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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Menz v Menz

Details

AGLC: Menz v Menz [2014] SASC 180
Case: [2014] SASC 180
Decision Date: 28 November 2014

CaseChat Overview and Summary

In the case of Menz v Menz, the court was tasked with determining the validity of a will executed by the deceased in 1978, as well as a handwritten note found on an envelope dated 25 September 2012. The plaintiff, who was married to the deceased, sought to have the 1978 will and the note on the envelope declared as the deceased’s testamentary wishes. The deceased’s four children, who were born between 1986 and 1993, contested the validity of the will and the note on the envelope.

The primary legal issues before the court were whether the will dated 7 July 1978 was validly executed and whether the note on the envelope dated 25 September 2012 could be considered as a testamentary document. The court needed to determine whether the 1978 will was duly executed in accordance with the legal requirements for a valid will and whether the note on the envelope could be accepted as an informal testamentary document, given the circumstances of its discovery and the absence of any evidence that the deceased intended it to replace or supplement the 1978 will.

The court held that the 1978 will was validly executed, noting the presence of two witnesses and the deceased’s familiarity with the process of formal will-making. However, the court found that the note on the envelope did not meet the criteria for a valid testamentary document. The handwritten note on the envelope did not indicate any intention by the deceased to create a formal will or codicil, and there was no evidence that the deceased took steps to formally execute a new testamentary document after the note was written. The court also considered that the note was discovered several months after the deceased's death and that no party had come forward to propound it as a testamentary document.

The court concluded that the 1978 will should be upheld as the valid testamentary document of the deceased. It ordered that the will dated 7 July 1978 be pronounced as valid and enforceable, while the document written on the paper envelope dated 25 September 2012 should be pronounced invalid and without effect.

Orders

Orders of the court

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Background

Background to the litigation

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]25/9/12NOT 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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