MARIANNA ENJAKOVIC DECEASED
[2008] SASC 72
•14 March 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of MARIANNA ENJAKOVIC DECEASED
[2008] SASC 72
Judgment of The Honourable Justice Gray
14 March 2008
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - CHANGING, TRANSPOSING, OMITTING OR SUPPLYING WORDS - OMITTING WORDS
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF THE COURT - SOUTH AUSTRALIA
Ex parte application by executor for omission of words from copy of will to be admitted to probate – executor filed affidavit in support of application but did not make submissions –words sought to be omitted explained testatrix’s reason for not making a disposition to a son – words sought to be omitted inferred inappropriate and possibly dishonest conduct by this son – consideration of jurisdiction of court to omit words of a scandalous, offensive or defamatory nature – consideration of principles to be applied – whether words sought to be omitted effected any disposition of property or had any testamentary purpose – whether words sought to be omitted could be characterised as scandalous, offensive or defamatory – whether words should be omitted in exercise of court’s discretion.
Held: Application dismissed – court’s power to omit words from probate must be exercised with great care and only in a clear case – words sought to be omitted have no direct dispositive effect but explain testatrix’s reason for not making a disposition to son – reasonable person would not be so offended by words as to require their omission.
The Probate Rules 2004 (SA) r 66.01, r 66.02 and r 77; Administration and Probate Act 1919 (SA) s 5; Defamation Act 2005 (SA) s 26, referred to.
In the Will of JP, deceased (1922) 39 WN (NSW) 228; Re Estate of L (deceased) (1996) 185 LSJS 406; In the Estate of Ward (2006) 244 LSJS 326; In the Estate of Hawke (1973) 6 SASR 278; In the Estate of Adler (1989) 155 LSJS 53; D’orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Rasheed v Rasheed (1999) 73 SASR 346; Re Maxwell (1929) 140 LT 471; In the Estate of Hall, deceased [1943] 2 All ER 159; In the Will of O’Reilly [1927] VLR 533; In the Goods of Honywood [1871] LR 2 P&D 251; Re Bryden [1975] Qd R 210; Re Fenwick [1972] VR 646; In the Estate of T, deceased (1961) 105 Sol Jo 325; In the Estate of White [1914] P 153; Re N [1950] VLR 139; In the Goods of Bowker [1932] P 93; Re Mark Alfred Clarkson (Unreported, Supreme Court of Victoria, Fullagar J, 27 October 1987, BC8700477); Legal Practice Board v Said (Unreported, Supreme Court of Western Australia, Seaman J, 12 January 1994, BC9401499); Densley v Mertin [1943] SASR 144 at 145; Bennett v Southwark LBC [2002] ICR 881; Worcester v Smith [1951] VLR 316; John Fairfax & Sons Ltd v Hook (1983) 47 ALR 477; Searles v Scarlett [1892] 2 QB 257, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"scandalous", "offensive", "defamatory"
In the Estate of MARIANNA ENJAKOVIC DECEASED
[2008] SASC 72Civil
GRAY J.
Introduction
This is an ex parte application seeking an order that certain words be omitted from the copy of a will sought to be admitted to probate.
The applicant, Petar Enjakovic, is the sole executor and trustee named in the last will and testament of Marianna Enjakovic, deceased. The will is dated 20 April 1994. The deceased died on 9 June 2006, aged 91 years. On 9 August 2006, Petar Enjakovic lodged an application for probate of the deceased’s will.
The deceased left her entire estate to her son, Petar Enjakovic, or his wife or his child. Her will is relevantly in the following terms:
THIS IS THE LAST WILL AND TESTAMENT of me MARIANNA ENJAKOVIC of 50 Darlington Street, Enfield, in the State of South Australia, Widow.
1.I REVOKE all previous testamentary dispositions made by me AND DECLARE this to be my last Will.
2.1I APPOINT my son PETAR ENJAKOVIC to be my Executor and Trustee.
2.2IF my said son dies before me or before the final distribution of my estate or if he is unable or unwilling to act or continue to act in the office of Executor and Trustee hereof THEN I APPOINT my daughter-in-law WENDY ALICE ENJAKOVIC to be my Executrix and Trustee.
2.3I DIRECT that the expression “my Trustee” hereinafter appearing shall include the Trustee or Trustees for the time being of this my Will whether original or substituted.
3.I GIVE the whole of my estate subject to the payment thereout of my debts, funeral expenses, testamentary expenses and all other costs, disbursements, duties and taxes (including capital gains tax) that may be payable by me or as a result of my death or for which my estate is or becomes liable, to my Trustee to hold UPON THE FOLLOWING TRUSTS:
A.For my said son PETAR ENJAKOVIC if he survives me.
B. If my said son dies before me then for my said daughter-in-law WENDY ALICE ENJAKOVIC if she survives me.
C. If my said daughter-in-law dies before me then for my said grandson JAY ENJAKOVIC absolutely.
4.I RECORD for the information of my Trustee that I have left the whole of my estate to my said son PETAR ENJAKOVIC or his wife or his son to the exclusion of all of my other children as my said PETAR ENJAKOVIC has in the past lived with me and helped me to pay off the mortgage on my house. He has at all times looked after and cared for me and helped me to maintain my house.
5.I DIRECT that my son MILAN ENJAKOVIC is not to benefit from this my Will. For many years he has borrowed money from me and from my late husband MILOS ENJAKOVIC which he has never repaid. My said son owes me over FIVE THOUSAND DOLLARS ($5,000.00). In December, 1993, I was in hospital. While I was in hospital he used my personal identification number to withdraw money from the National Bank at Enfield. I have photocopies of these transactions. I telephoned him and he did not deny that he had taken the money. When I asked: “Why did you take it”? he said he would ring me back but he has not done so.
...
[Emphasis added]
The application is to exclude the emboldened words (“the impugned words”) from the copy of the will to be admitted to probate.
Procedural History
On 19 September 2007, pursuant to Rule 66.01 of The Probate Rules 2004 (SA), Petar Enjakovic filed an ex parte summons seeking the omission of the impugned words from the copy of the will sought to be proved, and requesting that probate of the will be granted with the impugned words omitted. The Rule relevantly provides:
An application for an order for the omission of words of an offensive or libellous nature from the copy of the will to be admitted to proof may be made without notice to any other party to the Registrar by summons … .
An affidavit sworn by Petar Enjakovic, the only affidavit advanced in support of the application, was filed pursuant to Rule 66.02. This Rule provides:
The application must be supported by an affidavit (to which the will must be exhibited) setting out the grounds of the application, together with the consents in writing to the application given by all persons who may be prejudiced by the order:
Provided that if a person who is prejudiced by the application is not sui juris or cannot be ascertained or found, or if the Registrar is satisfied that in the circumstances it is just and expedient to do so, the Registrar may dispense with such consent.
It is to be observed that the Rules envisage that the application may proceed inter partes.
Petar Enjakovic deposed as follows:
The words sought to be omitted do not have any testamentary effect or value and can serve no useful purpose by their being allowed to stand in the grant of probate.
No person shall be prejudiced by the order sought.
I consider that the words which I have requested be deleted from the will are defamatory in nature and should be omitted from the will for that reason.
The affidavit asserts that no person shall be prejudiced by the order sought. Presumably this is why the application is ex parte. No written consents to the application given by persons who may be prejudiced by the order have been received in accordance with Rule 66.02.
On 18 February 2008, the Registrar of Probates, pursuant to Rule 77 of The Probate Rules, referred the application for hearing to a judge of this Court. Petar Enjakovic was invited to make submissions in support of the application, but beyond the matters referred to in his affidavit, has declined to do so.
The Guiding Principles
Although there is no specific legislative provision enabling the Court to exclude words from documents being admitted to probate, the Court has an undoubted power to do so.[1] As observed in In the Estate of Ward,[2] the inherent jurisdiction of this Court expressly provided for in section 5 of the Administration and Probate Act1919 (SA), together with previous decisions of this Court,[3] provide ample authority in support of this power.[4]
[1] In the Will of JP, deceased (1922) 39 WN (NSW) 228 at 229; Re Estate of L (deceased) (1996) 185 LSJS 406 at 407.
[2] In the Estate of Ward (2006) 244 LSJS 326 at [12].
[3] See eg. In the Estate of Hawke (1973) 6 SASR 278; In the Estate of Adler (1989) 155 LSJS 53; Re Estate of L (deceased) (1996) 185 LSJS 406.
[4] In the Estate of Adler (1989) 155 LSJS 53 at 55-57.
The jurisdiction to omit words is an extension of the Court’s inherent jurisdiction to prevent an abuse of the Court’s processes.[5] This jurisdiction extends to matters of probate.[6]
[5] D’orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [201] (McHugh J).
[6] See eg. Rasheed v Rasheed (1999) 73 SASR 346.
Words ordered to be omitted cannot be expunged from the will itself but will be omitted from the probate copy, and from any copies of the will subsequently ordered.[7] Consequently, a court can always look at the original will if further proceedings should arise.
[7] Re Maxwell (1929) 140 LT 471; In the Estate of Ward (2006) 244 LSJS 326 at [20].
It is the prima facie position that probate ought to issue in the words of the will itself.[8] This Court’s power to omit words from probate must be exercised with great care.[9] As was observed by Lord Penzance in In the Goods of Honywood:[10]
[I]t is a power to be exercised with great moderation, and in cases of a definite character. … It would be a great misfortune if the Court on light grounds should interfere in such a matter, and put before the world under its seal a document professing to be, but actually not, a true copy of the will.
These observations were endorsed and applied by Lowe J in In the Will of O’Reilly,[11] when his Honour observed:
But since the decision in In the Estate of Robert White I think I must assume that there is power in the Court to direct that there be omitted from the probate copy of a will statements in no way germane to the dispositions of the will, and which are in their nature scandalous or defamatory. I accept that decision as establishing that there is power in the Court to make an order of the kind sought. But I think it appears plainly from the case of In the Goods of Honywood, that the jurisdiction is one to be exercised with great care … In that case His Lordship rejected the motion, which was similar to that with which I have to deal.
Applying the principle as laid down in the cases to which I have referred, I come to the will with which I have to deal in this case. In my judgment it is a question in every case whether the words sought to be omitted are such as to be scandalous and defamatory and not germane to the dispositions of the will. Construing this document as best I can, I am of opinion that the principle is not one to be applied to the will before me, and that I should not make the order which is sought.
[8] In the Estate of Hall, deceased [1943] 2 All ER 159 at 160
[9] In the Estate of Hall, deceased [1943] 2 All ER 159; In the Will of JP, deceased (1922) 39 WN (NSW) 228 at 229; In the Will of O’Reilly [1927] VLR 533 at 535.
[10] In the Goods of Honywood [1871] LR 2 P&D 251 at 252.
[11] In the Will of O’Reilly [1927] VLR 533 at 535 (footnotes omitted).
The Court’s reluctance to interfere with the words of a will, except in a clear and definite case, is demonstrated by the following observations of Owen AJ in In the Will of JP, deceased:[12]
In this case it is very difficult to see that the testator has been anything more than exceedingly plain-spoken. With regard to the son-in-law, he is described as a spieler and a gambler, and the testator refers to him in the same sentence as a man who practically would gamble with any money which his wife obtained. The applicant does not complain of the allegations as to his gambling habits, but he says that it is derogatory to his dignity or hurts his feelings to have it said against him that he is a spieler. Does that mean anything more than this, that the testator believes him to be a gambler and dishonest at that? Suppose a testator did say he was a gambler and a dishonest gambler, that he believed him to be such, and gave that as a reason why no benefit was conferred on his wife, I doubt very much whether the Court ought to remove such words merely because they are very plain-spoken.
Then take the case with regard to another applicant who was excluded from the will because at one time a threat was made by him that he would set fire to a house which his father was building. I do not say whether it is true or untrue – I have not the facts before me – but it was a very strong reason operating in the father’s mind when he excluded the son from benefits under the will. I doubt whether the Court would be justified in removing from the probate the strongest reason, or one of the strongest reasons which influenced the testator in declining to make a disposition in favour of a particular son.
[Emphasis added]
[12] In the Will of JP, deceased (1922) 39 WN (NSW) 228 at 229 (Owen AJ).
The onus is on those who seek to have probate granted with the exclusion or omission of specific words to establish, on the balance of probabilities, the reason why those words should not be admitted.[13] The attitude of the executors and beneficiaries toward such an application is a material circumstance to be taken into consideration. In this respect, in In the Will of JP, deceased,[14] Owen AJ observed:
It seems to me that the jurisdiction of the Court to eliminate words from the probate and from the copy of the will in the Probate Registry is undoubted; but it also seems to me to be established by such authority as there is that the Court would only do this in exceptional circumstances, and that whether the application is made with the assent of or is consented to by the persons interested in the estate is a matter to be taken into consideration.
…
It may be that where the Court has before it the consent of the persons interested under the will the Court will readily yield to such an application, but in the absence of that consent, the Court, I think, would hesitate before it would accede to the application unless the Court was satisfied that the words were so libellous, so scandalous, or so offensive that they ought not to remain in, and that the words complained of could under no possible circumstance be of any value or have any testamentary effect.
[13] Re Bryden [1975] Qd R 210 at 213; Re Fenwick [1972] VR 646 at 651.
[14] In the Will of JP, deceased (1922) 39 WN (NSW) 228 at 229.
It is recognised that a testator has a right to give reasons for making or not making certain dispositions,[15] and the court would not be justified in excluding from probate words used for that purpose.[16] However, as was recognised by Bucknill J in In the Estate of Hall, deceased,[17] this right is not unqualified:
I think that a testator not only has the right to dispose of his property, but he has the right also to give reasons why he has disposed of it in a certain way. On the other hand, he is not entitled to use his will as means of libelling and unjustly injuring somebody against whom he has a spite; or, even if he has no spite, he has no right, I think, to libel anybody in his will by using words which have no direct bearing on the devolution of his property.
[15] In the Estate of Hall, deceased [1943] 2 All ER 159 at 160.
[16] In the Estate of T, deceased (1961) 105 Sol Jo 325.
[17] In the Estate of Hall, deceased [1943] 2 All ER 159 at 160.
The Court’s power to exclude words of a scandalous, offensive, blasphemous or defamatory character was recently summarised in In the Estate of Ward, [18] where I observed:
[18] In the Estate of Ward (2006) 244 LSJS 326 at [19].
It is clear, on the authorities, that this Court may exclude from the probate copy of the will, words of a scandalous, offensive, blasphemous or libellous character. When determining whether or not such words ought to be omitted, the court has regard to the testator’s right to give reasons for making or not making certain dispositions. However, as Mitchell J observed, [in In the Estate of Hawke [1973] 6 SASR 278 at 279] whilst a testator is entitled to explain why he or she disposed of property in a certain manner, he or she is not entitled to use the will as a “vehicle for libel”. Accordingly, a testator’s reasons will not be disturbed unless they are scandalous or offensive.
[Emphasis added]
The practice is also noted by Tristram and Coote’s Probate Practice (29th Edition 2002) where the authors observe:[19]
Words of an offensive, libellous or blasphemous nature
A testator has the right to explain why he has disposed of his property in a certain way, but he is not entitled to use his will as a vehicle for slander. The court will upon application exclude from probate words of an atrocious, offensive or libellous character.
The court will also exclude words of a blasphemous nature; and the district judge or registrar may refuse to grant probate until the necessary application has been made. The court, however, will not lightly interfere in a man’s testamentary affairs, and will not exclude words on these grounds unless they come fully within these categories; nor, it seems, if the words are in any sense dispositive.
For words to be atrocious or offensive they need not necessarily allude to any individual. In Re Bowker’s Goods the court ordered exclusion of words relating solely to the funeral and disposal of the testator’s remains on the ground that such words, which were liable to be published in the press, were ‘offensive and objectionable and repugnant to the members of the deceased’s family’.
[Emphasis in original]
[19] Tristram and Coote Probate Practice (29th ed, 2002) at 3.264-3.266 (footnotes omitted).
As earlier observed, the jurisdiction being invoked in this application is the jurisdiction of the Court to prevent an abuse of its processes. The probate jurisdiction provides a process for the proving of wills, and it is this process that should be protected from abuse. Conventionally, two criteria have been identified to enliven the jurisdiction – the words must not effect any disposition of property or have any other testamentary purpose; and the words must be capable of being characterised as scandalous, offensive, defamatory or blasphemous.[20] On these criteria being established, the discretion to make an order to prevent an abuse of process is enlivened. Whether the discretion is exercised so as to exclude words from a will is a matter for the Court to determine on a case by case basis. Even if both criteria are established, it does not necessarily follow that the words will be excluded from a will.
[20] Re Estate of L (deceased) (1996) 185 LSJS 406 at 408; In the Estate of Hawke (1973) 6 SASR 278 at 279; Re N [1950] VLR 139 at 145-146; In the Goods of Bowker [1932] P 93; In the Will of O'Reilly [1927] VLR 533 at 535; In the Estate of White [1914] P 153 at 154.
It is a question of fact in the circumstances of the case whether the words sought to be omitted satisfy the pre-requisites identified above.[21] It is relevant to note that upon an application to exclude words from the probate of a will, the Court does not inquire into their truth.[22]
[21] In the Will of O’Reilly [1927] VLR 533 at 535.
[22] In the Estate of Hawke (1973) 6 SASR 278 at 279.
The meaning of the word “scandalous” has most commonly been considered in the context of the Court’s power to strike out pleadings and affidavits as an abuse of process. In this context, in Re Mark Alfred Clarkson,[23] Fullagar J provided the following definition:
There can be little doubt of what is meant by “scandalous”, but I should perhaps say that two of the meanings of “scandal” are, on the one hand, a general feeling of there being an outrage upon propriety and, on the other, a malicious gossip. Assistance towards the meaning of “scandalous” is provided by the following expressions: outrageous, deserving of opprobrium, deserving of the label of shameful or disgraceful, causing scandal, of the nature of malicious gossip.
In Legal Practice Board v Said,[24] Seaman J cited the following definition with approval:
Scandal consists in the allegation of anything which is unbecoming to the dignity of the Court to hear or is contrary to good manners or which charges some person with a crime not necessary to be shown in the cause, to which may be added that any unnecessary (not relevant to the subject) allegation bearing cruelly upon the moral character of an individual is also scandalous.
The Macquarie dictionary meaning of “scandalous” is something that is “disgraceful to reputation; shameful or shocking”. In my view the above definitions are adept to an understanding of the meaning of “scandalous” in the context of the within proceedings.
[23] Re Mark Alfred Clarkson (Unreported, Supreme Court of Victoria, Fullagar J, 27 October 1987).
[24] Legal Practice Board v Said (Unreported, Supreme Court of Western Australia, Seaman J, 12 January 1994). This definition was also cited with approval by the Court of Appeal in Bennett v Southwark LBC [2002] ICR 881 at [53].
The meaning of the word “offensive” has most commonly been considered in the context of offences of “offensive behaviour”. In this context, in Densley v Mertin,[25] Napier CJ observed that the term had the following meaning:
… “giving, or of a nature to give offence; displeasing; annoying; insulting,” and it seems to me that the word is used objectively, ie it includes any conduct which is calculated to annoy or give offence to other people, even if that result is not actually intended.
In Worcester v Smith,[26] O’Bryan J observed:
Behaviour, to be “offensive” … must, in my opinion, be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.
The Macquarie dictionary meaning of “offensive” is “causing offence or displeasure; irritating; highly annoying … repugnant to moral sense … pertaining to offence or attack”. In my view the above definitions would apply equally to an understanding of the meaning of “offensive” in the context of the within proceedings.
[25] Densley v Mertin [1943] SASR 144 at 145.
[26] Worcester v Smith [1951] VLR 316 at 318.
The meaning of “defamatory” has been the subject of extensive judicial discussion and is well-settled. An example comes from the decision of the Federal Court in John Fairfax & Sons Ltd v Hook,[27] where Gallop & Morling JJ observed:
A matter is defamatory if it tends “to lower the plaintiff in the estimation of right-thinking members of society generally” (Gatley, op cit, para 41) or “if it is likely to cause ordinary decent folk of the community, taken in general, to think less of him” (per Jordan CJ in Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 172). … The meaning to be given to the words used is the meaning they would convey to the ordinary reasonable man.
[27] John Fairfax & Sons Ltd v Hook (1983) 47 ALR 477 at 481.
It should be noted here that publication by the executor (absent malice) is privileged, being an accurate republication of a register kept pursuant to statute.[28] Further, a will published with a grant of probate would be a “public document” for the purposes of the statutory defence in section 26 of the Defamation Act 2005 (SA). Nevertheless, the Court will not allow its processes to be abused as a vehicle of defamation.
[28] See Searles v Scarlett [1892] 2 QB 257; Gatley on Libel and Slander, (10th Ed, 2004) at [14.105].
It is not relevant for the purposes of this application to consider the meaning of “blasphemous”.
The Present Application
The application to exclude the impugned words is advanced by the executor, Petar Enjakovic. His affidavit is the only material filed to support the application. There is no evidence before the Court that Milan Enjakovic wishes to have the impugned words excluded, or for that matter, is even aware of the terms of the deceased’s will. Petar Enjakovic has declined to make submissions beyond his affidavit in support of the ex parte application.
The deceased through the impugned words has provided her reason for excluding her son, Milan Enjakovic, from receiving any benefit under her will. This follows immediately on from the paragraph in the will in which she explains her reason for leaving her entire estate to her son, Petar Enjakovic, or his wife or his son, to the exclusion of all her other children. The deceased, in including these two clauses in her will, explained the reasons for the provisions she intended to make and her reasons for not making other provisions. Each explanation supplements the other.
It is to be accepted that the impugned words have no direct dispositive effect. The words do, however. provide part of the explanation for the deceased’s reason not to make a disposition to Milan Enjakovic.[29] The words do not appear to have been included in the will for the purpose of injuring his character or reputation.[30]
[29] In the Will of JP, deceased (1922) 39 WN (NSW) 228 at 229; In the Estate of Hall, deceased [1943] 2 All ER 159.
[30] In the Estate of Hall, deceased [1943] 2 All ER 159.
The impugned words infer inappropriate and possibly dishonest conduct on the part of Milan Enjakovic. Prima facie, any accusation of dishonesty is a defamatory attack upon the reputation and moral character of an individual. Furthermore, an allegation of theft, which imports a notion of criminality, bears a more serious adverse connotation. However, the impugned words stop short of directly asserting that Milan Enjakovic had engaged in dishonesty. When the deceased recounted her discussion with Milan Enjakovic, she did not suggest that he had obtained her money dishonestly. Her concern appeared to be that no explanation was provided for why he had taken the money. The impugned words follow, and appear to add, to the deceased’s statement about Milan Enjakovic having failed to repay monies borrowed in the past from the deceased and her late husband. One can understand how the impugned words could be viewed as being “hurtful”, “painful” or “unkind”.[31] However I have concluded that a reasonable person would not be so offended by the words as to require their omission.
[31] In the Estate of White [1914] P 153 at 154; See In the Will of JP, deceased (1922) 39 WN (NSW) 228 at 229;
For these reasons, I am not satisfied that the impugned words should be omitted from the copy of the will to be admitted to probate. The application is dismissed.
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