Re Petrus Jacobus Johannes Strydom

[2012] WASC 45

RE PETRUS JACOBUS JOHANNES STRYDOM; EX PARTE McDONALD [2012] WASC 45

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 45
Case No:	PRO:1128/2011	Heard:	ON THE PAPERS
Coram:	REGISTRAR C BOYLE	Delivered:	13/02/12
No of pages:	10	Judgment Part:	1 of 1
Result:	Application for administration on intestacy refused
Category:	B
PDF Version

Parties:	DAVID STANLEY McDONALD
Catchwords:	Private international law Evidence as to state of foreign law Inadmissibility of opinion evidence of consequences Application in intestacy Apparently valid will Requisitions Failure to answer Comments on evidence
Legislation:	Non-Contentious Probate Rules 1967 (WA), r 9(viii) Rules of the Supreme Court 1971 (WA), O 37 r 2 Wills Act 1970 (WA), s 15 Wills Act 1837 (Imp) Wills Act 1953 (South Africa), s 2A
Case References:	Allstate Life Insurance Co v Australia and New Zealand Banking Group Limited (No 33) (1996) 137 ALR 138 United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RE PETRUS JACOBUS JOHANNES STRYDOM; EX PARTE McDONALD [2012] WASC 45 CORAM : REGISTRAR C BOYLE HEARD : ON THE PAPERS DELIVERED : 13 FEBRUARY 2012 FILE NO/S : PRO 1128 of 2011 MATTER : The Estate of Petrus Jacobus Johannes Strydom late of Unit 2, 116 Solomon Street, Fremantle in the State of Western Australia, Engineer, deceased EX PARTE

DAVID STANLEY McDONALD
Applicant

Catchwords:

Private international law - Evidence as to state of foreign law - Inadmissibility of opinion evidence of consequences - Application in intestacy - Apparently valid will - Requisitions - Failure to answer - Comments on evidence

Legislation:

Non-Contentious Probate Rules 1967 (WA), r 9(viii)

Rules of the Supreme Court 1971 (WA), O 37 r 2
Wills Act 1970 (WA), s 15
Wills Act 1837 (Imp)
Wills Act 1953 (South Africa), s 2A

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Result:

Application for administration on intestacy refused

Category: B

Representation:

Counsel:

Applicant : No appearance

Solicitors:

Applicant : McDonald Pynt Lawyers

Case(s) referred to in judgment(s):

Allstate Life Insurance Co v Australia and New Zealand Banking Group Limited (No 33) (1996) 137 ALR 138
United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131


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1 REGISTRAR C BOYLE: Petrus Jacobus Johannes Strydom (to whom I shall refer to as the deceased) died at Fremantle on 4 December 2010. The death certificate shows that he was divorced and had no children.

2 The present application is for letters of administration on intestacy. The applicant is a solicitor who applies as attorney of Johannes Cornelius Strydom, the father of the deceased. The application was filed on 18 March 2011 and has been the subject of two requisitions. The question is whether the evidence shows that the deceased died intestate.

The history of the application and the evidence

3 Paragraph 12 of the first affidavit of the applicant in support, sworn 17 March 2011, asserts that those entitled in distribution are the father, mother and sister of the deceased. The affidavit does not comply with r 9(viii) of the Non-Contentious Probate Rules 1967 (WA) by setting out the facts relied on to show who is entitled in distribution. For the moment I assume that the father of the deceased would be entitled in intestate distribution.

4 Paragraphs 9 and 10 of the first affidavit of the applicant read:

9. I have been informed by Johannes Corelius Strydom and truly believe that the deceased made a Will on 19 March 1993 and stored it with the Absa Bank in South Africa. I have contacted the Absa Bank and was informed that the said Will was cancelled on 12 May 2005 and the original Will was returned to the deceased. Now produced and shown to me and marked with the letter 'B' is the letter from Absa Bank.

10. Johannes Cornelius Strydom advised me that he has made a careful search of all of the deceased (sic) belongings and the original will and letter from the Absa Bank could not be located. He has also made further searches and further enquires (sic) to ascertain whether there is another will of the deceased, and to the best of his knowledge and belief the deceased did not leave any will.

5 The assertion that the will was 'cancelled' is language foreign to the Anglo-Australasian law of wills. Requisitions issued on 15 April 2011 included the following:

1. The evidence is that the deceased made a will in March 1993 in South Africa. It was presumably a valid will according to South African law. It is said that he later 'cancelled' the will. Was this 'cancellation' valid under South African law to revoke the will? Evidence of the South African law on the topic is required.

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6 The requisitions also drew attention to the fact that documents said to have been attached to the earlier affidavit had in fact not been.

7 A supplementary affidavit of the applicant, sworn and filed 8 July 2011, continued to disregard the provisions of O 37 r 2(2) of the Rules of the Supreme Court 1971 (WA) as to how documents referred to an affidavit are to be treated, but at least did attach certain documents.

8 One of those documents was a copy of the letter from Absa Bank dated 12 May 2005 that had been referred to in the earlier affidavit but not, despite the terms of that affidavit, actually attached to it.

9 That letter of 12 May 2005 was in the Afrikaans language. Attachment 'B' to the first supplementary affidavit of the applicant sworn 8 July is a copy of a further letter from the Wills Control Centre of Absa Trust dated 3 January 2011. That letter is in English and the last paragraph reads:

In translation to the letter sent in Afrikaans it merely states the original will was returned to the client on his instructions.

10 The request in the requisition for evidence of the state of South African law is dealt with at pars 5 and 7 of the applicant's supplementary affidavit of 8 July, which read:

5. In response to requisition 1, I confirm I have taken advice on South African Law as to the topic of the effective cancellation of a Will under South African Law. Now produced and shown to me and marked with the letter 'D' is a letter from Ann Nell (sic - Nel), the National Manager of Wills Department for the Sandiland Trust.

7. Now produced and shown to me and marked with the letter 'F' is a translation of Ann Nell's (sic) Bachelor of Law Degree into English.

11 That is not so much concise as it is laconic.

12 The statute referred to appears to be the Wills Act 1953 of the Republic of South Africa, s 2A of which is headed 'Power of court to declare a will to be revoked', and which reads:

If a court is satisfied that a testator has -

a. made a written indication on his will or before his death caused such indication to be made;

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b. performed any other act with regard to his will or before his death caused such act to be performed which is apparent from the face of the will; or

c. drafted another document or before his death caused such document to be drafted,

by which he intended to revoke his will or a part of his will, the court shall declare the will or the part concerned, as the case may be, to be revoked.

13 I issued a further requisition dated 14 July 2011 that, after paraphrasing the South African statutory provision, went on:

2. Which is said to be the operating mechanism of revocation in this case? The will has not been produced, so this Court cannot be satisfied that either of sub-paragraph (a) or (b) operates. Nor has any other document been produced that would satisfy sub-paragraph (c).

3. The only evidence seems to be that, at the request of the deceased, the trustee company holding the will returned it to him. How does that effect revocation?

14 This led eventually to a second supplementary affidavit of the applicant sworn 14 November 2011 and filed the same day. This last affidavit does not condescend to respond to the questions raised in requisitions 2 and 3 of 14 July. Its closest approach to that task is in par 4, which recites what the applicant has been told by Johannes Strydom, the father of the deceased and the donor of the power of attorney on which the applicant relies. That evidence is that the letter of 12 May 2005 from Absa Bank went to Johannes Strydom with the original will of the deceased attached. Johannes called the deceased to tell him that he (Johannes) had been sent the original of the will. The deceased asked Johannes to destroy the will. For reasons he cannot recall, he did not do so at the time. He has since destroyed the will, after his son's death. What are said to be copies of the will, both in its Afrikaans original and in an English translation, are attached.

15 Also attached to the affidavit as attachment 'B' is a copy of a letter of 3 January 2011 from a Ms O N Oliver of the Absa Trust Wills Control Centre to the solicitor for the applicant. It reads, in part:

We herewith confirm that the will of Estate PJJ Strydom has been cancelled on 12 May 2005 and the original document returned to the client by registered mail.

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Attached hereto the cancellation letter dated 12 May 2005 that has been sent to the Estate Late Strydom.

In translation to the letter sent in Afrikaans it merely states the original will was returned to the client on his instructions.

16 The will, it turns out, was a joint will made by the applicant and his then wife. While such wills are rare in Australia, they are apparently not rare in South Africa, in a distinctly different matrimonial property regime. Probate Registrars in this jurisdiction see such South African wills fairly frequently.

17 That the will was a joint will with the deceased's wife perhaps explains why he would have wished to 'cancel' it given that he was divorced by the time he died. But that still does not address the question repeatedly raised by the requisitions of exactly how it is said that anything the deceased did had the effect under South African law of cancelling his will so that he died intestate.

18 The evidence in the applicant's affidavit is also hearsay. An application for a grant of probate is not an application for interlocutory relief, so as to attract the latitude afforded by O 37 r 6(2) of the Rules of the Supreme Court. However, rather than simply reject it on that ground, I will deal with the application as if the evidence had been given directly.

19 The applicant has still not said how it is that the will of the deceased was cancelled. That leads to the consideration of s 2A of the Wills Act of South Africa.

20 The requisition of 15 April 2011 sought evidence of the relevant South African law.

21 The state of foreign law is a question of fact on which evidence is admissible. Courts appear to have shown considerable flexibility as to the qualifications required to give evidence of the content of foreign law: see the examples given in Phipson on Evidence (16th ed) [3-07] and [33-57].

22 What is clear though is that while (expert) opinion evidence is admissible as to the content of foreign law, opinion evidence as to how the foreign law applies to the facts of a particular case is not admissible. The application of the foreign law is for the court seised with the issue to determine. In United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131, 146 (Sheller JA with whom Mahoney JA and Meagher JA agreed) observed:

(Page 7)

A distinction is to be drawn between the content of foreign law which this Court would treat as a question of fact, about which evidence is receivable, and the application of foreign law once its content has been ascertained, upon which evidence is not receivable: see United States Surgical Corporation v Hospital Products International Pty Ltd (McLelland J, 19 April 1982, unreported) referred to in 1982 ACL Advanced Summary of Cases 350; Scruples Imports Pty Ltd v Crabtree and Evelyn Pty Ltd (1983) 1 IPR 315 at 323-326; National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 87 ALR 539 AT 556; 22 FCR 209 at 226. In Rouyer Guillet et Compagnie v Rouyer Guillet & Co Ltd [1949] 1 A11 ER 344, Lord Greene MR said (at 344):

'…As I understand the law of England, evidence as to the meaning of the statute is to be obtained from the evidence of expert French witnesses and the decisions of the French Courts. On a matter of French law the decision of a French Court would be most persuasive. On the other hand, evidence on the construction of a private document, such as Articles of Association, is admissible as far as it deals with the French rules of construction or French rules of law or the explanation of French technical terms, but evidence as to its meaning after those aids have been taken into account is not admissible.'

See Collins (ed), Dicey and Morris on the Conflict of Laws, 12th ed (1993), at 234.

23 This decision was followed by Lindgren J of the Federal Court in Allstate Life Insurance Co v Australia and New Zealand Banking Group Limited (No 33) (1996) 137 ALR 138. At 142 His Honour wrote,

It is fundamental that the ascertainment of the law relevant to a matter before a court and its proper application to the facts of the particular case are of the essence of the judicial function and duty. Although those processes are properly the subject of submission, evidence of opinion, whether as to the identification of the relevant law or as to its proper application, is not admissible. The rationale underlying this fundamental principle may be expressed in various closely related ways: to admit such evidence would be to permit abdication of the judicial duty and usurpation of the judicial function; such evidence cannot be allowed to be probative or to rise higher than a submission; such evidence is necessarily irrelevant.

In the case of foreign law, the only variation required to the foregoing statements is that foreign law is proved in the way in which facts are proved (this is wheat is meant by statements that foreign law is proved 'as fact'), whereas the court is presumed to know the public laws of the State. But foreign law remains law to be applied by the court. It has been said that where there is a jury, 'the only sound view, either on principle or on policy, is that it should be proved to the judge, who is decidedly the more appropriate person to determine it': Wigmore on Evidence (JH Chadbourn

(Page 8)

(ed), Little Brown & Co, 1981) vol 9, 2558, p 687, and authorities there cited. Accordingly, evidence of opinion as to the proper application of foreign law to fact is not admissible.

24 Applying those principles to the material at hand leads to the following result. Ignoring for the moment that it is strictly hearsay, the letter from Ms Ann Nel that is attachment 'D' to the applicant's first supplementary affidavit of 8 July is evidence of the content of s 2A of the Wills Act 1953 (South Africa).

25 The last paragraph of Ms Nel's affidavit reads:

It is clear from the section above that a act was performed to revoke the will. Clearly he had the animus revocandi. Thus in terms of South African Law no previous wills will be reinstated.

26 Quite apart from the fact that Ms Nel does not identify the facts that are said to result in the conclusion that by South African law the will was revoked, her opinion that that is the result of the application of the relevant law to the (unknown) facts is inadmissible.

27 I add here that the absence of any identification of the facts said to lead to the conclusion that the will had been 'cancelled' (revoked) is what led to the further requisitions of 14 July.

28 It therefore appears that there are two fatal obstacles to acceptance of the applicant's argument that the deceased's will had been cancelled or revoked by operation of s 2A.

29 First, as specifically raised in the requisitions, the applicant has not explained which of the three distinct methods of cancellation set out in s 2A applies. There is no evidence that the testator made a written indication on his will, or caused any other person make such indication, by which he intended to revoke the will. Subparagraph (a) therefore does not appear to apply.

30 Nor is it suggested that the deceased caused, or caused to be performed, any act with regard to his will by which it is apparent from the face of the will that he intended to revoke it. Subparagraph (b) therefore does not apply.

31 Nor is there any suggestion that the deceased drafted or caused to be drafted any other document by which he intended to revoke his will. Subparagraph (c) does not apply.

(Page 9)

32 Secondly, apart from the sheer lack of evidence of the necessary facts to invoke the operation of s 2A, there appears to be a far more basic objection to the applicant's reliance on it to assert in this application that the deceased died intestate.

33 That reason lies in the form of s 2A as a legislative instrument. The provision does not specify a method of revocation of a will. It may be contrasted with s 15 of the Wills Act (WA). The latter specifies events or acts that by their occurrence are deemed by law to effect a revocation of a will. The structure of the South African legislation is different: it provides that if the court is satisfied that a testator has done certain things with the intention of revoking 'the court shall declare the will … to be revoked'. In this scheme, it is not the act of the testator that directly affects as a matter of South African law the revocation of the will: it is the declaration of the court that effects the legal invalidity of the will.

34 It is unsurprising that in this age the statutes of South African are available online. I accessed them at In general, the Wills Act 1953 applied the model of the Wills Act 1837 (Imp) in a jurisdiction where the making of wills had formerly been possible by various other methods, many originating from the forms of Roman or Romano-Dutch law. Unsurprisingly, s 2A follows s 2 of the Act. Section 2 sets out a scheme of formal validity of wills that, while structured differently from the Wills Act (WA) for example, provides in substance the same necessary formalities for due execution. Section 2(3), added in 1992, roughly parallels the provisions of pt X of our own Wills Act.

35 It is apparent from the face of the statute, and the history of amendments, that s 2A, also inserted in 1992, provides a mechanism for the recognition of certain informal methods of revoking a will.

36 It is obvious that the 'court' referred to in s 2A of the Wills Act of South Africa must be a South African court invested with jurisdiction under that Act. Self-evidently, the Wills Act of South Africa cannot confer upon this court jurisdiction under South African law to make a declaration under s 2A of that Act.

37 The applicant's reliance on s 2A of the South African legislation to assert that the deceased 'cancelled' his will and therefore died intestate is mistaken. If there were evidence before me that a South African court had made the necessary findings and consequent declaration, then the

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rules of international law would bind me to find that the deceased died intestate. But it must be the decision of a South African court that vitiates the will: this court has no jurisdiction under the South African statute to do so. The evidence before me is that the deceased made a will valid under South African law, and that will has not been (although it might be, in South African proceedings) declared to be revoked. I therefore cannot find that the deceased died intestate and this application must be refused.

38 Earlier in these reasons I made comment about the failure of the applicant to address requisitions. As noted, this application was filed in March 2011. There have been two requisitions. The responses have failed to address the questions raised in the requisitions. I could perhaps have continued to requisition the application until either the applicant conceded that it was doomed to fail or produced evidence (that may well be out there somewhere) that satisfied me that it should be granted. But that is not how things are supposed to work. It is for applicants to satisfy the court. If they cannot do so with the original application, there is no reason to give them endless opportunities to correct deficiencies. The responses to requisitions have been unhelpful. The refusal of this application does not of course prevent a subsequent application supported by appropriate evidence.