In the Estate of Michael Edward Welsh (deceased) [2014] SASC 13

The Supreme Court of South Australia was asked to remove particular words from a Will on the basis that the words were offensive in nature.

The deceased died on 11 March 2013, leaving a Will dated 25 June 2002 and two codicils, dated 17 October 2012 and 6 March 2013.

The deceased’s Will included a clause stating he had made no provision for his wife as their marriage had broken down, they lived separately and that “she is a compulsive and addicted gambler.” The executors sought to remove this allegation.

The Court has an inherent power to exclude words from documents being admitted to probate, based on the principle that the Will ought to be admitted to Probate in the words of the Will itself. However the Court must exercise great care when exercising this power.

Before the Court can direct that certain words from a Will should be omitted two criteria must be met:

  • The words must not have any dispositive effect or any other testamentary purpose.
  • The words must be either scandalous, offensive, defamatory or blasphemous.

The Court considered a number of previous cases where words had been omitted for these reasons. The Court also considered circumstances where the words may not necessarily have a dispositive effect but did provide an explanation for the deceased’s intentions when preparing his or her Will.

In this case the executors submitted that the words:

  • “She is a compulsive and addicted gambler” was gratuitous and unnecessary.
  • As those words did not have a dispositive effect the statement that the marriage had broken down was a sufficient reason why the wife was left without  provision.

However the Court found that whilst the words in question did not serve an important testamentary purpose they did give further background as to why the wife was left without provision.

The executors also submitted that the words were “scandalous, offensive, defamatory or blasphemous” as they reflected poorly on the wife’s character and would diminish her reputation.

The words “offensive and scandalous” have previously been held to mean annoying and insulting and having the effect of wounding the feelings or arousing anger in a reasonable person.

Notwithstanding, this definition, in these circumstances the words in question were found not to have been used gratuitously and that they did not appear to have been put in the Will for the purpose of injuring the wife’s reputation. Rather, they provided further explanation as to why the wife was left with no provision, as the deceased had expressed his concern that any inheritance would be lost to gambling.

The Court held that the words did not amount to an abuse of process as the main purpose was to provide a reason for the deceased’s wishes and they did not go beyond that purpose. Accordingly, the Court did not consider that the connotation placed upon the words by the executors were sufficient to justify the Court using its power to remove them from the Will.

Comment: This case is an interesting reminder that upon being admitted to probate a person’s Will becomes a public document. When preparing your Will, it is important to be mindful of the language used, particularly when explaining your intentions. It has the potential to be defamatory with associated consequences.

If there is a particular need to explain the reasoning behind one’s testamentary wishes, a separate document or statutory declaration may be prepared, noting those reasons. This document can be kept with the original Will and used as evidence of your wishes should that be necessary, rather than entering the public domain upon a grant of probate of the will being obtained.