MORRIS CHARLES HASSAN DECEASED

Case [2008] SASC 14

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

In the Estate of MORRIS CHARLES HASSAN DECEASED

[2008] SASC 14

Judgment of The Honourable Justice Gray

1 February 2008

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA - NO REASONABLE DOUBT THAT MAKER INTENDED DOCUMENT AS WILL

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS

Application for grant of probate of informal document executed by deceased, titled “confidential memorandum” – application opposed by a child of the deceased who was expressly excluded as a beneficiary – whether deceased intended to give effect to confidential memorandum as his last will and testament – whether disposition of invalid gifts demonstrated a lack of testamentary intention – whether operation of confidential memorandum was conditional on future events – consideration of extrinsic evidence and oral testimony.

Held:  Application allowed – confidential memorandum admitted to probate – deceased intended confidential memorandum to be his last will and testament – invalid gifts do not negate testamentary intention – confidential memorandum not a conditional document.

Wills Act 1936 (SA) s 8; The Probate Rules 2004 (SA) r 52.01, r 52.06 and r 52.08; Evidence Act 1929 (SA) s 45A, referred to.
Dalrymple v Campbell [1919] P 7; In re Estate of Knibb [1962] 2 All ER 829; In re Berger, deceased [1990] Ch 118; Russell v Scott (1936) 55 CLR 440; Re Resch’s Will Trusts; Le Cras v Perpetual Trustee Co Ltd [1969] 1 AC 514; Whyte v Pollok (1882) 7 App Cas 400; Bailey v Bailey (1924) 34 CLR 558; Lutheran Church of Australia South Australia District Incorporated v Farmers’ Co-Operative Executors and Trustees Limited and Others (1969) 121 CLR 628; In the Estate of Treloar (1984) 36 SASR 41; In the Goods of Spratt [1897] P 28; Corbett v Newey [1998] Ch 57; In Re Bathern [1941] SASR 266; In the Goods of Mayd (1880) 6 P.D. 17; In the Will of Wilson (1903) 9 ALR 217; Godman v Godman [1920] P 261, considered.

In the Estate of MORRIS CHARLES HASSAN DECEASED
[2008] SASC 14

Testamentary Causes Jurisdiction

GRAY J.

  1. This is an application for a grant of probate.

  2. The application has been made in respect of a document executed on 29 April 2005 (“the April 2005 document”) claimed to be the last will and testament of Morris Charles Hassan (deceased).  The application has been brought by the plaintiffs, the executors appointed under the April 2005 document, against the first defendant and caveator, Matthew Morris Hassan, and the second to fifth defendants, Jeremy Gordon Hassan, Margaret Ann Hassan, Jane Monica Heyburn and Mark Heyburn, in their capacity as beneficiaries.

  3. The principal issue arising in these proceedings is whether the April 2005 document was executed by the deceased with the intention that the document should operate as a “revocable ambulatory disposition” of the deceased’s property, to take effect…

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MORRIS CHARLES HASSAN DECEASED [2008] SASC 14
Case
[2008] SASC 14
Decision Date

CaseChat Overview and Summary

In the Supreme Court of South Australia, the case of Morris Charles Hassan Deceased involved a dispute over the validity of a document intended as a will. The application for the grant of probate of an informal document executed by the deceased, titled “confidential memorandum,” was opposed by a child of the deceased who was expressly excluded as a beneficiary. The central legal issues were whether the deceased intended the document to serve as his last will and testament, whether the disposition of invalid gifts negated testamentary intention, and whether the operation of the document was conditional upon future events. The court had to determine if the document was a valid testamentary disposition.

The court concluded that the deceased unequivocally intended the “confidential memorandum” to be his last will and testament. The execution of the document complied with the statutory requirements of the Wills Act, including being signed by the deceased in the presence of two witnesses who also signed the document. The presence of invalid gifts and references to a more formal document did not negate the testamentary intention. The court found that the document was not conditional upon the execution of another will, as the deceased intended the “confidential memorandum” to operate as his will regardless of future arrangements. Extrinsic evidence and oral testimony were considered to support the deceased's intention.

Ultimately, the court allowed the application for the grant of probate, admitting the “confidential memorandum” as the deceased's last will and testament. The court found that the document was duly executed and reflected the deceased's clear intention to revoke earlier wills and distribute his assets as specified. The final orders of the court would reflect the granting of probate to the “confidential memorandum” as the valid will of Morris Charles Hassan.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The legal burden of proving an instrument as a will lies on the propounder of the instrument. Once the proponent has established a prima facie case, then the onus probandi lies upon the party seeking to impeach the will to show that it ought not be admitted to proof. In Bailey v Bailey,[4] Isaacs J, with whom Gavan Duffy and Rich JJ agreed, relevantly summarised the principles as follows:[4] Bailey v Bailey (1924) 34 CLR 558 at 570-571 (footnotes omitted).(1)The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument (Baker v. Batt, at pp. 319-320; Bremer v. Freeman, at p. 357; Durnell v. Corfield).(2)This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence (Symes v. Green, at p. 402; Baker v. Batt).(3)The proponent's duty is, in the first place, discharged by establishing a prima facie case (Bremer v. Freeman, at p. 357).(4)A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator (Durnell v. Corfield; Baker v. Batt; Barry v. Butlin, at p. 482; Fulton v. Andrew, at p. 461, and cases there cited).…(6)The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances (Barry v. Butlin; Jones v. Godrich, at pp. 19-20; Wrench v. Murray).(7)As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries (Wrench v. Murray; Brogden v. Brown; Durnell v. Corfield; Symes v. Green; Bama Soondari Debi v. Tara Soondari Debi, at p. 139, per Lord Shand; Sajid Ali v. Idab Ali; Jagrani Kunwar v. Durga Prasad, at p. 98, per Lord Shaw; Banks v. Goodfellow; Harwood v. Baker, at p. 285; Van Alst v. Hunter); (b) the exclusion of persons naturally having a claim upon the testator (Wrench v. Murray; Brogden v. Brown; Harwood v. Baker; Banks v. Goodfellow); (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit (Wheeler v. Alderson, at p. 587; Baker v. Batt; Barry v. Butlin; Bur Singh v. Uttam Singh). (8)Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof (Bremer v. Freeman; Waring v. Waring, at p. 355; Sutton v. Sadler, at p. 96; Bama Soondari Debi v. Tara Soondari Debi; Bates v. Graves, at p. 288; Bur Singh v. Uttam Singh).Extrinsic Evidence

Decision

Reasons for decision

GRAY J
There is nothing on the face of the April 2005 document to support the conclusion that the operation of the will of the April 2005 document was conditional. The fact that the document makes reference to a will of the spouse of the deceased does not render the April 2005 document contingent upon the preparation and execution of such a document. The fact that the April 2005 document was executed in accordance with the statutory requirements indicates that the deceased intended the document to operate as his will, irrespective of future arrangements. The deceased’s desire to draw up a more formal document in the future, and to finalise arrangements for his spouse’s will, is not sufficient to invalidate this intention. The April 2005 document is not a conditional document. No express condition appears on the face of the document. Conclusions On the basis of the findings and considerations referred to earlier, I have reached the following conclusions. Mr Goldberg took the deceased through the April 2005 document and received instructions that the document recorded the wishes of the deceased, and the instructions of the deceased. Mr Goldberg explained to the deceased that the purpose of printing the words at the end of the April 2005 document “pending execution of a more formal document I express this to be my last will [and] testament and super nomination in substitution for all prior instruments” was so that the document would constitute the will of the deceased and would be in substitution for the earlier wills. The deceased understood that the April 2005 document constituted his will and revoked all earlier wills. The deceased executed the April 2005 document intending it to be his last will and testament. The statutory requirements of section 8 of the Wills Act were complied with in the manner of the execution of the April 2005 document. The hand printed words at the end of the April 2005 document “I express this to be my last will and testament” and the words “Pending execution of a more formal document” do not detract from the import of the execution of the April 2005 document. These words support the conclusion that the execution was for the very purpose of giving effect to the document as a will. The document was not a communication of the dispositions the deceased thought he might make. The April 2005 document became the deceased’s will – that is, a disposition of his assets to have effect on his death.[28][28] In the Estate of Treloar (1984) 36 SASR 41. I find that the April 2005 document was duly executed. The document was signed by the deceased, his signature was made in the presence of two witnesses, present at the same time, the witnesses, Mr Goldberg and Ms Hendriks, attested and signed the April 2005 documents, and their signatures were made in the presence of the deceased. The presumption, earlier referred to, arises. In reaching the above conclusions, I have weighed and considered and acted on extrinsic evidence including the deceased’s instructions that he wished to change his will to leave nothing to Matthew Hassan, and to his subsequent statements that he had made a will omitting any provision to Matthew Hassan. In particular, I accept that this was the substance of the deceased’s earlier referred to conversations with Mr Hunt, Mrs Heyburn and Mr Bensimon.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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