McFadyen & Liddy v Panagaris

[2007] SASC 171

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

MCFADYEN & LIDDY v PANAGARIS

[2007] SASC 171

Reasons for Decision of The Honourable Justice White

14 May 2007

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION

Application to have propounded in solemn form an informal will - s 12 of the Wills Act 1936 (SA) - where deceased previously executed valid will - valid will last in the possession of the deceased but unable to be located upon his death - whether informal will expressed the testamentary intentions of the deceased - whether deceased intended informal will to be his will.

Held: requirements of s 12(2) of the Wills Act satisfied - order made pronouncing the force and validity of the informal will - probate of will granted to plaintiffs.

Wills Act 1936 (SA), s 8, s 12, s 25AA, referred to.
McCauley v McCauley (1910) 10 CLR 434, applied.

MCFADYEN & LIDDY v PANAGARIS
[2007] SASC 171

1. WHITE J: This is an application, pursuant to s 12(2) of the Wills Act 1936 (SA) (“the Wills Act”) to have propounded in solemn form an undated, unsigned, handwritten will of Thomas William Hennessy (“the deceased”) who died on about 27 November 2001. Initially, the plaintiffs also sought, pursuant to s 25AA of the Wills Act, rectification of this document, but that application was not pursued.

2. On 18 December 2006 I made orders pronouncing the force and validity of the handwritten document as a will, and granting probate of that will to the plaintiffs.  The orders were made without any opposition by the defendant.  At the time of making those orders, I indicated that I would publish reasons for my decision at a later date.  These are those reasons.

3. The handwritten document did not conform with the requirements prescribed by s 8 of the Wills Act for a valid will in that it was neither signed by the deceased nor witnessed by two witnesses.

4. Section 12 of the Wills Act sets out the circumstances in which a will may be admitted to probate even though not executed in accordance with the formalities required by the Wills Act. Section 12 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.

5. In short, the Court may admit a document which has not been validly executed as a will to probate if it is satisfied that the document expresses testamentary intentions of a deceased person and that the deceased person intended the document to constitute his or her will.

6. In this case, as will be seen, the handwritten document is in the form of a will.  It names the two plaintiffs as the deceased’s executors.  The first plaintiff is a friend of the deceased.  The second plaintiff is one of the stepsons of the deceased, and the defendant one of his stepdaughters.

7. At the hearing, I received by consent the following affidavits:

   1.     the joint affidavit of the plaintiffs sworn 29 March 2005;

   2.     the joint affidavit of the plaintiffs sworn 7 June 2005;

   3.the affidavit of Wendy Ann Bidstrup sworn 7 June 2005 (Ms Bidstrup prepared a previous will for the deceased and is the solicitor acting presently for the plaintiffs);

   4.the affidavit of the first plaintiff sworn 7 June 2005;

   5.the affidavit of the second plaintiff sworn 7 June 2005;

   6.the affidavit of Ms Bidstrup sworn 17 December 2006.

8. On the basis of these affidavits, I make the following findings of fact.

9. In early 1996, the deceased approached a firm of lawyers (Sykes Bidstrup) to have drawn up a deed setting out the terms of an agreement reached by him with his three stepsons, together with a new will.  Both the deed and the will were in due course prepared and executed by the deceased.  The will was signed at the office of Sykes Bidstrup on 24 April 1996.  I will refer to this as the “SB Will”.  By the terms of the SB Will, the plaintiffs were appointed as executors of the deceased’s estate.  The SB Will conformed with the requirements for a valid will and it revoked a previous will prepared for the deceased by a different solicitor.

10. After executing the SB Will, the deceased instructed Sykes Bidstrup to retain the original but to make six copies for him.  The solicitors complied with that instruction.  In June 1996, the deceased wrote to Sykes Bidstrup requesting that they provide to him the original of the SB Will.  On 18 June 1996 the deceased attended at the office of Sykes Bidstrup and was given the original SB Will together with some further documentation.  He signed a document confirming his receipt of that will.  That was the last dealing that the deceased had with Sykes Bidstrup.

11. The deceased died on about 27 November 2001.  Since his death, the plaintiffs have conducted an extensive search of the deceased’s property with a view to locating his last will.  Although copies of the SB Will have been located, the original has not.  In the course of the search, the plaintiffs located the undated, unsigned, handwritten document which is the subject of the present application.  This document commences with the words “This is the Last Will and Testament of me Thomas William Hennessy”.  I will refer to this document as “the handwritten Will”.

12. The handwritten Will comprises three foolscap pages of handwriting.  As noted, it commences with the words “This is the Last Will and Testament of me Thomas William Hennessy”.  It then proceeds (in effect) to appoint the two plaintiffs as the executors.  The handwritten Will then contains a large number of bequests together with provisions investing the executors with powers of a kind commonly vested in executors.  The handwritten Will concludes with the words “I revoke all former Wills and testamentary dispositions at any time heretofore made by me”.  The words “and I declare this only to be my last Will and Testament” appear in the margin of the third page of the document.

13. Whilst there are some differences between the SB Will and the handwritten Will, I am satisfied that the two documents are very similar.  The inference that the deceased was replicating in large part in the handwritten Will the terms of the SB Will is strong.  It is apparent that the handwritten Will was prepared after the SB Will.  The handwritten Will refers to monies borrowed on 14 June 1996, which was of course after the SB Will had been executed.  That fact together with the substantial similarity between the handwritten Will and the SB Will warrants the conclusion that the handwritten Will was copied substantially from the SB Will.  At the same time, however, the deceased made both some deliberate and some accidental changes to it.

14. I am satisfied that the handwritten Will does express the testamentary intentions of the deceased.  On its face, the document contains testamentary intentions.  I refer again to the words with which the document commences and to the words which appear in the margin on the third page.  The handwritten Will uses the terminology of a will.  It makes provision for a number of matters typically found in a document expressing testamentary intentions:  it appoints executors; it provides for specific devises of land; it provides for specific bequests; and it deals (subject to one matter which I mention below) with the residuary estate.

15. I am also satisfied that the deceased did intend the handwritten Will to constitute his will.  The conclusion that the handwritten Will postdated the SB Will is important in this respect.  I accept the submission of Mr Roder (who appeared for the plaintiffs), that the most likely explanation for the deceased going to the trouble of writing out three handwritten pages of foolscap paper after the execution of the SB Will is that he intended the handwritten Will to stand as his will in substitution for the SB Will.

16. There is one fact which may tend to indicate that the deceased did not intend the handwritten Will to constitute his will.  The deceased must have known of the requirements for the execution of a valid will.  It is evident that the deceased had several dealings with various solicitors in the 10 or so years prior to his death in relation to the preparation and execution of a will.  It can be inferred from this that the deceased must have been aware of the formalities required for a valid will and, in particular, of the requirement for him to sign the will and for his signature to be witnessed by at least two other persons.  That being so, it does seem curious that the deceased had not signed the handwritten Will in the presence of two other persons.

17. In this respect, the inability of the plaintiffs to find the original of the SB Will is significant.  The original of the SB Will was returned to the deceased in June 1996.  It was not found amongst the deceased’s property.  In these circumstances, the presumption that the original of the SB Will was destroyed by the deceased is applicable.[1]  I am satisfied that there is no evidence displacing the operation of that presumption in this case.  I am satisfied that the deceased prepared the handwritten Will intending it to be his will, but then put it to one side.  He must later have overlooked the need for it to be executed in the proper manner.

    [1]    McCauley v McCauley (1910) 10 CLR 434.

18. It was not necessary for the plaintiffs to pursue the application for rectification of the handwritten Will.  That application arose from the circumstance that the deceased had not disposed entirely of his estate.  It seems that his failure to do so resulted from an accidental omission of a provision in the SB Will from the handwritten Will.  However, each of the persons who is a beneficiary under the handwritten Will, each of the persons who would be a beneficiary under the SB Will, and each of the persons who would be a beneficiary in the event of an intestacy, has executed a deed, which provides for the manner of distribution of the estate of the deceased.  In those circumstances rectification of the handwritten Will was not required.

19. It is for the reasons given above that I was satisfied that it was appropriate to make the orders on 18 December 2006 pronouncing the force and validity of the handwritten Will and granting probate of that will to the plaintiffs.