The applicant in this matter sought an order on behalf of the deceased’s niece that an informal will be admitted to probate per s 18 Succession Act 1981. The deceased’s niece was the purported will’s substantial beneficiary. The issue was that the purported will left a nominal amount of $2 to the deceased’s two daughters, and there was no evidence that they had been served or had prior notice of the application.
25 March 2020; 29 April 2020
The case usefully outlines the generally accepted practice on applications pursuant to s 18. His Honour’s commentary on that matter is of note since the Uniform Civil Procedure Rules 1999 do not prescribe the giving or serving of notice upon persons with a beneficial interest in a deceased’s estate in these particular circumstances. As such his Honour needed to determine whether it was prudent to make the orders sought in the absence of notification of the application.
Preliminary matters in the application were readily dispensed of. In terms of the deceased’s intention, his Honour noted the following matters:
- the document was headed “My Last Will 19/April/2013”, was signed and witnessed by a Justice of the Peace;
- there was no evidence as to the existence of any other prior or later wills;
- the dispositive content of the will indicated an intention that it be the deceased’s will;
- there was no suggestion of any want of testamentary capacity; and
- there were no other circumstances raising doubt regarding the force which should be accorded to the purported will.
As such, he was satisfied that the deceased intended the document to form his will, on its face. There was no evidence to the contrary. However, the fact remained that the absence of any steps taken to locate and notify the deceased’s daughters of this application – “evidence …. commonly included in applications of the present kind ”, was problematic. Albeit noting that the Rules do not mandate that notification take place, his Honour was disinclined to grant the application without appropriate efforts being made to do so. That was particularly important in the current matter in view of the fact that they had been left an amount of only $2 each in the Will, since as the deceased’s daughters, their relative share of the estate, were it to fall on an intestacy basis, would be far more substantial. His Honour commented:
“That course is prudent, in my view, notwithstanding the apparent force otherwise of the application. It may, of course, be the deceased’s daughters recognise the force of the application and do not seek to participate in the application or be heard in respect of it. Indeed, they may hold other reasons why they have no interest in the proceeding. But for the reasons I have explained, given the nature of the decision and its consequences, a proper attempt should at least be made to locate and notify them of the application.”
Accordingly, the application was adjourned in order to enable the applicant to adduce evidence that all parties who potentially had a beneficial interest in the deceased’s estate which might be affected by the application had been duly notified.
Once satisfied that the deceased’s two daughters had been located and notified of the application and of their right to attend, his Honour granted the application, noting that both had in any event elected not to contest it.
A de Jersey