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…

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 Morro v Stratton

Details

AGLC: Morro v Stratton [2016] SASC 20
Case: [2016] SASC 20
Decision Date: 19 February 2016

CaseChat Overview and Summary

The case of Morro v Stratton concerned an application for an order admitting a will to probate in solemn form. The deceased had executed a document in 2011, which the plaintiffs claimed was their last will and testament. The defendant did not contest the testamentary capacity of the deceased but raised concerns about the document's compliance with the Wills Act 1936 (SA). Issues included whether the deceased had testamentary capacity when making the will, whether the document complied with the Act, and whether a grant of probate should be made in solemn form.

The court found that the will was made by a person of competence and understanding, as no evidence contradicted this presumption. The will satisfied the requirements of section 8 of the Act, except for a date alteration made by Mr Palmer, which was not in compliance with section 24. The alteration was made after the deceased signed the will on 17 May 2011, and although Mr Palmer initialled the alteration, the deceased did not sign it, and the other witness did not subscribe to it as required. Despite this, the court inferred that the will represented the deceased's testamentary intentions and should be admitted to probate under section 12(2) of the Act. Documents referred to in the will, but not executed in accordance with the formalities, should not be incorporated in the grant.

The court concluded that the will should be admitted to probate, despite the non-compliance with section 24. The date alteration should be admitted under section 12(2) of the Act, and the other documents referred to in the will should not be incorporated in the grant. The final orders were that the 2011 will should be admitted to probate in solemn form, with the date alteration noted, and that the other documents should not be incorporated in the grant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BAMPTON J

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.

Ratio Decidendi

Legal Principle Established

Established by: BAMPTON J

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