IRIS MARJORY MAY FRAME DECEASED
[2007] SASC 164
•11 May 2007
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 164Testamentary 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 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.
(3)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.
(4)This section applies to a document whether it came into existence within or outside the State.
(5)Rules of Court may authorise the Registrar to exercise the powers of the Court under this section.
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 Street
Penola, 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 you
Yours sincerely
Mrs Iris Frame
From searches conducted it appears that Ms Frame did not make any later will or document of a testamentary nature.
A person must have testamentary capacity to make or revoke a will. Testamentary capacity exists where a person fulfils the requirements identified by Rich ACJ in Timbury v Coffee:[1]
The factors of competency are that the party must know what he is about, have sense and knowledge of what he is doing and the effect his dispositions will have, knowledge of what his property was, and who those persons were that then were the objects of his bounty.
[1] Timbury v Coffee (1941) 66 CLR 277 at 280.
Medical evidence reveals that on 5 December 1997 a senior consultant psychiatrist reviewed Ms Frame for the purposes of assessing her mental competence. He was “unable to detect any active psychiatric disorder” and found “no evidence of cognitive impairment”.
Ms Frame’s niece Sandra Faye Little has provided information that Ms Frame was in many ways an eccentric person and that the terms of the 1997 document in her opinion “are quite consistent with that eccentricity, however she managed her life well. She paid her bills, did her own banking, cooked and cleaned for herself and kept herself neat and tidy”.
There is no evidence to suggest that Ms Frame lacked testamentary capacity at the time she wrote the 1997 document.
The Proceedings
On 25 July 2005, an application was received from the Public Trustee for citations to be served on Rimas Riauba and Keith Little to propound the 1997 document.[2]
[2] The Probate Rules 2003 (SA), rule 55.01.
In the absence of an appearance to the citations being entered by the parties cited, Public Trustee proposed to seek an order that probate of the 1992 will be granted to Public Trustee as the sole executor named.[3]
[3] The Probate Rules 2003 (SA), rule 55.02.
The Registrar of Probates raised concern that the 1997 document was not testamentary. The Registrar drew attention to the fact that - neither Rimas Riauba nor Keith Little were executors as the 1997 document does not expressly appoint them executors. Further, the Registrar pointed out that the document does not constitute them executors according to its tenor as it does not direct them to perform any executorial duties. Finally the Registrar observed that the document does not dispose of property.
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.
It should be noted that a failed or inoperative will must not be ignored because it may expressly or impliedly revoke former testamentary acts.
Revocation of Wills
Section 22 of the Wills Act provides:
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,
If the 1997 document has been executed in accordance with section 8 of the Wills Act then section 22(c) would have application. It was at one time held that a writing expressing an intention to revoke former wills, and duly executed, was entitled to probate, although it contained no disposition of the testator’s property and appointed no executor.[9] But it has since been decided that a writing declaring an intention to revoke, by which the deceased in no way disposes of any property, is neither will nor codicil and cannot be admitted to probate.[10]
[9] In the Goods of Hubbard (1865) 1 P & D 53.
[10] In the Goods of Fraser (1869) 2 P & D 40.
There are a number of cases that have been considered under relevantly identical legislation to section 22. These decisions provide the background to the enactment of section 12(3) of the Wills Act.
In the Goods of Durance[11] involved circumstances where a testator, in a letter addressed to his brother, which was signed by him in the presence of two witnesses, directed his brother to obtain his will and burn it without reading it. In Lord Penance’s opinion:[12]
If a man writes to another ‘Go get my will and burn it’, he shews a strong intention to revoke his will. In the language of the 20th section of the Wills Act (1Vict. c. 26), the letter is a writing declaring an intention to revoke the will, and it is duly executed.
Administration with the letter annexed only was granted to the next of kin of the deceased.
[11] In the Goods of Durance [1872] LR 2 P & D 406.
[12] In the Goods of Durance [1872] LR 2 P & D 406 at 407 - 408.
In the Goods of Toomer v Sobinska[13] concerned a testator who had executed a document in accordance with section 20 of the Wills Act 1837 (UK) in which she stated that the will she had made, which was not in her possession and which consequently she was unable to destroy, “at this moment, is null and void”. Her husband claimed administration of her estate as upon an intestacy. The Court held that the document was duly revoked. Bargrave Deane J directed that the grant should go as upon intestacy without annexing the document but with a note that the grant was so made in consequence of the execution of the document.
[13] In the Goods of Toomer v Sobinska [1907] P 10.
In Re Spacklan’s Estate[14] the testator made a will about a month before her death. The will was held at her bank. At a time when she was seriously ill she dictated a document, which was duly executed (i.e. executed in the manner in which a will is required to be executed) containing the following words: “Will you please destroy the will already made out”. The document was addressed to her bank manager. The Court of Appeal applied the decision in Durance’s case and held that the wording of the document showed a sufficient intention to revoke the will within the meaning of the Wills Act 1837(UK). Although a direction to destroy does not necessarily show an intention to revoke, the Court felt itself bound by the earlier decision. In the words of Sir Wilfred Greene MR “The result is that there is no will left in existence, and the proper procedure is to grant letters of administration to the applicant”.
[14] Re Spacklan’s Estate [1938] 2 All E R 345.
In re Bradley (deceased)[15] concerned a testator who had made a will in 1950. In 1953 he endorsed a note of revocation on it, which was executed. McGregor J in following the above authorities ordered that a grant of letters of administration issue as on intestacy, and that the grant contain a note that it was made in consequence of the execution of the document revoking it.
[15] In re Bradley (deceased) [1956] NZLR 614.
The practice of the English Court and that of the New Zealand Court is followed by this Court namely by reciting in the grant of letters of administration that it is so made as a consequence of the document of revocation.
In the Estate of Mary Carmel Deslandes, Public Trustee v Catherine Margaret Gibbons[16] addressed the question of whether section 12(2) could be invoked in combination with section 22(c) where the revocation had not been executed in the manner in which a will is required to be executed. The deceased made a will in 1956 appointing her husband and a solicitor to be her executors and left her entire property to her husband but in the event of him predeceasing, her mother, sisters and brothers were to receive sums of money, with the residue going to various named charities. Her husband predeceased her. In 1981, after his death, the deceased in the presence of her sisters wrote “cancelled” on the first page of the will followed by the date and her signature. She also drew various lines through the will and wrote the words “The Public Trustee” above her husband’s name in the appointment clause and at the top of the first page she wrote, “New will to be made by Public Trustee” (“the 1981 writings”). It was argued that by reading section 22(c) and (d) read in conjunction with section 12(2) the will was revoked.
[16] In the Estate of Mary Carmel Deslandes, Public Trustee v Catherine Margaret Gibbons (unreported, SCGRG 453 of 1992, S3849).
Prior J held that the 1981 writings could not be admitted to probate as they were not intended to constitute her will. Her testamentary intentions were not embodied in the 1981 writings alone or in conjunction with the 1956 will. In the learned Judge’s opinion section 22, by invoking the language of section 8 - by speaking of execution in the manner required by the Wills Act - denied alternatives by denying revocation “otherwise than” by the means identified in paragraphs (a), (b), (c) and (d). Prior J pointed out that New South Wales “had made the law there plain” and that “Perhaps our Parliament should do the same”. Prior J pronounced for the 1956 will in solemn form of law.
As a consequence of the observations of Prior J, Parliament enacted section 12(3). The subsection was introduced by the Wills Act Amendment 1994 (SA) which came into operation on 2 June 1994.
When the Probate Rules were amended on 1 March 2005, rules were incorporated to provide a procedure for the revocation of a document under section 12(3). These are embodied in Rule 64A. The practice of reciting the document of revocation in the grant is also now enshrined in Rule 64A(b):[17]
Where the document revokes all former testamentary acts the document and its revocatory effect must be recited in the grant of letters of administration; viz.-“(the deceased having made a document dated the … day of … 20.. revoking all former testamentary acts)”.
[17] The Probate Rules (2004 (SA) rule 64 a (b).
As the 1997 document is not testamentary, the application of section 12(3) falls for consideration. The Court is required to consider whether the document expressed an intention by the deceased person to revoke, in this case, the deceased’s 1992 will notwithstanding that the 1997 document had not been executed in accordance with the formalities as required by section 22(c) of the Wills Act. As earlier recorded section 22 is expressed to be subject to section 12(3).
I am satisfied that the 1997 document has not been executed with the formalities required by the Wills Act. I am further satisfied that the document expresses an intention by the deceased, Ms Frame to revoke the 1992 will that might otherwise have been admitted to probate as a will of the deceased. In these circumstances, as the 1992 will has been revoked, it is not to be admitted to probate. Accordingly, the deceased died intestate.
As earlier observed, the person entitled to the estate in the event of the deceased dying intestate is Ms Little. Ms Little died on 8 July 2005. Her will dated 12 January 2000 was proved in the Supreme Court of Victoria on 12 October 2005.
Probate of Ms Little’s will was granted to her daughter Sandra Faye Little and her sons Colin Keith Little and Leonard Roger Little. If they were to apply for a grant of letters of administration in this State in their capacity as the legal personal representatives of Ms Little then the Victorian grant would first need to be sealed by this Court.[18] They have requested the Public Trustee to administer the estate. It is this request that Public Trustee administer the estate that gives the Public Trustee the standing to bring these proceedings.
[18] For representative grants see The Probate Rules, rule 31(iv) and Rowe, R.B., Heward, E., et al, Tristram & Coote’s Probate Practice (26th ed, 1983) p 185.
By virtue of this request Public Trustee is now seeking the order under section 9(1)(h) of the Public Trustee Act. It would be appropriate for the Court on this application to make an administration order. Such an order would authorise Public Trustee to administer the estate. Public Trustee would pursuant to the order apply to the Court for a grant of letters of administration. Public Trustee should present minutes of order to reflect the above conclusions.
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