Hatsatouris v Hatsatouris

[1] Philippides J: This is an application for letters of administration in respect of the Will of the deceased, Stephen Charles Garris, in circumstances where the Will was not executed in accordance with the provisions of the Succession Act 1981 (Qld) ("the Act").

[2] The will document is dated 12 December 2006 and entitled "LAST WILL & TESTAMENT FOR STEPHEN CHARLES GARRIS". It states:

"I, Stephen Charles Garris, being of sound mind & body do hereby leave my house and all possessions to Suzzanne Dawson 3 Palinga St Bracken Ridge. Suzzanne Dawson is to have ownership of all my assets and possessions. This document is to override any prior arrangements.

[3] The deceased died aged 35 years on 16 December 2006, by hanging himself. The application is brought by the deceased's de facto spouse, Suzanne Dawson. The main asset in the deceased's estate is a house worth between $300,000 and $350,000. There is also a car worth some $15,000 and a Sunsuper account of $4,325.66. The deceased had brought a personal injury claim in respect of injuries sustained in the workplace which had not settled prior to his death.

[4] By s 10 of the Act, a will is required to be in writing and signed by the testator in the presence of two witnesses. The Will is in writing and is signed and dated by the deceased, but does not satisfy the attestation requirements of the Act, in that it is not witnessed.

[5] Section 18 of the Act[1] permits the court power to admit a document to probate if satisfied that the document embodies the testamentary intentions of a deceased person, even though it does not comply with the formal requirements for executing, altering or revoking a will. Sections 9 (a) and (b) of the Act, which were replaced by the s 18 amendments introduced in April 2006, previously provided a means by which a non-complying will could be admitted to probate, if the will met the "substantial compliance test". They provided:

"9 Will to be in writing and signed before 2 witnesses

A will shall not be valid unless it is in writing and executed in manner hereinafter mentioned and required (that is to say) it shall be signed at the foot or end thereof by the testator or by some other person in the testator's presence and by the testator's direction and such signature shall be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time and such witnesses shall attest and shall subscribe the will in the presence of the testator but no form of attestation shall be necessary provided that -

(a) the court may admit to probate a testamentary instrument executed in substantial compliance with the formalities prescribed by this section if the court is satisfied that the instrument expresses the testamentary intention of the testator; and

(b) the court may admit extrinsic evidence including evidence of statements made at any time by the testator as to the manner of execution of a testamentary instrument."

[6] Section 18 marks a decidedly different approach to that which prevailed under the previous s 9 regime. Section 18 now provides:

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

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

that -

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

(b) has not been executed under this part.

(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 regard 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 part of a document, whether the document came into existence within or outside the State."

[7] The repealed s 9 regime used the formal requirements as the starting point rather than the testator's intentions. Pursuant to the new s 18 regime, the focus is on the deceased's testamentary intention. The broad power to dispense with the ordinary execution requirements is engaged if the court is satisfied that the testator intended the document to constitute the person's will.

[8] Similar legislation incorporating a "testamentary intention" test has existed in most other States for some time.[2] In Hatsatouris v Hatsatouris,[3] Powell JA (with whom Priestley and Stein JJA agreed) said, in considering s 18A, Wills, Probate and Administration Act 1898 (NSW) which is in similar terms to s 18:

" ... 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?"

[9] It is also useful to note the following observations of Mahoney JA in In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill[4] concerning the New South Wales Act:

"Second, s 18A should, as I have indicated, be given a beneficial application. There are, in the history of this branch of the law, many cases in which the intention of the deceased has not been able to be given effect. That is an evil which should be remedied as far as may be. It may be understood why the legislature decided not to give testamentary effect merely to any statement of testamentary wishes, however casually stated and even if it was not contemplated that legal results would follow. The consequences of that as far as concerns proof and otherwise, can well be imagined. But the benefits of the change should not be withheld by requiring too rigid a manner of proof that what was put in a document should have legal effect. If a document is on its face such as contemplates legal effect, ordinarily it should be given effect unless - as in this case - there are contexts or circumstances that lead to the contrary conclusion."

[10] There are a number of decisions in other jurisdictions applying corresponding legislation,[5] but only a few decisions in relation to the application of s 18 since the April 2006 amendments to the Act (Re Hodge[6] and Re Windus[7]) and none are reported.

[11] In Hodge's case the court admitted to probate a will which had not been witnessed, having declared it to be the deceased's will and being satisfied that it was intended by the deceased to form his will. Hodge was a 49 year old truck driver who was found dead in his caravan on 14 August 2006. The cause of his death was a multiple drug overdose combined with alcohol and pneumonia. He was found slumped on his floor surrounded by a large quantity of prescription medication and several empty bottles of alcohol. At his feet was a newsagent kit will which had been completed by the deceased, signed and dated 12 August 2006. (Evidence from a forensic document examiner confirmed the handwriting on the will, as well as the signature, was that of the deceased.) The document was not witnessed as required by the Act. The deceased's estate was in the order of $80,000. There was medical evidence indicating that the deceased would most likely have been in a coma after the consumption of the alcohol and drugs for about 24 hours and that the deceased died between 13 and 14 December 2006. A forensic document examiner indicated that the document appeared to be in the hand of someone who was not then under the influence of drugs or alcohol in that the handwriting was legible, fluid, consistently neat and not exaggerated.

[12] Re Windus concerned an application for Letters of Administration in circumstances similar to the present case. The document there in question was signed on 12 July 2006 and commenced with the words, "In the event of my death" followed by various dispositions largely to family members and concluding with the words, "These are my last wishes". On the back of the document appeared in capitals: "LAST WILL OF STEPHEN WINDUS". Affidavit evidence established that the document was in the hand of the deceased and signed with his usual signature. The document did not comply with the attestation requirements of the Act. The deceased died on 22 July 2007 having committed suicide by shooting himself. The application for Letters of Administration was made by the deceased's mother. Notice of intention to apply for a grant of representation was duly published and no person lodged a caveat nor asserted a right to a grant of representation in relation to the estate. The deceased's estate was a modest one, the main asset being a home unit subject to a mortgage which had fallen into arrears following the deceased's death. Orders were made declaring that the testamentary document was intended to be the deceased's will and that Letters of Administration with the will be granted.

Application of s 18

[13] There are a number of factors which indicate the deceased's testamentary intention in respect of the document in question in this application. The deceased had on 12 December 2006 spoken to Mr Down, solicitor, indicating that he wished to make a will leaving his entire estate to the applicant. On the same day the deceased completed and signed the document in accordance with his expressed wishes. He repeated his wishes concerning his estate when speaking the following day (13 December 2006) to Mr McKeering, a solicitor who was acting for him in relation to the personal injuries claim. Mr McKeering stated in his affidavit that the conversation turned to the making of a will and that he asked the deceased what he wanted to do with his estate. The deceased replied that he wanted to give all his estate to the applicant. Mr McKeering deposed to his giving the deceased certain advice in relation to the possibility of leaving part of his estate to his brother. The deceased told Mr McKeering he would have a think about it and get back to him. However the deceased never gave any instructions in that regard to Mr McKeering.

[14] There is no question that the document was completed by the deceased. The applicant and Mr McKeering, who are familiar with the deceased's handwriting, depose to the Will being in the hand of the deceased and signed by him. There also exists independent expert forensic evidence of Gregory Marheine, a forensic document examiner, who has examined the deceased's handwriting and deposed that the handwriting of the Will and the signature is that of the deceased.

[15] I am satisfied that the document signed on 12 December 2006 embodied the deceased's testamentary intentions and that he intended it to form his Will. It is therefore appropriate that Letters of Administration be granted with the Will notwithstanding its non-compliance with the formal requirements as to attestation required by s 10. I order that Letters of Administration with the Will be granted to the applicant.

[2] As to equivalent provisions to s 18 of the Act see: s 18A of the Wills, Probate and Administration Act 1898 (NSW); s 9 of the Wills Act 1997 (Vict); s 12 of the Wills Act 1936 (SA); s 34 of the Wills Act 1970 (WA); s 26 of the Wills Act 1992 (Tas); s 11A of the Wills Act 1968 (ACT).

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

[4] (1994) 33 NSWLR 446 at 462.

[5] In the Estate of Kelly, deceased; Duggan v Hathan [1983] 32 SASR 413, In the Estate of Crossley deceased; Crossley v Crossley & Others [1989] WAR 227, In James v Burdekin & Ors (1990) 3 WAR 298.

[6] Unreported decision of Moynihan J, delivered 14 February 2007.

[7] Unreported decision of Philippides J, file no 1412/07, delivered 15 March 2007.