on its own be sufficient to restrict the confirmation to that document, if other words and surrounding circumstances convey an intention to revoke with reasonable certainty, an intermediate codicil will be treated as revoked.[33]

    [24]   Green v Tribe (1878) 9 Ch D 231, 235; Greenough v Martin (1824) 2 Add 239.

    [25]   Smidmore v Smidmore (1905) 3 CLR 344, 354; Nicol v Chant (1909) 7 CLR 569, 577.

    [26]   See further Jenkins v Stewart (1906) 3 CLR 799, 805-806; Re Jackson (decd) [1950] SASR 268, 271.

    [27]   Green v Tribe (1878) 9 Ch D 231, 235.

    [28]   Green v Tribe (1878) 9 Ch D 231, 234.

    [29]   In the Estate of Gall [2008] SASC 349; Payten v Perpetual Trustee Co Ltd [2005] NSWSC 345, [100] (Austin J) citing In the Estate of Brian [1974] 2 NSWLR 231 and Re Fairhurst [1976] 1 NZLR 51.

    [30]   Re Champion, Dudley v Champion [1893] 1 Ch 101; Re Fraser, Lowther v Fraser [1904] 1 Ch 726.

    [31]   Green v Tribe (1878) 9 Ch D 231, 235.

    [32]   Smith v Cunningham (1823) 1 Add 448, as cited in Green v Tribe (1878) 9 Ch D 231.

    [33]   Upfill v Marshall (1843) 3 Curt 636; McLeod v McNab [1891] AC 471.

  7. In both Buckley and Gall, the respective second codicils were, save for one matter, in identical terms to the first, both confirmed the same will as the first and both were drawn by the same solicitors as the first within a relatively short period.  These factors were salient to the conclusion in those decisions that the second codicil had impliedly revoked the first.  Further, in Gall, extrinsic evidence from the drawing solicitor strongly supporting an inference that the instructions she received were to draw a codicil which would revoke or supersede the earlier codicil, was before the Court. 

  8. Buckley and Gall are both distinguishable from the present case.  Here, the second codicil was drawn by solicitors and the third codicil was a document drawn by a lay relative of the deceased.  The two documents are in substantially different terms, those terms on their face being directed to two quite different ends; that is, the second codicil revokes the residuary clause in the will and redistributes the residuary estate and the third codicil on its face deals only with a specific bequest of a finite financial sum.  Further, here the Court has the advantage of extrinsic affidavit evidence from Brenton.  By affidavit he deposes that at the time of preparing the third codicil, in his possession was a copy of the second codicil.  Brenton had no experience in preparing testamentary documents and deposes to endeavouring in the drawing of the third codicil to adopt or follow what he thought was the appropriate form of wording to be used.  He deposes to having “inadvertently misquoted” the date of the deceased’s will as the date of the first codicil - 5 December 2002. 

  9. There is evidence before the Court which explains the reference to 5 December 2002.  No other testamentary document dated 5 December 2002 has been located.  I do not consider that this reference in these circumstances implies any intention to revoke the second codicil. 

  10. Taking the whole of the circumstances into account and the matters to which I have already made reference, together with the fact that the codicils sit comfortably together, there being no apparent inconsistency, I do not consider there to be a sufficient intention to revoke the second codicil.  The deceased in the third codicil does not express an intention to revoke either the first or the second codicil.  There is nothing in the third codicil, surrounding circumstances or other evidence before the Court to give rise to an implication that the deceased intended to revoke either codicil. 

    Conclusion

  11. In the above circumstances, I made orders that probate be granted to Brendan and Stephen Watts of the will dated 20 July 1999 and the three codicils dated respectively 5 December 2002, 12 October 2006 and 4 March 2010.


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Cases Citing This Decision

2

Brown v The Scout Association of Australia, South Australia Branch Inc [2022] SASCA 104
Boettcher v Driscoll [2014] SASC 86
Cases Cited

16

Statutory Material Cited

1

GALL (DECEASED) [2008] SASC 349
In the Estate of JIMMY GEORGE GHOLAM (DECEASED) [2011] SASC 125
In the Estate of MONA HAYDON MASLEN [2009] SASC 304