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[2014] QSC 158
Supreme Court of Queensland
2014-06-26
Ann Lyons J
Original judgment source is linked above.
[1] Dell Judith Cornish Grindrod died on 23 February 2014 and her three sons seek a declaration that the handwritten document dated 4 January 2010, which purports to be her last will is the last valid will of the deceased.
[2] On 26 June 2014 I made orders and gave short reasons in relation to this application for declarations in relation to an informal will, I indicated that I would give more detailed reason at a later date. These are those reasons.
[3] The hand written 4 January 2010 document does not meet the requirements of s 10(3) and (4) of the Succession Act 1981 (Qld) (the Act) which is in the following terms.
[4] The three sons of the deceased, as the executors named in the 2010 informal will, seek a determination pursuant to s 18 of the Act that that document is, in fact, a valid will.
[5] Section 18, subsections (1) and (2) of the Act empowers the Court to dispense with the formal requirements of s 10 if the Court is satisfied that the person intended the document to form the person's will where the document purports to state the testamentary intentions of a deceased person and has not, in fact, been executed in accordance with s 10.
"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."
[6] Section 18(3) of the Act then provides as follows:
"In making a decision under subsection (2), the Court may, in addition to the document, have regard to -
(a) In making a decision under subsection (2), the Court may, in addition to the document, have regard to 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."
[7] Whilst the 2010 will was executed in Melbourne, Victoria I am satisfied that pursuant to s 18(5), this Court has jurisdiction to hear and determine the application. The questions before me are whether the 2010 document is a document within the meaning of s 18, whether the 2010 document is indeed the deceased's document and whether the Court can be satisfied that the 2010 document, in fact, states the testamentary intentions of the deceased and was indeed intended by her to be her will.
[8] The deceased's sister Patricia Joy Caswell has set in an affidavit the circumstances surrounding the execution of the document in 2010 in an affidavit which provides as follows:
"5.1 On the occasion of the fiftieth birthday of my nephew, Philip Kestell Cornish, a family get-together was held in Melbourne and the deceased, who was my sister, flew to Melbourne and stayed with me for that occasion.
5.2 On this occasion whilst my sister was staying with me we had a conversation in my home about the importance of updating our Wills. The discussion was an important one for both of us and we both determined to immediately take action to review and amend our wills. My sister was clear in her mind as to what she wanted to achieve and, as she was about to fly back to Queensland, she stated that she wished to do it immediately. She then proceeded to write the Will referred to in paragraph 1 of this my Affidavit.
5.3 The deceased wrote the Will on her first attempt and without hesitation or assistance from me. She appeared to know exactly what she wanted to write and expressed satisfaction with what she had written. She then asked me to witness the Will with her and we both then proceeded to sign the Will in the presence of each other.
5.4 At no time during our discussion before the execution of the Will or afterwards did the deceased and I discuss the formal requirements of a will. We did not seek any legal advice about the execution of the Will and believed that the Will, as executed, would be effective to express the deceased's testamentary intentions. At the time of the deceased's execution of the Will I had no doubt as to her strong desire to re-write her previous will in a manner that would provide what she expressed to be 'fairness' and that the Will was to be a statement of her testamentary intention."
[9] It is clear therefore that in that affidavit, the deceased's sister states that she was the only witness who signed the document which was prepared and signed by her sister on 4 January 2010. Mrs Caswell also swears that the deceased executed the document on the day it was dated and that she signed her name at the foot of the page. She states that her sister intended the document to be her final will and that she signed it in her presence. Mrs Carswell confirms that the signature appearing on the document is that of the deceased.
[10] Mrs Carswell deposes that her sister was clear in her mind as to what she wanted to achieve and as she was about to fly back to Queensland, she stated that she wished to do it immediately. Mrs Grindrod wrote the document which she called her 'will' on her first attempt and without hesitation or assistance from her sister. I also note Mrs Carswell's evidence that her sister appeared to know exactly what she wanted to write and expressed satisfaction with what she had written.
[11] Mrs Carswell states that at no time during the discussion, before the execution of the will or afterwards, did either of them discuss the formal requirements of a will and they did not seek legal advice. They both believed that the will, as executed, would be effective to express her sister's testamentary intentions. She states that at the time of the execution of the will, she had no doubt about her sister's strong desire to rewrite her previous will in a manner that would provide what she expressed to be fairness and that the will was to be a statement of her testamentary intention.
[12] Mrs Carswell affidavit also provides that following the execution of the will, her sister requested her to place the original of that document in her personal safe in her home in Melbourne. Mrs Carswell indicates that she took a copy of the will and gave it to her sister and then placed the original in her safe. She states that the original of the will remained in her safe until the death of her sister.
[13] Mrs Carswell states that following her sister's death, she handed the will to Nicholas Kestell-Cornish who is one of the executors named in the will. She states that there were no further discussions in relation to updating the will. The document which is sought to be propounded as the original will has been executed to the affidavit material. That document is in short form and is dated 4 January 2010. It states:
...4.1.2010. I name Philip Kestell-Cornish, John Kestell-Cornish and Nicholas Kestell-Cornish as my executors. I wish to leave the proceeds of the unit, [ ] Grosvenor Road, Indooroopilly, Queensland to be divided equally among my 10 grandchildren and Laurel and Alison Grindrod. The rest of my estate is to be divided equally among my three sons, Philip, John and Nicholas. Any goods and chattels belonging to John Grindrod before our marriage are to go to his daughters, Laurel Grindrod and Alison Grindrod. All other goods and chattels to be decided on by Philip Cornish."
[14] I also note that exhibit "B" to the affidavit of Mrs Carswell is a copy of the deceased's will signed and dated 21 December 2006 which has a notation on the first page in the following terms:
[15] In her affidavit Mrs Carswell confirms that the writing and signature is that of her sister Mrs Grindrod and I note that the notation was made a month after the execution of the new document which Mrs Grindrod termed her "last Will" in Melbourne.
[16] There are three conditions that need to be satisfied before an order can be made under s 18. These requirements were previously set out in the decision of New South Wales Court of Appeal decision of Hatsatouris v Hatsatouris[1] and have been more recently examined in a number of Queensland decisions including Proctor v Klauke,[2] and Re Yu[3]. In Proctor v Klauke the three conditions were discussed as follows:
"In relation to the matters that I am required to be satisfied about, Young CJ in Equity in Macey v Finch ([2002] NSWSC 933), considered the equivalent provision in the New South Wales legislation and stated that the provision required proof of three matters. Firstly, that there must be a document. Secondly, that the document must purport to state the deceased's testamentary intentions and, thirdly, the document must constitute the will of the deceased. That is, it is not to operate during his or her life time. It must be intended to constitute the deceased's will."
[17] Turning to the first requirement that there must be a document, it is clear that a document is widely defined in the Act by specific reference to the Acts Interpretation Act 1954 (Qld) which defines 'document' in Schedule 1 as including "(a) any paper or other material on which there is writing". I am satisfied that the handwritten note is such a document.
"There are in the present context, several things which are relevant in that regard. First, the document must state the deceased's 'testamentary intentions', that is, his wishes or intentions as to how, voluntarily, his property is to pass or be disposed of after his death. A will may, of course, do other things: it may, for example, appoint a legal personal representative, exercise a special power, appoint a guardian or the like: see Halsbury's Laws of England, par 202. But it is the disposition of the deceased's property voluntarily after his death which is, for the present purposes, the relevant characteristic of a will."
[19] I am satisfied, having read the document, that the document does purport to state the deceased's testamentary intentions because not only does it appoint executors but it also provides how the deceased wished her property to be disposed of after her death. In particular it is clear that she wished to make provision for the family of her second husband as well as her three sons from her first marriage. Significantly, in her own writing Mrs Grindrod titled the document at the top of the page as her "Last Will".
[20] The third requirement is that the document must constitute the will of the deceased. That is, it is not to operate during a person's life. It must be intended to constitute the deceased's will to take effect on her death. I am satisfied that as Mrs Grindrod is disposing of all her property including all of her personal effects as well as her goods and chattels she indeed intended that the document was to take effect on her death when she clearly had no further use for those items. I am satisfied that the third condition has been met.
[21] Accordingly the 2010 document executed by Mrs Grindrod was intended to be a will and it was intended to be operative on the death of the deceased Mrs Grindrod. In all of the circumstances, then, I am satisfied that there should be an order in the following terms:
[5] (1994) 33 NSWLR 446 at 455
(1994) 33 NSWLR 446