IRIS MARJORY MAY FRAME DECEASED - [2007] SASC 164

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of IRIS MARJORY MAY FRAME DECEASED
[2007] SASC 164
Judgment of The Honourable Justice Gray
11 May 2007
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - REVOCATION
Application brought by Public Trustee seeking an order under section 12(3) of the Wills Act 1936 (SA) - deceased formally executed will in 1992 apppointing Public Trustee as sole executor and trustee, and leaving residuary estate to her sister - deceased wrote letter to Public Trustee in 1997 purporting to cancel previous will and referring to "a private will" - no other will has been located - whether the 1997 letter constitutes a new will - whether the 1997 letter validly revokes the 1992 will - Held: 1997 letter is not testamentary, but does validly revoke 1992 will - deceased died intestate.
Wills Act 1936 (SA) s 8, s 12(3), s 22; Public Trustee Act 1995 (SA) s 9(1)(h); Family Relationships Act 1975 (SA); The Probate Rules 2003 (SA) r 55.01, r 55.02, r 64A; Wills Act 1837 (UK) s 20; Wills Act Amendment 1994 (SA), referred to.
Timbury v Coffee (1941) 66 CLR 277; In the estate of Bernadette Agnes Ryan deceased [1987] SASC 155; Lister v Smith (1863) 164 ER 1282; Nichols v Nichols (1814) 161 ER 1113; Re Horner [1965] VR 177; In the Goods of Baylis (1862) 164 ER 1135; In the Goods of Blackwell [1876] 2 PD 72; In the estate of Miriam Etelka Yearwood (1982) 100 LSJS 489; In re Vogel 13 NZ Gaz. LR 117; Re Debney [1926] 1 ALJ 17; In the Goods of Hubbard (1865) 1 P & D 53; In the Goods of Fraser (1869) 2 P & D 40; In the Goods of Durance [1872] LR 2 P & D 40; In the Goods of Toomer v Sobinska [1907] P 10; Re Spacklan’s Estate [1938] 2 All E R 345; In re Bradley (deceased) [1956] NZLR 614; In the Estate of Mary Carmel Deslandes, Public Trustee v Catherine Margaret Gibbons (unreported, SCGRG 453 of 1992, S3849), considered.

In the Estate of IRIS MARJORY MAY FRAME DECEASED
[2007] SASC 164
Testamentary Causes Jurisdiction
GRAY J:
The Application

This is an application by Public Trustee seeking an order under section 12(3) of the Wills Act 1936 (SA) that a document dated 4 July 1997, which has not been executed with the formalities required by section 8 of the Wills Act, revokes the will of the deceased dated 3 December 1992. As a consequence it is contended that the 1992 will should not be admitted to probate. It is further contended that in the circumstances the deceased died intestate.
Section 12 of the Wills Act provides:
(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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading IRIS MARJORY MAY FRAME DECEASED

Details

AGLC: IRIS MARJORY MAY FRAME DECEASED [2007] SASC 164
Case: [2007] SASC 164
Decision Date: 11 May 2007

CaseChat Overview and Summary

The case of Iris Marjory May Frame Deceased involved an application brought by the Public Trustee under section 12(3) of the Wills Act 1936 (SA). The deceased, Iris Marjory May Frame, executed a formal will in 1992, appointing the Public Trustee as sole executor and trustee, and leaving her residuary estate to her sister. However, in 1997, she wrote a letter to the Public Trustee purporting to cancel her previous will and referring to "a private will". Despite searches, no other will has been found. The primary issues for the court were whether the 1997 letter constituted a new will and whether it validly revoked the 1992 will.

The court determined that the 1997 letter was not testamentary, as it did not appoint executors, contained uncertain dispositive provisions, and lacked a residuary gift. The statement "I have made a Private Will" indicated that Ms Frame had made another will, but the 1997 document itself was not intended to be her will. The emphasis of the 1997 document was on revoking the 1992 will, as evidenced by the statement "Public Trustee Wills Cancelled". Consequently, the 1997 letter validly revoked the 1992 will, leaving the deceased to die intestate.

In light of the court's findings, the deceased died intestate, and the Public Trustee was authorised to administer the estate under section 9(1)(h) of the Public Trustee Act 1995 (SA). The court granted an administration order to the Public Trustee, as requested.

Orders

Orders of the court

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Background

Background to the litigation

An order has also been sought under section 9(1)(h) of the Public Trustee Act 1995 (SA) that Public Trustee be authorised to administer the estate of the deceased. Section 9(1)(h) provides:The Court may make an order (an administration order) granting administration of the estate of a deceased person to the Public Trustee or authorising the Public Trustee to administer the estate of a deceased person –...(h)If an executor, or person entitled to administration, requests the Public Trustee, in writing, to apply for an order under this section;The Factual Background Iris Marjory May Frame died at Penola on 30 November 2003 aged 88 years. Apparently, during her artistic life she was often maligned and even ridiculed as being an eccentric, paranoid and naïve artist. Paul Greenaway in a tribute to Mrs Frame wrote: Without doubt Mrs Iris Frame was the most eccentric person …She was a prolific letter writer and her writings were as idiosyncratic as her paintings. To many she could be a difficult, irascible and strong willed person who marched to her own drum. She was anathema to the local council and other authority figures, but in person she was a lady of great charm who cared and thought sensitively about others. Ms Frame died a widow without issue or parent. There is no person adjudged under the Family Relationships Act 1975 (SA) to have been her putative spouse as at the date of her death. In the event of the deceased dying intestate, her sister Agnes Annie Little was the only person entitled to her estate. Ms Little survived Ms Frame but died on 9 July 2005. Ms Frame left assets in South Australia. These comprise real estate being a house property situated at Riddoch Street, Penola valued at $45,500.00 and personal estate valued at $88,565.72, which consists of three crown leases for a property situated at Henry Road, Moorook having a combined value of $48,500.00, cash at banks totalling $35,317.72 and paintings of an estimated value of $4,748.00. Ms Frame formally executed a will dated 3 December 1992, which is held by the Public Trustee. This will revokes all former wills and codicils and appoints Public Trustee to be sole executor and trustee. The will then devises the whole of Ms Frame’s estate to her trustee upon trust to pay funeral and testamentary expenses and debts, and to hold the residue for her sister Ms Little but if she should have predeceased Ms Frame then in equal shares for her sister’s sons and daughter Keith Little, Roger Little and Sandra Hawker. Ms Frame wrote to Public Trustee on 4 July 1997. This document (the 1997 document) is in ink and is in Ms Frame’s hand. The document is addressed to the Public Trustee Office of Mount Gambier. It was received on 8 July 1997. That office has since closed. All files are now held at the Public Trustee Office in Adelaide. The document is in the following terms:44 Portland StreetPenola, S.A. Dear Sir Manager Public Trustee,I am writing explain Public Trustee Wills of Mine Mrs Iris Frame Cancelled from today July 4th 1997. I have Made A Private Will to do Orders Carry Out Of My two Estates One Kingston On Murray, to be Like Elvis Presely Grace Lands for ever. Other Estate here Penola. Same. Trustee Mrs Rimas Riauba ... The other Trustee Keith Little But Trustees only But Public Trustee Wills Cancelled. I am Private Legendary Masterminded Artist. Thank you Public Trustee But I want My Will Orders Done My Estates Run forever Orders for My Benefisery [sic] Done for Ever. My Benafisheries [sic] to get each year Their Grant help from My Estates Run for ever Managers how to Run in My New Will.As World Wide Greatest Legendary Masterminded Artist. Get Miss S Warners Book Australian Navie Art Prove of it. My Will Big Runs for ever. My two Estates earning Income every Day As there. The Great Australian Legendary Mastermind Artist Estates. Their Private Estates On Own Private Lands. Just same As Elvis Presely. New Will Made To Those Orders.Thanking youYours sincerelyMrs Iris FrameFrom searches conducted it appears that Ms Frame did not make any later will or document of a testamentary nature.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In these circumstances, the citation proceedings were discontinued and an application was brought under section 12(3) of the Wills Act.Consideration of the 1997 document The 1997 document does not appoint executors and contains no dispositive provisions. There is no residuary gift and the provisions that do relate to identifiable property are uncertain. Mrs Frame did not identify the beneficiaries in the 1997 document – she simply wrote that she wanted the properties to be “like Elvis Presley Grace Lands”, apparently in perpetuity. She appointed trustees to be trustees of a perpetual trust of the property and says that the beneficiaries are to “get each year Their Grant help from My Estates”. She did not identify her beneficiaries or what the grant was. The words “I have made A Private Will” should not be read to indicate that Ms Frame intended the 1997 document to constitute her will but rather should be read as a report that she has made another will – a will that is “private”. The emphasis of the 1997 document was to make clear that the 1992 will had been revoked. The statement in the 1997 document “Public Trustee Wills Cancelled” confirms this intent. This impression is supported by the reference in the document to a new will – in “My New Will” there are instructions for “Managers” on how to carry out the intentions of Ms Frame. This cannot be sensibly understood as a reference to the document. The 1997 document is not testamentary. The 1997 document could not be saved by resort to the rules applying to charitable trusts, as there is nothing in the document that suggests that the perpetual trusts would be charitable, nor any suggestion of a general charitable intention. If the 1997 document were testamentary then its admissibility to probate under section 12(2) would need to be considered. However, if it were testamentary it would be a “failed” or “inoperative” will. These are the terms used to describe a will where there is no effective appointment of executors (i.e. there may be no executors appointed, the executors may have predeceased the testator or the appointment may have failed for uncertainty),[4] no revocation, revival or republication clauses, and the beneficiaries have all predeceased the testator so that the whole estate devolves as on intestacy.[4] For examples of the latter see In the Goods of Baylis (1862) 164 ER 1135, In the Goods of Blackwell [1876] 2 PD 72 and In the estate of Miriam Etelka Yearwood (1982) 100 LSJS 489. That English practice in relation to an inoperative will is to require it to be proved as the deceased died testate, notwithstanding that for some purposes the testator may be considered to have died intestate.[5][5] See Tristam & Coote’s Probate Practice (26th ed, 1983) p 185. However, the South Australian practice follows the New Zealand practice of treating the deceased as having died intestate but setting out the terms of the will in the grant.[6] In Debney,[7] a testator made his will appointing A his executor and universal legatee. A predeceased the testator. Richards AJ directed, following Vogel,[8] that letters of administration be granted to the next of kin without the will annexed, but reciting in the grant that a will had been made and that the executor and universal legatee had died prior to the testator, and setting out in the grant the terms of the will.[6] See In re Vogel 13 NZ Gaz. LR 117.[7] Re Debney [1926] 1 ALJ 17.[8] In re Vogel 13 NZ Gaz. LR 117.