Tsagouris v Bellairs
[2010] SASC 147
•28 May 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Civil)
TSAGOURIS & ANOR v BELLAIRS & ORS
[2010] SASC 147
Judgment of The Honourable Justice Gray
28 May 2010
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - IN GENERAL
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
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - PRACTICE - SOUTH AUSTRALIA - OTHER MATTERS
Application made pursuant to section 12(2) of the Wills Act 1936 (SA) for an order admitting an informal will to probate – deceased left handwritten document not witnessed according to the Wills Act – whether document satisfies the requirements of section 12(2) – testamentary capacity of the deceased raised as an issue inter partes, but withdrawn before the hearing of the application – consideration of the information before the Court regarding the testamentary capacity of the deceased – document did not expressly appoint an executor – whether plaintiffs are appointed executors according to the tenor of the will – whether, in the circumstances, the Court should direct a grant of probate in solemn or common form.
Held: document an informal will which embodies the testamentary intentions of the deceased – appropriate case to utilise the remedial nature of section 12(2) – no material doubt as to the testamentary capacity of the deceased at the time of the making of the document – the tasks for the plaintiffs nominated in the document are typical tasks attributable to the office of executor – the plaintiffs are appointed executors according to the tenor of the document – this is a case where the grant of probate should be made in common form.
Wills Act 1936 (SA) s 12(2) and s 8; Administration and Probate Act 1919 (SA) s 6, s 7 and s 8; Probate Rules 2004 (SA) r 4, r 5 and r 10 ; Supreme Court Civil Rules 2006 (SA) r 205(1)(a), referred to.
Public Trustee of Western Australia v Parish of St Apostles Peter and Paul [2009] WASC 75; Worth v Clasohm (1952) 86 CLR 439; Wheatley v Edgar [2003] WASC 118; Easter v Griffith (1995) 217 ALR 284; Re Hennekam (2009) 104 SASR 289; Re Application of Brown (1991) 23 NSWLR 535; Russell v Scott (1936) 55 CLR 440; Estate of Masters; Hills v Plummer (1994) 33 NSWLR 446; Re Trethewey (2002) 4 VR 406; In the Will of James Hollings (1878) 4 VLR (IPM) 46; Estate of Williams (1984) 36 SASR 423; Kuhl v Liebcheschel [1933] SASR 394; Estate of Alvaro (deceased) (Unreported, Supreme Court (SA), No S5183, 19 July 1995, BC9502314, Judgment of Legoe J); Estate of Kirs (1990) 55 SASR 61; Jolley v Jarvis [1964] P 262; In the Will of England (1900) 22 ALT 86; Re Levy [1953] VLR 652; Young v Holloway [1895] P 87; Osborne v Smith (1960) 105 CLR 153; Executor Trustee Australia Ltd v Henderson (2006) 244 LSJS 43, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"executor according to tenor"
TSAGOURIS & ANOR v BELLAIRS & ORS
[2010] SASC 147Testamentary Causes
GRAY J:
This is an application pursuant to section 12(2) of the Wills Act 1936 (SA) for an order admitting an informal will to probate.
The document propounded for probate was handwritten by the deceased, Chrysavgi Tsagouris, was dated, and addressed the disposition of property and assets on her death. However, the document lacked due execution in accordance with the provisions of the Wills Act. It was not witnessed. The question that arises is whether the Court should exercise its dispensing powers and admit the document to Probate.
The deceased was born in Greece in 1924. She died on 25 March 2005, aged 81 years, in Adelaide. At the time of her death, the deceased’s estate was estimated to be worth in excess of $440,000.00. The deceased had been married. However, apparently the only details of that marriage known are that her marriage was dissolved while she lived in the United Kingdom many years ago. The deceased had no children and her parents predeceased her.
The deceased was survived by one sibling, Eleni Gkargkasoula, who died on 20 December 2008, after the initiation of these proceedings, leaving four children. In the papers filed at Court in the within proceeding the children are at times described by different names. For the purposes of these reasons I have referred to the children as follows: Christopher (Chris) Gkargkasoula, Katarina (Catherine) Gkargkasoula, Vicki Gkargkasoula and Anastasia (Tasoula) Gkargkasoula. The names in brackets are a reference to the alternative names used in the court papers.
Eleni’s estate is divisible equally between her children. If the deceased died on an intestacy, Eleni would be the only person entitled to take the deceased’s estate, and as a consequence Eleni’s four children would be the only persons liable to benefit from the deceased’s estate. Eleni was the third named defendant to this action, but following her death was substituted by two of her daughters, Vicki and Anastasia.
The Attorney-General was joined as a defendant to this proceeding because of a charitable trust created by the document propounded in respect of an orphanage in Greece. The Attorney-General does not oppose the grant of probate in respect of the document propounded. On 11 March 2010, upon agreement between the parties, I ordered the making of a trust variation scheme.
Also named as defendants to this action are Matina and Panagiota Bellairs, who are sisters, reside in the United States and are named legatees in the document the subject of this proceeding. They have taken no part in the proceedings.
The within proceeding has a long and complex history. The proceedings were initiated by the plaintiffs, Dimitrios Tsagouris and Katarina Gkargkasoula, on 25 June 2008. Eleni filed a defence and alleged by counterclaim, inter alia, that the deceased lacked testamentary capacity at the time of executing the propounded document. That counterclaim was not pursued on the hearing of the appeal. The orders now sought by the plaintiffs, include a declaration that they are the executors of the document propounded according to its tenor, and that an order be made pursuant to section 12(2) of the Wills Act admitting the document propounded to probate notwithstanding that the document was not witnessed by two persons as required by the Wills Act. The orders sought are no longer opposed by the defendants.
The Document Propounded
The document was handwritten in Greek, on lined A4 paper and dated 6 June 2002. It is convenient to set out the document as interpreted, in full:[1]
[1] Most paragraph breaks are not in original, and have been inserted for ease of reading. Account numbers have been omitted.
…I the undersigned Chrysavgi daughter of Angelos Tsiangouris being of sound mind draw up this my Holographic Will hereby wishing upon my death to settle my existing real and personal estate as follows – I bequeath 1st (One) house situated at 2 Belgrave Court Parkside 5063 Adelaide South Australia 2nd Lodgement Account of 50.000.00 account number … National Bank Unley Rd now the new number of the book is: …. Apart to the books account I have invested with the bank $50.000.00 “Fifty thousand dollars”. It use to be the National bank at the 22-28 Unley Rd Adelaide S.A. tel… 3rd There is a book where the interest is going from the above account. The number of the book is: … Account Number… CHRYSAVGI. The 6 letter from my Christian name is wrong. It is V. Christina Tsiangouris. Also there is a book with the National bank as above two books…I have $1.000.00 I have also invested money about $4.000.00 or a bit more with Telstra in Melbourne. The interest goes to the book in the National bank and have also invested seventy eight thousand with the Mercantile Mutual Life Insurance Company Limited…G.P.O Box 5306 Kent Street Sydney NSW 2000 Australia. Their address here in Adelaide is: [representative and address and telephone number]
Australian Shares $40.000.00 – 17329.5208
$1.1541. International Shares $10.000.00
8.0411707 $1,2436. Managed Growth $10.000.00 units 4.100.2498 $2.3611. For informations phone [phone number]. The Merchantile Mutual ref are Merchantile Life Insurance Company Limited [details and address].
I leave ten thousand American Dollars to Matina G. BELLAIRS [address]. To share with her sister Panagiota so they can forget the rascally trick which their uncle Georgis Rodis played on them regarding the real estates which their parents had left them.
I leave ten thousand dollars to Dimitri Son of Alexandros Tsiangouris “Jim Tsiangouris” to see to it that the house is not sold to the Italians next door because they crucified me with their dishonest acts. The Italians do not have the right to bring and park the customer cars in the driveway. Only their cars and these in their yard and not in the driveway. My solicitors fought the matter. Look after my books because they are books of great value.
I leave to Katarina daughter of Georgios Gargasoulas ten thousand dollars and to take anything she wishes from the house.
The house is to be sold to a good family and not to the Italians. The current value of the house is around four hundred fifty thousand dollars. Its value will increase later. Dimitris and Katarina to look after it until everything has been settled and see to it that the moneys go towards the construction of an orphanage for orphan girls who have no parents within or around Tripoli at Peloponnesos and shall bear the name The Panagiotio in memory of my sister Panagiota who was sadly taken away from us at just seventeen years of age. You will arrange this together with the Arcadian Association and naturally with the supervision of a Solicitor who is to be an honest person and not a swindler.
I don’t leave anything to the other relatives because they are all financially secured.
In the orphanage the orphans shall learn crafts and be educated, they should not be given milk or meats or chicken because these are harmful foods. Only salads, carrots, potatoes and generally vegetables, chickpeas, black eyed peas,
lentils[2] wheat bread and walnuts, almonds, vegetable pies always with wheaten or corn flour. Teas from thyme, chamomile, marjoram, herbal teas, rosemary all to be taken with honey and not with white sugar. Black olives, oranges and all the fruits in season. The apples to be washed and dried with a cotton napkin, to wipe them well because the apple is the food of the dead and must be washed and then wiped with a napkin.I want my gravestone to be good and magnificent and not cheap in a good part of the Panorama cemetery, and to have on it the photograph, which I keep above the fireplace in the sitting room given that it was the last which I took before I left England in which I am wearing my suit.
The children in the orphanage to wear clothes made from wool and cotton and silk not from any other materials because they are harmful and they don’t say it. For this reason the children must not be given milk from animals if they are to be healthy. The body’s main foods are the carrots, white headed cabbage, onion and parsley. …
To the other relatives, I leave bugger all! For the way they treated me. I helped them all. My grave to be made out of marble up to 50 thousand dollars. The girls at the orphanage not to be given white sugar but dates, carobs. A white woollen blanket be placed in my grave because sometimes the body reawakens and wants warmth. I don’t want flowers inside my grave nor oils or wines.
Always remember that I have treated many people totally free of charge including my niece’s son in America who had a large cancerous tumour on his heart. I made him completely well and he is still going strong. I made a lot of people well especially in Melbourne the Bartholomew and Karramitou families of Georgi and Koula. Also in England, Greece.
[signed and dated]
[2] Line through word in original document.
It is apparent that the document identifies various assets, investments and other belongings. The document identifies the deceased’s property accurately, and disposes of most of that property. The details of bank accounts are set out specifically. So too are the details of financial investments. The document discloses that the deceased was aware of her assets and their value. The deceased was precise in the definition of her assets and directs the manner in which they are to be redeemed, including identifying a number of specific legatees.
It was agreed that the document creates a partial intestacy in respect of about $150,000.00. As Eleni is the only person entitled to benefit from the deceased’s estate upon an intestacy, it was agreed by the parties that the amount of that partial intestancy is to be paid to the estate of Eleni.
Testamentary Capacity
As observed, an issue regarding the deceased’s testamentary capacity at the time of the making of the document propounded was raised, but not pursued at the hearing of this matter. In proceedings such as the present, the court cannot ignore issues regarding testamentary capacity once raised inter partes.[3] Despite withdrawal, the allegations still warrant a vigilant examination by the Court of the whole of the evidence which the parties place before it.[4] In this respect, the following observations of the High Court in Worth v Clasohm[5] are apposite:
…The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution. …
[3] See Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul [2009] WASC 75 (Simmonds J); Wheatley v Edgar [2003] WASC 118 (EM Heenan J).
[4] Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul [2009] WASC 75 at [39].
[5] Worth v Clasohm (1952) 86 CLR 439 at 453 (The Court).
By affidavit dated 7 December 2009, Michael Brown, a solicitor who acted for the deceased in a dispute between the deceased and the owners of the restaurant next door to her house, “the Italians”[6], deposed that when acting for the deceased he asked the deceased if she had a will. The deceased replied that she did. Mr Brown further deposed that he considered at the time, that if the deceased had asked him to prepare a will for her, she would have possessed the necessary capacity to instruct him. He deposed that nothing in his observations made him question her capacity in any respect.
[6] As described by the deceased in the document propounded.
By affidavit dated 18 December 2009, Dimitrios Tsagouris, the first plaintiff, whose father was the great nephew of the deceased, deposed that he considered the deceased to be an eccentric person. He noted that the deceased was very particular about the food she ate and was prone to giving lectures to him and others in relation to their diet. He deposed that the deceased enjoyed considerable good health due to strict dietary habits, and became increasingly vegetarian in her later years. He described the deceased as being well read and a person who gained knowledge from the many books she collected and read, and as having an interest in alternative medicine, astronomy and planetary movements.
Katarina Gkargkasoula, the second plaintiff, and daughter of Eleni, was sent to Australia from Greece by her parents at the age of ten, to live with the deceased. She was entrusted to the care of the deceased. She lived with the deceased for eights years. By affidavit dated 8 December 2009, Katarina described the deceased as an eccentric person of sound mind, who was committed to certain dietary habits and enjoyed books dedicated to natural remedies and diet.
The affidavits filed in this proceeding indicate that the deceased was an intelligent but eccentric woman. The descriptions of the deceased extracted accord with the language employed by her in the document propounded.
The critical question in a proceeding such as the present, “concerns [the] mental capacity to comprehend and appreciate the claims upon one’s bounty”.[7] The following observations of Gleeson CJ in Easter v Griffith are relevant:[8]
Where an alleged delusion concerns a fact, or state of affairs, bearing upon a judgment as to the moral claim one person has upon another’s bounty, and the question of its falsity is capable of objective determination, the task of the court is relatively straightforward. However, there may be cases in which one person’s estimation of another’s claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid.
[Emphasis added]
[7] Easter v Griffith (1995) 217 ALR 284 at 291 (Gleeson CJ).
[8] Easter v Griffith (1995) 217 ALR 284 at 291 (Gleeson CJ).
The provisions in the document the subject of this proceeding and the language employed, appear to be a reflection of the character and lifestyle of the deceased generally, and in particular during the period when the document was created. This much is clear from the material on the Court file. The deceased was eccentric, but to repeat the words of Gleeson CJ, testamentary capacity is not reserved for persons “whose values conform to generally accepted community standards”.
After a thorough consideration of the information before the Court, I have no material doubt as to the testamentary capacity of the deceased at the time of making the document the subject of this proceeding.
Section 12(2) Application
As earlier outlined, the present application is made pursuant to section 12(2) of the Wills Act.[9] It is convenient to set out the relevant terms of that section:
[9] See also rule 64 of the Probate Rules 2004 (SA).
(1)A will is valid if executed in accordance with this Act, notwithstanding that the will is not otherwise published.
(2) 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.
(3)If the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses an intention by a deceased person to revoke a document that might otherwise have been admitted to probate as a will of the deceased person, that document is not to be admitted to probate as a will of the deceased person.
(4)This section applies to a document whether it came into existence within or outside the State.
(5)Rules of Court may authorise the Registrar to exercise the powers of the Court under this section.
As earlier discussed, the only formality prescribed by section 8 of the Wills Act not complied with in the propounded document, is the requirement of witnessing. I am satisfied that the document propounded is an informal will for the purposes of the Act.
As extracted above, section 12(2) is a dispensing power which can be exercised when the Court is satisfied that despite a want of formality with respect to section 8 of the Wills Act,[10] the document contains the testamentary intentions of the deceased and the deceased intended it to constitute his or her will. Section 12(2) is fundamentally concerned with remedying documents which have not complied with the statutory formalities and risk being held invalid as a consequence. I considered the operation of section 12(2) in Hennekam. Following an analysis of the legislative history of the section I observed:[11]
[10] Section 8 of the Wills Act 1936 (SA), headed “Requirements as to writing and execution of will” provides:
Subject to this Act, no will is valid unless it is in writing and executed in the following manner:
(a)it must be signed by the testator or by some other person in the testator's presence and by the testator's direction; and
(b) it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
(c) the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)the witnesses must attest and sign the will (but no form of attestation is necessary); and
(e) the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).
[11] Re Hennekam (2009) 104 SASR 289 at [30]-[32].
The remedial nature of s 12(2) was emphasised by King CJ in In Estate of Williams. In relation to the interpretation of s 12(2) King CJ commented:
There is no reason, as a matter of construction or logic, to differentiate between signature and any of the other formalities for execution required by s 8.
...Section 12(2) is a remedial provision designed to avoid failure of the testamentary purpose caused by non-compliance with the formalities required by s 8 arising out of ignorance or inadvertence. There is no reason to suppose that Parliament intended to limit the circumstances in which the remedial provision would operate and no reason for the Court to construe the sub-section other than in accordance with the natural meaning of the words used.
Having regard to the foregoing, it is clear that the parliamentary intention informing the insertion of s 12(2) was to alleviate injustices occasioned by a rigid application of the law in relation to the observance of the relevant formalities in the execution of wills. As the notable academic Professor John Langbein has observed:
Discretion is the coin of section 12(2): The court is given discretion to vary the ordinary course of probate law for the purpose of preventing injustice.
...
Graham, the first section 12(2) case, sounded the theme that has echoed through the later case law. The purpose of section 12(2), Jacobs, J. said, "is to avoid the hardship and injustice which has so often arisen from a strict application of the formal requirements of a valid will."
[Footnotes omitted]
The document propounded is described by the deceased as her “holographic will”, meaning that the document is in the handwriting of the deceased. It would be odd to suggest that a document purporting to be a will, wholly handwritten by a deceased person, bearing the signature of that person, was not intended to be the will of that person.[12] Further, phrases such as “wishing upon my death to settle my existing real and personal estate...”, and the provision in the document for burial, indicates that the deceased had a clear intention when creating the document and an understanding of the effects of a will. I am satisfied that it was the intention of the deceased that the document propounded was to constitute her will.
[12] See Re Application of Brown (1991) 23 NSWLR 535 at 540 (Powell J, as he then was).
Testamentary intentions are an expression of what a person intends to happen to his or her property upon death. The critical element of a will was described by Dixon and Evatt JJ in Russell v Scott[13] in the following terms:
…But what can be accomplished only by a will is the voluntary transmission on death of an interest which up to the moment of death belongs absolutely and indefeasibly to the deceased. …
[13] Russell v Scott (1936) 55 CLR 440 at 454.
In the context of informal wills, Priestly JA said in Estate of Masters:[14]
… A document in which a person says what that person intends shall be done with that person's property upon death seems to me to be a document which embodies the testamentary intentions of that person. …
[14] Estate of Masters; Hills v Plummer (1994) 33 NSWLR 446 at 469; cited in Re Trethewey (2002) 4 VR 406 at [17] (Beach J).
The affidavit material before the Court discloses that the deceased enjoyed a closer relationship with Dimitrios and Katarina than with other members of her family. The provisions of the document propounded reflect this position. The affidavit material emphasises the deceased’s attitude toward the value of a strict food regime. The direction that the estate be applied toward the establishment of an orphanage whereby children would live according to a strict diet, complies with the beliefs of the deceased as illustrated by the material before the Court. Further, the extent to which the deceased valued her books is reflected in the terms of the document and is consistent with the depositions as to her commitment to her book collection. As earlier observed, Mr Brown deposed to the fact that he took instructions from the deceased in respect of a dispute with the restaurant next door to her home; “The Italians”. The direction in the document that Dimitrios and Katarina are to ensure that the deceased’s house not be sold to “The Italians”, is consistent with the deposition of Mr Brown.
I am satisfied that the document embodies the testamentary intentions of the deceased. Having regard to the reasons given above, it is appropriate to utilise section 12(2) of the Wills Act to overcome the lack of due execution of the document propounded in the circumstances of the within proceeding.
Executor According to Tenor
There is no express provision in the document propounded for the appointment of any person or persons as executors of the deceased’s estate. As such, it was submitted by counsel that Dimitrios and Katarina should be declared the executors according to the tenor of the will.
It is not essential that the word “executor” be used in a will. In In the Will of James Hollings,[15] Molesworth J said:
It is not necessary that the word ‘executors’ should be used to constitute such; it is sufficient if it appears by the will that the persons named have to perform duties of the office.
[15] In the Will of James Hollings (1878) 4 VLR (IPM) 46 at 47.
In Estate of Williams[16] Legoe J collected the relevant authorities on whether and when executors can be appointed according to the tenor of the will, and there observed:
The appointment of an executor may be either express or constructive. If the construction of the will as a whole leads to the conclusion that the named persons are to carry out the functions of executors, then they are said to be called the executor according to the tenor. Williams on Executors and Administrators, 13th ed. at p. 10: "Although no executor is expressly nominated in the will by the word executor, yet, if by any word or circumlocution the testator recommends or commits to one or more the charge and office, or the rights which appertain to an executor, it amounts to as much as the ordaining or constituting him or them to be executors." There are numerous examples in the cases to this effect conveniently set out in Williams, Mortimer and Sunnucks on Executors and Administrators and Probate [1982] at pp. 27-28.
Firstly, a simple direction to persons to pay debts, funeral and testamentary expenses is an appointment of such persons as executors according to the tenor—see In the Goods of Baylis and In the Goods of Fry. In Fry's case the Court said that "paying debts and funeral expences (sic), and expences (sic) of proving a will, was performing the office of executor. The appointment of trustees was for the management and disposal of the real estate, and for no other purpose. There can be no doubt that the parties, for whom probate is now prayed, are executors according to the tenor." But the appointment in this case serves no such purpose.
Secondly, in order to constitute persons as executors according to the tenor of a will it must appear, on a reasonable construction thereof, that the testator intended that they should collect the assets, pay the debts and funeral expenses and discharge the legacies contained in the will—
In In the Goods of Adamson Sir J. Hannen, having said that "the essential duties of an executor are to collect the assets of the deceased, to pay his funeral expenses and debts, and to discharge the legacies", found that two such duties were "expressly assigned by the testator to" three named persons. He considered they were "executors according to the tenor". Closer to the present case is In the Goods of Wilkinson where the testatrix named two persons in her will stating " hereinafter called my trustees, of this my will". After making certain specific bequests she expressed a desire and wish that they "do pay my funeral and all other debts owing by me as soon as possible after my interment". Jeune J. said: "I think that, according to the true construction of the will, the testatrix intended to appoint these gentlemen her executors, and the grant of probate, therefore, may go to them as executors according to the tenor". I find it difficult to distinguish this last mentioned straight forward decision from the reasonably clear intentions of the testatrix in the case at bar.
[16] Estate of Williams (1984) 36 SASR 423 at 435.
The following principles relevant to the present case can be drawn from Estate of Williams: the appointment of an executor may be express or implied; whether it is implied will depend on a construction of the whole will and whether a conclusion is reached that the named persons will carry out the functions normally associated with the office of executor; upon reaching such a conclusion, the persons named are said to be called the executor according to tenor; a mere direction to persons to pay debts, funeral and other testamentary expenses can appoint such persons as executors according to tenor; and, in order for named persons to constitute executors according to tenor, a reasonable construction of the will should disclose an intention on the part of the testator that the named persons should collect the assets of the testator, pay the debts and funeral expense and discharge the legacies contained in the will.
As earlier observed, the deceased gave Dimitrios $10,000.00 to ensure that the “Italians” do not purchase her house, and directed in an imperative way that her books be looked after because of their great value. Dimitrios and Katarina are then directed to look after the house until everything is “settled” and to ensure that the moneys go to the construction of an orphanage as described above. In the circumstances of this case, I construe “everything settled” as meaning a direction to ensure that the terms of the will are carried out and that her debts are paid. Directions are given as to the manner of the deceased’s burial. In the absence of any provision for the payment of these arrangements, the only source for this money could be from the deceased’s assets. Similarly, the document propounded does not provide for the payment of the deceased’s personal debts and those arising from the administration of the estate.
The document propounded directs that, having sold the house, a function usually attributed to the office of executor, Dimitrios and Katarina, together with the Arcadian Society, with the supervision of a solicitor, are to arrange that the moneys be paid towards the construction of an orphanage. It was contended by counsel that the tasks designated in the document propounded for Dimitrios and Katarina are those ordinarily performed and completed by executors prior to the commencement of a charitable trust, and that there are enough indications in the document to suggest that the deceased appointed Dimitrios and Katarina as the executors of her estate.
Having regard to the circumstances described above, and in particular, the fact that the tasks nominated for Dimitrios and Katarina in the document are typical tasks attributable to the office of executor, I conclude that the plaintiffs, Dimitrios Tsagouris and Katarina Gkargkasoula, have been appointed executors of the deceased’s estate according to the tenor of the will.
Grant of probate of will in common form or solemn form
A further issue arises for consideration in the present matter; namely, whether this Court should grant probate of the document in common or solemn form. It is convenient to summarise those respective grants and the consequences that flow from them. A grant is a judicial act, and becomes an order of the Court.[17] A grant of probate in common form, or a non-contentious grant, is usually made by the Registrar of Probates,[18] and provides a valid authority to the executor who is named in the document to deal with the assets of the estate as directed, and to exercise the powers of that office. It is, however, inherently revocable. The grant in this respect is not conclusive, and any person whose interest is adversely affected by the grant will remain entitled to have the will proved in solemn form.[19]
[17] Kuhl v Liebcheschel [1933] SASR 394 at 398 (Napier J).
[18] Under a delegated power, see Administration and Probate Act 1919 (SA) section 6-8; Probate Rules 2004 rule 4-5, 10.
[19] Jolley v Jarvis [1964] P 262 at 272; In the Will of England (1900) 22 ALT 86; Re Levy [1953] VLR 652.
On the other hand, a grant of probate in solemn form, or a contentious grant, seeks to decide finally, and as against the whole world, whether a particular will is the last valid will of the deceased.[20] If that is achieved, the grant is not revocable,[21] and has the same legal status as a judgment.[22] The grant is usually made in circumstances where the validity of the will is challenged on the grounds that the testator lacked testamentary capacity, the will was not duly executed, or that it was not the last will of the deceased.[23] Established exceptions exist to the finality of a grant in solemn form. There is no need to set out those exceptions, save to say that in cases of a grant in solemn form, there is a particular concern in ensuring that every possible person with an interest in the outcome of the proceedings has been notified and been given an opportunity to be heard.[24] In Estate of Kris,[25] Legoe J examined the alternative modes for proving a will and the different consequences that flow:
Will may be proved in two ways, in common form or in form of law. "The latter is usually termed proof in solemn form and sometimes proof per testes": see Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (16th ed), Ch 23, p 279. Wills are proved in solemn form in a probate action (see SCR 104) where the main, and generally the sole, question for the determination of the court is whether a will is or is not, either in whole or in part, valid as a testamentary instrument. The will is propounded in the action to which persons, interested under another will or an intestacy, are made parties (or are cited to see the proceedings) and for the validity of which the court pronounces after hearing the evidence. On the other hand a will is proved in common form:
(i) where its validity is not contested and
(ii)where the court allows it to be admitted after a hearing or motion or summons. In my judgment in In Estate of Vauk (1986) 41 SASR 242 at 248, I pointed out that:
"If there is opposition to the application then the executors should issue a writ of summons propounding the will It should be noted that the difference in effect between a probate granted in common form and a probate which has been granted in solemn form (ie propounded in an action) is that the former is revocable and the latter with two exceptions is irrevocable. The exceptions are if a later will is discovered or if the judgment has been obtained by fraud. Parties to a probate action and those privy thereto are bound by the result."
[20] For the relevant procedure see Supreme Court Civil Rule (2006) rule 205(1)(a).
[21] See Young v Holloway [1895] P 87 and Osborne v Smith (1960) 105 CLR 153.
[22] Osborne v Smith (1960) 105 CLR 153 at 158-159 (Kitto J).
[23] Estate of Kirs (1990) 55 SASR 61.
[24] See Estate of Alvaro (deceased) (Unreported, Supreme Court (SA), No S5183, 19 July 1995, BC9502314, Judgment of Legoe J at [21]).
[25] Estate of Kirs (1990) 55 SASR 61 at 68.
The precise issue that arises in the present proceeding is the effect of the withdrawal of the claims made inter partes but before the hearing, regarding the deceased’s testamentary capacity at the relevant time. The Court is now faced with an application for a grant of probate in solemn form, where there were allegations of want of testamentary capacity, a withdrawal of those allegations, and limited evidence before the Court with respect to the allegations.
The analysis by EM Heenan J in Wheatley v Edgar[26] in the Supreme Court of Western Australia is apposite. That case involved an application for a grant in solemn form of a will of the deceased. At issue between the parties was the testamentary capacity of the deceased. A compromise was reached between the parties, and the issue before the Court was whether a grant of probate should or could be made in those circumstances, and if it could be made, whether it should be a grant in common form or in solemn form. After analysing the authorities, EM Hennan J concluded:[27]
In my view these authorities produce the result that for there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the will, or by any other party to that suit, whether joined or cited, of the formal validity of the will, on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time: Barry v Butlin (1838) 2 Moo PC 480 and Pereira v Pereira [1901] AC 354 PC. In this regard the propounder may take advantage of the rule that a will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding. If there is evidence to the contrary it is for the propounder to establish affirmatively that the testator was of sound mind: Western Australian Trustee Executor Agency Co Ltd v Holmes [1961] WAR 144. Nevertheless, there must be proof at least to this extent on the civil standard to justify a grant in solemn form.
…
… when a compromise is reached between the parties to a contested action for proof in solemn form, it is open to the court to decree in favour of the will either in common form or in solemn form but, for solemn form to be decreed sufficient evidence to satisfy the minimum requirements for validity must be adduced and that this will require, at least, proof of due execution. This is entirely consistent with the other cases so far examined. There is also the significant observation that, whether or not there should be a decree in solemn form by the court in the event of a compromise will also depend on the circumstances of the particular case.
[26] Wheatley v Edgar [2003] WASC 118.
[27] Wheatley v Edgar [2003] WASC 118 at [24] and [26].
Dimitrios and Katarina in the within proceeding initially sought a grant in common form. On advice from the Registrar, they amended their application to seek a grant in solemn form. It is in the discretion of the Court as to what evidence it regards as sufficient to justify a grant of probate in solemn form,[28] and the Court retains a discretion to order the grant of probate in common form. Where the allegations are withdrawn before evidence is led, it seems a grant in common form may be made.[29] In the circumstances of this proceeding, and in view of the foregoing authority, I am not prepared to order a grant in solemn form, and am of the opinion that this is a situation where the grant should be made in common form.
[28] Executor Trustee Australia Ltd v Henderson (2006) 244 LSJS 43 at [30].
[29] Wheatley v Edgar [2003] WASC 118.
Conclusion
In this matter I order that:
· the Registrar of Probates admit the document dated 6 June 2002 to probate as the will of the deceased pursuant to section 12(2) of the Wills Act 1936 (SA).
· the will be admitted to probate in common form.
· Dimitrios Tsagouris and Katarina Gkargkasoula are the executors of the will of the deceased dated 6 June 2002 according to its tenor.
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