Fraser & Anor v Melrose & Ors [2016] QSC 213

[1] This is an application for a determination under s 18 of the Succession Act 1981 (Qld) that a document dated 9 December 2015 forms an alteration of the Will dated 3 November 2000 of Royston Patrick Melrose, deceased.

[2] The deceased died on 20 February 2016, aged 85. He had been married for 27 years to Beverley Melrose, but on some unstated date they were divorced. Nevertheless they maintained a good relationship.

[3] The deceased had three daughters, Susanne Donna Fraser (Susanne), Helen Lee Melrose (Helen) and Roslyn Jane Melrose (Roslyn). Roslyn has a partner, Stephen Solly, referred to as "Steve".

[4] On 3 November 2000, the deceased executed a Will appointing Helen, Susanne and Roslyn as his executors, and leaving his estate to them in equal shares. This Will was prepared by solicitors, and was duly executed.

[5] For a period, Roslyn and Steve lived in the deceased's home. They made some improvements to the house at their own expense.

[6] In November 2015, the deceased asked Roslyn for receipts for the work that she and Steve had undertaken, while living with her father. He said that he would be "adding details" to his Will. Roslyn provided him with a spreadsheet listing expenditures, totalling $21,526.95. She asked him to speak to her sisters about this, so that they would not be surprised after his death.

[7] Susanne deposed that she was aware that her father intended to reimburse Roslyn and Steve for money spent on the house, because he had said that to her quite often. Susanne's husband, Ian Fraser, deposed that on the evening of 11 February 2016 he stayed with the deceased overnight. On that occasion, the deceased said that he did not want to go into a nursing home because he wanted as much money from his estate as possible to go to his daughters upon his death, but that there was a sum of approximately $21,000 that first had to go to Roslyn and Steve from the estate, to reimburse them for the renovations completed to the downstairs area of his house. He also said there was a note attached to his Will; and that in the note he had stated that Beverley was to get all of his paintings if she wanted them.

[8] After the deceased's death there was found amongst his possessions an unsigned copy of his Will dated 11 November 2000. Stapled to that document was a letter to the deceased from the solicitors who prepared the Will, dated 31 October 2000. A handwritten note on the copy Will, apparently by the deceased, records that the deceased signed the Will on 3 November 2000 and left it in the safe of the solicitors. There is also stapled to these documents a receipt from the solicitors dated 3 November 2000.

[9] The fourth document in this stapled bundle is the handwritten note the subject of this application. It is headed, "TO WHOM IT MAY CONCERN"; and on the next line, "ALTERATIONS TO MY WILL", with a reference to a Will dated 11 October 2000. It records that, "after all monies are finalised from my estate", the sum of $21,526.95 is to be paid to Roslyn and Steve "before distribution of monies to my three daughters"; and that "my ex wife Beverley is to receive any paintings she wishes", no doubt from the estate. Then follows the word "signed", together with the name and address of the deceased, beneath which appears his signature. The document is dated "9-12-2015". Plainly it has not been executed in accordance with s 10 of the Succession Act 1981 (Qld), the signature being unwitnessed.

[10] The present application is brought by Susanne and Roslyn. It has been served on Helen, Steve and Beverley, together with a notice proposing that the application be determined without an oral hearing. There has been no suggestion that any of the respondents wish to be heard on this application.

[11] No later Will of the deceased has been located. The retention of a copy of the Will of 3 November 2000, and the stapling to it of the note dated 9 December 2015, rather strongly point to the conclusion that this Will was not revoked. Inquiries of the firm that have prepared this Will, and of other firms practising near where the deceased lived, as well as of the Queensland Law Society and the Public Trustee, did not result in the identification of any later Will or codicil; nor, for that matter, of a Will dated 11 October 2000. I would therefore conclude that, save for the note, the last Will of the deceased was the Will dated 3 November 2000.

[12] The Will dated 3 November 2000 is duly executed. A testator who has duly executed a Will which is rational on its face is presumed to have testamentary capacity.[1] The Will of 3 November 2000 appears to be such a Will, and there is no reason to doubt the deceased's testamentary capacity on this occasion.

Section 18 of the Succession Act

"18 Court may dispense with execution requirements for will, alteration or revocation

(1) This section applies to a document, or a part of a document, that -

(a) purports to state the testamentary intentions of a deceased person; and

(2) The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person's will, an alteration to the person's will or a full or partial revocation of the person's will.

(3) In making a decision under subsection (2), the court may, in addition to the document or part, have agreed to -

(a) any evidence relating to the way in which the document or part was executed; and

(b) any evidence of the person's testamentary intentions, including evidence of statements made by the person.

(4) Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).

(5) This section applies to a document, or a part of a document, whether the document came into existence within or outside the State."

[14] In Lindsay v McGrath[2] Boddice J cited with approval the following statement of Powell JA in Hatsatouris v Hatsatouris[3] about the analogous provision now found in s 8 of the Succession Act 2006 (NSW),

"It is, and has long been, my view that the questions arising on applications raising a question as to the applicability of s 18A are essentially questions of fact, the particular questions of fact to be answered being:

(b) did that document purport to embody the testamentary intentions of the relevant Deceased?

(c) did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will?"

[15] Of paragraph (c), Boddice J said[4],

"The third requirement requires the Court to be satisfied on the evidence that the deceased, either at the time of drafting the document or subsequently, formed the intention that the particular document operate as his or her Will. That requirement does not involve establishing that the deceased consciously set his or her mind to the legal formalities of making a Will.[5] However, it is not enough that the document set out the deceased's testamentary intentions. What must be established, by evidence, is that the deceased intended the document to operate to dispose of the deceased's property upon death.[6]"

[16] The language of paragraph (c) in the statement of Powell JA in Hatsatouris might be read as adding to the requirements to be satisfied in order to obtain relief under s 18 of the Succession Act. In Teasel v Hooke[7] Lindsay J said,

"What (the words in s 8 of the Succession Act 2006 (NSW)) do is direct attention to a consideration of whether the particular document was intended to operate as a will: to have present operation as such, not to serve merely as a draft, diary note or the like."

[17] With reference to the statement of Lindsay J, Stevenson J said in In the Estate of the late Ronald Robert Irvin; Evans v Gibbs[8],

"The relevant enquiry is whether the deceased intended that the document in question itself, and not some later iteration of it then within the contemplation of the deceased, would 'form' that is to say 'be' the deceased's will".

[18] There is no reason to think that relief would be granted under s 18 in respect of a document made at a time when the person to whose estate it relates lacked testamentary capacity. In Konui v Tasi[9] Boddice J expressed the view that the presumption, mentioned earlier in these reasons, that a person who has duly executed a Will which is rationale on its face, then had testamentary capacity, did not extend to a document which was not a duly executed Will. In those circumstances, it seems to me appropriate to consider the evidence of the deceased's testamentary capacity on 9 December 2015, particularly in light of his age.

[19] In Frizzo[10], Applegarth J drew the following principles relating to testamentary capacity from the judgment of Powell JA in Read v Carmody[11],

"1. The testatrix must be aware, and appreciate the significance, of the act in the law upon which she is about to embark;

1. The testatrix must be aware, at least in general terms, of the nature, extent and value of the estate over which she has a disposing power;
2. The testatrix must be aware of those who may reasonably be thought to have a claim upon her testamentary bounty, and the basis for, and nature of, the claims of such persons;
3. The testatrix must have the ability to evaluate, and discriminate between, the prospective strengths of the claims of such persons."

[20] Plainly enough the application relates to a document. There can be no doubt it purports to embody testamentary intentions of the deceased. It gives a direction with reference to monies finalised from the deceased's estate, for the payment of a sum of money to Roslyn and Steve, before distribution of the balance of the proceeds. This direction is plainly testamentary. In addition, the deceased entitled the document "Alterations to my Will". In context, the reference to Beverley receiving paintings is a reference to that occurring after the death of the deceased.

[21] The remaining question raised by Hatsatouris is whether the document was intended itself to be operative as a testamentary instrument; or rather, adapting the language of Lindsay J in Teasel, whether it was to serve merely as a draft, diary note or the like. Again it is clear that the document was intended to have testamentary effect. The title conveys that. The language is peremptory; rather than being a document intended to be used by the deceased as the basis for some future operative document. The formality of the signature confirms this conclusion. Some support for this view is to be found in the fact that the document was stapled, apparently by the deceased, to the copy which he retained of his Will.

[22] When the document was signed, the deceased was some 85 years of age. Towards the middle of 2015 he was involved in a car accident. Later that year he became ill, and was in intensive care at the Prince Charles Hospital. He had multiple health issues, and on his return home required substantial care. Age and ill health are not incompatible with testamentary capacity[12].

[23] It is apparent from the note that the deceased appreciated its significance. He made it plain that he intended to vary the provisions of his Will. The note also disclosed an awareness of the nature, extent and value of the deceased's estate. In particular, it gave recognition to the claim of Roslyn and Steve on his testamentary bounty, a conclusion reinforced by his enquiry to Roslyn in November 2015; Susanne's awareness of the reason for the bequest to Roslyn and Steve; and the deceased's statement to Ian shortly before his death as to the reason for the payment to Roslyn and Steve. Likewise, the note recognised the claim which his three daughters otherwise had. There is, in my view, very strong evidence of the deceased's testamentary capacity when he executed the note.

[25] I am satisfied that the deceased intended the note dated 9 December 2015 to form an alteration to his Will. An order should be made, granting the application, in accordance with the draft provided by the applicants.

[1] Frizzo & Anor v Frizzo & Ors [2011] QSC 107, [23] and cases cited at n 9.

[2] [2015] QCA 206.

[3] [2001] NSWCA 408 at [56].

[5] The Estate of Masters; Hill v Plummer, Plummer v Hill (1994) 33 NSWLR 446 per Kirby P (as his Honour then was) at 452.

[6] Oreski v Ikak [2008] WASCA 220 at [54].

[7] [2014] NSWSC 1839 at [28].

[8] [2015] NSWSC 432 at [29].

[9] [2015] QSC 74 at [43].

[11] [1998] NSWCA 182.

[12] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 560, 566-567.