In the Matter of the Estate of Denger (deceased)

[2002] TASSC 70

[2002] TASSC 70

CITATION:              In the Matter of  the Estate of Denger (deceased) [2002] TASSC 70

PARTIES:  DENGER, Maria (Deceased)

(In the Matter of the Estate of)

and
SUPREME COURT RULES 2000, r604 (3) (b)

(In the matter of)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  M98/2002
DELIVERED ON:  19 September 2002
DELIVERED AT:  Hobart
HEARING DATES:  9 September 2002
JUDGMENT OF:  Slicer J

CATCHWORDS:

Succession - Wills, probate and administration - Revival and republication - By codicil - Intention to revive original will.

Wills Act 1992 (Tas), s27.
In the Goods of Steele (1868) LR 1 P & D 575; McLeod v McNab [1891] AC 471; In Re Hilder [1998] SASC 6895, followed.

Aust Dig Succession [62]

REPRESENTATION:

Counsel:
           Public Trustee:  B McManus
           Granddaughters:  D M Rees
           Granddaughter and Daughter  K M McQueeney
           Guardian for Great-Grandchildren          A L Valentine
Solicitors:
           Public Trustee:  Public Trustee
           Granddaughters:  Henry Wherrett & Benjamin
           Granddaughter and Daughter:  Peter Worrall
           Guardian for Great-Grandchildren:         Ware and Partners

Judgment Number:  [2002] TASSC 70
Number of Paragraphs:  12

Serial No 70/2002
File No M98/2002

IN THE MATTER OF THE ESTATE OF MARIA DENGER (Deceased)
and IN THE MATTER OF Rule 604 (3) (b) of the SUPREME COURT RULES 2000

REASONS FOR JUDGMENT  SLICER J

19 September 2002

1. On 21 May 1993, Maria Denger executed her will providing for identified members of her family as beneficiaries, appointing two partners of the legal firm which had prepared the will as executors and trustees of her estate.  On 1 July 1998, she made a fresh will which provided for different members of her family and appointed the Public Trustee as her executor and trustee of that will prepared by his office.  In doing so, she specifically revoked her former will.

1. In 1999, the firm of solicitors which had prepared the original will undertook a review of their probate section and wrote to clients suggesting that, given the retirement of a partner who had been named as an executor in many of the wills held by the firm, the respective wills be amended so as to provide for different executors.  In accordance with the review, a letter was written to Mrs Denger.  A copy of the letter has not been retained but was sent some time between June and December 1999.  Mrs Oddy, a law clerk of the firm of solicitors, has deposed that its terms were that:

"… the letter advised Mrs Denger of Mr Doyle's departure from the Page Seager partnership and advised her that it was necessary as a result to execute a codicil to her will which revoked the clause appointing Mr Doyle as trustee and executor of her Will and replacing it with a clause appointing Mr John Harry and the partners as at the date of her death of Page Seager as executors and trustees of her Will."

A copy of the 1993 will was not attached.  Mrs Denger did not immediately respond to the letter.

1. In August 1999, Mr Denger, in the course of a general conversation about her financial affairs, confirmed to her daughter, Eva Chinchella, that she had made a will.  In December of that year, the daughter spoke with Mrs Oddy who repeated the general import of the letter.  In early February 2000, Mrs Denger entered a nursing home for temporary respite care.  Her daughter had unsuccessfully sought to have the codicil altering the appointment of executors witnessed whilst Mrs Denger had been at the nursing home.  On 14 February the daughter collected her mother from the home and the two went to the offices of Page Seager.  In the words of Mrs Chinchella:

"When I arrived at their offices with my mother, I remember Mrs Oddy showed us into the boardroom.  She called a younger woman from an outside office into the boardroom to witness the signing of the document.  At that time, I sat to one side.  I do not recollect Mrs Oddie [sic] giving my mother any explanation of why she was required to sign the document or the effect of the document.  She did not show my mother the original Will or ever mention the original Will.  My mother did not make any comment.  I most certainly would have recollected if Mrs Oddy had referred to a particular Will, had explained the Will or codicil to her.  I remember that we spent a very short time in the boardroom, probably around five minutes in all."

Her account is corroborated by Mrs Oddy, who recalled that :

"8   On or about the 14^th December 2000 Mrs Maria Denger and her daughter Eva Chinchella attended my office at Page Seager, Level 3, 162 Macquarie Street, Hobart in Tasmania.

9    During the said attendance I showed Mrs Denger a codicil to will [sic] I had drafted earlier.  I told her the effect of the codicil was to remove all reference to Mr Stephen Andrew Doyle from her will and instead appoint Mr John Harry and the partners of Page Seager at the date of her death as executors and trustees of her Will.  I told her that the remainder of her will would remain unaffected.

10   I did not show Mrs Maria Denger a copy of the 1993 Will during the said attendance at the Page Seager offices.  I did not ask Mrs Maria Denger whether she had made any Wills after the 1993 Will."

1. The codicil, in proper form, states:

"this is a first codicil to the last Will and Testament of me maria denger of 49 Cascade Road South Hobart in Tasmania, Widow which Will bears the date 21 May 1993.

1i hereby revoke clause 2 of my said Will and i hereby insert the following clause in its place:

'2  i appoint john william harry and the partners as at the date of my death in the firm of Page Seager or the firm which at that date has succeeded to and carried on its practice (hereinafter referred to as "my Trustees") to be Executors and Trustees of this my Will and i express the wish that not more than two (2) of the partners shall prove this my Will.'

2in all other respects I confirm my said Will."

1. Mrs Denger died on 1 January 2001.

1. The question is whether the codicil made on 14 February 2000 revived the operation of the 1993 will and by necessary implication revoked the 1998 will.

1. The Wills Act 1992, s27, relevantly provides:

"A will … which has been in any manner revoked is not revived otherwise … by a codicil executed … and showing an intention to revive it."

Evidence of the surrounding circumstances is admissible to show the intention (In the Estate of Davis (decd) (1952) P 279, [1952] 2 All ER 509; Wills Act, s43(b)).

1. The codicil itself must evidence an intention to revive the term of the original will (In Re Hilder [1998] SASC 6895).

1. The Wills Act, s27, is a restatement of the Wills Act 1837 (UK), s25.  Previous to that enactment, the position had been that a codicil which referred to a particular will revived its operation by its very making.  The effect has been explained by Sir J P Wilde in In the Goods of Steele (1868) LR 1 P & D 575, when he said, at 578:

"… before the act, an inference which the law drew from the making of a codicil, that the testator intended to re-affirm his will, and, if the will had been revoked, by re-affirming it to revive it.  In brief, it would not be wrong to say that all codicils to wills were held before the act passed to revive the wills to which they were respectively codicils, if such wills had been previously revoked.  As soon, therefore, as it could be ascertained that the codicil in question was a codicil to a particular revoked will, that will was revived."

The statute does away with the revival of wills by mere implication (McLeod v McNab [1891] AC 471) and a codicil which merely refers to the appointment of executors does not, of itself, revive the original will (In the Goods of Steele (supra); Re Rear [1975] 2 NZLR 254; Re Hilder (supra)), although surrounding circumstances might show, absent ambiguity, revival (In the Will of Killick [1960] VR 98).

1. The question here is whether the codicil, limited to the replacement of a legal practitioner as an executor of a will already revoked, operates to revive a will which provided bequests significantly different from a later will properly made.  In no way does the codicil purport to alter those subsequent bequests.

1. In July 1998, the testatrix "cancell(ed) all … earlier wills" and made a valid testamentary disposition.  In mid-1999, her previous solicitors undertook a course of administrative adjustment.  In December of that year the daughter of the testatrix, who was unaware of the terms of the 1993 will or the existence of the latter, made enquiry on behalf of her mother.  In February 2000 she took her mother to the firm of solicitors in order to attend to an administrative request.  The testatrix complied, doubtless believing that she was attending to a minor procedural alteration.  The terms of the will, subject to the codicil, were not brought to her attention, nor the implications of a mere change of executorship explained to her.  She either believed that different executors were being appointed to the 1998 will or that the terms of that disposition were to be the legal responsibility of another.  Her mind was directed to the form of legal administration, not the substance of her disposition of her estate.  It is not necessary to determine precisely what the testatrix believed when she signed the codicil.  The question is whether her signature evidences an intention to revive the terms of the original will.  The evidence of why the request for the making of a codicil was made, the initial failure to respond, the intervention by the daughter and her reasons for doing so, and the eventual compliance by the testatrix, show misunderstanding or mistake limited to formal requirements, rather than an intent as to substantial revival.  The codicil itself does not purport to be an exercise of revocation of any will subsequently made and its purported confirmation of the 1993 will adds nothing to any claim of revival.

1. The codicil, made under mistake, did not revive the 1993 will nor, by its making, show an intention to revoke the terms of the 1998 testamentary disposition.