Re Thomas

[2023] VSC 344

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2022 11795

IN THE MATTER of the Estate of Howard Edwin Thomas, deceased

GREGORY HUGH CAMPBELL Plaintiff

---

JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2023 and 14 June 2023
DATE OF JUDGMENT:	22 June 2023
CASE MAY BE CITED AS:	Re Thomas
MEDIUM NEUTRAL CITATION:	[2023] VSC 344

---

WILLS AND PROBATE – Application for grant of administration on intestacy – Where testator’s will contains obliterations of names of executors and beneficiaries – Whether testator intended by obliterations to revoke his will – Where significant time elapsed during which obliterations may have been made – Whether testator himself made obliterations – Wills Act 1997, s 12 (2)(g) - Re Miruzzi (deceased) [2018] NSWSC 1899.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Dickenson	MJS Law

HIS HONOUR:

1. In the unusual circumstances of this case, the plaintiff seeks a grant of letters of administration on intestacy of the estate of Howard Edwin Thomas who died on 20 July 2021.  The application is novel because the deceased executed a will on 21 March 2011 (the will) some ten years before he died which had not been formally revoked, or revoked by operation of law. The issue for determination is whether the will was revoked in accordance with s 12(2)(g) of the Wills Act 1997 (the Act) which provides that a will may be revoked ‘by the testator … writing on the will or dealing with the will in such a manner that the Court is satisfied, from the state of the will, that the testator intended to revoke it’.

Key facts

1. When he died, the deceased was not married or in a domestic relationship and did not have any children.  He had no surviving parents, grandparents, siblings, aunts, uncles, nephews or nieces.  His only known living relatives as at the date of his death were six cousins, one of whom is the plaintiff.

1. It would appear that the deceased, who lived alone at his home in Ivanhoe, was quite eccentric in his habits, at least in the latter years of his life.  After his death, his friends discovered his home to be in what they regarded as an uninhabitable condition, owing to a lack of cleanliness and hygiene, and the hoarding in a disordered way of a miscellany of rubbish, papers and personal effects.  His friends also recounted that, when they met the deceased from time to time, he was typically dressed in the same unwashed clothes and appeared to be in an unclean state.  

1. The will was drafted by a firm of solicitors, AB Natoli Pty Ltd, and was properly executed by the deceased on 21 March 2011.  The will is in simple terms, extending over three pages, and appoints the deceased’s friends Richard Nightingale and Deborah Nightingale as executors and trustees of his estate.  The will also gifts Mr and Mrs Nightingale the residue of the deceased’s estate after payment of all debts, funeral and testamentary expenses.  Mr and Mrs Nightingale are the sole beneficiaries under the will.  According to an inventory prepared by the plaintiff, the deceased left an estate with a gross value of $4,464,943.89.

1. The will was found by another friend of the deceased, Douglas Killmister, in September 2021, some two months after the deceased died.  Before their retirements, Mr Killmister, and also Mr Nightingale, had worked with the deceased at the Commonwealth Bank.  Mr Killmister found the will in a pile of dirty papers on the kitchen table in the deceased’s home.  Mr Killmister and his wife Margaret Killmister, had gone to the deceased’s home to look for a will which may have been executed by the deceased.

1. The will found by Mr Killmister was the original will prepared by AB Natoli Pty Ltd and executed by the deceased, except that the names Richard Nightingale and Deborah Nightingale, appearing in the clause providing for the appointment of executors, and in the clause providing for the distribution of the deceased’s estate, were largely blanked out by black ink applied by hand (the markings).  Although it is barely possible to discern the names of Mr and Mrs Nightingale under the ink, the effect of the markings is in the nature of redactions executed by hand to the typed text of the will.  The will discovered by Mr Killmister contains no other markings or alterations.  Significantly, no names are added to the document in lieu of the references to Mr and Mrs Nightingale which had, in effect, been redacted by hand.  Accordingly, on its face, the will found by Mr Killmister does not identify an executor of the deceased’s estate or any beneficiary of his estate.

Section 12(2)(g) of the Act

1. Because the will was duly executed, the plaintiff, as the party alleging that it was revoked, bears the onus of proving the relevant facts of revocation within the applicable statutory framework relating to the revocation of wills.[1]

   [1]           Lippe v Hedderwick (1922) 31 CLR 148 at 152-153.

1. Section 12(2) of the Act prescribes how wills may be revoked. It provides as follows:

12       When and how can a will be revoked?

…

(2)       Subject to—

…

(b)       sections 13 and 14; and

(c)any order made by the Court under this Act authorising the revocation of a will; and

(d)any order made by the Court under this Act dispensing with the formal requirements for revoking a will—

the whole or any part of a will may not be revoked except—

(da)     by a later will; or

(e)by some writing, declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act; or

(f)by the testator, or some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it; or

(g)by the testator, or by some person in his or her presence and at his or her direction, writing on the will or dealing with the will in such a manner that the Court is satisfied, from the state of the will, that the testator intended to revoke it.

1. It is apparent that the four ways that a will may be revoked in sections 12(2)(da)–(g) are subject to, amongst other things, ‘any order made by the Court under this Act dispensing with the formal requirements for revoking a will’.12F[2] This is a reference to the Court’s power in section 9(2) to ‘refuse to admit a will to probate which the testator has purported to revoke by some writing, where the writing has not been executed in the manner in which a will is required to be executed by this Act, if the Court is satisfied that the testator intended to revoke the will by that writing’. The methods of revocation in sections 12(2)(d)-(g) are therefore in addition to the Court’s power in section 9(2) of the Act.

   [2]Section 12(2)(d).

1. The plaintiff did not contend that the will had been revoked in accordance with any of paragraphs (da)–(f) of s 12(2). Reliance was solely placed on paragraph (g) of s 12(2): that the deceased had revoked the will by ‘writing on the will or dealing with the will in such a manner that the Court [could be] satisfied, from the state of the will, that [he] intended to revoke it’.

1. It is apparent that paragraph (g) of s 12(2) uses similar language to s 9(2) of the Act referred to above. Both are concerned with giving effect to an intention of the testator, if that be found, to revoke their will. In Re Williams,[3] McMillan J stated that the phrase ‘from the state of the will’ in s 12(2)(g) ‘requires that the intention to revoke the will must be evident from the face of the document’, and that it was not open to the Court to consider extrinsic evidence as to the testator’s intention.[4]  Her Honour found that handwritten alterations to a will by a testator established that he had made a ‘conscious and definitive decision to alter the substantive terms of his will’ which established that he intended to revoke the existing appointment of a person as executor and beneficiary.[5]

   [3][2018] VSC 543 (‘Re Williams').

   [4]Ibid, [37] citing Aoun v Clark [2000] NSWSC 274, [17].

   [5]Re Williams (n 3), [38]-[39].

1. The terms of paragraph (g) of s 12(2) may be contrasted with the terms of paragraph (e) (revocation ‘by some writing, declaring an intention to revoke…’) and (f) (revocation by the testator ‘burning, tearing, or otherwise destroying the will with the intention of revoking it’). Consistent with the principle of construction that words in a statute are not ordinarily to be construed as superfluous or insignificant,[6] for paragraph (g) to have work to do, the provision made by paragraphs (e) and (f) suggests that, in the case of paragraph (g), the Court may be satisfied with something less than express words declaring an intention to revoke, and with something less than the physical destruction of the will.

   [6]See Australian Postal Commission v Melbourne City Council15F (2005) 14 VR 678, [20].

1. The Court of Appeal has observed that the above principle of construction applies with greater force where a statutory provision has been added by amendment.[7]  That is the position in respect of s 12(2)(g) which did not appear in the predecessor statutory provisions relating revocation.[8] 

   [7]Ibid.

   [8]Section 18 of the Wills Act 1958.

1. Although the extrinsic materials to the amendments which led to the enactment of s 12(2)(g)[9] cast no light on the purpose or object of the provision, some insight is gained from the commentary in relation to the insertion of the equivalent provision in the Succession Act 2006 (NSW) (the NSW Act), being s 11(1)(f), which is in identical terms to s 12(2)(g). In Re Miruzzi,[10] Lindsay J referred to the old case of Cheese v Lovejoy[11] under section 20 of the Wills Act 1837 (Eng) in which, dealing with the equivalent to what is now s 12(2)(f) of the Act,[12] the Court of Appeal stated that ‘a symbolical burning will not do, a symbolical tearing will not do, nor will a symbolical destruction’.[13]  In observations with which I respectfully agree, Lindsay J stated that since that time, ‘liberalisation of the law, to the extent that it has come, has come not by amendment of equivalents of section 11(1)(e), but by broadening the range of other means of effecting a revocation’.[14]  In support of that proposition, his Honour referred to two reports of the NSW Law Reform Commission, one of which recommended that ‘flexibility be introduced into the revocation process’[15] by, relevantly, the enactment of what became s 11(1)(f) of the NSW Act, being the equivalent to s 12(2)(g) of the Act.[16]

   [9]The provision was introduced for the first time in the Wills Act 1997 as made.

   [10][2018] NSWSC 1899 (‘Re Miruzzi’).

   [11](1877) 2 PD 251 (‘Cheese v Lovejoy’).

   [12]Section 11(1)(e) of the Succession Act 2006 (NSW).

   [13]Cheese v Lovejoy (n 11), 253.

   [14]Re Miruzzi (n 10), [53].

   [15]Report 47 (1986): Wills — Execution and Revocation. Paragraph 5.12 of that report pre-figures s 12(2)(g) of the Act and s 11(1)(e) in stating as follows: ‘We therefore recommend that a will or any part of a will maybe (sic) revoked by any writing on the will or any dealing with it, which is done by the testator, or a person by his or her direction and in his or her presence, if the court is satisfied from the state of the document that the writing or dealing was done with the intent of the testator to revoke’.

   [16]Re Miruzzi (n 10), [55].

1. The above observations indicate that s 12(2)(g) formed part of a regime introduced by the Act to prevent a failure to comply with formalities from defeating a testator’s testamentary intentions. The section should be given a liberal construction consistent with the ordinary meaning of its terms and its apparent ameliorative purpose.

The markings

1. Assuming the markings on the will were made by the deceased, I am satisfied from the state of the will that the deceased intended to revoke it.  The markings effectively obliterate the names of the executors and beneficiaries, on its face stripping the will of its essential elements.  The subject matter of the markings and their emphatic expression evince an intention and purpose on the part of the deceased to revoke the will in its entirety.

1. The remaining question is therefore factual: whether the markings on the will were made by the deceased.  Although there is no direct or documentary evidence that the deceased was responsible for the markings, on the balance of probabilities, I am satisfied that they were made by him.

1. The principal of the firm of solicitors who prepared the will gave evidence that at the time the will was prepared, his firm also prepared enduring powers of attorney for the deceased.  His evidence is that the deceased took the original will and powers of attorney with him after he had executed them on 21 March 2011.

1. The deceased’s address as recorded on the will was also the deceased’s residence before he was hospitalised shortly before his death and is the same address where Mr Killmister found the original will with the markings.  There is no evidence that the deceased lived anywhere else in the period of about 10 years between when he made the will and when he died.  I infer from these facts that the will remained in the deceased’s custody from the time that he took it from the offices of his solicitors until it was found in the kitchen of his residence by Mr Killmister in September 2021.  Such an inference is consistent with the proposition expressed by Parke B in Welch v Phillips that it is ‘highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety’.[17]

   [17](1936) 1 Moo PCC 299, 301.

1. This analysis is consistent with the approach adopted in In re Adams where an inference was drawn that a testatrix had effected handwritten obliterations of a will.  This was said to be ‘the inevitable and proper inference to be made where it can be shown that a will was in the hands of a testatrix in unaltered form and where the will has not left those hands until the time of death and at or immediately after the death it is found to be in an altered form’.  I respectfully agree with and adopt that analysis.

1. There is also a prima facie presumption, referred to in In re Adams, that ‘where a will is destroyed or found mutilated in a place in which the testator would naturally put it, [it is presumed] that the testator destroyed it and that it was destroyed with the intention of revoking it’.[18]  That presumption is engaged in the circumstances of this case as the will was found in a pile of papers in the kitchen of the deceased’s home, being a place where the deceased might be taken to have naturally put the will.  This is consistent with the fact that the powers of attorney executed by the deceased were also found in his kitchen.  Notably, the powers of attorney found in the deceased’s kitchen included markings or obliterations of the same visible type as were included  on the will.

   [18][1990] Ch. 601, 604.

1. Given the lack of direct evidence that the deceased was the author of the markings on the will, I was also concerned to closely examine the evidence as to the circumstances in which the will was located and the chain of custody of the document which culminated in it being lodged with the Registrar of Probates.  To that end, affidavit and oral evidence was received from the plaintiff, the daughter of the deceased’s cousin and intestacy beneficiary Donna Maynard, the plaintiff’s solicitor, Richard Nightingale, Debra Nightingale, Douglas Killmister and Margaret Killmister.  I accept the evidence given by each of these individuals including, in particular, the evidence of Mr Killmister as to the circumstances in which he found the will and that it included the markings which are observable in the will lodged with the Registrar of Probates.  I likewise accept the evidence of the other witnesses which supports a finding that the will containing the markings as found by Mr Killmister was not later further amended or altered.

1. For the above reasons I am satisfied that the markings on the will were made by the deceased.  

1. As the markings on the will were not made in accordance with the formal requirements prescribed by the Act, the presumption of testamentary capacity is not available to the plaintiff; the deceased must be proven to have had testamentary capacity at the time of making those markings.

1. Although the deceased’s eccentric habits and living arrangements to which I have referred raise the possibility that he might not have had testamentary capacity, I am nonetheless satisfied on the evidence that he did have capacity at all times before his death.  The deceased, who was 75 years of age when he died, was in hospital for about eight days before his death.  The cause of death recorded on his death certificate was ‘right hemothorax post insertion of chest drain tube’.  The documents relating to his hospitalisation include three notations made by different medical staff which recorded the deceased as not having any cognitive impairment or dementia.  This is consistent with the general observations made by the deceased’s friends about his apparent state of mind in the years before his death. 

1. I am accordingly satisfied that, in the language of s 12(2)(g), the markings made by the deceased establish that the deceased wrote on the will or dealt with it in such a manner to satisfy the Court from the state of the will that the deceased intended to revoke it.

1. I will make the following declarations:

1. In accordance with s 12(2)(g) of the Wills Act 1997, the deceased’s will made 21 March 2011 was revoked by the deceased writing on the will in such a manner that the Court is satisfied from the state of the will that the deceased intended to revoke it.

2.   The deceased died intestate.

1. I will make the following orders:

1.   The plaintiff’s application be referred to the Registrar of Probates for the making of a grant of Letters of Administration on Intestacy.

2.   The plaintiff’s costs of and incidental to the application be paid out of the estate of the deceased.

---