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Re Hennekam

Re Hennekam

Case [2009] SASC 188 2 July 2009

Probate

Rectification

Testamentary Intention

Wills Act

Admissibility of Evidence

Succession Law

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SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Civil)
In the Estate of HENDRIKUS IGNATIUS HENNEKAM (DECEASED)
[2009] SASC 188
Judgment of The Honourable Justice Gray
2 July 2009
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA - DOCUMENT NOT EXECUTED BY MAKER
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
Referral from Registrar pursuant to Rule 77 of the Probate Rules 2004 - deceased and his wife instructed officer of Public Trustee to prepare "mirror" wills - wills signed in presence of two witnesses - deceased inadvertently signed will prepared for his wife and she signed will prepared for the deceased - whether appropriate to utilise section 12(2) of the Wills Act to admit will to probate - whether rectification power in section 25AA of the Wills Act preferred.
Held: will of deceased as signed by his wife on 14 July 2004 to be admitted to probate - testamentary intention of deceased clear - appropriate to utilise section 12(2) of the Wills Act in the circumstances - section 25AA of the Wills Act also available.
Probate Rules 2004 (SA) s 64 and s 77; Wills Act 1936 (SA) s 12(2) and s 25AA; Wills, Probate and Administration Act 1898 (NSW) s 18A and s 29A; Succession Act 1981 (Qld) s 9 and s 10, referred to.
In the Estate of Blakely (1983) 32 SASR 473; In the Estate of Williams (1984) 36 SASR 423; In the Estate of Ryan (1986) 40 SASR 305; In the Estate of Sutton (1989) 51 SASR 150; In the Estate of Gillespie (Unreported, Supreme Court of New South Wales, Powell J, 25 Oct 1991); In the Will of Goward [1997] 2 Qd R 54; In Re Thomson (Unreported, Rockhampton, Demack J, 2 February 1995); K-Generation v Liquor Licensing Commission (2009) 252 ALR 471; In the Estate of Springfield (1991) 23 NSWLR 535, considered.

In the Estate of HENDRIKUS IGNATIUS HENNEKAM (DECEASED)
[2009] SASC 188
Testamentary Causes Jurisdiction
GRAY J

This is a referral by the Registrar of Probates pursuant to Rule 77 of the Probate Rules 2004 (SA).
Introduction
Hendrikus Ignatius Hennekam died on 24 August 2008. In 2004, the deceased and his wife gave instructions to an Officer of Public Trustee for new wills to be prepared. The wills were prepared in accordance with those instructions. The wills were “mirror” wills, each appointing Public Trustee as executor and providing for the whole estate to pass to the spouse of the testator, with a substitution for children in the event that the spouse did not survive. In the event the spouse did not survive for twenty-eight days, each document provided that the whole of each estate should be divided in equal shares between the named beneficiaries,…

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 Re Hennekam

Details

AGLC: Re Hennekam [2009] SASC 188
Case: [2009] SASC 188
Decision Date: 2 July 2009

CaseChat Overview and Summary

In the matter of Re Hennekam, the deceased, Mr. Hennekam, had intended to execute a will, but there was an error in the signing process. Both Mr. Hennekam and his wife had instructed an officer of the Public Trustee to prepare wills, intending for them to be mirror images of each other. They intended to sign each other's wills in the presence of two witnesses. However, an inadvertent error occurred where Mr. Hennekam signed the will intended for his wife, and his wife signed the will intended for him. The issue before the court was whether it was appropriate to admit the will signed by Mr. Hennekam's wife to probate under section 12(2) of the Wills Act 1936 (SA), or whether the rectification power in section 25AA of the Wills Act 1936 (SA) should be preferred.

The court considered the clear testamentary intention of the deceased and found that the informal document was indeed intended to be his will. The court held that there was no reasonable doubt that Mr. Hennekam intended the document as his will. The court found that it was appropriate to utilise section 12(2) of the Wills Act 1936 (SA) to admit the will signed by Mr. Hennekam's wife to probate. The court also noted that section 25AA of the Wills Act 1936 (SA) was available as an alternative means of addressing the issue.

Accordingly, the court ordered that the will signed by Mr. Hennekam's wife on 14 July 2004 be admitted to probate. This decision highlights the importance of careful execution of wills and the court's willingness to consider alternative methods of giving effect to a deceased person's testamentary intention.

Orders