IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Trusts, Equity and Probate List

S PRB 2022  25558

IN THE MATTER of the Will of COLIN MALCOLM SAMPSON, deceased

CLAIRE DOREEN SAMPSON	Plaintiff	

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JUDGE:	Moore J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	30 November 2023	
DATE OF JUDGMENT:	24 June 2024	
CASE MAY BE CITED AS:	Re Sampson	
MEDIUM NEUTRAL CITATION:	[2024] VSC 351 	

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ADMINISTRATION AND PROBATE  – Application by plaintiff for grant of probate – Where plaintiff named executor – Where plaintiff and deceased divorced subsequent to deceased’s final will – Whether deceased intended appointment not to be revoked upon divorce – Application granted –  Interpretation of Legislation Act 1984, s 35 – Wills Act 1997, ss 1, 14 – Wills Act 1958, s 16A – Western Australian Planning Commission v Southregal Pty Ltd (2017) 259 CLR 106 – AB (pseudonym) v Independent Broad-Based Anti-Corruption Commission [2024] HCA 10 – Waters v Diesel Holdings Pty Ltd [2024] VSCA 77 - Re McComb (1999) 3 VR 485.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Ms K Halcomb	Conlan Cummings Lawyers	

HIS HONOUR:
Introduction
1	The plaintiff, Claire Doreen Sampson, seeks a grant of probate of the will of Colin Malcom Sampson, deceased, dated 24 November 2016 (Will).  The deceased died on 11 August 2022 at 65 years of age as a result of a cardiac arrest he suffered following surgery.  The deceased and the plaintiff had been married for more than 20 years until they were divorced on 25 February 2018, some four years before the deceased’s death.  The deceased was survived by his brother, Gregory Sampson, and his two adult children, Phoebe Sampson and Jack Sampson.  
2	Under the Will, the plaintiff was appointed as executor of the deceased’s estate. However, pursuant to s 14 of the Wills Act 1997 (the Wills Act), the divorce of a testator revokes any appointment of the divorced spouse as executor or trustee, with such revocation taking effect as if the spouse had predeceased the testator.  This provision is, however, subject to the existence of a contrary intention on the part of the testator: by operation of s 14(2), it does not apply ‘if it appears’ that the testator did not want the appointment to be revoked upon the ending of the marriage.  
3	The plaintiff contends that a contrary intention is established in relation to the deceased’s wishes.  However, this contrary intention is not said to appear from the terms of the Will, but from extrinsic evidence said to illuminate the deceased’s intention in the period leading up to his death.  The first question for determination is whether that contrary intention is established on the evidence.  Assuming it is, the second question for determination is whether s 14(2) of the Wills Act, properly construed, permits a contrary intention on the part of a testator to be established solely by reference to such extrinsic evidence.  
4	For the reasons which follow, both questions are to be answered in the affirmative.  The Court accordingly ordered that probate of the Will be granted to the plaintiff.
The Wills Act
5	Section 14 of the Wills Act provides as follows:
14 	What is the effect of divorce on a will?
(1) 	The divorce of a testator revokes—
(a) 	any disposition to the divorced spouse of the testator, made in a will in existence at the time of the divorce; and
(b) 	the grant of a power of appointment by the will exercisable by or in favour of the spouse, other than a power of appointment exercisable by the spouse only in favour of persons who are the children of both the testator and the spouse; and
(c) 	any appointment made by the will of the spouse as an executor, trustee, advisory trustee or guardian other than the appointment of the spouse as a trustee of property left by the will upon trust for beneficiaries that include the children of the spouse.
(2) 	This section does not apply to any disposition, appointment or grant, if it appears that the testator did not want the disposition, appointment or grant to be revoked upon the ending of the marriage.
(3) 	A will in which there is a disposition, appointment or grant to which subsection (1) applies takes effect as if the spouse had predeceased the testator.
(4) 	In this section—
divorce means the ending of a marriage by—
(a) 	a decree of dissolution of the marriage becoming absolute under the Family Law Act 1975 of the Commonwealth; or
(b) 	the granting of a decree of nullity in respect of the marriage by the Family Court of Australia; or
(c)	the dissolution or annulment of the marriage in accordance with the law of a place outside Australia, if that dissolution or annulment is recognised in Australia under the Family Law Act 1975 of the Commonwealth;
divorced spouse means the spouse of the testator by the marriage which was the subject of the divorce;
spouse includes a party to a purported or void marriage.
Background
6	The deceased left an estate with a net value of $1,681,771.  Pursuant to the Will, he made a specific cash bequest of $300,000 to his daughter Phoebe, with the residue to be held on trust by the plaintiff for the benefit of his son Jack until he attains the age of 25.  The plaintiff is not a beneficiary under the Will.
7	Notice of the proceeding was given to Phoebe and Jack.  Although they did not appear, in correspondence which was before the Court, they indicated their agreement with the plaintiff’s application.
8	In support of her application, the plaintiff relied upon two affidavits made by her on 12 December 2022 and a further affidavit affirmed 14 March 2023.  She also relied upon affidavits by her instructing solicitor dated 9 May 2023 and 17 May 2023; an affidavit by Jack Sampson dated 12 December 2022; and an affidavit of Gregory Sampson dated 14 March 2023.
Question 1: Existence of a contrary intention?
9	The following facts are established on the basis of the above evidence.
10	The plaintiff and the deceased separated in about December 2014, some three years before their divorce.  They filed a joint application for divorce in about November 2017.  A divorce order was granted on 24 January 2018, which took effect on 25 February 2018. 
11	It is therefore apparent that, when the deceased made his Will on 24 November 2016, he and the plaintiff were not divorced, but had been separated for just under two years.  The plaintiff viewed their marriage as having been terminated by their separation and subsequent financial settlement, which was arranged amicably.  As the plaintiff stated in her evidence, ‘although the separation was difficult, over the following years we rebuilt our friendship and cooperated and communicated well to co-parent our son, Jack’.
12	The plaintiff executed a will on 25 August 2016, some three months before the deceased made his Will.  The plaintiff appointed the deceased as executor of her will and identified him as her ‘former husband’.
13	On 19 July 2022, about three weeks before the deceased died, the plaintiff, the deceased and Jack had dinner together at the plaintiff’s house to discuss the deceased’s forthcoming operation.  The plaintiff’s evidence, which was corroborated by Jack, was that the deceased:
… seemed very nervous and said that he wanted to make his wishes clear in case he did not survive. 
The deceased explained the contents of the Will to Jack and I. He confirmed that I was to be his executor and that the Will set out what he wanted to happen if he should die. He also told us that he had left letters for Jack and I on his laptop to be read if the worst were to happen and said that Jack would be able to access them because he had provided Jack with the password.
14	About two weeks later, the deceased had a telephone conversation with his brother Gregory.  Gregory’s evidence was that the deceased told him:
… that he had a will and that although at some point after he signed it he had mistakenly thought that he had appointed me as his executor, he had actually appointed [the plaintiff]. He said that he was happy with that, he had had dinner with [the plaintiff] and their son Jack a week or two earlier and they fully understood what was to happen if he should not survive the operation. He asked me to fully support [the plaintiff] in making sure that his wishes in his will were carried out. I reassured him that I would.
15	The deceased wrote four letters in contemplation of his upcoming surgery, separately addressed to the plaintiff, Gregory, Jack and Phoebe.  As noted in [13] above, Jack was directed by the deceased to access these letters in the event of the deceased’s death.  In the letter addressed to Jack, the deceased wrote: 
[the plaintiff], she is the trustee of my will.  She will have account numbers and be able to transfer money and shares into your name… Phoebe is to receive $300k from this payout.  Can you please take care of this [the plaintiff]… As trustee, [the plaintiff] will be able to transfer my shares to your account…
16	In the deceased’s letter to the plaintiff, the deceased provided the usernames and passwords for his trading, banking and superannuation accounts. 
17	In his letter to Gregory, the deceased stated that the plaintiff was the ‘trustee’ of his will and that he:
… forgot that this was the case until dragging my will out to set things in place in case things went south in surgery. I have spoken with both [the plaintiff] and Jack to reaffirm my wishes... [the plaintiff] may need a hand transferring shares to JD.  I have asked [the plaintiff] and Jack to scatter my ashes on the Goulburn River….
18	In his letter to Phoebe, the deceased wrote: 
I want to explain my will. I have left you a cash sum of $300k with the rest of my assets and monies going to Jack Daniel. You and Matt are both successful and your financial future is secure, where as (sic) I believe JD will benefit more from being left my house ect (sic). 
19	On the basis of the above facts, the plaintiff submitted that that the combined effect of the circumstances which existed at the time the deceased made his Will, including an amicable separation from the plaintiff, coupled with oral and written statements made by the deceased shortly before his death, demonstrates that he intended that the plaintiff be the executor of his estate, notwithstanding their divorce. 
20	Those submissions are accepted.  The intention is readily to be inferred from the fact that the deceased executed the Will when he and the plaintiff were separated, but maintaining an amicable relationship (as indicated by the plaintiff’s appointment of the deceased as executor of her will at around the same time), together with the deceased’s oral statements in the weeks before his death, and the contents of his letters to Jack, Phoebe, Gregory and the plaintiff.  In the weeks before his death, the deceased told the plaintiff, Jack and Gregory that the plaintiff was his executor.  Although he also referred to the plaintiff as the ‘trustee’ of his will in his letters to Gregory and Jack, the fact that he provided the plaintiff with the usernames and passwords for his accounts confirms the executorial role he intended her to fulfil.
21	I am accordingly satisfied that the deceased did not want his appointment of the plaintiff as executor of his estate to be revoked upon the ending of their marriage.
Question 2: Construction of s 14(2) of the Wills Act
22	I have found that the deceased held an intention contrary to the provision made by s 14(1) on the basis of extrinsic evidence comprising the circumstances in which the Will was made and oral and written statements made by the deceased shortly before his death.  It is therefore necessary to determine whether, properly construed, s 14(2) of the Wills Act permits a testator’s contrary intention to be established solely on the basis of such evidence.  
23	Section 14(2) relevantly provides that the section does not apply to any appointment:
… if it appears that the testator did not want the … appointment … to be revoked upon the ending of the marriage.
24	In AB (pseudonym) v Independent Broad-Based Anti-Corruption Commission, the High Court recently restated that the interpretation of a statutory provision:
… must “begin with a consideration of the text itself”, that is, the text of the statute as a whole. That said, ascertaining the meaning of the text requires a consideration of its context, which includes the general purpose and policy of a provision and, in particular, the mischief it is seeking to remedy.
25	Reference should also be made to s 35(a) of the Interpretation of Legislation Act 1984 which requires that ‘a construction that would promote the purpose or object underlying the Act … shall be preferred to a construction that would not promote that purpose or object’.  The Court of Appeal recently stated in Waters v Diesel Holdings Pty Ltd that the identification of the statutory purpose: 
…may appear from an express statement in the statute or by reference to, or inference from, its language. Discernment of purpose may be aided by reference to any relevant extrinsic materials, in particular those that identify the mischief to which it is directed. 
26	Section 35(b) of the Interpretation of Legislation Act 1984 also makes clear that regard may be had to extrinsic materials in resolving the meaning of the text, particularly in cases of ambiguity. However, ‘legislative history and extrinsic materials cannot displace the meaning of the statutory text’.
27	The first notable feature about s 14(2) is the absence of any express confinement or limitation in the text of the provision about how it is to be determined ‘if it appears’ that a testator did not want an appointment to be revoked upon the ending of the marriage.  No temporal requirement is apparent as to when the existence of a contrary intention is to be ascertained; for example, at the time the will was made, at the time of the divorce, or some other time.  Neither is there any requirement specified as to the form or manner in which the contrary intention is to appear: for example, in the will; by the words, conduct or writing of the testator; or by surrounding circumstances.  Consistently with the authorities dealing with the extent to which a court may permissibly depart from the statutory text, there is no apparent basis for words to be implied into s 14(2). 
28	Subject to the possibility referred to in the following paragraph, on an ordinary reading of the words of s 14(2), the absence of any such prescriptions or indications in the text of the provision – or elsewhere in the section or in any other provisions of the Wills Act - supports a construction which would admit extrinsic evidence about a testator’s intentions at any time between the making of the will and their death.
29	A contrary construction might arguably be advanced by reference to the words ‘upon the ending of the marriage’ appearing in s 14(2) on the basis that they indicate that any  contrary intention is to be established at the time of the divorce.  However, I do not consider that such an interpretation accords with text and context of s 14(2) of the Wills Act and that the proper construction is as stated in the previous paragraph. 
30	In the grammatical composition of s 14(2), the words ‘upon the ending of the marriage’ do not qualify or condition the words ‘if it appears’.  If the legislature had intended to confine the determination of whether there existed a contrary intention by limiting that consideration to the time when the marriage ended, such an intention could have been achieved by inserting the clause ‘upon the ending of the marriage’ immediately after the word ‘appears’.  Instead, on an ordinary reading of the section, the clause ‘upon the ending of the marriage’ designates the event in relation to which the existence of a contrary intention is to be determined and does not impose a temporal frame by reference to which the existence of a contrary intention is to be ascertained.
31	Requiring the existence of a contrary intention to be established at the end of the testator’s marriage would also be inconsistent with the ambulatory nature of a will.  The purpose of the Wills Act is to make provision for matters including the making of wills and other general matters in relation to wills.  As the learned authors of Theobald on Wills state, ‘As testamentary intention is ambulatory until death, a will is in its nature a revocable instrument; so that even if the testator makes his will irrevocable by express words therein, yet he may revoke it’.  It would be inconsistent with this essential characteristic of a will for the existence of a contrary intention to be determined at a date before the testator’s death, such as at the time of divorce.
32	The Wills Act is remedial legislation.  A remedial or beneficial statutory provision is one that ‘gives some benefit to a person and thereby remedies some injustice’.  Generally, statutory provisions of remedial legislative character ‘should be construed so as to give the fullest relief which the fair meaning of its language will allow’.  
33	Section 14(2) is properly characterised as being a remedial or beneficial provision and should be given a broad construction because it prevents the fact of divorce having the effect of revoking appointments made by a testator where the testator did not want that to occur, thereby remedying what would otherwise be the unjust operation of the general provision made by s 14(1).  The admission of extrinsic evidence relevant to whether there existed a contrary intention is consistent with this approach as it would broaden the inquiry beyond a consideration of the objective intention of the testator as expressed in their will, to include evidence of the testator’s subjective intentions and evidence of the surrounding circumstances known to the testator at the relevant time.  This is consistent with the existence of well-established principles which provide for the admission of extrinsic evidence in probate matters at common law and under statute.
34	A review of the provisions of the Wills Act indicates that the legislature has specifically directed itself in different ways as to how the existence of contrary intention in different contexts is to be determined.  In some instances, a provision is expressed not to apply if a contrary intention ‘appears in the will’; in others, a provision does not apply if there appears a contrary intention ‘whether in the will or elsewhere’.  Similarly, the legislature has made specific and different provision in relation to the identification of wills made in contemplation of marriage.  The existence of these distinct approaches in the Wills Act, and their absence in s 14(2), supports a broad and liberal construction of the section consistent with the ordinary meaning of its terms.
35	Such a construction of s 14(2) is also consistent with the purpose of the Wills Act, the extrinsic materials relating to its enactment and the relevant legislative history.  The purpose of the Wills Act, as presently relevant, is expressed in s 1(a)(ii) as follows:
1	Purpose
The purpose of this Act is to re-state, with amendments, the law relating to wills in Victoria by making provision for—
(a)	the making, alteration, revocation and revival of wills, including—
…
(ii)	the effects of marriage and divorce of testators on wills made by them; and
…
36	Notably, the statutory purpose includes restating ‘with amendments’ the law relating to wills in Victoria by, amongst other things, making provision for the revocation of wills, including the effects of divorce of testators on wills made by them.  This invites an examination of the relevant legislative history.  As stated by Gageler J (as he then was) and Nettle J in Western Australian Planning Commission v Southregal Pty Ltd:
…consideration of a statutory provision’s legislative history, and particularly the provision’s predecessors, serves to illuminate the meaning most apt to be attributed to it, especially where its meaning appears equivocal.  
37	Prior to its enactment on 2 December 1997, the predecessor to s 14 of the Wills Act was s 16A of the Wills Act 1958 (the 1958 Act) which provided as follows:
16A. 	Effect of divorce on will
(1)	The ending of a marriage revokes—
(a) 	any disposition made in a will in existence at the time the marriage ends by a testator to the testator's spouse; and
(b) 	any appointment of the testator's spouse as an executor, trustee, advisory trustee or guardian made by the will; and
(c) 	any grant made by the will of a power of appointment exercisable by, or in favour of, the testator's spouse.
(2) 	For the purposes of this section, a marriage ends—
(a) 	when a decree of dissolution of the marriage becomes absolute under the Family Law Act 1975 of the Commonwealth; or
(b) 	on the granting of a decree of nullity in respect of the marriage by the Family Court of Australia; or
(c) 	on the dissolution or annulment of the marriage in accordance with the law of a place outside Australia, but only if that dissolution or annulment is recognised in Australia under the Family Law Act 1975 of the Commonwealth.
(3) 	Despite sub-section (1), the ending of a marriage does not revoke—
(a) 	the appointment of the testator's spouse as the guardian of the spouse's children or as a trustee of property left by the will upon trust for beneficiaries that include the spouse's children; or
(b) 	the grant of a power of appointment exercisable by the testator's spouse exclusively in favour of the spouse's children.
(4) 	With respect to the revocation of any disposition, appointment or grant by this section, the will is to take effect as if the spouse had died before the testator.
(5) 	This section does not apply to any disposition, appointment or grant if it appears from the terms of the will that the testator did not want the disposition, appointment or grant to be revoked on the ending of the marriage.
(6) 	In this section "spouse" means the person who was the testator's spouse immediately before the marriage ended and includes a party to a purported or void marriage.
38	It can be seen that s 14(2) of the Wills Act corresponds with 16A(5) of the 1958 Act.  Significantly, the provisions are relevantly identical, except that the underlined words in s 16A(5) of the 1958 Act (‘from the terms of the will’) were omitted from s 14(2) of the Wills Act.  Self-evidently, the inclusion of those words in the 1958 Act had the effect of restricting evidence of contrary intention to the will alone, which also necessarily restricted the time at which the intention could be established to the time of the making of the will.  The omission of these words from the analogue provision in s 14(2) is, of itself, a compelling indication that Parliament intended that it be permissible to have regard to extrinsic evidence in considering the existence of any contrary intention.  
39	This conclusion is also supported by the extrinsic materials relating to the enactment of the Wills Act which elucidate, in the language of the statutory purpose in s 1(a)(ii) of the Act, the substance of the amendments to the law providing for the revocation of wills, including the effects of divorce of testators on wills made by them, which Parliament intended to effect. 
40	The Wills Bill was introduced to Parliament and assented to on 2 December 1997.  The Second Reading Speech and the debates for the Wills Bill do not directly address the issue of contrary intention in the context of divorce and the Bill was passed without amendment to s 14 by either House of Parliament.  However, in her Second Reading Speech, the relevant Minister stated that: 
The development of the Bill has also been influenced by the views of the Standing Committee of Attorneys-General – Initiated National Committee for Uniform Succession Laws which is composed of experts in succession law for most of the States and Territories.
41	The National Committee for Uniform Succession Laws delivered its Consolidated Report to the Standing Committee of Attorneys-General on the laws of wills in December 1997 (the Consolidated Report).  In 1991, the Standing Committee had approved the development of uniform succession laws across Australia; the Consolidated Report was the culmination of its work.  In relation to the effect of divorce on wills, although the Consolidated Report stated that the basis of a model provision for the effect of divorce on a will was s 16A of the 1958 Act, it recommended in its ‘Draft Model Wills Legislation’ that the contrary intention of a testator could be established if it ‘appears in the will or can otherwise be established’.  Contrary to s 16A of the 1958 Act, the Consolidated Report stated that the National Committee for Uniform Succession Laws agreed, and later formally recommended, that:
The provision should be subject to the testator’s contrary intention, which should be able to be shown either in the will or by extrinsic evidence.
42	Section 14(2) of the Wills Act can be seen to give effect to this recommendation by omitting the words ‘from the terms of the will’ appearing in s 16A(5) of the 1958 Act and otherwise not specifying the matters by reference to which a contrary intention may be shown.  The consequence is that such an intention is able to be shown from either the terms of a will or extrinsic evidence.
43	For the above reasons, properly construed, s 14(2) of the Wills Act permits a contrary intention on the part of a testator to be established solely on the basis of extrinsic evidence including, as in this case, evidence relating to the circumstances in which a will is made and oral and written statements made by the deceased shortly before their death. 
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