Kwok v Ng - [2011] SASC 230

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
KWOK & ANOR v NG & ORS
[2011] SASC 230
Judgment of The Honourable Justice Gray
16 December 2011
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - PRACTICE - SOUTH AUSTRALIA - PROOF IN SOLEMN FORM
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA - DOCUMENT NOT EXECUTED BY MAKER
Plaintiffs sought a grant of probate in solemn form in respect of a will of the deceased dated 12 December 2002 – following the deceased's death a document was found which was a copy of the will of 12 December 2002 with handwritten amendments – the later document itself had not been signed or dated, but the original dating and execution remained – whether the later document met the requirements of section 12 of the Wills Act 1936 (SA) – whether the will of 12 December 2002 should be admitted to probate.
Held: Grant of probate in solemn form of the will of 12 December 2002 ordered – the later document did not meet the terms of section 12 of the Wills Act.
Wills Act 1936 (SA) s 8 and s 12, referred to.

KWOK & ANOR v NG & ORS
[2011] SASC 230
Civil
GRAY J.

The summons in the within proceeding seeks a grant of probate in solemn form.
The plaintiffs, Lok Chow Kwok and Ping Hung Leung, are nominated as executors to the estate of Ng Ka Ping, the deceased, by his will dated 12 December 2002. The plaintiffs have sought a grant of probate of this will, the 2002 will, in solemn form as they consider that the document is the last will of the deceased. Neither of the plaintiffs receive any benefit from the 2002 will.
The plaintiffs have been advised that a possibly relevant document was discovered after the 2002 will had been located. This later document appears to be a copy of the 2002 will on which a number of handwritten changes appear. It is the plaintiffs’ case that the later document is not testamentary and was not intended to be a will and was not executed as such.
There are seven defendants in the proceeding – the deceased’s sons, Ying Fat Ng and Yung Fat Ng; the deceased’s brother, Ng Hoi Lun; the deceased’s sister, Ng Mui Wun; the deceased’s niece, Gigi Lam Sau Chee; the deceased’s mother, Hoi Ki Ng; and, the deceased’s grandson and the infant son of Yung Fat Ng, Cheuk Yat Ng. The first six defendants, all sui juris, did not oppose the admission to probate of the 2002 will. The tendered affidavits establish service of the proceedings on all parties. The third, fourth, fifth and sixth defendants did not appear. The Court appointed a solicitor to represent the interests of Cheuk Yat Ng as his interests conflicted with those of his father, Yung Fat Ng.
A book of documents was tendered in support of the plaintiffs’ case. The book contained a number of affidavits and exhibits. No objection was taken to the tender and the book was received as an exhibit. In addition, oral evidence was called from one of the plaintiffs, Mr Kwok; a handwriting expert; one of the deceased’s sons, Ying Fat Ng; a person who was present when the later will was found, Yui Kwan Lo; and, the solicitor who drew the 2002 will.
The format and plan of the 2002 will is simple and straightforward. It appoints the plaintiffs as executors of the estate. It provides gifts of equal proportions to each of the beneficiaries and if any of the beneficiaries do not survive the deceased by a period of 28 days, their share would then devolve upon the survivor or survivors.[1]
[1] An apparently accidental reference to subparagraph (e) instead of (g) in the wording of the bequest to Yung Fat Ng.
The 2002 will was prepared by the solicitor and witnessed and attested in accordance with section 8 of the Wills Act 1936 (SA).[2] The solicitor informed the Court that she had prepared earlier wills but no subsequent wills for the deceased. The deceased had made contact with the solicitor following execution of the 2002 will but did not give any instruction about any further testamentary disposition. The solicitor gave evidence that she recalled the deceased as being meticulous when giving instructions.
[2] Section 8 of the Wills Act 1936 (SA) is in the following terms:
Subject to this Act, no will is valid unless it is in writing and executed in the following manner:
(a)it must be signed by the testator or by some other person in the testator's presence and by the testator's direction; and
(b)it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
(c)the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) the witnesses must attest and sign the will (but no form of attestation is necessary); and
(e)the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).
The later document is not itself dated and executed. The original dating and execution remains. It presents as a copy of the 2002 will to which certain changes had been made. It altered the address of the deceased, apparently recognising a move that he made from the address at the time of the 2002 will to his subsequent address. It altered his occupation to that of “Director” rather than “Manager”. It varied the terms of the gift to Yung Fat Ng by making that gift subject to the condition of survival of the deceased by more than 28 days. It replaced the gift to the niece with a gift to the grandson, Cheuk Yat Ng. But for the discovery of the later document, the application to prove the 2002 will would have proceeded in the usual course.
The 2002 will was found by one of the plaintiffs at the home of the deceased. The later document was discovered by one of the sons soon thereafter in the deceased’s bedroom. The plaintiffs are named as executors in the later document. The Court was informed that they considered it their duty to bring to the Court’s attention the existence of the later document and the circumstances of its discovery.
The handwriting expert initially formed the opinion that the handwriting on the later document was not that of the deceased. He was later informed that the sons of the deceased were of the view that the handwriting was that of their late father. The handwriting expert reviewed the matter. He confirmed his earlier opinion. He gave sworn evidence in amplification of his written reports. He was not challenged in cross-examination.
The later document has not been proved to be anything more than a possible draft testamentary disposition. The evidence does not establish that the deceased had intended the document to be testamentary in effect. I am not prepared to find that the later document represents anything more than the views of the deceased about possible changes to his will.
Counsel representing the infant child informed the Court that in her view, the evidence did not make out a case that the later document was testamentary. It was accepted that on the evidence, it was nothing more than a draft of proposed changes that may or may not have led to a new will at some future time.
Further, it was not established that the later document was prepared by or at the direction of the deceased. Counsel did not seek to argue against the acceptance of the 2002 will for probate.
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.
…
When regard is had to the terms of section 12(2) and to the findings that I have set out above, it is evident that the later document does not meet the terms of section 12 and that accordingly, there is no later testamentary disposition and in particular, there is no document seeking to revoke the 2002 will.
On the evidence before the Court, I find that the deceased was a meticulous man in regard to his business affairs, he consulted his legal advisor when the occasion arose to make a new will and his conduct in regard to his affairs allows the inference to be drawn that he did not wish to die intestate.
In the circumstances, I order that there be a grant of probate in solemn form of the 2002 will. The plaintiff should present minutes of order for approval by the Court.