Probate Administration & the Unexecuted Will pt 2

Susan Sugars died on 23 March 2018 without leaving a will that had been executed with the formalities required by the Wills Act 1936 (SA). (”the Act”)

Susan was survived by the applicants her husband, Lynton , and two adult sons from a previous marriage, Jason and Darren Bridgman, who are the only issue of the deceased for the purposes of any administration of the deceased’s estate by way intestacy pursuant to section 72G of the Administration and Probate Act 1919 (SA).


On 13 October 2016, Susan and Lynton instructed their solicitor to prepare mutual wills. The solicitor emailed a draft will on 7 November 2016, Susan replied the following day with additional instructions. On 17 November 2016, an amended draft will was emailed to Susan together with an explanation of recent changes.

Susan and Lynton responded on 4 July 2017, apologising for the delay in finalising the matter including  further amendments and concluding:

“Once these corrections have been made we will pay the invoice and send copies of the paperwork to our respective children to sign. Thank you for your patience in this matter.”

After updating the documents the solicitor replied on 17 July 2017, seeking further instructions concerning a proposed enduring power of attorney and concluding

“I will await your further instructions before sending through all of your amended documents.”

Susan and Lynton sent further instructions by  email on  24 July 2017, concerning their proposed enduring powers of attorney, advising that as Jason and Darren would be in Adelaide between 2 and 9 August 2017, it would be the ideal time to have them sign the documentation.

The solicitor replied via email on 25 July 2017, including proposed enduring power of attorney (EPA), advanced care directive (ACD) and a draft will.

The EPA and ACD were signed by Jason and Darren when they visited their mother between 2 and 9 August 2017. The will was not executed however, as all three of the applicants were named as executors and beneficiaries so couldn’t witness the execution of the will.

In August 2017, Susan was diagnosed with leukaemia; over the next few months she had inpatient treatment before dying unexpectedly in March 2018.

The application

The applicants sought probate on an unexecuted and undated four page typed document prepared by solicitors instructed by Susan. The document names the applicants as executors.

The applicants sought an order under s12(2) of the Act providing 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 the Act.

However as the Court observed in In the Estate of Graham deceased (1978) 20 SASR 198

“… s 12(2) is remedial in intent, … its purpose is to avoid the hardship and injustice which has so often arisen from a strict application of the formal requirements of a valid will, as dictated by s 8 of the Act…”

At 202

The decision

The Court was satisfied that the draft will conformed to the instructions Susan gave to her solicitor; had been approved of as at 4 July 2017 and that at that date Susan intended to execute a will in that form. Further, a latter draft only updating her address and sent on 25 July 2017 remained unexecuted for a short time before Susan was diagnosed with cancer.

Following her diagnosis Susan experienced a period during which she had multiple admissions to hospital and was focussed on her treatment. The Court accepted that Susan was of the belief that she would make a full recovery. Therefore the execution of the will was not seen as urgent.

In the circumstances, the Court was satisfied that the document:

(a)  expresses the testamentary intentions of the deceased; and

(b) the deceased intended, as at her death, the document to constitute her last will and testament.



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