Public Trustee v Christopher William Gordon Nicholls No. SCGRG 92/643 Judgment No. 3971 Number of Pages Wills, Probate and Letters of Administration

[1993] SASC 3971

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DUGGAN J

CWDS
Wills, probate and letters of administration - probate and letters of administration - Application pursuant to s.12(2) of the Wills Act, 1936 for the admission to probate of an informal document - document signed by testator but not witnessed in accordance with s.8 of the Act - finding that testator intended the document to constitute his will. In the Estate of Kelly 34 SASR
370 and In the Estate of Ryan 40 SASR 309, referred to.

HRNG ADELAIDE, 21 and 24 May 1993 #DATE 25:5:1993
Counsel for plaintiff:     Mr S. Roder
Solicitors for plaintiff:    Mellor Olsson
Counsel for defendant:     Mr M. Nicholls
Solicitors for defendant:    Nicholls Gervasi and Co

ORDER
Document admitted to probate.

JUDGE1 DUGGAN J The plaintiff, Public Trustee, is the administrator of the estate of Ruby Alice Bussenschutt an 81 year old woman suffering from Alzheimer's disease. Mrs Bussenschutt is the sole executor and beneficiary named in a document which purports to be the last will and testament of Richard Allan Beavis (the deceased) who died at his home at Prospect on 27th July, 1990. The plaintiff seeks an order pursuant to s.12(2) of the Wills Act, 1936 that the document be admitted to probate. The deceased left an estate valued at approximately $110,000. The deceased's two surviving brothers and the executor of the estate of his deceased brother were cited to see proceedings. The two brothers entered an appearance and were represented by Mr M Nicholls. He also represented the defendant who was appointed executor of a will of the deceased dated 10th March, 1966. 2. It is not in dispute that on 10th March, 1966 the deceased executed a will in proper form, the effect of which was to leave his estate to his father and three brothers in equal shares. This will is referred to in the document now propounded, a photocopy of which is attached to these reasons. There is no evidence of the existence of any other testamentary documents apart from the propounded document and the earlier will. 3. Section 12(2) of the Act provides as follows: "A document purporting to embody the testamentary intentions of a deceased person will, notwithstanding that it has not been executed with the formalities required by this Act, be taken to be a will of the deceased person if the Supreme Court, upon application for admission of the document to probate as the last will of the deceased, is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his or her will." 4. There are now a number of cases dealing with the section and its interpretation is uncontroversial insofar as it applies to the present case. It has been applied on a number of occasions in cases where the deceased's signature has not been witnessed. (See for example In the Estate of Kelly
(1983) 34 SASR 370.) The effect of some of the cases dealing generally with the section was summarised conveniently by O'Loughlin J in In the Estate of Ryan (1986) 40 SASR 309. 5. I accept the evidence of Mrs Bussenschutt's daughter Mrs Kumnick that she can recognise the printing on the document as that of the deceased and that the signature at the foot is in his writing. She knew the deceased for approximately 40 years and was familiar with his style of writing and his signature. There are other examples of his writing and signature on obviously genuine documents tendered in evidence and the similarities in the style of writing are clearly to be seen. I accept Mrs Kumnick as an honest and accurate witness. She found the document in a pile of personal papers on a bench in the deceased's kitchen. The deceased was in the habit of keeping his personal papers in this location and he had mentioned to her on one occasion that his will was to be found there. In the same file she located the carbon copy of the will made by the deceased on 10th March, 1966. The original copy of that will was located in the office of the executor named in that will who is a solicitor. There is no reason for holding that the document is other than genuine. The document purports to embody the testamentary intentions of the deceased. The language used by the deceased is indicative of an intention to adopt the form and language of testamentary instruments. It may well have been copied in part from the previous will. Of course it does not comply with the formalities required by s.8 of the Act in that it was not witnessed in accordance with that section. 6. Before dealing with the arguments advanced by counsel as to whether this document should be admitted to probate it is necessary to say something more about the deceased and his background. The evidence establishes that he migrated to Australia from the United Kingdom towards the end of 1950. He was born on 12th October, 1923 and had an unhappy childhood spending some considerable time in an orphanage. His father and three brothers remained in the United Kingdom when he migrated. It would appear that one or more of his brothers wrote to him from time to time but there is evidence that in the later years of his life he did not open letters sent to him by his family. 7. Approximately 40 years ago the deceased went to board at 30 Pulsford Road, Prospect, the home of Mrs Bussenschutt whose husband had died not long before. Mrs Kumnick gave evidence to the effect that the deceased was treated as a member of the family. He ate his meals with Mrs Bussenschutt and her two children and had access to the various rooms in the dwelling. Then approximately 25 years ago he went to live in a house which he built at 36 Pulsford Road. At about this time Mrs Bussenschutt built a home at 28 Pulsford Road and commenced to live there. Mrs Kumnick left her mother's home in due course to get married but she, along with her mother and Mrs Kumnick's children, continued their close relationship with the deceased. They provided him with companionship, assisted him with his everyday affairs and cooked for him from time to time. Mrs Bussenschutt frequently cleaned his house. For his part the deceased assisted Mrs Bussenschutt with various odd jobs around her house. 8. Unfortunately the deceased suffered from depression, the first signs of which appeared in 1972 when he consulted Dr Le Page a psychiatrist. From that time onwards he was treated every now and then for depression and this treatment included outpatient visits to Hillcrest Hospital. Mrs Kumnick found two notes apparently written by the deceased on 20th July, 1983 and 3rd December, 1985. They refer to the deceased's unfortunate mental condition and speak in glowing and affectionate terms of Mrs Bussenschutt and her family and the solace and comfort which they provided him over the years. Similar expressions of gratitude appear in various histories taken by the staff of Hillcrest Hospital. I should add that there was never any suggestion that the deceased's cognitive functioning or his powers of reasoning were in any way depleted by his depression. The documentary and oral evidence in the case dovetails with the deceased's explanation in the propounded document for leaving his estate to Mrs Bussenschutt. 9. As I have said there is no doubt as to the genuineness of the document. Nor was it suggested that there was not good reason for the testator to leave his estate to Mrs Bussenschutt. The contentious issue is whether the deceased intended this document to constitute his will. This requirement must be proved beyond reasonable doubt before the document can be admitted to probate. Mr Nicholls submitted that it was a reasonably possible alternative that the deceased merely prepared the document as "a draft or contemplated will." He submitted that the deceased might well have prepared it in order to assuage his feelings of guilt over the trouble he had caused Mrs Bussenschutt who had helped him during his illness. Mr Nicholls also argued that there was no extrinsic evidence beyond the document itself to support the proposition that the deceased intended the writing to constitute his will: indeed he contended that there was extrinsic evidence to the contrary. 10. As I have said the deceased prepared a document which, in part at least, was written with some formalities in mind and with some regard to recognised methods of expression used in professionally prepared documents. He dated the document at both the top and foot. He began with a revocation clause. The words "enclosed will" were used as part of the description of the previous will. Mrs Kumnick cannot recall whether both documents were in an envelope when she found them but she tends to the view that they were separate although part of the same pile of documents. Nevertheless the reference to the date of the previous will puts it beyond doubt that this was the will he wished to revoke. The deceased went on to appoint Mrs Bussenschutt as executor and trustee of "this latest will". He then proceeded to "give devise and bequeath" the whole of his estate to Mrs Bussenschutt. There is every indication from the terms of the document that the deceased intended the writing itself to have testamentary effect. It would be quite odd to prepare instructions in this manner. And a draft will for someone else to work on would not need a signature, a date or an explanation as to why he intended his estate to be distributed in this manner. Although he had signed a previous will in proper form there is nothing to suggest that he was aware of the consequences of failure to have the will attested in the proper manner. Furthermore the deceased made minor alterations in his own handwriting to the copy of the previous will which was in his possession. He signed these alterations without any witnesses being present and I am confident that he considered they had the effect of altering the provisions of the will. 11. I do not regard it as surprising that the deceased did not give instructions for a formal will to be prepared at about the time of signing this document. At this stage in his life he had become somewhat of a recluse. He shunned company and avoided contact to the extent that he got Mrs Kumnick to run errands for him. Mrs Spurr who gave evidence for the defendant said that the deceased would wait for late-night shopping on a Thursday so that he could "scoot up the street so that nobody could see him". I am of the view that the deceased was unaware of the consequences of not having the document witnessed. 12. Mr Nicholls pointed to three items of evidence which he argued supported the view that the deceased did not regard the document as his will. First he relied on the evidence of Mrs Kumnick who said in cross-examination that at a time well after the propounded document had been prepared she asked the deceased if he had done anything about a will and he replied "There's a will with lawyers in town and it's there in that pile" indicating the pile where the propounded document and the previous will were subsequently located. After the passage of years it is difficult to expect precision in recalling conversation and care must be taken before attaching too much significance to the wording used by the witness in recalling a conversation such as this. In examination-in-chief she said the deceased replied "There is a will in that heap of papers". The witness was asking about one document and she may well have failed to appreciate the significance of any reference to another document if the deceased had alluded to it. The witness said she was embarrassed asking the question and it is clear that this part of the conversation consisted of no more than a question and answer. 13. Then Mr Nicholls relied on the evidence of Mrs Spurr who was also a neighbour of the deceased although not nearly as close socially to him as Mrs Bussenschutt and Mrs Kumnick. She supplied the deceased with an evening meal for a period of time prior to his death. She delivered the meals to the door or gate and did not enter the house. She once worked as an honorary welfare officer for the Naval Association of South Australia and she discovered that the deceased had been in the Navy. She often asked elderly members of the association if they had made wills and on an occasion late in 1989 she spoke to the deceased at the front gate while delivering his meal. The following conversation took place:
    "Mrs Spurr said: "I am going to ask a personal question.
    You don't have to answer if you don't want to but have you made a
    will?"
    He said: "Yes I have".
    She said: "Is it legal?"
    He said: "Yes it is."
    She said: "It's dated, signed and witnessed?"
    He said: "Yes".
    She said: "I hope it's in a safe place".
    He said: "It's in there" and pointed to the house." 14. Once again I do not think that a great deal of significance attaches to the deceased's monosyllabic answer "yes" to the question whether it was dated, signed and witnessed. It is difficult to say whether he would have attached any significance to the last of the three aspects alluded to and, in any event, I think it is unlikely that he would have wanted to go into any more detail with a neighbour. Furthermore I do not think that the conversation can be taken as bringing home to the deceased the legal significance of having the document witnessed. 15. Finally Mr Nicholls relied upon the evidence that the deceased fixed a note onto the back of a television set which had been lent to him by Mrs Bussenschutt. The note stated "This television belongs to Mrs R.A. Bussenschutt in case anything should happen to me." The argument was that the deceased is unlikely to have done this if everything had been left to Mrs Bussenschutt. The deceased placed notes on other items to indicate that they belong to Mrs Kumnick. The circumstances in which the note might have become relevant are not restricted to the death of the deceased. In my view this evidence does not have the significance claimed for it by Mr Nicholls. 16. I have considered all of Mr Nicholls' arguments and assessed the items of evidence to which he has drawn my attention both individually and in their combined effect but they do not displace my strong view that the evidence establishes beyond reasonable doubt that the testator prepared the document with the intention that it should be his will. 17. In summary, therefore, I find as follows:
    1. The document which is the subject of this application purports
    to embody the testamentary intentions of the deceased.
    2. The document was printed and signed by the deceased.
    3. The document has not been executed with the formalities
    required by the Act.
    4. I am satisfied beyond reasonable doubt that the deceased
    intended the document to constitute his will. Accordingly I order
    that the paper writing being the exhibit marked "A" referred to in
    the affidavit of Judith Helen Worrall sworn on 25th May, 1992 be
    deemed to be the will of Richard Allan Beavis deceased and that
    probate of the paper writing be granted to the plaintiff, Public
    Trustee if otherwise entitled thereto.