Morro v Stratton - [2016] SASC 20

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
MORRO & ANOR v STRATTON
[2016] SASC 20
Judgment of The Honourable Justice Bampton
19 February 2016
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - GENERALLY
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - NO REASONABLE DOUBT MAKER INTENDED DOCUMENT AS WILL
Application for an order admitting a will to probate in solemn form – the document propounded as the last will and testament of the deceased is endorsed “copy”, contains a Post-it note attached by sticky tape, and refers to a schedule that has not been located and to documents referred to as appendages – date altered on document and not in compliance with s 24 of the Wills Act 1936 (SA) (the Act) – the defendant made but did not pursue an allegation of incapacity and did not appear at the hearing of the application – whether deceased had testamentary capacity at the time of making the will – whether the document complies with s 8 of the Act – whether a grant of probate should be made in solemn form.
Held:
1. Deceased had testamentary capacity at the time of the making of the 2011 will.
2. The date alteration to be admitted to probate under s 12(2) of the Act. Otherwise the 2011 will satisfies s 8 of the Act.
3. Probate in solemn form be granted to the first plaintiff of the will dated 17 May 2011 of the deceased being the document marked “A” attached to the affidavit of the first plaintiff sworn 6 May 2011 without the yellow Post-it note, the schedule and appendages referred to.
Wills Act 1936 (SA) s 8, s 12, s 24; Probate Rules 2004 (SA) r 13.08, referred to.
Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul [2009] WASC 75; Wheatley & Anor v Edgar & Ors [2003] WASC 118; Tsagouris & Anor v Bellairs & Ors [2010] SASC 147; Sugden v Lord St Leonards (1876) 1 PD 154; In the Estate of Adams (Unreported, Supreme Court of South Australia, Legoe J, 16 April 1992); Succession Law in South Australia David Haines QC (LexisNexis, Butterworths, 2003), considered.

MORRO & ANOR v STRATTON
[2016] SASC 20
Testamentary Causes Jurisdiction
BAMPTON J.
Introduction

Wytton Ross Morro (“the deceased”) died on 7 May 2012 aged 89 years.
The first plaintiff, Wynton Russ Morro (Mr Morro), is the son of the deceased and named as sole executor in a will executed by the deceased on 17 May 2011. The second plaintiff, Lisa Ann Wilkins-Inciardi, is a daughter of the deceased.
The plaintiffs commenced these proceedings by making an application for an order pursuant to s 12(2) of the Wills Act 1936 (SA) (the Act) admitting the will executed 17 May 2011 to probate in solemn form.
The defendant to the action is the deceased’s other daughter, Sarita May Stratton.
Mrs Stratton was served with the proceedings and attended two directions hearings. Mrs Stratton elected not to attend the hearing of the application on 6 August 2015. It follows that the application is undefended.
As Mr Morro became seriously unwell after the hearing, I was asked to defer making any order until Mr Ower, counsel for the plaintiffs, had obtained further instructions. Mr Ower has now informed my chambers that Mr Morro is well enough to fulfil the role of executor.
The following affidavits were received into evidence on 6 August 2015:
·Affidavit of Kristina Maree Piper sworn 27 November 2014 (Ms Piper’s first affidavit), solicitor for the plaintiffs. Exhibited to this affidavit is the affidavit of Mr Morro sworn 6 May 2013 (Mr Morro’s affidavit);
·Affidavit of Kristina Maree Piper sworn 15 June 2015 (Ms Piper’s second affidavit); and
·Affidavit of Reginald Palmer sworn 15 June 2015 (Mr Palmer’s affidavit).
In addition, the plaintiffs tendered copies of the following documents:
·Will of the deceased dated 7 September 2006; and
·Will of the deceased dated 15 September 2006.
A further affidavit of Ms Piper sworn 16 November 2015 (Ms Piper’s third affidavit) was filed on 17 November 2015. This affidavit exhibits Ms Piper’s letter to Dr Donald Wallis, the deceased’s general practitioner, and a copy of Dr Wallis’ reply.
The document propounded
At the commencement of these proceedings, the document (the document) the plaintiffs sought to propound as the last will and testament of the deceased comprised documents marked A, B, C, D, and E to Mr Morro’s affidavit. The document revoked all previous wills made by the deceased and appointed Mr Morro as sole executor and trustee of the will. It is an eccentric document comprising 22 irregular folios which contain typed comments, handwritten annotations, a Post-it note attached by sticky tape, and documents described as “Appendages”.
Ms Piper deposed in her first affidavit that:
·initially she was instructed to make application for a grant in common form of the will. In support of that application, she arranged for Mr Morrow to swear the affidavit exhibit KMP1;
·attached to Mr Morro’s affidavit are various documents marked A, B, C, D, E, and F;
·she attached the documents marked A, B, C, D, E, and F to the affidavit exhibited as KMP1 by way of a staple;
·as Mr Morro resides in the United States and is not readily available to swear an affidavit, rather than take exhibit KMP1 apart she exhibited it to her affidavit; and
·the plaintiffs contend that the documents marked A through E comprise the 2011 will.
In his affidavit, Mr Morro deposed to attending at the deceased’s house at Stirling (the property) on 9 May 2012, and locating a large number of folders and documentation in a safe at the rear of the property.
Mr Morro deposed that the document marked A to his affidavit was contained in a folder on top of documents stored in the safe (Document A). Document A purports to be the last will and testament of the deceased executed 17 May 2011 and to revoke all wills previously made by the deceased.
Mr Morro also located the documents marked B, C, D, E, and F to his affidavit in the safe. Those documents are:
·Document B – a death notice marked “Appendage A”;
·Document C – a publication from Australian Executor Trustees titled “Estate Planning” and marked “Appendage B”;
·Document D – a letter from Dr Andrew Lee (now Associate Professor Lee) dated 22 July 2010 and marked “Appendage C”;
·Document E – an unexecuted “cut and paste” version of Document A marked “Original”; and
·Document F – copy of a will executed 16 October 2007.
Following the hearing, Mr Ower lodged further submissions dated 27 November 2015 submitting that the 2011 will, Document A, should be admitted without the schedule and appendages referred to in it.
I will refer to Document A as the 2011 will for the balance of these reasons.
The 2006 and 2007 wills
Mrs Stratton produced to the Court during a directions hearing copies of wills purportedly executed by the deceased on 7 September 2006 and 15 September 2006. Each will appears to have been prepared by von Doussas Solicitors in September 2006.
Ms Piper’s second affidavit exhibits a copy of a Safe Custody Document Receipt from von Doussas solicitors evidencing that the 15 September 2006 will was collected from von Doussas by the deceased on 24 September 2007.
The back sheet of the 16 October 2007 will, Document F to Mr Morro’s affidavit, indicates that it was drafted by Treloar & Treloar Solicitors.
Testamentary Capacity
At the directions hearing in this matter on 16 June 2015, Mrs Stratton raised an issue regarding the deceased’s testamentary capacity at the time of the making of the 2011 will.
Mrs Stratton asserted that the deceased had dementia and had consulted the neurologist Associate Professor Andrew Lee in respect of this condition.
At a further directions hearing on 21 July 2015, Mrs Stratton handed to the Court a letter from Associate Professor Lee dated 13 July 2015. Associate Professor Lee stated by reference to his records that he was last consulted by the deceased in December 2010 for evaluation of a brainstem CVA. Associate Professor Lee said he did not recall the consultation and was unable to give his opinion regarding whether or not the deceased had mental capacity in May 2011.
Having raised the issue of testamentary capacity and having sought Associate Professor Lee’s opinion, Mrs Stratton did not pursue the issue and as stated earlier chose not to attend the hearing of the application on 6 August 2015.
Even though Mrs Stratton did not persist with her allegations regarding testamentary capacity, the issue having been raised inter partes,[1] I am obliged to conduct a vigilant examination of the whole of the evidence.[2]
[1] See Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul [2009] WASC 75 (Simmonds J); Wheatley & Anor v Edgar & Ors [2003] WASC 118 (EM Heenan J).
[2] Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul [2009] WASC 75 at [39].
In Tsagouris & Anor v Bellairs & Ors,[3] Gray J, in considering the effect of the withdrawal of the claims regarding a testamentary capacity made inter partes but before the hearing, referred, to Heenan J’s analysis in Wheatley & Anor v Edgar & Ors[4] as follows:[5]
The precise issue that arises in the present proceeding is the effect of the withdrawal of the claims made inter partes but before the hearing, regarding the deceased’s testamentary capacity at the relevant time. The Court is now faced with an application for a grant of probate in solemn form, where there were allegations of want of testamentary capacity, a withdrawal of those allegations, and limited evidence before the Court with respect to the allegations.
The analysis by EM Heenan J in Wheatley v Edgar in the Supreme Court of Western Australia is apposite. That case involved an application for a grant in solemn form of a will of the deceased. At issue between the parties was the testamentary capacity of the deceased. A compromise was reached between the parties, and the issue before the Court was whether a grant of probate should or could be made in those circumstances, and if it could be made, whether it should be a grant in common form or in solemn form. After analysing the authorities, EM [Heenan] J concluded:
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 and Pereira v Pereira. 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. Nevertheless, there must be proof at least to this extent on the civil standard to justify a grant in solemn form. [Citations omitted]
[3] [2010] SASC 147.
[4] [2003] WASC 118 at [24] and [26].
[5] [2010] SASC 147 at [37] – [38].
Following the hearing on 6 August 2015, Ms Piper sought an opinion from the deceased’s general practitioner regarding the deceased’s mental capacity. Dr Wallis is referred to in clause 20 of the 2011 will as “my …Doctor”. A copy of Ms Piper’s letter to Dr Donald Wallis and Dr Wallis’ reply are exhibited to Ms Piper’s third affidavit.
Dr Wallis stated in his reply dated 30 October 2015:
As you may be aware I have been working as a general practitioner in the Adelaide Hills for 35 years and had seen Mr Morro on numerous occasions over the last 10 years. I am aware that Mr Morrow suffered from a TIA (transient ischaemic attack) in 2010 for which he was assessed at St Andrew’s Hospital. He was reviewed subsequently by Dr Andrew Lee a neurologist and was treated with medication to prevent any subsequent stroke. I am also aware that around that time in July/August 2010 his daughter expressed concerns about his memory and to other staff at our clinic. There were no new neurological findings. He was reviewed with a thorough health assessment by a District Registered Nurse on 22/10/10 and subsequently on 22/10/11 in which she noted that he was alert, orientated and managed to look after himself at home. Specifically she performed a mini-mental examination on both of these occasions and his score was 18/18 both times indicating no significant memory impairment. I knew Mr Morro as a colourful and slightly eccentric man who was always engaging and interesting but never inappropriate. On the basis of my knowledge of Mr Morro in 2011, and his maximal scores for mental testing at that time, I have no reason to believe that Mr Morrow did not have the capacity to execute his will on 17/5/2011.
The making of the 2011 will
In his affidavit, Mr Reginald Palmer deposed that the 2011 will was executed by the deceased on 17 May 2011 by signing his name at the foot of the document in his presence and that of Ms Susan Lee Fimeri.
Mr Palmer deposed that he and Ms Fimeri, at the request of the deceased, attested and subscribed the 2011 will in the deceased’s presence.
Mr Palmer said that to the best of his memory there were no attachments or appendages with the 2011 will.
Concerns raised by the Registrar of Probates
On 21 January 2013 and 30 July 2013, the Registrar of Probates wrote to the solicitor for the plaintiffs setting out a number of concerns regarding the 2011 will. In summary those concerns were:
·There are what appear to be staple holes on the 2011 will, suggesting that it has been photocopied;
·The 2011 will has been marked “copy”;
·The date on the 2011 will has been changed and is not authenticated by the deceased;
·The witnesses to the 2011 will have signed with different pens from each other and the deceased;
·The 2011 will refers to “the attached yellow sheet schedule A”, but this document has not been able to be located;
·There is no explanation for the piece of paper stuck to the front of the 2011 will;
·Clause 7 of the will bequests monies expressed in Australian pounds;
·A number of assets referred to in the 2011 will do not appear in the Statement of Assets and Liabilities; and
·The oath does not comply with r 13.08 of the Probate Rules 2004.
Regrettably, contrary to proper practice, Documents A to F were stapled to Mr Morro’s affidavit.
Mr Morro deposed that Documents B to F were not attached to the 2011 will when he located it “but were loose in the documents beneath it”.
Ms Piper confirms in her first affidavit, that she unfortunately stapled Documents A to F to the first plaintiff’s affidavit. It was submitted that the 2011 will was put forward in this state, rather than dismembering it in order that the Court could be satisfied that it had not otherwise been altered.
The 2011 will has been marked “copy”
Document E appears to have been created by cutting and pasting pieces of paper together to create an A4 sized document. It would appear that Document E was photocopied to create a “clean copy” of the 2011 will which was ultimately executed.
Document E is unsigned but marked “original” whereas the 2011 will has been marked with the word “copy”.
Mr Palmer deposed that the 2011 will had the word “copy” and the deceased’s initials written on the bottom left hand corner of each page.
Mr Palmer also deposed that the deceased had often asked him to witness his signature to documents and it was his practice to mark all of those documents “copy”.
The date on the 2011 will has been changed and is not authenticated by the deceased
Mr Palmer explained in his affidavit that he mistakenly dated the 2011 will 17 July 2011 and that, upon realising his error, he crossed out the word “July”, wrote the word “May”, and initialled that change.
The witnesses to the 2011 will have signed with different pens from each other and the deceased
Having regard to the affidavit evidence of Mr Palmer, I am satisfied that despite the fact that different pens have been used in executing the 2011 will that the 2011 will was executed on 17 May 2011 in the presence of the subscribing witnesses Mr Reginald Palmer and Ms Susan Lee Fimeri.
Clause 2(e) of the 2011 will refers to “the attached yellow sheet schedule A”, but this document has not been able to be located
As set out below, it is appropriate to grant probate to the extent that the 2011 will has been proved.[6] The grant should not include schedule A.
[6] Sugden v Lord St Leonards (1876) 1 PD 154.
There is no explanation for the piece of paper stuck to the front of the 2011 will
The Post-it note sticky taped to the front of the 2011 will is not referred to in the body of the 2011 will and for reasons discussed below should not be included in the grant of probate.
Clause 7 of the will bequests monies expressed in Australian pounds
The fact that the 2011 will includes a bequest expressed in “Australian pounds” may have been a matter going to testamentary capacity. However, as set out below, I am satisfied that the deceased was of sound mind and the bequest expressed in this manner is immaterial to the matters I am deciding.
A number of assets referred to in the 2011 will do not appear in the Statement of Assets and Liabilities
Mr Ower submitted that the discrepancy is explained by the fact that the deceased had disposed of some assets between execution of the 2011 will and his death. In any event, this is of no consequence to the issues to be determined in this matter.
The oath does not comply with rule 13.08 of the Probate Rules
The non-compliance of the oath with r 13.08 of the Probate Rules, will be a matter for the completion of the grant.
Other concerns about the 2011 will
The Registrar of Probates also noted that the 2011 will referred to Appendage A and Appendage B and that those documents were missing. Documents marked Appendage A and Appendage B have since been located and are marked Document B and Document C respectively to Mr Morro’s affidavit.
Conclusion
Having regard to Dr Wallis’ opinion, Mr Palmer’s affidavit and after a thorough consideration of the evidence, the plaintiffs are entitled to take advantage of the presumption, there being no evidence to the contrary, that the 2011 will was made by the deceased who at the time of making the will was a person of competence and understanding.
Other than the date alteration made by Mr Palmer, I am satisfied, having regard to Mr Palmer’s affidavit, that the 2011 will satisfies the requirements of s 8 of the Act and should be admitted to probate.
The date alteration made by Mr Palmer has not been made in compliance with s 24 of the Act. I infer from Mr Palmer’s affidavit that the alteration was made after the deceased had signed the 2011 will on 17 May 2011. Mr Palmer’s initials appear under the alteration. However, the deceased has not signed it nor has the other witness subscribed to it in accordance with s 8 as required by s 24. As I am satisfied that the 2011 will represents the testamentary intentions of the deceased and that he intended the 2011 will to constitute his will, the alteration should be admitted to probate under s 12(2) of the Act.
It is clear that Documents B, C, D, and E to Mr Morro’s affidavit should not be incorporated in the grant.

As noted in Succession Law in South Australia,[7] incorporation by reference is a doctrine which applies to documents which express testamentary intentions of a testator but which have not been executed in accordance with formalities provided in s 8 of the Act.[8] In circumstances where a testator refers to other existing documents as carrying out his or her own dispositions such documents are considered to be incorporated in and form part of the will and are included in the probate.[9]
[7]    David Haines QC, Succession Law in South Australia (LexisNexis Butterworths, 2003) at 14.3.
[8] Section 8 of the Wills Act 1936 (SA), headed “Requirements as to writing and execution of will” provides:
Subject to this Act, no will is valid unless it is in writing and executed in the following manner:
(a)   it must be signed by the testator or by some other person in the testator's presence and by the testator's direction; and
(b)   it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
(c)   the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)   the witnesses must attest and sign the will (but no form of attestation is necessary); and
(e)   the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).
[9]    In the Estate of Adams (Unreported, Supreme Court of South Australia, Legoe J, 16 April 1992) at 5.
The doctrine is however subject to compliance with three requirements. Firstly, that the document must be referred to in the will. Secondly, that such reference in the will must be sufficient to identify the document with some certainty and, thirdly, the document must exist at the date of the execution of the will.
The references to the Appendages in the 2011 will do not sufficiently identify the Appendages with some certainty to satisfy the second requirement.
Appendage A referred to in clause 2(c) of the 2011 will appears to be the death notice, Document B to Mr Morro’s affidavit.
However, the references in clause 6(d) to Appentage A (sic) and to Appendage ‘A’ in clause 7 suggest Appendage A deals with the deceased’s concerns about Mrs Stratton.
It is unclear what appendage is referred to in clause 6(e) as there is no identifying letter next to the word appendage. It would appear the reference is to Appendage B which is Document C to Mr Morro’s affidavit (the Australian Executor Trustees publication).
The reference in clause 7 to “(see attached the Specialist’s analysis of my wife’s i.e. Dr Andrew Lee) mental state … (Appendage B) attached” appears to be a reference to Appendage C. Appendage C is a copy of Associate Professor Andrew Lee’s letter dated 22 July 2010 which is Document D to Mr Morro’s affidavit.
It follows that, due to the lack of sufficient identification, the doctrine of incorporation by reference cannot apply to Documents B, C, D, and E to Mr Morro’s affidavit.
Further the doctrine cannot apply to the Schedule referred to in the 2011 will that has not been located.
Accordingly, the 2011 will should be admitted without:
·the yellow Post-it note;
·Appendage A referred to in clause 2(c);
·Schedule A referred to in clause 2(e);
·Appentage A referred to in clause 6(d);
·Appendage referred to in clause 6(e);
·Appendage ‘A’ referred to in clause 7; and
·Appendage B referred to in clause 7.
Whilst certain of the clauses in the 2011 will may be subject to questions of validity, this is not a case where the document is so unclear that it should not be admitted to probate.
I am satisfied that the 2011 will should be admitted to probate in solemn form.
Accordingly, I make the following orders:
·That probate in solemn form be granted to the first plaintiff of the will dated 17 May 2011 of Wytton Ross Morro, late of 53 Milan Terrace, Stirling, South Australia, deceased, being the document marked “A” attached to the affidavit of Wynton Russ Morro sworn 6 May 2013, exhibit JMP 1 to the affidavit of Kristina Maree Piper sworn 27 November 2014, without:
-       the yellow Post-it note,
-       Appendage A referred to in clause 2(c);
-       Schedule A referred to in clause 2(e);
-       Appentage A referred to in clause 6(d);
-       Appendage referred to in clause 6(e);
-       Appendage ‘A’ referred to in clause 7; and
-       Appendage B referred to in clause 7.
·The date alteration in the 2011 will to be admitted to probate pursuant to s 12(2) of the Act.
·The costs of the action to be paid out of the estate of the deceased, such costs to be adjudicated on a solicitor client basis.