Keates v Martin and Martin
[2023] TASSC 31
•1 September 2023
[2023] TASSC 31
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Keates v Martin and Martin [2023] TASSC 31 |
| PARTIES: | KEATES, Dennis Robert |
| v | |
| MARTIN, Lisa Catherine | |
| MARTIN, Jarrod Todd | |
| FILE NO: | 3279/2022 |
| DELIVERED ON: | 1 September 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE/S: | 29 and 31 August 2023 |
| JUDGMENT OF: | Pearce J |
| CATCHWORDS: |
Succession – Making of a will – Revocation – Methods of revocation – Marriage, divorce or annulment – Will in contemplation of marriage – Statutory exceptions to revocation by marriage – Disposition of entire
estate to person who the testatrix marries not revoked by marriage.
Wills Act 1958 (Vic), s 16.
Aust Dig Succession [1071]
REPRESENTATION:
Counsel:
Plaintiff: D Palmer Defendants: No appearance
Solicitors:
Plaintiff: Clarke and Gee Defendants: Not represented
| Judgment Number: | [2023] TASSC 31 |
| Number of paragraphs: | 24 |
Serial No 31/2023
File No: 3279/2022
DENNIS ROBERT KEATES v LISA CATHERINE MARTIN AND JARROD TODD
MARTIN
| REASONS FOR JUDGMENT | PEARCE J 1 September 2023 |
1 In this action the plaintiff, Dennis Keates, seeks a grant of probate of a will made by his late wife Paula Catherine Keates on 28 July 1995. I will respectfully refer to Mrs Keates as the testatrix and to Mr Keates as the plaintiff. In the will the testatrix appointed the plaintiff as her executor and trustee and made him the sole beneficiary of her estate. The plaintiff and the testatrix were married on 23 December 1996. The testatrix died in Tasmania aged 74 on 14 September 2021 at which time she was still married to the plaintiff. The question which arises in this action is whether the will was revoked by the marriage.
2 As will be explained, the testatrix had two children. Both were living at the date of her death. They are the defendants in the action. They were served with the writ and statement of claim. Neither appeared in the action. They both corresponded with the solicitor for the plaintiff, either directly or through a legal practitioner, to the effect that they did not oppose a grant of probate of the 1995 will to the plaintiff. Neither appeared or were represented at the trial. They are the only persons who may be adversely affected by the result of the action. However, this Court has an overriding duty to satisfy itself of the validity of the will.
3 For the following reasons I find that the testatrix's will was not revoked by her marriage to the plaintiff, and the will should be admitted to probate in solemn form.
The factual circumstances
4 The estate of the testatrix consisted of real estate in Tasmania, bank accounts and movable property in Tasmania, with a total estimated value of about $1.4m. If the will is invalid because it was revoked by the marriage in 1996, the testatrix died intestate and her estate falls to be distributed in accordance with the Intestacy Act 2010 (Tas). She died leaving children who were not the plaintiff's children. As a result, the plaintiff's entitlement as her surviving spouse in the case of intestacy is, in accordance with s 14, to her personal effects, a statutory legacy determined according to s 7 and one- half of the remainder.
5 The trial of the action was brief. I read an affidavit sworn by the plaintiff on 7 June 2023 and an affidavit sworn by his legal practitioner, Cynthia Street, on 1 June 2023. The plaintiff also gave some oral evidence. The plaintiff's evidence was logical and plausible and, as brief as his oral evidence was (and allowing for the fact that it was not challenged), he presented as a truthful and reliable witness.
The following narration of events represents my findings based on the evidence.
6 The relationship between the testatrix and the plaintiff commenced in 1990 and they began living together in Melbourne. He was a management consultant and she was a psychologist. The testatrix had been married before. She had two children, Lisa Martin born in 1968 and Todd Martin born in 1975. Prior to his marriage to the testatrix, the plaintiff was involved in the emotional and financial care and support of both children.
7 Between 1990 and 1996 the plaintiff spent a good deal of time working overseas in the Middle East or Asia. The testatrix still lived in Melbourne but visited the plaintiff three or four times each year
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at these various locations. Although they were not then married, she changed her name to "Keates" by deed poll to overcome obstacles in obtaining a visa arising for religious or cultural reasons. In some of these travel documents the plaintiff was referred to as her husband. Her 1990 driver licence and 1991 passport are both in the name Keates. In 1991 they jointly purchased a property in regional Victoria which they owned together until it was sold in 1995. In 1991 they purchased and wore matching wedding rings. They commonly discussed their future lives together and, in late June or early July 1995, the plaintiff proposed marriage and the testatrix accepted.
8 According to the plaintiff, he and the testatrix wanted to marry before he took up a consultancy appointment in Pakistan later that year and began to make wedding plans. However their plans were soon interrupted when they learned, in July 1995, that the plaintiff's father was seriously ill. He lived in New Zealand where they then visited him. After spending a few weeks there together they returned to Australia. On 28 July 1995, when both were in Melbourne, they happened to be with the testatrix's daughter in the offices of a firm of solicitors, Slater and Gordon. While waiting they noticed a brochure offering preparation of wills without charge. Within a few minutes they were referred to a solicitor who prepared mutual wills which were duly executed. The originals were retained by Slater and Gordon for safe keeping.
9 The testatrix's will executed on that day contains the following provision:
"2 I APPOINT my husband DENNIS ROBERT KEATES Executor and Trustee of my Will and Estate and if he survives me for twenty-eight days the I GIVE to him the whole of my estate for his own benefit absolutely."
10 The will also provided that, in the event that the plaintiff predeceased the testatrix or died within 28 days, her estate be held on trust for her son Jarrod Martin upon him attaining the age of 25 years. The will executed by the plaintiff at the same time was in identical reciprocal terms in favour of the testatrix, and with the same provision, should the testatrix predecease him, in favour of Jarrod Martin who is referred to in the will as his stepson.
11 Not long afterwards, the plaintiff's father died. He and the testatrix again travelled to New Zealand. By the time they returned to Victoria there was no time for a marriage before the plaintiff left
for Pakistan on 15 September 1995.
12 The testatrix visited the plaintiff in Pakistan twice during 1996 at which time they resumed their marriage plans. They were married in New Zealand on 23 December 1996. The testatrix was aged 49. The plaintiff continued to live and work overseas while the testatrix lived in Melbourne. He returned to Australia permanently in 1999 and they moved to Tasmania together in 2001. They remained married and lived together until the testatrix's death in 2021.
The law to be applied and its application
13 At the time of her death the testatrix lived in Tasmania. Her estate consisted of both movable and immovable property, all of which was in Tasmania. However, although she and the plaintiff were married in New Zealand, her domicile at the time of the marriage was in Victoria. The law to be applied depends on the testatrix's domicile at the date of the marriage: Re Martin [1900] P 211; In the Estate of Micallef [1977] 2 NSWLR 929; Re Coomber [2014] SASC 37. As a result, it is necessary to consider the terms of the Victorian legislation which was then in force. However, I would have reached the same conclusion about the validity of the will had the law of Tasmania applied, whether at the date of the marriage or the date of death.
14 At the time of the testatrix's marriage to the plaintiff in 1996 the Wills Act 1958 (Vic) was in force. It provided, by s 16:
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"16. Effect of marriage on prior will
(1) Subject to sub-sections (2) and (3) every will (except a will made in exercise of a power of appointment when the real or personal estate thereby appointed would not in default of such appointment pass to the executor or administrator or the person entitled under Part I of the Administration and Probate Act 1958) shall be revoked by the marriage of the testator. (2) A will shall not be revoked by a marriage of the testator if –
(a) the will is expressed to be made in contemplation of that marriage; (b) it appears from the terms of the will or from those terms taken in conjunction with the circumstances existing at the time of the making of the will that the testator had in contemplation that he would or might marry and intended the disposition made by the will to take effect in that event; or (c) the will contains a devise bequest or disposition of real or personal property to or confers a general power of appointment upon the person whom the testator marries. (3) Where a will is not revoked by the marriage of the testator by reason of the operation of paragraph (c) of sub-section (2) any real or personal property that is disposed of by the will to, or is the subject of a general or special power of appointment conferred upon, any person other than the spouse of the testator shall be deemed to form part of the residuary estate of the testator and to be property in respect of which the testator died intestate."
15 The 1958 Victorian Act was repealed by the Wills Act 1997 (Vic). That Act commenced after the testatrix and the plaintiff were married. However, by the transitional provision in s 52(2), "the Wills Act 1958, as in force immediately before the commencement of this section, continues to apply to wills made before the commencement of this section." That provision was subject to a number of specified exceptions, but the section dealing with revocation of wills by marriage was not one of the exceptions.
16 Although the testatrix referred to the plaintiff in the will as her husband, I do not think it could be accepted that the testatrix's will was, in accordance with s 16(2)(a), expressed to be made in contemplation of her marriage to the plaintiff. In Re Taylor [1949] VLR 201 the testator left his entire estate to "my wife Alice Jane Louisa Maud Taylor". They were not married at the time but married two years later. O'Bryan J ruled that this was not an expression in the will of the contemplation of the marriage. See also the extensive analysis undertaken by Lindsay J in Re Estate Grant, deceased [2018] NSWSC 1031. However, application of sub-sections (b) and (c) of s 16(2) lead to the result, in each case, that the will is not revoked by the marriage. Section 16(2)(c) has clear application. Under that provision a testator may make a will in favour of a person at a time when marriage between them is not in contemplation. In this case the testatrix's will devises all of her real and personal estate to the plaintiff, whom she later married. That is sufficient to avoid revocation of the will. That is so because the plaintiff survived the testatrix by 28 days, her entire estate devolved to him and there is no residuary estate which falls within the operation of s 16(3). Thus the possible invalidation of other provisions of the will does not arise.
17 I am also satisfied that application of s 16(2)(b) means that the will is not revoked by the marriage. Extrinsic evidence of the testatrix's intention is made admissible by the terms of the provision. Reference to the plaintiff in the will as her "husband" and the circumstances existing when the will was made in July 1995 combine to constitute powerful evidence that she had in contemplation that she would or might marry the plaintiff and intended the disposition made by the will to take effect in that event. She had just accepted his proposal of marriage and they were making wedding plans. They executed mutual wills. They had already been in a stable relationship for some years, owned property together
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and wore wedding rings, and she referred to him as her husband in other contexts. I am satisfied that the testatrix, in her will, disposed of her estate in a manner which she desired to continue to operate if she and the plaintiff should subsequently marry.
18 The result would not be different if the 1997 Victorian Act, which was in force at the date of the testatrix's death, were to apply. By s 13(2)(a) of that Act, a disposition to the person to whom the testator is married at the time of his or her death is not revoked by the marriage of the testator.
19 Nor would the position alter under the Tasmanian law, whether at the date of the marriage or at the date of death. At the date of the testatrix's marriage the Wills Act 1992 (Tas) was in force. Section 18 provided for the general rule that a will is revoked by the marriage of a testator, but s 19(b) was in identical terms to the 1958 Victorian Act, s 16(2)(b), and would operate in the same way. Although the 1992 Tasmanian Act was repealed by the Wills Act 2008 (Tas), the latter Act applies only to wills made after its commencement: s 5(1). There are exceptions to that provision. The effect of marriage on a will is the subject of s 16. By s 5(6), s 16 applies to a will made before the commencement of the 2008 Act but only in respect of a marriage solemnised on or after the commencement of the Act. Again, however, it makes no difference to the result because of the saving provisions in s 16(2)(a) and (b) of the 2008 Tasmanian Act, the effect of which is that a disposition to, or appointment as executor and trustee of, a person to whom the testatrix was married at the time of her death is not revoked by the marriage of the testatrix. In this case all of the testatrix's estate was disposed of in her will to the plaintiff. The plaintiff was appointed as sole executor and trustee. It is open to find, in accordance with s 16(3), that the testatrix made the will in a contemplation not expressed in the will of her marriage to the plaintiff, but it is not necessary to make that finding in the circumstances of this case.
The form of the grant
20 The only remaining question is whether the grant should be pronounced in common form or in solemn form. The principles to be applied were stated by Brett J in McFadyen v Bluett [2017] TASSC 72 at [37] and following, and in Sutherland v Bukoven [2019] TASSC 20.
21 I am satisfied that the will made on 28 July 1995 was duly executed according to the law in both Victoria and Tasmania and that it was the testatrix's last will and testament. Support for those findings arises from the plaintiff's oral evidence, the affidavit evidence and the affidavit of testamentary scripts the plaintiff swore on 30 August 2023. There is no evidence to the contrary. The plaintiff was present when the testatrix executed her will in the presence of employees of Slater and Gordon. The will appears to be rational and properly executed on its face. There are no circumstances which suggest that an affidavit of due execution should be required: Probate Rules 2017, r 46. There is no reason at all to doubt that the testatrix had appropriate capacity to execute a valid will.
22 All interested parties have had the opportunity to participate in the action, even though they did not do so. There is no reason to conclude, apart from the issue of possible revocation by marriage, that the will is not a valid testamentary instrument. I am satisfied that it is appropriate to exercise my
discretion to pronounce the grant in solemn form.
Result and order
23 I find that the will of the testatrix made 28 July 1995 is not revoked by her marriage to the plaintiff on 23 December 1996 and pronounce for the force and validity of that will. I order that probate in solemn form of the will be granted to the plaintiff, Dennis Robert Keates, the executor named therein. I order that the matter be remitted to the Registrar to complete the grant.
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