In the Will of

[2000] QSC 66

SUPREME COURT OF QUEENSLAND

CITATION:	In the Will of Verner Ulvstig, Deceased [2000] QSC 066
FILE NO/S:	No 1055 of 2000
DIVISION:	Trial Division
PROCEEDING:	Application for grant of probate
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	24 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2000
JUDGE:	Williams J
ORDER:	Probate granted as requested subject to the formal requirements of the registrar
CATCHWORDS:	SUCCESSION - EXECUTORS AND ADMINISTRATORS - PROCEEDINGS BY EXECUTORS OR ADMINISTRATORS - where testator’s estate situated in Australia and Sweden - where earlier will relates solely to Australian estate - whether later Swedish will relates to estate in its entirety - whether later will thereby impliedly revokes earlier will relating to Australian estate - resolution of question depends on intention of testator at time later instrument executed
Re Barker (1995) 2 VR 439, distinguished In the Estate of Wayland (1951) 2 All E R 1041
COUNSEL:	Mr T C Whitney for the applicant No other appearances
SOLICITORS:	McCullough Robertson for the applicant No other appearances

1. Williams J: This is an application for a grant of probate in common form of the Will dated 7 December 1998 of the deceased, Verner Ulvstig, in favour of the applicant National Australia Trustees Limited.

2. At all material times the deceased was resident and domiciled in Sweden. He was the owner of personal property in Australia being shares in publicly listed companies. A large percentage of those shares were in MIM Holdings Limited whose principal share registry is situated in Queensland. The deceased also owned property in Sweden.

3. Material from a qualified Swedish lawyer establishes that the law of Sweden requires a Will to be attested in precisely the same way as is required by Queensland law. The deceased executed two duly attested Wills in Sweden, one on 7 December 1998 and the other on 9 December 1998. He died in Sweden on 1 March 1999. By order of a District Court in Sweden on 23 February 2000 a lawyer, Ingemar Elison, was appointed “administrator of the deceased person’s estate”.

[4] This application is for a grant of probate of the Will executed 7 December 1998,
which can be described as the Australian Will; it is in the following terms:

This is the last Will and Testament of me

“situate in the Commonwealth of Australia and shall not refer in any way to assets situate other than in the Commonwealth of Australia and all of which assets situated in the Commonwealth of Australia I hereinafter refer to as “my Australian Estate”.

1.           I hereby revoke all Wills and other testamentary dispositions so far as the same relate to my Australian Estate made by me prior to this date and I declare testamentary dispositions relating to my assets situate other than in the Commonwealth of Australia and shall not revoke such other Wills or testamentary dispositions so far as the same relate to my assets situated other than in the Commonwealth of Australia.

2.            I appoint National Australia Trustees Limited … and my son Asbjorn Ulvstig … to be the Executors and Trustees of my Australian Estate.

3.            I give devise and bequeath all my real and personal estate of whatsoever kind and nature and wheresoever situate unto my Australian Trustees upon trust to call in collect and if necessary convert the same and to pay hereout all my just debts and funeral and testamentary expenses (should death occur in Australia) and State and Federal Death Duties …

and to stand possessed of the balance then remaining (hereinafter called “my residuary Australian Estate”) upon the following trusts namely:-

(a)

As to one half (½) share thereof to pay or transfer the same to my son Asbjorn Ulvstig … and I express the wish that my trustees shall realise sufficient assets of my estate to provide such share and in doing so not to dispose of my shares in MIM Limited or National Australia Bank Limited or to dispose of only so many of such shares as is necessary to raise the required one half (½) share of my said son for his use and benefit absolutely.

(b)

As to the remaining one half (½) share of my residuary estate to pay or transfer the same to my friend Ove Berglund, Assistant Professor of The South Hospital of Stockholm for his use and benefit absolutely and I express the wish that my said friend will attend to the payment of such small donations from his share of the particulars of which I have separately specified and left with this my Will.

4.            My Australian Trustee shall have the following discretionary powers … ”.

1. That Will was duly signed by the Testator on 7 December 1998 and the attestation clause was duly executed by two witnesses who were both present when he signed. There is also a seal of a notary public on the document certifying that it was the deceased who signed.

2. Asbjorn Ulvstig has indicated he does not wish to be involved in obtaining a grant of the Australian Will and National Australia Trustees Limited has applied for a grant with leave reserved to Asbjorn Ulvstig to apply.

3. It is abundantly clear that the Will of 7 December 1998 is solely and specifically concerned with the deceased’s assets in Australia. It is significant that in clause 1 there is a revocation provision relating to earlier testamentary dispositions of the deceased Australian Estate.

4. Unfortunately the balance of clause 1 contains at least grammatical deficiencies. It must be remembered that the Will was drafted in Sweden by persons for whom English was, at best, a second language. Looked at broadly one would think that the balance of clause 1 was intended to provide that a later Will dealing with assets situated other than in the Commonwealth of Australia would not have any impact on the Will disposing of Australian assets.

[9] The Will of 9 December 1998, as translated by an authorised translator from
Swedish into English, is in the following terms:

“I Sture Veaner Ulvstig … declare herewith as my ultimate intention that, after my death, half my estate is to be inherited by my two sons, Asbjorn and Vida Ulvstig.

The other half of my estate, which is referred to in this context as the “unrestricted half”, is to go to Ove Berglund, Associate Professor and Chief Medical Officer at the Soder Sjukhuset Hospital in Stockholm, to be used by him, with full freedom of action, for arrangements for the publication of a documentary whose manuscripts I am still working on. The major proportion of the “unrestricted half” will be required for this purpose. If, at the time of my decease, there is a supplement to this Will specifying additional donations, payment of such donations is to be made first from the “unrestricted half” of the Estate.

As in the first paragraph above, half the ownership rights to this documentary are to accrue to my sons and the other half to Ove Berglund. Ove Berglund will receive instructions regarding the manner he is to proceed with the manuscript. Any financial return in any form resulting from the manuscript is to be used for charitable purposes, in accordance with instructions or agreements between the above parties.

I am signing this document with a clear mind and in full command of my faculties. My signature is witnessed by the following persons who were present when this document was signed.”

1. Importantly that Will of 9 December 1998 does not contain any revocation clause. It simply deals with the deceased’s “estate”. As the Wills were executed only two days apart, the reality is that the deceased would have had the earlier Will in mind when the latter was executed. The same Swedish lawyer witnessed each Will and one could readily infer he played some part in drafting each of them. That lawyer has expressed the opinion that the Australian Will was not revoked.

2. The concern raised by the Probate Registrar resulting in this matter being referred to the court was that if “estate” was to be construed as all the deceased’s property wherever situated, including the property in Australia, then there was an implied revocation of the will of 7 December 1998.

3. It should be recorded that Ingemar Elison, the person appointed by the Swedish court to be administrator of the deceased’s estate, and the two sons of the deceased, Asbjorn and Vidar Ulstig, do not oppose probate being granted by this court of the Will of 7 December.

4. It is also significant, in my view, that the Will of 7 December 1998 is drafted in English, whereas the Will of 9 December 1998 is in Swedish. That supports the proposition that the Will of 7 December 1998 was intended to dispose of the estate in Australia, whilst the Will of 9 December 1998 was concerned only with the estate in Sweden.

5. Whether or not there has been revocation of a prior testamentary instrument is essentially a question of intention; what was the testator’s intention at the time the later instrument was executed? As Tadgell J said in Re Barker (1995) 2 VR 439 at 445: “It has been recognised for 150 years and more that a general revocation clause in a will is not sufficient to revoke a prior will if a court of probate is satisfied that the testator did not intend by the later will to revoke the earlier.” That was a case with some similarity to the present. There the testator had been born in Europe in 1914, came to Australia in 1951, and returned to Europe in 1969. She died in Austria in 1992 leaving estate comprising real estate in Victoria and personal property in Victoria and Europe. She had made two wills. The first was prepared by her solicitor in Australia in May 1985. The second was made in Germany in November 1985. The two Wills made inconsistent dispositions of property. The issue before Tadgell J was whether or not the Australian Will could be admitted to probate in Victoria; that involved consideration of the effect of a revocation clause in the later Will. After referring to authorities Tadgell J at 446 stated there was “ample authority for the view that evidence ought to be generally admitted such as may throw light on the intention with which a testator included a general revocation clause in a later will”. In that case there was evidence, which the court acted upon, which clearly established an intention on the part of the testator that the Australian Will should survive the execution of the later one containing the revocation clause. Because of that finding the Australian Will was admitted to probate.

6. This case is distinguishable because here there is no revocation clause in the later Will, and no evidence, other than what can be inferred from the documents themselves, to indicate the intention of the testator with respect to revocation of the earlier Will by the general words of the later.

7. Another authority of some assistance is the decision of Pearce J in In the Estate of Wayland (1951) 2 All E R 1041. There the testator, a British subject domiciled in England, made a Will in Brussels in accordance with the law of Belgium which was expressly stated to deal only with his Belgian property. Approximately two years later he executed a Will in England which contained a revocation clause, but it went on to state that “this will is intended to deal only with my estate in England”. There was evidence that the testator had given instructions to the solicitor drawing the English Will to the effect that he had made a Belgian Will in respect of his estate there. It was held that the revocation clause in the English Will was intended to revoke all former Wills dealing with English property and was not intended to, and did not, revoke the Belgian Will.

8. I am satisfied that the only inference which can reasonably be drawn from a reading of the two documents and from a consideration of the circumstances in which each was drafted and signed, is that the deceased intended that the document referred to as his Australian Will should dispose of his estate in Australia, and the document in Swedish should relate only to his estate in Sweden. Such a conclusion may well be confirmed by the fact that a testator in Sweden can only dispose of one half of his estate in that country otherwise than to his next of kin. In fact that is the effect of the Swedish Will, but there is no formal evidence that Swedish law requires the estate to be disposed of in that way. Given that the Australian Will is in English, that it contains a revocation clause, that the Swedish Will drafted two days later contains no revocation clause, and the fact that the two documents were virtually contemporaneous, the conclusion I have reached is virtually inevitable. The deceased’s intention was that the later Swedish Will should not revoke the earlier Australian Will.

[18] Therefore there should be a grant as requested subject to the formal requirements of
the registrar.