SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF
PROBATE AND LETTERS OF ADMINISTRATION – LIMITED,
SPECIAL AND CONDITIONAL
GRANTS OF PROBATE AND ADMINISTRATION – OTHER CASES – where the
Source
Original judgment source is linked above.
Catchwords
SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OFPROBATE AND LETTERS OF ADMINISTRATION – LIMITED,SPECIAL AND CONDITIONALGRANTS OF PROBATE AND ADMINISTRATION – OTHER CASES – where theapplicant seeks probate of a will– where the will was prepared by a firmof solicitors – where the will states the year of execution but is nototherwisedated – where the will is otherwise properly executed –whether the will satisfies attestation requirements under s. 10 of theSuccession Act 1981 – whether the will is an informal will –whether probate should be grantedSUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – PROCEDURE– QUEENSLAND – ADVERTISEMENT – GENERALLY– where thenotice of intention to apply for grant published in respect of the will referredto the will as being undated –whether the notice of intention to applyfor grant is effectualSuccession Act 1981 (Qld), ss. 10, 18
Gold Coast City Solicitors Pty Ltd for the applicant
[2]
[1] This is an application by Adam Russell Krautz (Adam) concerning his deceased mother's will (the Will). He is the named back up executor, the primary executor having renounced.
[2] The deceased (Annette) was 77 at her time of death, divorced, with two living children, Adam and Douglas.
[3] The Will contains an irregularity. In particular, it is not properly dated. It contains a pre-printed date of 2022, with no further information (blank where the day and month ought to have been inserted by hand).
[4] Section 10 of the Succession Act 1981 (Qld) (Act) prescribes the requirements for the execution of a valid will. The requirements do not include a requirement for a will to be dated. Accordingly, this is not a case for the application of section 18 of the Act that provides that the Court may dispense with formal execution requirements. However, I consider that with an irregularity of the type here present, issues analogous to those that would arise under section 18 are appropriate for the Court to consider.
Court may dispense with execution requirements for will, alteration or revocation
[3]
(1) This section applies to a document, or a part of a document, that -
[4]
(a) purports to state the testamentary intentions of a deceased person; and
[5]
(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]
(3) In making a decision under subsection (2), the court may, in addition to the document or part, have regard to -
[7]
(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.
[8]
(4) Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).
[9]
(5) This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.
[10]
[6] Accordingly, a discretion to dispense with due execution arises where the Court is satisfied that:
[11]
(a) there is a document;
(b) the document purports to state the deceased's intention as to how, voluntarily, the testator's property is to pass after death; and
(c) the document constitutes the will of the deceased; that it is to operate upon death.[1]
[12]
[7] Because this is strictly not a section 18 case, this is the type of case where the Court might have been properly assisted by there being an oral hearing at which counsel made submissions as to the effect of the non-dating of the Will, or even if still heard on the papers written submissions from the applicant would be been helpful.
[8] However, I am satisfied that it is not inappropriate to deal with this application on the papers in circumstances where:
[13]
(a) an application for grant was advertised (although something more will need to be said about that);
(b) the persons who might be interested in the grant of probate appear limited (two sons and an unidentified number of grandchildren);
(c) there is no evidence that suggests that the estate is complex;
(d) the irregularity in the Will is minor in context;
(e) there is no evidence of any competing or later will, or anything circumstances that might operate such that the Will is not otherwise effective.
[14]
[9] The circumstances in which the Will came into existence and was executed is sworn to as follows:
[15]
(a) the Will was prepared by a firm of solicitors in 2022 when Annette was about 75 years of age;
(b) it provided near to where the testator was to sign for a date to be inserted - "Dated the day of 2022";
(c) the Will was not executed at the solicitors' office;
(d) however after execution it was stored in the safe custody of the firm that prepared the Will;
(e) one of the witnesses recalls witnessing the Will but not the date or time that occurred (apart from identifying the signing having occurred in 2022); she does not recall if the other witness had already witnessed the Will before she did so; she did not sign the Will in the presence of the other witness (contrary to the terms of the attestation clause - but permitted by s. 10(4) of the Act); she had known Annette for years and confirms Annette's signature on the document.
[16]
Does the document state the testatrix's intention as to how her property would pass after death?
[17]
[10] The will does so. The beneficiaries are identified.
[11] After some specific gifts, the residue of Annette's estate is given to her surviving grandchildren who reach 18 years of age.
[18]
Is the document testamentary, only to operate upon death and intended to constitute the deceased's will?
[19]
[12] The Will was professionally prepared and it is readily inferred that the document is testamentary and was only to operate upon death.
[13] Whether the Will was intended to constitute Annette's will requires some further consideration in light of the irregularity in the Will.
[14] I do conclude that the Will was intended to constitute Annette's will given the evidence that:
[20]
(a) it was prepared only a couple of years before her death;
(b) it was given to solicitors for safe keeping after execution;
(c) no later will has been identified;
(d) the missing completed date appears to be nothing more than an oversight.
[21]
[15] The presumption of testamentary capacity does not arise in the circumstances of an informal will.[2] The test for testamentary capacity was summarised by Applegarth J in Frizzo v Frizzo.[3]
[16] Although I consider the Will contains an irregularity rather than being informal, if it be necessary, I am satisfied that Annette had testamentary capacity at the time she made the Will.[4] The Will is rational on its face. There is no evidence to suggest that Annette did not have testamentary capacity at the time the Will was made, including by reference to the cause of death recorded in her death certificate.
[22]
[17] Rule 599(1)(a)(iii) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) required in this case that the notice of intention to apply for grant include the date of the Will. The notice in this case referred to the Will as being undated. Strictly I consider the Will was dated 2022, rather than undated, but regardless, what is contemplated by the rule is a specific date, not merely a year. That is because the specific date of a will in respect of which a grant is sought can be relevant in the circumstances including where multiple wills may have been made by the deceased or other steps have occurred that make a will ineffective (for example, marriage or divorce).
[18] A failure to comply with the rules does not render the step nugatory. In the circumstances of this case I declare the notice of intention to apply for grant effectual (rule 371(2)(d) UCPR).
[19] I am of the view that rule 604 UCPR does not apply because the Will does not fall foul of the attestation requirements of s. 10 of the Act.
[20] If I be wrong about that, I note there is filed an affidavit made by a witness who signed the Will stating how the Will was made (although she could not be more specific about the date of the signing of the Will other than 2022) that would comply with rule 604(2) UCPR.