R v White - [2016] SASC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Civil)
PEDLER & ANOR v TRUSTEE FOR THE SALVATION ARMY (SOUTH AUSTRALIA) PROPERTY TRUST & ORS
[2016] SASC 33
Judgment of The Honourable Justice Gray
7 March 2016
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - DOCUMENT NOT EXECUTED BY MAKER
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - TIME AT WHICH SOUND MIND NECESSARY
Application under section 12(2) of the Wills Act 1936 (SA) for an order admitting an unexecuted will to probate. On 19 February 2014, the deceased attended a firm of solicitors and gave instructions to a solicitor to prepare a new will. On 21 February 2014, the solicitor wrote to the deceased enclosing a draft copy of his will and a disclosure statement regarding the appointment of a partner of the firm as the deceased’s executor. The deceased did not sign the will but secured it at his home. The deceased suffered from poor health, primarily related to alcoholism. When the deceased was in hospital some months later, he requested that his friend bring him the will. The deceased told his friend that it was not necessary for him to sign the will as it had been attended to and his solicitors were well aware of the relevant matters, but the deceased did sign the acknowledgment at the bottom of the disclosure statement.
Whether the deceased had testamentary capacity. Whether the unexecuted will should be admitted to probate.
Held:
1. The deceased had testamentary capacity when he provided instructions to the solicitor to prepare a new will. At the time the will was brought to the hospital, the deceased would likely have recognised the will as the document prepared by his solicitor in accordance with his instructions.
2. When the deceased signed the acknowledgement, he intended the draft will forwarded to him on 21 February 2014 to be his will and was treating that document as his will.
3. The draft will is a document that expresses the testamentary intentions of the deceased. The document was intended by the deceased to constitute his will and should be admitted to probate as the will of the deceased even though it has not been executed with the formalities required by the Wills Act.
Wills Act 1936 (SA) s 12(2), referred to.
Parker v Felgate (1883) 8 PD 171; Perera v Perera [1901] AC 354; Landers v Landers (1914) 19 CLR 222, considered.

PEDLER & ANOR v TRUSTEE FOR THE SALVATION ARMY (SOUTH AUSTRALIA) PROPERTY TRUST & ORS
[2016] SASC 33
Testamentary Causes Jurisdiction
GRAY J.

On 2 February 2016, with the consent of all parties, I made an order pursuant to section 12(2) of the Wills Act 1936 (SA) granting probate of the last will and testament of Leslie Seres as contained in a copy of a document exhibited to the affidavit of Alexander Charles Antic affirmed on 19 December 2014, being Exhibit ACA3 to that affidavit. The grant was made to Peter David Pedler, the sole executor named in the document. The grant was limited until the original document or a more authentic copy of the document be brought into Court. My reasons for making the order follow.
The deceased, Leslie Seres, was born in Hungary and migrated to Australia in his early twenties. He remained in Australia until his death on 15 October 2014. He was then aged in his eighties. He had been living at a property at Underdale in South Australia for many years before his death. The primary asset of the deceased’s estate consisted of the house property at Underdale.
On 22 November 1995, the deceased executed a will. The will was prepared pursuant to his instructions by solicitors, Duncan and Hannon. By this will, the deceased provided a right of residence of the Underdale property to his friend, Giovanni Casacchia. The deceased made bequests to a niece, two cousins and three not-for-profit organisations.
On 19 February 2014, the deceased attended on Duncan Basheer Hannon, the successor firm to Duncan and Hannon, and instructed Alexander Charles Antic of that firm to prepare a new will. He brought with him to the appointment an unsigned copy of the 1995 will on which he had made a number of handwritten alterations. He informed Mr Antic that his friend Mr Casacchia had passed away. Mr Antic understood from the deceased’s instructions that the deceased was not married, had no domestic partner and that he had no children. Mr Antic had no trouble understanding the deceased and the deceased advised Mr Antic that he could read English and understand spoken English well. He explained that he wanted a solicitor to be appointed as his executor and he agreed that he would appoint a partner of the firm, Peter David Pedler, as his executor and trustee. The deceased provided instructions that he wanted his estate divided in the following manner; 20 per cent to the Salvation Army (South Australia) Property Trust; 20 per cent to the Australian Kidney Foundation (South Australian Branch); 40 per cent to his cousin, Eva Nagy; and 20 per cent to his friend, Georgia Venites. The deceased paid monies into the trust account of the solicitors in respect of the cost of the preparation of the will.
On 21 February 2014, Mr Antic wrote to the deceased enclosing a draft copy of his will and a disclosure statement regarding the appointment of Mr Pedler as his executor. Mr Antic advised the deceased that he could store the original will at their office for safekeeping if he wished. The letter confirmed payment of the account for the drawing of the will. The disclosure statement regarding the appointment of Mr Pedler required an acknowledgement signature from the deceased.
The evidence before the Court satisfies me that at the time the deceased provided instructions to Mr Antic he had testamentary capacity. He arrived for the appointment with his earlier will noted with amendments. Mr Antic was satisfied that the deceased was capable of giving instructions as to his will. Earlier he had informed his neighbour, Ms Venites, that he had made an appointment to see his solicitor to make a new will.
It is clear that the deceased did not execute the will prepared in February 2014. However, he did secure the will in a safe place at his property. It was his habit to spend many hours on the back porch of his property. Next to where he sat was a substantial stack of newspapers and it is apparent that the deceased placed the February 2014 draft will, unexecuted, in that stack. When he was in hospital some months later, he asked Ms Venites to bring his will to him in hospital and he was able to provide her with clear directions as to where the will was located. Although it may be thought to be an unusual secure location, I am satisfied that the deceased knew where the document was, understood it to be an important document and believed it to be secure within the stack of papers.
Evidence from hospital records has satisfied me that the deceased suffered from poor health, primarily related to alcoholism. His mental functioning fluctuated from time to time. However, when in hospital and refraining from alcohol, his functioning appeared to improve.
As mentioned above, some weeks prior to his death, when in hospital, the deceased requested that Ms Venites bring his will to him. While I am satisfied that the deceased had testamentary capacity at the time he gave instructions to Mr Antic, there is some doubt as to whether he was of sound disposing mind at the time the will was brought to him in hospital. When summing up to a jury in Parker v Felgate, Sir J Hannen summarised the law in this regard as follows:[1]
A person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself, “I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it;” it is not, of course, necessary that he should use those words, but if he is capable of that train of thought in my judgment that is sufficient.
This principle was approved by the High Court in Landers v Landers.[2]
[1] Parker v Felgate (1883) 8 PD 171, 174, approved by the Privy Council in Perera v Perera [1901] AC 354, 361-2.
[2] Landers v Landers (1914) 19 CLR 222, 227-8, 233.
In these proceedings, a clinical neuropsychologist was of the opinion that there was a likelihood that, at the time the will was brought to the hospital, the deceased would have recognised the will as the document prepared by Mr Antic in accordance with his instructions. Ms Venites gave evidence that she explained to the deceased after bringing the will to him that he had not executed the will and suggested to him that he should do so. The deceased replied that it was not necessary as everything had been attended to and his solicitors were well aware of the relevant matters. However, there was evidence that he did sign the document authorising the appointment of Mr Pedler as his executor. It is apparent that he understood that this document had not been signed and needed to be signed. The form of acknowledgement records that, prior to the execution of the will, the deceased had been informed in writing of the relevant rule of the Australian Solicitors’ Conduct Rules as to the appointment of a solicitor as executor. I am satisfied that when the deceased signed the acknowledgement, he intended the draft will forwarded to him on 21 February 2014 to be his will and was treating that document as his will.
Section 12(2) of the Wills Act provides:
Subject to this Act, if the Court is satisfied that—
(a) a document expresses testamentary intentions of a deceased person; and
(b) the deceased person intended the document to constitute his or her will,
the document will be admitted to probate as a will of the deceased person even though it has not been executed with the formalities required by this Act.
Having regard to the foregoing, I am satisfied that the document forwarded to the deceased on 21 February 2014 and retained by him is a document that expresses the testamentary intentions of the deceased. I am further satisfied that the document was intended by the deceased to constitute his will and that the document should be admitted to probate as the will of the deceased even though it has not been executed with the formalities required by the Wills Act.