Menz v Menz - [2014] SASC 180

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
MENZ v MENZ
[2014] SASC 180
Reasons for Decision of The Honourable Justice Gray
28 November 2014
SUCCESSION - MAKING OF A WILL - EXECUTION - GENERALLY - PRESUMPTION AND EVIDENCE OF DUE EXECUTION
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - GENERALLY
Application to propound a will in solemn form. The deceased left a will dated 7 July 1978 in which she appointed her husband, the plaintiff, as executor and sole beneficiary of her estate. On 16 April 2013, a divorce order was made in the Federal Magistrates Court in relation to the marriage of the deceased and the plaintiff. The divorce application was discontinued following the death of the deceased. Following the death of the deceased, an envelope was located bearing handwritten text of the deceased of a possibly testamentary character. That document provided that the deceased’s estate was to be divided between the four children of the deceased and the plaintiff. The children were joined as defendants in the proceeding and advised of the hearing date, but did not appear. The plaintiff seeks a grant of probate of the 1978 will in solemn form. The plaintiff also seeks an order pronouncing against the handwritten document appearing on the envelope.
Whether a grant of probate in solemn form should be made in respect of the 1978 will. Whether the disposition to the plaintiff in the deceased’s will is revoked as a result of the divorce proceedings.
Held (granting the application):
1. In the circumstances, and having regard to the fact that no party has come forward to challenge the validity of the 1978 will, it is appropriate to make an order pronouncing for the force and validity of that document.
2. As a result of the death of the deceased, the divorce of the marriage of the deceased and the plaintiff did not take effect. Section 20A of the Wills Act 1936 (SA) has no operation and the disposition in favour of the plaintiff in the deceased’s will is not revoked.
3. The nature of the handwritten writing appearing on the envelope is such as to give rise to a well founded suspicion that the document is not a valid testamentary instrument. No party has come forward to propound the envelope as a will. In these circumstances, it is appropriate to make an order pronouncing against the validity of the envelope.
Wills Act 1936 (SA) s 12(2) and s 20A; Family Law Act 1975 (Cth) s 55(4), referred to.
Wheatley v Edgar [2003] WASC 118; In the Marriage of Abbott (1995) 123 FLR 424; Spoehr v Health Services Charitable Gifts Board [2014] SASC 122; Kwog v Ng [2011] SASC 230; James v Gaye [2012] NSWSC 857, considered.

MENZ v MENZ
[2014] SASC 180
Civil
GRAY J.

This is an application to propound a will in solemn form.
Olivia Muriel Menz, the deceased, died on 8 May 2013. At the time of her death, the deceased was married to Robert John Menz, the plaintiff in the present proceeding. The deceased left a will dated 7 July 1978 in which she appointed the plaintiff and William John Menz as her executors and trustees. William Menz died during the lifetime of the deceased. The plaintiff seeks a grant of probate of the will of the deceased in solemn form. The defendants to the action are the four children of the deceased and the plaintiff, Clementine Susanna Adelaide Menz, Ursula Charlotte Menz, Matilda Louise Menz and Lawrence Jethro Menz. They were joined as defendants as they would each be entitled to an interest if the deceased’s estate were distributed in accordance with the rules of intestacy and are therefore persons whose interests are or may be adversely affected by the making of a grant.
On 7 August 2014, the matter proceeded before me for hearing. The application was not opposed. The defendants were advised of the hearing, but did not appear. A number of affidavits were tendered in support of the application. On the hearing of the application, the plaintiff gave oral evidence. In recording the facts that appear later in these reasons, I have drawn from the contents of those affidavits and from that evidence.
On 3 October 2014, I made orders in the terms sought by the plaintiff. I indicated that I would publish my reasons for doing so at a later date.
Background
The deceased and the plaintiff were married in 1977. On 7 July 1978, the deceased executed her will. By her will, the deceased bequeaths the whole of her estate to the plaintiff absolutely. The will further provides that if the plaintiff does not survive the deceased for one month, she bequeaths her estate to her trustees to hold upon trust for such of her children as shall attain the age of 21 years and, if more than one, in equal shares.
The will has been signed by two witnesses, Charles Anthony Lempriere Abbott, the solicitor who drafted the will, and Martese Wright, his then secretary. Gregor Douglas McLeod, a partner of the law firm where Mr Abbott worked at the time of the execution of the will, deposed that Mr Abbott predeceased the deceased. Ms Wright left the firm in the 1980s and the firm has no information as to her whereabouts. A search of the electoral roll failed to reveal any person of the name Martese Wright. A letter sent to Ms Wright’s last known address was returned to the sender marked “unknown”. Mr McLeod deposed that he frequently observed Mr Abbott and Ms Wright write and subscribe their names to documents. He indicated that, having inspected the propounded will, he believed the signatures of the witnesses to be those of Mr Abbott and Ms Wright.
The four children of the deceased and the plaintiff, the defendants in the present proceeding, were born between 1986 and 1993.
In or about 2010, the plaintiff and the deceased separated. In 2012, proceedings were commenced in the Family Court of Australia for a divorce order between the plaintiff and the deceased. On 16 April 2013, a divorce order was made in those proceedings. On 8 May 2013, the deceased died. On 15 May 2013, the divorce application was discontinued before Registrar Paxton, noting the deceased’s death. A copy of the Federal Magistrates Court divorce order was provided to the Court.
A statement of assets and liabilities discloses that the deceased’s estate has a net value of $1,132,379.92.
The plaintiff deposed that in a search of the deceased’s home following her death, a handwritten document was found. That document, which has been provided to the Court, is a white, coffee stained envelope. The document provides:
House + car to Tilda for as long as she needs.
$50000 in bank – 2/3 to Tilda, the rest equal between the 3 kids. Pictures & jewellery as agreed.
[signed]
25/9/12
NOT to go to any hospital.
The plaintiff gave evidence that “Tilda” was the name used for the deceased’s daughter, Matilda, who acted as the deceased’s primary carer at the time of her death.
Further searches of the deceased’s home and an advertisement in the Law Society’s InBrief publication have not revealed any further testamentary documents of the deceased.
As earlier noted, the plaintiff seeks to propound the deceased’s will in solemn form. The plaintiff also seeks an order pronouncing against the handwritten document appearing on the envelope. The plaintiff gave evidence that he had reached an informal agreement with his children that the deceased’s estate would be distributed in accordance with her wishes as expressed in the writing on the envelope. In particular, it was agreed that Matilda would receive two thirds of the deceased’s estate and that the rest would be shared equally between the other children. The sum of $75,000.00 in the deceased’s bank account would be kept separate and used for shared activities, such as family holidays.
The Will
In Wheatley v Edgar, EM Heenan J addressed the circumstances in which the Court could make a grant in solemn form:[1]
In my view these authorities produce the result that for there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the will, or by any other party to that suit, whether joined or cited, of the formal validity of the will, on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time: Barry v Butlin (1838) 2 Moo PC 480 and Pereira v Pereira [1901] AC 354 PC. In this regard the propounder may take advantage of the rule that a will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding. If there is evidence to the contrary it is for the propounder to establish affirmatively that the testator was of sound mind: Western Australian Trustee Executor Agency Co Ltd v Holmes [1961] WAR 144. Nevertheless, there must be proof at least to this extent on the civil standard to justify a grant in solemn form.
…
… when a compromise is reached between the parties to a contested action for proof in solemn form, it is open to the court to decree in favour of the will either in common form or in solemn form but, for solemn form to be decreed sufficient evidence to satisfy the minimum requirements for validity must be adduced and that this will require, at least, proof of due execution. This is entirely consistent with the other cases so far examined. There is also the significant observation that, whether or not there should be a decree in solemn form by the court in the event of a compromise will also depend on the circumstances of the particular case.
[1] Wheatley v Edgar [2003] WASC 118, [24]-[26].
As earlier mentioned, one of the witnesses to the deceased’s will is deceased and the whereabouts of the other witness is unknown. In such circumstances, due execution may be proven by evidence of the handwriting of the witnesses.[2] Having regard to the affidavit of Mr McLeod, I am satisfied that the signatures of the witnesses to the propounded will are those of Mr Abbott and Ms Wright.
[2] Re Unsworth (1974) 8 SASR 312; Burnside v Mulgrew [2007] NSWSC 550, [12]-[15].
In the circumstances and having regard to the fact that no party has come forward to challenge the validity of the 1978 will, I am satisfied that it is appropriate to make an order pronouncing for the force and validity of that document.
A further question that arises on the application is whether the disposition to the plaintiff in the deceased’s will is revoked as a result of the divorce proceedings. Section 20A of the Wills Act 1936 (SA) relevantly provides:
(1)If, after making a will, the testator's marriage is terminated, the following provisions apply:
(a)     a disposition of a beneficial interest in property by the will in favour of the testator's former spouse is revoked;
(b)     an appointment by the will of the testator's former spouse as executor, trustee or guardian is revoked;
(c)     a grant by the will of a power of appointment exercisable by or in favour of the testator's former spouse is revoked;
(d)     the will is to have effect with respect to the revocation of such a disposition, appointment or grant of a power as if the former spouse had died on the date of termination of the marriage.
…
(3)     For the purposes of this section—
(a)     a marriage is terminated—
(i)when a decree of dissolution of a marriage becomes absolute under the Family Law Act;
(ii)on the making of a decree of nullity under the Family Law Act in respect of a purported marriage;
(iii)on the termination or annulment of a marriage or purported marriage in accordance with the law of a place outside Australia if the termination or annulment is recognised in Australia under the Family Law Act;
…
The operation of the Family Law Act 1975 (Cth) in respect of the dissolution of marriages was summarised by the Full Court of the Family Court in In the Marriage of Abbott as follows:[3]
The power of the Family Court of Australia to grant a dissolution of marriage is in Pt VI of the Act. The ground is that “the marriage had broken down irretrievably” (s 48(1)). That ground “shall be held to have been established” if the Court is satisfied that “the parties separated and thereafter lived separately and apart for a continuous period of not less than twelve months immediately preceding the date of filing of the application for dissolution of marriage” (s 48(2)). However, by s 48(3) it is provided that “a decree of dissolution of marriage shall not be made if the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed”.
Those provisions define the elements, and the only elements, relevant in the hearing of an application for dissolution of marriage in Australia since the Family Law Act came into operation in January 1976.
Section 54 provides that “a decree of dissolution of marriage under this Act shall, in the first instance, be a decree nisi”, thus following the procedure since divorce by judicial decree was introduced in England in 1857 and in the Australian Colonies (later States) and the Commonwealth subsequent to that time.
By s 55 a decree nisi becomes absolute “by force of this section” at the expiration of one month from the making of the decree or the making of an order under s 55A, whichever is the later. It provides for the extension or reduction of the time between decree nisi and decree absolute in certain circumstances, including the possibility of appeal, and subs (3) provides that where an appeal is instituted a decree shall become absolute at the expiration of one month from the day on which the appeal is determined or upon which the decree would otherwise become absolute, whichever is the later. By O 36A, r 7(5), the meaning of “appeal” is extended to include the review of a decree nisi granted by a registrar or judicial registrar.
Section 56 provides that the registrar of the Court shall, where a decree nisi becomes absolute, prepare and file a memorandum of that fact and date and may issue a certificate to that effect, such certificate to be “in all Courts … and for all purposes, evidence of the matters specified in the certificate”.
However, to the above needs to be added the provisions of s 55A that a decree nisi “does not become absolute unless the Court has, by order, declared that it is satisfied” that there are no children of the marriage who have not attained the age of 18 years or that the only children who have not attained that age are the children specified in that order and “proper arrangements in all of the circumstances have been made for the welfare of those children” or there are “circumstances by reason of which the decree nisi shall become absolute even though the Court is not satisfied that such arrangements have been made”.
Thus it appears that the term “decree of dissolution of marriage” means the decree nisi and the decree absolute, and does not include the declaration under s 55A, although the decree nisi cannot become absolute until such a declaration has been made.
[3] In the Marriage of Abbott (1995) 123 FLR 424, 430-1.
Section 55(4) of the Family Law Act provides:
A divorce order does not take effect by force of this section if either of the parties to the marriage has died.
As a result of the death of the deceased, the divorce of the marriage of the deceased and the plaintiff did not take effect. Section 20A of the Wills Act has no operation and the disposition in favour of the plaintiff in the deceased’s will is not revoked.
The Envelope
The nature of the writing appearing on the envelope, as extracted above, gives rise to the possibility that the document is testamentary in nature. The document appears to have been signed by the deceased, but has not been signed by any witness. No party has come forward to propound the document as an informal will in accordance with section 12(2) of the Wills Act.
In the recent decision of Spoehr v Health Services Charitable Gifts Board,[4] I considered the situation that arises where the court is presented with a document of an apparently testamentary nature which no party seeks to propound. That case concerned an application for judgment by consent that the Court pronounce against the force and validity of a document of an apparently testamentary nature. It was alleged that the testator lacked capacity at the time of the making of the document. Pursuant to a settlement agreement, the sole beneficiary under the document consented to an order being made pronouncing against the validity of the document and a grant of letters of administration of the deceased’s estate being made to the plaintiff. After reviewing the relevant authorities, I concluded:[5]
In summary, the authorities give rise to the following principles regarding contentious probate actions where orders are sought by consent, in default or by reason of being undefended. The Court does not have a duty to conduct any independent investigation in relation to the validity of the will. However, in cases where an order is sought pronouncing against a will, the Court should conduct an investigation where circumstances exist which give rise to a well founded suspicion that the document is not valid and no party comes forward to rebut those circumstances.
[4] Spoehr v Health Services Charitable Gifts Board [2014] SASC 122.
[5] Spoehr v Health Services Charitable Gifts Board [2014] SASC 122, [38].
In Kwog v Ng,[6] the testator had executed a will in 2002. A later document, apparently a copy of the earlier will with handwritten amendments, was found following the testator’s death. No party sought to propound the later document. After reviewing the evidence before the Court, I ordered that there be a grant of probate in solemn form of the 2002 will and observed:[7]
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.
…
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.
[6] Kwog v Ng [2011] SASC 230.
[7] Kwog v Ng [2011] SASC 230, [11]-[14].
In James v Gaye, the testator had executed a will in 2000.[8] There were a series of apparently informal testamentary documents. No party came forward to propound those documents. White J stated:[9]
If no beneficiary who might take under any of the informal testamentary instruments seeks a declaration that any of those instruments forms the will, or the amendment or revocation of a will, of the deceased, then the plaintiff is entitled to a grant of probate in solemn form of the 2000 will. Whilst there is evidence that the deceased suffered a mental illness, there is no evidence to displace the presumption of capacity in 2000 arising from the due execution of that will. The deceased's then capacity is attested to by the solicitor who prepared the will. There would be questions concerning the deceased's capacity to make wills in 2010 as well as whether the deceased intended the documents to form his will. If none of the potential beneficiaries under an informal instrument seeks to propound it, there is no reason not to make a grant of probate in solemn form in respect of the 2000 will (Re Grey Smith [1978] VR 596; Wheatley v Edgar [2003] WASC 118; (2003) 4 AS TLR 1; Buckley v Buckley [2011] WASC 184).
[8] James v Gaye [2012] NSWSC 857.
[9] James v Gaye [2012] NSWSC 857, [12].

Returning to the present application, I consider that the nature of the handwritten writing appearing on the envelope is such as to give rise to a well founded suspicion that the document is not a valid testamentary instrument. The existence of the 1978 will indicates that the deceased was aware of the process of attending a solicitor and formally executing a testamentary document. Despite this, there is no evidence before the Court to suggest that the deceased took any steps during the period of more than seven months between the writing of the envelope and her death to formally execute a new will or codicil. No party has come forward to propound the envelope as a will. In these circumstances, I consider it appropriate to make an order pronouncing against the validity of the envelope.
Conclusion
It was for the above reasons that I made orders pronouncing for the force and validity of the deceased’s will dated 7 July 1978, and against the document written on the paper envelope dated 25 September 2012.