Supreme Court New South Wales Medium Neutral Citation: Melva Anne Berk v The Estate of Alexander Berk [2012] NSWSC 1589 Hearing dates: 10/12/2012 Decision date: 10 December 2012 Jurisdiction: Equity Division - Probate List Before: McDougall J Decision: Declare that will not revoked by termination of marriage; dispense with notice; grant probate of will to plaintiff. Catchwords: SUCCESSION - Application for probate in circumstances where plaintiff is former spouse of deceased - whether termination of marriage revoked testamentary appointments and gifts - operation of s 15A Wills Probate and Administration Act 1898 (NSW) in the context of mutual wills - dispensation from requirements of Part 78 Rule 34C Supreme Court Rules 1970 (NSW) - HELD - Probate granted - Dispensation granted. Legislation Cited: Succession Act 2006 (NSW) Wills Probate and Administration Act 1898 (NSW) Category: Procedural and other rulings Parties: Melva Anne Berk (Plaintiff) Estate of the Late Alexander Berk (Defendant) Representation: Counsel: S A Benson (Plaintiff) Solicitors: Hedges Bhatty Solicitors File Number(s): 2011/200039 Judgment 1HIS HONOUR: The plaintiff (Mrs Berk) and her late former husband (the deceased) made mutual wills on 30 September 1997. Thereafter, their marriage was dissolved, and the decree has become absolute. Mrs Berk seeks a grant of probate of the deceased's will. In the events that have happened, the question to be decided is whether s 15A of the Wills Probate and Administration Act 1898 (NSW) (the WPA Act) stands in the way of her obtaining that relief. 2Section 15A reads as follows: 15A Effect of termination of marriage (1) If, after a testator has made a will, the testator's marriage is terminated: (a) any beneficial gift (including any devise, legacy, estate, interest or appointment of or affecting any real or personal estate, but not including any charge or direction for the payment of any debt) in favour of the former spouse of the testator and any power of appointment conferred on a former spouse is revoked, and (b) any appointment under the will of the former spouse of the testator as executor, trustee or guardian shall be taken to be omitted from the will, and (c) any property which would, but for this subsection, have passed to the former spouse of the testator pursuant to a beneficial gift referred to in paragraph (a) shall pass as if the former spouse had predeceased the testator, but no class of beneficiaries under the will shall close earlier than it would have closed if the beneficial gift had not been revoked. (2) A beneficial gift or power of appointment is not revoked pursuant to subsection (1) (a), and an appointment shall not be taken to be omitted from a will pursuant to subsection (1) (b), if: (a) the Court is satisfied by any evidence, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the testator, that the testator did not, at the time of termination of the marriage, intend to revoke the gift, power of appointment or appointment, or (b) the gift, power of appointment or appointment is contained in a will which is republished after the termination of the marriage by a will or codicil which evidences no intention of the testator to revoke the gift, power of appointment or appointment. (3) Nothing in this section affects: (a) any right of the former spouse of a testator to make any application under the Family Provision Act 1982, or (b) any direction, charge, trust or provision in the will of a testator for the payment of any amount in respect of a debt or liability (including any liability under a promise) of the testator to the former spouse of the testator or to the executor or administrator of the estate of the former spouse. (4) In this section: Family Law Act means the Family Law Act 1975 of the Commonwealth. former spouse, in relation to a testator, means the person who, immediately before the termination of the testator's marriage, was the testator's spouse, or, in the case of a purported marriage of the testator which is void, was the other party to the purported marriage. promise includes any statement or representation of fact or intention. (5) For the purposes of this section, the termination of a marriage occurs or shall be taken to occur: (a) when a decree of dissolution of the marriage pursuant to the Family Law Act becomes absolute, or (b) on the making of a decree of nullity pursuant to the Family Law Act in respect of a purported marriage which is void, or (c) on the annulment of the marriage in accordance with the law of a place outside Australia if the annulment is recognised in Australia pursuant to the Family Law Act. 3There is a preliminary issue as to the application of s 15A, having regard to the provisions of s 13 of the Succession Act 2006 (NSW), which section commenced operation on 1 March 2008. Section 13 reads as follows: 13 What is the effect of divorce or an annulment on a will? (1) The divorce of a testator or annulment of his or her marriage revokes: (a) a beneficial disposition to the testator's former spouse made by a will in existence at the time of the divorce or annulment, and (b) an appointment of the testator's former spouse as an executor, trustee, advisory trustee or guardian made by the will, and (c) a grant made by the will of a power of appointment exercisable by, or in favour of, the testator's former spouse. (2) Subsection (1) does not apply if a contrary intention appears in the will. (3) The divorce of a testator or the annulment of his or her marriage does not revoke: (a) the appointment of the testator's former spouse as trustee of property left by the will on trust for beneficiaries that include the former spouse's children, or (b) the grant of a power of appointment exercisable by the testator's former spouse exclusively in favour of the children of whom both the testator and the former spouse are the parents. (4) If a disposition, appointment or grant is revoked by this section, the will takes effect in respect of the revocation as if the testator's former spouse had died before the testator. (5) Nothing in this section affects: (a) any right of the former spouse of a testator to make any application under Chapter 3 of this Act, or (b) any direction, charge, trust or provision in the will of a testator for the payment of any amount in respect of a debt or liability (including any liability under a promise) of the testator to the former spouse of the testator or to the executor or the administrator of the estate of the former spouse. (6) In this section: annulment, in relation to a testator, means: (a) the annulment of the testator's marriage by the Family Court of Australia, or (b) the annulment of the testator's marriage under a law of a place outside Australia, if the annulment is recognised in Australia under the Family Law Act 1975 of the Commonwealth. divorce means the ending of a marriage by: (a) a divorce order in relation to the marriage taking effect under the Family Law Act 1975 of the Commonwealth, or (b) a decree of nullity in respect of the marriage by the Family Court of Australia, or (c) the dissolution of the marriage in accordance with the law of a place outside Australia, if the dissolution is recognised in Australia under the Family Law Act 1975 of the Commonwealth. spouse includes a party to a purported or void marriage. testator's former spouse means the person who was the testator's spouse immediately before the testator's marriage was ended by divorce or annulment. 4There is a difference, which might have been significant on the facts of this case for reasons that will become apparent, between s 15A of the WPA Act and s 13 of the Succession Act. As to s 15A(2)(a), it is clear that the Court is entitled to take into account evidence from any source as to the intention of the testator at the time of termination of marriage. However, according to s 13(2), the revocation effected by subs (1) does not apply (I interpolate, only) "if a contrary attention appears in the will". 5Schedule 1 to the Succession Act includes savings and transitional provisions. Relevantly for present purposes, cl 3(9) of Sch 1 provides that s 13 "extends to a will made before the commencement of this clause, if the divorce or the annulment of the marriage occurs on or after the commencement". As I have said already, the relevant "commencement" date is 1 March 2008. 6The decree of dissolution of marriage became absolute on 3 February 2002. That is the effective date of termination of the marriage both for the purposes of s13 (see subs (6), definition of "divorce") and for the purposes of s 15A (see subs (5)). 7It follows that the termination of the marriage, or for the purposes of s13 the divorce, became effective on 3 February 2002. It follows, in turn, that the present question is governed, as I said at the outset of these reasons, by s 15A of the WPA Act. 8The relevant facts are in relatively narrow compass. Mrs Berk and the deceased were married at the time the wills were made. I have referred to the wills as "mutual wills" because they were made pursuant to a document described as "Deed of Contractual Wills", also made on 30 September 1997. 9By cl 1 of that deed, Mrs Berk covenanted to execute a will in a defined form and not to vary or revoke it without the prior written consent of the deceased. The covenant was given in consideration of the like covenant being given by the deceased. That covenant by the deceased was in fact contained in cl 2. Clause 3 bound each of the parties not to do or omit to be done anything which would diminish their respective estate, and not to dispose of certain property. I set out those clauses of the deed: 1. In consideration of ALEXANDER BERK executing a will in the form set forth in the first schedule hereto and agreeing not to vary or revoke the same without prior consent of MELVA ANNE BERK MELVA ANNE BERK agrees to execute a will in the form set forth in the second schedule hereto and not to vary or revoke the same without the prior written consent of ALEXANDER BERK. 2. In consideration of MELVA ANNE BERK executing a will in the form set forth in the second schedule hereto agreeing not to vary or revoke the same without the prior consent of ALEXANDER BERK, ALEXANDER BERK agrees to execute a will in the form set forth in the first schedule hereto and not to vary or revoke the same without the prior written consent of MELVA ANNE BERK. 3. Each of the parties agrees not to do or omit to do anything with the intention of diminishing their respective estate and not to dispose of property at 32 Grosvenor Crescent, Summer Hill or at Lot 18 in deposited plan 203876, Stanley Street, Kurrajong except for the purposes of meeting their ordinary living expenses or the purchase of substituted real estate. 10The first schedule to the deed set out the form of will to be made by the deceased. The second schedule to the deed set out the form of will to be made by Mrs Berk. Later that day (I assume, after the deed itself was executed) the deceased and Mrs Berk did in fact make wills in accordance with the relevant schedule to the deed. It is of the will made by the deceased in those circumstances that Mrs Berk now seeks probate. 11It is apparent that the deed bound each of Mrs Berk and the deceased to make, and not without the consent of the other to vary or revoke, a will in the defined form. 12In the present case, if s 15A(1) of the WPA Act applies (that is to say, if the position is not saved by subs (2)), the effect of the deed would be that the estate of the deceased would be held in any event upon a constructive trust for Mrs Berk. 13I am not sure that the mere making of mutual wills pursuant to a deed, even a deed containing the provisions that I have summarised and set out, would amount to evidence, for the purposes of s 15A (2)(a) of the WPA Act, that the testator did not intend, at the time of termination of marriage, to revoke the relevant gift, power or appointment. I say that because the fact of revocation follows from s 15A (1) itself, and by definition applies even where the will in question is one of two mutual wills. Thus, it may be, the mere fact of expressing an intention, in words such as those used, that the wills are mutual wills and not to be revoked would not, at least in the absence of reference to the section and its effects, amount to a sufficient expression of intention for the purposes of the section. 14However, the evidence does not finish there. Mrs Berk has sworn several affidavits. In one of those, she says that the same solicitor acted for her and the deceased not only in relation to the deed and wills, but also in relation to the Family Court proceedings. It is not necessary to consider the circumstances in which a solicitor might assume those apparently conflicting responsibilities. The simple fact is that, on Mrs Berk's evidence, he did. Were it necessary to do so, I would infer from that fact that the divorce proceedings were effectively consensual. 15In an affidavit affirmed 4 September 2012, Mrs Berk says among other things that: (1) at the time of the divorce, she and the deceased did not seek any property orders or any other orders in the Family Court "as we were satisfied with contents of the Deed of Contractual Wills..." (para 12); and (2) at the time of the divorce, she and the deceased "relied on the Deed of Contractual Wills... to administer our assets at the time of our deaths" (para 13). 16I infer from that evidence that Mrs Berk and the deceased, perhaps with the assistance of the solicitor, had considered the extent to which provision needed to be made for each of them following the divorce and on the death of the other, and came to the understanding, with which they were satisfied and in which they concurred, that the deed, or more accurately the wills made pursuant to it, would continue to apply, in particular to the administration of their respective estate upon their respective death. 17It seems to me that this evidence from Mrs Berk, when added to the terms of the deed, is evidence, for the purposes of s 15A(2)(a) of the WPA Act, that the deceased did not intend, at the time the marriage was terminated, to revoke the will or the provision made by it for Mrs Berk. 18Thus, I am satisfied that the beneficial gift in the will in favour of Mrs Berk has not been revoked by the termination of her marriage to the deceased, nor has her appointment as executor and trustee. 19I repeat that it may well have been otherwise if the question had fallen to be determined by reference to s 13 of the Succession Act, because the evidence on which I have relied is not (either as to the deed or as to the statements of intention or inferred intention) evidence to be found "in the will" of the deceased. 20For those reasons, I am satisfied that the plaintiff Mrs Berk has made out a case in substance to the relief claimed by her amended summons filed in Court today. 21There is a requirement under SCR pt 78 r 34C that Mrs Berk should file an affidavit deposing to those whose interests might be adversely affected by the relief which she seeks, and should serve forms of consent on those persons, who are thereby to be given the right to be cited to see the proceedings. 22The Court has power to dispense with those notice provisions. That is established by In the Estate of Mack [1962] NSWR 1029. 23Mrs Berk's solicitors have made substantial inquiries and searches. It appears from those searches that the only living blood relative of the deceased was his sister Gizella Vorosmarty. The searches and inquiries made out (which seem to have been comprehensive) have not located that person. Indeed, it is not even clear that she may still be alive. 24In circumstances where I have concluded that the will should be upheld, and where (in the person of Mrs Berk) there is someone both to administer the estate and to give effect to the testamentary gifts, it seems to me, taking into account the searches that have been made, appropriate to dispense with notice provisions in the manner sought. 25Thus, not only has Mrs Berk made out her claim to the relief that she seeks, it is appropriate that she should be granted that relief. 26I make a declaration in terms of prayer 2A of the Amended Summons filed in Court today. I make orders in terms of prayers 3 and 4. I order that the plaintiff's costs on the indemnity basis be paid out of the estate of the deceased. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2012