Discernible Intention to Revoke a Will

A testator’s intention to revoke an earlier Will must be discernible.

Gareth Hughes Roberts aged 53 died in February 2015 in Thailand of injuries sustained in a motorbike accident. Gareth was born in the United Kingdom but had been an Australian resident for 48 years, and owned assets in Australia and Thailand.

Gareth’s Australian estate valued at $375,816.72, comprises Australian bank accounts and bonds held in Australian share registries.

The Thai assets estimated to be worth $160,000 comprise a condominium, money in two Thai bank accounts, a car, and a motorcycle (which was destroyed in Gareth’s fatal road accident).

Gareth was divorced; did not have a domestic partner nor any children when he died leaving two wills. One Will (“The Australian Will”) was made using a pre-printed will form titled “Australian Legal Will Kit” in November 2012

The Australian Will, made in Port Broughton, meets the formalities of the Wills Act 1936 (SA) (“the Wills Act”). It contains a revocation clause, appoints Gareth’s sister Karen “executor of my estate in full”, and makes specific gifts to loved ones. Karen was the residual beneficiary of the estate. Gareth signed the will in the presence of two witnesses.

In March 2014, Gareth had a Will prepared by a Thai Lawyer in Thailand (“the Thai will”). The Thai will does not contain a general revocation clause and purports only to deal with property in Thailand.

The Thai Will appoints Ms Suwannee Ponmuang as administrator of the Thai estate assets and gifts her the condominium, monies held on deposit in two Thai bank accounts, the motorcycle and the car.

Karen sought an order that probate of the Australian Will be granted to her as the sole executor.

The Wills Act provides that a will executed in another country, where, the testator was a resident, at the time of its execution, or death, is valid if the formalities required for execution prescribed by the other country are complied with.

Karen submitted that Gareth resided permanently with her and her children at Port Broughton, and although he had a number of friends in Thailand had never expressed any intent to live there permanently or move away from South Australia; he held an Australian passport, a Medicare card, South Australian driver’s licence, and was listed on the Australian Electoral Roll. Importantly Gareth was never a permanent resident of Thailand,

Karen recalled a conversation that she had with Gareth in early 2014 that he was making a will in Thailand as he “wanted to distribute the Thai and Australian assets separately in these respective countries” he wished to leave his Thai assets exclusively to his partner; his Australian assets were to be dealt with as expressed in the Australian will.

The Court was satisfied that Gareth intended Karen to be the executor of the Australian will and Suwannee be the executor of the Thai will; agreeing that the evidence together with the terms of the Thai Will established that it was Gareth’s intention to make a Will in accordance with Thai law to dispose of his Thai assets exclusively and that he did not intend the Thai Will to revoke the Australian Will.

Importantly the Court was satisfied that Gareth was domiciled in Australia at the time of his execution of the Australian and Thai wills and at his death ad the Australian Will was a valid will in accordance with the Wills Act.

Karen is entitled to have the Australian Will admitted to probate with costs of the application paid out of Gareth’s Australian estate.







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